Kawartha Pine Ridge District School Board v. Canadian Union of Public Employees, Local 5555, 1998 CanLII 18263

[1998] OLRB REP. NOVEMBER/DECEMBER 986

1597-98-PS Kawartha Pine Ridge District School Board, Applicant v. Canadian Union of Public Employees, Local 5555, United Food and Commercial Workers International Union, Local 175, and Elementary Teachers' Federation of Ontario (for­merly the Ontario Public School Teachers' Federation), Responding Parties

BEFORE: Laura Trachuk, Vice-Chair.

APPEARANCES: Kees W Kort, E. Morrison, L. Piccinin, B. Davidson and G. Doughty for the applicant; John (Jack) Lapum for Ontario Elementary Teachers' Federation Professional Support Personnel; Georgina Watts, Ray Bromley, Libbie Pearson and Jim Bradshaw for United Food and Commercial Workers International Union, Local 175; B. Sheehan, D. Iuonochko, G. Hewitt and B. Rollings for Canadian Union of Public Employees, Local 5555.

DECISION OF THE BOARD; December 8, 1998

1. The style of cause is hereby amended to reflect the correct local of the responding party Canadian Union of Public Employees, Local 5555 (referred to in this decision as "CUPE").

2. This is an application under sections 22 and 23 of the Public Sector Labour Relations Transition Act, 1997 filed by the Kawartha Pine Ridge District School Board (referred to as the "school board"). The school board seeks determinations from the Board with respect to the number and descriptions of the bargaining units that are appropriate for its operations. The Kawartha Pine Ridge District School Board is a successor school board resulting from the merger of the Peterborough County Board of Education (the "Peterborough Board") and the Northumberland-Clarington Board of Education (the "Northumberland Board") pursuant to the Fewer School Boards Act, 1997.

3. At the outset of the consultation the Board advised the parties that it had received letters from some non-unionized individuals at the Northumberland-Clarington Board requesting that they be given notice of the proceedings. The Board established that its decision of October 22, 1998 indicating that the consultation would be proceeding on December 1 and 2 had been posted in the employees' workplaces and that, in fact, it had been e-mailed to all of the employees. The Board was therefore satisfied that the employees had notice of the proceedings. None of the employees who had written to the Board attended the consultation.

4. The employees of the former Peterborough Board are included in what is essentially an "all employee" bargaining unit represented by CUPE. That unit includes technical and "technological" employees and some professional student services employees. The other professional student services employees, specifically the social workers, are in a separate bargaining unit represented by the Elemen­tary Teachers' Federation of Ontario ("ETFO").

5. The employees of the former Northumberland Board are in three bargaining units: one bargaining unit of maintenance/custodial/warehouse and cafeteria employees represented by CUPE; one bargaining unit of office and clerical employees represented by the United Food and Commercial Workers Union, Local 175 (UFCW) and one bargaining unit of educational assistants also represented by CUPE. The professional student services personnel at the former Northumberland Board were not represented by a union nor were the "technological" services employees although the computer support employees were in the office and clerical unit.

6. Sixty percent of the employees in the new school board were in the former Northumberland Board and forty percent of them were in the former Peterborough Board.

7. The school board was seeking five bargaining units for its merged operations as follows: one professional student services personnel bargaining unit; one maintenance and custodial employees bargaining unit; one educational assistants bargaining unit; one office and clerical employees bargaining unit and one bargaining unit of technological employees. UFCW agreed that there should be a separate office and clerical bargaining unit which should not include educational assistants and ETFO agreed that there should be a separate professional student services personnel bargaining unit. CUPE was seeking an "all employee" bargaining unit. In the alternative CUPE was seeking three bargaining units: one unit of custodial/maintenance employees; one unit of office/clerical/technical employees and educational assistants and one unit of professional student services personnel.

8. After hearing the submissions of the parties the Board made the following oral ruling:

I have carefully considered the submissions of the parties. The Kawartha Pine Ridge District School Board is the amalgamation of only two predecessor school boards. One of those, the Peterborough Board collectively bargained with what was essentially an "all employee" unit (except the social workers). There is no evidence that this bargaining unit has given rise to any real labour relations problems. The Board is not inclined to fragment that bargaining unit into five smaller bargaining units, more than existed at either predecessor board, under the guise of "rationalization" as requested by the applicant.

Given the history here and the size of the bargaining unit, some of the concerns about managing the upheaval caused by restructuring are not as great as they might be in circumstances where the Board is requested to merge bargaining units which have all always been separate into one unit. In the circumstances of this application it is more consistent with the intent and purposes of the Act to continue with one "all employee" unit in the new school board. For clarity the Board finds that an "all employee" unit, excepting only managerial and confidential employees or any others the parties agree to exclude, is appropriate.

9. In making the above determination the Board took into account the current bargaining units and their history and the fact that the Peterborough Board and CUPE had successfully negotiated an agreement for the "all employee" unit. The Board also considered that there was some history of mobility between the office and clerical employees and the educational assistants in the Peterborough Board. The Board also factored in the size of the new board and the fact that forty percent of its employees were in the Peterborough Board which had an essentially "all employee" unit.

10. The Board weighed the positions taken by the parties. The Board was not persuaded that the technological bargaining unit urged by the school board was appropriate given the small number of employees who would be included and the fact that other technical support employees would be in a separate bargaining unit. Such a bargaining unit would resemble a departmental unit which the Board seeks to avoid. The Board also balanced the fact that CUPE and the Peterborough Board had managed to negotiate a "market value exception" for the technological positions against the school board's concern that inclusion in a larger bargaining unit would keep wages too low to attract these employees. None of the parties suggested that it made any sense to continue to have some of the professional student services personnel in a separate bargaining unit from the others as is currently the case at the former Peterborough Board. CUPE's alternative proposal was also reasonable and was consistent with a number of other Board decisions under this Act. If the school board and CUPE had agreed on the proposal it would have carried considerable weight with the Board even if the other two parties did not agree. However, given the lack of such agreement the Board had to consider whether CUPE's primary position for an "all employee" bargaining unit was the most appropriate proposal for the school board's operations and found that it was.

11. The Board also considered that CUPE represents two of the three bargaining units at the former Northumberland Board as well as representing the "all employee" unit at the former Peterbor­ough Board. CUPE therefore represents employees in every other potential bargaining unit. This is not a situation in which one union represents a majority of employees which are in only one group, such as custodial/maintenance, and asks the Board to order an "all employee" unit.

12. This is not the first time that the Board has found that an "all employee" bargaining unit is the most appropriate for a school board's operation under this Act. In Upper Canada District School Board [1998] O.L.R.B. Rep. July/Aug. 751, File No. 0756-98-PS, the Board found that an "all employee" unit was appropriate for a school board of comparable size to this one in circumstances in which some of the predecessor boards had had "all employee" units. This decision is also consistent with the Board's approach in Centre for Addiction and Mental Health (September 23, 1998, File No. 1118-98-PS, unreported) [now reported at [1998] OLRB Rep. Sept./Oct. 759] in which the Board found that in circumstances in which a significant percentage of the employees of the merged hospital had been in an "all employee" unit at one of the predecessor hospitals, a unit of "all employees" (except nurses) was appropriate.

13. Subsequent to the Board making the above ruling the parties met with an officer to agree to a bargaining unit description and vote arrangements in accordance with the Board's usual practice. However, the parties were unable to arrive at such an agreement. Instead they requested that I rule on the bargaining unit description because the school board would not enter an agreement, apparently even with respect to vote arrangements. However, the unions had reached an agreement on the outstanding matters. The Board accepted that agreement as their joint submission. The school board indicated that it was not agreeing with what the unions were presenting, but that it was not making any submissions and was content that the Board rule at that time. No explanation was provided to the Board for the school board's position. Under the circumstances the Board ruled on the bargaining unit description and vote arrangements pursuant to the agreement of the unions which was the only submission it received.

14. The agreement of the unions provides as follows:

Board File 1597-98-PS

Between:

Kawartha Pine Ridge District School Board

[this was apparently an error]

and

C.U.P.E. and its Local 5555 United Food and Commercial Workers International Union, Local 175 Elementary Teachers Federation Ontario Professional Support Personnel

Minutes of Settlement

1. The Responding parties agree to the following bargaining unit description: all employees of the Kawartha Pine Ridge District School Board in the Counties of Northumberland and Peterborough and the Town of Clarington, save and except supervi­sors and persons above the rank of supervisor.

For the purposes of clarity the supervisors are listed in Schedule "A" attached.

2. The classifications in Schedule "B" attached remain in dispute. For the purposes of the vote the incumbents will be allowed to cast ballots and these ballots will remain segregated until the parties agree or the Board orders.

3. The vote arrangements are attached in Schedule C.

4. The employer will provide the parties with a voters' list alphabetized and by poll locations) and finalized poll locations and names of scrutineers and agents at the count by Friday, December11, 1998. The responding parties will submit their list of scrutineers, and agent at the count and challenges to the voters' list by Friday, December 18, 1998.

5. The voters' list will include employees employed as of December 2, 1998.

6. The parties request that the Board remain seized on all matters pertaining to this file.

Schedule "A"

Supervising Psychologist

Supervising Social Worker

Behaviour Services Coordinator

Team Leader

Project Planning R & D Analyst

In School Administrators

Administrative Assistants

Employee Relations Assistant

Research Assistant

Human Resources Amalgamation Coordinator

Human Resources Specialists

Equity and Diversity Advisor

Special Projects Officer - Finance

Personnel Information Assistant

Policy and Resource Assistant

Executive Assistant to the Director of Education

Communications Officer

Native Education Liaison Person

Confidential Word Processor Operator

Senior Buyer

Publishing/Print Centre Coordinator

Schedule "B"

Data Base Administrator

Applications Support Specialist

Assistant Supervisor

Assistant Communications Officer

15. Pursuant to the above, the Board declared that the new bargaining unit for the employees of the Kawartha Pine Ridge District School Board is:

all employees of the Kawartha Pine Ridge District School Board in the Counties of Northumberland and Peterborough and the Town of Clarington, save and except supervisors and persons above the rank of supervisor.

16. Pursuant also to the joint submission of the unions, the vote will be held on Tuesday, January 26, 1999 and Wednesday, January, 27, 1999 at the times and locations agreed to by the unions. The counting of the ballots will take place at the Board's offices, 505 University Avenue on January 27, 1999 at 11:00 a.m.

17. Employees in the above-noted bargaining unit will be asked whether they wish to be represented by CUPE; Elementary Teachers' Federation Ontario Professional Support Personnel or Health Office Professional and Educational Sector (H.O.P.E.) of the U.F.C.W., Local 175 in their employment relations with the applicant.

18. Pursuant to the request of the unions the Board also directed the school board to supply the unions with the names, addresses and telephone numbers of the employees in the bargaining unit. The school board indicated that it would comply with that request by December 11, 1998.

19. The applicant is directed to post copies of this decision in places in the workplace where it is most likely to come to the attention of the employees in the bargaining unit. The "Notice of Vote" will follow and should be posted alongside the decision.

20. Any party or person who wishes to make representations to the Board relating to the conduct of the representation vote must file a detailed statement of representations with the Board and deliver it to the parties, so that it is received by the Board within seven days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken.

21. This matter is referred to the Registrar.

22. I continue to be seized of the matter.