The Toronto Hydro-Electric Commission v. Canadian Union of Public Employees, Local 1, 1999 CanLII 19990

[1999] OLRB REP. MAY/JUNE 558

3775-98-FC; 3776-98-FC The Toronto Hydro-Electric Commission, Applicant V. Canadian Union of Public Employees, Local 1, Responding Party

First Contract Arbitration - Public Sector Labour Relations Transition Act - Successor employer within meaning of Public Sector Labour Relations Transition Act ("PSLRTA") making application for first contract direction in respect of collective bargaining between it and successor union - Board finding that application brought under PSLRTA and that it ought to be heard by single vice-chair pursuant to section 37 of the PSLRTA

BEFORE: Mary Ellen Cummings, Alternate Chair, and Board Members J. A. Rundle and D. A. Patterson.

APPEARANCES: W Jason M. Hanson, David Scott, Bernie Oldham, Damian Rigolo, Robert Verbuck and Tristan Brown for the applicant; LorneA. Richmond, Mark Wright, Bruno Silano and Victor DeMelo for the responding party.

DECISION OF MARY ELLEN CUMMINGS, ALTERNATE CHAIR AND BOARD MEMBER J. A. RUNDLE; May 26, 1999

1. The Toronto Hydro-Electric Commission (the "Employer") brought two applications for a first contract direction pursuant to section 43 of the Labour Relations Act, 1995 (the "Act"). One application relates to the "inside" bargaining unit, and the other to the "outside" bargaining unit. For the purpose of these preliminary matters, there is no reason to distinguish between the two files.

2. Prior to the start of the hearing, the responding party ("CUPE" or the "Union") sought to have the applications dismissed on the basis that they were brought prematurely. In a decision dated February 19, 1999, the Board concluded that the applications had been brought prematurely, but disagreed that, in consequence, they were a nullity. The Board determined that section 123 of the Act allowed the Board to cure the irregularity. As a result, the Board found that although the applications were premature when brought on February 8, 1999, they had matured by February 10, 1999, and there was no practical reason to require the applicant to refile. After citing section 43 of the Act, the Board wrote:

The Board agrees; the applicant was not entitled to file applications until February 10, 1999, having regard to the provisions of section 79(2). But we disagree with the responding party's submission that the result of the premature filing is that the applications are a nullity. [emphasis added]

3. When the hearing convened, the Union sought reconsideration of the decision. Although the Union was concerned with the merits of the decision in its entirety, Counsel put particular emphasis on the Board's reference to section 79(2). In his view, the impact of the decision was that the Board was treating section 79(2) as a procedural time-limit which could be relieved against by the Board. In Counsel's view, that is both wrong and potentially devastating to labour relations in the Province.

4. Although the Board dismissed the request for reconsideration, it is appropriate to give brief reasons now because the Board's February 19, 1999 made an error which no doubt contributed to the Union's unease. In reaching its decision, the Board actually relied on section 122(2), not section 79(2).

Section 122(2) provides:

122. (2) A decision, determination, report, interim order, order, direction, declaration or ruling of the Board, a notice from the Minister that he or she does not consider it advisable to appoint a conciliation board, a notice from the Minister of a report of a conciliation board or of a mediator, or a decision of an arbitrator or of an arbitration board,

(a) if sent by mail and addressed to the person, employers' organization, trade union or council of trade unions concerned at his, her or its last-known address, shall be deemed to have been released on the second day after the day on which it was so mailed; or

(b) if delivered to a person, employers' organization, trade union or council of trade unions concerned at his, her or its last-known address, shall be deemed to have been released on the day next after the day on which it was so delivered.

5. In the Board's view, section 79(2) has no relevance to this proceeding. Section 122(2) was relied on by the Board to assist in determining when the "no board" report was "released", for the purposes of determining when a section 43 application is timely.

6. After hearing the reconsideration request, the Board raised the question of whether this application was properly brought under the Labour Relations Act, 1995 (the "Act") or under the Public Sector Labour Relations Transition Act (the "PSLRTA"). The majority of the panel (Mr. Patterson dissenting) concluded that the matter was more properly brought under the PSLRTA. It is useful to start with the Legislative framework.

7. Section 6 of the PSLRTA says that the legislation applies on the established of the Toronto Hydro-Electric Commission, and for the purposes of the statute, the predecessor employers are dis­solved, and the new Commission is the successor employer.

8. The PSLRTA then sets out a process for moving newly merged organizations, this Employer included, through the determination of bargaining units and bargaining agents, creation of transitional collective agreements, to the establishment of new collective agreements. Specifically sections 31 and 32 of the PSLRTA provide:

9. (1) A party to a collective agreement continued under subsection 24(2), a composite agreement or, if both parties agree in writing that it may be done, a replacement agreement, may give notice in writing to the other party of its desire to bargain with a view to replacing existing collective agreement with a new collective agreement.

(2) The notice has the same effect as a notice given under subsection 47(2) of the Fire Protection and Prevention Act, 1997 or section 59 of the Labour Relations Act, 1995.

(3) The existing collective agreement ceases to operate 90 days after the day on which the notice is given.

32. (1) Section 43 of the Labour Relations Act, 1995 applies, with necessary modifications, with respect to the new collective agreement referred to in subsection 3 1(1) as though the new collective agreement was a first collective agreement.

(2) References to length of service in clause 43(14)(b) of the Labour Relations Act, 1995 shall be deemed, for the purposes of the application of that clause under subsection (1), to be references to seniority rights.

(3) In making a decision under section 43 of the Labour Relations Act, 1995, as that section applies under subsection (1), a board of arbitration shall take into consideration all factors it considers relevant, including the following criteria:

1. The employer's ability to pay in light of its fiscal situation.

2. The extent to which services may have to be reduced, in light of the board's decision, if current funding and taxation levels are not increased.

3. The economic situation in Ontario and in the part of Ontario where the employer is located.

4. A comparison, as between the employees and other comparable employees in the public and private sectors, of the terms and conditions of employment and the nature of the work performed.

5. The employer's ability to attract and retain qualified employees.

(4) This section applies only to parties whose labour relations are governed by the Labour Relations Act, 1995 and to whom the Hospital Labour DisputesArbitrationAct does not apply.

9. In the Board's view, the jurisdiction to make a first contract direction in the circumstances of this case is given by the PSLRTA. If such a provision did not exist, it is doubtful (or at least questionable) whether parties would have access to first contract direction pursuant to the Labour Relations Act. The drafters of the PSLRTA essentially imported the features of section 43 (with modifications) rather than create a mechanism to direct a first contract that was unique to the PSLRTA.

10. Once the Board issued its decision, the sides people left the hearing because pursuant to section 37 of the PSLRTA, determinations are made by the Chair, Alternate Chair or a single Vice-Chair.

11. The Union then made a motion to dismiss the proceedings on the basis that the Employer's applications had been made pursuant to the Act, and there was no application pursuant to the PSLRTA before the Board. The Board dismissed that motion. The Board and the parties had the relevant pleadings before them, if on the "wrong" forms. In any event, given that it was less than clear which statute the proceedings should be brought under, it would be inappropriate to make the order the Union sought.

12. The Board then heard the Employer's motion that the Union's response failed to make out a prima facie defense to the first contract application. The motion was dismissed without reasons. On the agreement of the parties, succeeding days were adjourned.

13. On March 14, 1999, the Board was advised that the parties had concluded collective bargaining and entered into a Memorandum of Agreement, which was ratified. A term of the Memoran­dum was that the applicant would seek leave to withdraw these application. The Board, happily, grants leave to withdraw.

DECISION OF BOARD MEMBER D. A. PATTERSON; May 26, 1999

1. I dissent from the majority decision in this matter.

2. I would not have held that these parties should fall under the jurisdiction of Bill 139. The majority by virtue of their decision specifically excluded both panel members from hearing this application, because Bill 139 prohibits Board Members from sitting on any matter which falls under the umbrella of Bill 139.

3. Bill 139 was intended as a transition act, I believe its intent was to bridge workers rights until they were covered by the Labour Relations Act, 1995. In this case the applicant's assertion and the majority's decision gave the applicant a shield to deny the respondent the representation and benefit of a full panel which they would be entitled to under the Act.

4. I believe that once the applicant applied under section 32(1) of Bill 139, the Act became the respective jurisdiction the parties should have been covered by.

5. This is surely not what the intent of this Bill was, the legislature in its passage of numerous Bills regarding labour relations that seal the concept of workplace democracy and worker rights. Surely that phrase should be given the utmost of respect, and the Board should not circumvent what section 43 of the Act is. That is to put the parties before a panel of the OLRB.

6. I would have exercised the Board's discretion in granting the application for first contract arb and put this matter before this panel of the Board under the Act under section 43.