[1998] OLRB REP. SEPTEMBER/OCTOBER 874
0112-98-PS Ontario Public School Teachers' Federation, Applicant v. Rainy River District School Board, Ontario Secondary School Teachers' Federation, Canadian Union of Public Employees, Service Employees Union Local 268 affiliated With the S.E.I.U., A.F. of L., C.I.O. and C.L.C., Responding Parties
BEFORE: Bram Herlich, Vice-Chair.
DECISION OF THE BOARD; September 28, 1998
The style of cause is hereby amended to reflect the correct name of the responding parties: "Rainy River District School Board, Ontario Secondary School Teachers' Federation, Canadian Union of Public Employees, Service Employees Union Local 268 affiliated with the S.E.I.U., A.F. of L., C.I.O. and C.L.C.".
This is an application under sections 22 and 23 of the Public Sector Labour Relations Transitions Act, 1997 (the "Act"). The applicant asks the Board to determine the number and description of bargaining units that are appropriate for the successor employer's operations and to further determine which bargaining agent represents employees in the resulting bargaining units.
The successor employer (hereinafter referred to as the "employer") is a district school board which has assumed the jurisdiction of two predecessor boards (the "old boards") namely the Fort-Frances-Rainy River Board of Education (hereinafter the "Fort Frances Board") and the Atikokan Board of Education (hereinafter the "Atikokan Board").
The relevant bargaining unit configuration which existed at the old boards just prior to the changeover date is set out in the materials filed by the parties and is not a matter in dispute. For the sake of ease and at the sacrifice of some precision in an effort to produce a "snapshot" of the configuration in place at that time, those bargaining units can be characterized as follows:
At the Fort Frances Board:
(a) a unit of educational assistants (which included, inter alia, library technicians and library assistants). The applicant Ontario Public School Teachers' Federation ("OPSTF") has held bargaining rights in respect of this unit since 1990. There were approximately 49 employees in the unit at the time of the changeover;
(b) a unit of office, clerical, caretaking and maintenance employees. The responding party Canadian Union of Public Employees ("CUPE") has held bargaining rights for the caretaking and maintenance employees since 1953; a certificate issued in respect of the office and clerical employees in the early 1970's. Both groups are included in a single unit composed of approximately 50 employees; and
(c) CUPE also held bargaining rights which have their genesis in a certificate issued in 1996, in respect of a group of some 15 bus drivers. It is not crystal clear from the materials filed whether CUPE and the Fort Frances Board continued to treat this group as a separate unit or as one subsumed in the unit mentioned in the preceeding paragraph. For the purposes of this decision, the former is assumed.
- At the Atikokan Board:
(a) a unit of some 11 teaching assistants represented since November, 1997 by the responding party, Ontario Secondary School Teachers' Federation (OSSTF"); and
(b) a unit of office, clerical, caretakers and maintenance employees (which has included the one library technician employed by the old board). These employees are represented by the responding party Service Employees International Union, Local 268 ("SEIU"). The precise genesis of these rights is not disclosed in the materials filed. However, the collective bargaining relationship appears to have been in place for in excess of 20 years. There were approximately 14 employees in the unit.
- The positions of the parties, again sacrificing absolute precision in the interest of clarity, can be summarized as follows:
(1) The applicant OPSTF proposes that there be a single unit comprising educational assistants, teaching assistants and library technicians.
(2) The employer agrees with the unit proposed by OPSTF (although it proposes, in addition, that an explicit exclusion of supervisors ought to be included in the description).
The employer submits further that a second bargaining unit ought to be established to include all of the remaining relevant groups of employees (i.e. office, clerical, maintenance, custodial and bus drivers).
(3) OSSTF (although initially taking a marginally different position, now), agrees with the bargaining unit proposed by the applicant. While acknowledging that it has no direct interest in the issue because it does not represent any affected employees, OSSTF submits that, to reflect the prevalent practice in the education sector, office and clerical employees should not be included in the same unit as custodial and maintenance employees.
(4) CUPE takes no position in relation to the bargaining unit proposed by the applicant. It agrees, however, with the employer's position that drivers, clerical and maintenance employees be included in a single unit.
(5) SEIU's primary position is that the existing bargaining configurations should not be disturbed and that the geographic boundaries associated with the old boards should be maintained.
Alternatively, SEIU does not quarrel, in principle, with the creation of a unit which would include the educational assistants and teaching assistants as proposed by the applicant. It asserts, however, that library assistants and library technicians ought to be excluded from any such unit.
Finally, with respect to the remaining employees, SEIU agrees with the employer and CUPE that office, clerical, custodial and maintenance employees ought to (continue to) be included in the same unit. It proposes, however, that there be a separate bargaining unit consisting of school bus drivers.
- Thus, the issues which currently divide the parties can be described as follows:
(1) Ought the existing bargaining configuration be preserved?
(2) If not, then
(a) should the library technicians be included in the educational assistant unit or in some other unit?
(b) should the office and clerical employees be included in the same unit as the custodial and maintenance employees?
(c) should there be a separate unit of the school bus drivers?
The Board has provided the parties with the opportunity to make full written submissions and they have done so. Although a consultation was scheduled in this matter, it had to be cancelled for reasons unrelated to the parties. The parties subsequently agreed to make the written submissions already referred to and have further agreed that the Board can dispose of this matter on the basis of those submissions.
Reflecting the less than formal or absolutely precise approach taken to this point in this decision as regards the actual or complete description of the bargaining units, the Board does not propose, in this decision, to finally determine the description of the appropriate units.
Rather, the Board will, in this decision, resolve what it has identified as the primary issues currently impeding the ability of the parties to themselves craft bargaining unit descriptions and take whatever further steps are necessary to effect the determination of the bargaining rights corresponding to those units.
SEIU submits that the status quo ought to be preserved even to the extent of retaining the geographic boundaries associated with the old boards. This Board finds this suggestion to be less than compelling.
In determining applications under this legislation, it is from time to time difficult to separate issues of principle from those of convenience and self-interest as they appear in the positions adopted by various parties. This is perhaps not surprising in a process which often necessitates a fundamental reconfiguration and metamorphosis of existing bargaining rights and requires bargaining agents (often those with considerable collective bargaining experience) to directly compete with each other to preserve those rights.
In that kind of context, it is perhaps not surprising that SEIU takes the specific opportunity to advise the Board that its members "do not wish to have their bargaining unit structure changed, amalgamated, rationalized or integrated with any other groups of employees". The fears communicated by those employees through their bargaining agent may be well founded or they may be fanciful. They may provide little more than another opportunity for a bargaining agent to attempt to remain unscathed by the current wholesale transformation of labour relations in the public sector. However, in our view a plea for the preservation of geographic boundaries which have been bridged (in this case by the creation of a new district school board), is simply and on its face inconsistent with the legislative direction embodied in the Act. Indeed, the Board would go so far as to suggest that it is not necessary to establish a need for rationalization as a condition precedent to the alteration of existing bargaining units under this Act. Rather, and in particular, where the geographic scope of a successor employer exceeds that of a predecessor, the onus will be on the party seeking to preserve the former geographic dimension of bargaining rights to persuade the Board that such preservation is warranted. This, SEIU has not done in this case.
Perhaps the most difficult of the questions with which we are dealing in this case relates to the placement of library technicians and assistants. For it appears to us that their inclusion in either the educational assistants unit or in a unit which includes office and clerical employees is arguably appropriate. As the conflicting collective bargaining history of the old boards demonstrates, there may not be a single correct answer to the question of their placement.
However, the choice must be made and in the circumstances of this case I have determined that library technicians (and assistants) ought to be included in the unit of educational assistants. In arriving at this conclusion, I have been persuaded by the fact that the employer and all of the unions who have taken a position on the issue agree with the exception of SEIU which currently represents but a single affected library technician. More importantly though, I am also persuaded by submissions which indicate a greater community of interest as between library technicians/assistants and persons in a predominately para-professional, as opposed to clerical, bargaining unit. I have also considered some of the possible effects of a contrary result, including the possibility of a significant number of individuals (who work as both library and communications assistants) landing with one foot in each of two different units. I am also persuaded that considerations of both efficiency and employee mobility favour this result.
Perhaps the easiest question to dispose of in this case is whether to construct separate office/ clerical and custodial/maintenance units. Whatever the practice may otherwise be within the sector, where there is an established practice in both of the old boards of a more comprehensive unit and where all of the affected parties advocate the continuation of the practice, this Board sees no labour relations purpose to effecting the fragmentation of the existing bargaining structure.
Finally, faced with the stark choice as to whether or not to prolong the existence of a single classification bargaining unit where both of the parties to that bargaining relationship advocate its incorporation into a more comprehensive structure, the Board is persuaded that it ought to opt for the establishment of an effective and rationalized bargaining unit structure.
In summary, the Board has determined that in the existing bargaining unit structures there is need of rationalization to reflect the current restructuring and specifically to effect that result:
(1) there ought to be a bargaining unit of educational assistants which, however it is precisely described, will include teaching assistants and library technicians and assistants;
(2) there ought to be a second bargaining unit which, however it is precisely described, will include school bus drivers, office/clerical and custodial! maintenance employees.
- Having regard to these determinations, this matter is remitted to the parties who along with the Labour Relations Officer assigned to this matter, will, no doubt, wish to turn their attention to the precise description of the resulting bargaining units as well as the arrangements which need to be made to determine the ultimate identity of the corresponding bargaining agents. The Board will remain seized.