[1995] OLRB Rep. July 923
0837-95-R 0838-95-R; 0839-95-U Ontario Public School Teachers' Federation Applicant v. The Board of Education for the City of Toronto, Responding Party
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members I. A. Ronson and K. Brennan.
APPEARANCES: Kathleen Martin and Harold Vigoda for the applicant, Richard Drmaj and Jill Vernon for the responding party.
DECISION OF K. G. O'NEIL VICE-CHAIR, AND BOARD MEMBER K. BRENNAN; July 26, 1995
The style of cause is hereby amended to reflect the correct name of the responding party: "The Board of Education for the City of Toronto". The applicant union will be referred to as OPSTF in this decision and the responding party as the Toronto Board.
The applicant requested that Board File No. 0839-95-U be adjourned sine die and the responding party did not object. Leave is hereby granted for that matter to be adjourned sine die. Unless either party requests that the matter be brought back on within one year of this decision it will be terminated. The remaining two files are related applications for certification and for combination of bargaining units.
OPSTF has applied for certification for a bargaining unit composed of two classifications. These are: i) program supervisors who work under the auspices of the continuing education department providing a service known as Language Instruction for Newcomers to Canada (LINC), ii) lead instructors who provide seniors' programs in the same department. Since 1992 OPSTF has been the bargaining agent for the lead instructors in the adult basic education, English as a second language and parenting programs run by the Toronto Board. It is common ground that OPSTF is certifiable in the new unit and there is no dispute about the scope of that unit, but rather about whether it should be combined and how it should be described. The union wishes the new unit and the previously certified unit to be combined under the provisions of section 7 of the Labour Relations Act.
The applicant's proposed unit is as follows:
all Continuing Education Language Instruction for Newcomers to Canada (LINC) Program Supervisors and all Continuing Education Seniors' Program Lead Instructors of the Board of Education for the City of Toronto in the City of Toronto.
The responding party's is as follows:
all Language Instruction for Newcomers to Canada (LINC) Program Supervisors and all Continuing Education Seniors' Program Lead Instructors of the Board of Education for the City of Toronto in the City of Toronto, save and except managers, administrators and persons above the rank of manager/administrator.
- The existing bargaining unit is described as follows in the Board certificate:
(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.
(4) In the case of manufacturing operations, the Board shall not combine bargaining units of employees at two or more geographically separate places of operations if the Board considers that a combined bargaining unit is inappropriate because the employer has established that combining the units will interfere unduly with,
(a) the employer's ability to continue significantly different methods of operation or production at each of those places; or
(b) the employer's ability to continue to operate those places as viable and independent businesses.
(5) In combining bargaining units, the Board may amend any certificate or any provision of a collective agreement and may make such other orders as it considers appropriate in the circumstances.
(6) This section does not apply with respect to bargaining units in the construction industry.
The major difference between the parties is as to whether or not the two bargaining units should be combined. Taking their cue from Hydro Electric Commission of the City of Ottawa, [1994]OLRB Rep. April 516, the parties agreed that the employer would argue on the combination application first.
Employer counsel argued that combining the proposed units would lead to serious labour relations problems and not contribute to viability and stability. It was his view that the only criterion of section 7(3) that was met by the facts of this case was the reduction of fragmentation. A series of factors together, dealt with below, create a serious labour relations problem in his view.
Employer counsel submitted that the Act encourages parties to bargain a collective agreement as quickly as possible and to maintain its terms throughout. Where something that does not facilitate that is introduced, serious labour relations problems are created. He referred to Premark Canada Inc., [1993] OLRB Rep. June 540 at paragraph 30 where there is a discussion of the fact that the collective agreement of an existing bargaining unit does not necessarily have to apply to the new group in a combined bargaining unit. This leaves an option of renegotiating the collective agreement, which in counsel's submission is a recipe for instability. Here, argues counsel, the new unit would necessarily introduce a further complicating factor into a bargaining relationship which has already demonstrated its inability to successfully negotiate a collective agreement. Counsel was here referring to the fact that the existing unit was certified in 1992 and the first collective agreement has yet to be achieved. The parties are currently proceeding to first collective agreement arbitration and have appointed their nominees, but a Chair has not been selected.
Employer counsel also refers to the separate funding stream for LINC as a labour relations problem and a contributing factor to the instability of the bargaining unit itself. As well, he notes that seven people in the existing bargaining unit have been advised of termination. Counsel observes that there will be 10 new people inserted into the mix and the parties will have to deal with whether they are included in the seven to be laid-off or not. Counsel argues that if the bargaining unit combination were refused, it would not be necessary to face this problem.
The relevance of the difference in funding in counsel's view is that the administrative chain of reporting is different. There are differences in the rates of pay and in the funding formula which will lead to difficulties in collective bargaining and generally in labour relations if they are lumped in with a group with different funding. Counsel submits that unless the insertion of the new group would stabilize the relationship, the Board should find that combination would cause serious labour relations problems and refuse the order requested.
In addition to the above noted factors that tend to favour instability in the employer's view are community of interest problems. Referring to Mississauga Hydro Electric, [1993] OLRB Rep. June 523, counsel submits that this is an appropriate factor to be considered. In sum, counsel argues that the above factors together create a sufficiently serious labour relations difficulty to refuse the application for combination.
The union argues that the Board's jurisprudence indicates that there is a low threshold for the applicant to succeed in a combination application and that every application that the Board has considered has been granted except where there were two different locals involved in the application. Counsel refers to Mississauga Hydro, cited above, North Bay Nugget, [1994] OLRB Rep. Aug. 1137 and The Spectator, Board File No. 1378-94-R, as yet unreported decision dated April 4, 1995 [now reported at [1995] OLRB Rep. April 559], to show the varied fact situations the Board has accepted for combination.
Union counsel submits that this bargaining unit is much more coherent that many of the ones that have been granted in that there is one location with all five classifications doing substantially similar work, reporting ultimately to the same person, with their labour relations administered by the same department. Further, it is submitted that although community of interest is not a strong factor in many cases of combination applications, on the facts of this case, it would be strongly supportive.
The union disagrees that the combination would cause serious labour relations problems. Counsel argues that any difficulties in this fact situation can be dealt with by the fact that the unit is going to arbitration and these issues can be dealt with in that forum. But more basically, she argues that it is no different than any other case where the Board has looked at two groups at different stages. Union counsel argues that the funding difference should not be a factor in deciding whether or not a bargaining unit combination should be granted.
The union asked as remedy that the units be combined and the 1992 certificate be amended to incorporate the new unit. Further, she asked that the first contract arbitration be expanded and that the provisions of section 41 be held to apply to the new unit and that the Board remain seized.
When asked why the Board should amend the certificate rather than giving its more usual order combining the units and remitting the matter to the parties to negotiate, counsel responded that this was the only case she knew of where there was a long existing certification with no collective agreement in place at the time of the application for combination. She said that Olympia and York Developments Limited, [1994] OLRB Rep. May 583 is the only case which has dealt with remedy under section 7(5) and she thought the facts of this case were very different. In her view, amendment of the certificate was necessary to make it part of the first agreement process.
In considering the arguments of the parties we are mindful of the context of the education sector. Due to both statutory and other historical reasons, school boards have become a group characterized by an unusually high level of fragmentation of bargaining units. And the question of instructors of non-credit courses for this employer has been considered by this Board before. See Toronto Board of Education, [1986] OLRB Rep. June 900 where the Board refused to find a unit composed of some of the instructors in its "non-credit" continuing education department to be appropriate for collective bargaining. Although the detail before the panel in that case was not before the Board in this case, it is highly relevant background to the request made before us - to combine two very small classification based bargaining units. It is worth noting para. 24 of that decision, which reads in part:
Finally, for the purpose of completeness, we should reiterate the Board's traditional and continued reluctance to define bargaining units on the basis of employee classifications or employer departments because of the high potential for fragmented bargaining which that creates (see, for example: Cryovac Division, W.R. Grace & Co. of Canada Limited, [1981] OLRB Rep. Nov. 1574; Toronto East General and Orthopaedic Hospital Inc., [1981] OLRB Rep. Nov. 1672; University of Ottawa, [1981] OLRB Rep. Feb. 232; and Wasteel-Rosco Company Limited, [1979] OLRB Rep. Nov. 1125). Even in the newspaper industry, where departmental unionization has existed in the extreme, the Board indicated in 1981 that it might reverse the entrenched organizing patterns of the past, in favour of broader-based bargaining (see Hamilton Spectator [1981] OLRB Rep. Aug. 1177). Most recently, in T. Eaton Company Limited, [1984] OLRB Rep. May 755 and Simpson's Limited, [1984] OLRB Rep. Sept. 1255, the Board repeated once again that it would not be conducive to orderly and stable collective bargaining to divide up an employer's business into bargaining units based on departments.
Here, the result of not combining the two units would leave two bargaining units of sub-departments of the continuing education department. Without compelling reasons for that result, the Board is not of the view that it is an approach consonant with the Board's jurisprudence on appropriate bargaining units or the provisions of section 7 of the Act which are explicitly aimed at reducing fragmentation.
The employer concedes that the order sought would reduce fragmentation somewhat, but argues that the other problems it would create outweigh that fact. We turn to the remaining criteria - the facilitation of viable and stable collective bargaining and the causation of serious labour relations problems - in light of the matters raised by the employer.
The employer argued and we agree, that the two categories are interrelated in that factors which cause problems with stability and viability are surely factors to be considered in deciding whether the order sought would cause serious labour relations problems. The employer argues that the insertion of a new group into the currently stalled round of negotiations would create instability, rather than stability. This is because it would create new problems of integration with the existing bargaining unit. In counsel's view it negates the whole idea of collective bargaining, as it leaves open the option of re-negotiating the collective agreement - or here presumably whatever ground has been covered in negotiations to date, as there is not yet a collective agreement between the parties for the existing bargaining unit.
We are of the view that it is true that the integration of the new unit may well create some additional challenges at an already difficult set of negotiations. However, we are not of the view that this amounts to a labour relations problem serious enough to mean a combination order should not be granted. Firstly, there is no reason to believe it is anything but a start-up problem, i.e. there was nothing before the Board to suggest that any additional problems would be of a continuing nature. There was nothing to suggest that, for instance, the interests of the groups were in any way inherently discordant, such that merging the two units would create a situation that was not viable in the long-run.
We have considered whether separate funding is a factor that is so inherently destabilizing as to be an obstacle to a combination order. It is not our view that it is. It may mean that especially in an era of continuing restrictions on public funding that the separate funding creates an additional issue as to job security, but we do not see this as an issue going to the inherent viability of a merged bargaining unit. Indeed, there is also the possibility that a somewhat bigger unit may provide a measure of stability because the funding will not all be from one source. In any event, the most that can be said of the problem created by the separate source of funding is that it creates an issue to be dealt with at the table. If the units are not merged, the impact of a federal stream of money in a largely provincially funded operation will still have to be dealt with, but with all the additional costs of time and energy involved in a different set of negotiations leading to a separate collective agreement to be administered. There is nothing before us to suggest that once a collective agreement is in place the economies of scale (modest though they are in this fact situation) would not be available to the parties. In our view, the alternative of two very small units is significantly more of a problem to viability and stability than the problem of a separate funding stream.
We have also considered the problem of the employees who are subject to lay-off in the existing unit and the problem created by the appearance of a new group on the scene. Merging of bargaining units can create difficult problems around issues of seniority and order of lay-off and recall, and the Board does not wish to minimize them. However, they are inherent to the existence of the power to combine units. It would be, in our view, a frustration of the will of the Legislature in passing section 7 to say that the existence of any problem with respect to the merger of seniority lists should stand in the way of a combination order. And there is nothing before us to suggest that this problem is a particularly intractable or unusual one. In sum, we do not find it a sufficiently serious labour relations problem to warrant the refusal of an otherwise sound combination order.
Thus, on balance, we were of the view that granting the order would further the objectives of the Act more so than refusing it.
II. Whether it is appropriate to issue an interim certificate
The employer opposed the issuance of an interim certificate because of the uncertainty of the language of the bargaining unit and of the combination application. The union wished an interim certificate if the application for the combination of bargaining units was not to be dealt with forthwith.
We are of the view that our oral decision that the bargaining units ought to be combined renders this issue essentially moot and it is not necessary to make any further comment about it.
III. Wording of the bargaining unit description
Should the departmental name appear in the description? The applicant wants to have the words "continuing education" appear in the bargaining unit description for the LINC program supervisors as well as for the adult ESL lead instructors. Counsel argued that this is consistent with what the parties agreed to previously in the existing bargaining unit and what is not in dispute for the senior's instructors. Union counsel referred to this as an editorial difference of opinion.
The employer wished there not to be a reference to continuing education in reference to the LINC program supervisors because of the separate funding stream and the fact that the parties have dealt with them separately, calling them program supervisors rather than instructors. Employer counsel pointed out that since this is a new program created by federal funding, it is essentially controlled by the federal government, rather than the usual control of a school board established under provincial legislation. It is placed for ease of administration as a sub-department of the continuing education department, but the employer wishes it to be recognized as a separate funding area in the wording of the bargaining unit description, since it is federal money that is responsible for the hiring of the LINC employees. Counsel said that there was no magic as to why it should be included or excluded other than that the parties have agreed that there is a specific demarcation which separates LINC from the normal channels of continuing education.
Employer counsel also referred to examples of similar bargaining units in other school boards where "continuing education" was not put in the bargaining unit description.
Should there be a managerial exclusion line set out in the description of the bargaining unit? The union asks that there be no specific managerial exclusion line because the bargaining unit is described by classification and because there are no managers who are program supervisors or lead instructors. As well, it is argued that this is consistent with what the parties agreed to in 1992 for the existing bargaining unit. Counsel refers to the Sault Ste. Marie Board of Education, [1987] OLRB Rep. Nov. 1425 where the only exclusions from an occasional teacher bargaining unit relate to teachers employed as Bill 100 teachers, rather than a managerial exclusion line. Counsel asserts that it does not make sense grammatically to insert a managerial exclusion where there is only a specifically named classification. Counsel argues that the traditional managerial exclusion is because the word "employee~~ is somewhat ambiguous in that there are managerial employees and employees under the Act, so one needs to clarify. She refers also to editorial bargaining units where the exclusions are listed by classification and not by the general managerial line. She submits that the practice is different depending on which sector of industry one is dealing with.
On this issue, counsel for the employer says that the jurisprudence of the Board generally recognizes a line of managerial exclusion. Here there is an upper line of reporting of administrators and that is what they seek to be expressed in the bargaining unit.
Counsel for the Toronto Board points out that the bargaining unit that reports to these supervisors in CUPE contains an exclusion line of lead instructors, program supervisors and those above the rank of those classifications. Counsel also referred to continuing education bargaining units in other school boards which had managerial exclusion lines, albeit many on agreement of the parties, rather than by decision of the Board on a contested matter.
The differences between the parties, on the material before us, appear to be editorial differences of opinion, describing a bargaining unit about which there is absolutely no lack of clarity between the parties. Neither party's proposal is "inappropriate" nor is there a compelling reason to pick one over the other. We have drafted language which reflects a mid-ground between these positions. The description of the combined bargaining unit will be as follows, to which the applicant's bargaining rights will now pertain:
all Language instruction for Newcomers to Canada (LINC) Program supervisors and all Lead Instructors in the Seniors' Adult English as a Second Language, Adult Basic Education and Parenting Programs of the Continuing Education Department of the Board of Education for the City of Toronto in the City of Toronto, save and except Lead Team Leaders (3) and employees in bargaining units for whom any trade union held bargaining rights as of February 17, 1992, managers, administrators and persons above the rank of manager/administrator.
We are not of the view that it is necessary to amend the certificate to effectuate the combination order, and are not inclined to do so. In reply on the question of remedy, employer counsel indicated that he was in agreement that if the combination were granted, that the first collective agreement arbitration should be expanded to include any outstanding issues. Having regard to the agreement of the parties, we direct that their submissions to the Board of Arbitration hearing the issues in regard to the existing unit's first collective agreement include submissions on any outstanding issues in regards to the new unit as well as the existing unit. Essentially the parties have agreed to expand the scope of the first collective agreement arbitration. However, in the interests of encouraging negotiation and narrowing of the issues, we direct the parties to meet and negotiate on issues arising out of the above combination order before proceeding to arbitration.
We remain seized to deal with any remaining matter arising out of the above order.
DECISION OF BOARD MEMBER JAMES A RONSON; July 26, 1995
This is my first experience in dealing with the amendments in Bill 40 to the Labour Relations Act concerning the combination of bargaining units. Such are the vagaries of scheduling lately, at the Board.
I will be brief. The applicant union seeks to add new bodies to an existing bargaining unit that has failed to reach a collective agreement in two years of bargaining and which has instituted first agreement arbitration. There are serious problems raised also by the funding source for the salaries of the persons being added to the unit.
I do not need 14 pages to deal with these problems. It is obvious to me that granting the union request will throw the collective bargaining with the existing unit into disarray and will create serious labour relations problems. I do not understand Bill 40 to have that objective.
If the applicant union is entitled to a certificate it should read as follows:
"all Language instruction for Newcomers to Canada (LINC) Program Supervisors and all Continuing Education Seniors' Program had instructors of the Board of Education for the City of Toronto in the City of Toronto, save and except managers/administrators and persons above the rank of manager/administrator".