Tuesday 14 October 2014

Saskatoon Transit: When is An Application "Pending"?

I've been following the Tweets from reporters at the LRB for most of today, thereby ensuring that I'll probably be working on class prep until midnight or so. Oh well. There's a bewildering flurry of arguments, legal points, and evidence from today - the extent of damages and/or backpay that should be ordered; whether the ATU had in fact agreed to changes to the pension plan; whether it mattered that the outstanding ULP was irrelevant to the lockout; and so on. I'm not going to attempt to sort through all that.

There is, however, one point I want to address: When is an application "pending"?

As I mentioned previously, s. 6-62(1)(l) of The Saskatchewan Employment Act makes it an Unfair Labour Practice for a Union to strike, or an Employer to lock out, while "any application is pending" before the Labour Relations Board.

I had assumed that it wasn't an issue whether an application was pending in this case. The ULP regarding the discipline of a bus driver was filed in April; I had assumed it had already gone to its full hearing and that the parties were just waiting for a decision. But looks like I was wrong.

(Article on the disciplinary hearing here. Note that it appears that the bus driver who had been disciplined did not present his testimony to the Board until the same day as the Order - October 3.)

If a hearing had commenced, there'd be no question that it was "pending", by virtue of s. 6-111(2)(a):

(2) For the purposes of this Part:
(a) An application is deemed to be pending before the board on and after the day on which it is first considered by the board at a formally constituted meeting until the day on which the decision of the board is made....

Now, note, that's deemed to be pending. That doesn't mean that's the only time an application is "pending". But if a hearing has commenced, that's guaranteed to be a "formally constituted meeting" so the "deemed" bit kicks in.

Why is this important? Well, imagine my surprise on Twitter today:

[Patricia Warwick is counsel for the City.]

Wait, what? Well, as mentioned above, the formal full hearing of the disciplinary ULP maybe wasn't held until October 3rd. Okay, on the face of it, that doesn't look good for the Union's position.  On the other hand:

[...and Gary Bainbridge is counsel for ATU.]

ATU counsel is of course correct - s. 6-111(2)(a) isn't exhaustive, and just because a hearing on the merits of a case wasn't convened doesn't mean that an application can't be pending. Further, if 6-111(2)(a) was meant to mean just "once a hearing has commenced", it would have been easy enough for the Legislature to have said so.

So, for instance, where a preliminary objection had been heard, but the full hearing had not commenced, that application was nonetheless found to be "pending". (R.W.D.S.U. v. Canadian Linen Supply Co. Ltd., LRB File No. 150-89.) Where an application for rescission/decertification was before the Board and the Board had ordered a vote, that application was "pending" until the final decision - an application remains pending until either granted or dismissed. (Re Beautiful Plains Villa, LRB File No. 221-88.)

I don't know if there have been any preliminary applications or objections before the Board on the disciplinary ULP, though it's unusual for an ULP - especially a disciplinary one - to remain "on the books" for some five months without getting to hearing. I suspect there has been at least some Board involvement with the file prior to October 3rd.

But it seems clear that a matter can be "pending" even if the main hearing on the merits has not begun. What's important - as Mr. Bainbridge argued - is that the Board has "considered" the matter (which would bring the application under 6-111(2)(a) - though, again, it's possible for a matter to be "pending" even if s. 6-111(2)(a) doesn't apply). And "considered" is a broad term. It probably doesn't mean that an application has simply been filed, because that could lead to all manner of abuses (with frivolous applications being brought purely to frustrate a strike or lockout). But it also doesn't mean, as the City seems to suggest, that a full hearing must have been convened.

Anyway, long story short, the question of what is "pending" is squarely before the Board. These latest updates haven't really changed my opinion of the matter - I still think the Union has a decent shot here - but much will depend on the specifics of the disciplinary ULP.

It's been a frustrating experience to be on the outside looking in, I admit. I would love to get my hands on the LRB file regarding that disciplinary ULP, for instance. If anyone knows what actually went down with that ULP and is willing to share, feel free to contact me. (I've avoided contacting counsel for ATU or the City about my posts here while the matter is ongoing.)

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