Upper Canada District School Board v. Canadian Union of Public Employees and its Local 5678, 1998 CanLII 18328

[1998] OLRB REP. JULY/AUGUST 751

0756-98-PS Upper Canada District School Board, Applicant v. Canadian Union of Public Employees and its Local 5678; United Brotherhood of Carpenters and Joiners of America, Local 1988; Central Office Association - The Leeds and Grenville County Board of Education; Ontario Secondary School Teachers' Federation, District 42; Ontario Secondary School Teachers' Federation, District 37; Ontario Secondary School Teachers' Federation, District 38; Office and Professional Employees International Union, Local 483, Responding Parties

BEFORE: Robert Herman, Alternate Chair.

APPEARANCES: Margaret Szilassy, Ronald Prescott, Robert Whitaker, Joseph McKewn and Anne Craig for the applicant; Julia McNally and Pierre Cote for OSSTF; Risa Pancer, Andre Lamoureux and H. Collette for CUPE; Sean Fitzpatrick, Christopher Wilson, Karen Wattie and Paul D. Scrimshaw for OPEIU; no one appearing on behalf of the United Brotherhood of Carpenters and Joiners of America.

DECISION OF THE BOARD; August 10, 1998

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

2At the consultation, all the parties present agreed that one of the bargaining units should be a bargaining unit of professional student services personnel ("PSSP"). Further, all the parties present either agreed that there should be no separate bargaining unit of carpenters and carpenters apprentices, or alternatively, took no position with respect to this issue. The Board notes that the United Brotherhood of Carpenters and Joiners of America, Local 1988 did not file any material facts, though directed to do so by Board decision of June 23, 1998, nor did anyone appear on its behalf at the consultation.

3The Board orally ruled that there would be a bargaining unit of PSSP, but that there would be no separate bargaining unit for carpenters and carpenters apprentices.

4The parties remained in dispute with respect to whether there should be only one additional bargaining unit, as well as the PSSP bargaining unit, or whether there should be three other bargaining units. The employer, OSSTF, and CUPE all took the position that only one additional bargaining unit was appropriate, generally described as an "all employee" unit, including custodial, maintenance, office, clerical and technical, basic education, and educational assistants. OPEIU asserted that this Board has been finding that four bargaining units are appropriate in the educational sector: an office, clerical, and technical unit, including educational assistants, a custodial and maintenance unit, a unit of continuing education and other instructors, and a PSSP unit. OPEIU submitted that the same configuration was appropriate here.

5After hearing the submissions of the parties, the Board ruled orally as follows:

1. The question for the Board to determine is whether, in addition to a PSSP bargaining unit, there should be only one other bargaining unit, generally described as an all employee bargaining unit, or three other bargaining units, one of instructors (including continuing education instructors), one of maintenance and custodial employees, and one of office, clerical, and technical employees, and educational assistants.

2. The employer, OSSTF and CUPE all take the position there should be one "all employee" bargaining unit, while OPEIU takes the position that there should be the three bargaining units just described.

3. Both positions are reasonable and both describe rational bargaining unit structures. Additionally, one cannot help but be sympathetic to the spectre of restructuring eliminating bargaining rights held by particular bargaining agents. Nevertheless, this is the purpose and the effect of Bill 136.

4. In part, the question for the Board involves consideration of whether to apply a standard bargaining unit structure across the educational sector, which can be described as essentially four standard or generic bargaining units: one bargaining unit of PSSP, one of continuing education and other instructors, one of office, clerical and technical employees, and one of custodial and maintenance employees. Alternatively, should the Board assess each application and each school board on an individual basis, and determine the bargaining unit structure appropriate to the particular successor employer?

5. In balance, I believe that the latter approach is the appropriate one. I do not agree that the Ontario Labour Relations Board has adopted an approach in Bill 136 applications arising in the educational sector of generally applying the four described standard bargaining units, although I recognize it has done so in a number of applications. In my view, each application depends on the particular facts and circumstances.

6. Here, there are good reasons to find and determine that one "all employee" bargaining unit (in addition to the PSSP unit) is more appropriate.

7. First, most of the participants or players (but not all of them) favour the one "all employee" bargaining unit, including the successor employer, and the unions representing approximately 700 of the 900 employees in question. While one remains aware of some of the potential factors that might motivate parties to take particular strategic positions, the agreement of these parties nevertheless remains a meaningful factor.

8. Second, one bargaining unit of "all employees" is neither unwieldy nor is it unduly large.

9. Third, at the predecessor Boards of Education disparate groups had a history of being included in one bargaining unit, and the lines between classifications were blurred within particular bargaining units. Given the varied and multiple classifications within one bargaining unit, it is worth noting that there is no evidence of any labour relations problems in any of the predecessors Boards arising from these groupings.

10. Indeed, in some of the collective agreements containing varied classifications, the parties themselves established separate seniority lists and separate classifications or groupings. Although OPEIU pointed to this as a factor mitigating against the combination of classifications in certain bargaining units, this factor is equally supportive of a larger bargaining unit, because it appears on the evidence that the bargaining unit structure itself has not prevented the parties from achieving workable solutions, and from bargaining in a manner that remains sensitive to variations and differences.

11. Fourth, the four bargaining units requested by OPEIU would require subdivisions within groupings in existing bargaining units. The Board has some concern about doing this, absent compelling reason to do so.

12. Fifth, the four bargaining units sought by OPEIU would for the most part represent an increase in the bargaining units that the employer would have to deal with, in so far as three of the predecessor Boards had less than four bargaining units. In some circumstances this may be appropriate, but it does not appear to be so here.

13. For all these reasons, the Board determines that there should be two bargaining units, one of PSSP and one "all employee" bargaining unit.

6After providing this decision, the parties were able to resolve the matters remaining in dispute and filed Minutes of Settlement, which read as follows:

Minutes of Settlement

Pursuant to the Board's August 5, 1998 oral decision, the parties agree to the following:

1. PSSP Bargaining Unit

The description of the bargaining unit is agreed, as set out in the attached Schedule A.

2. PSSP Bargaining Agent

the parties agree that OSSTF is the bargaining agent for the PSSP unit, unless prior to August 31, 1998, proof is provided to OSSTF and the OLRB that the OSSTF has abandoned its bargaining rights in writing with respect of its PSSP unit in Stormont, Dundas, Glengarry County Board of Education, in which case there shall be a vote with two options: OSSTF and non-union.

3. Bargaining Unit #2

The description of the bargaining unit is agreed, as set out in Schedule B, attached.

4. The Applicant will provide street addresses for each of the poll locations to the OLRB forthwith.

5. The Applicant will provide to the OLRB and all parties on or before August 28, 1998 a list of the names of all employees in bargaining unit #2. Such list shall include the following:

• names, home addresses, phone numbers, positions.

The list will be in alphabetical order by surname by predecessor school board.

The Applicant will make its best effort to include work location on the list.

6. The parties request a meeting with a Labour Relations Officer, in Ottawa, on Thursday, September 3, 1998 to agree to a voter's list.

7. Where possible employees will attempt to vote during non-working hours, and where not possible will be allowed time off to vote during working hours after acquiring permission from their principals, such permission will not be unreasonably denied.

Signed at Toronto this 5th day of August, 1998.

for Applicant: "R. R. Prescott"

for CUPE: "H. Collette"

for OSSTF: "Pierre Cote"

for OPEIU: "Karen Wattie"

Schedule A

PSSP BARGAINING UNIT DESCRIPTION

Professional student services personnel are all employees of the employer in the professional student services group save and except the Chief Psychologist pursuant to section 1(3)(b) of the Ontario Labour Relations Act, superintendant, persons above the rank of superintendant, plant, business and personnel staff and employees in other bargaining units for which any trade union holds bargaining rights.

Clarity Note: The PSSP group incudes psychologists, psychometrist, behaviourists, social workers, speech & language pathologists, attendance counsellors, and child youth workers assigned to young offender instructional units.

Schedule B

All employees of the Upper Canada District School Board save and except Supervisors and persons above the rank of Supervisor, Teachers as defined in the Education Act, Human Resources personnel, Executive Assistants and secretaries to the Superintendants, the Director of Education and the Board, and professional student services personnel.

7The parties are directed to comply in all respects with the Minutes of Settlement.

8Further to the decision provided orally at the hearing, and having regard to the Minutes of Settlement, the Board determines that there should be a PSSP bargaining unit described as follows:

all employees of the employer in the professional student services group, save and except the Chief Psychologist pursuant to section 1(3)(b) of the Ontario Labour Relations Act, superintendant, persons above the rank of superintendant, plant, business and personnel staff and employees in other bargaining units for which any trade union holds bargaining rights.

Clarity Note:

The PSSP group incudes psychologists, psychometrist, behaviourists, social workers, speech & language pathologists, attendance counsellors, and child youth workers assigned to young offender instructional units.

9The Board further determines that there should be a second bargaining unit described as follows:

all employees of the Upper Canada District School Board save and except Supervisors and persons above the rank of Supervisor, Teachers as defined in the Education Act, Human Resources personnel, Executive Assistants and secretaries to the Superintendants, the Director of Education and the Board, and professional student services personnel.

10A Board Officer is appointed to meet with the parties, in Ottawa, on September 3, 1998, to deal with all matters arising from this decision, including working out an agreement to a voters' list.

11With respect to the "all employees" bargaining unit described above, there shall be a vote held on October 8, 1998, and there will be five candidates on the ballot, as follows:

1. CUPE/SCFP

2. Office and Professional Employees International Union (OPEIU/SIEPB)

3. Ontario Public School Teachers Federation

4. Ontario Secondary School Teachers' Federation (OSSTFIFEESO)

5. The Leeds and Grenville County Board of Education Central Office Association

12Finally, the Upper Canada District School Board is directed to post copies of this decision in locations where it is likely to come to the attention of potential voters, and to keep this decision posted until October 9, 1998.