Case Name
Ontario Public Service Employees Union v. Art Gallery of Ontario, 2011 CanLII 25215 (ON LRB)
Date of Decision
May 05, 2011.
Adjudicator(s)
Patrick Kelly, Vice-Chair, and Board Members P. LeMay and S. McManus.
Facts
- [1] The Art Gallery of Ontario (AGO) is an influential art and education center in Ontario that provides public services. The AGO hires full-time and part-time employees from the local union community, the Ontario Public Service Employees Union (OPSEU), to keep it running. This court case deals with workers in the second category, of which there were about 150 at the time of the hearing (Ontario Labour Relations Board, 2011).
- [2] Since OPSEU is the de facto representative of employees, any organizational changes at the AGO must be known in advance to OPSEU, including restructuring, expansion, layoffs, or additional hiring. Timely notice is part of the employment agreement between the parties and allows OPSEU to implement corporate policies.
- [3] There are collective bargaining agreements between the AGO and OPSEU that have a limited duration, namely four years. At the end of one Agreement, with the consent of both parties, a new agreement is concluded to satisfy the interests of both OPSEU and AGO. The latter Agreement expired on November 30, 2009, by the time of this court case.
- [4] In entering into the new collective bargaining agreement, OPSEU specifically asked the AGO to notify of any impending organizational changes, to which the AGO representative responded. In particular, AGO plans to open an Education Center in the near future, but the details of this project are unknown.
- [5] The expired collective bargaining agreement was not renewed in a timely manner due to disagreements during the strategic planning stage. Nevertheless, the AGO sent a proposal to OPSEU to create a new Letter of Understanding. This Letter outlined new facts about the layoff of part-time employees due to the construction of the Education Center.
- [6] As a result, OPSEU went to court to resolve the issue of bad faith bargaining within the confines of the law. The main complaints lay along three vectors. First, the AGO acted in bad faith by firing employees while the details of the new Collective Bargaining Agreement were being negotiated. Second, the expedited firing procedure was unlawfully motivated. Third, the AGO interfered with OPSEU’s organizational practices by such a decision.
- [7] AGO’s lawyers expressed dissatisfaction with the lawsuit and asked the Board not to consider the case for lack of merit.
Issues
- [1] Was it lawful in AGO’s case to conduct the accelerated termination of employees as an act of hostile motivation?
- [2] Was there bad faith bargaining on the part of AGO, and should that be punished?
- [3] Did the case at hand have a similar scenario with the cases of (i) Service Employees International Union Local 204, [1995] OLRD. No. 5443, (ii) Brant Haldimand-Norfolk Catholic District School Board, [2001] OLRB Rep. March/April, (iii) Construction Labour Relations Assn. of Ontario
- and in that case, can the findings of that case be approximated to the conflict at hand?
- [4] Should the Board grant the motion to dismiss at the request of the AGO?
- [5] Does OPSEU have a prima facie case of a violation of Act 17?
Decision
The Board of the Court, with the head in Patrick Kelly, consistently resolved the issues of the meeting. First, the unfair bargaining portion of the complaint was dismissed due to the inappropriateness of such a charge and the high financial and time costs of similar proceedings. Second, AGO’s fast-track dismissal procedure was a violation of the employment agreement with OPSEU. Third, the court asked lawyers on both sides to develop further defense and prosecution strategies, but as early as October 27, 2011, it became known that Appellant, represented by OPSEU, had unilaterally withdrawn the lawsuit without stating a reason.
Rationale
Guided by the findings in Service Employees International Union Local 204, [1995] No. 5443, but recognizing its little applicability to the current investigation, the Board used Section 96(4) to deny the AGO motion. At the same time, the court cited a Section 46 excerpt from Brant Haldimand-Norfolk Catholic District School Board, [2001] OLRB Rep. March/April, according to which labor disputes where the parties were able to reach a collective bargaining agreement on their own are not of high value for judicial review. Furthermore, based on the Construction Labour Relations Assn. of Ontario, the court postulated that the problem of bad faith bargaining was not paramount in the current proceeding and, therefore, because of the high cost of finances and time, would not result in an effective outcome. Therefore, there was no point in considering whether there was evidence of a violation of law 17. Finally, the expedited dismissal procedure was characterized as a violation of the employment agreement and Act 70.
Summary
AGO and OPSEU are partners in corporate matters because OPSEU’s union body provides AGO with employees under a contract of employment. Consequently, OPSEU has a strong interest in any organizational changes that may occur in AGO’s policies. Most likely, back in 2008 (according to the AGO), the AGO expressed to OPSEU a plan to build an Education Centre, which would be a new public space for Ontarians and visitors. The project required about $20 million in public funding, so it could not begin until the amount was raised. There are four-year collective bargaining agreements between the AGO and OPSEU that summarize the interests of both parties and develop cooperation during the reporting period. By the time of trial, the last of these collective bargaining agreements had expired on November 30, 2009. As early as September 10 (11 weeks before expiration) 2009, OPSEU invited the AGO to discuss the terms of the new Agreement. Particular emphasis was placed on the need to notify the AGO of any changes in organizational practices well in advance so that OPSEU could take appropriate action. Among others, during the negotiations, the AGO again raised the issue of the construction of the Education Center, which meant some organizational changes in personnel management for the OPSEU union.
There were disagreements between the parties to the collective bargaining agreement due to the AGO’s delay in concluding the Agreement. In addition, during the review of the new clauses, it became known that AGO had received a second round of state funding, which meant that the construction of the Education Center would be initiated more quickly. On March 10, 2010, AGO notified OPSEU of the imminent layoffs of employees, providing a layoff plan by date and number. According to the plan, the first ten employees out of 39 were to be laid off on April 1. As postulated in the previous collective bargaining agreement, AGO began developing an alternative layoff program.
The prosecution argued that the procedure for such layoffs during the review of the new Collective Bargaining Agreement was not in good faith and asked that the layoffs be postponed. In response, AGO, for reasons unknown, implemented an accelerated layoff practice in which, instead of 10 employees, 26 were to be laid off on April 1. This, in turn, led to a lawsuit against AGO on behalf of OPSEU. According to the union representatives, AGO acted in bad faith by introducing the layoffs during the discussion of the new Collective Bargaining Agreement. At the same time, by instituting the accelerated layoff procedure, AGO demonstrated unlawful motivation and unreasonable hostility in response to OPSEU’s request to delay layoffs. Such offenses, according to OPSEU, are governed by Act 86(1) and Section 70. Finally, OPSEU views expedited layoffs as interference with a union body’s corporate governance, which is a violation of section 70 of the Act and section 72.
Although the union and the employer eventually reached a new Collective Bargaining Agreement, in the opinion of the court, this does not solve the problem. In fact, OPSEU should be protected from repeated acts of breach of the labor agreement. On the facts of the case, the Judicial Council reached several conclusions. First, the AGO’s request for dismissal for failure to state a claim is not granted. Second, the claim of bad faith bargaining cannot be granted for lack of merit in the claim and insufficient evidentiary basis. Finally, the fast-track dismissal procedure must be considered a violation of the Collective Bargaining Agreement and interference with the organizational management of the union, so lawyers for both parties were asked to prepare the appropriate materials for this case. However, a few months later, it became known that the prosecution had withdrawn the lawsuit without explanation (Ontario Labour Relations Board, 2011).
References
Ontario Labour Relations Board. (2011). 3975-09-U Ontario Public Service Employees Union, Applicant v. Art Gallery of Ontario, Responding Party [PDF document]. Web.
Ontario Labour Relations Board. (2011). 3975-09-U Ontario Public Service Employees Union, Applicant v. Art Gallery of Ontario, Responding Party [PDF document]. Web.