[1995] OLRB Rep. September 1205
1700-95-R Labourers International Union of North America Local 837, Applicant v. Hamilton-Wentworth Roman Catholic Separate School Board, Responding Party
BEFORE: Roman Stoykewych, Vice-Chair.
APPEARANCES: S. B. D. Wahl and Thomas Troy for the applicant; M. Patrick Moran, Jim LoPresti and Howard Greene for the responding party.
DECISION OF THE BOARD; September 18, 1995
1This is an application pursuant to the provisions of section 7 of the Labour Relations Act. The applicant trade union seeks the combination of a unit of the responding party employer's employees engaged in "maintenance services and plant operations" with a unit of employees engaged as "cleaners". Both units were certified earlier this year in separate proceedings before the Board. In the case of the maintenance and plant employees, the application was in the nature of a displacement application, the employer having been bound to a collective agreement with an employees' association that expired on December 31, 1994. Bargaining has commenced for first collective agreements for both units. At the present time, "no board" reports have been issued with respect to both units.
2Section 7 of the Act provides as follows:
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.
(2) On an application under subsection (1) that is considered together with an application for certification, the Board may do the following:
Combine the bargaining unit to which the certification application relates with one or more existing bargaining units if the certification application is made by the trade union that represents the employees in those existing bargaining units.
Combine the bargaining unit to which the certification application relates with other proposed bargaining units if the certification application is made by the trade union applying for certification for the other proposed bargaining units.
Combine the bargaining unit to which the certification application relates with both existing and proposed bargaining units if the certification application is made by the trade union that represents the employees in those existing bargaining units and that has applied for certification for the other proposed bargaining units.
(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.
3A hearing was held in this matter on September 6, 1995, which proceeded on the basis of agreement as to facts. The approximately 150 employees in the maintenance services unit are engaged primarily on a full-time basis and perform their duties in the numerous facilities operated by the employer. Their work consists of the performance of various trades functions, maintenance, and cleaning of the facilities operated by the responding party. By contrast, the 140 employees in the caretakers' unit are engaged primarily on a part-time basis, and normally perform their duties only after school and business hours. Their duties appear to be related to the cleaning of the employer's facilities, rather than any ongoing maintenance of its structures.
4There was some dispute with respect to the precise characterization of the work performed by the respective groups, in particular, the extent to which the work of the cleaners resembles the work of the employees classified as "caretakers" in the maintenance unit. As noted above, there are a number of differences in the conditions of their employment. In addition, the cleaners' employment relationship has been administered separately from the maintenance employees, as they have not previously been represented by a trade union. On balance, however, I am satisfied that, to a significant degree, the work the cleaners perform is functionally integrated with the job functions of the caretakers, in that the actual job functions they perform are in many respects similar if not identical. Indeed, the two groups are frequently required to work together as "teams". Thus, while the probability of a "jurisdictional dispute" is somewhat remote in these circumstances, nevertheless I accept counsel for the trade union's position that the overlap of function is a potential, if not actual, source of conflict both in collective bargaining for, and in the administration of, separate collective agreements.
5In his submissions, counsel for the employer candidly (and entirely accurately) conceded that the Board's case law with respect to combination applications did not assist the employer's position in resisting the application in these circumstances. However, it was the thrust of his submissions that the Board, in the exercise of its discretion under section 7 of the Act, ought in various ways to take into account what he characterized as the changed labour relations environment caused by the current government's stated intention to revoke the provisions of "Bill 40", of which the combination provisions are a part. On that basis he urged the Board to deny the applicant's request that the units be combined.
6While the Board's discretion under section 7 is indeed broad, and not restricted to the "enumerated" considerations set out in subsection 7(3), I am not persuaded that it would be appropriate for the Board to exercise its discretion in the manner proposed by the responding party. The Board is an independent, quasi-judicial tribunal statutorily charged with various duties and responsibilities under the provisions of the Labour Relations Act and related legislation. Principal amongst those duties is the application of the legislation to the facts of the applications brought before it. While in its decision-making capacity the Board's role entails the consideration and forwarding of the labour relations policy as it is articulated by the Legislature in the form of legislation, that is something quite different from the implementation of a current government's policy with respect to labour relations. It is open, of course, for the government to pass legislation that would alter the labour relations policy as it is found in the current legislation, at which time the Board will apply such amended legislation and forward the labour relations policies expressed therein. Until such time as new legislation is passed, however, the Board is required to exercise its discretion within the parameters of the legislation currently in effect. In this respect, it would be a serious jurisdictional error, as well as a significant jeopardizing of the Board's adjudicative independence, to consider, in the course of exercising its statutory powers, a government's stated intention with respect to legislation that has yet to pass.
7The employer also asked the Board to consider the declining state of educational sector financing (of which he gave several recent examples), the current emphasis in educational policy placed upon directing funding dollars into the classroom rather than to administration, and, finally, the possibility that the boundaries of school boards may require adjustment in light of certain proposed government initiatives that, counsel stated, were due to be announced imminently. Counsel argued that in these circumstances, it would cause the employer "serious labour relations harm" within the meaning of paragraph 7(3)(c) of the Act were the union's bargaining power to be enhanced by virtue of the combination of the two units.
8While these fiscal, policy and organizational challenges facing the school board are grave indeed, it is clear that, to the extent that they are problems relating to labour relations, they are all founded on the assertion (which, in the immediate circumstances, is not an unreasonable one) that the combination of the two units would enhance the union's relative bargaining strength. However, as was argued by counsel for the applicant, the Board, in the course of applying the combination provisions has been less concerned by the immediate tactical considerations that would ensue upon combination, than upon its effect upon the promotion of viable, stable collective bargaining structures. For this reason, the Board has not generally seen an inquiry into the respective bargaining strengths of the parties occasioned by an alteration of the collective bargaining status quo to be "fruitful" in its assessments of "labour relations harm". (Mississauga Hydro-Electrical Commission, [1993] OLRB Rep. June 523; The Specfator [1995] OLRB Rep. Apr. 559.) I see no reason to depart from the Board's practice in this respect in the present circumstances. Even assuming that the increase in the bargaining power of the union is in some respects objectively measurable, there is no basis upon which to conclude that any disparity in the parties' respective bargaining strengths is such as to create labour relations problems of the sort that cannot be effectively dealt with in the course of collective bargaining.
9Otherwise, I am satisfied that the combination of these two units would contribute to the formation of a stable and viable collective bargaining relationship not characterized by the fragmentation inherent in a two unit bargaining structure. The employees in what is effectively a part-time cleaners' unit perform work that is analogous and related to the work performed by a substantial number of employees in the largely "full-time" maintenance unit. Given that they already work in significant measure as a "team", the integration of the employees into a single unit would appear to present few logistical difficulties (and none were seriously maintained in argument). Moreover, the consolidation of the two units would likely enhance the employer's flexibility in deploying its work force, while at the same time permitting for the possibility of lateral movement of employees within the combined unit. Further, consolidation would reduce repetitive bargaining, diminish the possibility of disputes relating to the units' respective entitlement to cleaning work, and, more generally, provide a more comprehensive forum for the joint resolution of disputes at the workplace. Finally, the combination of the two units would present obvious administrative efficiencies and conveniences for both parties, in that all administration relating to the employment relationship and to collective bargaining would occur within a single structure. On balance, then, labour relations considerations militate strongly in favour of combination of units in these circumstances.
10Finally, counsel for the employer requested that, in the event that I were to conclude that it was appropriate to combine the two units, that I nonetheless defer the effect of any order until such time as both collective agreements are settled. I am not persuaded that any estoppel-like doctrine is applicable in the present circumstances, nor is it clear to me that any sound labour relations objective would be achieved were the direction to be delayed until the completion of bargaining. It is to be noted that neither collective agreement has been settled and in this respect alone, the circumstances are quite distinct from those facing the Board in Zeller's Inc. [1995] OLRB Rep. Apr. 568, where such a direction was contemplated. In the present circumstances, I am not satisfied that constructive collective bargaining would be advanced were it to take place upon a separate basis, but with the knowledge that a combination of the units would ensue imminently. Even less attractive, in labour relations terms, is the prospect of the conclusion of those agreements triggering the negotiation process required by their consolidation. Accordingly, I decline to defer the combination direction as requested by the employer.
11Having regard to the foregoing, then, I am satisfied that these are appropriate circumstances in which to exercise the discretion granted to the Board in section 7 of the Act and to direct the combination of the two units. Accordingly, the Board directs that the following bargaining units:
a. all employees of Hamilton-Wentworth Roman Catholic Separate School Board employed in maintenance and plant operations, save and except area managers, maintenance supervisor, construction supervisor, office and clerical employees and cleaners; and
b. all employees of Hamilton-Wentworth Roman Catholic Separate School Board employed as cleaners in the Municipality of Hamilton-Wentworth, save and except supervisors, persons above the rank of supervisor and office and clerical staff;
be combined into a single bargaining unit described as follows:
all employees of the Hamilton-Wentworth Roman Catholic School Board employed in cleaning and maintenance services and plant operations, save and except area manager, maintenance supervisor, construction supervisor, persons above the rank of area manager, maintenance supervisor, construction supervisor, and office and clerical employees.
12The Board shall remain seized of this matter in the event that the parties encounter any difficulties in the implementation of this decision.