Canadian Union of Public Employees, Local 79 v. The City of Toronto
Canadian Union of Public Employees, Local 79, Applicant v. The City of Toronto, Toronto Civic Employees Union, Local 416 Canadian Union of Public Employees, Ontario Nurses' Association, International Union of Operating Engineers, Local 793, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 46, International Union of Bricklayers and Allied Craftsmen, Local 2, Carpenters and Allied Workers, Local 27, United Brotherhood of Carpenters and Joiners of America, International Brotherhood of Electrical Workers, Local 353, International Brotherhood of Painters and Allied Trade, District Council No. 46 and Locals 1819 and 557, Sheet Metal Workers Local 30, International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Toronto Fire Fighters Association, Local 113, North York Professional Fire Fighters Association, Local 752, Etobicoke Professional Fire Fighters Association, Scarborough Professional Fire Fighters Association, Local 626, York Professional Fire Fighters Association, Local 411, East York Fire Fighters Association, Local 118, Toronto Licencing Commission, and CUPE and its Local 2998, Responding Parties v. Toronto Parking Authority, Intervener.
BEFORE: R. O. MacDowell, Chair.
DECISION OF THE BOARD: October 30, 2000
I
This is a request for reconsideration of a decision of the Board dated November 19, 1998. The decision was made pursuant to the Public Sector Labour Relations Transition Act, 1997 (“Bill 136”).
In order to appreciate what the request for reconsideration is about, it is necessary to sketch in some background.
I will then turn to the request for reconsideration itself.
II
The original Bill 136 application was filed in mid-1998, in the wake of the merger of several local municipalities, that, together, make up the “new” City of Toronto. The Board was asked to determine the number and description of the bargaining units that were appropriate for the new City’s operations; then to determine which trade union would represent the employees in those new bargaining units.
The Bill 136 application pertained to some 30,000 employees who, prior to 1998, had been grouped for collective bargaining purposes into more than 50 separate bargaining units. The Board was asked to amalgamate and rationalize those bargaining units into fewer, larger units; to sort out any disputes about the perimeter or composition of the new bargaining units; then to conduct such representation votes as might be necessary to determine which trade union would represent the employees in the new bargaining units (see sections 22 and 23 of Bill 136). Moreover the Board was obliged to complete that task expeditiously: firstly, because section 37 of the Act requires the Board to do so; and secondly, because the parties themselves were very anxious to settle the new bargaining structure and conduct any representation votes before the end of the calendar year.
In its various decisions in the Fall of 1998 (October 20, November 18, November 19, November 20, November 24 and December 1) the Board discussed the general background of the case and analysed the legal framework established by Bill 136. The Board then made a number of determinations with respect to the bargaining structure, and, later, the identity of the trade union entitled to represent the employees in the newly-defined bargaining units. Some of those determinations were fully adjudicated. Others were based upon the agreement of the parties. And some were an amalgam of the two. However, all of these decisions were made after considering the parties’ representations. And, everyone was cognisant of the time pressures imposed by Bill 136 and by the parties’ own timetable.
This is a request for reconsideration of a particular decision of the Board dated November 19, 1998. That decision incorporated the agreement of the parties respecting the number, description, and composition of various bargaining units, then directed that representation votes be taken so that the employees in those bargaining units could indicate, by secret ballot, which trade union they wished to have represent them. In other words, the decision of November 19th is in large measure based upon a settlement. The text of the decision introducing that settlement reads as follows:
Following the release of the Board's decision of October 20, the City and the big CUPE Locals engaged in intensive discussions (with the assistance of the Labour Relations Officer) with a view to resolving their differences. (ONA was aware of these discussions which took place on the days fixed for a continuation of the consultations; however, ONA did not participate in them, nor was ONA a party to the eventual settlement ‑ see below.) The objective was to settle a bargaining unit pattern that was workable from the City's point of view, and that would also accommodate the interests of the unions that represented the overwhelming majority of the new City's employees. And as it turned out, these parties were eventually able to resolve all of the matters in dispute between them. Their agreement was reduced to writing and reads this way…..
And the “Minutes of Settlement” to which the Board is referring, begin with the following paragraphs:
The parties hereto have resolved this matter and the full and final settlement is as follows:
The parties agree and request the Board make the necessary declarations and orders.
Attached hereto is the vote arrangements worksheet. The parties have written submissions on the outstanding vote arrangements and request the Board to order the necessary votes. The voters list will be finalized as per agreement and timetable set out below:
a) Draft voters lists will be sent to the parties on or before November 19, 1998. The affected unions' responses will be sent to the City and each other on or before November 24, 1998. Final lists will be sent to the OLRB and to the affected parties on or before November 30, 1998.
b) Individuals in positions listed in Appendix 1, hereto attached who vote will have their ballots segregated. If they "elect" to remain excluded from the unit into which the position they hold is being placed as per paragraph 9.b), their ballot will not be counted. Otherwise their ballot will be counted as per normal Board procedure.
As will be seen, therefore, the parties reached “full and final” agreement with respect to the description and composition of certain bargaining units, recorded their agreement in writing, then urged the Board to act upon that agreement and make the necessary declarations and orders. And that is what the Board did. Based upon the parties’ agreement, the Board established voting constituencies and voters’ lists, and directed the taking of several representation votes. The Board also made directions concerning electioneering and voting arrangements.
The balloting was conducted, as the parties had requested, in December 1998. The Board finalized the bargaining structure and bargaining agents shortly thereafter. The time limits set by the parties were met – although not without considerable effort on everyone’s part.
For present purposes, it is unnecessary to review the Board’s decision-making process in any detail. Anyone interested in the background can simply read the earlier Board decisions. However, it is perhaps useful to note that the power to reconsider, has already been addressed in connection with another reconsideration request made by the Ontario Nurses’ Association (“ONA”) on November 12, 1998 – that is, about three weeks after the decision which ONA sought to have reviewed. This is what the Board had to say:
Despite the assertions of CUPE Local 79, I am satisfied that the Board does have the power to reconsider a decision under Bill 136. Section 37(1) of Bill 136 incorporates by reference section 114 of the Labour Relations Act, 1995; and, in my view, there is no operating incompatibility between section 37 and the reconsideration power found in section 114. Section 37(9) of Bill 136 merely confirms that, at the end of the day, the decision ultimately made under Bill 136 is "final and binding" ‑ whether that decision is founded upon a unique provision of Bill 136, or upon a section of the Labour Relations Act that has been incorporated by reference. The declaration of finality in section 37(9) does not override the power to reconsider in section 114, any more than the second half of section 114(1) negates the earlier portion.
However, given the need for expedition and finality under Bill 136 (see sections 37(8) and 37(9)), it seems to me that the discretion to reconsider should be very cautiously exercised. That is especially so with respect with bargaining‑unit determinations made under section 22. In a multi‑unit setting such as the one before me in this case, determinations under section 22 almost inevitably affect the definition of contiguous bargaining units, and thus the rights of other parties and employees; moreover, the definition of bargaining structure is but the first step in the process for selecting bargaining agents and negotiating new collective agreements. Any belated tinkering with the bargaining unit perimeters established under section 22 will interrupt the statutory sequence in ways that may cause the whole structure to unravel. At the very least, revisiting earlier bargaining‑unit determinations will cause further delay in a context in which the statute commands expedition.
Against that background, it seems to me that a request for reconsideration must be launched quickly, and must raise compelling submissions which could not reasonably have been advanced earlier.
Accordingly, the Board has already ruled that it has the power to reconsider decisions made under Bill 136. The question is whether the Board should do so in the circumstances of this case. And one of the factors to consider is whether the request for reconsideration was made in a timely way.
The present request for reconsideration was filed with the Board on September 11, 2000 – which is to say, almost two years after the Board’s decision incorporating the parties’ agreement. Moreover, as I understand it, the City seeks to reconsider and change some of the terms of settlement that were incorporated into the Board’s decision.
In other words, not only has the City waited two years to make its request for reconsideration, but it is now seeking to change or amplify certain terms to which it agreed, two years ago, as part of a settlement.
Of course, since November 1998, the Board has not only finalized the Bill 136 application then before it, but many months have gone by, and the parties themselves have been back to the bargaining table to negotiate a new collective agreements in respect of the bargaining units confirmed by the Board’s decisions. The Board has long since made the bargaining unit determinations said by Bill 136 to be “final and binding for all purposes” (see section 37(9)). But in addition, the parties themselves have engaged in collective bargaining in respect of those defined bargaining units. And in the shadow of a strike, the parties have concluded new collective agreements. So it is not entirely clear what effect a “reconsideration” would now have, since the particular terms in issue emanated originally from the parties themselves, and, I presume, continue to be reflected in the collective bargaining process that flowed from the Board’s decision of two years ago.
As I understand it, the City has two main concerns, which prompt this request for reconsideration. First of all, the City says that in the face of pressure to secure an agreement and finalise the Bill 136 application, it might have acted hastily and with incomplete information with respect to certain classifications ultimately excluded from the bargaining unit. Secondly, in light of collective agreement provisions subsequently negotiated with the union, “managerial” or other “exclusions” may now find it more difficult to “go into” the bargaining unit with full “seniority rights”, in the event that their “non-union jobs” evaporate as a result of “restructuring” or “downsizing”, and they have to search for alternatives within the unit to which a collective agreement now applies. That is so because (as I understand the City’s submissions) the union has insisted upon (and the employer has apparently agreed to), collective agreement language that provides that job rights in the bargaining unit should be dependent upon bargaining unit service. Service outside the bargaining unit does not count. So if “outsiders” have to look for work within the configuration of job classifications to which the collective agreement applies, they may not be able to rely upon their years of service as “members of management” or in other positions outside the union umbrella.
It appears that, faced with the spectre of “downsizing”, union members, through their bargaining agent, have used the process of collective bargaining (including the right to strike with all of the risks that that entails) to protect their own job security and relative seniority position, vis-à-vis persons formerly excluded from the bargaining unit (and in the case of displaced “managerial personnel”, persons who were “on the other side of the bargaining table”). “Managerial” (or other excluded) personnel have whatever perqs or benefits accompany their “non-union” or “managerial” status. However, in the event that they are “downsized” and wish to seek access to one of the jobs to which the collective agreement applies, they will not be treated as if they had been in the bargaining unit all along.
That is why the City now seeks to reconsider the exclusions which it sought, or to which it agreed, two years ago. The City wants to facilitate the transfer into the bargaining unit of persons who have heretofore been excluded.
III
I have considered the City’s representations.
I have concluded that this is not an appropriate case to exercise the Board’s discretion to reconsider or revise the Board’s decision of November 19, 1998.
IV
Bill 136 is designed to deal with the labour relations fallout of public sector restructuring. It is a carefully constructed code, permitting the Board to amalgamate bargaining units, define the new bargaining structure, and determine which bargaining agent, if any, will represent the employees in the units so described. I say, “if any”, because the statute also contains detailed provisions respecting the rights of employees – not only the right to choose among one or more bargaining agents (including in some cases a “no-union” option), but also protections for accumulated seniority rights in whatever bargaining structure emerges from the amalgamation process.
The statute addresses and protects the seniority rights of “employees” who may find themselves in a bargaining unit after amalgamation. It says nothing about the rights of “managerial” or other individuals who remain outside bargaining units. But implicitly, such persons have no seniority or other rights that depend upon membership in the bargaining unit, or the application of a collective agreement. They have neither the benefits nor disadvantages of trade union representation. The collective agreement simply does not apply to them. And, of course, “managerial personnel” are not “employees” at all under the Labour Relations Act, and are thus not entitled to membership in any bargaining unit.
Accordingly, the parties in this case (all represented by experienced labour lawyers) must be taken to have known that consigning individuals to one bargaining unit or another, or excluding them from bargaining units altogether (as the City frequently sought to do) would have an effect not only on the Board’s processes (the definition of voting constituencies, the right to vote, etc.), but also upon the excluded individuals’ longer term employment or collective bargaining rights. Persons excluded from the bargaining unit, for whatever reason, would not be entitled to vote in any representation vote, would not be covered by any existing collective agreement, would not have to pay union dues, would have no right or obligation to strike, would not have to walk a picket line, and so on. (Indeed managerial personnel might be called upon to help resist a strike by union members).
Be that as it may, excluded individuals would continue to deal with their employer on an individual basis, would have whatever benefits are available to “non-union” personnel, would have contractual (not collective agreement) rights on termination, and would have access to the Courts rather than arbitration. Excluding such managerial (or other) individuals from the bargaining unit relieves them of certain obligations of union membership. But it also exposes them to whatever risks or rewards are associated with an individual employment relationship.
As I have already noted, the City was quite anxious to complete the restructuring task by the end of 1998; and against that background, the parties, no doubt had to make their decisions quickly, based upon imperfect information, and against the time pressures prescribed by the statute or by their own timetable. No doubt there were “tradeoffs” and compromises and considerable “give and take”. No doubt the unions or the employer might, upon reflection, have done things differently – particularly with the benefit of hindsight, two years experience with the “evolving megacity”, and the experience of a new round of collective bargaining. No doubt the prodigious and commendable effort to reach a settlement produced a “deal” that is imperfect in some respects, or from someone’s point of view. And no doubt, for some individuals being “non-union” may not be as attractive now as it might have been, or seemed to be, two years ago.
However, that is no reason for the Board to reconsider its earlier decision based upon the parties’ agreement, nor permit the parties (or any of them) to unilaterally tinker with the terms of that agreement – especially two years later.
The Bill 136 mechanism is triggered upon the application of one or more of the “institutional parties” (employer or trade union) who are permitted to agree upon the bargaining structure that, in their opinion, is appropriate for the new labour relations setting; and if the parties reach such agreement, the Board is bound by it. Indeed, the scheme of Bill 136 contemplates and encourages settlement – which is what ultimately happened here. And of course, quite apart from the terms of Bill 136, it was and is, eminently sensible to resolve disputes such as this without the uncertainty, delay and expense of litigation. That is what the parties did in this case. Counsel for the City and counsel for the union worked long and hard to hammer out a compromise ; and they are to be commended for that effort.
But, by the same token, when the parties have reached an agreement with respect to bargaining unit description and composition, when they have concluded formal Minutes of Settlement, when those Minutes of Settlement have been incorporated into a Board decision, when the resulting determinations have been acted upon by the Board and the parties themselves, when representation votes have been taken, when many months have gone by, and when the parties have engaged in collective bargaining (with more strike and ratification votes) and have negotiated new collective agreements in respect of those bargaining units, it is simply too late to reopen the matter and try to rewrite history.
The Board has said on many occasions that the “power to reconsider” is an extraordinary one, that should be used sparingly, lest its exercise undermine the efficacy of decisions that the statute intends to be “final and binding”. However, that is especially so when the decision under review embodies an agreement of the parties. In Peel Paper Products [1995] O.L.R.D. No. 3800, the Board put it this way:
The Board is usually quite reluctant to interfere with a settlement, or permit a party to reconsider its agreement – even if that party later decides that it was unwise, improvident, or things did not turn out as expected. To do otherwise would reduce the efficacy of a settlement process that the statute is clearly designed to facilitate (see generally, Brantwood Manor [1984] OLRB Rep. Mar. 415)
Moreover, an examination of the parties’ agreement in this case, makes it perfectly plain that what they have agreed upon – and what the Board ultimately accepted – was quite different from what would have emerged from litigation, or if the Board had been given a free hand to restructure bargaining units in the way that the Board considered most appropriate for collective bargaining. The parties’ agreement reflects any number of tradeoffs and curiosities (such as giving certain persons an “option” to be included or excluded from the bargaining unit) which would not have entered into the Board’s calculation. It is a compromise arrangement with, no doubt, a number of interrelated elements. However, having entered upon that exercise and reached a resolution, we do not think that it is open to one of the parties to revisit their handiwork or tinker with components of “the deal”. Nor is it good labour relations policy.
The City here is not without alternatives. If there are to be adjustments to the bargaining unit configuration or composition, they can be fleshed out at the bargaining table, or in accordance with the legal mechanisms now available under the Labour Relations Act. For example, if there is a dispute about whether someone does or does not exercise managerial functions, then an application can be made to the Board under section 114 of the Labour Relations Act. Conversely, if the issue is whether someone is or is not in the bargaining unit, that must be determined by an arbitrator. Finally, if the nub of the problem is a seniority formula in the current collective agreement that disadvantages former managers (and others), then that too can be addressed in bargaining.
However, in my view, and in all the circumstances, this is not an appropriate situation in which to reconsider a decision based upon the parties’ agreement, and issued almost two years ago.
The request for reconsideration is therefore dismissed.
“R. O. MacDowell”
for the Board