Ontario Secondary School Teachers' Federation v. Keewatin-Patricia District School Board, 1998 CanLII 18257

[1998] OLRB REP. JANUARY/FEBRUARY 46

3467-97-R Ontario Secondary School Teachers' Federation, Applicant v. Keewatin­Patricia District School Board, formerly known as the Kenora Board of Education, Responding Party v. Office and Professional Employees International Union, Inter­vener

BEFORE: R. O. MacDowell, Chair.

APPEARANCES: Josh Phillips. Shirley Dufour and Carole Stephens on behalf of the Applicant (OSSTF); no one appearing on behalf of the employer; Mary KcKinnon on behalf of the Intervener (OPEIU); Harold Vigoda, Ontario Public School Teachers' Federation, (watching brief).

DECISION OF THE BOARD; February 20, 1998

I

1This is an application for certification that was filed with this Board on December 16, 1997.

2The applicant union, "the OSSTF" seeks to represent a group of unorganized "administrative and support" staff employed by the Kenora Board of Education in its schools and offices.

3On December 17, 1997. Larry Piccinin, the Human Resources Administrator for the Kenora Board of Education, filed the school board's response - basically agreeing with the union's proposed bargaining unit description, but requesting that a representation vote be postponed until early January 1998, because of the school board's Christmas break.

4In a decision dated December 19, 1997, this Board (differently constituted) directed that a representation vote be taken so that the employees affected by the application would have the opportu­nity to indicate by secret ballot, whether or not they wished to be represented by the OSSTF. In deference to Mr. Piccinin's request, the representation vote was scheduled to take place in Kenora on January 7, 1998. The voting constituency is described this way:

all regular full-time and part-time educational assistants, library technicians and library clerks employed by the Kenora Board of Education.

5The representation vote proceeded on January 7, 1998, as scheduled, in the presence of representatives of the applicant union and the named school board. When the polling was completed, the ballots were counted. Of the 34 ballots cast, 33 ballots were cast in favour of the OSSTF.

6In other words, the employees have indicated, overwhelmingly, that they wish to be repre­sented by the union in any future dealings with their employer.

7Following the taking of the representation vote, scrutineers appointed by the union and the school board executed a "certificate" verifying the regularity and sufficiency of the balloting. In addition, on January 7, 1998, Mr. Piccinin co-signed a document which reads as follows:

The parties confirm the accuracy of the Returning Officers' Report of the Vote and acknowledge that they are bound by the most recent agreements reached between them: as set out in the pre-vote consultation form, and consent to the Board issuing a decision based on this agreement without a hearing before a panel of the Board, subject to the right of any pointy in the seven (7) working day period following the vote, to make representations or to respond to representations, made by another party about any new matter they may be entitled to raise.

(emphasis added)

8Neither Mr. Piccinin nor any other representative of the school board has raised "any new matter" or made any representations with respect to the disposition of this certification application. The school board has not opposed the OSSTF's application for certification. Nor has it challenged the employees' right to be represented by the OSSTF if that is their wish (which the representation vote confirms that it is).

9However, by letter dated January 16, 1998, another union, the Office and Professional Employees International Union ("OPEIU") wrote to the Board as follows:

We represent a bargaining unit that includes educational assistants and library personnel with the former Dryden Board of Education. That Board was merged with the Kenora Board of Education and the Red Lake Board of Education to form a new district school board under Bill 104, on January 1st. We understand that there was a certification vote held January 7th among educational assistants, library technicians and library clerks at the Kenora Board, that arose out of an application by OSSIF. We understand that as of January 1st. the Kenora Board is defunct. We are, therefore. objecting to the vote, and would like to be made an Intervenor in the application. I would appreciate receiving copies of any material filed to this point.

10When this matter was initially processed by the Board on December 19, 1997, Notice of Hearing was given to the named responding party, indicating that a hearing before the Board would take place, in Toronto, on February 2, 1998. That hearing proceeded as scheduled, and both the OSSTF and the objecting union, OPEIU, were present with their counsel. However, no one appeared on behalf of the named employer. Nor was there any communication from Mr. Piccinin or anyone else, revising the position taken in the waiver of hearing document that he executed on January 7, 1998. Accordingly, it appears that the OSSTF's application remains unopposed by "the employer".

11I have put the words "the employer" in parentheses in the previous paragraph, because I was advised by OPEIU counsel that (as indicated in OPEIU's letter), pursuant to "Bill 104" the Kenora, Dryden and Red Lake Boards of Education have been amalgamated into a new "district school board" known as the "Keewatin-Patricia District School Board". There were no details about how this merger was effected, or what effect, if any, Bill 104 (or the terms of merger) might have on this proceeding or the rights of employees. The regulatory framework was not put before me. It seems evident, though, that the "employer" (whatever its current incarnation) is not opposing this application, nor standing in the way of the wishes of employees, so clearly expressed in the representation vote. The only opposition comes from OPEIU.

12However, it is common ground that, as things now stand, OPEIU does not represent any of the employees at the (former) Kenora Board of Education; and, in particular, does not represent any of the employees in the voting constituency described above. Nor have any of those employees expressed any desire to be represented by OPEIU. OPEIU's current bargaining rights are confined to a grouping of employees in Dryden. OPEIU has no rights at all with respect to employees in Red Lake or Kenora. And as of the date of the hearing (February 2, 1998), OPEIU had launched no proceeding to acquire such rights.

13It is true that it is open to someone to make application under Bill 136 to restructure bargaining units in the new district school board; and if that happens, this Board may be disposed to consolidate geographically diverse bargaining units, and may direct a representation vote, with OPEIU as one of the choices on the ballot. But as of the date of the hearing, no such application had yet been made, so that OPEIU's interest in representing employees in Kenora is totally contingent, speculative, and perhaps "tactical". (I say "tactical" because by eliminating OSSTF - despite the wishes of employ­ees in Kenora - OPEIU may derive a competitive advantage in any future representation vote that this Board may order. That is OPEIU's only "real interest" in a certification proceeding involving OSSTF, where none of the employees has expressed any interest in OPEIU.)

14The OSSTF challenges the right of OPEIU to intervene in this proceeding - asserting that there is no legal foundation for such intervention. OSSTF points out that OPEIU does not represent any of the employees affected by the certification application, nor have any such employees expressed any desire to be represented by OPEIU. In this respect, OPEIU is a complete "stranger" to the proceeding, and has no legal interest in the outcome.

15In OSSTF's submission, it is insufficient that OPEIU may represent some employees in some other parts of the now-amalgamated employer's organization, or that OPEIU might at some point in the future be a party to proceedings before the Board under Bill 136, in which the Board might be called upon to consider the perimeter of OPEIU' bargaining rights and might revise that perimeter to include Kenora, and might direct a representation vote with OSSTF and OPEIU on the ballot. As of the application date, the vote date and the hearing date, there were no "Bill 136 proceedings" before the Board involving OPEIU or anyone else; and in OSSTF's submission, OPEIU's interest in this proceed­ing is entirely incidental and peripheral.

II

16I agree with OSSTF's submission, for the reasons outlined by its counsel. In my view, OPEIU has no status to intervene or make submissions in this matter; and since the employer (however now defined) has chosen not to do so, OSSTF's application for certification stands unopposed. If there is a "Bill 136" (or Bill 104, or Bill 160) issue to be addressed, the place to do that is in an application under that legislation. Should such Bill 136 (or other) application be perfected, the OPEIU, the employer, and anyone else with a legal interest in the outcome will have the opportunity to determine the effect (if any) of the current certification application on rights under other legislation.

III

17I do not propose to dilate on the possible interplay between Bill 136, Bill 104 and Bill 160, the Regulations made thereunder, and the institutional relationship between the makers of such Regulations (i.e. the Lieutenant-Governor-in-Council and the Education Improvement Commission). None of these matters was canvassed before me. All that can be said, therefore, is that if the Kenora Board has been "merged" into some broader entity, it has also been "continued" for practical purposes and possibly for legal purposes as well. It cannot be said, on the material before me, that the Kenora Board of Education has disappeared for all purposes or is totally "defunct", as OPEIU describes it. Certainly, the behaviour of the school board officials at and after the vote does not support that inference.

18The instruments effecting the transformation of the Kenora Board into something else may well have something to say about these matters; because, I note for example, that Bill 104 contemplates that there may be Regulations touching on: "the continuation of legal and other proceedings commenced by or against an existing board and the enforcement of Court orders and other orders affecting an existing board", as well as Regulations affecting "any other matter that the Lieutenant-Governor-in-Council considers advisable in order to achieve an efficient and fair transfer of assets, liabilities, and employees of existing boards to district school boards" (Bill 104, section 7(9)). The parties simply did not put before me what Regulations have been made, or how they might affect the present proceeding, because no one outlined how the purported merger was effected.

19The point is: the Board is not persuaded that any of this can or should be canvassed in the context of a certification application which was properly launched before any purported merger, and was practically continued with the participation and (at least tacit) consent of the employer representa­tives. The above-mentioned legislation is not expressly retroactive (at least not on the surface); and whether the terms of the various Bills and any subordinate Regulations stand in the way of the OSSTF application (and employee wishes) is a question best resolved in an application under that legislation with submissions from all affected parties - especially the nominal employer. For present purposes, it seems to me that the Board should simply proceed with the certification application as presently framed. If it later becomes necessary to reconsider that application, the Board has ample authority to do so under section 114(1) of the Labour Relations Act, which reads this way:

114. (I) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

IV

20For the purposes of this application, the Board finds that the unit of employees appropriate for collective bargaining should be framed as follows:

all regular full-time and part-time educational assistants, library technicians and library clerks employed by the Kenora Board of Education.

21In the representation vote taken on January 7, 1998, more than fifty per cent of the ballots cast by employees in this bargaining unit, were cast in favour of representation by the applicant, the Ontario Secondary School Teachers' Federation.

22Pursuant to section 10(1) of the Labour Relations Act, the Board therefore certifies the Ontario Secondary School Teachers' Federation as the bargaining agent for the employees of the Kenora Board of Education in the above-described bargaining unit.