2123-01-R The Employees of the Village of Riverside Glen, Applicant v. United Food and Commercial Workers Union, Local 175, Responding Party v. The Village of Riverside Glen, Intervenor.
BEFORE: Marilyn Silverman, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.
DECISION OF THE BOARD; December 7, 2001
1This is an application to terminate bargaining rights filed under section 63 of the Labour Relations Act, 1995 (the “Act”).
2One issue for determination in this case is whether the application is timely. The responding party asserts that it is not. By decision dated November 6, 2001, the Board requested submissions from the applicant and the intervenor (“the employer”) in support of their position that the application is timely.
3The material facts of this application are as follows. The responding party (“the union”) was certified on October 16, 2000. On October 26, 2000 the union gave the employer notice to bargain. On December 22, 2000, pursuant to a request by the union a conciliation officer was appointed. On September 25, 2001 after a series of meetings, the conciliation officer advised the Minister of Labour that he had been unable to effect a collective agreement. On October 11, 2001 the union informed the employer of its intention to proceed to interest arbitration pursuant to Hospital Labour Disputes Arbitration Act (“HLDAA”).
The First Application to Terminate Bargaining Rights
4On October 19, 2001 an application to terminate bargaining rights involving these parties was filed (“the first application”) with the Board. By decision dated October 30, 2001, the Board (differently constituted) found that the first application was untimely. Although not elaborated on that decision, it is useful to describe the facts as detailed in that first application and the findings of the Board.
5The union submitted that the first application was untimely. The union relied on two arguments in this regard. The first was that it was untimely under section 67(1)(a) of the Act. That section provides that:
- (1) Subject to subsection (3), where a trade union has not made a collective agreement within one year after its certification and the Minister has appointed a conciliation officer or a mediator under this Act, no application for certification of a bargaining agent of, or for a declaration that a trade union no longer represents, the employees in the bargaining unit determined in the certificate shall be made until,
(a) 30 days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator.
6The section required 30 days to have elapsed after the conciliation board or mediator released his/her report. On September 25, 2001, the conciliator officer advised the parties that he was unable to effect a collective agreement. The first application to terminate bargaining rights was filed with the Board on October 19, 2001 and so was inside the 30-day period.
7The union’s second argument was that section 12(1) of HLDAA precluded an application to terminate bargaining rights except in accordance with section 63(2) of the Act. That section applies when there is a collective agreement in effect between the parties. In the first application no first collective agreement had yet been entered into. Those sections provide that:
- (1) Despite section 67 of the Labour Relations Act, 1995, 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 16 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 63 (2) of the Labour Relations Act, 1995.
(2) Despite section 67 of the Labour Relations Act, 1995, where notice has been given under section 59 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 7 or subsection 63 (2) of the Labour Relations Act, 1995, as the case may be.
[emphasis added]
- (1) If a trade union does not make a collective agreement with the employer within one year after its certification, any of the employees in the bargaining unit determined in the certificate may, subject to section 67, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.
(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 67, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,
(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last three months of its operation;
(b) in the case of a collective agreement for a term of more than three years, only after the commencement of the 34th month of its operation and before the commencement of the 37th month of its operation and during the three-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last three months of its operation, as the case may be;
(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, only during the last three months of each year that it so continues to operate or after the commencement of the last three months of its operation, as the case may be.
8The Board requested written submissions from the applicants in the first application. The applicants did not address the issue of timeliness but the employer agreed that the application was untimely. It is useful to set out paragraphs 6 and 7 of the decision dismissing the first application:
The Board has received a letter from the solicitors for the employer, dated October 26, 2001. The employer rejects the allegations of improper involvement in the application. However, the employer agrees that the application is untimely, relying on subsection 67(1)(a) of the Act. The employer does not address the applicability of HLDAA.
The Board finds that the application is untimely. It appears that section 12 of HLDAA applies to the instant facts and that an application for termination must therefore be brought within an open period specified in subsection 63(2), and in accordance with HLDAA.
The Second (or Instant) Application to Terminate Bargaining Rights
9This application was filed on October 31, 2001.
10The union responded to the application by again contending that it was untimely. It no longer relied on the provisions of section 67(1)(a) of the Act. In any event, these time limits have no application in this dispute as section 12 of HLAA excludes a consideration of section 67 of the Act. The union did however rely on the argument concerning the application of section 12 of HLDAA and its interaction with section 63(2) of the Act. That argument is that an open period in which to apply to terminate bargaining rights only exists after a first collective agreement has been reached.
11The union also argued that the matter was res judicata having been determined in the first application and dismissed as untimely. It relies on para. 7 in the decision issued in the first application where the Board found that section 12 of HLDAA applied.
12The employer responded that this application is timely. The employer made submissions in its response to the application and then again in response to the Board’s direction of November 6, 2001. The employer’s position is based on three arguments.
13The first argument is that the application is made pursuant to section 63 of the Act and not section 67. The employer submits that “Section 12 of HLDAA does not foreclose an application under section 63 of the OLRA, it only prevents an application under section 67 (a “raid” or displacement application). Section 67 of the OLRA only comes into issue through section 63 of the OLRA, which is not barred by section 12(1) of HLDAA”. The employer concluded its argument in its submission that employees in a first contract situation under HLDAA are able to file an application to terminate bargaining rights under section 63. It contends that if the union were correct then employees could be foreclosed from terminating bargaining rights in perpetuity once a conciliation officer is appointed in a first contract situation. The employer further contends that section 12 cannot be construed as barring an application that is otherwise timely under section 63.
14In response to the union’s assertion that the matter is res judicata, the employer asserts that the pre-conditions for a finding of res judicata have not been met. It also asserts that this issue could not be sufficiently dealt with in the short time frame allowed for filing a response and further that the issue of the relationship of section 12(1) of HLDAA and sections 63 and 67 of the Act was moot in the first application.
15Finally, the employer submits that in the event that section 12(1) removes the right of employees to terminate bargaining rights in a first contract situation then it is contrary to section 2(d) of the Charter of Rights and Freedoms.
16The representatives of the applicant also provided submissions pursuant to the Board’s direction of November 6, 2001. They adopt the employer’s submissions on the legal issues of timeliness and res judicata. Further they express frustration in their attempts to terminate the union’s bargaining rights and feel that they have followed the appropriate procedures to be able to do so. They are of the view that the Board is interfering with their constitutional rights and favouring the union’s position.
Decision
17The employer requests a hearing into the matter. The employer has been provided with a full opportunity to make submissions on the issue of timeliness. Those submissions have been adopted by the applicants. The Board has carefully considered those submissions and does not see any need for a hearing on the issue of whether the application is untimely under section 12(1) of the Act.
18This application is untimely under section 12(1) of HLDAA. We do not make a finding as to whether this application is res judicata in relation to the first application. We assume, without deciding, that the matter has not already been determined in the first application and base our decision solely on the arguments of the parties in this application.
19Section 12(1) of HLDAA provides that an application to terminate bargaining rights can only be made in accordance with section 63(2) of the Act. That section requires the existence of a collective agreement. Where the parties are governed by HLDAA this can occur no earlier than the open period at the conclusion of a first collective agreement.
20The employer's contention that this interpretation of HLDAA and the Act could delay in perpetuity the possibility of an employee termination application is not supported by those statutes. HLDAA provides time limits and a system for the appointment of a board of arbitration whose decision will give the parties a collective agreement. That process does not always conform to a strict time limit. HLDAA recognizes this and contemplates that at the end of the (first and subsequent) collective agreement(s) there will be an open period under section 63(2) of the Act. That is the time when an application to terminate bargaining rights may be brought.
21Having regard to the reasons provided above, the Board finds that this application is untimely. The matter shall be set down for hearing on the issue of whether section 12(1) of the Hospital Labour Disputes Arbitration Act violates section 2(d) of the Charter of Rights and Freedoms. The union shall have 7 days from the date of this decision to file any submissions it may have on that issue.
22The matter is referred to the Registrar to schedule for one day of hearing.
“Marilyn Silverman”
for the Board
CONCURRING DECISION OF BOARD MEMBER J. A. RUNDLE; December 7, 2001
This decision requires that employees covered by HLDAA are treated differently from employees not covered by HLDAA. They are effectively denied rights under the Labour Relations Act, 1995 which most employees in the province are entitled to by law.
“J. A. Rundle”