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HomeMy WebLinkAboutBrett 05-03-24 IN THE MATTER OF AN ARBITRATION BETWEEN THE CORPORATION OF THE COUNTY OF HASTINGS (the "Employer") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 496 (the "Union") - and - IN THE MATTER OF A GRIEVANCE OF MS JOAN BRETT (FILE NO. M/Y301992) (the "Grievor") BEFORE: C. Gordon Simmons, Arbitrator APPEARANCES ON BEHALF OF THE EMPLOYER: Mr. Kees Kort, Counsel Mr. Jim Duffin, Director, Human Resources APPEARANCES ON BEHALF OF THE UNION: Mr. Edward Holmes, Counsel Ms Sue Dafoe, President, Local 496 Ms Amee Axler, OPSEU Staff Representative Hearings into this matter were held in Trenton, Ontario on February 13, 2004 and February 16, 2005. -2- When the parties convened on February 13, 2004 extensive discussions were held establishing pertinent facts in relation to this matter. At the conclusion of that day the parties agreed the arbitrator would take the facts, as he understood them, and prepare an interim decision outlining the facts following which the parties would attempt to resolve the matter through further discussions. In the event they were unsuccessful either party could request a further hearing at which time submissions on the facts would be presented. The following is the body of the interim decision released by the arbitrator on March 9,2004: INTERIM DECISION The Corporation of the County of Hastings (the employer) is involved in providing social services to the community. The employer is a municipal corporation having approximately 200 employees who had, for a number of years, the Canadian Union of Public Employees (CUPE) as the certified bargaining agent representing its employees. The Province of Ontario also provided social services to the community and it too had a number of employees. The agency by which it provided its services was the Ontario Provincial Government Housing Authority. It employed approximately 35 employees who were represented by the Ontario Public Service Employees Union (OPSEU). The Province of Ontario decided to download the services it was providing to the municipality. To this end it created a new municipal corporation entitled "Hastings Local Housing Corporation" which came into effect on January 1, 2001. It is agreed that the representation rights of OPSEU did not follow the newly established corporation. The employer continued to provide the services it had in the past and on December 30, 2002 entered into a new collective agreement with CUPE, Local 1665 which had a term lasting until December 31, 2004. There have been a number of prior collective agreements between these parties over the past years. On Ju ne 1, 2001 there is reference on the record (u nion file - Tab 5) that a sale of business took place on June 1,2001 from the Hastings Local Housing Corporation (the new corporation) to the employer. However, on May 23, 2002 OPSEU became certified by the Ontario Labour Relations -3- Board (OLRB) for all employees of Hastings Local Housing Corporation (see union file - Tab 9). But these employees were now employed by the employer whose employees were represented by CUPE and had an existing collective agreement in place. This prompted the employer to apply to the OLRB on July 12, 2002 for several orders including the following (see union file - Tab 5): a) A declaration that a sale of business has occurred from the Hastings County Local Housing Corporation to the Applicant in respect of the employees who are included in the bargaining unit described in the Certificate dated May 23,2002 for whom OPSEU holds bargaining rights. b) An order that the employees who are included in the bargaining unit described in the Certificate dated May 23, 2002, and the employees of the Applicant included in the bargaining unit described in the Collective Agreement between the Applicant and CUPE Local 1665 have been intermingled. c) An order determining that a single bargaining unit shall exist at the Applicant in respect of the employees referred to above, with the following description: ... d) An order determining that CUPE Local 1665 shall be the bargaining agent for the employees in said bargaining unit, or in the alternative, directing a representation vote in order to ascertain the wishes of the employees; e) An order declaring that the Applicant is not required to bargain with OPSEU with a view to making a collective agreement. .. . It will be seen later in this decision that the OLRB ordered a representation vote. Complicating matters was another bargaining unit involving paramedics. Until January 1, 2003 the ambulance service in the community had been operated by Hotel Dieu Hospital, LaSalle Ambulance and Trenton Ambulance. This service was sold to the employer on January 1, 2003. Certain employees of the three previous employers had been members of OPSEU while others had belonged to CUPE. The parties entered into Minutes of Settlement on January 27,2003 agreeing there would be two bargaining units. One would consist of paramedics and the other would consist of "all employees". On February 12, 2003 the OLRB recognized the Minutes of Settlement and ordered a -4- representation vote for March 3, 2003. As a result of that vote the paramedics opted to become members of CUPE, Local 1842 whereas the "all employees" bargaining unit voted to become members of OPSEU. A grievance was filed by the grievor on July 21, 2003. She is a member of OPSEU in the "all employees" bargaining unit. Several other grievances were likewise filed (see union file- Tab 2). The employer responded by stating that because there is no collective agreement currently in force between the employer and OPSEU there is no grievance procedure in existence which therefore prevents any accessibility to arbitration. That is, the employer maintains the grievances are inarbitrable. The union, on the other hand, maintains the grievances are arbitrable. The foregoing are the facts. Submissions relating to these facts are to be made by the parties setting out their respective positions at a subsequent hearing. Subsequently, the parties infonned the arbitrator they had been unable to bring the matter to a resolution and a further hearing was convened on February 16, 2005 at which time the parties made submissions on behalf of their respective clients. The following is the arbitrator's decision based on the facts and submissions presented. Both parties made submissions covering alternate positions. The employer had raised a preliminary objection to the arbitrator's jurisdiction to hear the grievance on its merits so it was called on to proceed fIrst. This decision is concerned only with the objection and does not deal with the merits ofthe grievance. EMPLOYER'S SUBMISSIONS Mr. Kort, counsel for the employer, premised his arguments on the basis that no collective agreement has ever existed between these two parties. That being the case, in his submission, the Minister -5- of Labour lacked jurisdiction to appoint an arbitrator pursuant to sA8( 4) ofthe Ontario Labour Relations Act, 1995. It follows, according to the employer, the arbitrator lacks jurisdiction to consider the grievance on its merits. The employer asserts the only way the union can acquire status as a party to any collective agreement is by operation of s.69 of the Act. If there is a collective agreement in existence between these parties it is the one found in Exhibit 1, Tab 3. That collective agreement states it is between The Corporation of the County of Hastings and Canadian Union of Public Employees and Its Local 1665 which has a tenn beginning April 30, 2002 and expiring on December 31,2004. This is the collective agreement to which the union referred when the employer requested what collective agreement it was relying on in support of processing the Brett grievance. However, OPSEU was never a party to that collective agreement and can make no claims based on that agreement. The employer further asserts ifthis collective agreement is found to be in force between the employer and OPSEU then the union is bound by all its provisions, not just grievance and arbitration, but also the tenn contained in the collective agreement. Accordingly, the employer argues a detennination must be made on what is the fundamental basis and notion or underpinning required for a collective agreement to exist. In other words, what is the status of a collective agreement at law. The employer emphasizes a collective agreement is a creature of statute. In support of its position the employer referred the arbitrator to the following decisions: Bradburn v. Wentworth Arms Hotel Limited [1979] 1 S.c.R 846; Accomodex Franchise Management Inc. [1993] O.LRB. Rep. 281; Communications, Energy and Paperworkers Union of Canada, Local 333 v. Atlantic Packaging Products Ltd. (Slager Grievance) [2003] (RO. MacDowell, arbitrator), O.LAA No. 22; Re Corporation of the County of Middlesex (Strathmere Lodge) and Canadian Auto Workers (2001),96 LAc. (4th) 197 -6- (Lynk); and Re Corning Canada Inc. And United Brewery Workers, Local 304 (1981), 2 LAc. (3d) 67 (Picher). In Accomodex it was stated that if one cannot fmd the legal basis for a binding relationship in the Act it does not exist. The employer argued the union cannot point to any section in theAct that confers any rights contained in the CUPE collective agreement that are conferred on OPSEU That is, there is nothing that says by the operation of the Act the collective agreement between CUPE and the employer becomes the operative collective agreement between the employer and OPSEU Simply stated, s.69 does not assist the union, according to the employer. To repeat the relevant facts, there was the newly created Hastings Local Housing Corporation by the Ontario Government. It is agreed the OPSEU rights did not follow with this new corporation. The new corporation in turn was sold to the employer on June 1, 2001. There is no dispute this sale was within s.69 of the Act. It is further agreed the employees of the employer had CUPE as their bargaining agent which had an existing collective agreement representing its employees at the time of the purchase and sale. On May 23,2002 the OLRB (Ontario Labour Relations Board) certified OPSEU as the bargaining agent for all employees of the new, but now sold, corporation. That was the only relevant sale of business for our purposes. While the OLRB certified the employees ofthe new, but now sold corporation to the employer, on May 23, 2002 the employees ofthe new, now sold corporation, had been employees ofthe employer for approximately one year prior to the certification. OPSEU did not have a collective agreement with the new corporation nor indeed were they employees ofthe new corporation when they received the OLRB's certification. Nevertheless, this certification caused the employer to infonn the OLRB that the employees in the certificate for the new corporation were no longer employees of that corporation but had been -7- intermingled with the employer's employees. The employer sought, inter alia, an order fium the OLRB that CUPE was the bargaining agent for the employees of the employer in the bargaining unit or that the OLRB direct a representation vote. The OLRB directed a representation vote and CUPE lost in that vote. OPSEU won and became the certified bargaining agent of the employer's employees. So, the employer continued in its submission, we know that OPSEU had no collective agreement with the new, sold corporation. We also know that OPSEU had never been a party to any collective agreement with the employer. CUPE lost its bargaining rights for the employees of the employer through the representation vote. The issue, therefore, to be determined is what legal rights, apart fÌom becoming the certified bargaining agent of the employer's employees, moved fÌom CUPE to OPSEU OPSEU says it assumed all of the rights of the CUPE collective agreement including the right to process grievances to arbitration. The employer maintains the only method available to OPSEU to obtain status regarding the CUPE collective agreement is through s.69 oftheAct and the employer submits it did not obtain any rights through s.69 or any other section in the Act. The relevant provisions of s.69 read as follows: Sale of business ~ In this section, "business" includes a part or parts thereof; ("entreprise") "sells" includes leases, transfer and any other manner of disposition, and "sold" and "sale have corresponding meanings. ("vend", "vendu", "vente") Successor employer ill Where an employer is bound by or is a party to a collective agreement with a trade union or council of trade unions sells his, her or its business, the person to whom the business has been sold is, until the Board otherwise declares, bound by the collective agreement as if the person had been a party thereto and, where an employer sells his, her or its business while an -8- application for certification or termination of bargaining rights to which the employer is a party is before the Board, the person to whom the business has been sold is, until the Board otherwise declares, the employer for the purposes of the application as if the person were named as the employer in the application. Same ill Where an employer on behalf of whose employees a trade union or council of trade unions, as the case may be, has been certified as bargaining agent or has given or is entitled to give notice under section 16 or 59, sells his, her or its business, the trade union, or council of trade unions continues, until the Board otherwise declares, to be the bargaining agent for the employees of the person to whom the business was sold in the like bargaining unit in that business, and the trade union or council of trade unions is entitled to give to the person to whom the business was sold a written notice of its desire to bargain with a view to making a collective agreement or the renewal, with or without modifications, of the agreement then in operation and such notice has the same effect as a notice under section 16 or 59, as the case reqUIres. Powers of Board íÐ. Where a business was sold to a person and a trade union or council of trade unions was the bargaining agent of any of the employees in such business or a trade union or council of trade unions is the bargaining agent of the employees in any business carried on by the person to whom the business was sold, and, (a) any question arises as to what constitutes the like bargaining unit referred to in subsection (3); or (b) any person, trade union or council of trade unions claims that, by virtue of the operation of subsection (2) or (3), a conflict exists between the bargaining rights of the trade union or council of trade unions that represented the employees of the predecessor employer and the trade union or council of trade unions that represents the employees of the person to whom the business was sold, the Board may, upon the application of any person, trade union or council of trade unions concerned, (c) define the composition of the like bargaining unit referred to in subsection (3) with such modification, if any, as the Board considers necessary; and (d) amend, to such extent as the Board considers necessary, any bargaining unit in any certificate issued to any trade union or any bargaining unit defined in any collective agreement. Same ill The Board may, upon the application of any person, trade union or council of trade unions concerned, made within 60 days after the successor employer referred to in subsection (2) becomes bound by the collective agreement, or within 60 days after the trade union or council of trade unions has given a notice under subsection (3), terminate the bargaining rights of the trade union or council of trade unions bound by the collective agreement or that has -9- given notice, as the case may be, if, in the opinion of the Board, the person to whom the business was sold has changed its character so that it is substantially different from the business of the predecessor employer. Same @ Despite subsections (2) and (3), where a business was sold to person who carries on one or more other businesses and a trade union or council of trade unions is the bargaining agent of the employees in any of the businesses and the person intermingles the employees of one of the businesses with those of another of the businesses, the Board may, upon the application of any person, trade union or council of trade unions concerned, (a) declare that the person to whom the business was sold is no longer bound by the collective agreement referred to in subsection (2); (b) determine whether the employees concerned constitute one or more appropriate bargaining units; (c) declare which trade union, trade unions or council of trade unions, if any, shall be the bargaining agent or agents for the employees in the unit or units; and (d) amend, to such extent as the Board considers necessary, any certificate issued to any trade union or council of trade unions or any bargaining unit defined in any collective agreement. Notice to bargain ill Where a trade union or council of trade unions is declared to be the bargaining agent under subsection (6) and it is not already bound by a collective agreement with the successor employer with respect to the employees for whom it is declared to be the bargaining agent, it is entitled to give to the employer a written notice of its desire to bargain with a view to making a collective agreement, and the notice has the same effect as a notice under section 14. Powers of Board before disposing of application ill Before disposing of any application under this section, the Board may make such inquiry, may require the production of such evidence and the doing of such things, or may hold such representation votes, as it considers appropriate. Section 69(2) applies to a selling employer who is bound by a collective agreement. That section does not apply in our case because the selling corporation was not bound by any collective agreement with OPSEU Section 69(3) entitles a bargaining agent to give notice to bargain. The employer argues this subsection is interesting in that it provides a conundrum for the union. If the arbitrator fmds a collective -10 - agreement exists then the tenus ofthat collective agreement (the only one the union lays claim to) does not expire until December 31, 2004. That being the case, if the arbitrator so fmds, then notice to bargain in May 2003 was premature. If it is found OPSEU stands in the shoes ofthe CUPE collective agreement then it is bound by all of its tenus and conditions which would prohibit the union fÌom serving notice to bargain until October 2004. Section 69(4) relates to OLRB's powers and is not relevant to the issue to be determined in the instant situation. Section 69(5) is also not relevant for our purposes. Section 69(6) again is not applicable as there was no collective agreement before the vendor (the new, sold corporation) and OPSEU While there may be some assertion by the union that what occurred here was a displacement issue, s.66( 4) on its face discusses displacement situations. This section reads: Declaration to terminate agreement íÐ. Upon the Board making a declaration under subsection (I), the trade union forthwith ceases to represent the employees in the defined bargaining unit in the recognition agreement or collective agreement and any collective agreement in operation between the trade union and the employer ceases to operate forthwith in respect of the employees affected by the application. The employer asserts that s.66( 4) requires a "declaration" by the OLRB. While there was no "declaration" by the OLRB in the instant situation naming OPSEU as the bargaining agent displacing CUPE, the cases are instructive as to what happens when a declaration is issued. Once displaced, a union relinquishes all its rights - 11 - including the prior rights it held respecting the processing of grievances to arbitration (see Middlesex and Corning, supra). Therefore, according to the employer, there being no statutory provision which stipulates the collective agreement survives when CUPE lost its bargaining rights and places OPSEU in CUPE's shoes that tenninates the existence of that collective agreement. In further support of its position the employer pointed to the methodology used by the parties in approaching this issue. On May 1,2003 Mr. M.B. Campbell, union representative, wrote to Mr. JrnDuffin, director of human resources, the following letter, in part (ex. 4): Dear Mr. Duffin: Re: NOTICE TO BARGAIN, OPSEU LOCAL 496 FIRST COLLECTIVE AGREEMENT Please be advised that I am the representative of the official bargaining agent, the ONTARIO PUBLIC SERVICE EMPLOYEES UNION, recently certified by the Ontario Labour Relations Board to represent your employees. It is obligatory that we notify you of our intent to meet and negotiate an initial Collective Agreement. Please accept this letter as formal notice, in accordance with the Ontario Labour Relations Act, of OPSEU's desire to begin negotiations for an initial Collective Agreement, covering all aspects of the working relationship between the parties. ... The employer infonned the arbitrator it is important to remember the Act sets out certain statutory requirements when giving notice to bargain. It differentiates between notice to bargain for a fIrst collective agreement (s.16) and that of a renewal (s.59). Further, the Act provides for binding arbitration for fIrSt collective agreement (sA3) but not for renewals. Other differences apply in ratification and strike votes (s.79) as well as for fÌeeze provisions (s.86). -12 - Representatives for the union, in the instant situation, are seasoned and experienced negotiators. If the union seriously believed that, as a matter oflaw, it was a party to a collective agreement then why did it serve notice to bargain and waste 17 days negotiating a collective agreement that was already in existence and had a tenn of two years? The employer argues the experienced union negotiators knew what they were doing. It was not until the union was confÌonted with the employer's objection to the arbitrability ofMs Brett's grievance did it alter grounds and attempt to lay claim to the CUPE collective agreement. The Minister of Labour had no jurisdiction to appoint an arbitrator under sA8( 4) ofthe Act and the arbitrator has no jurisdiction to entertain this matter on its merits. UNION SUBMISSIONS The union asserts the arbitrator does have the jurisdiction to hear the grievance on its merits. It advances three grounds in support of its position. The fIrst ground is by application of the sale ofbusiness under s.69(1)( 4) ofthe Ontario Labour Relations Act, 1995 and the Public Sector Labour Relations Transition Act, 1997. The second is by application of the fÌeeze provisions contained in the Labour Relations Act. This is accomplished by connecting s.69( 6) to s.86 of the A ct. Third, and in the alternative, if it is found a collective agreement negotiated by CUPE continues to run, and if OPSEU cannot stand in CUPE's shoes as a party to the collective agreement, the jurisprudence supports the view that an assignment of the rights can be granted by CUPE to OPSEU thereby enabling OPSEU to enforce the collective agreement. This assignment can be obtained by OPSEU fÌom CUPE through the fonner CUPE members who are now members of OPSEU -13 - It is agreed there had been a sale of business which the employer had not fully conceded until this hearing. Therefore, counsel did not pursue the sale of business aspect of his argument in any detail. The union argues the CUPE collective agreement continues to operate and once OPSEU served notice to bargain then s.86, the fÌeeze provision in the Act, applied. The relevant portions of s.86 read as follows: Working conditions may not be altered ~ Where notice has been given under section 16 or section 59 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees, (a) until the Minister has appointed a conciliation officer or a mediator under this Act, and, (i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or (ii) 14 days have elapsed after the Minister has released to the parties a notice that he or she does not «msider it advisable to appoint a conciliation board, as the case may be; or (b) until the right of the trade union to represent the employees has been terminated, whichever occurs first. Same ill Where a trade union has applied for certification and notice thereofftom the Board has been received by the employer, the employer shall not, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer or the employees until, (a) the trade union has given notice under section 16, in which case subsection (I) applies; or (b) the application for certification by the trade union is dismissed or terminated by the Board or withdrawn by the trade union. -14 - The union basis much of its argument that the CUPE collective agreement continued to operate on the evidence of Mr. Jim Duffm, director of human resources for the past 26 years. Mr. Duffin was called to testifY on behalf of the employer. He has been responsible for the negotiation and administration of the various collective agreements on behalf of the employer over the 26 years. Mr. Duffm testified the union served notice to bargain for a collective agreement on May 1,2003. There were between 15/16 meetings between the parties. Mr. Martin Sarra was the union's chief spokesperson. Mr. Duffm testified he was under the impression the negotiations had been for a fIrst collective agreement. However, he testified he learned on the fIrst day of these proceedings ofF ebruary 13, 2004 that the union regarded the negotiations were for a renewal collective agreement. Then, on March 30, 2004 the fIrst day of negotiations following the February 13 hearing, the union asserted it was seeking a renewal collective agreement. However, during cross-examination Mr. Duffm testified he had been aware by September 15,2003 that the union was relying on the CUPE collective agreement and that Mr. Sarra had infonned Mr. Duffm several times that the union was claiming a fÌeeze period and that the CUPE collective agreement applied. Mr. Duffin agreed in cross-examination that he understood OPSEU was claiming a freeze period to be in effect and was further claiming the CUPE collective agreement applied and was binding on the parties. However, Mr. Holmes, fairly and quite properly in my view, said to Mr. Duffm that he (Mr. Duffm) was saying in response to Mr. Sarra that OPSEU could not rely on the CUPE collective agreement and hence the dispute that is in issue here. Meanwhile, the parties continued to negotiate for a "new" (to use a neutral tenn) collective agreement. Mr. Duffin also stated that the issue of whether it was a fIrst or renewal collective agreement never came up until the March 30, 2004 negotiation meeting. -15 - The union argues that s.86 creates the fÌeeze. Mr. Duffm was aware by mid- September 2003 that Mr. Sarra, for the union, was claiming a fÌeeze of the tenus and working conditions in place at the time. The issue then becomes what were those tenus and conditions? In order to answer this question it is necessary to turn to s.69 of the Act. The union asserts the tenus and conditions included all the tenus and conditions enumerated in the CUPE collective agreement because that collective agreement continued in effect and was binding on the employer and its employees who are members of OPSEU While the employer referred the arbitrator to s.69(2) and (3), the union asserts s.69(6) is particularly relevant. It stipulates that despite ss.(2) and (3) where a business is sold to a person and that person intenningles the employees the OLRB may, upon the application ofthe person declare the person is no longer bound by the collective agreement in ss.(2). There was no application to the OLRB for any such declaration. The employer applied to the OLRB for what essentially turned out to be a representation vote which the OLRB ordered whereby OPSEU became the bargaining agent for the employees. Essentially, therefore, the OLRB turned its mind to s.69(6)(b) and (c). What the OLRB did not do nor was it asked to do was render a declaration pursuant to s. 69(6)( a) that the person to whom the business was sold was no longer bound by the collective agreement referred to in ss.(2). This means, according to the union, the CUPE collective agreement that had been in force between CUPE and the employer continued to be in force because the OLRB did not "kill it" (to use counsel's words) because it was not asked to "kill it." -16 - Thus the question asked today is, did the collective agreement between CUPE and the employer continue to apply? According to the union's reasoning, if the OLRB did not "kill it" it has to continue to apply. The union relies on a number of OLRB decisions in support of its position. The OLRB has looked at similar situations in the past, albeit not precisely on point. The union has been unable to locate an OLRB decision where it has been asked the precise question that is being asked in the instant situation. That is what happens when the winning union in a representation vote does not have a collective agreement with the purchasing employer. However, there are a number of cases where the winning union did have an existing collective agreement and the OLRB's reasoning in continuing the collective agreement in those instances is instructive and, according to the union, lends support to its position that the same result should pertain in the instant situation. Cases relied on by the union are: Bermay Corporation Limited, 2164- 78- R; February 8, 1980; West Parry Sound Health Centre, 0058-97-R; August 22, 1997 [1998] OLRB 1665; Beachville Lime Limited, 0359-00-R; [2000] OLRB Rep. 1099 NovemberlDecember;Mental Health Services- Hastings Prince Edward Corporation, Applicant v. Canadian Union of Public Employees and its Local 3314.2, 3268-02-R; October 9, 2003; Accomodex Franchise Management Inc. [1993]OLRB Rep. 281; Re Can Can Food & Vending Services Ltd. And Retail Wholesale Canada-Division of CA. w., Local 414 (2001), 96 LAc. (4th) 80 (Drljenica); and Re Kensington Village and Service Employees' International Union, Local 22 O/Can adian Auto Workers (2002),106 LAc. (4th) 14 (Rayner). -17 - The union asserts the OLRB has traditionally approached its role in interpreting the labour relations legislation with a two- fold purpose. That is, to preserve bargaining rights and to preserve collective agreements. This view was expressed in Bermay at para. 24: Given the overriding purpose of section 55* to preserve collective agreements, undue weight should not be given to the fact that the transferred employees had no input into the negotiation of the collective agreement. In that regard they are no different than employees who are all newly hired after the transfer of a business with a collective agreement situation in which the Board has no discretion to terminate the union's contract. [*Section 55 is the predecessor to s.69.] Further, in para. 26 the OLRB makes the following comment: The jurisdiction to terminate a collective agreement is an extraordinary power, and the Board's discretion under section 55(6)(a) of the Act must therefore be exercised thoughtfully and with restraint. Other sections in the Act which give that power to the Board do so in specific language (see e.g. ss. 48(1), 49(6), 50 and 52(4) of the Act). The only part of section 55 which specifically empowers the Board to declare that a collective agreements no longer binding on a successor employer is subsection 6(a). Accordingly, because the OLRB did not tenninate (kill) the CUPE collective agreement it continues to operate. In the Parry Sound case two separate employers merged into one. The parties had agreed on a number of issues such as, there were to be two bargaining units. One bargaining unit was to consist of clerical workers and the other to consist of service workers. The parties were unable to agree on which one of the two collective agreements were to apply to the new situation. At para. 31 to OLRB wrote: Section 69(6) is the subsection which refers to intermingling and it is therefore in that subsection that the Board's powers in this situation are found. Taken together, they allow the Board to do the following. Prior to the vote the Board can make a determination under section 69(b) that the employees constitute one or more appropriate bargaining units. -18 - It can then order a vote of those employees under section 69(8). After the vote it can declare which trade union shall be the bargaining agent of the employees in the unit under subsection (c). That is as far as the Board has generally gone in such cases. Here the Board has been asked to go further and it finds that subsequent to the vote it has the power to declare that the hospital is no longer bound by the collective agreement of the losing trade union under section 69(a). The OLRB continued at para. 38 as follows: The Board therefore finds that under the scheme of section 69 of the Act it is anticipated that the collective agreement of the union which is successful in a representation vote between two unions will apply to the entire bargaining unit. The union submits the fact OPSEU had no collective agreement when it became the successor trade union does not alter nor override the purpose of s.69 to preserve bargaining unit rights and to preserve collective agreement rights. If the arbitrator was to fmd otherwise he would be recognizing only one ofthe two purposes enunciated by the OLRB. Accordingly, the union urges that because of the sale of a business which made s.69 operative then the CUPE collective agreement continues to run and OPSEU and the employer continue to operate under it. In the alternative, the evidence of Mr. Duffm and the language of s.86 imposing a fÌeeze capture the collective agreement rights, duties, and privileges including the right to file grievances and proceed to arbitration. There had been no action taken by the OLRB to kill the CUPE collective agreement so it is an instrument that continues to be alive. In the further alternative, if it is found the CUPE collective agreement continues to live but OPSEU does not possess an independent right through s.69 to enforce it then for those members falling under the CUPE collective agreement who are now OPSEU members can stand in the shoes of the fonner CUPE members and can assign CUPE rights to OPSEU -19 - EMPLOYER'S SUBMISSIONS IN REPLY The employer submits that until it is provided with the fonn and nature of any assignments suggested by the union in its last alternative argument, the employer will await further comment until the union attempts to enforce it. In each case cited by the union the OLRB was faced with preserving a collective agreement. So when one discusses the purpose it makes sense as the OLRB was directing its attention to preserving an existing collective agreement to which the union had been a party. That is not the situation we have before us. The union's argument regarding the OLRB not declaring (killing) the collective agreement at an end is answered by the fact there was never a collective agreement in existence to declare (kill) to be at an end because none had existed in the fIrst place. Section 69 is not silent over what is to happen in our type of situation. That section sets out a procedure to be followed when an eventuality such as has occurred here happens. Section 69(7) stipulates where a trade union is declared to be a bargaining agent under ss.( 6) and is not already bound by a collective agreement with the successor employer, it is entitled to give the employer notice to bargain. Furthennore, there was no necessity to ask the OLRB to "kill" the collective agreement because when CUPE lost the vote it lost its representation rights and the collective agreement that represented what rights it had previously possessed. The collective agreement simply discontinued to have an existence. One of the signing parties had disappeared fÌom the scene. So too did all of the agreements it had negotiated and signed with the employer ceased to exist. There was nothing for the OLRB to do in order to allow OPSEU -20- to exercise its rights under s.69. The OLRB made whatever relevant and appropriate aders and declarations that were necessary for the smooth operation oflabour relations contained in the A ct. OPSEU followed the procedures outlined in s.69. It served notice for a fIrst collective agreement pursuant to s.69(7). This is evidenced in its captioned letter dated May 1,2003 where it specifically states it is serving notice for a fIrst collective agreement. Once notice had been given the fÌeeze section applied to all of the tenus and conditions of employment that were then in existence. Other indices of the union's acceptance of this being a first collective agreement are also present. On November 18, 2003 the employer requested the appointment of a conciliation officer (ex. 20). In doing so it stipulated on the application fonn that this was a fIrSt collective agreement, certification having been granted on March 28, 2003. The employer also stipulated that notice to bargain had been given and that no collective agreement was in effect. The union never objected to this categorization of the negotiations by the employer. A conciliation officer was appointed (ex. 22). So the employer repeats its position that there being no collective agreement in existence when the Minister purported to appoint an arbitrator pursuant to sA8 of the Act he lacked jurisdiction to do so and the arbitrator's appointment was and is a nullity. It follows the arbitrator lacks jurisdiction to hear the grievance on its merits and requests the matter be dismissed for lack of jurisdiction. DECISION Being a student oflabour relations one becomes somewhat familiar with the toing and fÌoing that has persisted over the years between the struggle by trade unions to gain an ever increasing role in regulating - 21 - what is to transpire in the workplace and the resistance, generally speaking, by employers who consider trade unions' demands to be excessive. This toing and fÌoing has resulted in the passage of elaborate labour relations statutes and regulations by various governing bodies in attempts to regulate the interactions between the parties with a view to maintaining industrial peace with the least possible disruption in productivity for the overall enhancement of the economy. The employer has emphasized the point that collective agreements are a creature of statute. Generally speaking this is true. The collective agreement has traditionally been afforded great prominence by operation of the labour relations statutes as interpreted by labour relations boards which in turn have been supported and reinforced by the courts. This is evidenced in Ontario by the Ontario Labour Relations Act, 1995 and particularly s.69 which addresses situations we find being addressed here. It appears to this arbitrator that one must look to the Act to ascertain whether the CUPE collective agreement can somehow be adopted by OPSEU in order to allow Ms Brett's grievance to proceed to arbitration on its merits. In approaching this issue it appears to the arbitrator that a logical beginning would be s.86 which is the fÌeeze provision in the Act. There is no dispute between the parties that upon serving notice on the employer by the union to bargain on May 1, 2003, s.86 became operative. The employer was bound by s.86 not to change certain tenus and conditions of employment. The section also places certain restrictions on the trade union. Of course this does not assist one very far. It simply begs the question, what were those tenus and conditions of employment. We know the union asserts the tenus and conditions include all of those tenus and conditions that are contained in the CUPE collective agreement including the grievance and -22 - arbitration provisions. The employer claims there was no collective agreement in force between these parties upon which the union can rely and, therefore, there were no grievance and arbitration provisions that fall within Ms Brett's tenus and conditions of employment. Section 86 standing alone does not take us very far in our enquiry. However, the union maintains that s.86, along with Mr. Duffm's testimony, changes matters. Mr. Duffin was aware during negotiations that the union was claiming that the employees were considered by the union to be covered by the tenus and conditions of the CUPE collective agreement. However, Mr. Duffm's evidence is clear that he was not acceding to the union's claim. In this arbitrator's respectful opinion it is immaterial what Messrs. Duffin and Sarra may have been contemplating during their negotiations. Assume one accepts Mr. Duffm's evidence at its highest in favour of the union's position, it does not, in the arbitrator's respectful opinion, advance the union's claim in respect to s.86 to the extent it wishes the arbitrator to go in encompassing the grievance and arbitration provisions in the fÌeeze aspects ofMs Brett's tenus and conditions of employment. There are at least two reasons for this view. One, Mr. Duffm's evidence must be considered neutral. That is, while he admits Mr. Sarra was claiming the tenus and conditions ofthe CUPE collective agreement covered the OPSEU members he was communicating to Mr. Sarra that he did not agree with Mr. Sarra. This evidence cannot, in this arbitrator's view, support any acquiescence by Mr. Duffm to Mr. Sarra's claim. Two, even if this evidence was advanced for the purpose of acquiescence or waiver, which it was not, it could not assist the union unless it was ultimately detennined that the collective agreement did continue to exist after CUPE left the scene. Either the CUPE collective agreement continued to exist or it did not. If it did not, then that concludes the inquiry. The arbitrator would be left with no jurisdiction to proceed further. -23- Thus the matter requires a return to s.69 for further assistance. The employer maintains the CUPE collective agreement died a natural death when OPSEU gained the right b represent the employer's employees. The union disagrees. The union maintains that in order for the CUPE collective agreement not to have continued required some positive action by the OLRB by means of a declaration to that effect. Section 69(2) directs attention to what is to happen when an employer who is bound by a collective agreement sells his business to a person who buys the business. The buyer is bound by the collective agreement that existed between the vendor and the union until the OLRB declares otherwise. That section is not applicable in the instant situation because OPSEU did not have a collective agreement with the vendor at the time of sale. Section 69(3) directs attention to a situation where a trade union does not have a collective agreement with the vendor but is in the position to or has served notice on the vendor to bargain then the trade union likewise is entitled to give notice to the person to whom the business was sold until the OLRB declares otherwise. This section does not apply because it is acknowledged OPSEU never had served notice on the vendor corporation to bargain under either s.16 or s.59. Section 69(4) provides the OLRB with various powers to address questions that may arise out of happenings within ss.2 and 3. However, ss. 2 and 3 do not apply to the instant situations for reasons already referred to. Both parties devoted considerable discussion to s.69(6). That section begins by stating "Despite subsections (2) and (3)..." certain happenings may occur. When the OLRB certified OPSEU as a bargaining agent for all the employees of the sold corporation by certificate dated May 23, 2002 the employer gave notice to the OLRB that it was the employer of the employees in question. The notice the -24- employer provided to the OLRB has been produced above in the interim decision set out at the beginning of this decision which related to the facts but is worth repeating here: a) A declaration that a sale of business has occurred from the Hastings County Local Housing Corporation to the Ap plicant in respect of the employees who are included in the bargaining unit described in the Certificate dated May 23,2002 for whom OPSEU holds bargaining rights. b) An order that the employees who are included in the bargaining unit described in the Certificate dated May 23,2002, and the employees of the Applicant included in the bargaining unit described in the Collective Agreement between the Applicant and CUPE Local 1665 have been intermingled. c) An order determining that a single bargaining unit shall exist at the Applicant in respect of the employees referred to above, with the following description:... d) An order determining that CUPE Local 1665 shall be the bargaining agent for the employees in said bargaining unit, or in the alternative, directing a representation vote in order to ascertain the wishes of the employees; e) An order declaring that the Applicant is not required to bargain with OPSEU with a view to making a collective agreement. .. . The OLRB, pursuant to its powers contained in s.69(8), ordered a representation vote. OPSEU won and CUPE lost. The OLRB then declared OPSEU to be the certified bargaining agent for the employer's employees. OPSEU served written notice on the employer to bargain by letter dated May 1,2003. In the arbitrator's view, this was the proper course for it to pursue. Section 69(7) expressly provides where a trade union is declared bargaining agent under ss.(6) and is not already bound by a collective agreement with the successor employer with respect to the employees for whom it is declared to be the bargaining agent, it is entitled to give the employer a written notice of its desire to bargain with a view to making a -25- collective agreement. This is precisely what OPSEU did. It gave written notice on May 1,2003 which, as reproduced above, is captioned "NOTICE TO BARGAIN, OPSEU LOCAL 496 - FIRST COLLECTIVE AGREEMENT". The arbitrator agrees with the employer's position. The OLRB did all that was required of it. It was not required to do more than to declare and certifY OPSEU to be the bargaining agent of the employees for the employer. Once that function had been perfonned the OLRB' s role ended. Section 69(7) directed what the parties were to do next. The union followed s.69(7) and gave its written notice to 1he employer to bargain. The collective agreement that had existed between the employer and CUPE ceased to exist upon the certification of OPSEU as a rightful bargaining agent of the employees fonnerly represented by CUPE. OPSEU embarked on negotiating a fIrst collective agreement with the employer. There was no collective agreement in existence at the time upon which Ms Brett could base her grievance. Accordingly, the arbitrator is without jurisdiction to hear the grievance on its merits. Dated at Kingston, Ontario, this 24th day of March, 2005. M~e4 c. Gordon Simmons Arbitrator