The Carleton Roman Catholic Separate School Board Employees' Association v. The Ottawa-Carleton French Language School Board, 1991 CanLII 6072

The Carleton Roman Catholic Separate School Board Employees' Association v. The Ottawa-Carleton French Language School Board

[1991] OLRB Rep. May 681

3247-89-R; 3305-89-R The Carleton Roman Catholic Separate School Board Employees' Association, Applicant v. The Ottawa-Carleton French Language School Board (Full Board), The Ottawa-Carleton French Language School Board (Catholic Sector), and The Ottawa-Carleton French Language School Board (Public Sector), Respondent v. Service and Commercial Employees Union, Local 272, Intervener; Ottawa Board of Education Employees' Union ("OBEEU"), Applicant v. The Ottawa-Carleton French Language School Board (Full Board), The Ottawa-Carleton French Language School Board (Catholic Sector), and The Ottawa-Carleton French Language School Board (Public Sector), Respondent v. Service & Commercial Employees Union, Local 272, Intervener

BEFORE: Brain Herlich, Vice-Chair and Board Members W. A. Correll and H. Peacock.

APPEARANCES: Christopher E. Clermont and Gerard Poirier for the applicant in Board File 3247-89-R; Graham Clarke and Robert Lefebvre for the respondent; Donald Moore, Roger Lortie, Alick Ryder and Bruno Gagnon for the intervener; no one appearing for the applicant in Board File 3305-89-R.

DECISION OF THE BOARD; May 29, 1991

1In a decision dated April 23, 1991 we dismissed the request by Service and Commercial Employees Union, Local 272 (hereinafter referred to as "Local 272") that the Board not give effect to the results of the representation vote between Local 272 and The Carleton Roman Catholic Separate School Board Employees' Association (hereinafter referred to as the "Association") held pursuant to the decision of the Board (differently constituted) dated October 29. 1990 in this matter. These are the reasons for our decision dismissing Local 272's request.

2The Ottawa-Carleton French Language School Board (hereinafter referred to as the "French-Language School Board" or the "FLSB") was created by the terms of the Ottawa-Carleton French-Language School Board Act, 1988. Pursuant to the legislation, employees of four regional school boards were transferred to the French-Language School Board. Those employees formerly worked in a number of different bargaining units with the four regional boards while some were not represented by any bargaining agent. Under the terms of the legislation and pursuant to section 63 of the Labour Relations Act a number of applications were filed to determine bargaining rights with respect to various bargaining units of transferred employees who are not teachers. It should also be noted that the French-Language School Board has a public sector and a Roman Catholic sector. Thus the Full Board, the Catholic Sector and the Public Sector each have different jurisdiction with respect to different matters, including collective bargaining.

3Through a series of Board decisions bargaining rights have been clarified. Six different bargaining units are involved. In a decision dated October 24, 1990 and pursuant to the agreement of the parties, the Board (differently constituted, hereinafter the "O'Neil panel") declared that the Association was the bargaining agent for office and clerical employees of the Full Board, that the Canadian Union of Public Employees ("CUPE") was the bargaining agent for office and clerical employees of the Public Sector and directed a representation vote between CUPE and the Association to determine the bargaining agent for office and clerical employees of the Catholic Sector.

4By decision dated October 29, 1990 and having regard to the agreement of the parties, the O'Neil panel directed that the following representation votes be held:

(a) a vote between the Association, Local 272 and the OBEEU with respect to maintenance employees of the Full Board;

(b) a vote between Local 272 and the OBEEU with respect to cafeteria employees of the Public Sector; and

(c) a vote between the Association and Local 272 with respect to bus drivers employed by the Catholic Sector.

5By decision dated March 1, 1991 the O'Neil panel gave effect to the results of three of the four previously directed representation votes and declared that:

(a) the Association is the exclusive bargaining agent with respect to office and clerical employees of the Catholic Sector;

(b) the OBEEU is the exclusive bargaining agent for cafeteria employees of the Public Sector; and

(c) the Association is the exclusive bargaining agent for bus drivers in the Catholic Sector.

(Complete bargaining unit descriptions can be found in the decisions referred to.)

6Thus, with the exception of the unit of maintenance employees of the Full Board, which is the subject of the present decision, bargaining rights have been clarified. In the maintenance unit, as already indicated, a representation vote was directed between three competing unions. When that vote failed to disclose a clear majority a second vote was directed between the Association and Local 272. That vote was held on January 17, 1991 and more than fifty percent of the ballots cast were cast in favour of the Association. In the normal course the Board would therefore have declared the Association to be the exclusive bargaining agent. However, in view of the allegations filed by Local 272, the matter was set down for hearing.

7Essentially, Local 272 argues that the employer has provided improper support to the Association in the election campaign between the two unions. Alternatively, even if there was no actual employer support, the Association has created and exploited the perception of such support. In either case the Board ought not to give effect to the results of the vote. The locus of this alleged (perceived) support is the settlement, on the very day of the representation vote, of a section 89 complaint previously filed by the Association. Local 272 also impugns the contents of a leaflet (which refers to the section 89 complaint) distributed by the Association on the eve of the representation vote.

8The present applications were filed in March of 1990 and two other related applications (Board files 2908-89-R and 2909-89-R) were filed in February of the same year. In May of 1990 (i.e. prior to any of the section 63 applications having been determined or even heard) the Association filed a section 89 complaint (Board file 0465-90-U) against the French-Language School Board. The material portions of that complaint read as follows:

….the respondent created a system of financial remuneration for non-union employees such that they were paid more than union employees for work of equal value, thereby interfering with the representation of employees by a trade union, contrary to section 64 of the Act, and sought to intimidate and coerce union employees to cease to be members of their union, contrary to section 70 of the Act. All this was done through making it more financially rewarding to cease to he a union employee.

9The complaint was filed on behalf of the Association and Gerry Poirier, its president. Mr. Poirier signed the complaint and gave evidence in the present proceedings regarding the complaint and its ultimate resolution. Sometime prior to filing the complaint, Mr. Poirier discovered that the FLSB had implemented a new salary grid in respect of its non-unionized employees. Mr. Poirier had been provided a copy of the grid by the FLSB. Although Local 272 suggested there was some impropriety in the provision of this information to the Association, we are satisfied that, whether or not Local 272 actually had a copy of the salary grid or was aware of the specific figures, there is no dispute that it knew such a salary grid was in place and that some non-unionized employees were consequently being paid at levels higher than their unionized counterparts. In any event, Local 272 was provided with notice of the complaint and hearing scheduled in that matter. It chose not to participate.

10It should be recalled that at the time the complaint was filed, as a result of the creation of the FLSB, the transfer of employees from the four regional boards and the pending section 63 applications, there were employees in identical classifications receiving different levels of remuneration depending on whether they were represented by a bargaining agent in their former employment with a regional board and, if so, which bargaining agent. Mr. Poirier testified that his intention in filing the complaint was to do so on behalf of all his members employed by the FLSB. At the time the complaint was filed that would have included, inter alia, employees in the bargaining unit which is the subject of the present decision.

11For various reasons, not material to our considerations, the section 89 complaint did not actually come on for hearing until January 17, 1991. By this time the collective bargaining landscape had altered considerably. As indicated above, by this point in time the Association had secured bargaining rights for the office and clerical employees of the Full Board and had been victorious in representation votes regarding the office and clerical employees of the Catholic Sector and bus drivers also in the Catholic Sector. Although the Board had not yet made a formal declaration with respect to bargaining rights in the latter two units, no party had filed any objection to the vote or otherwise suggested that the results of the vote should not be implemented.

12After several hours of negotiations on January 17, the parties to the section 89 complaint executed two letters of agreement resolving the complaint. Those letters were incorporated into the decision of the Board (differently constituted) which issued on February 8, 1991. The first of the letters reads as follows:

LETITER OF AGREEMENT

BETWEEN:

THE CARLETON ROMAN CATHOLIC SEPARATE SCHOOL BOARD EMPLOYEES' ASSOCIATION (CRCSSBEA)

• AND -

THE ROMAN CATHOLIC SECTOR OF THE FRENCH LANGUAGE SCHOOL BOARD OF OTTAWA-CARLETON

WHEREAS the Parties agree to settle this complaint filed before the Ontario Labour Relations Board bearing File No. 0465-90-U, the Parties agree that:

1. The Superintendent of Human Resources will present the attached CRCSSBEA request and will make a recommendation that the Job Evaluation Plan concerning internal equity and pay equity be put in force for all of the office, secretarial and technical workers and bus drivers employed by the Roman Catholic Sector of the French Language School Board of Ottawa-Carleton according to the method of implementation approved for non-affiliated employees as adopted on February 26, 1990 by the Roman Catholic Sector.

2. The Ontario Labour Relations Board will issue a declaration to the effect that there was neither anti-union animus nor an unfair labour practice committed by the Roman Catholic Sector against the CRCSSBEA as had been alleged in File No. 0465-90-U.

3. The Superintendent of Human Resources will have a reasonable delay to complete the necessary research for his presentation and will make his best efforts to submit his report and recommendations at the meeting of the Human Resources Committee on February 13, 1991. If there is a delay, the CRCSSBEA will be informed and the reasons for the delay will be provided.

4. The request and recommendation previously mentioned in paragraph 1 includes the salary adjustments required to give effect to the resolution adopted in 1990 concerning the economic increases accorded to non-affiliated employees of the Roman Catholic Sector.

5. The Job Evaluation Plan, the method of implementation of this plan as well as the economic increases accorded for the year 1990 will not be an issue in the negotiations that will start in 1991.

6. Subject to the approval of the present agreement by the Roman Catholic sector, the CRCSSBEA accepts that the Job Evaluation Plan satisfies the demands of the Pay Equity Act, 1987.

(signature of (signature of Gerard Poirer) Robert Lefebvre) for the CRCSSBEA for the Roman Catholic Sector of FLSBO-C

This is a formal request by the CRCSSBEA, on behalf of its members that the OCFLSB raise and remunerate the members of the EA in accordance with the non-affiliated salary grid contained in the Charette, Fortier, Hawley/Touche Ross Pay Equity/Job Evaluation Report presented to the School Board [Full Board] in November 1989 and as adopted by the [Full board] by Resolution dated [March 6, 1990]*. The EA further requests that this salary grid apply to all

EA members retroactively to September 1, 1989, the date the salary grid became operative for all non-affiliated employees. The EA also requests the same salary adjustment for their members for 1990 as was accorded the non-unionized employees of the Board for the same year.

• Information inside square brackets added for clarification purposes.

13The second letter of agreement refers to the Full Board in lieu of the Catholic Sector and to office and clerical employees only rather than the bargaining units contemplated in paragraph 1 of the letter reproduced above. In all other respects the terms of the two documents are identical.

14At least one of Local 272's witnesses expressed the opinion that the settlement applied to maintenance employees. Mr. Poirier's evidence is to the contrary. Although originally filed on behalf of all the Association's members (which, at the time of filing would have included some maintenance employees), the terms of the settlement were limited to bargaining units for which the Association (in the eight months following the filing) had secured exclusive bargaining rights. The terms of the settlement are consistent with Mr. Poirier's evidence - they are limited to office and clerical employees of the Full Board and of the Catholic Sector and to bus drivers in the Catholic Sector. The settlement, whatever its propaganda value in the election campaign, makes no mention of the maintenance employees. Thus it has no direct or immediate effect on the bargaining unit we are currently concerned with.

15Neither is there any evidence before the Board which would lead to the conclusion that there was any impropriety on the part of the FLSB or the Association in entering into the settlement.

16Local 272 also impugns the contents of an election leaflet circulated by the Association in the 24 hour period preceding both the vote and the section 89 settlement. The material portions of the leaflet read as follows:

….In the second place;

The salary grid for 'non-affiliated" [employees]. A copy is attached. At the bottom of the page, the formula for calculating the salary of [those working] 40 hours, divide the amount by 35 and multiply by 40.

Here are two examples:

Tradespeople: level 5 from 36,680 to 43,200

Caretaker 40 hours: level 2 from 26,170 to 30,742

How is it that we are the only union to have filed complaints with the Labour Relations Board and with Pay Equity regarding this salary grid.

We filed a complaint in March [sic] 1989 to defend the right of our members to be paid according to the highest salary grid, and we did this before negotiations for a new collective agreement.

Where was Service and Commercial Employees Union????

The hearing in this complaint will be on January 17, 1991 at the Labour Relations Board, 240 Sparks.

As a result of discussions between counsel in the case, we shall shortly receive a copy of the report which is the foundation of this salary grid...

[translation]

17. Attached to the leaflet was the following:

SCHEDULE B

THE FRENCH LANGUAGE SCHOOL BOARD OF

OTTAWA-CARLETON

FULL BOARD

SALARY GRID FOR THE YEAR 1989 FOR NON-UNIONIZED

EMPLOYEES (for 12 months/35 hours per week)*

SALARY STEPS

LEVEL	1	2	3	4	5
XIII	92616	96702	100788	104874	108960
XII	77200	80600	84000	87400	90800
XI	73500	76800	80000	83300	86500
X	61200	63900	66600	69300	72000
IX	53200	55600	57900	60300	62600
VIII	46300	48400	50400	52500	54500
VII	40300	42100	43800	45600	47400
VI	36000	37500	39100	40700	42300
V	32100	33500	35000	36400	37800
IV	28600	29900	31200	32400	33700
III	25600	26700	27800	29000	30100
II	22900	23900	24900	25900	26900
	20400	21300	22200	23100	24000

• To calculate 10 month salary, use the following formula:

10 x salary

12

• To calculate salary for 40 hours per week, use the following formula:

40 x salary

35

[translation]

18. Although this grid refers to salary levels I through XII, there is no indication on the grid of where particular classifications may fall within those levels. The report referred to in the latter portions of the leaflet reproduced above appears to be a job evaluation report prepared by external consultants. This report contains information required to tie particular classifications to the salary levels contemplated by the grid. (Counsel for the FLSB advised us that, in return for consenting to its request for an adjournment of an earlier hearing date in the section 89 complaint, the FLSB undertook to provide the Association with a copy of the report.)

19. Jean Marc Landry is a school caretaker employed in the maintenance bargaining unit. On the evening prior to the representation vote he received a copy of the pamphlet. On reviewing the document he concluded that its application to his job would result in a very substantial wage increase. In the context of the imminent representation vote he interpreted the pamphlet as a message from the Association that its success in the representation vote would likely mean a significant wage increase for bargaining unit employees. However, Mr. Landry acknowledged that nothing in the pamphlet indicated any actual agreement between the Association and the FLSB to increase salaries or any condition that wage increases were conditional upon an Association victory in the vote.

20. On the following day Mr. Landry and Marcel Surette, a Local 272 member not employed by the FLSB, acted as scrutineers on behalf of Local 272 in the representation vote. Mr. Landry testified that Michel Lavigne, an official of the Association, arrived at the poll about an hour and a half before it was scheduled to close. A question was raised about the section 89 proceedings which Mr. Lavigne had attended earlier in the day. Mr. Lavigne , however, declined to discuss any aspect of the complaint or the proceedings until after the polls were closed in accordance with an agreement between the FLSB and the Association. Both Mr. Landry and Mr. Surette testified that Mr. Lavigne (who did not testify) made certain statements about the settlement after the polls closed and the ballots were counted. In particular, Mr. Lavigne expressed the view that the settlement did include the maintenance bargaining unit and that it was a good thing the Association had won the vote because otherwise there was no deal.

21. Our analysis of the evidence and, in particular, the terms of the settlement already indicate that Mr. Lavigne's expressed view about the scope of the settlement is clearly mistaken. The settlement is limited to bargaining units other than the maintenance unit. Similarly, apart from the statements attributed to Mr. Lavigne, there is simply no evidence to suggest that the Association and the FLSB entered into an agreement to defeat the bargaining rights of Local 272. In any event, there is simply no evidence before us that the terms of the section 89 settlement were even known to any maintenance unit employees (except, of course, those who had directly participated in the settlement on behalf of the Association) until after the results of the vote were tabulated.

22. In its initial documents challenging the validity of the vote, Local 272 took the position that "the Association and the employer had signed an agreement providing for a substantial increase in wages to all members of the voted constituency, providing the Association was successful in the voting" and "that members of the voting constituency were aware of the agreement (and the fact that it was only to be effective if the Association was successful) prior to the voting". Based on the evidence before us, we are simply unable to conclude that there is any basis for these allegations and consequently, the cases referred to us by Local 272 which included Trent Metals Limited, [1979] OLRB Rep. Aug. 827; Square D Electrical Equipment Inc, [1980] OLRB Rep. Sept. 1324; and Crowle Electric Limited, [1982] OLRB Rep. Oct. 1458 and which all involved instances of improper employer support are of no assistance to us in this matter.

23. By the conclusion of the hearing, Local 272 had shifted its emphasis. It was conceded that, strictly speaking, the section 89 settlement did not directly provide substantial wage increases for anyone, let alone maintenance employees. It was further conceded that, strictly speaking, the settlement did not include the maintenance unit. It was argued, however, that the leaflet was the critical document and that the Association had managed to create the impression in the minds of voters that the FLSB would implement the salary grid in the maintenance unit if the Association were successful in the vote. Thus, Local 272's real argument in the case concerns alleged improper electioneering rather than allegations of improper collusion and employer support designed to defeat its bargaining rights.

24. As early as 1959 the Board in Stauffer-Dobbie Manufacturing Co. Ltd, 59 CLLC para.

18,147 at p. 1790 expressed its reluctance, except in extreme circumstances, to perform the function of policing election campaigns:

A new vote will generally be directed where the action complained of is coercive in nature or if ways and means of destroying the secrecy of the ballot or the confidence of the employees in the secrecy of the ballot are suggested or implied ... In the main, however, a considerable amount of leeway is permitted in electioneering. The Board does not undertake to police election campaigns or to consider the truth or falsity of campaign literature and speeches unless the ability of the employees to evaluate such literature or speeches is impaired e.g. by the use of campaign trickery, to such an extent that the free desires of the employees cannot be determined in a secret vote ... In determining the impact on the voters of the literature complained of, it is of course obvious that it is rarely, and perhaps never, possible to determine objectively what effect it has actually had. One cannot pay too much attention to either the most gullible voter or the one of firm convictions. One can only look at the circumstances of each case and, on the facts presented, determine whether the statements objected to are of such a nature that they are likely to have misled a "reasonable" voter.

25. These sentiments have been echoed and restated in more recent cases such as Robertson-Yates Corporation Limited, [1978] OLRB Rep. Jan. 30; Indusmin Limited, [1982] OLRB Rep. Nov. 1641; and Cara Operations Limited, [1985] OLRB Rep. Feb. 222 where, at paragraph 17 the Board observed as follows:

it is not our function to assess whether the statements are false, misleading, unfair, defamatory or whether the propaganda campaign has been conducted fairly by both sides. Rather, we must decide whether the letter in this case has deprived the employees of the ability to exercise their "critical faculties" in assessing whether the respondent should continue to represent them in collective bargaining.

26. When we consider contents of the impugned leaflet even in the context of the balance of the evidence in this matter, we are unable to conclude that its contents are false, misleading or unfair. Neither are we convinced that the leaflet has impaired the critical faculties of the reasonable voter. In many ways the instant facts are not dissimilar from a scenario where an incumbent union facing a displacement representation vote in a part-time bargaining unit prepares a leaflet trumpeting its gains in a recently signed collective agreement in the corresponding full-time unit - a scenario which, on its face, strikes us as neither improper nor surprising. But perhaps the greatest irony in this case, from Local 272's perspective, results from its deliberate choice to not participate in the section 89 proceedings. Had it done so, it may well have been a signatory to the settlement it now impugns and had a share in whatever political capital may have been generated by the settlement and the process leading up to it. Having failed to take that decision, it is not for the Board to effectively rectify a difficult political decision which events may have proved to be misconceived.

27. It was for all these reasons that we dismissed Local 272's request in our decision dated April 23, 1991.