1417-00-R; 1418-00-R National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Applicant v. North Algoma Health Organization (Lady Dunn General Hospital), Responding Party v. Service Employees International Union, Local 268, Intervenor.

1456-00-R; 1457-00-R National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Applicant v. Nipigon District Memorial Hospital, Responding Party v. Service Employees International Union, Local 268, Intervenor.

1458-00-R; 1459-00-R National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Applicant v. Atikokan General Hospital, Responding Party v. Service Employees International Union, Local 268, Intervenor.

BEFORE: Caroline Rowan, Vice-Chair.

APPEARANCES: Anthony F. Dale, Jim Paré and Leslie Mancini for the applicant; no one appearing for the responding parties; D. Wray and Denis Ellickson and John McInnes for the intervenor.

DECISION OF THE BOARD; November 2, 2000

1These are six displacement applications filed by the National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada) (the “CAW”) for full-time and part-time bargaining units at each of the respondent hospitals, namely North Algoma Health Organization (Lady Dunn General Hospital) (“Lady Dunn”), Nipigon District Memorial Hospital (“Nipigon”), and Atikokan General Hospital (“Atikokan”).

2In each case, the employees are currently represented by the intervenor, the Service Employees International Union, Local 268 (“SEIU, Local 268”). A representation vote was held and the ballot box was sealed in each of the six displacement applications.

3At the hearing in this matter, the parties confirmed that the only remaining issue in each of these applications, which require determination by the Board prior to any counting of the ballots, is the issue of the timeliness of the displacement applications.

Nature of SEIU, Local 268’s Timeliness Objection

4SEIU, Local 268’s timeliness objection is substantially the same in each of the six displacement applications. In each case, SEIU, Local 268 takes the position that the application is untimely pursuant to the provisions of section 7(4) of the Labour Relations Act, 1995 (the “Act”). SEIU, Local 268 argues that section 7(4) of the Act applies because the relevant collective agreement in each case is for a term of less than three (3) years. Section 7(4) of the Act provides that an application for certification by way of displacement may be brought only after the commencement of the last two months of the operation of a collective agreement where the agreement is for a term of not more than three (3) years. Section 7(4) of the Act reads as follows:

7. (4) Where a collective agreement is for a term of not more than three years, a trade union may apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the last two months of its operation.

[emphasis added]

5There is no dispute between the parties that the full and part-time collective agreements in issue in the present case expire on October 10, 2001. SEIU, Local 268, however, takes the position that those collective agreements commence pursuant to the provisions of Hospital Labour Disputes Arbitration Act (“HLDAA”) on the date that the interest arbitration award of Mr. George Adams (“Adams Award”) “was given”, being on June 28, 1999. SEIU, Local 268 therefore argues that the collective agreements are for a term of not more than three (3) years and that section 7(4) of the Act applies. SEIU, Local 268 accordingly submits that pursuant to the terms of that section no displacement application may be brought until after the commencement of the two (2) month period immediately preceding October 10, 2001. The displacement applications in each case were all brought in August 2000, which is outside of that two (2) month period.

6Although none of the three responding hospitals in issue were parties to the Adams Award, SEIU, Local 268 argues that the memoranda of settlement between SEIU, Local 268 and each of the responding hospitals for renewal agreements contains an agreement to extend all aspects of the Adams Award. According to SEIU, Local 268, the parties’ agreement to extend all aspects of the Adams Award includes an agreement to “pick up” the terms of operation of the SEIU collective agreements settled by the Adams Award.

7By way of background, the Board notes that several participating local unions and several participating hospitals entered into a Memorandum of Conditions for Joint Bargaining with respect to the negotiation of central issues. Following negotiations between the participating parties, central issues remaining in dispute were referred to a board of arbitration chaired by Mr. Adams. The Adams Award dated June 28, 1999 decided the central issues in dispute between the participating local unions and participating hospitals.

8The Adams Award records the participating parties’ agreement to the term of the resulting collective agreements as follows at p. 3 and 4:

The current round of bargaining commenced in 1996 for the renewal of CUPE agreements which expired September 28, 1995 and for the renewal of SEIU collective agreements which expired October 10, 1995. These negotiations not only had to cope with the consequences of reduced provincial funding to hospitals and the consequences of government imposed restructuring but also with a fundamental issue concerning how interest arbitrators should be appointed. In the result, the parties did not agree to proceed to arbitration until April 7, 1999. Thus, the parties have agreed to a

six-year term with CUPE collective agreements expiring on September 28, 2001 and SEIU collective agreements expiring October 10, 2001.

[emphasis added]

SEIU, Local 268 submits that the provisions of HLDAA prevail over the agreement of the participating parties to a six-year term expiring on October 10, 2001. SEIU, Local 268 notes that pursuant to the terms of subsection 10(9) of HLDAA, the date the board of arbitration “gives its decision”, which in this case was June 28, 1999, is deemed to be the effective date of the documents that constitute the collective agreements. SEIU, Local 268 argues that the “term of operation” of the SEIU collective agreements settled by the Adams Award therefore commences on their effective date, being on June 28, 1999. SEIU, Local 268 takes the position that the terms of the SEIU collective agreements settled by the Adams Award, and therefore also the collective agreements in issue in this case, are for terms of less than three years, such that section 7(4) of the Act applies.

9The CAW, on the other hand, argues that section 7(4) of the Act has no application in the circumstances of the present case as the renewal collective agreements herein are for a term of more than three years. In these circumstances, the CAW submits that the provisions of section 7(5) of the Act apply. Section 7(5) of the Act reads as follows:

7. (5) Where a collective agreement is for a term of more than three years, a trade union may apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the 35th month of its operation and before the commencement of the 37th month of its operation and during the two‑month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last two months of its operation, as the case may be.

[emphasis added]

The CAW submits that the terms of the applicable collective agreements in each case are from October 11, 1995 to October 10, 2001 having regard to the agreement to this effect of both the participating parties to the Adams Award and of SEIU, Local 268 and the responding hospitals. The CAW submits that all six (6) displacement applications were filed within the two (2) month period immediately preceding the end of the fifth (5th) year of the applicable collective agreement and that they are therefore timely pursuant to section 7(5) of the Act.

10According to the CAW, the “term of operation” of the collective agreement referred to in section 7 of the Act is different from the “effective date” of the collective agreement prescribed by section 10(9) of HLDAA. The CAW argues that the term of operation of a collective agreement can commence earlier than the effective date prescribed by statute. The CAW submits that, in the circumstances of the present case, the relevant collective agreements between SEIU, Local 268 and the three responding hospitals all commence on October 11, 1995, which in every case follows the expiry of the applicable predecessor collective agreement.

11A determination of the timeliness issue therefore depends on whether or not the provisions of section 7(4) or 7(5) of the Act apply in the circumstances of the present case. If the provisions of section 7(4) apply, it is common ground that the applications are untimely, since they were not brought after the last two (2) months of operation of the collective agreements in issue. Conversely, if section 7(5) applies, the applications are timely. Whether section 7(4) or 7(5) of the Act applies depends, in turn, on a determination of the terms of the collective agreements in issue and, more specifically, when those collective agreements commence.

The Facts

12The following facts relevant to the timeliness issue in each application were not in dispute and were stipulated by the parties:

i) Full and Part-time units at Lady Dunn Hospital

13The CAW filed the displacement applications in Board File Nos. 1417-00-R and 1418-00-R on August 15, 2000. The previous collective agreements between SEIU and Lady Dunn in respect of the relevant full and part-time bargaining units expired on October 10, 1995. The parties to those agreements signed a single memorandum of settlement on July 8, 1999 for the renewal of both the full and part-time collective agreements (“Lady Dunn Memorandum of Settlement”). The Lady Dunn Memorandum of Settlement reads in part as follows:

MEMORANDUM OF SETTLEMENT

BETWEEN

NORTH ALGOMA HEALTH ORGANIZATION –

LADY DUNN HOSPITAL, WAWA

• and -

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 268

ALL EMPLOYEES BARGAINING UNITS

(FULL-TIME AND PART-TIME)

1. The parties agree to unanimously recommend to their respective principles the following terms in full settlement of all issues in dispute for the renewal of the Full-Time Employees Collective Agreement and Part-time Employees Addendum expiring on October 10, 1995 (ref. draft Collective Agreements, tabled by Union – June 24, 1999). The parties agree that the attached constitutes full resolution of all issues and all other issues are withdrawn.

2. The parties agree to extend all aspects of the G.W. Adams Award dated June 28, 1999.

3. The Agreement shall be in the form of the expiring Collective Agreements incorporating in the designated sections, the amendments provided for herein, if any, and other existing provisions of the Collective Agreement which have not been amended.

4. The following provisions will be effective the date of written notice of ratification of the Memorandum of Settlement by both Parties, unless otherwise specified.

Dated at Wawa, Ontario, this 8th day of July, 1999.

FOR THE UNION FOR THE HOSPITAL

“Connie Daucette” . “illegible signature” .

“illegible signature” .

[emphasis added]

ii) Full and Part-time units at Atikokan Hospital

14The displacement applications in Board File Nos. 1458-00-R and 1459-00-R were filed on August 17, 2000. The prior collective agreements between SEIU, Local 268 and Atikokan in respect of the full and part-time bargaining units in issue in these applications also expired on October 10, 1995. The parties to those agreements entered into a single memorandum of settlement on August 24, 1999 for the renewal of the full and part-time collective agreements (the “Atikokan Memorandum of Settlement”). Although the parties do not expressly refer to the Adams Award in that memorandum of settlement, SEIU, Local 268 takes the position that the Atikokan Memorandum of Settlement also effectively picks up all aspects of the Adams Award. The Atikokan Memorandum of Settlement reads in part as follows:

Memorandum of Settlement

• between -

ATIKOKAN GENERAL HOSPITAL

• and -

Service Employees Union, Local 268

For the Term: October 11, 1995 to October 10, 2001

Subject to Ratification of their respective principals, the parties hereby agree to resolve their outstanding issues on the following basis. The provisions of the renewal collective agreement between the parties shall be the subsisting agreements except to the extent modified and amended by:

1. Central Issues

The parties agree to the issues as listed in Appendix “A” effective June 28, 1999 unless otherwise specified.

2. Local Issues

The parties agree to the issues as listed in Appendix “B”.

All other issues are hereby withdrawn.

Signed this 24 day of August, 1999.

FOR THE HOSPITAL: FOR SEIU LOCAL 268:

“G. Hadley” Acting CEO “illegible signature” .

“illegible signature” . “illegible signature” .

“illegible signature” .

Appendix “A”

8. Term

The parties agree that the collective agreement shall continue in effect up to and including October 10, 2001. In all respects, the notice provisions relating to the renewal of the collective agreement shall continue in effect.

[emphasis added]

iii) Full and Part-time units at Nipigon Hospital

15The displacement applications in Board file Nos. 1456-00-R and 1457-00-R were filed on August 17, 2000. The prior collective agreements between SEIU, Local 268 and Nipigon in respect of the full and part-time bargaining units at Nipigon also expired on October 10, 1995. SEIU, Local 268 and Nipigon entered into a memorandum of settlement for renewal collective agreements on August 19, 1999 (“Nipigon Memorandum of Settlement”). The relevant portions of the Atikokan Memorandum of Settlement (other than the style of cause and signatures of the parties) cited above are identical to relevant portions of the Nipigon Memorandum of Settlement.

Relevant Statutory provisions of the Act and of HILDA

16For ease of reference, the Board again sets out subsections 7(4) and 7(5) of the Act:

7. (4) Where a collective agreement is for a term of not more than three years, a trade union may apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the last two months of its operation.

(5) Where a collective agreement is for a term of more than three years, a trade union may apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the 35th month of its operation and before the commencement of the 37th month of its operation and during the two‑month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last two months of its operation, as the case may be.

17The relevant sections of the HLDAA are as follows:

2. (1) This Act applies to any hospital employees to whom the Labour Relations Act applies, to the trade unions and councils of trade unions that act or purport to act for or on behalf of any such employees, and to the employers of such employees.

(2) Except as modified by this Act, the Labour Relations Act applies to any hospital employees to whom this Act applies, to the trade unions and councils of trade unions that act or purport to act for or on behalf of any such employees, and to the employers of such employees.

(3) This Act does not apply to Crown employees as defined in the Crown Employees Collective Bargaining Act, 1993.

4. Where the Minister has informed the parties that the conciliation officer has been unable to effect a collective agreement, the matters in dispute between the parties shall be decided by arbitration in accordance with this Act.

5. (1) Where there are matters in dispute between parties to be decided by more than one arbitration in accordance with this Act, the parties may agree in writing that the matters in dispute shall be decided by one board of arbitration.

(2) For the purposes of section 6, the trade unions and councils of trade unions that are the bargaining agents for or on behalf of any hospital employees to whom this Act applies shall be one party and the employers of such employees shall be the other party.

(3) In an arbitration to which this section applies, the board may, in addition to the powers conferred upon a board of arbitration by this Act,

(a) make a decision on matters of common dispute between all of the parties; and

(b) refer matters of particular dispute to the parties concerned for further bargaining.

(4) Where matters of particular dispute are not resolved by further collective bargaining under clause (3) (b), the board shall decide the matters.

10. (1) Where, during the bargaining under this Act or during the proceedings before the board of arbitration, the parties agree on all the matters to be included in a collective agreement, they shall put them in writing and shall execute the document, and thereupon it constitutes a collective agreement under the Labour Relations Act.

(2) If the parties fail to put the terms of all the matters agreed upon by them in writing or if having put the terms of their agreement in writing either of them fails to execute the documents within seven days after it was executed by the other of them, they shall be deemed not to have made a collective agreement, and the provisions of sections 3 and 4 or sections 6 and 9, as the case may be, shall apply.

(3) Where, during the bargaining under this Act or during the proceedings before the board of arbitration, the parties have agreed upon some matters to be included in the collective agreement and have notified the board in writing of the matters agreed upon, the decision of the board shall be confined to the matters not agreed upon by the parties and to such other matters that appear to the board necessary to be decided to conclude a collective agreement between the parties.

(4) Where the parties have not notified the board of arbitration in writing that, during the bargaining under this Act or during the proceedings before the board of arbitration, they have agreed upon some matters to be included in the collective agreement, the board shall decide all matters in dispute and such other matters that appear to the board necessary to be decided to conclude a collective agreement between the parties.

(5) Within five days of the date of the decision of the board of arbitration or such longer period as may be agreed upon in writing by the parties, the parties shall prepare and execute a document giving effect to the decision of the board and any agreement of the parties, and the document thereupon constitutes a collective agreement.

(6) If the parties fail to prepare and execute a document in the form of a collective agreement giving effect to the decision of the board and any agreement of the parties within the period mentioned in subsection (5), the parties or either of them shall notify the chair of the board in writing forthwith, and the board shall prepare a document in the form of a collective agreement giving effect to the decision of the board and any agreement of the parties and submit the document to the parties for execution.

(7) If the parties or either of them fail to execute the document prepared by the board within a period of five days from the day of its submission by the board to them, the document shall come into effect as though it had been executed by the parties and the document thereupon constitutes a collective agreement under the Labour Relations Act.

(8) Except in arbitrations under section 8, the date the board of arbitration gives its decision is the effective date of the document that constitutes a collective agreement between the parties.

(9) The date the board of arbitration gives its decision under section 8 upon matters of common dispute shall be deemed to be the effective date of the document that constitutes a collective agreement between the parties.

(10) Except where the parties agree to a longer term of operation, any document that constitutes a collective agreement between the parties shall remain in force for a period of one year from the effective date of the document.

(11) Despite the provisions of subsection (10) and except where the parties agree to a longer term of operation, a document that constitutes a collective agreement shall cease to operate on the expiry of a period of two years,

(a) from the day upon which notice was given under section 14 of the Labour Relations Act; or

(b) from the day upon which the previous collective agreement ceased to operate where notice was given under section 54 of the Labour Relations Act.

(12) Where under subsection (11), the period of two years has expired on or will expire within a period of less than ninety days from the date the board of arbitration gives its decision, the document that constitutes a collective agreement shall continue to operate for a period of ninety days from the date the board of arbitration gives its decision for the purposes of subsection 5 (4), subsection 54 (1) and subsection 58 (2) of the Labour Relations Act.

(13) In making its decision upon matters in dispute between the parties, the board of arbitration may provide,

(a) where notice was given under section 14 of the Labour Relations Act, that any of the terms of the agreement except its term of operation shall be retroactive to such day as the board may fix, but not earlier than the day upon which such notice was given; or

(b) where notice was given under section 54 of the Labour Relations Act, that any of the terms of the agreement except its term of operation shall be retroactive to such day as the board may fix, but not earlier than the day upon which the previous agreement ceased to operate.

12. (1) Despite section 62 of the Labour Relations Act, where a trade union that has been certified as bargaining agent for a bargaining unit of employees of a hospital has given to the employer of such employees notice under section 14 of that Act and the Minister has appointed a conciliation officer, an application for a declaration that the trade union no longer represents the employees in the bargaining unit determined in the certificate may be made only in accordance with subsection 58 (2) of the Labour Relations Act.

(2) Despite section 62 of the Labour Relations Act, where notice has been given under section 54 of that Act by or to a trade union that is the bargaining agent for a bargaining unit of employees of a hospital to or by the employer of such employees and the Minister has appointed a conciliation officer, an application for certification of a bargaining agent of any of the employees of the hospital in the bargaining unit defined in the collective agreement or an application for a declaration that the trade union that was a party to the collective agreement no longer represents the employees in the bargaining unit defined in the agreement shall not be made after the day upon which the agreement ceased to operate or the day upon which the Minister appointed a conciliation officer, whichever is later, except in accordance with section 5 or subsection 58 (2) of the Labour Relations Act, as the case may be.

Decision

18SEIU, Local 268’s timeliness objection proceeds from the premise that each of the memoranda of settlement referred to above reflects an agreement to pick up all aspects of the Adams Award including the terms of operation of the SEIU collective agreements settled by the Adams Award. SEIU, Local 268 then argues that the terms of operation of the SEIU collective agreements settled by the Adams Award are from June 28, 1998 to October 10, 2001 pursuant to the provisions of HLDAA. According to SEIU, Local 268, the provisions of HLDAA prevail over the agreement of the participating parties to the Adams Award regarding a six year term expiring on October 10, 2001.

19SEIU, Local 268’s timeliness objection therefore depends on the Board finding that each of the memorandum of settlement reflects an agreement to pick up or extend all aspects of the Adams Award including the term of operation of the SEIU collective agreements settled by the Adams Award. Assuming without deciding that they do so, the Board will first consider whether or not the provisions of HLDAA prevail over the agreement of the participating parties to the Adams Award to six (6) year terms expiring on October 11, 2001 and if so, what terms of operation are prescribed.

20SEIU, Local 268 argues that the commencement of the term of the collective agreements settled by the Adams Award is determined by reference to subsection 10(9) of HLDAA regardless of any agreement of the parties to the contrary. Subsection 10(9) reads as follows:

10. (9) The date the board of arbitration gives its decision under section 8 upon matters of common dispute shall be deemed to be the effective date of the document that constitutes a collective agreement between the parties.

21It is common ground between the parties that, pursuant to subsection 10(9) of HLDAA, the effective dates of the collective agreements settled by the Adams Award are June 28, 1999, the date that the Adams Award was issued. SEIU, Local 268 contends that the effective date of the collective agreements in issue also marks the commencement of their terms of operation, regardless of any agreement by the parties to the collective agreements to the contrary.

22The CAW, however, disputes SEIU, Local 268’s contention that the “effective date” of a collective agreement is synonymous with the commencement of the “term” of the collective agreement and notes that section 7 of the Act refers to the “term” of the collective agreement, not its “effective date”.

What are the terms of operation of the SEIU collective agreements settled by the Adams Award?

23The Board will first review the relevant provisions of HLDAA relating to the terms of collective agreements and their effective dates. The Board will then consider the terms of the SEIU collective agreements settled by the Adams Award having regard to the provisions of HLDAA and the Board’s existing jurisprudence concerning the timeliness of representation applications when HLDAA applies.

(i) The Provisions of HLDAA

24For the reasons that follow, the Board observes that HLDAA imposes greater restrictions on a board of arbitration in deciding the term of operation of a collective agreement than it does on the parties’ ability to agree to a particular term of operation. HLDAA also distinguishes between the “effective date” of a collective agreement and its “term of operation”, although the “effective date” may in some circumstances also mark the commencement of its “term of operation”.

25Under HLDAA, which applies to labour relations of a “hospital” as defined in section 2(1) of HLDAA, a collective agreement may be settled either entirely by agreement of the parties, or alternatively, some or all of its provisions may be settled by interest arbitration. Unless the parties agree to all of the provisions of a collective agreement, the outstanding provisions in dispute will be decided by arbitration. Lawful resort to economic power in the form of a strike or lockout is not available.

26Where the parties have agreed on all matters in dispute, have put their agreement in writing, and have executed the document, the collective agreement becomes effective on the date of execution pursuant to the provisions of subsection 10(1) of HLDAA. If, on the other hand, some or all matters are referred to arbitration for determination, the effective date of the resulting collective agreement is the date the board of arbitration gives its decision pursuant to subsection 10(8) or 10(9) of HLDAA (as applicable).

27As the Board stated in Chateau Garden Queens, [1992] OLRB Rep. August 906, a determination of the “open period” during which time an application can be brought to seek to displace the incumbent bargaining agent is comparatively straightforward under the Act as opposed to under HLDAA. The Board in Chateau Gardens stated:

17. This formula [under the Labour Relations Act] is relatively straightforward. It depends upon being able to ascertain when the “open period” will be, but under the Labour Relations Act scheme that is not particularly difficult. An employee or a raiding union need only look at the terms of the existing collective agreement. Such collective agreement must be in writing and must have a “specific” term – that is, a term of operation which is fixed and readily ascertainable from the document itself (see sections 1(1) and [58(1)] of the Act). An interested person need only look at the duration clause, note the stipulated expiry date, and count back two months.

18. For employees governed by the HLDAA, the process is not so simple. Because of the process of interest arbitration to which they must resort, they may find themselves without a collective agreement for extensive periods of time, and pursuant to the HLDAA, they cannot challenge their union during the arbitration process. Thus, to the extent that the exercise of their statutory right to change unions is linked to the term of operation of a collective agreement, and an ascertainable “open period”, it may be very difficult to determine just when that “open period” will be. Their situation is further complicated by the likelihood that any agreement resulting from arbitration will be made “retroactive”, and the arbitration award may issue only a few months before – or even after – the nominal expiry date of the collective agreement in question. In the result, the simple formula of “open periods” envisaged by section [7(4)] of the Labour Relations Act does not work very well in the hospital sector and employees are driven to the provisions of the HLDAA – which are not a model of clarity.

28Where HLDAA applies, the term of operation of a collective agreement may be determined, like any other provision of the collective agreement, either by agreement of the parties or by a board of arbitration where there is no agreement. However, neither the parties nor the board of arbitration may determine a term of operation of a collective agreement that contravenes the provisions of HLDAA.

29HLDAA contains a number of provisions, which restrict the parties and/or the board of arbitration in determining the term of operation of a collective agreement. Subsections 10(10) to (13) of HLDAA govern the term of operation of a collective agreement and generally prevail over any agreement of the parties or decision of the arbitrator to the contrary. On the other hand, subsection 10(8) and (9) of HLDAA prescribe the effective date of a collective agreement determined by interest arbitration. As the Board noted in Chateau Gardens, subsection 10(9) (like subsection 10(8) where applicable) prescribes the date from which the subsequent provisions of HLDAA, relating to the term of operation of a collective agreement, mark time:

37. First of all, we think it is significant that under section 10(9), it is the date upon which the arbitrator settles the common issues, that is deemed to be the “effective date” of any document that constitutes a collective agreement. That is the date when any eventual collective agreement comes into existence. It is from that date that subsequent HLLDA provisions mark time.

While subsections 10(8) and (9) of HLDAA govern the “effective date” of a collective agreement settled by arbitration, subsection 10(10) to (13) of HLDAA, where applicable, determine the “term of operation” of the collective agreement.

30More specifically, subsections 10(10) and (11) of HLDAA respectively prescribe a minimum and maximum “term of operation” of a collective agreement, except where the parties agree to a longer term. Under those provisions, a document that constitutes the collective agreement remains in force for a period of one year from the effective date of the document (subsection 10(10)), but not beyond two years from the expiry of the previous collective agreement (subsection 10(11)), unless the parties agree to a longer term of operation.

31The Board noted in The Metropolitan General Hospital, [1991] OLRB Rep. April 547, that subsections 10(10) and (11) of HLDAA apply to both collective agreements that are settled by arbitration and those settled by agreement of the parties. However, neither subsections 10(10) and/or (11) of HLDAA apply where the parties agree to a longer term.

32Subsection 10(12) of HLDAA recognizes the practical reality that an arbitration decision may not be “given” before the expiry of two years from the day that the prior collective agreement ceased to operate. It responds to that reality by creating an “artificial” open period. The Board in The Corporation of the City of St. Thomas, [1997] OLRB Rep. May/June 373 described the purpose and effect of subsection 10(12) as follows:

9. The purpose of the subsection is to create an open period. It does so by extending the expiry date of a collective agreement when that agreement would otherwise have already expired by the time the interest arbitration board gives its decision. It extends the expiry date for 90 days from the date the board of arbitration gives its decision. By operation of subsection 7(4) of the Act (for our purposes) an open period exists during the last two months of that extended period, preserving the opportunity for the filing of a certification application by another trade union.

10. The subsection specifically contemplates the all too common delays in the negotiation and interest arbitration process. The employees affected rarely have a current collective agreement in place. Rather, their day to day lives are regulated by the terms of an expired agreement that has become subject to freeze provisions. They then see retroactive adjustments, and the cycle begins again. In cases where the resulting collective agreement has already expired, so too, any open period would have expired. That result is anathema to the policy concerns underlying subsections 7(4)-(6) and subsection 62(2) (and to a mixed degree, subsection 67(1)) of the Act, which contemplate an ascertainable and regular opportunity for employees or other trade unions to challenge an incumbent trade union’s bargaining rights. Subsection 10(12) thus enables an “artificial” open period to be created, preserving the opportunity for employees or competing trade unions to challenge existing bargaining rights through either a termination application or a certification application.

Subsection 10(12) of HLDAA only creates an “artificial” open period where, pursuant to 10(11), the period of two years from the day on which the previous collective agreement ceased to operate has expired on or will expire within a period of less than ninety (90) days from the date the board of arbitration gives its decision.

33Thus, where HLDAA otherwise prescribes that a collective agreement ceases to operate after two years from the day on which the previous collective agreement ceased to operate, HLDAA extends the operation of the collective agreement for the purposes of creating an “open period” contemplated under subsections 7(4), 62(1), and 67(2) of the Act.

34Finally, subsection 10(13) of HLDAA, generally speaking, allows a board of arbitration in making its decision upon matters in dispute to make any of the terms of the collective agreement retroactive except its term of operation. The board of arbitration may provide for retroactivity of any other term to a day fixed by the board but not earlier than the day upon which the previous agreement ceased to operate (in renewal situations) or to the day notice to bargain was given (in first contract situations). Subsection 10(13) restricts the ability of the board of arbitration, in making its decision on matters in dispute between the parties to make the term of operation of a collective agreement retroactive. Subsection 10(13) is, however, silent on the issue of the parties’ ability to agree to do so.

(ii) Application to the facts in the present case

35As previously noted, the Board assumes for the present purposes without deciding that the memoranda of settlement with each of the three responding hospitals pick up by agreement the terms of operation of the SEIU collective agreements settled by the Adams Award.

36SEIU, Local 268 argues that subsection 10(9) of HLDAA prescribes the commencement of the term of the SEIU collective agreements settled by the Adams Award regardless of any agreement of the participating parties to the contrary. SEIU, Local 268 therefore submits that the terms of the SEIU collective agreements settled by the Adams Award (and therefore also the collective agreements in issue in this case) are from June 28, 1999 (the date the Adams Award was given) to October 10, 2001.

37With respect to this argument, the Board firstly notes that while subsection 10(9) of HLDAA does apply, it merely determines the “effective date” of the documents that constitute the collective agreements settled by the Adams Award. As the Board observed in Chateau Gardens, supra the “effective date” is the date that the collective agreement comes into existence. While the “effective date” of a collective agreement may mark the commencement of its term of operation, the Board finds that it does so only where subsection 10(10) of HLDAA applies. In the present circumstances, neither subsection 10(10) nor (11) of HLDAA apply to determine the terms of operation of the SEIU collective agreements settled by the Adams Award, since the participating parties agreed to a longer term of operation than the one contemplated under those subsections. Their terms of operation are not therefore determined by reference to those provisions.

38The facts in the present case are therefore distinguishable from those in Hillsdale Nursing Home, [1978] OLRB Rep. January 11 and Local 865, International Union of Operating Engineers, [1978] OLRB Rep. March 326. In both of these cases, the Board determined that the date that the board of arbitration gave its decision was also the date that the terms of the collective agreements commenced.

39The issue before the Board in Hillsdale involved the timeliness of a termination application in circumstances where the provisions of HLDAA applied. The Board, in that case, noted that the relevant provisions of the Act provided that a termination application could only be brought, in the case of a collective agreement for a term of not more than three years, after the commencement of the last two months of its operation. The Board’s task was therefore to determine the term of the collective agreement in order to pinpoint the onset of the last two months of its operation.

40In Hillsdale, the union had been certified as the bargaining agent for the employees in the bargaining unit in question on September 17, 1976. Because the parties were unable to conclude a collective agreement, the issues in dispute were then referred to an arbitrator under the provisions of HLDAA. The board of arbitration gave its decision on August 8, 1977. The chairman provided in his award that the term of operation of the collective agreement was to be January 1, 1977 to December 31, 1977.

41The Board in Hillsdale held that the retroactive term of operation determined by the board of arbitration was ineffective pursuant to the provisions of subsection [now 10(13)] of HLDAA. In doing so, the Board stated, at paragraph 8, that:

By the combined terms of section [10(8) and 10(10)] of the H.L.D.A. Act, the effective date of that agreement is the original date of the award of the board of arbitration, that is, August 8, 1977, and its term of operation is one year from that date or through August 7, 1978. The retroactive term of operation established by the board of arbitration is ineffective. Although section [10(13)] of the HLDAA enables the board to establish retroactive terms in the agreement, it specifically precludes the board from setting a retroactive term of operation.

The Board in Hillsdale therefore found that the effective date of the collective agreement pursuant to the provisions of subsection [now 10(8)] was on August 8, 1977, being the date that the board of arbitration gave its decision. The Board also determined that, pursuant to subsection [10(10)] of HLDAA, the term of the relevant collective agreement was for one year from its effective date, i.e. from August 8, 1977 to August 7, 1978.

42Similarly, in Local 865, the Board found that subsection [now 10(8) and (10)] of HLDAA precluded the parties from establishing a term of operation which would either be retroactive or run for less than a year from the date of the award of the board of arbitration. In that case, a board of arbitration indicated in its decision dated September 23, 1977 that during the proceedings before the board of arbitration, the parties agreed to a two-year contract expiring on December 31, 1977. The duration clause of the last collective agreement in effect between the parties stated that the agreement would be effective from January 1, 1974 to December 31, 1975.

43The Board in Local 865 reviewed HLDAA to determine whether or not the agreement of the parties to a term of operation of two years expiring on December 31, 1977 effectively established the term of operation of the collective agreement. The Board concluded that it did not, since the term contemplated by the parties ran for less than one year from September 23, 1977, which was the date that the board of arbitration gave its decision. As such, the Board in Local 865 found that the provisions of subsection [now 10(10)] applied, reasoning as follows:

8. Having regard to section [10(8)] and [10(10)] of the H.L.D.A. Act, the Board is of the view that the parties are precluded from establishing a term of operation which would either be retroactive or run for less than a year from the date of the award of the board of arbitration. Section [10(8)] stipulates that the date the board gives its decision is the effective date of the collective agreement and section [10(10)] provides that the agreement will remain in force for at least one year from the effective date of the document. Although section [10(10)] provides that the parties may agree to a term of operation which will run longer than one year from the effective date of the document, the Act contains no provision for an agreement of the parties to a term of operation that would run for less than one year from the date of the decision of the board. As well, although section [10(13)] of the H.L.D.A. Act states that the board of arbitration may provide that any of the terms of the collective agreement shall be retroactive, it specifically prohibits the arbitrator from making the term of operation retroactive.

The Board in Local 865 found that the provisions of subsection [10(10)] applied such that the term of the collective agreement prescribed by statute would normally run for a period of one year from the effective date of the decision, being from September 23, 1977 to September 23, 1978. However, because September 23, 1978 was in excess of two years from the date upon which the previous collective agreement ceased to operate, the Board found that the provisions of subsection [now 10(11)] of HLDAA applied instead to terminate the agreement on December 31, 1977. The Board in Local 865 therefore found that the term of the collective agreement in that case was from September 23, 1977 to December 31, 1977.

44As previously noted, however, the facts in both Local 865 and in Hillsdale are, distinguishable from those in the present case. In both Local 865 and Hillsdale, the provisions of subsections 10(10) and/or (11) of HLDAA were found to apply, since the parties to the collective agreements in issue had not agreed to a term of operation longer than that prescribed under those subsections.

45In Local 865, although the term of operation was agreed upon by the parties, that agreed upon term expired earlier than contemplated under subsection 10(10) of HLDAA, ie. earlier than one year from the date the board of arbitration gave its decision. In addition, the term agreed upon by the parties was not for a longer term than that contemplated under subsection 10(11) of HLDAA. As such, the provisions of subsections 10(10) and (11) of HLDAA were found to prevail over the agreement of the parties in that case.

46In Hillsdale, it was the board of arbitration, not the parties who determined the term of the collective agreement at first instance. In addition, in Hillsdale, the term of operation prescribed by the board of arbitration was scheduled to expire earlier than one year from the date the board of arbitration gave its decision. The term was therefore shorter than the one contemplated by subsection 10(10) of HLDAA. As such, the Board in Hillsdale, like the Board in Local 865, found that subsections 10(10) applied. More specifically, the Board in both of these earlier cases found that subsections 10(10) (and also 10(11) of HLDAA, in Local 865) prescribed the term of operation of the collective agreements when read in conjunction with subsection 10(8) of HLDAA.

47In the present circumstances, the terms of the collective agreements settled by the Adams Award were not an issue determined by the board of arbitration, but rather, like in Local 865, were agreed upon by the parties. In this respect, the Board notes that the Adams Award merely records the parties’ agreement to a six (6) year term of operation expiring on October 10, 2001. The board of arbitration pursuant to the Adams Award does not purport to make any decision with respect to the term of operation of the collective agreements as a matter in dispute between the parties.

48However, in contrast to Local 865, the term of operation agreed upon by the participating parties in the present case, was for a longer term than that contemplated under both subsections 10(10) and 10(11) of HLDAA. In these circumstances, those provisions of HLDAA do not apply, since the parties to the collective agreements agreed to a longer term of operation than the one contemplated under those subsections of HLDAA. Since neither subsection 10(10) nor (11) of HLDAA apply in the present case, the terms of operation of the SEIU collective agreements settled by the Adams Award are not determined by reference to those provisions.

49The Board also finds that subsection 10(13) of HLDAA has no application in the present case. This is because the terms of operation of the SEIU collective agreements settled by the Adams Award were agreed upon by the parties and were not a matter in dispute between the parties that was the subject of decision by the board of arbitration. As previously noted, subsection 10(13) prohibits the board of arbitration, “in making its decision upon matters in dispute between the parties”, from making the term of the collective agreement retroactive. However, HLDAA (and in particular subsection 10(13) of HLDAA) is silent on the parties’ ability to agree to do so.

50In Hillsdale, the Board found that subsection 10(13) of HLDAA precluded the board of arbitration from setting a retroactive term of operation. While the Board in Local 865 also referred to that aspect of its decision in Hillsdale, it should not, in the Board’s view, be read as standing for the proposition that subsection 10(13) of HLDAA precludes the parties from agreeing to a retroactive term of operation. Instead, the Board in Local 865 found that the retroactive term of operation agreed upon by the parties was ineffective because of the combined effect of subsection [10(8)] and 10(10)] of HLDAA, since the parties had not, in fact, agreed to a longer term of operation.

51In this respect, the Board first observes that subsection 10(13) of HLDAA specifically refers to what the board of arbitration may or may not do “in making its decision on matters in dispute”. This is consistent with the general scheme of HLDAA, which, generally speaking, imposes greater restrictions on a board of arbitration’s ability to prescribe a different term of operation from that prescribed under HLDAA than it does on the parties’ ability to agree to do so. As previously noted, subsections 10(10) and/or (11) of HLDAA do not even apply where the parties have agreed to a longer term of operation.

52For all of these reasons, the Board concludes that subsections 10(10) and (11) of HLDAA, which prescribe the term of operation of a collective agreement, do not apply to the SEIU collective agreements settled by the Adams Award, since the participating parties have agreed to a longer term. In addition, the Board finds that subsection 10(13) of HLDAA does not prevent the parties’ from agreeing to a retroactive term of operation.

53In all of the circumstances, the Board finds that the terms of operation of the SEIU collective agreements settled by the Adams Award are to be determined by reference to the participating parties’ agreement, which is to a six (6) year term of operation expiring on October 10, 2001. The Board therefore finds that the terms of operation of the SEIU collective agreements settled by the Adams Award are from October 11, 1995 to October 10, 2001.

Are the Displacement Applications Timely?

54As previously indicated, SEIU, Local 268’s timeliness objection depends on a finding that the participating parties’ agreement to a six (6) year term of operation is ineffective pursuant to the terms of HLDAA. There is no issue that the displacement applications are otherwise timely. Whether or not the terms of operation of the collective agreements in issue are to be determined by reference to the terms of the SEIU collective agreements settled by the Adams Award or alternatively by reference to the express terms of the Atikokan and Nipigon memoranda of settlement, the Board finds that the terms of operation of the collective agreements in issue are all from October 11, 1995 to October 10, 2001.

55As such, the Board finds that these applications are timely pursuant to the provisions of subsection 7(5) of the Act. The six displacement applications were all brought during the two month period immediately preceding the end of the fifth year that the collective agreements continued to operate and are therefore timely pursuant to subsection 7(5) of the Act.

Disposition

56Accordingly, SEIU’s timeliness objection is dismissed. The Board directs that the ballot boxes, which are now sealed, are to be opened and the votes of the employees counted in both of these applications.

57These applications are referred to the Manager of Field Services to appoint a Labour Relations Officer to meet with the parties in order to open the ballot box and count the ballots.

“Caroline Rowan”

for the Board