Ontario Secondary School Teachers' Federation v. The Board of Education for the City of Windsor, 1988 CanLII 3634

Ontario Secondary School Teachers' Federation v. The Board of Education for the City of Windsor

[1988] OLRB Rep. January 103

2524-87-R Ontario Secondary School Teachers' Federation, Applicant v. The Board of Education for the City of Windsor, Respondent v. United Brotherhood of Carpenters & Joiners of America Local 494, Intervener #1 v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 552, Intervener #2 v. Canadian Union of Public Employees, Intervener #3

BEFORE: Owen V. Gray, Vice-Chair, and Board Members D. A. MacDonald and H. Peacock.

APPEARANCES: Maurice A. Green, Mary Jean Gallagher, Fred Birket and Joan Farrell for the applicant; Brian P. Nolan, Zolle Veres and V. Bill Piliotis for the respondent; no one appearing for any of the interveners.

DECISION OF THE BOARD; January 25, 1988

1. This is an application for certification. The title of this proceeding is amended to name the respondent as "The Board of Education for the City of Windsor."

2. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act ("the Act").

3. The parties agree that

all employees of the Respondent employed as Speech Pathologists, Psychologists, Psychometrists, Social Worker/Attendance Councillors save and except the Superintendent of Special Education and Special Services and those above the rank of Superintendent and employees in bargaining units for whom any trade union held bargaining rights as of the date of certification

constitute a unit of employees of the respondent appropriate for collect bargaining, it being understood that "employee" means employee within the meaning of the Act and excludes persons deemed not to be employees by clause 1(3)(b) of the Act.

4. Subsection 6(1) of the Labour Relations Act provides that "...upon an application for certification, the Board shall determine the unit of employees that is appropriate for collective bargaining...". The agreement of an applicant trade union and respondent employer does not relieve the Board of its obligation to determine the appropriate bargaining unit.

5. The principles and policies applied by the Board in determining appropriate bargaining units have been articulated in any number of decisions of the Board. In Canadian General Electric Company Limited, [1979] OLRB Rep. March 169, for example, the Board made these general observations in paragraph 6:

6. The Board's primary concern in evaluating the appropriateness of a suggested bargaining unit is that the unit represent a viable collective bargaining entity. In assessing the suitability of a proposed unit the Board is generally guided by two counter-balancing concerns. Firstly, having regard to the proposed unit itself, the Board looks to whether the employees involved share a sufficient community of interest to constitute a cohesive group which will be able to bargain effectively together. Secondly, looking to the employer's operation as a whole, the Board assesses whether the proposed unit is sufficiently broad to avoid excessive fragmentation of the collective bargaining framework. A proliferation of bargaining units is not normally conducive to collective bargaining stability. Not only may it place significant strains on an employer who would be required to bargain with each group, but also it may hamper the employee’s ability to bargain effectively with the employer. Under the umbrella of these two guiding principles, the Board seeks to give effect to an equally important concern: the freedom of association guaranteed to employees in section 3 of the Act. As with all freedoms, the principle of freedom of association is not unbridled and must be blended with the Board's responsibility to establish an effective collective bargaining structure. The Board seeks to balance its respect for an employee's right to associate freely on the one hand with its responsibility to establish a durable collective bargaining entity on the other by requiring that a proposed bargaining unit be the unit appropriate for collective bargaining but not going so far as to insist that it be the most appropriate unit (see Perennial Foods Limited, [1969] OLRB Rep. April 38: The Board of Education for the City of Toronto, [1970] OLRB Rep. July 430: Wellesley Hospital, [1974] OLRB Rep. Jan. 55 and Livingston Transportation Limited, [1975] OLRB Rep. July 568).

7. Here, the applicant and respondent have proposed that the bargaining unit be defined by reference to a small number of particular job classifications. A proposal of that sort generally raises concerns to which reference was made in paragraphs 8 and 9 of the Board's decision in Canadian General Electric Company Limited, supra:

8. As a general principle bargaining units limited to a particular department or a particular classification are not considered appropriate by the Board (see The Corporation of The City of Berry, [1974] OLRB Rep. Nov. 813). There are innumerable cases where because of its aversion to fragmentation the Board has refused to recognize as appropriate a unit containing only a small segment of employees within an employer's overall operation. In the Board of Health of the York-Oshawa District Health Unit, [1969] OLRB Rep. June 340, for example, the Board stated that it would not fragment the respondent's technical employees because "to do so would create a collective bargaining situation where the respondent would be required to deal separately with clerical employees, public health inspectors, registered nursing assistants and dental hygienists." (p.341). In Waterloo County Health Unit, [1969] OLRB Rep. Jan. 1016 the Board refused to certify the applicant for a unit composed of public health inspectors when there were other persons including dental hygienists in the health unit. Similarly, in McMaster University, [1973] OLRB Rep. Feb. 102, the Board refused to allow the applicant to carve out from the University all non-professional library employees and indicated that the appropriate unit would be all clerical, technical and office employees of the university. As well, in The Regional Municipality of York, [1971] OLRB Rep. June 316 the Board denied the applicant's proposed bargaining unit of employees in the survey section of the engineering department when there were six additional branches of the engineering department (see also The Corporation of the Township of Markham, [1969] OLRB Rep. Aug. 592 and The Board of Education for the Borough of North York, [1970] OLRB Rep. Dec. 915). In cases where the Board has certified a segregated group of employees it has generally been satisfied that the segment in question constituted a recognizable, cohesive group functioning as an independent entity. (see Ex-Cell-O Corporation of Canada, Limited, [1974] OLRB Rep. Aug. 543: The Governors of the University of Toronto, [1969] OLRB Rep. Feb. 1149, and University of Western Ontario, [1972] OLRB Rep. Dec. 1038).

9. The exercise of highly specialized skills by employees in a proposed bargaining unit, moreover, does not by itself establish that those employees form an appropriate bargaining unit. In Stratford General Hospital, [1976] OLRB Rep. Sept. 459, for example, the Board refused to recognize as appropriate a unit encompassing paramedical employed in a professional capacity and declared instead that the unit appropriate for collective bargaining was one that would include paramedical employed in both a technical and professional capacity thereby bringing together in one unit occupations such as psychologists, social workers, pharmacists, physiotherapists, radiological technicians and respiratory technologists. The Board was of the view that these two groups did not function independently of one another in that all the occupations in question were integrally related to the medical treatment process. The Board concluded that the group shared a functional interdependence because the paramedical employed in a professional capacity regularly relied on information and analysis provided by the other paramedical occupations. To break the group along a technical/professional line would have, in the Board's view, caused undue fragmentation in the hospital.

10. While the agreement of an applicant trade union and respondent employer to a particular bargaining unit configuration does not relieve the Board of its obligation to determine whether that configuration is appropriate for collective bargaining, the existence of such an agreement is a significant consideration in making that determination if, as is generally the case, it reflects a balancing of the aforementioned considerations by the parties in light of their special and shared knowledge of the employer's organization and of the industry in which that employer functions.

11. School boards are obliged by law to employ one or more school attendance counsellors. A number of school boards also employ social workers, psychologists and other sorts of counsellors, therapists and consultants to provide special services to students and teachers. Groupings of similar employees of other school boards have been separately organized and represented for collective bargaining purposes as a result of certification or voluntary recognition by a variety of trade unions. This suggests that such employees share a stronger community of interest with one another than with custodians, secretarial and clerical employees and other groupings which have been the subject of certification and voluntary recognition in school board collective bargaining. It also reflects a greater degree of tolerance of fragmentation or potential fragmentation on the part of those school boards than might be expected in other sectors. The Board is not aware of any situation in which the separate representation of such groups has created any viability problem in school board collective bargaining. While a school board's tolerance for balkanized collective bargaining structures will have its limits (see The Board of Education for the City of Toronto, [1986] OLRB Rep. June 900), the school board respondent in this application has not expressed that concern.

12. Once one accepts the general proposition that these sorts of support personnel can form a viable bargaining unit distinct from building services and office and clerical personnel, there is then the challenge of finding the sensible boundary between this and those other groups~ and also the challenge of so defining that boundary as to ensure that employees subsequently hired to perform skills and provide services other than those performed and provided by present employees are allocated in a sensible way by that boundary definition. The latter challenge is better met by a bargaining unit description which depends on a generic description of the distinguishing characteristic or characteristics of the job classifications which are to fall within it, rather than on a simple listing of job classifications. Unfortunately, it can be difficult to design a workable definition capable of universal application, as the Board's experience in the hospital sector amply demonstrates.

13. We raised these concerns with the applicant and respondent at the hearing of this matter. They indicated an awareness of the potential for difficulty which is created by defining this unit by reference to particular job classifications. They expressed their belief that the classifications adopted in their proposed bargaining unit description took potential future developments into account and provided adequate stability in that regard. Having regard to those representations and the constraints of the respondent's existing collective bargaining relationships, we are prepared to and do find that the bargaining unit on which the parties have agreed and their description of it are appropriate for collective bargaining for the purpose of this application. We express the hope that the parties to other applications affecting similar sorts of employees will consider these matters and, to the extent existing bargaining structures there allow, attempt to devise a bargaining unit description which is less dependent on the simple listing of job classifications.

14. The parties disagree about whether the respondent's Head Psychologist and Head Social Worker/Attendance Counsellor are "managerial" - that is, whether functions they exercise are such as to result in their exclusion from any bargaining unit by operation of clause 1(3)(b) of the Act. This dispute was initially articulated as a dispute over bargaining unit description: whether those job titles should appear among the express exclusions in the description of the unit. Both parties acknowledged, however, that the concern that "first line managerial employees" be excluded from the unit can be adequately addressed in the description of the unit by

a) expressly excluding those at and above the lowest position which the parties agree is managerial, and

b) noting that the phrase "all employees" necessarily excludes anyone else who may now or hereafter fall within the scope of clause 1(3)(b) of the Act.

This approach has certain advantages, particularly where, as here, the inclusion in or exclusion from the bargaining unit of persons in the disputed positions as of the application date cannot materially affect the applicant's percentage of membership as of the relevant date: see Robin Hood Multifoods Inc., [1985] OLRB Rep. July 1159. As appears from paragraph 3 of this decision, the parties agreed to that approach.

12. We are satisfied on the basis of all the evidence before us that more than fifty-five per cent of those employed by the respondent in the bargaining unit on the date of application were members of the applicant on December 23, 1987, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

13. A certificate will issue to the applicant with respect to

all employees of the respondent employed as Speech Pathologists, Psychologists, Psychometrists, Social Worker/Attendance Councillors, save and except the Superintendent of Special Education and Special Services and those above the rank of Superintendent and employees in bargaining units for whom any trade union held bargaining rights as of January 8, 1988.