Canadian Brotherhood of Railway Transport and General Workers v. Kingston Access Bus

[1993] OLRB Rep. July 610

0254-93-R Canadian Brotherhood of Railway Transport and General Workers, Applicant V. Kingston Access Bus, Responding Party

BEFORE: S. Liang, Vice-Chair, and Board Members W. N. Fraser and B. L. Armstrong.

DECISION OF THE BOARD; July 15, 1993

[1]. This is an application to combine bargaining units pursuant to section 7 of the Labour Relations Act in which the Board, by oral ruling dated May 25, 1993, directed that the bargaining units in question be combined. We now provide our reasons for the ruling.

[2]. Subsections 7(1) and (3) state:

7.-(1) On application by the employer or trade union, the Board may combine two or more bargaining units consisting of employees of an employer into a single bargaining unit if the employees in each of the bargaining units are represented by the same trade union.

(3) The Board may take into account such factors as it considers appropriate and shall consider the extent to which combining the bargaining units,

(a) would facilitate viable and stable collective bargaining;

(b) would reduce fragmentation of bargaining units; or

(c) would cause serious labour relations problems.

[3]. The bargaining units which are the subject of this application are a group of full-time employees and a group of part-time employees. The full-time bargaining unit has been represented by the union since 1987. The union received a certificate from the Board on May 18, 1993 with respect to the part-time bargaining unit.

[4]. Kingston Access Bus ("the company") opposed the combination of these two units. The representative of the company at the hearing in this matter submitted that the Board ought to give the parties time to negotiate a collective agreement covering the part-time workers, before sweeping them into the collective agreement covering the full-time workers. It was submitted that there is no reason to think that there will be serious labour relations problems as a result of having two separate bargaining units. It is premature in the relationship, at least with respect to the part-time bargaining unit, to conclude that it would facilitate stable collective bargaining to combine the two bargaining units.

[5]. In addition, it was contended that the union is attempting to achieve by Board direction what it could not get in bargaining, ie. the inclusion of part-time workers in the collective agreement. The granting of an order where the parties have engaged in bargaining over the issue and reached their own agreement would be disruptive to collective bargaining. Among other things, it would result in the re-opening of the full-time collective agreement in mid-term, which as it stands contains provisions which are completely inappropriate to part-time workers.

[6]. The Board carefully considered the arguments made against the consolidation of the two bargaining units, and concluded that a direction to combine them would facilitate viable and stable collective bargaining and reduce fragmentation without causing serious labour relations problems.

[7]. There is no doubt that the combined bargaining unit is one that the Act recognizes as appropriate for collective bargaining. Section 6(2.1) of the Act states:

(2.1) A bargaining unit consisting of full-time employees and part-time employees shall be deemed by the Board to be a unit of employees appropriate for collective bargaining.

[8]. We accept therefore, as our initial proposition, that the combined bargaining unit is the preferred bargaining unit for the purposes of the Act. To the extent that the Legislature has expressed a preference for such a bargaining unit, we are satisfied that it would "facilitate viable and stable collective bargaining" and "reduce fragmentation of bargaining units" to direct the combination.

[9]. We do not view the fact that the parties have discussed the issue at the bargaining table and been unable to resolve it, to weigh against the order sought. It is well settled that in collective bargaining negotiations, a party cannot press to impasse a demand to change the bargaining unit configuration. Section 7 allows the Board to consider whether viable and stable collective bargaining would be enhanced by changes to the bargaining unit structure, even outside the realm of the parties' agreement.

[10]. For the most part, the arguments of the company that a combination order would lead to serious labour relations problems relate, in our view, to concerns going to the implementation of such an order. The company is concerned that the terms of the full-time collective agreement are not appropriate to the part-time unit. It is also concerned that it might have to re-open its full-time collective agreement in mid-term. We are satisfied that these are not "serious labour relations problems". To the extent that the parties will have to engage in negotiations over the terms and conditions that will apply to the part-time employees, they will have engaged in that process in any event, as a result of the recent certification of the part-time unit.

[11]. Finally, in our view, the potential mischief of re-opening the collective agreement covering full-time workers in mid-term (and it is not at all clear that this is a necessary result of the order here) is a consequence which is outweighed by the other factors in favour of directing the combination of these two units.

[12]. In addition to the order directing the combination of the two units, the union sought an order that the current collective agreement be applied to the part-time unit. For the most part, it is urged, the provisions which govern part-time employees are already the same as those that are contained in that agreement. The Board declined to make such an order, preferring to leave the negotiation of these matters to the parties. The Board therefore directed the two bargaining units to be combined, remitted the matter back to the parties and remains seized of any issues arising out of the implementation of its order.