Ontario Public Service Employees’ Union v. City of Hamilton/Region of Hamilton Wentworth, 2001 CanLII 18865

Ontario Public Service Employees’ Union v. City of Hamilton/Region of Hamilton Wentworth

0587-00-R Ontario Public Service Employees’ Union, Applicant v. City of Hamilton/Region of Hamilton Wentworth, Responding Party and Canadian Union of Public Employees and its Local 5167, Intervenor v. Corporation of the Town of Ancaster Intervenor.

1891-00-U Ontario Public Service Employees’ Union, Applicant v. City of Hamilton/Region of Hamilton Wentworth, Responding Party.

BEFORE: Mary Ellen Cummings, Alternate Chair, and Board Members J. A. Ronson and R. R. Montague.

APPEARANCES: Richard Blair, Ed Ogibowski, Mario Postarero, Brad Thompson and Jamie Ramage for OPSEU; Walter Thornton and Robert Menagh for the City of Hamilton; Mark Gallina, Gus Oliveira and Michael Stokes for the Canadian Union of Public Employees, Local 5167.

DECISION OF THE BOARD; November 22, 2001

1. This is an application for certification brought pursuant to section 7 of the Labour Relations Act, 1995 (the “Act”) and an unfair labour practice complaint made under section 96 of the Act.

2. These proceedings have a long history. The application was made on May 23, 2000. The Ontario Public Service Employees’ Union (OPSEU) sought to represent a bargaining unit of “all paramedic employees of the respondent in the Region of Hamilton-Wentworth, save and except supervisors and persons above the rank of supervisor”.

3. The City of Hamilton/Region of Hamilton-Wentworth (Hamilton) took the position that it was not the employer on May 23, 2000, when the application was made and in fact the employer was the Corporation of the Town of Ancaster (Ancaster). Ancaster filed an intervention, disputing that it was the employer, but did not otherwise participate in the proceeding.

4. The Canadian Union of Public Employees, and its Local 5167 (CUPE) intervened, claiming that the paramedics were indeed employees of Hamilton, but fell within the scope clause of the collective agreement it had with Hamilton, with the result that OPSEU’s application should be found to be untimely.

5. The third issue that surfaced after the application was filed was whether or not the group of paramedics retained at the time of the application was sufficiently representative. To put it another way, Hamilton asserted that the Board ought not to have regard to the results of the first representation vote because of a planned “build up”. The Board did not have to determine this issue, because in an agreement reached on July 11, 2000, the participating parties agreed to hold a second vote and to be bound by its results, subject to CUPE’s assertion that the paramedics fell within its scope clause. The second vote was held on August 10, 2000 and significantly more than fifty per cent of the ballots cast were in favour of OPSEU.

6. The fourth issue arose in August 2000 when CUPE and Hamilton entered into a voluntary recognition agreement. Hamilton did not dispute that as of August 1, 2000, it was the employer of the paramedics. It only denied that it was the employer on the application date. The voluntary recognition agreement dated August 1, 2000 first, confirmed the understanding between CUPE and Hamilton that the paramedics fell within the scope clause of the collective agreement between them, and then, in the alternative, confirmed an agreement to extend the scope clause of the collective agreement and treat the paramedics as an accretion to the bargaining unit.

7. Another panel of the Board heard and determined the two issues of “who was the employer” as of the application date, and whether the scope clause of the collective agreement between CUPE and Hamilton included the paramedic employees. In a decision released May 25, 2001, the Board determined that Hamilton was the employer of the paramedics on May 23, 2000 and that the scope clause of the collective agreement between CUPE and Hamilton did not embrace the new paramedic positions.

8. After seeking their submissions, the first panel directed the parties to make written argument with respect to the remaining issue, that is, the impact of the voluntary recognition agreement on OPSEU’s application for certification. Counsel for Hamilton resisted that plan, indicating that there may be a need to call evidence. At that point, the first panel determined that it was no longer seized with the matter, and referred the matter to the Registrar.

9. The Alternate Chair reviewed the file and directed that it be listed for hearing, together with an unfair labour practice complaint filed by OPSEU, (Board File 1891-00-U) alleging, principally, that the negotiation of the voluntary recognition agreement in the circumstances, amounted to a violation of various provisions of the Act. That decision noted that since there were common issues of fact in both applications the Board should, as counsel for Hamilton suggested, hear in one proceeding all issues relating to the voluntary recognition agreement.

10. This panel, then, convened a hearing on October 16, 2001. In the interim, the parties had agreed that there was no need to call further evidence, and the Board could rely on the findings of fact in the May 25, 2001 decision to provide a context for the arguments. During the course of the day, it was also agreed that the Board would adjourn the complaint in Board File 1891-00-U and that for the purposes of hearing and determining the consequences of the voluntary recognition agreement on OPSEU’s application for certification, the Board would assume without finding that CUPE and Hamilton had entered into the voluntary recognition agreement for bona fide reasons.

11. In advance of the hearing on October 16, 2001, CUPE and Hamilton raised a preliminary issue. There is before the Board an application made pursuant to the Public Sector Labour Relations Transition Act (the PSLRTA) involving these same parties. It is agreed that whatever the outcome of the certification application, the PSLRTA proceeding will make its own determination about what bargaining unit configurations are appropriate for the future, with the result that the effect of the outcome in these proceedings may be short-lived. Moreover, the parties to the PSLRTA application have agreed that OPSEU has standing to participate, to make whatever submissions it wants, and to have a right to be on the ballot, no matter what bargaining configuration is determined by the Board in the matter before this panel. Consequently, CUPE and Hamilton submitted that there was no labour relations purpose to completing OPSEU’s certification proceeding at this time. It does not need to “win” to gain the standing to participate in the PSLRTA matter which has already begun and is due to continue in early December 2001.

12. None of the parties challenged the Board’s discretion to adjourn a matter in appropriate circumstances, and all agreed that the focus should be grounded in practical labour relations considerations. OPSEU submitted that there are important issues, other than its right to participate in the PSLRTA application, that will be determined in the certification application. Counsel argued that the paramedic employees need to know the identity of their bargaining representative because the identity determines not only who they get to talk to, but the nature and extent of their rights. If CUPE is their bargaining agent, then their rights as employees are largely governed by the terms and conditions of a collective agreement. If OPSEU is their bargaining agent, then their rights as employees are affected by provisions of the Act, including the post-certification freeze mechanisms. The identity of the bargaining agent also determines which trade union has the right to go to the employer and expect that its status be recognized.

13. All counsel adverted to an informal arrangement among them whereby the paramedic employees are being treated as if their terms and conditions of employment are governed by the CUPE collective agreement. While counsel disagreed about the harm that might come to employees if this informal arrangement ended (particularly for the two employees who have been terminated and have grieved under the CUPE collective agreement) all counsel agreed that the present arrangement, which has been in place for more than a year, is difficult. All counsel agreed that it was quite likely that the Board could hear the remaining issues in the certification application within the day.

14. The majority of the panel, Mr. Ronson dissenting, determined that there was a labour relations purpose to completing the hearing at this time. First, the Board ought not lightly adjourn an application for certification, particularly where, as in this case, its resolution is well outside the Legislature’s expectation of a speedy vote process. Second, the matter can be completed in the scheduled day. It seems an inappropriate use of resources to convene a hearing, then adjourn it without completing what can usefully be accomplished in a day. Third, OPSEU’s argument that employees should know the identity of their bargaining agent because it fundamentally affects the regime that governs the terms and conditions of their employment is compelling.

15. Mr. Ronson dissented, expressing the view that the PSLRTA is legislation designed specifically to resolve the labour relations fallout of municipality restructuring, and consequently, the Board should defer to that process, which has already begun, to find a solution to these bargaining unit dilemmas. Mr. Ronson is concerned that proceeding with the case in front of this panel, will create unnecessary labour relations frictions at a time when the parties are already embroiled in the PSLRTA matter.

16. As set out earlier, the parties and this panel had the benefit of the findings of fact in the first panel’s May 25, 2001 decision, as well as the terms of the voluntary recognition agreement itself. As the parties requested, the Board considered both the oral arguments made to this panel, and the written submissions all had previously tendered in response to the direction of the first panel.

17. The voluntary recognition agreement signed August 1, 2000 has a number of recitals. It notes that Hamilton and CUPE have a longstanding collective bargaining relationship that at present, covers approximately 1030 “inside” workers. As of August 1, 2000, Hamilton will become responsible, pursuant to legislation, for the provision of land ambulance services. To meet that commitment, it has offered employment to a number of paramedic employees, and those on the attached list have accepted that employment. The agreement also acknowledges OPSEU’s application for certification but concludes “that at all material times” CUPE held bargaining rights for those employees by virtue of the scope clause in its collective agreement with Hamilton. Then, in the alternative, and specifically relying on a decision of the Board in York [2000] OLRB Rep. March 371, Hamilton agrees to voluntarily recognise CUPE as the exclusive bargaining agent for the paramedic employees, effective the date of their employment with Hamilton or July 31, 2000, whichever is earlier.

18. Counsel for CUPE and Hamilton began their submissions with an analysis of the York decision. They argued that it stands for the proposition that a bargaining agent and an employer can enter into an agreement to expand the scope of the bargaining unit to include a new group of employees, and can do so regardless of the wishes of the new employees, so long as the trade union enjoys the support of a majority of the employees. In this case, counsel submitted, there is no doubt that since the group of paramedics is small in relation to the size of the existing CUPE bargaining unit at Hamilton, that CUPE enjoyed the support of the majority of the bargaining unit when the voluntary recognition agreement was entered into.

19. Counsel for Hamilton submitted that a voluntary recognition agreement can be entered into unilaterally, without regard to the activities of other trade unions or the wishes of the employees. In this case, moreover, the voluntary recognition agreement was intended to have retroactive effect, and to apply as of the date that the paramedics started with the Hamilton. The first panel of the Board found that some were hired in March 2000, before OPSEU’s application for certification was made, with the result that the effect of the voluntary recognition agreement pre-dates the application for certification.

20. Counsel also explained the timing of the voluntary recognition agreement. He submitted that it was not prepared in response to OPSEU’s application for certification. He reasoned that it was not until August 1, 2000 that a sufficient number of paramedics had been hired to form a representative group. Borrowing the concept of “build up” upon which the Board has relied to determine the appropriate point at which to take a representation vote, counsel for Hamilton submitted that if the Board were to find that it was inappropriate for CUPE and Hamilton to enter into an agreement on August 1, 2000, then there is no time when such an agreement would have been appropriate because prior to August 1, 2000, an insufficient number of paramedics had been hired.

21. Counsel said that the Board should not be concerned that giving effect to this voluntary recognition agreement would unduly encourage mischief. He submitted that the Act’s prohibition against employer support for a trade union and the Board's requirement that a bargaining agent maintain majority support were sufficient safeguards. Since, he argued, no one suggests that CUPE and Hamilton could not enter into a voluntary recognition agreement prior to OPSEU bringing its application for certification, there is no reason why the right of CUPE and Hamilton to expand the scope of their collective agreement should be affected by OPSEU’s application.

22. Counsel for CUPE explained the timing of the voluntary recognition somewhat differently. He saw it as a belated acceptance by Hamilton of CUPE’s long time assertion that the scope clause of its collective agreement embraced new positions. In addition, he submitted that since CUPE took the view that the paramedics were not employees of Hamilton until after August 1, 2000, CUPE and Hamilton could not have entered into a voluntary recognition agreement before that date.

23. Citing York, counsel for CUPE argued that the timing of a voluntary recognition agreement does not appear to have concerned the Board, although he did agree that in York the voluntary recognition agreement had preceded the application for certification. Counsel relied on the following excerpt from York:

I turn then to a consideration of OPSEU's argument based on Trent Metals Limited, that the agreement is invalid on the basis that it was entered into with the knowledge that OPSEU was interested in representing the ambulance officers. I am not persuaded that what occurred in the instant matter is analogous to the facts at issue in Trent Metals Limited. In the instant case, CUPE and the Region honestly and reasonably were of the view that that the ambulance officers fell within the scope of the Collective Agreement. Further, they treated the ambulance officers in the same fashion that they have treated other new classifications including the income maintenance or welfare workers and the court administration workers who were previously represented by OPSEU. The Region and CUPE's discussions were carried on openly and with the full knowledge of OPSEU. I do not perceive what occurred in this case as an attempt on the Region's part to lend assistance to CUPE or an attempt to thwart OPSEU.

24. Counsel argued that the Board did not seem concerned that OPSEU was “on the scene” and planning to pursue bargaining rights at the time CUPE and the employer in that case were entering into a voluntary recognition agreement. Instead, the Board focused on the good faith intentions of CUPE and the employer, and the absence of employer support, a feature that distinguished York from Trent Metals Limited [1979] OLRB Rep. Aug. 827.

25. Counsel for OPSEU began by agreeing with the general proposition that an employer and a trade union are entitled to enter into a voluntary recognition agreement that expands the scope of their existing collective agreement. However, such an agreement cannot bar a timely application for certification. It is common ground that at the time OPSEU made this application for certification, CUPE and Hamilton had not entered into their agreement. Counsel for OPSEU argued that when it made its application, it was timely, and no party can take subsequent actions that would render the application untimely. Counsel relied on section 7(1) and 10(1) of the Act:

26. (1) Where no trade union has been certified as bargaining agent of the employees of an employer in a unit that a trade union claims to be appropriate for collective bargaining and the employees in the unit are not bound by a collective agreement, a trade union may apply at any time to the Board for certification as bargaining agent of the employees in the unit.

27. (1) The Board shall certify a trade union as the bargaining agent of the employees in a bargaining unit that is determined by the Board to be appropriate for collective bargaining if more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.

28. Counsel submitted that at the time it filed its application the employees it seeks to represent were not bound to a collective agreement. Moreover, OPSEU has been overwhelmingly successful in the representation vote, and so, in accordance with section 10, should be certified as the bargaining agent. Section 7, counsel submitted, requires an assessment of the facts at the time the application is made, not at some point thereafter. Not only is that the statutory scheme, but it makes practical sense. There must be certainty about the circumstances in which an application can be made, and no subsequent event can be permitted to render a proper application untimely, or employees and trade unions will never know when an application can be brought. The voluntary recognition agreement in this case was brought with the knowledge of OPSEU’s application. To give effect to the agreement would render the filing of an application for certification merely the first step in jockeying for the right to represent employees. Counsel submitted that with respect to applications for certification, timing is everything. Section 7 mandates the Board to determine whether another trade union holds bargaining rights at the point at which another applies for certification, not after.