0587-00-R Ontario Public Service Employees’ Union, Applicant v. City of Hamilton/Region of Hamilton-Wentworth, Responding Party v. Canadian Union of Public Employees and its Local 5167 v. Corporation of the Town of Ancaster, Intervenors.
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.
DECISION OF THE BOARD; September 19, 2001
This is an application for certification with respect to a bargaining unit composed of paramedics. A dispute arose among the Ontario Public Service Employees’ Union (OPSEU) the Canadian Union of Public Employees and its Local 5167 (CUPE) and the City of Hamilton (the City) around whether or not CUPE held pre-existing bargaining rights for the paramedics that would render OPSEU’s application untimely.
It appears that there were two aspect to CUPE’s claim for pre-existing bargaining rights; the scope clause of its collective agreement with the City, and the existence of a voluntary recognition agreement for the paramedic employees. After hearing the evidence and arguments of the parties with respect to the scope clause, by decision dated May 25, 2001 another panel of the Board concluded that the scope clause in the collective agreement was not a bar to OPSEU’s application. At the end of that decision, the Board issued the following direction:
The parties are directed to advise the Board within 10 days of the date of this decision how they wish to proceed with the remaining outstanding issue. I remain seized.
On June 15, 2001, that panel issued the following decision:
In paragraph 90 of the Board's decision of May 25, 2001, the parties were directed to advise the Board within ten days regarding how they wished to proceed on the issue of the validity of the voluntary recognition agreement signed by the Canadian Union of Public Employees ("CUPE") and the City of Hamilton/Region of Hamilton-Wentworth on August 1, 2000.
To date the Board has heard from the two unions but not from the employer. CUPE simply stated that it wished to proceed with the remaining issue. The applicant made a more fulsome submission.
In the Board's view this issue may be dealt with by way of written submissions. CUPE and the employer have 10 days from the date of this decision to file their submissions, if any, regarding why the voluntary recognition agreement should be a bar to this application for certification. The applicant will then have a further 10 days to make its response submission. CUPE and the employer may make any reply submissions within 5 days of the deadline for the response. The Board will decide the remaining issue based on all submissions received.
The City, CUPE and OPSEU filed submissions on the outstanding issue, that is, the impact of the voluntary recognition agreement entered into by CUPE and the City on August 1, 2001. Without setting out those submissions in detail at this point, the City argued that significant evidence would need to be called on the issue and that it was not appropriate for the Board to determine the matter on the basis of written submissions. The City also submitted that there was another outstanding issue, that is, whether an expansion of the paramedic workforce should cause Board to hold a representation vote at a later date.
Counsel for the City argued further that the voluntary recognition agreement was the subject of an unfair labour practice complaint in Board File 1891-00-U, and suggested that OPSEU had to have the matter of the voluntary recognition agreement dealt with in either one file or the other, but not both. With respect I disagree. It is not unusual for the same fact situation to give rise to more than one proceeding. This is not even a situation where the same party is relying on the same set of facts to bring two proceedings. I note that in the certification application, CUPE raised the voluntary recognition agreement as a basis to bar OPSEU’s application. OPSEU then brought an unfair labour practice complaint about the same agreement. However, I do agree with counsel for the City’s view that the Board ought not to convene two hearings to inquire into the circumstances surrounding the voluntary recognition agreement and the same panel of the Board should hear the remaining issues in this application for certification, and the unfair labour practice.
The next event that occurred was the release of the following decision on August 13, 2001 by the panel of the Board that heard most of this certification application:
Having reviewed the submissions of the responding party employer, I am of the view that the remaining issue should be decided by another panel of the Board. I am no longer seized. This matter is referred to the Registrar of the Board to be addressed.
The Board then set a hearing date of October 16, 2001. Not surprisingly, counsel for CUPE wrote to the Board and asked what was the purpose of the hearing. I had intended to review the file and issue this decision before the hearing date was set.
The Vice Chair who comprised the panel that has heard the case to this point has resigned from the Board. Moreover, she has recently taken up a new position that no doubt demands her time and attention. Further, she is no longer engaged as a neutral adjudicator. While I do not know the precise reasons for the Vice Chair’s decision to recuse herself from hearing and determining this final issue, I expect that some or all of these factors played a role.
Another panel of the Board will hear and decide the remaining issues in the certification file, that is the impact of the voluntary recognition agreement on OPSEU’s application for certification and the “build up” argument. That panel will also hear the unfair labour practice complaint in Board File 1891-00-U. The panel will determine the appropriate method of proceeding.
The Board’s hearing notice of August 23, 2001 is amended to indicate that both Board Files 1891-00-U and 0587-00-R are scheduled for hearing on October 16, 2001.
“Mary Ellen Cummings”
for the Board