Ontario Labour Relations Board
[1998] OLRB REP. MAY/JUNE 377
4301-97-PS Canadian Union of Public Employees Locals 109, 1850 and 2750, Applicant v. The Corporation of the City of Kingston, International Brotherhood of Electrical Workers Local 636, C.A.W. Canada Local 4291 and Ontario Public Service Employees Union, Responding Parties v. The Association of Pittsburgh Township Employees, Kingston Professional Firefighters' Association, Pittsburgh Township Full Time Firefighters, Kingston Township Full Time Firefighters, Ontario Nurses' Association, Gary Hart, International Alliance of Theatrical Stage Employees and Moving Pictures Machine Operations of the United States and Canada, Local 471, Interveners
BEFORE: R. 0. MacDowell, Chair.
APPEARANCES: Peggy E. Smith, Linda Clancey, Berry Patterson, David Cornwall and John Rogers for the applicant for the applicant; Alan Whyte, Carol Quirt, Bill Bishop, Jim Keech and Dianne Campbell for the City of Kingston; Phil Hunt, Peter Routliff Alan Gates, Stefan Doliszney and Brenda Boles for IBEW Local 636; Lisa Kelly and Marilynne Lespearance for CAW-Canada; David Wright for OPSEU; Maureen Farson and Glenn Barnes for the Association of Pittsburgh Township Employees; Kristin A. Eliot, Fred LeBlanc, Kevin Galichon, Bob Belzile and Doug Blancher for the Kingston Professional Firefighters Association; Jacek Janczur for ONA.
DECISION OF THE BOARD; May 20, 1998
This is an application under the Public Sector Labour Relations Transition Act, 1997 ("the Act").
On May 4, 5, and 6, 1998, the Board held an extended "consultation" under section 37 of the Act. The purpose of that consultation was to receive the parties' further representations with respect to the briefs that they had filed, as well as to consider any other matters said to be relevant to the Board's authority to restructure bargaining units under section 22 of the Act.
At the completion of the consultation, the parties urged the Board to give a brief "bottom line" decision (with reasons to follow later, as necessary), so that they can get on with the process of "restructuring" at the City of Kingston - a process that has been ongoing for several months. Subject to several reservations, the Board is prepared to accede to that request; and, for ease of exposition, I will address the issues in a somewhat colloquial way.
The Board notes that Laidlaw Transport did not appear at the consultation, and that the OPSEU withdrew its intervention - on the understanding that, at this stage, OPSEU's interests are not affected by the orders being sought.
Having regard to the agreement of the parties, the Board directs the preservation of the current ONA bargaining unit of registered and graduate nurses, working at the Rideaucrest Home for the Aged. That unit is more particularly defined as "bargaining unit C", at tab 34 of the materials filed by the City of Kingston.
Having regard to the representations of the parties (and the agreement, on this point, of the City, CUPE and the CAW), the Board is satisfied that the transit workers (drivers and mechanics) currently represented by the CAW should be part of the broader "all-employee bargaining unit" proposed by CUPE. In the circumstances, there is no reason to preserve a separate bargaining unit of transit employees. Moreover, by letter dated May 13, 1998 the CAW has indicated that it does not wish to participate in any vote directed in respect of this revised "all-employee unit".
Having regard to the representations of the parties, the Board finds that the unit of firefighters appropriate for the successor City's operations should be framed this way:
all full-time firefighters employed by the Corporation of the City of Kingston, save and except Deputy Chief, persons above the rank of Deputy Chief, clerical support staff, volunteer firefighters and persons deemed by the Fire Protection and Prevention Act, 1997 not to be firefighters.
The Board does not minimize the KPFA's concerns about full-time salaried firefighters "moonlighting" as "volunteers", since they are not "volunteers" in the usual sense (they are paid for it), and such "moonlighting" may overlap their regular responsibilities. However, I do not think that this issue is appropriately dealt with in the definition of the bargaining unit perimeter - particularly in light of sections 45 and 41(1) of the Fire Protection and Prevention Act, 1997 which describe firefighters' bargaining units. Nor am I persuaded that the "union security arrangements" urged by the KPFA should be treated as a "bargaining unit definition issue" or included in the bargaining unit description.
The main issue dividing the City, CUPE and the IBEW is whether the employees of the formerly separate Public Utilities Commission should, like the transit workers, be folded into CUPE's proposed "all employee" bargaining unit.
Having considered the parties' briefs and representations, the Board is persuaded by the joint submission of the City and the IBEW, that there should be a separate bargaining unit encompassing employees working in the the City's utilities operations. The core of that proposed unit is an employee grouping (now represented by the IBEW) that has bargained separately and successfully for more than 40 years, and, in substance, is not substantially different from what the City and the IBEW might have agreed to, on their own, under section 20(4) of the Act.
What the City and the IBEW are proposing is, in substance, the preservation of the pre-existing bargaining structure at the former PUC, with some variations at the edges to take into account the new operational setting. In order to make the "utilities unit" consistent with the employer's new organization, it is necessary to transfer into that unit a handful of classifications (and perhaps employees) from the group now represented by CUPE, as well as transfer a few employees from the group now represented by the IBEW into the main "all-employee bargaining unit". But in both cases the numbers are not large, and do not compromise the essential character or size of each unit.
Now, there is, of course, much to be said for CUPE's proposal (supported by the CAW) that there be "one big all-employee bargaining unit". However, given the terms of Bill 136 and the particular collective bargaining history and circumstances of this case, the Board is persuaded that a "utilities unit" is appropriate for the new City's operation.
That said, the Board has several reservations about making any final order under section 22 at this time, or directing a vote under section 23.
First of all, while I am attracted to the particular "utilities unit" definition proposed jointly by the IBEW and the City on May 5, 1998, that revised definition was formulated in the course of the consultation itself, and it appears to me that it is not completely congruent with the revised "all-employee unit" currently proposed (and now substantially represented) by CUPE. In other words, the perimeters of the "utilities unit" and the remaining "all-employee unit" still need some further "tidying up ,having regard to the functions of particular classifications, and the City's operational needs in the utilities area.
I recognize the parties' desire for finality, as well as the problems that the parties have already had in reaching agreements on this kind of issue. But that tidying up is best done by the parties themselves; and now that they know that there will indeed be a separate utilities grouping, the settlement dynamic may be a little different than it was before. It seems to me that, with the assistance of Board Officer Ed Hunt, the parties should now be able to finalize this matter.
Secondly, in the material before the Board, the exclusion portions of the proposed bargaining units may also require some further consideration, so as not to exclude from all units, individuals who are nevertheless "employees" under the Labour Relations Act. It is difficult to determine the individuals' duties and responsibilities from their job titles. However, it is not evident that they all exercise managerial functions within the meaning of section 1(3) of the Labour Relations Act, nor is it evident that they would be regularly and materially involved in labour relations matters, so as to be "employed" in a confidential capacity pursuant to section 1(3) of the Labour Relations Act. And, of course, it makes no sense (at least in the absence of the agreement of the parties) to have pockets of non-union, non-managerial employees. On the other hand, as I observed at the consultation, the numbers are not great, so that this particular piece of "tidying up" need not necessarily delay any representation votes. Like the perimeter between the two units, this is something upon which the parties should now be able to agree, or agree to put aside until the City's reorganization is closer to completion.
I am also troubled that the City is not in compliance with its minimum staffing/complement obligations under the main CUPE collective agreement. No order in respect of that default is necessary now. It suffices to say that this problem should be rectified if possible prior to the taking of any vote. In my view, CUPE should not be disadvantaged because of the City's non-compliance with its collective bargaining obligations; moreover, it is worth noting that the validity of any vote might be thrown into doubt if a union's margin of success were smaller than the number of disputed voters or ballots. That outcome is not in anyone's interest.
The parties will have a further 21 days to meet with Board Officer Hunt with a view to finalizing the two bargaining-unit descriptions. I reiterate: I recognize the parties' desire for finality in a fluid situation. However, it appears to me that the parties should be given a further opportunity to settle their remaining differences between themselves.
Finally, having considered Ms. Farson's argument, I am not persuaded that there is any basis for an "interim order" respecting the seniority rights of the current "non-union" employees, who will eventually find themselves in a bargaining unit. The suggestion that they should be given seniority rights now in respect of whatever unit they will eventually join (i.e. after a final section 22 order is made) may have some equitable force. But, in my view, an order of that kind would be both inconsistent with the general scheme of the Act, and undesirable on labour relations grounds - especially given the rights of other employees, now covered by collective agreements. There is no reason why non-union employees should have broader mobility rights than those employees situated in existing units, and the implementation of such a scheme is fraught with practical difficulties.
The Board will remain seized with respect to all outstanding issues, and will schedule a further consultation if that appears to be necessary.