Canadian Union of Public Employees v. The Ottawa-Carleton French Language School Board
Canadian Union of Public Employees, 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. Ottawa Board of Education Employee's Union (OBEEU), Intervener #1 v. Service & Commercial Employees Union, Local 272, Intervener #2 v. The Carleton Roman Catholic Separate School Board Employees' Association, Intervener #3;
Canadian Union of Public Employees, 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. The Carleton Roman Catholic Separate School Board Employees' Association, Intervener #1 v. Ottawa Board of Education Employee's Union (OBEEU), Intervener #2 v. Service and Commercial Employees Union, Local 272, Intervener #3;
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: K. G. O'Neil, Vice-Chair, and Board Members R. M. Sloan and D. A. Patterson.
Appearances: Gilles LeBel, for the Canadian Union of Public Employees; David Migicovsky for the Ottawa Board of Education Employees Union; Alick Ryder & Rachia Van Lierop for the Service & Commercial Employees Union, Local 272; Michael Horan and Gerry Poirier for the Carleton Roman Catholic Separate School Board Employees' Association; Peter Annis and Pierre Leonard for the respondent.
Decision of the Board; March 1, 1991
1These matters relate to a series of applications under section 63 of the Act which result from the 1988 legislation which created the new Ottawa/Carleton French-Language School Board out of parts of four predecessor English-language school boards. In this decision, "the Board" refers to the Labour Relations Board.
The Shape of the Maintenance Bargaining Unit
2On October 5, 1990, the Board dealt with a question relating to the shape of the appropriate unit of maintenance employees by endorsing the record as follows:
The Board is of the view that it would not be appropriate for bargaining rights for maintenance workers to attach to a family of schools as argued on behalf of SCEU, Local 272. We therefore do not accept Mr. Ryder's proposal as to the appropriate bargaining unit for maintenance workers. Reasons will follow.
We now provide our reasons. We will start with some background which is necessary to understand how this question arises.
3On June 29, 1988, Bill 109 received Royal Assent and became An Act to establish a French-language School Board for The Regional Municipality of Ottawa-Carleton (referred to below for convenience as Bill 109). Up until that time, French language education had been provided in that Municipality by four different school boards, (the "English- language school boards") being The Ottawa Board of Education, The Carleton Board of Education, The Ottawa Roman Catholic Separate School Board and The Carleton Roman Catholic Separate School Board. Four unions held the bargaining rights for various units covered by the multi-faceted successor rights applications now before us. Three of them held rights for maintenance workers: The Ottawa Board of Education Employees Union (OBEEU), The Service and Commercial Employees Union, Local 272 (Local 272) and the Carleton Roman Catholic Separate School Board Employees Association (CRCSSBEA). It is the competing jurisdictions of these three unions that are central to the dispute as to the shape of the maintenance unit.
4The legislation in section 4(1) and (3) created three heads of collective bargaining jurisdiction within the new school board. These are the public sector, the Roman Catholic sector and the full board. The public sector and Roman Catholic sectors are each made up of members (trustees) elected to the relevant sector. The full board means all of those members. Each of these three heads has exclusive jurisdiction over collective bargaining for its own employees. The functions of those employees are shaped by the lists of jurisdiction in section 4 as well. The portions of these lists relevant to this dispute are as follows:
4.-(1) The following matters are within the exclusive jurisdiction of the public sector in respect of the schools and classes that it governs and within the exclusive jurisdiction of the Roman Catholic sector in respect of the schools and classes that it governs:
Receiving revenue for school purposes, including but not limited to grants and money from municipal levies.
Appointing, assigning and removing teachers and other employees in respect of matters within the sector's jurisdiction.
Prescribing the duties of teachers and other employees.
Determining the terms on which teachers and other employees are to be employed and fixing their salaries.
Collective bargaining in respect of teachers and other employees.
Providing benefits in respect of employees.
(3) The following matters are within the exclusive jurisdiction of the full board:
Maintaining buildings and premises and furniture and equipment for the French-language Board.
Appointing and removing employees, other than the executive director, in respect of matters within the full board's jurisdiction.
Determining the terms on which employees described in paragraph 8 are to be employed, prescribing their duties, fixing their salaries and providing their benefits.
Collective bargaining in respect of its employees.
5By force of the legislation, the English language school boards started assigning some of their employees to the new Ottawa-Carleton French-language School Board in September, 1989. In stages prescribed by the legislation, their employment relationships were transferred to the new school board, or one of its sectors, as provided in Part VIII of the Act. Setting out these detailed provisions would not add to this decision and we therefore do not propose to do so. The legislation contemplated that there would be matters to be sorted out among the bargaining agents from the predecessor school boards in the new situation. Section 75 of Bill 109 provides as follows:
75.-(1) For the purpose of section 63 of the Labour Relations Act, the employees who are not teachers and who are transferred from the English-language boards to the public sector shall be deemed to have been intermingled, and,
(a) The Labour Relations Board may exercise the like powers as it may exercise under subsections 63(6) and (8) of that Act with respect to the sale of a business under that section;
(b) The public sector has the like rights and obligations as a person to whom a business is sold under that section and who intermingles the employees of one of the person's businesses with those of another of the person's businesses; and
(c) any trade union or council of trade unions concerned has the like rights and obligations as it would have in the case of the intermingling of employees in two or more businesses under section 63 of that Act.
(2) Subsection (1) applies with necessary modifications in respect of employees transferred to the Roman Catholic sector or to the full board in the same manner as to employees transferred to the public sector.
(3) Sections 69, 70 and 71 prevail over this section in respect of employees described in this section.
(4) Sections 67, 68 and 72 do not apply to employees described in this section after an application is made to the Labour Relations Board under this section.
Sections 69, 70 and 71 provide for the retention of certain privileges with respect to salary and sick leave credits of transferred employees. Sections 67, 68 and 72 provide methods to determine the terms of employment of employees transferred between 1989 and 1991 according to their date of transfer. It also provides a grievance arbitration process for settling disputes during the transitional period, which, by operation of section 75(4), came to an end with the filing of these applications.
Portions of section 63 relevant to this issue are sections 63(3), (6) and (8) of the Labour Relations Act which read as follows:
63…….
(3) 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 14 or 53, sells his 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 14 or 53, as the case requires.
(6) Notwithstanding subsections (2) and (3), where a business was sold to a 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 such person intermingles the employees of one of the business 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 such 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.
(8) 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.
6Local 272 argued that the Board should, to the greatest extent possible, preserve the status quo, as of the date of the creation of the new school board. This would mean that each of the three bargaining agents who previously held bargaining rights would maintain rights for equivalent bargaining units, and those who were unrepresented by any bargaining agent would remain unrepresented. The other union parties and the employer sought a single unit of maintenance workers and a vote among the various bargaining agents who previously held rights for maintenance workers.
7Local 272 took the position that the employer was required to bring forth evidence about the transfer of power from the English language Boards to the new school board in order to enable us to inquire into and determine the "like bargaining units" as in the situation before the creation of the new school board. The Board ruled that the obligation on the employer to bring forth evidence contained in section 63(13) of the Labour Relations Act as to an allegation that there had been a sale of business did not apply at this juncture of the proceedings. In the matter before us, the legislation creating the new school board has taken the situation beyond an allegation that there was a sale of business. We are not here required to determine whether a sale of a business has taken place. We are instead directed by section 75, set out above, to assume intermingling and to exercise our discretion under section 63(6) and (8) Labour Relations Act as to the appropriate shape of bargaining rights after the transfer. On the question of the appropriate bargaining unit or units, there is no statutory burden of proof or obligation to call evidence.
8Since Local 272 was the only party seeking to call evidence on this portion of the case the Board asked Mr. Ryder to stipulate the facts he wished to prove. The other parties did not dispute these stipulated facts, with the exception of a few matters which were able to be agreed upon after discussion. We then proceeded to argument on this point on the basis of Mr. Ryder's stipulated facts and the factual additions from the other parties, with which Mr. Ryder was prepared to agree. We will make reference to these facts as necessary below.
9To put the matter in context, it is necessary to remember that the new school board is the product of parts of the four predecessor English-language school boards. By force of Bill 109, maintenance workers' employment relationships were transferred to the full board, which has an umbrella-like function with respect to certain administrative functions. The structure sought by Local 272 would involve three separate maintenance bargaining units and a group of unrepresented employees. These groups would be roughly as follows:
Maintenance employees employed in schools in the Roman Catholic sector in the County of Carleton, excluding the City of Ottawa. (These were represented by CRCSSBEA in the English-language school boards.)
Maintenance employees working in schools in the Roman catholic sector in the city of Ottawa. (These were represented by Local 272.)
Maintenance employees working in schools in the public sector in the City of Ottawa. (These were represented by OBEEU.)
Maintenance employees working in schools in the public sector in the County of Carleton. (These were, and are apparently unrepresented by a bargaining agent.)
10Local 272, whose bargaining rights originated with the Ottawa Roman Catholic Separate School Board, submits that it should continue to represent the employees in the second numbered paragraph above. The members of Local 272's claimed bargaining unit currently work in a "family of schools" in the City of Ottawa. Those twenty-one schools are, under the new school board, the Roman Catholic sector schools in the City of Ottawa. (There are other Roman Catholic sector schools outside the City of Ottawa as well as public sector schools in and outside of Ottawa.) The parties agree that the maintenance staff still report for work to the same schools as they did before the creation of the new school board. Similarly, trades people such as carpenters and plumbers, also represented by Local 272, did and still do, work at all the schools in that family of schools. With the exception of some trades work in emergencies, maintenance staff transferred from other predecessor school boards have not worked in that family of schools.
11Local 272 has continued to function and represent its members since the creation of the new school board. It has a constitution which provides for elections and enjoys active participation from its members. In the first period of transition to the new structure, between January and September 1, 1989, the collective agreements with the English-language school boards governed the employment relationships and the unions dealt with personnel staff at the English-language school boards. Between September 1, 1989 and March 28,1990, relations were governed by the existing collective agreements but administered by the new French-language school board. Local 272 dealt with personnel of the full board servicing the Roman Catholic sector of the new school board. Subsequent to the creation of the new school board, Local 272 negotiated a memorandum of agreement dated March 28, 1990 with the new full board which has been implemented. Local 272 has also presented and settled grievances since the inception of the new school board.
12Section 39(2) of Bill 109 provides that enrolment dictates the proportion of full board expense allocated to one sector or the other. The enrolment breakdown is roughly 75 percent Roman Catholic sector, 25% public sector. There is one payroll service providing services to the sectors as well as to the full board, but three bank accounts. When a cheque is paid to an employee working in a Roman Catholic sector school, that cheque is paid for by allocation to the Roman Catholic sector. All janitors are paid out of the full board account. However, if there is a direct expense attributable to a building in the Roman Catholic sector it pays the entire amount. A tradesman who works only in a Roman Catholic building may be paid for out of Roman Catholic sector funds. Something like plumbing done for the whole system is allocated according to enrolment.
13Mr. Ryder takes the position that regardless of the provisions of Bill 109, the Roman Catholic sector is the de facto employer of the maintenance workers which Local 272 represents. In this he relies on section 4(1), paragraphs 13, 19, 20 and 24, set out above, while acknowledging the powers of the full board in section 4(3), paragraphs 4, 8, 9 and 11. Dues remittances have been paid by cheque from the Roman Catholic sector. He points to the fact that supervision is done on a sector basis, on the basis of a family of schools. Employment is paid for by sector funds. He could not agree that the full board had control of these employment relationships. Rather he pointed to section 4(1), paragraphs 13, 19, and 20 which give control to the sectors. He asks the Board to conclude that the control remains with the sectors.
14The thrust of Local 272's argument is that the previously held bargaining rights are viable, as evidenced by the fact that they have been in place since the creation of the new school board, and thus ought not to be disturbed. Mr. Ryder argues that the purpose of the successor provisions in the Labour Relations Act is to preserve bargaining rights, and thus that different considerations pertain than would apply on a certification application. Specifically he argued that section 63(3) directs the Board to look for the "like bargaining unit" in the new situation and to preserve it unless it is not viable. Local 272 submits that the continuation of the three existing bargaining units has worked as a matter of fact and that the best evidence of appropriateness is viability, or its ability to work. He argues that a year and a half of operation in a viable manner is important evidence of appropriateness.
15As evidence of the continuing viability of the status quo of bargaining rights, Mr. Ryder cites the fact that the new administration was able to agree with the three unions on a process to govern the filling of vacancies with priority given to personnel within a family of schools. Mr. Ryder also points, to the almost complete absence of actual intermingling as a factor which supports the preservation of the status quo. As well, there have been no unusual problems in labour relations. Grievances were filed concerning transfers of employees but this is put up to a necessary period of sorting out the "kinks" in Bill 109. Mr. Ryder points to the fact that none of the other parties introduced evidence to say the current structure was unworkable. He characterises the potential problems referred to in argument by the others as worries about the future which should not be acted on by the Board.
16On the question of fragmentation, Mr. Ryder submits that the overriding question in section 63 is the avoidance of disruption of bargaining units, that we should look for the "like bargaining units" and preserve them if possible. He underlines that the deemed intermingling in section 75 of Bill 109 should not override this main purpose of section 63. He observes that the other parties' proposals about other groups of employees would also create fragmentation.
17He asserts that since Bill 109 invokes the discretion under section 63 to guide decision making, the legislature intended the previous thinking under section 63 to govern: it is not intended that the successor rights provisions will expand bargaining rights, or to enable the largest group to pick up rights from people who are simply outvoted. As to the deemed intermingling in S. 75 of Bill 109, he asserts that this simply was a legislative direction to use discretion and not a mandatory vote.
18Local 272 relies on Oshawa Wholesale Limited, [1965] OLRB Rep. Feb. 584 for the proposition that where there is only slight intermingling, the board should not alter or amend the existing bargaining rights. Mr. Ryder argues that the reasons for that is best explained by City of Peterborough, [1979] OLRB Rep. Feb. 133 where the Board found no intermingling and held that in fashioning or amending units the greatest effect should be given to existing rights to the extent they can be reasonably accommodated within the administrative structure of the employer. In the absence of any evidence of difficulty in accommodating the units, section 63 should operate to give effect to those rights.
19On behalf of the employer, Mr. Annis submitted that the fact that the school board had made the best of a bad situation in living with the status quo should not be held against it. He argued that if it had ever been suggested that by signing agreements it would prejudice its rights to argue the appropriate shape of bargaining rights, it would not have signed them.
20Mr. Annis emphasised that the statutory provisions are what must govern. The purpose of the legislation, to establish a new school board, must be kept in mind in interpreting section 75. Employees were to be transferred from four different school boards so that the new school board could start afresh. The purpose of giving the full board certain powers was to promote efficiency. If the full board is obliged to deal with three unions for exactly the same group of employees for whom jurisdiction is clearly with the full board, it would make no labour relations sense. He cites in particular the problem of multiplicity of threats of strike, and restrictions on mobility. He summarised by saying that he simply could not believe that this was the intention of the legislature. He underlines that the employer was required to do what it did during the period of transition from the English language boards. All of that ends with an application under section 63, by force of the legislation. He asserts that the start up period was very difficult, but the legislature provided that it would come to an end. He refers to section 68(2) which reads as follows:
(2) The French-language Board shall not hire a person who is not a transferred employee if there is a transferred employee who is qualified, willing and available to fill the position.
The employer submits that this is evidence of a legislative intent to have mobility rather then restrict it and that Local 272's proposal would be in direct conflict with this legislative intent. The employer argues that the legislation was intended to protect employees in general, not in a narrow way based on historical union rights. Local 272 asks for a bargaining unit on a geographic basis, but there are Roman Catholic and public schools in the same geographic area. Counsel cites an additional inconsistency in applying such a concept to the full board that has jurisdiction in the full geographic area.
21On behalf of the OBEEU, Mr. Migicovsky argued that there would be no meaning to the deemed intermingling provisions if the Board gave the meaning to the section argued by Local 272. The situations in which the Board has declined to exercise its discretion to order a vote are those in which the size of the two units makes it very clear who the winner is. He asserts that the basis of Local 272's submission, being bargaining rights attached to a family of schools based on where they came from historically, makes no provision for the future. He asks whether new schools will be allocated according to the shape of old bargaining rights.
22OBEEU suggests that lack of mobility will be a problem if the Board accedes to Mr. Ryder's request; employees will be limited to the handful of schools that they originally came from. School closures will only have meaning in terms of a family of schools. Co-workers hired recently may be able to keep a job just because their school is not closed. He raises the possibility of shared schools, public and Roman Catholic in the same building and asks if the janitors would be divided up on the basis of whether they were cleaning a Roman Catholic or a public washroom. He queries whether Mr. Ryder's proposal prevents the new school board from assigning tradesmen to move about from school to school.
23On behalf of CRCSSBEA, Mr. Horan submitted that the preservation of existing rights is one of the considerations, but not the paramount one under s. 63. He asserted that the others were at least as important. He asked us to be guided by the labour relations realities which will flow from the design chosen. He argues that in Local 272's design there would be three different unions representing identical employees. He suggested size is also one indication of appropriateness. Above all he submitted that the Board has been very clear that "situs certifications” are not appropriate. The basis suggested by Local 272 is geographical address, an approach long rejected by the Board. He joined with the employer in saying that the status quo for the last two years has been a product of the statutory requirements, and should not be relied on to shape the appropriate bargaining unit. Where there are three bargaining agents of more or less equal size, then the correct result is a vote. He said none of the stipulated facts derogate from this practice, which the community has come to accept.
24In reply, Mr. Ryder submitted that Local 272's proposal was not to ignore the deemed intermingling provisions, but not to make them mean something they do not say. If we had no intermingling, we would not have the discretion in section 63(6) and (8) to reshape the bargaining units. However, having the discretion does not mean it should be exercised in the fashion that the other parties ask. He asserts that the other parties are asking the Board to act on events that have not occurred and may never occur. Specifically he says that there is no evidence that mobility was or will be a problem. He submits that if it could occur, one would think it would have occurred in a year and a half. He agrees that more mobility is good, but s. 63 cases never have concerned themselves with that. We should be governed, not only by what is appropriate, but in large measure by the scope of the bargaining rights already in existence. Local 272 maintains that acknowledgement by the employer that it could accommodate the situation when forced to do so by the legislation underlines that it is able to do so in the future as well.
25It is not necessary for the scope of the issue as to the shape of the maintenance bargaining unit to determine whether the two sectors and the full board are three distinct employers, or should be treated as divisions of one employer as in Beatrice Foods (Ontario) Limited, [1982] OLRB Rep. June 815, an option mentioned in Conseil scolaire de langue francaise d'Ottawa-Carleton, [1989] OLRB Rep. June 575. Nor is it necessary to determine at this juncture the exact description of the appropriate bargaining unit. The question raised by Local 272 is resolved much more narrowly.
26We start with the meaning of the deemed intermingling language in section 75 of Bill 109. Deemed intermingling features in section 63(11) of the successor rights provisions of the Labour Relations Act in relation to mergers of municipalities. This section and its predecessors have been the subject of prior Board decisions as to the purpose of deemed intermingling in the general scheme of the Act. For example, Waterloo County Board of Education, [1969] OLRB Rep. May 287, dealt with the predecessor provision's application to the creation of that school board. The statutory language does not differ in any relevant way to that in section 75 of Bill 109. The Board said as follows at paragraphs 9 to 11:
As can be seen from the provisions of section 47(a)(10)(b) [now 63(11)(b)], the legislature has specifically provided that the new or enlarged municipality, in this case the applicant, has the like rights and obligations as a person to whom a business is sold under this section and who intermingles the employees of one of his businesses with those of another of his businesses. Since section 47(a)(10) "deems" that there has been an intermingling of employees of the schools over which the applicant has jurisdiction, it therefore follows that such intermingled employees are indistinguishable for the purpose of collective bargaining. The Board must therefore make its determination in this matter pursuant to the provisions of section 47a(5) and section 47a(7) [now 63(6) and 63(8)] of the Labour Relations Act.
Under section 47a(5) the Board may, among other things, determine whether the employees concerned constitute one or more appropriate bargaining units. In the absence of this provision, it might be argued that since the employees of a municipality are deemed to be intermingled, office employees and others must accordingly be deemed to be melded with and indistinguishable from the employees with whom we are here concerned. However, since the Board has jurisdiction to determine whether the employees constituted one or more appropriate bargaining units, it is open to the Board to follow its usual practice of separating office employees from other employees. However if we took the position that employees in a certain classification were distinguishable on a geographic basis we would thereby cause the legislative direction, contained in section 47a(1O), that the employees are deemed to have been intermingled, to be meaningless.
As stated above, since the employees of the applicant are deemed to have been intermingled for the purpose of section 47a, as far as we are able to see at this time it is our view that we must accept the intermingling of employees as a fact. It also follows, as far as we are able to see at this time, that for collective bargaining purposes, the intermingled employees in a particular classification should not be distinguished on a geographic basis.
[emphasis added]
27As well, in The North Bay Board of Education, [1969] OLRB Rep July 489, the Board, in dealing with a school board maintenance unit in a newly created school board, described section 47a(10) [now s. 63(11] as "antagonistic, in the better sense of the word, to any instinct to preserve the status quo despite changing circumstances”.
28We have carefully considered all the authorities to which we were referred and comment on some of them as follows. City of Peterborough, [1979] OLRB Rep Feb. 133, referred to by Mr. Ryder, dealt with the reacquisition of a transit system by the City of Peterborough which had been previously operated on a contractual basis by an outside corporation. There was no intermingling, deemed or otherwise, that could trigger the operation of section 55(6) [now 63(6)]. The Board stressed in those circumstances that its consistent point of departure is a recognition that the primary purpose of the section is the preservation of employees' bargaining rights, as opposed to the same criteria as would apply in a certification application. At paragraph 13 it wrote:
in the fashioning or amending of bargaining units under section 55 [now section 63] of the Act the Board must give effect to existing bargaining rights to the extent that those rights can be reasonably accommodated within the new employer's administrative structures.
The Board made reference to the fact that the value of a bargaining unit is enhanced when developed through a succession of collective agreements into a "workable pattern of mutual expectations" saying it was understandably reluctant to dismantle a bargaining structure that has withstood the test of time. It held that where the drivers, mechanics and cleaners employed in the transportation service worked in locations separate from the other employees of the City, with a history of working together and bargaining together, with a separate community of interest from other City employees, there was no reason to believe that the continuation of the bargaining rights would unduly hamper the employer's operations. This case is readily distinguishable on its facts. The previously unrepresented office workers had become an accretion to the City's office and clerical unit. The people at issue were the drivers and mechanics previously employed by the transit company. Nothing had changed except the name of their employer. The same cannot be said when the legislature has intervened to completely reorganize the entire employment situation in creating a new body corporate to better carry out its intent of delivering French language education. More importantly perhaps, the Board found there to be a separate community of interest from the other employees of the City. With or without deemed intermingling, such a finding is not open to us on the facts before us. The evidence did not establish a community of interest in the maintenance employees of this family of schools which is different from those in other schools in the Roman Catholic sector or from those in the public sector.
29In Oshawa Wholesale Ltd., [1965] OLRB Rep. Feb. 584, a company which owned twenty-two grocery stores acquired another company with eight stores. At the time of the hearing only two employees had been intermingled although further intermingling was planned. The Board held that the intermingling was so slight that it should not exercise its discretion to alter or amend the existing bargaining rights. The bargaining rights for the newly acquired stores were simply continued. The Board commented that in a certification application it would probably have found the appropriate bargaining unit to have been all the stores in the metropolitan area, but here just continued previously acquired rights. In other words, in applying the successor rights provisions, the Board must consider not only what would be an appropriate bargaining unit in a certification proceeding, but also it must take into account, and in large measure be governed by, the scope of the bargaining unit already in existence. This decision did not deal with deemed intermingling and is therefore of limited assistance. Nor does it deal with a completely reorganized employment structure. As well it may usefully be contrasted with the more recent remarks of the Board in Silverwood Dairies, [1980] OLRB Rep. Oct. 1526 at paragraph 23 as follows:
The Board has wide powers with respect to determining bargaining units and voting constituencies in cases arising under section 55(6)(d) [now 63(6)(d)] and section 55(8) [now 63(8)]. In exercising those powers, it is desirable that the determination should be, subject to any exceptional circumstances that may exist in particular instances, consistent insofar as possible with the overall practice of the Board with respect to the determination of appropriate units (see Mammy's Wonder Bakeries, [1969] OLRB Rep. March 1324).
30The jurisprudence, read as a whole makes it clear that the Board does take a different approach where there is intermingling, unless it is so slight as not to be acted on as in Oshawa Wholesale Ltd., supra. This is structured by the fact that section 63(4) directs the Board to turn its mind to what is the "like" bargaining unit, while section 63(6), which operates once there is intermingling, speaks of the "appropriate" bargaining unit. In intermingling situations where the Board has not ordered a vote it has looked to considerations such as the fact that the original business remained a distinct and identifiable one as in Hamilton Cargo Transit, [1983] OLRB Rep. June 887. See also Simcoe Block, [1982] OLRB Rep. Jan. 118. Although the schools which Local 272 seeks to continue to represent are still identifiable, they have no status for maintenance distinct from any other schools in either sector. For maintenance purposes, they are now part of the larger "business" of the reorganized school board and thus the facts are not similar to these cases. Furthermore, there has been an actual intermingling of tradesmen for emergency work.
31In the deemed intermingling situation ,it is also useful to refer to The Corp. of the City of Kitchener, [1973] June 306. That case dealt with the situation in which various municipalities were amalgamated to form the Corporation of the City of Kitchener, by statute. In considering section 55(11) [now 63(11)], the deemed intermingling section, the Board indicated that a balance must be struck between preserving the bargaining rights held by the intervening trade unions prior to the amalgamations while at the same time determining a bargaining unit or units which are appropriate in the context of the structural organization of the employer. The Board went on to consider the structure in the new organization and whether there was intermingling, actual or planned. For the disputed groups, the Board found three bargaining units to be appropriate - one of all mechanics and service men, one of all gas and water workers and one of bus and trolley drivers. This is a result at odds with that sought by Local 272 in that the bargaining units were organized as to work function regardless of geographic location. For example, mechanics working out of two depots who had formerly been employed by two separate employers became part of the same bargaining unit. The Board cited the fact that the work performed by the mechanics, although at different locations and on different vehicles, was largely the same, and that, although minimal, there had been some interchange of personnel between the two depots.
32On the basis of the jurisprudence in deemed intermingling situations, then, the amount of actual intermingling is not irrelevant, but it is not the only or the principal factor to be considered. The legislative direction to deem intermingling must be given some meaning. The discretion it triggers is to consider what is appropriate, not merely what is "like" as in section 63(3). Although more than one appropriate bargaining unit is possible, we do not find on the facts before us that a family of schools is the appropriate basis for a bargaining unit. We agree with counsel for Local 272 that a vote is not automatic, but we do not think the facts before us suggest that a vote is inappropriate, or that the prior bargaining units should be preserved in the manner suggested.
33The issue before us could be dealt with simply on the basis that we are not persuaded that there is reason to depart from the thoughts of the Board expressed in, among others, Waterloo County Board of Education, and The North Bay Board of Education, supra. The scheme urged on us on behalf of Local 272 would do exactly what the Board there warned of: it would endorse the idea that employees in maintenance classifications were distinguishable on the geographic basis of the location of the school to which the employees were originally hired by the English language Boards and would be entirely driven by an attempt to preserve the status quo despite very changed circumstances. It is difficult to see what effect would be given to Bill 109's deemed intermingling in this result.
34However, the legislature has spoken more clearly here than in cases which fall to be determined under section 63(11) or one of its predecessors alone. There is much more in Bill 109 to guide us about the intended structure of the workplace than just the deemed intermingling language of section 75. Most importantly perhaps, the legislature assigned the function of maintenance to the full board. It had the option to assign it to the individual sectors as it did with so many other things in section 4(1). It chose not to do so. Although it is clear that the two sectors have the right to transfer the matters in their exclusive jurisdiction to the full board (s.4(4)), there is no parallel right for the full board to transfer things in its exclusive jurisdiction to the sectors. The full board is comprised of the two sectors functioning together; it is defined in section 1(1) as all the members of the French-language Board. The legislature made a clear choice to move away from the Roman Catholic/public designation in the matters it assigned to the full board rather than to the sectors. This assumes even more importance in the context of the overriding fact that the legislature departed from the previous division between school boards identified as Roman Catholic or public and moved to a school board identified by its language of instruction.
35It is also clear that the legislature intended to move away from the municipal boundaries which shaped the predecessor English-language school boards. The Regional Municipality of Ottawa-Carleton is the municipal organizational base for Bill 109. For the English-language school Boards it was the City of Ottawa and the County of Carleton, each of which had a Roman Catholic and public school board.
36These factors in the legislation indicate that the legislature was moving away from the basic organizing structure underlying the English-language school board for those matters assigned to the full board, among which is maintenance. The legislation ended the structure which provided the parameters of the bargaining unit sought by Local 272. Local 272 wishes to preserve a maintenance bargaining unit of only Roman Catholic schools limited to the City of Ottawa. What remains of it under the new French-language school board is a family of schools in the Roman Catholic sector, not an organizational unit with any relationship to the place assigned maintenance by the new legislation.
37We are persuaded that the same result should pertain even if one analyses this problem from the point of view urged on us by Local 272 that the Roman Catholic sector is the de facto employer. The structural logic of Bill 109 crosses the old municipal boundaries even within the Roman Catholic sector. The new Board, even if limited to the Roman Catholic sector, looks radically different than the old, and we see the deemed intermingling provisions to be an invitation to take full account of this fact. A family of schools as a basis for collective bargaining rights does not fit with the fact that the Roman Catholic sector is also defined along the boundaries of the Regional Municipality. To base an appropriate unit on a family of schools would be equivalent to creating a partial departmental bargaining unit, something the Board has not traditionally found to be appropriate.
38The viability of the relationship between Local 272 and the employer during the transitional period must be seen against this legislative backdrop. It is true that there was no extraordinary problem demonstrated in evidence before us. However, it is also clear that this period was marked both by legislative prescription and dealings between the employer and the four unions that would be unusual during the normal currency of a bargaining relationship. No matter how successful, the legislature's intention as expressed throughout Bill 109 was that this situation would be temporary. Attaching bargaining rights to a family of schools in the City of Ottawa would be to perpetuate several aspects of the predecessor situation which the legislature specifically did away with. We did not see this as an appropriate basis of defining the bargaining rights and thus ruled as we did.
The Vote Results
39Subsequent to our ruling recorded above, the parties settled the remaining issues among them as recorded in the Board's decisions of October 24 and 29. The votes pursuant to these decisions have now been held.
40There were four bargaining units in which votes were held as follows:
(1) The office and clerical employees of the Roman Catholic sector.
(2) The maintenance employees of the full Board.
(3) The cafeteria employees of the public sector.
(4) The bus drivers in the Roman Catholic sector.
41No statement of desire to make representations has been filed with the Board within the time fixed under under subsection 1 of section 70 of the Board's Rules of Procedure following the taking of those votes, except with regards to the vote regarding the full Board maintenance unit. The issues raised in representations filed by Local 272 in regards to that vote will be heard by the Board shortly. For the other bargaining units the results are as follows.
42Office and Clerical Employees - Roman Catholic Sector: On the taking of the representation vote directed by the Board on October 24, 1989, more than fifty percent of the ballots cast were cast in favour of the Carleton Roman Catholic Separate School Board Employees Association. Therefore, the Board declares that it is the exclusive bargaining agent for the employees in the office and clerical unit in the Roman Catholic sector, the full description of which is set out in the Board's decision of October 24, 1989.
43Cafeteria Employees - Public Sector: On the taking of the representation vote directed by the Board on October 29, 1989, more than fifty percent of the ballots cast were cast in favour of the Ottawa Board of Education Employees' Union. Therefore the Board declares that it is the exclusive bargaining agent for the cafeteria employees in the public sector. The full description of the bargaining unit is set out in the Board's decision of October 29, 1989.
44Bus Drivers - Roman Catholic Sector: On the taking of the representation vote directed by the Board on October 29, 1989, more than fifty percent of the ballots cast were cast in favour of the Carleton Roman Catholic Separate School Board Employees Association. Therefore the Board declares that it is the exclusive bargaining agent for the unit of bus drivers in the Roman Catholic sector, the full description of which is set out in the Board's decision of October 29, 1989.