2884-00-R Ontario Public Service Employees Union, Applicant v. The Corporation of The Township of Moore, Responding Party v. United Automobile Aerospace and Agricultural Implement Workers of America Local 251, Intervenor.

2908-00-PS Corporation of the Township of St. Clair, Applicant v. International Union United Automobile, Aerospace and Agricultural Implement Workers of America (UAW-CLC) Local 251, Responding Party v. Ontario Public Service Employees Union, Intervenor.

BEFORE: Stephen Raymond, Vice-Chair.

APPEARANCES: Richard Blair, Tracey Mussett, Katherine Walker and Howard Havers for Ontario Public Service Employees Union; Daniel Leone and Donald E. Lougheed for The Corporation of the Township of Moore; Jim Fyshe and Linda Reanne for International Union of United Automobile, Aerospace and Agricultural Implement Workers of America (UAW-CLC) Local 251.

DECISION OF THE BOARD; June 8, 2001

1Board File 2884-00-R is an application for certification filed by the Ontario Public Service Employees Union (“OPSEU”) pursuant to the Labour Relations Act, 1995, as amended (the “Act”) to represent a group of employees of The Corporation of the Township of Moore (“Moore Township”). Board File 2908-00-PS is an application by The Corporation of the Township of St. Clair (“St. Clair Township”) pursuant to sections 21, 22 and/or 23 of the Public Sector Labour Relations Transition Act, 1997 (the “PSLRTA”) for a determination of the number and a description of the bargaining units that are appropriate for St. Clair Township’s operations and for a determination of which bargaining agents, if any, represent the employees in the bargaining unit.

2On December 29, 2000, OPSEU applied for certification in Board File 2884-00-R. On January 3, 2001, the Corporation of the Township of St. Clair filed an application, Board File 2908-00-PS, pursuant to the PSLRTA. A hearing was held on February 26, 2001.

Background and Issue

3The purpose of the PSLRTA is to provide, among other things, for the orderly resolution of issues relating to collective bargaining when two or more corporations, such as municipalities, are amalgamated.

4On January 1, 2001, the statutory changeover date pursuant to the PSLRTA, Moore Township and the Corporation of the Township of Sombra were amalgamated into St. Clair Township. Up until December 29, 2000, the employees of Moore Township were not unionized. As noted above, on December 29, 2000, OPSEU applied for certification of “all employees of the Corporation of the Township of Moore save and except supervisors, those above the rank of supervisor, volunteer firefighters and students”. The Board ordered, on January 15, 2001, a representation vote with respect to the application for certification. The vote was held on January 17, 2001. A majority of the employees who cast ballots chose to be represented by OPSEU. The parties are in agreement that OPSEU is entitled to a certificate in respect of the employees of Moore Township. One issue remains outstanding in respect of the application for certification, so the Board has not issued, as yet, a certificate to OPSEU in respect of the employees of Moore Township.

5Some employees of Sombra Township were represented by the United Automobile Aerospace and Agricultural Implement Workers of America, Local 251 (the “UAW”) prior to the amalgamation.

6The issue in this case is whether OPSEU by virtue of what will be a successful application for certification is eligible to participate in the PSLRTA process.

The Statutory Framework

7Sections 1 (3), 13, 15(4), 28(2) of the PSLRTA are as follows:

1. The following are the purposes of this Act:

2. To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees following restructuring in the broader public sector and in other specified circumstances.

3. Section 69 of the Labour Relations Act, 1995 does not apply with respect to an occurrence described in sections 3 to 10.

4. (4) If a bargaining agent has bargaining rights under section 14 but there has never been a collective agreement between the bargaining agent and the predecessor employer that applied to employees in the like bargaining unit of the predecessor employer or after the changeover date a bargaining agent is certified or voluntarily recognized as the bargaining agent for a bargaining unit of the successor employer but there has never been a collective agreement between the bargaining agent and the successor employer, the following rules apply:

5. Before a collective agreement applying to the employees in the bargaining unit of the successor employer comes into effect, the employer shall not, without the consent of the bargaining agent, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer, the bargaining agent or the employees in the bargaining unit unless and until the right of the bargaining agent to represent the employees is terminated.

6. Before a collective agreement applying to the employees in the bargaining unit of the successor employer comes into effect, the bargaining agent shall not, without the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the bargaining agent or the employees in the bargaining unit.

7. (2) During the period beginning 10 days after the order is requested and ending when the order is made, no person may apply for certification of a bargaining agent to represent employees of the successor employer who are not members of a bargaining unit when the order is requested.

(3) During the period beginning when the order is requested and ending when the first collective agreement between the parties comes into operation after a collective agreement continued under subsection 24 (2) or a composite agreement expires, no person may apply,

(b) for the certification of a different bargaining agent to represent the employees in the bargaining unit.

The Argument

8The Board’s attention was directed by counsel for OPSEU to certain specific sections of the PSLRTA. One of the purposes of the PSLRTA is to facilitate collective bargaining between employers and trade unions. Further, Section 18 of the PSLRTA explicitly terminates certain matters as of the changeover date. Among those matters that are explicitly terminated are the appointments of conciliation officers and the process of interest arbitration. OPSEU argued that the purpose of the PSLRTA is clear. While the employer is in the process of reorganizing and the Ontario Labour Relations Board and/or the parties are in the process of determining which trade union(s), if any, represent the employees pursuant to the PSLRTA, there is to be no activity to achieve a collective agreement. In contrast, there is no language in the PSLRTA that would terminate an outstanding application for certification as of the changeover date. OPSEU argued that without an express statutory restriction, its application for certification should proceed.

9In fact, it was argued, the PSLRTA permits the filing of an application for certification after the changeover date. A trade union can file an application pursuant to Section 28(2) of the PSLRTA at any time up to ten days after an application under the PSLRTA has been filed. It is only following the expiration of that period when no application for certification is permitted.

10It was argued by OPSEU that an accident of timing was not meant by the Legislature to vitiate the express desire of the employees to bargain collectively. There is no issue among the parties that OPSEU would be permitted to participate in the PSLRTA process had the application for certification process been completed as of the changeover date. As well, if OPSEU had applied to represent all unrepresented employees of St. Clair Township between January 1, 2001 and January 13, 2001, (ten days following the PSLRTA application) there is no issue among the parties that OPSEU would be permitted to participate in the PSLRTA process. The responding parties are arguing that it is only because OPSEU applied between the time when it could not have been certified by the Board by December 31, 2000 and did not apply within ten days following the PSLRTA application (by January 13, 2001) that OPSEU is prevented from participating in the PSLRTA process.

11The Board was referred to its earlier decision in The Women’s Christian Association of London (“WCA”) [1998] OLRB Rep. May/June 496. In that case the Board stated at paragraphs 62 to 65 and 67 the following:

62. What is missing from this overview - but also from Bill 136 itself - are any clear rules about how the restructuring processes governed by Bill 136, "can" or "should" be squared with the acquisition of bargaining rights by certification under the Labour Relations Act. Section 18 of Bill 136 terminates certain outstanding proceedings following the occurrence of a restructuring event, but outstanding certification proceedings are not among those mentioned in section 18. Section 18 does not address new certification or termination applications at all - which suggests (at least implicitly) that the Legislature did not intend any automatic suspension of such matters.

63. Similarly, section 39 of Bill 136 provides a statutory override in the event of any operating incompatibility between Bill 136 and any other statute. In the event of a collision, Bill 136 prevails. But there is no suggestion that a new certification application automatically generates that kind of conflict. In fact, section 15(4) of Bill 136 contains these words:

"If … after the changeover date a bargaining agent is certified or voluntarily recognized as the bargaining agent for a bargaining unit of the successor employer but there has never been a collective agreement between the bargaining agent and the successor employer, the following rules apply...”.

That language specifically contemplates that there may be a successful certification application after the "changeover date", (i.e. the date on which the merger or other restructuring event occurs). These words would be unnecessary if the merger (etc.), automatically prevented a certification or termination application from being made or from being continued.

64. The only provision of Bill 136 that expressly restricts certification applications is section 28, which reads as follows:

65. (1) Subsections (2) and (3) apply if an order under section 22 is requested.

(2) During the period beginning 10 days after the order is requested and ending when the order is made, no person may apply for certification of a bargaining agent to represent employees of the successor employer who are not members of a bargaining unit when the order is requested.

(3) During the period beginning when the order is requested and ending when the first collective agreement between the parties comes into operation after a collective agreement continued under subsection 24(2) or a composite agreement expires, no person may apply,

(a) for a declaration that the trade union no longer represents the employees in the bargaining unit; or

(b) for the certification of a different bargaining agent to represent the employees in the bargaining unit.

Thereafter, the right of a person to make the application is determined under the Act that otherwise governs collective bargaining in respect of the employees.

(4) Subsection (3) applies with necessary modifications if an agreement under section 20 is in effect and, for that purpose, the applicable period begins when the agreement comes into effect.

65. Section 28(2) contemplates that non-union employees may make a certification application despite an application to the Board to restructure bargaining units under Bill 136. Indeed, the section gives non-union employees an additional 10 days after the order is requested to make their application. In other words, not only is there no incongruity between an outstanding certification application and an outstanding restructuring request, but the Legislature has given non-union employees an extra window of opportunity to make such certification application, despite a Bill 136 request. The statute clearly contemplates that the two can proceed together - or, at least, that the certification application can go forward without any necessary conflict with Bill 136.

66. To trigger a section 28(3) bar, there must be a restructuring request to the Board under section 22 - in which case the bar begins to operate when the request is made. The section 28(3) bar has no retroactive effect on certification applications already in process. Thus, if the certification application is made prior to the application of Bill 136, or to a request made under Bill 136, section 28(3) raises no obstacle.

12Finally, OPSEU anticipated an argument of the responding parties which is that the fact that the PSLRTA expressly provides that section 69 of the Act does not apply in the circumstances of a merger (etc.) means that an application for certification cannot survive the merger (etc.). OPSEU took the position that even though section 69 does not expressly apply to PSLRTA applications it does not mean that some of the consequences of section 69 could not otherwise still occur.

13Counsel for St. Clair Township argued that this is a situation to which section 3 of PSLRTA applies and that, as a result, section 13 of PSLRTA is triggered and section 69 of the Act has no application. Accordingly, there is no basis upon which the application for certification would flow from the predecessor (Moore Township) to the successor (St. Clair Township).

14As was stated by the Board in Quinte Healthcare Corporation, [2000] OLRB Rep. January/February 112, at paragraph 25 “the statute (PSLRTA) does not deal with all trade unions, but only those who are bargaining agents with existing bargaining rights to represent employee in defined bargaining units…”. It is argued that as of the changeover date, OPSEU had no bargaining rights. Further, OPSEU did not obtain bargaining rights until at least the date of the vote – January 17, 2001. To permit OPSEU to participate in the PSLRTA process which is triggered by the filing of the application on January 3, 2001 would be contrary to the wording of the PSLRTA.

15Counsel for the UAW repeated and relied on the arguments of counsel for St. Clair Township. In addition, he stated that there is nothing in the PSLRTA that permits the continuation of an application for certification. Without that express provision, it should not be assumed that an application for certification can survive the merger (etc.). He further indicated that labour relations law is replete with circumstances in which timing impacts rights and that the Board ought not to be disturbed that OPSEU’s application is, in effect, untimely. As well, he argued that the UAW has had a bargaining relationship for some period of time and the members of the UAW may be adversely impacted if the OPSEU application for certification is permitted to proceed. He also argued that OPSEU could have applied for a bargaining unit between January 1, 2001 and January 13, 2001 of all employees of St. Clair Township who are not already represented by a trade union. OPSEU chose not to do so.

The Decision

16The central issue in this case is whether OPSEU is able to participate in the PSLRTA process. Is it an interested party? Can it properly intervene in that application? The answer to both question is yes. By virtue of its application for certification filed on December 29, 2000, and the fact that a majority of employees in that bargaining unit indicated their desire to be represented by OPSEU, OPSEU demonstrates a sufficient interest in the proceedings in order to participate in them. OPSEU is entitled to a certificate in relation to Moore Township but it is also entitled to represent its members in the PSLRTA process.

17The Act confers on the Board the power to determine its own practice and procedure. Rule 48 of the Board’s Rules of Procedure provides that the Board “may direct that any person be added or removed as a party or be sent any document, as the Board considers advisable.” The Board has the power to grant standing to intervenors where the Board deems it appropriate. As the Board noted in Great Lakes Forest Products Ltd., [1987] OLRB Rep. Sept. 1136 (at 1138):

The Board has found previously that while certain persons or entities may have a right to standing, the Board retains a discretion to grant standing which extends beyond those circumstances in which a right can be asserted.

I exercise the Board’s discretion to grant OPSEU intervenor status in Board File 2908-00-PS.

18The Board understands that there are other outstanding issues in the application for certification which the parties advised could probably be resolved once this matter was determined. Similarly, the parties advised that the PSLRTA issues could also likely be resolved once this issue was determined. This matter is referred to the Manager of Field Services to appoint an Officer to meet with the parties if they are unable to resolve the outstanding issues. If those matters subsequently are not resolved, any party may ask that either or both applications be listed for hearing.

19The Registrar will list these matters before this panel of the Board if it is practicable to do so.

“Stephen Raymond”

for the Board```