Wellington Separate Support Staff Association v. The Wellington County Separate School Board, 1992 CanLII 6773

[1992] OLRB Rep. October 1128

0479-92-U Wellington Separate Support Staff Association, Applicant v. The Wellington County Separate School Board, Respondent.

BEFORE: Janice Johnston, Vice-Chair, and Board Members G. O. Shamanski and B. L. Armstrong.

APPEARANCES: James G. Knight, Marion Cozzarin, Bruna Ballestrin and Toni DiBattista for the applicant; Joseph N. Tascona, R. Michael McKinnon and T. S. Waters for the respondent.

DECISION OF THE BOARD; October 7, 1992

1This is a complaint pursuant to section 91 of the Labour Relations Act (the "Act") in which the complainant the Wellington Separate Support Staff Association (the "Association") alleges that the respondent, The Wellington County Separate School Board (the "School Board" or the "Employer") has violated section 15 of the Act. Section 15 states:

15. The parties shall meet within fifteen days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement.

2At the outset of the hearing the parties provided the Board with opening submissions. After hearing those submissions it was apparent that the facts were essentially not in dispute. After a brief recess, both parties indicated that they had elected not to call any evidence and were prepared to proceed based upon the factual context outlined in their opening submissions. We therefore proceeded directly to final submissions.

3The Association has existed for many years and has represented its members in informal negotiations with the School Board concerning terms and conditions of employment. In March 1991 a memorandum of settlement covering the period January 1,1991 to December 31, 1991 was signed between the parties. Amongst other things, this memorandum dealt with wages and terms and conditions of employment.

4On May 8, 1991 the parties signed a voluntary recognition agreement which provided as follows:

VOLUNTARY RECOGNITION

BETWEEN:

WELLINGTON COUNTY ROMAN CATHOLIC SEPARATE SCHOOL BOARD

(the "School Board")

-and-

WELLINGTON SEPARATE SUPPORT STAFF ASSOCIATION

(the "Association")

IN THE MATTER OF the voluntary recognition by the School Board of the Association as the sole and exclusive bargaining agent for a group of employees of the School Board hereinafter defined as the "bargaining unit";

WHEREAS the School Board is satisfied that the Association is a trade union as defined by the Labour Relations Act;

AND WHEREAS the School Board is satisfied that the Association is entitled to act as bargaining agent for the bargaining unit, that the majority of employees in the bargaining unit have freely chosen the Association as their bargaining agent, and that the Association would have sufficient membership support to be certified as bargaining agent by the Ontario Labour Relations Board;

NOW THEREFORE the parties agree as follows:

1. The School Board recognizes the Association as the sole and exclusive bargaining agent for all office, clerical and technical employees of the School Board, save and except supervisor, those above the rank of supervisor, CUPE and teachers. The group of employees of the School Board hereby represented by the Association as bargaining agent are accordingly defined for present purposes as the bargaining unit.

2. a) For greater certainty, the parties agree that the bargaining unit is currently comprised of the individuals listed alongside their current positions in Schedule A to this voluntary recognition and further recognize and adhere to the types of memberships and any limitations thereto;

i) member - includes only employees of the Wellington County Roman Catholic Separate School Board who are office, clerical and technical employees, save and except supervisors, those above the rank of supervisor, CUPE and teachers.

ii) restricted member - includes only employees of the Wellington County Roman Catholic Separate School Board who are project officers, equivalent officers and/or office, clerical and technical employees assigned to the Director of Education's office. The duties of a "restricted member" shall exclude involvement in Association negotiations and such related Association activities.

b) This recognition of member and restricted member referred to in 2, a), and ii, immediately above, is without prejudice to the position of either party in any subsequent hearing in connection with proceedings between the parties.

3. The parties hereby affirm that the School Board did not participate in or interfere with the formation, selection or administration of the Association, nor did the School Board contribute financial or other support to the Association.

4. The Association hereby notifies the School Board of its desire to bargain with a view to making a collective agreement. The parties hereafter agree to be bound by the bargaining process set out in the Labour Relations Act.

DATED at GUELPH, this 8TH day of MAY, 1991.

FOR THE ASSOCIATION FOR THE SCHOOL BOARD "Marion Cozzarin" "Illegible" "B. Ballestrin" "Illegible"

(Schedule A omitted)

5On November 21, 1991 the Association applied for conciliation. The parties agreed to defer conciliation and held their first negotiating session on January 23, 1992. On this date the Association provided the School Board with its proposed collective agreement which included the following scope and recognition clause:

ARTICLE 2- RECOGNITION AND NEGOTIATIONS

2.01 The School Board recognizes the Association as the sole and exclusive bargaining agent for all office, clerical and technical employees of the School Board, save and except Supervisors, those above the rank of Supervisor, C.U.P.E. and O.E.C.T.A. The group of employees of the School Board hereby represented by the Association as a bargaining agent are accordingly defined for present purposes as the bargaining unit.

The Association changed the reference to "teachers" found in the bargaining unit as defined in the voluntary recognition agreement to "OECI'A" in the above article. This is not a substantive change to the voluntary recognition agreement, as both versions reflect the "teachers" employed by the School Board.

6The parties met again on February 6, 1992 and the School Board tabled its proposed collective agreement. It included the following recognition clause:

ARTICLE 2

RECOGNITION

2.1 The Board recognizes the Association as the sole and exclusive bargaining agent for all employees employed in clerical, secretarial and office services save and except Supervisors and Officers, those persons above the rank of Supervisors and Officers, Human Resource Department staff, temporary employees, Computer Services Department staff, payroll Department staff, secretaries to the Director and Superintendent, Recording Secretary, Co-ordinator of Purchasing and Budgets, Accountant, Professional Support Staff, persons regularly employed for not more than twenty-one (21) hours per week and students employed during the school vacation periods.

There are significant differences between this proposed bargaining unit and the bargaining unit agreed to in the voluntary recognition agreement. The Association immediately objected to the School Board's proposed recognition clause and insisted that the bargaining unit remain as defined in the voluntary recognition agreement. The School Board refused to withdraw its proposed recognition clause. The Association therefore requested that the next meeting be conducted with the assistance of a conciliator and two negotiating sessions which had already been scheduled, were cancelled.

7The parties met with a conciliator on March 11, 1992. On April 2, 1992 the Association provided the School Board with a revised proposal and on April 29, 1992 the School Board responded with its revised proposal for a collective agreement. Neither the Association nor the School Board changed their respective positions with regard to the recognition clause. A "No Board Report" was requested by the Association and it was issued by the Minister of Labour on April 23, 1992. The effect of a "No Board Report" is to place the parties in a legal strike or lock-out position fourteen days after the release of the report. Fortunately in this case the parties have continued to negotiate and neither side has resorted to economic sanctions.

8On March 17, 1992 the School Board applied to the Board pursuant to section 108(2) of the Act seeking a declaration that various individuals were not employees within the meaning of the Act.

9On September 3, 1992 the School Board sent the Association an amended proposal concerning the scope and recognition clause. It reads as follows:

2.1 The Board recognizes the Association as the sole and exclusive bargaining agent for all employees employed in clerical, secretarial and office services, save and except Supervisors and Officers, those persons above the rank of Supervisor and Officer, Human Resource Department staff, Secretary to the Director of Education, Secretary to the Superintendent of Business, Co-ordinator of Information Services, Recording Secretary to the Board, Professional Support Staff and all employees covered by the C. U. P. E. and Teacher Collective Agreements.

Therefore, the School Board as of September 3, 1992 modified its demands concerning the scope and recognition clause but it was still not prepared to agree to the bargaining unit set out in paragraph one of the voluntary recognition agreement.

10The Association alleges that the School Board is bargaining in bad faith as it has reneged on the voluntary recognition agreement and is illegally seeking to alter the scope and recognition clause. The School Board disputes this.

11Counsel for the Association asserted that the voluntary recognition agreement sets out the agreed upon bargaining unit in paragraph one. Paragraph two provides for two types of bargaining unit members, "restricted" members and "members". In his submission, although there are two "classes" of membership, the parties agreed that both types of members are members of the bargaining unit. Counsel for the Association explained that the Association wanted to be open to all staff but was concerned that certain employees might find themselves in a position of conflict during collective bargaining. Hence, the exclusion from the negotiations and related activities found in paragraph 2(a)(ii) was to apply to seven positions and their incumbents. However, although they were therefore "restricted" in the sense that they could not become involved in negotiations or related activities, they were still members of the bargaining unit as defined in paragraph one of the voluntary recognition agreement. Counsel on behalf of the Association acknowledged that the parties intended paragraph 2(b) to provide either party with the right to challenge, via proceedings before the Board or at arbitration, whether or not an individual was a supervisor and should be excluded from the bargaining unit. In counsel's submission paragraph 2(b) acts to preclude either party from asserting the the matter has been settled. Counsel for the Association takes the position that although the language in paragraph 2(b) was unique and maybe even peculiar, paragraph one consisted of a straight forward bargaining unit description that the School Board was now seeking to change in the negotiations process.

12Counsel on behalf of the School Board took the position that the bargaining unit, as set out in the voluntary recognition agreement, has not been totally defined. He agreed that Article 2 provides for restricted members but he asserted that these restricted members were individuals who in a normal certification would fall outside the bargaining unit. Because of this, the parties included paragraph 2(b) to reserve for either side the right to contest the membership in the bargaining unit. Counsel argued that the School Board does not construe paragraph 2(b) as narrowly as the Association. He asserted that paragraph 2(b) resulted in the bargaining unit being qualified and left either party the right to deal with the definitions of members and restricted members set out in paragraph 2(a).

13Based on his interpretation of the voluntary recognition agreement, counsel for the Association argued that after failing to obtain the agreement of the Association to a new scope and recognition clause containing a significantly different bargaining unit than that agreed to in the voluntary recognition agreements in pressing this issue to the point of impasse the School Board has violated section 15 of the Act. Counsel pointed out that a voluntary recognition agreement is the same as a Board's certificate and that it sets out the bargaining unit description which is the corner stone for the collective bargaining which takes place. At negotiations, it is not illegal to raise and seek to discuss the issue but it is illegal to take it to impasse. In support of this proposition counsel referred the Board to the Brantford Expositor, [1988] OLRB Rep. July 653 and the cases referred to therein.

14Counsel for the School Board took the position that the negotiations concerning the scope and recognition clause have not reached an impasse. He pointed to the comments in the Wellington Dufferin Guelph Health Unit case cited in the Brantford Expositor case, that "No strike or lock-out was imminent nor are we satisfied that this issue was a real stumbling block to an agreement or that but for the employer's insistence on this issue there would have been an agreement" and argued that the same is true in the case before us. He stressed that the parties have continued to negotiate and that no strike or lock-out ever was or is imminent. He pointed to the fact that the School Board had not asked for a no Board report as additional justification for a finding that the parties have not negotiated to the point of impasse on the issue of the scope and recognition clause. Counsel for the School Board also asserted that there was nothing illegal in what the School Board was seeking in that its demands with regard to a scope and recognition clause were not inconsistent with the exclusions the Act provides for under section 1(3)(b).

15Counsel for the Association in reply argued that the impasse in this case is on a narrow issue. It concerns the scope and recognition clause. The fact that both sides have continued to negotiate on other issues does not effect this. In counsel's submission, the bargaining unit issue is not resolved as the Association has maintained from the first bargaining session that it is not prepared to amend the bargaining unit description contained in the voluntary recognition agreement. The School Board is maintaining even as late as one week before the hearing, a position significantly different from the voluntary recognition agreement. Counsel asserted that it is clear from this that the parties are at impasse on this issue.

16The Association is seeking:

(i) a declaration that the respondent has violated the Act, an order, to be posted, that the respondent proceed forthwith to comply with section 15 of the Act, and that the respondent agreed to the services of a mediation officer;

(ii) an order, to be posted, that the respondent withdraws proposed Article 2 and that it confirm the scope and recognition clause agreed to in the voluntary recognition agreement; and

(iii) an order, to be posted, that the respondent reimburse the complainant for all reasonable legal cost which were consequence of its unlawful activity.

In support of its request for costs due to the position the School Board took with regard to the scope and recognition clause, counsel for the Association referred the Board to: Plaza Fiberglas Manufacturing Limited, [1990] OLRB Rep. Feb. 192; Globe Spring & Cushion Co. Ltd., [1982] OLRB Rep. September 1303; Canton - East Ferris - Township, [1988] OLRB Rep. Sept. 866; Morewood Industries Limited, [1987] OLRB Rep. Jan. 92; Burlington Northern Air Freight (Canada) Ltd., [1986] OLRB Rep. Dec. 1628; Forintek Canada Corp., [1986] OLRB Rep. Apr. 453; Consolidated Bathurst Packaging Ltd., [1984] OLRB Rep. March 422 and Canada Cement Lafarge Ltd., [1981] OLRB Rep. Dec. 1722.

Decision

17We do not accept the interpretation of the voluntary recognition agreement put forward by counsel for the respondent. Paragraph one of that agreement sets out the agreed upon bargaining unit description. Paragraph 2(a) provides for two types of bargaining unit members, "restricted" members as defined by paragraph 2(a)(ii) and all other members as defined by paragraph 2(a)(i). Paragraph 2(b) leaves it open to the parties to contest who should be a restricted member and who should not be. If someone's status as a result of a challenge should change from member to "restricted" member, there is nothing in paragraph 2 that suggests they are not still to be included in the bargaining unit. We agree with counsel for the Association that paragraph 2 sets up two types of members in the bargaining unit but that both types are in fact still included in the bargaining unit. The bargaining unit as set out in paragraph one is extremely clear. We conclude therefore that the parties have executed a voluntary recognition agreement and that the bargaining unit description agreed to and contained in paragraph one is binding on both parties. The bargaining unit has been totally defined and it is not qualified by paragraph two.

18Counsel on behalf of the School Board took the position that there was nothing illegal in the School Board seeking a recognition clause different from the one found in the voluntary recognition agreement, as its demands were not inconsistent with bargaining unit exclusions the Board often finds pursuant to section 1(3)(b) of the Act. Whether or not the agreed upon bargaining unit in the voluntary recognition agreement covers individuals who the Board might exclude is not the issue before us. What is at issue is the fact that the School Board, having agreed to a particular bargaining unit in a voluntary recognition agreement, now seeks to resile from that agreement. The School Board in this case has made an application pursuant to section 108(2) concerning some of the employees who are currently included in the bargaining unit as set out in the voluntary recognition agreement. Utilizing section 108(2) may be an appropriate way to address the School Board's concerns with regard to the status of certain individuals. However, it is not appropriate for the School Board to attempt to negotiate to impasse a recognition clause which is different from the agreed upon bargaining unit description in the voluntary recognition agreement.

19The School Board on February 6, 1992 tabled as part of its proposed collective agreement a scope and recognition clause significantly different from the bargaining unit description found in the voluntary recognition agreement. The Association opposed any change to the previously agreed upon bargaining unit. While it is not illegal to raise and seek to discuss this issue, we agree with counsel for the Association that it is a violation of section 15 to take this issue to impasse. This is not to say that the scope of a bargaining unit once agreed to can never be altered. By an order of the Board or by the agreement of the parties a bargaining unit can either expand or contract in size. However, one party cannot by the use of economic sanctions seek to force the other party to agree to an amended bargaining unit description. The jurisprudence on this issue was summarized in the Brantford Expositor case, supra, as follows:

15. The Board's jurisprudence makes it clear that neither party to a collective agreement may press to impasse the definition of the bargaining unit, the extension of bargaining rights or other matters of recognition, because the concept of the definition of the bargaining unit and the recognition of its representative is fundamental to the scheme of the Act. This general theme has been sounded in variety of fact situations, e.g. a trade union attempt to force the extension of its bargaining rights, United Brotherhood of Carpenters and Joiners of America, [1978] OLRB Rep. Aug. 776, an employer's attempt to solve an anticipated jurisdictional dispute by way of bargaining, Toronto Star, [1979] OLRB Rep. Aug. 811 (the Burkett panel), a union's efforts to extend its rights beyond the provincial limits determined by the constitution, Burns Meats, [1984] OLRB Rep. Aug. 1049, and an attempt by an employer to modify the recognition clause to avoid a related employer declaration, Cybermedix Limited, [1981] OLRB Rep. Jan. 13. However, it is clear that the parties are entitled to raise and discuss these matters, as took place in the Journal Publishing Company of Ottawa Limited, [1977] OLRB Rep. June 309 and in the earlier Toronto Star case, Toronto Star Newspaper Limited, [1979] OLRB Rep. May 451 (the Carter panel). The Board's approach in the context of an employer proposal to delete casual nurses from the bargaining unit in the Wellington Dufferin Guelph Health Unit case, [1979] OLRB Rep. Nov. 1115 was as follows:

The bargaining unit issue poses more difficulty involving, as it does, the allegation that the respondent has sought to force the union to give up its statutory right to represent certain employees in the unit. This issue was discussed in United Brotherhood of Carpenters and Joiners of America, [1978] OLRB Rep. Aug. 776 where the Board found that a trade union could not strike to force the inclusion of employees in a bargaining unit. Although the Union and Employer could voluntarily agree to their inclusion, the board found that this issue could "not be pressed to an impasse", i.e., made the subject of a strike. Similar reasoning (and language) was employed by the board in Toronto Star, [1979] OLRB Aug. 811, where the Board characterized the employer's conduct as an attempt to circumvent the jurisdictional dispute provisions of the Act. It is contended that the present case is the reverse of the situation in the Carpenters case, supra, but we need not comment on that case because we are not persuaded that the bargaining unit issue was "pressed to an impasse." No strike or lock-out was imminent nor are we satisfied that this issue was the real stumbling block to an agreement or that "but for" the employer's insistence on this issue there would have been an agreement. The union was entitled to refuse to discuss the matter and require the employer to move on, but we are not convinced that the union did take this unequivocal position. One might wonder why, after so many years, the employer raised the matter, and left it "on the table" in face of the obvious opposition on the union; however, as at the date of the hearing, it was no longer "on the table" and we need not consider it further. Had we been satisfied that the employer was adamantly insisting on restructuring the unit or was directly, or indirectly, making either an agreement or a major concession conditional on the union's acceptance of its position in this matter, we would have found a breach of section 14.

16. It has been emphasized in the various cases that the bargaining unit is the critical starting point of collective bargaining and the manner by which one defines the parties to the bargaining relationship. A clearly defined bargaining unit is also necessary to know the grouping of the employer's employees in respect of which there is a duty under section 15 to bargain in good faith and make every reasonable effort to make a collective agreement. The general rule is that the parties are not allowed to insist upon demands which give rise to an illegality or to press to impasse a demand inconsistent with the scheme of the Act, which includes demands to restructure the bargaining unit.

20On the facts before us, the Association has acquired bargaining rights for the employees of the School Board in the bargaining unit as defined in paragraph one of the voluntary recognition agreement. For the purposes of determining this application, it makes no difference whether the Association acquires those rights via the Board's certification procedures or through the auspices of a voluntary recognition agreement. In the case of certification the Board makes a finding concerning the bargaining unit appropriate for collective bargaining and in the case of a voluntary recognition, the parties reach an agreement without recourse to the Board. The Act contemplates both possibilities and in both circumstances the employer is bound to meet with the holder of the newly acquired bargaining rights and negotiate a collective agreement.

21Counsel for the School Board argues that the Association is premature in filing this complaint as the parties are not at an impasse. From the beginning, the Association has not agreed to discuss any changes to the bargaining unit set out in the voluntary recognition agreement. The School Board has not accepted this refusal and has continued to insist on alterations to it. The Association was in a legal strike position in May, 1992 as they had obtained a no board report in April. They could have walked away from the bargaining table and perhaps precipitated a strike or lock-out but they chose not to. We disagree with counsel for the School Board's characterization that before the parties can be found to be at an impasse a strike or lock-out must be eminent. In the case before us the parties are in a legal strike or lock-out position and either side could resort to that economic sanction at any time. Given the intransigence of the parties on the issue of scope and recognition, further bargaining on this issue would have been meaningless and the parties could not conclude a collective agreement without resolving this issue. To find the Association's application premature and send the parties back to the bargaining table would be simply delaying the inevitable. There is no reason to anticipate that the parties will reach agreement on a new scope and recognition clause as there is no indication that the position of the parties will change. Whether or not the parties in a particular situation are at impasse on an issue is a judgement call. The fact that the parties are in a legal strike or lock-out position, in conjunction with the fact that the parties have not moved from the positions which were taken by them in January and February of this year concerning the negotiability of the scope and recognition clause, leads us to conclude that the parties have in fact bargained to impasse on the matter of the scope and recognition clause.

22The Association took the position that the School Board's insistence on amending the scope and recognition clause has delayed the negotiations between the parties and put it to considerable expense. The Association has requested that the Board order the School Board to pay as damages all the additional expenses incurred by the Association in bargaining. In the circumstances of this case, we are not prepared to make such an order. As counsel for the Association candidly admitted, paragraph two of the voluntary recognition agreement is somewhat unique. The School Board's interpretation of this paragraph resulted in it taking the position it did concerning the scope and recognition clause. Although we have concluded that this interpretation was incorrect, the position taken by the School Board was not completely unreasonable. In addition, we would observe that given that the parties have continued to negotiate it is not apparent that the negotiations have been unduly delayed.

23Having regard to the foregoing, the Board:

(a) declares that the School Board has violated the section 15 duty to bargain in good faith by bargaining to impasse on a scope and recognition clause different from that found in the voluntary recognition agreement; and

(b) directs the School Board to cease and desist from its position concerning the scope and recognition clause, to withdraw its current proposal concerning the scope and recognition clause and that it confirm the bargaining unit description set out in the voluntary recognition agreement.