2682-99-R The Employees of the Alcohol and Gaming Commission of Ontario, Applicant v. Ontario Public Service Employees’ Union, Responding Party v. Alcohol and Gaming Commission of Ontario, Intervenor.
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: Karen Panetta, Carol Cosman and Rena Khan for the applicant; David Wright, Cindy Thompson, Connie Huziak, Frank Inglis and Gavin Leeb for the responding party; Stephen J. Shamie, Donna M. D’Andrea, Heather MacLean and Vince Meli for the intervenor.
DECISION OF THE BOARD; January 21, 2000
1This is an application for termination of bargaining rights. The named applicant is the “Employees of the Alcohol and Gaming Commission of Ontario”. However Ms. Panetta is an employee who was named as the contact person in the application and appeared for the applicant at the hearing. As this application was dismissed, the Board has not considered whether it is necessary to amend the name of the applicant.
2The responding party (referred to as the “union”) objected to the application on the basis that it was untimely pursuant to section 67(3)(a) of the Labour Relations Act, 1995 (the “Act”). The Board (differently constituted) decided to hold a vote and seal the ballot box. The vote was held on December 17, 1999. In a decision dated January 13, 2000 the Board orally dismissed the application on the grounds that it was untimely. That decision was subsequently provided to the parties in writing and posted in the workplace. The following are the reasons for that decision.
3The Board directed the parties to make their arguments with respect to the timeliness of this application based on the relevant facts disclosed in the applicant’s and intervenor’s materials. The relevant facts disclosed in those pleadings are:
-The union was certified to represent the members of the bargaining unit on May 1, 1998.
-No collective agreement had been reached by November 1, 1999 and the union commenced a legal strike.
-An increasing number of employees returned to work during the month of November.
-At the end of November the union advised the intervenor that it would agree to its last offer.
-Picketing ceased on November 30.
-The union faxed a signed copy of the memorandum of agreement to the employer at 12:07 p.m. on December 1, 1999. The intervenor takes the position (not disputed by the union), that the agreement was “signed” as of that moment.
-On December 1, 150 of the 175 employees reported for work.
-This application was filed on December 2, 1999.
-On December 2, 155 of the 175 employees reported for work. There is no question that the 20 employees remaining off work on that date were still off pursuant to the strike.
-The memorandum of agreement was ratified on December 6.
4A strike is defined under section1(1) of the Act as follows:
- (1) In this Act,
"strike" includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow‑down or other concerted activity on the part of employees designed to restrict or limit output;
Section 67(3)(a) of the Act provides as follows:
- (3) Where a trade union has given notice under section 16 and the employees in the bargaining unit on whose behalf the trade union was certified as bargaining agent thereafter engage in a lawful strike or the employer lawfully locks out the employees, no application for certification of a bargaining agent of, or for a declaration that the trade union no longer represents, the employees in the bargaining unit determined in the certificate shall be made,
(a) until six months have elapsed after the strike or lock‑out commenced; or
5The union’s argument (synopsized) was that it still had members engaged in a lawful “strike” according to the above definition on the application date and therefore the application was untimely pursuant to section 67(3)(a). It asserted that it is not necessary to have a picket line in operation to have a strike. It also claimed that section 67(3)(a) should not be interpreted so as to require a union to keep its members off work, and maintain a picket line, in the period between the signing of the memorandum of agreement and the ratification vote in order to protect its bargaining rights. The union referred to the Board’s decision in Metro Taxi Ltd., [1995] OLRB Rep. Nov. 1378 and suggested that the Canron decision relied upon by the intervenor (infra) was wrongly decided.
6The intervenor’s argument (synopsized) was that in the circumstances of this case the statute provides a “window of opportunity” to the applicant to file this application. It argued that the strike for the purposes of section 67(3)(a) was over as of the application date because most of the employees had returned to work, the picket line had come down and work was not being “disrupted”. According to the intervenor it was therefore timely for the applicant to file this application after the memorandum of agreement was signed but before the ratification vote was held. The intervenor referred to the Board’s decision Canron Limited, Eastern Structural Division, [1977] OLRB Rep. June 336.
7The applicant argued that the application is timely as most employees had returned to work.
Decision
8In Canron (supra) the Board held that section 67(3)(a) prohibited the filing of a termination application only as long as the strike was ongoing. Whether or not the approach the Board took in Canron (supra) continues to be the Board’s interpretation of section 67(3)(a) the intervenor does not dispute that some members of the bargaining unit were still on strike as of the date of the application. Twenty members of the bargaining unit continued to refuse to work “in combination or in concert or in accordance with a common understanding” on the application date pursuant to the legal strike which commenced on November 1. There is no question that the refusal to work continued to be designed to limit output. The employees therefore continued to be on strike under the Act.
9The intervenor argues however that although employees were on strike there was no “strike” by November 2 for the purposes of section 67(3)(a) because its work was not being disrupted by that date. However, whether or not a strike was in effect is not determined by how many employees are participating or how successfully it inflicts economic pain on an employer. “Disruption” has been examined in those cases where the union maintains that its members are not on strike. In those cases the Board looks at disruption on the principle that the union intends the disruptive consequences on its actions. The Board may consider whether work is being disrupted when it is trying to decide whether employees actions are in concert or whether there is a “slow down or other concerted activity “ or whether such activity is “designed to restrict or limit output”. However, the Board does not need to consider how much “disruption” has been caused when everyone agrees that employees are not working pursuant to a legal strike. If the intervenor came to the Board the day after the agreement was ratified because the 20 employees refused to return to work, the Board would not find that no unlawful strike was in progress because the employer still has lots of employees left to do the work and there is therefore no “disruption”. There was still a strike in effect on the application date and there is nothing in section 67(3)(a) which requires that “most or all employees” be on strike for the section to apply.
10Furthermore, the Board seriously doubts that any “window of opportunity” to file an application for termination of bargaining rights would have opened in the period of time between the signing of the memorandum of agreement and the ratification vote even if all of the employees had gone back to work during the interim. Unions often take down their picket lines and ask employees to return to work after they have signed a memorandum of agreement as an act of good faith and to increase the likelihood of a successful ratification. It shows that the union is standing behind the agreement. However, the parties know that if employees fail to ratify the agreement the strike may continue. The employees in such circumstances would not be commencing a new strike with the six month prohibition in section 67(3)(a) starting to run all over again. A lifting of the picket line and the return to work in such a situation is temporary unless the agreement is ratified and does not constitute an end to the strike for the purposes of making a termination application timely.
11For all of the above reasons, the Board dismissed the application on the basis that it was untimely. As noted in the Board’s decision of January 13, the ballots will be destroyed.
“Laura Trachuk”
for the Board