1425-00-R National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Applicant v. St. Joseph’s General Hospital, Elliot Lake, Responding Party v. Service Employees International Union, Local 204, Intervenor.
1426-00-R National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Applicant v. St. Joseph’s General Hospital, Elliot Lake, Responding Party v. Service Employees International Union, Local 204, Intervenor.
BEFORE: Caroline Rowan, Vice‑Chair.
APPEARANCES: Anthony F. Dale, Kerry Papneau and Jim Paré for the applicant; no one appearing for the responding party; John L. Stout and Brenda Prieur for the intervenor.
DECISION OF THE BOARD; October 30, 2000
1The style of cause is hereby amended to reflect the correct name of the responding party: “St. Joseph’s General Hospital, Elliot Lake”.
2Board File No. 1425-00-R is a displacement application filed by the National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada) (the “CAW”) for a full-time bargaining unit of employees of the responding party, St. Joseph’s General Hospital, (“St. Joseph’s”). Board File No. 1426-00-R is also a displacement application filed by the CAW for a part-time bargaining unit of employees of St. Joseph’s.
3Although the employees in both bargaining units were represented by the Service Employees’ International Union, Local 268 (“SEIU, Local 268”), the intervenor, Service Employees International Union, Local 204 (“SEIU, Local 204”) claims to be the successor to SEIU, Local 268. SEIU, Local 204 therefore asserts that it currently represents the employees in question. While the CAW initially took issue with this assertion, it subsequently advised the Board that it no longer contests the intervenor’s claim to be the successor of SEIU, Local 268 or its status to intervene in these proceedings. For convenience, any reference to SEIU, Local 204 herein should therefore be interpreted as a reference to SEIU, Local 204 or its predecessor.
4SEIU, Local 204 has objected to these displacement applications on the basis that they are untimely. At the outset of the hearing in this matter, the parties advised the Board that the issue of timeliness is the only outstanding issue in these applications requiring determination by the Board before any counting of the ballots. The responding party, St. Joseph’s, did not participate at the hearing held in respect of the timeliness issue.
Nature of the Timeliness Objection
5SEIU, Local 204 argues that the present displacement applications, which were both brought on August 16, 2000, are untimely pursuant to the provisions of section 7(4) of the Labour Relations Act, 1995 (the “Act”). 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:
- (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]
6There 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 having regard to the agreement of the parties to those collective agreements. SEIU, Local 204, however, argues that those collective agreements commence on June 28, 1999 pursuant to the terms of HLDAA notwithstanding the agreement of the parties to a six year term expiring on October 10, 2001. SEIU, Local 204 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 204 further argues 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. As previously noted, the displacement applications were both brought on August 16, 2000, which is outside of that two (2) month period.
7The 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 (3) 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:
- (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 takes the position that the terms of the collective agreements in issue are for a period of six years from October 11, 1995 to October 10, 2001 having regard to the agreement to that effect of the parties to those collective agreements. The CAW submits that the displacement applications are thus timely, since they were brought in the two (2) month period immediately preceding the end of the fifth year.
8A determination of the timeliness issue in this case 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 in the last two (2) months of operation of the collective agreements in issue. Conversely, if section 7(5) applies, the applications are timely. The question of whether section 7(4) or 7(5) of the Act applies, in turn, depends on a determination of the terms of the collective agreements in issue and, more specifically, when the terms of those collective agreements commenced.
The Facts
9The facts relevant to the timeliness issue were not in dispute and were stipulated by the parties as follows.
10St. Joseph’s is a “hospital” within the meaning of the Hospital Labour Dispute Arbitration Act (“HLDAA”). The provisions of HLDAA therefore apply.
11The predecessor collective agreements for the full and part-time bargaining units in issue in this proceeding expired on October 10, 1995. The renewal collective agreements in respect of these bargaining units were settled as a result of the interest arbitration award of Mr. George Adams relating to central bargaining dated June 28, 1999 (the “Adams Award”).
12By way of background, the Board notes that several participating Local unions, including the SEIU, Local 204, and several participating hospitals, including St. Joseph’s, 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. George Adams. The Adams Award dated June 28, 1999 decided the central issues in dispute between the participating Local unions and participating hospitals.
13The 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]
At the hearing in this matter, SEIU, Local 204 did not take issue with the accuracy of this statement contained in the Adams Award set out above. However, in its reply submissions, SEIU, Local 204 argued that the agreement of the parties contained in the Adams Award should be interpreted as merely referring to the fact that the collective agreements provide for retroactive wages covering a period of six (6) years. According to the SEIU, Local 204, the agreement recorded in the Adams Award should not be interpreted as an agreement to a retroactive term of operation of six (6) years. The Board, however, rejects this suggestion. A plain reading of the undisputed agreement of the parties contained in the Adams Award is that the participating parties agreed to SEIU collective agreements with terms of operation of six (6) years expiring on October 10, 2001.
14In addition, in its reply submissions, SEIU, Local 204 also argued that there is nothing contained in any of the written agreements between the parties to the collective agreements in issue, which in fact indicates that the terms of operation of the renewal collective agreements are to be retroactive. In this respect, SEIU, Local 204 noted that it provided the Board with all of the written agreements between the parties to those collective agreements.
15The parties’ written agreements contain the following references to the terms of operation of the renewal collective agreements. The letter of agreement dated June 21, 1999 between the participating hospitals (including St. Joseph’s) and the participating Locals of CUPE and of Service Employees International Union (“SEIU”) (including SEIU, Local 204) provides:
The parties agree to expiry dates of September 28, 2001 for CUPE collective agreements and October 10, 2001 for SEIU collective agreements, under the following conditions:
The decision of the Adams Board of Arbitration, in conjunction with the agreed to items with SEIU, will resolve all of the outstanding central issues between the parties with the exception of the wage increase for the periods of September 29, 2000 to September 28, 2001 for CUPE collective agreements and October 11, 2000 to October 10, 2001 for SEIU collective agreements.
In the event the parties are unable to agree on the wage amount for those time periods by July 31, 1999, the parties will have the issue decided by the Adams Board of Arbitration.
[emphasis added]
16There is also a reference to the term of operation of the collective agreements in issue contained in the implementation agreement dated July 15, 1999 between certain local unions of SEIU (including SEIU, Local 204) and certain participating hospitals (including St. Joseph’s) (the “Implementation Agreement”). The Implementation Agreement, which generally speaking amended the predecessor collective agreements in accordance with the Adams Award, refers to the amendment concerning the term of operation as follows:
- The provisions of the renewal Collective Agreements between the parties shall be the subsisting Agreements except to the extent modified and amended by:
(a) The Agreements shall continue in effect up to and including October 10, 2001. In all respects, the notice provisions relating to the renewal of the Collective Agreements shall continue in effect.
[emphasis added]
17Finally, both the full and part-time renewal collective agreements dated April 5, 2000, contain the following provision with respect to the term of operation:
Term
This Agreement shall continue in effect until October 10, 2001 and shall remain in effect from year to year thereafter unless either party gives the other party written notice of termination or desire to amend the Agreement.
[emphasis added]
The cover page to both of these renewal agreements also states “Expiry: October 10, 2001”.
Relevant provisions of the Act and of HLDAA
18For ease of reference, the Board again sets out subsections 7(4) and 7(5) of the Act as follows:
- (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.
19The relevant sections of the HLDAA are as follows:
- (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.
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.
(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.
(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.
- (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.
Decision
20As previously noted, there is no dispute between the parties that the terms of the collective agreements both expire on October 10, 2001 in accordance with the agreement of the parties to them. SEIU, Local 204, however, argues that the commencement of the term 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:
- (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.
21Both parties agree that the provisions of subsection 10(9) of HLDAA apply in the circumstances of the present case. This is because the arbitration of the central issues settled by the terms of the Adams Award in this case involved a “single arbitration of several disputes” within the meaning of section 8 of HLDAA.
22It is also common ground between the parties that, pursuant to the provisions of subsection 10(9) of HLDAA, the effective dates of the collective agreements in issue in this case are both June 28, 1999, the date that the Adams Award was issued. SEIU, Local 204 contends that the effective dates of the collective agreements in issue marks the commencement of their respective terms of operation, regardless of any agreement to the contrary of the parties to them.
23The CAW, however, disputes SEIU, Local 204’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 full and part-time collective agreements?
24The Board will first generally 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 these collective agreements 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
25For 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 mark the commencement of its “term of operation”.
26Under 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.
27Where 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 under the provisions of subsection 10(8) or 10(9) of HLDAA (as applicable).
28As 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 speaking straightforward under the terms of the Act as opposed to under those of HLDAA. The Board in Chateau Gardens stated:
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.
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.
29Where 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.
30HLDAA 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:
- 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.
31More 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.
32The 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.
33Subsection 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:
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.
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.
34Thus, where the statute otherwise prescribes that a collective agreement ceases to operate after two years from the day on which the previous collective agreement ceased to operate, the statute 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 HLDAA.
35Finally, 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) of HLDAA 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) of HLDAA is, however, silent on the issue of the parties’ ability to agree to do so.
(ii) Application to the facts in the present case
36In the present circumstances, SEIU, Local 204 argues that subsection 10(9) of HLDAA prescribes the commencement of the term of the collective agreement regardless of any agreement of the parties to the contrary. SEIU, Local 204 relies on the decisions of the Board in Hillsdale Nursing Home, [1978] OLRB Rep. January 11 and Local 865, International Union of Operating Engineers, [1978] OLRB Rep. March 326 for the proposition that the date the board of arbitration gives its decision is the date that the terms of the collective agreements in issue commence. In the present circumstances, SEIU, Local 204 therefore argues that the terms of the collective agreements in issue are effective from June 28, 1999 (the date the Adams Award was given) to October 10, 2001.
37The 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.
38In that case, 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.
39The 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.
40Similarly, 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, the 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.
41The 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:
- 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.
42The facts in both Local 865 and in Hillsdale are, however, 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.
43In Local 865, although the term of operation was agreed upon by the parties, the term agreed upon expired earlier than the minimum one year period contemplated under subsection 10(10) of HLDAA, i.e. 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.
44In 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 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.
45In the present circumstances, the term of the collective agreement was not an issue determined by the board of arbitration, but rather, like in Local 865, was 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 Adams Award does not purport to make any decision with respect to the terms of operation of the collective agreements as a matter in dispute between the parties. As previously indicated, SEIU, Local 204 acknowledges that the Adams Award accurately records the agreement of the parties.
46However, in contrast to Local 865, the terms 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.
47While subsection 10(9) of HLDAA does apply, it merely determines the “effective date” of the documents that constitute the collective agreements. As the Board noted 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, it only does so where subsection 10(10) of HLDAA applies. However, as previously noted, the Board finds that neither subsection 10(10) nor (11) of HLDAA apply in the present case and the terms of operation of the collective agreements in this case are not determined by reference to those provisions.
48The 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 collective agreements in issue 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.
49In 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. In the Board’s view, subsection 10(13) of HLDAA merely restricts the board of arbitration in making its decision on matters in dispute between the parties. It is silent on the parties’ ability to agree to retroactive terms.
50In 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.
51For 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 in the circumstances of the present case, since the 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.
(iii) No written agreement that the term of operation is to be retroactive
52In its reply submissions, SEIU, Local 204, for the first time, submitted that the terms of the collective agreements could not, in any event, be found to be retroactive, since there is no evidence before the Board of any written agreement between the parties to this effect. As previously noted, however, SEIU, Local 204 does not dispute that it entered into an agreement with St. Joseph’s as recorded in the Adams Award to a six (6) year term expiring on October 10, 2001. Notwithstanding this, SEIU, Local 204 notes that subsection 10(3) of HLDAA requires that the parties notify the board of arbitration in writing of any matters agreed upon.
53For convenience, the Board again sets out subsection 10(3) of HLDAA:
- (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.
[emphasis added]
SEIU, Local 204 submits that there is no evidence before the Board of any written agreement between the parties to the effect that the term of operation is to be for six (6) years, retroactive from October 10, 2001. Instead, all of the written agreements between the parties simply note the parties’ agreement to the expiry date of October 10, 2001.
54With respect to this argument, the Board firstly observes that SEIU, Local 204’s timeliness objection on the ground that there is no written agreement on retroactivity is an entirely new basis of objection from that originally pleaded. It was raised for the first time in SEIU, Local 204’s reply submissions and the CAW therefore had no opportunity to respond to it. SEIU, Local 204’s original timeliness objection was simply that HLDAA provides that the term of operation of a collective agreement commences on its effective date, regardless of any agreement of the parties to the contrary. SEIU, Local 204 has raised a timeliness objection to these applications and has the onus of establishing that these applications are untimely. It is not therefore entitled to raise an entirely new ground, which was not previously identified, in reply submissions and then to rely on the absence of certain evidence material to that new ground.
55In any event, the Board notes that subsections 10(10) and (11) of HLDAA simply do not govern the term of operation of a collective agreement where the parties have agreed to a longer term of operation. There is no requirement in either subsections 10(10) or (11) that the parties’ agreement to a longer term of operation be in writing. In addition, and in any event, the Board notes that that aspect of the parties’ agreement (i.e. to a longer term expiring on October 10, 2001) is in writing. For example, the parties’ agreement to a longer term of operation expiring on October 10, 2001, is reflected in the June 21, 1999 letter of agreement referred to above, in the Implementation Agreement as well as in the full and part-time collective agreements ultimately signed by the parties to them.
56Subsection 10(3) of HLDAA does, however, contemplate that the parties notify the board of arbitration in writing of matters agreed upon and then requires that the board of arbitration confine its decision to the matters not agreed upon and any other matters required to effect a collective agreement. The question of whether or not subsection 10(3) of HLDAA has been met is one that relates to the jurisdiction of the board of arbitration to make decisions on matters contained in the collective agreement.
57In the circumstances of the present case, the Board notes that none of the parties either suggested that the terms of operation of the collective agreements in issue were matters in dispute or that the Adams Award was not a final decision. (See, for example, the decisions of the Board in The Corporation of the City of St. Thomas, [1997] OLRB Rep. May/June 373; St. Thomas (c.o.b. Valleyview Home for the Aged), [1998] O.L.R.D. No. 1366; Golden Dawn Nursing Home, OLRB File No. 3671-99-R, unreported decision dated May 29, 2000, where the timeliness issue centers on whether or not the board of arbitration’s decision in each case was an interim or final one). In addition, none of the parties suggested that there had been any challenge of any kind in any forum to the Adams Award. The Board notes once again that the Adams Award merely records the parties’ agreement and does not determine the issue of the terms of operation of the collective agreements.
58In all of the circumstances, the Board finds that the terms of operation of the collective agreements are to be determined having regard to the participating parties’ undisputed agreement recorded in the Adams Award. That agreement is to six (6) year terms expiring on October 10, 2001. The Board therefore finds that the terms of operation of the collective agreements in issue are from October 11, 1995 to October 10, 2001. As previously indicated, the parties’ agreement to six year terms expiring on October 10, 2001 effectively establishes the terms of operation of the collective agreements in issue, since subsections 10(10), (11) and (13) of HLDAA do not restrict the parties’ ability to agree to those terms in this case.
Are the Displacement Applications Timely?
59Having regard to the determination that the terms of the collective agreements are from October 11, 1995 to October 10, 2001, the Board finds that these applications are timely pursuant to the provisions of subsection 7(5) of the Act. The certification applications were both 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
60Accordingly, SEIU, Local 204’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.
61These 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