Employees' Association of Ottawa-Carleton v. Ottawa-Carleton Catholic District School Board

[1998] OLRB REP. MAY/JUNE 469

4072-97-PS Employees' Association of Ottawa-Carleton, Applicant v. Ottawa-Carleton Catholic District School Board; Service and Commercial Employees Union, Local 272; Canadian Union of Public Employees and its Local 2357, Responding Parties

BEFORE: Timothy W Sargeant, Vice-Chair.

APPEARANCES: James Cameron for the applicant; John Read for Ottawa-Carleton Catholic District School Board; Risa Pancer for CUPE Local 2357 and Frederica Wilson for SCEU Local 272 the responding parties.

DECISION OF THE BOARD; May 22, 1998

1. This is an application under the Public Sector Labour Relations Transition Act, 1997.

2. Pursuant to an agreement between the parties dated April 9, 1998, a consultation was scheduled for May 6, 1998. At the consultation the parties agreed the Board should hear argument on the issue in dispute and render a decision on such issue.

3. Pursuant to the agreement dated April 9, 1998, the issue the parties asked the Board to adjudicate was:

4. The issue which the parties request the Board to adjudicate is as follows:

In the context of this school board amalgamation, should there be one non-teaching bargaining unit or more than one.

It is the applicant's position that there should be one. It is the responding parties' position that there should be two.

The issue is clarified in the agreed statement of facts as follows:

1. The fundamental dispute between the parties is the composition of the bargaining unit(s) in the amalgamated school board.

2. The applicant has applied for a single "all employee" unit. Each of the responding parties has proposed two bargaining units. Although the employer, CUPE and the SCEU have all described the proposed units in somewhat different terms, there is basic agreement amongst the responding parties on the composition of the two proposed units. One unit would be comprised of maintenance, service and plant employees and bus drivers. The other bargaining unit would include office, clerical, and administration support employees and all educational teaching assistants.

3. The parties further agreed in the agreement dated April 9, 1998 that "the Board make a determination on this issue only and order a vote. All issues relating to the form and content of the vote will be agreed upon by the parties with the assistance of the Labour Relations Officer". The parties requested that a decision on this issue be rendered as soon as possible "as they are anxious to have a vote prior to the completion of the school year" which the Board understands to be June 30, 1998.

4. For the purpose of this hearing the parties reached the following agreed statement of facts:

CURRENT BARGAINING UNIT COMPOSITION

3. There are currently six bargaining units at the school board that are affected by this application - two from the former Ottawa Catholic board and four from the former Carleton Catholic board. The bargaining units are represented by three different bargaining agents, the Service and Commercial Employees Union, Local 272 ("SCEU"), the Canadian Union of Public Employees, Local 2357 (CUPE) and the Employees' Association of Ottawa Carleton (EAOC).

The existing bargaining units are:

SCEU Maintenance, Services and Plant

CUPE Office, Clerical, Technical and Educational Teaching Assistants

EAOC Administration Support

EAOC School Support

EAOC Educational Support

EAOC Technical Support

THE SUCCESSOR AND PREDECESSOR BOARDS

4. The predecessor Boards were the Carleton Roman Catholic School Board ("CRCSB") and the Ottawa Roman Catholic Separate School Board ("ORCSSB").

5. The CRCSB had seven families of schools, including seven high schools and thirty-seven elementary schools. The curriculum covered junior kindergarten to OAC. There were approximately 23,000 students, and 1,400 teachers.

6. The Employees' Association of Ottawa Carleton ("EAOC") represents four units of employees from the CRCSB. According to figures supplied by the school board there are 117 permanent and 50 casual employees in a school support bargaining unit, 148 and 104 casual employees in an educational support bargaining unit, 64 permanent and 30 casual employees in an administrative support bargaining unit and 162 permanent and 47 casual employees in a technical support unit. There are a further 121 non-unionized employees, including 42 bus attendants and housekeepers.

7. The ORCSSB had three families of schools, including three high schools and twenty-eight elementary schools. Like the CRCSB, the curriculum covered junior kindergarten to OAC. Approximately 11,000 students attended these schools, and were taught by approximately 600 teachers.

8. According to figures provided by the school board there are 133 and 8 casual employees in the Canadian Union of Public Employees ("CUPE") Local 2357's bargaining unit, 136 permanent and 8 casual employees in Service and Commercial Employees Union ("SCEU") and a further 56 non-unionized employees.

9. The successor board, the Ottawa-Carleton Catholic District School Board, has ten families of schools, with ten high schools and sixty-five elementary schools.

ORGANIZATIONAL STRUCTURE OF SCHOOL BOARD

10. The interim organizational structure in place at the amalgamated school board provides for It separate departments (see Schedule "A" attached):

Director's Office and Corporate Affairs

Human Resources

Finance and General Services

Instructional Services and Community Relations

Staff Development, Evaluation and Research

Program

Community and Continuing Education

Student Services

Central Administrative Services

Information Technology

Plant and facilities

11. Three departments are broken into divisions or sub-departments. The department of Finance and General Services is divided into i) Finance and ii) Purchasing and General Services. The department of Information Technology is divided into i) Computer Services, ii) Computer Studies and iii) Information Services. The department of Plant and Facilities is divided between i) Facilities and ii) Plant: Maintenance and Operations.

12. All of the employees in the EAOC Technical Support bargaining unit and the SCEU bargaining unit fall within the Plant; Maintenance and Operations sub-department of the department of Plant and Facilities. Also included amongst the non-management personnel in this department are three clerks, one community use person, and two secretaries. In the predecessor school boards, similar clerical positions existed in the equivalent departments. The incumbents in the clerical positions are, as they were prior to amalgamation, members of either the EAOC Administrative Support unit or the CUPE bargaining unit. The maintenance and custodial employees either work at our out of particular schools or the school board's Stittsville plant building. The clerical and secretarial employees of the Plant: Maintenance and Operations sub-department work out of the Stittsville plant building.

13. Employees covered by the other EAOC bargaining units and the CUPE bargaining unit are spread amongst the remaining departments and either work at the school board's administration buildings or in the schools.

THE BARGAINING AGENTS

Employees Association of Ottawa Carleton

14. The Employees' Association of Ottawa Carleton ("EAOC") represents employees of the former Carleton Roman Catholic School Board in four bargaining units. These units have historically been described as the administrative support unit, the school support unit, the education support unit, and the technical support unit.

15. The EAOC has been the bargaining agent for employees in the administrative support unit and the technical support unit since 1984. (Attached are copies of the certificates issued by the OLRB.)

16. At the time of the EAOC's application for certification, the Canadian Union of Public Employees already held bargaining rights for a bargaining unit of school secretaries (the predecessor of EAOC's school support unit). There were, at that point, few developmental specialists or assistants employed by the Board. There were a very few teacher assistants on staff, but no move was made to organize them until around 1988, following a multi-Board agreement on the funding of special education programs. At this point, more teacher assistants were hired, as were developmental assistants and developmental specialists. CUPE gained bargaining rights for these employees around 1989 or 1990. Although the four units each had their own collective agreement, the EAOC and the Board bargained together for the administrative support and the technical support units, as did CUPE and the Board for the school support and the educational support units.

17. In 1993 the EAOC became the bargaining agent for both the school support and the educational support units.

18. Subsequently, the EAOC and the CRCSB continued to negotiate separate agreements for the four bargaining units, although the negotiations were done at the same time, at the same table and with a single negotiating team. The provisions of the four collective agreements are in many cases virtually identical. A ratification vote is held for each collective agreement. Although each collective agreement refers to labour/management meetings, a single meeting is held for all four bargaining units.

19. The duration of each of the four collective agreements is the same: September 1, 1996 -August 31, 1998.

20. The scope clause for the administrative support until is set out in article 3.01 of that collective agreement as all office and clerical employees of the Carleton Roman Catholic School Board, save and except;

• Recording Secretaries

• Supervisors and persons above the rank of supervisors

• Secretary to the Director of Education

• Secretary to Deputy Director

• Secretary to Deputy Director: Corporate Affairs

• Secretary to Superintendent of Finance

• Secretary to Superintendent of Personnel

• Secretary to the Administrative Officer

• Labour Relations Personnel

• Accountant

• Communications Officers

• Professional and Paraprofessional staff

• Lunchroom Supervisors

• French Second Language Monitors

• Teacher Aides

• Students employed during the school vacation

• Students employed on work experience

• Persons covered by other collective agreements

• Persons employed in a confidential capacity in matters relating to labour relations of the Employees' Association of Ottawa Carleton bargaining units.

21. The scope clause for the school support unit is set out in article 3.01 of that collective agreement as all School employees in the secretarial, clerk-typist and library technician categories as well as all other positions that may be agreed upon by the parties.

22. The scope clause for the technical support unit is set out in article 3.01 of that collective agreement as all employees employed on maintenance and plant operations, save and except:

a) Supervisors and persons above the rank of supervisor

b) Person employed in a confidential capacity in matters relating to labour relations of the Employees' Association of Ottawa Carleton bargaining units

c) Office and Clerical Staff

d) Students employed on work experience or summer vacation

e) Persons covered by other collective agreements.

23. The scope clause for the educational support unit is set out in article 3.01 of that collective agreement as all Teacher Assistants, Developmental Assistants, Developmental Specialists and Special Assignment Assistants and all other positions as may be agreed upon by both parties. (The parties have agreed to include ESL Teacher Assistants, Kindergarten Assistants, and Interpreter.)

SCEU Maintenance, Services and Plant

24. On October 9, 1974, the Canadian Merchandising Employees Union, Local 104 (CMEU) was certified to represent all employees of the Ottawa Roman Catholic Separate School Board employed at maintenance, services and plant operations in the cities of Ottawa and Vanier, save and except foremen and persons above the rank of foremen.

25. In 1976, the Service and Commercial Employees Union, Local 272 succeeded the CMEU as the bargaining agent. The change in bargaining agent was recognized by the employer.

26. The composition of the SCEU bargaining unit has remained essentially the same since the original certification. There are currently 139 permanent and casual employees in the unit. The unit was considerably larger, but pursuant to a 1991 decision of the Labour Board approximately half the employees covered by the unit were transferred to the newly established French language separate school board.

27. There has been only one strike in the history of the SCEU bargaining unit. In 1977 members of the SCEU struck the school board for approximately three months. At that time, none of the other non-teaching employees were unionized and the only school board functions disrupted by the strike were in the maintenance, services and plant operations.

Canadian Union Of Public Employees and Its Local 2357

28. The Canadian Union of Public Employees was certified in January 1980, as the bargaining agent for all of the office, clerical employees of the Ottawa Roman Catholic Separate School Board regularly employed for not more than 24 hours per week. The bargaining unit became the Canadian Union of Public Employees and Its Local 2357.

29. About three months later, in March 1980, the Canadian Union of Public Employees was certified as the bargaining agent for all of the office, clerical and technical employees of the Ottawa Roman Catholic Separate School Board save and except persons regularly employed for not more than 24 hours per week. This bargaining unit also became part of the Canadian Union of Public Employees and Its Local 2357.

30. The bargaining units described above were combined into one bargaining unit and are covered by one collective agreement.

31. On or about May 6th, 1992, the Ontario Labour Relations Board certified the Canadian Union of Public Employees as bargaining agent for the Teaching Assistants employed by the Ottawa Roman Catholic Separate School Board.

32. On September 28, 1994, a decision was issued by a panel of the Board on File 13 39-94-R combining the Office, Clerical, Technical and Teaching Assistants into one bargaining unit. Up to this point in time, all office, clerical and technical were in one bargaining unit and all teaching assistants were in a second bargaining unit. It was the Board" view that the combining of the two bargaining units into one did not expand the rights of the Canadian Union of Public Employees.

33. The parties to the collective agreements agreed to the combining of the bargaining units into a single bargaining unit of Office, Clerical, Technical and teaching Assistants.

34. The Canadian Union of Public Employees and Its Local 2357 and the Ottawa Roman Catholic Separate School Board have since the 1993-1995 collective agreement one bargaining unit and one collective agreement for "all office, clerical, technical and teaching assistants" employed by the Board.

NON-UNIONIZED PERSONNEL

35. Although most of the non-teaching employees of the school board are represented by a bargaining agent, there are a handful of employees who are unrepresented. The positions of bus attendants, housekeepers and district supervisors are of relevance to this application. Part-time bus attendants and part-time housekeepers have never been organized, while district supervisors were specifically excluded from the EAOC Technical Support unit as being supervisory employees.

36. Persons employed as bus attendants work approximately three hours per day, split between the morning and the afternoon. Bus attendants are responsible for supervising dependently handicapped students being transported to and from school. They have direct contact with the students, assisting them on and off buses, monitoring them on the bus and recording anecdotal, emergency and medical information as necessary.

37. The work of the part-time housekeepers is also related to the dependently handicapped students at the school board. Housekeepers clean and sterilize all equipment and toys used by the students on a daily basis, serve the food brought from home by the students and occasionally assist with the feeding of the students.

38. There are currently 4 District Supervisors.

It should be pointed out that for the purposes of this hearing the parties agreed to use numbers for employees supplied by the employer, though the applicant and the responding union parties did indicate that they did not necessarily agree with such numbers.

6. The relevant sections of the Act are as follows:

7. The following are the purposes of this Act:

8. To encourage best practices that ensure the delivery of quality and effective public services that are affordable for taxpayers.

9. To facilitate the establishment of effective and rationalized bargaining unit structures in restructured broader public sector organizations;

10. To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees following restructuring in the broader public sector and in other specified circumstances.

11. To foster the prompt resolution of work-place disputes arising from restructuring.

12. (1) This Act applies upon the assumption by a district school board of the jurisdiction of two or more old boards or of the minority language section of two or more old boards.

(2) For the purposes of this Act, the old boards are the predecessor employers and the district school board is the successor employer.

(3) This Act does not apply in respect of employees to whom the School Boards and Teachers Collective Negotiations Act applies.

22. (1) Subject to any agreement under section 20 that is in effect, the Board, upon the application of a successor employer or any bargaining agent that has bargaining rights, may by order determine the number and description of bargaining units that are appropriate for the successor employer's operations after the occurrence described in sections 3 to 10.

(7) In making a determination under this section, the Board shall have regard to the purposes of this Act.

7. As is clear from the agreed statement of facts, there is no agreement under section 20 of the Act.

8. All parties submitted written briefs and augmented such briefs with oral argument. The Board has carefully considered such briefs and arguments.

9. Without detailing in full the submission of the parties which were thoughtful and extensive, the essence of the disagreement centred around the purpose of the Act and whether or not the Board's jurisprudence now favoured a bigger and broader bargaining unit, given the choice between ordering one bargaining unit or ordering two bargaining units.

10. It is to be noted that none of the responding parties took the position that the single bargaining unit proposed by the applicant was not an appropriate unit. Neither did the applicant take the position that the two bargaining units proposed by the responding parties were not appropriate units. The argument centred around which proposal more appropriately fulfilled the scheme of the Act and the jurisprudence of the Board.

11. Counsel for the applicant submits that his client represents over two-thirds of the total employees directly affected by the application. In his submission though his client had four collective agreements at the predecessor location, the CRCSB, the Board for practical purposes should consider that "from a functional and practical point of view, there [was] only one bargaining unit" at the CRCSB. Counsel points out that all the agreements have virtually the same contract language, were negotiated together by one bargaining team, have the same wage salary grids, the same benefits, the same expiry dates, the same pension, the same grievance and arbitration procedure, and the same managements rights provisions. For example counsel referred to Leave for Association Business which clause provided a combined total leave for all four bargaining units. Counsel conceded that there is no common seniority list for the four units, no bumping rights between units and that each unit has a separate ratification vote. Counsel argues that though legally there are four separate bargaining units, in practice the parties have behaved as if the four units were in fact a single bargaining unit. Such single bargaining unit has worked well at CRCSB and there is no reason to believe it would not work well in the successor

OCCDSB.

12. Counsel for the applicant referred to the Board's jurisprudence in the certification and sale and merger decisions. He pointed out that in certification matters the Board has moved away from the older jurisprudence that it was not appropriate to include office workers in the same bargaining unit as other employees (see for example Motor Coach Industries Limited [1992] OLRB Rep. 744 and Mississauga Hydro Electric Commission, [1993] OLRB Rep. June 523). Counsel further submits that the Board in certification matters has moved towards broader based units and away from fragmentation see for example, Ryerson Polytechnical, [1984] OLRB Rep. Feb. 371, TV Guide, [1986] OLRB Rep. October 1451, and The Governing Council of the Salvation Army in Canada and Bermuda, [1994] OLRB Rep. Jan. 85).

13. Counsel for the applicant argues that this trend is also evident in the sale of business or merger cases. Counsel is of the view that these cases are more relevant to the situation before the Board, in that an amalgamation is more akin to a merger. Counsel submits that the recent Board jurisprudence in the sale of business or merger cases shows a preference towards the bigger broader unit unless it can be shown that such broader unit would result in serious labour relations problems for the employer. Counsel in this regard referred to North Bay General Hospital, [1995] OLRB Rep. November 1401 and more particularly to Pembroke General Hospital, [1997] OLRB Rep. Sept./October 918 and the references in that case to Humber/Northwestern/York-Finch Hospital, [1997] OLRB Rep. Sept./October 872.

14. Counsel for the applicant submitted that there is no evidence that a single unit would cause serious labour relations problems. He further submitted that a single unit most appropriately fell within the purposes of the Act as set out in Section 1 (supra). It is important to remember that two-thirds of the employees are currently represented by the applicant and thus the Board should carefully consider those employees expectations.

15. In relation to section 1 counsel submits if the Board ordered one bargaining unit there would be less costs involved in negotiations then there would be if two units were ordered. Further there would be less of a chance of a work stoppage. One bargaining unit would certainly rationalize the previous situation and result in savings for the taxpayers. In counsel's submission it is not productive to encourage enclaves of employees. If two units were ordered the result could be two bargaining agents which would decrease the likelihood of mobility for employees. In addition two units might well lead to jurisdictional disputes. In counsel's view, the Act encourages the Board to move away from the status quo. A single unit would fulfill all the purposes of section 1 of the Act. There is just no compelling reason not to order a single bargaining unit.

16. The responding parties, (the employer, SCEU and CUPE) through their counsel submit that two bargaining units would be appropriate and meet the purposes of section 1 of the Act. Counsel point out that two bargaining units would result in a rationalization from the previous six bargaining units.

17. Counsel take issue with the applicant's argument that in practical terms there was only one bargaining unit at the predecessor CRCSB. They point out that there is no common seniority rights or bumping between the four units. Further though conceding that the agreements are very similar there are small differences in each agreement. Finally counsel point out that each unit had the right to individually ratify its collective agreement. Thus individual employee rights are recognized in each bargaining unit. Counsel for CUPE points out that had the applicant wished it could have applied for consolidation of the four units under previous Labour Law Legislation but it chose not to. In the circumstances counsel submits there are four separate bargaining units at the CRCSB from both a legal and practical point of view. Thus to argue, as the applicant does, that ordering two bargaining units would merely be maintaining the status quo does not accord with the facts.

18. Counsel for the responding parties point out that the Act contemplates there may be more than one bargaining unit. Thus section 22 (supra) states the Board may determine "the number and description of bargaining units that are appropriate".

19. Counsel for the SCEU points out that under section 20 the parties themselves could agree to more than one bargaining unit. Counsel for the employer points out that section 22 speaks to what is appropriate "for the successor employer". This test differs from a certification application where the Board merely considers what is an appropriate unit. Counsel for both the unions argue that it is significant that the employer in this instance supports two bargaining units. Surely the employer is in the best position to know what is appropriate for its operation within the purposes as set out in Section 1 of the Act (supra). Historically, counsel for the responding parties point out that the clerical has always been separate from the maintenance bargaining unit in both the predecessor ORCSSB and CRCSB.

20. Counsel for the responding parties argue that community of interest is still a consideration under Board jurisprudence though it may not be determinative. In this instance there is a fundamental difference between the skills and work required in a maintenance unit from the skills and work required in a clerical and administrative unit. Functionally, the maintenance department is set up separately, there are different hours of work, and there is little functional integration between the two groups. The responsibilities of the maintenance group are not, as in the clerical group, related to the education of students or administration of the School Board, but "are related to the upkeep of the school board's physical premises". Whereas employees in the proposed clerical and administrative unit are spread throughout many of the different departments at the School Board, with the exception of the bus drivers, the employees in the proposed maintenance unit all fall within the Plant and Facilities department. Thus there is good reason to order two separate bargaining units and such order would not result in undue fragmentation.

21. Counsel for SECU makes a further point that both it and CUPE have had the existing structure of separate bargaining units at the predecessor ORCSSB for a lengthy period of time – for over some fifteen years. There is no evidence that by having two units there has been any jurisdictional problems. Pursuant to the agreed statement of facts the applicant only became the bargaining agent for the school support and the educational support units in 1993. (It is to be noted that the applicant had become the bargaining agent for employees in the administration support unit and technical unit in 1984). It is submitted that CUPE and SECU have a longer history of bargaining than the applicant. In addition, this history shows that two bargaining units have functioned well in the predecesor employer's operation at ORCSSB.

22. Counsel for SECU also raised a concern of mobility. In counsel's submission if one bargaining unit was ordered, the chances of mobility of employees would effectively be one way. In counsel's submission it would be difficult, if not impossible, for employees in maintenance work to bump employees in the clerical administrative work. On the other hand for the unskilled positions in maintenance, employees from the clerical group could easily bump employees into such positions.

23. Counsel for the responding parties also point out that if two bargaining units were ordered, each unit would be a substantial unit. Thus there would be roughly 700 employees in a service unit and roughly 300 employees in maintenance units). The employees in the maintenance unit should have their rights protected - which might not happen if only one bargaining unit was ordered.

24. Counsel for the responding parties also take issue that there is a presumption that a larger broader unit should be preferred. There is nothing in the Act that raises such a presumption. Further, there is nothing in the Board's jurisprudence that presumes one unit is best, though counsel concede the Board's jurisprudence in the merger cases shows a preference for broader based units, though not necessarily one unit. The structure proposed by the responding parties are broad based units. If the legislature thought such a presumption should be applied it wouldn't have left so much to the discretion of the parties to come to an agreement concerning the number of bargaining units. Section 20 requires that the Board is to consider what is appropriate for the successor employer. In making that consideration the Board should have reference to the purposes in section 1. Counsel argue that having two units is appropriate and has been proven effective. Counsel argue that by ordering one bargaining unit there would be more work place disputes arising from "the forced integration of groups of employees which do not have a community of interest in terms of their work performed and skills". In counsel's view, for the reasons stated above, it would be far more efficient and rational to order two bargaining units. In counsel's submission, a structure of two bargaining units fits the purposes as set out in section 1 more appropriately than a single bargaining unit.

25. In the course of argument, besides referring to the cases already cited, counsel for the responding parties referred to Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, and Burns International Security Services Limited, [1994] OLRB Rep. Apr. 347.

26. In reply, counsel for the applicant submitted that in looking at the nature of the work performed, the Board is opening Pandora's box. For example, what is the community of interest between a carpenter and a custodial employee. Looking at it from the clerical side what does a secretary have in common with a developmental specialist. Thus, the distinction the responding parties make on community of interest should be carefully considered. Further, the fact that maintenance are in a different department should have no bearing. Counsel points out there are some secretaries in that division. He further points out that bus drivers are not in that department but in the Transportation Division. On the other side in the clerical division, employees are scattered throughout a great number of departments. The organisational chart, therefore, should not be a consideration. As far as interaction between the groups is concerned counsel submits that obviously custodial staff are asked to deal with complaints from principals, teachers and secretaries. There can be no question that bus drivers have interaction with the students. In this sense there is most probably more interaction between the groups of employees than between certain classifications within the clerical unit. In summary, counsel submits that the responding parties admit that a single unit is an appropriate unit and in counsel's view a single unit is the most appropriate unit.

27. As stated before all parties agree that a single bargaining unit would be an appropriate unit; but on the other hand the parties also agree that two bargaining units would also be appropriate units. I agree with comments of counsel that section 22 of the Act contemplates that more than one bargaining unit may be ordered. Section 22 simply directs the Board to "determine the number and description of bargaining units that are appropriate for the successor employer's operations (My emphasis).

28. Pursuant to section 22(7) in making such a determination the Board "shall have regard to the purposes of this Act (emphasis). The purposes are set out in section 1. Having considered the argument and submissions of all parties, I am prepared to find that both proposals (i.e. a single unit or two units) would in the circumstances of this case meet the purposes of the Act.

29. The applicant has strenuously argued that the Board should for practical purposes find that the predecessor CRCSB was for labour relations purposes represented by one bargaining unit. Counsel for the applicant concedes that legally there were four separate bargaining units at such predecessor. Though the four units at the CRCSB bargained together and had very similar collective agreements (with only minor differences), the Board considers that seniority and the right to bump are major benefits granted to employees under any collective agreement. It was agreed that in the predecessor CRCSB collective agreements there was no common seniority list for the four units, and neither was there a right to bump from one unit to another. Though it was agreed that laid off employees from one unit would be given preference for vacancies in another unit, this is not the same as having the right to bump. In addition each unit at predecessor CRCSB had the right to ratify its own contract individually. In these circumstances the Board is not prepared to find that the predecessor CRCSB was represented by one bargaining unit.

30. Given the above determination, in either proposal there would be a reduction in the number of bargaining units in the successor employer - either from six bargaining units to one bargaining unit -or from six bargaining units to two bargaining units.

31. Without reviewing in detail the Board's jurisprudence, I agree with counsel that the sale of business or merger decisions are more relevant to this situation. All counsel paid particular attention to the Humber/Northwestern/York-Finch Hospital (supra) and Pembroke General Hospital decisions. While it is true that in both decisions the Board was of the view that "broader based bargaining structures are generally better for collective bargaining and ultimately better for both employers and employees" (see #31 of Humber), the facts of each of these cases is clearly distinguishable from this situation. In the Humber decision the board was dealing with a situation of whether or not maintenance employees and operating engineers should form a separate bargaining unit or should be included in the service unit. In that case it was conceded that normally such a separate bargaining unit for maintenance employees would not be appropriate. Further, at one hospital being merged, the existing service unit included maintenance employees and operating engineers, whereas at the other hospital being merged maintenance employees and operating engineers were in a separate bargaining unit. The Board was thus faced with a clear choice and in the circumstances decided on the broader unit. Similarly in the Pembroke case the Board was faced with a choice in the closure of one hospital and transfer to another hospital, between one hospital in which employees were represented by three bargaining units as opposed to other hospital where all such employees were included in one bargaining unit. Again, the Board opted for the broader unit.

32. In this situation given my finding concerning the bargaining units at the predecessor CRCSB, the Board is not faced with a similar choice. In this instance in one predecessor employer (CRCSB) there is a history of four bargaining units and in the other predecessor employer (ORCSSB) a history of two bargaining units. The evidence before the Board is that the history of the bargaining units at the predecessor employer ORCSSB has been in place since 1980. Further, the evidence is that such bargaining units have not caused any serious labour relations problems. Based on the Board's early determination, there is no history at either predecessor location of how the operation of one bargaining unit would operate.

33. In the Humber decision relied upon extensively in the Pembroke decision, the Board did state at paragraph 51:

For the purpose of clarity, it should be noted that although Bill 136 was passed while this case was before the Board, this is an application that was made and decided under section 69 of the Labour Relations Act, 1995. Accordingly, the decision should not be taken as a comment on the issues which may arise under this new legislative umbrella".

34. Obviously, the Board's jurisprudence is a factor to be considered - however this must be in the context of the Act. Section 22 (supra) contemplates that there may be more than one bargaining unit that is appropriate. Clearly under section 20(1) the parties themselves "may agree to charge the number and description of the bargaining units in respect of which the bargaining agents have bargaining rights". Under the Act therefore the parties themselves have the right to agree on more than one bargaining unit.

35. Certainly, in this situation if two bargaining units were ordered, each unit would be of considerable size - one unit (service) of approximately 700 and the other (maintenance) of approximately 300. This would not be undue fragmentation in the Board's opinion. Further, each of the units would be a unit that this Board would consider appropriate.

36. The Board has stated that "status quo" is a consideration (see the Humber decision), though one that is of less weight than the issue of fragmentation. Though in this instance status quo will not be maintained, there is a long history in the predecessor ORCSSB of a successful two bargaining unit structure.

37. Another factor to consider is that three of the four parties submit that a two bargaining unit structure is preferable. Though the Board must be cautious, as obviously strategic interests of the parties enter into each of the parties' decisions, it is still a matter for consideration.

38. Having considered the submissions and arguments of the parties, the various preferences of the parties, the bargaining relationship in the predecessor employers, and the proposed bargaining unit structures, the Board in these circumstances will order two bargaining units - one service, and one maintenance. This will rationalize the pre existing six bargaining units into two bargaining units. These two units have been shown to function with no labour relations problems caused as a result of such dual existence, and are in themselves substantial bargaining units. These units are certainly appropriate bargaining units within the meaning of section 22 and meet the purposes of section 1 of the Act.

39. With this issue clarified and pursuant to the parties agreement, they should now be able to work out the mechanics of any representation votes that may be required. All bargaining unit employees currently covered by an existing collective agreement will become members of essentially one of the following groups:

SERVICE EMPLOYEES:

• basically office clerical and administration support employers and all educational teaching assistants.

MAINTENANCE EMPLOYEES

• basically maintenance, service and plant employees and bus drivers.

40. In accordance with the parties agreement the matter is directed to the Director of Field Services so the parties with the assistance of a Labour Relations Officer may agree on appropriate bargaining units. A labour relations officer should meet with the parties as soon as possible.

41. The Carleton Catholic District School Board is directed to post copies of this decision adjacent to Board's decision of April 23, 1998 for a period of two weeks.