[1998] OLRB REP. MAY/JUNE 427
0261-98-PS Grand Erie District School Board, Applicant v. The Canadian Union of Public Employees, Ontario Public Service Employees' Union and Ontario Secondary School Teachers' Federation, Responding Parties
BEFORE: M. A. Nairn, Vice-Chair.
APPEARANCES: Stephen Gleave for the applicant; John Elder for the Canadian Union of Public Employees; David Wright for Ontario Public Service Employees' Union; Brendan Morgan for Ontario Secondary School Teachers' Federation.
DECISION OF THE BOARD; June 22, 1998
1This is an application under sections 22 and 23 of the Public Sector Labour Relations Transition Act, 1997 (the "PSLRT"). The applicant school board seeks a determination of the number and descriptions of the bargaining units appropriate to its amalgamated structure. Three predecessor school boards ("Norfolk", "Brant", and "Haldimand") have been merged to create the applicant, each having various collective bargaining relationships.
2Those pre-existing relationships are set out in the pleadings filed and essentially represent the presence of four bargaining units in the old Brant board; four units in the Haldimand board; and four in the Norfolk board. There is some consistency among these bargaining units. In these proceedings the applicant was seeking a total of five bargaining units; CUPE was advocating a total of three bargaining units. OPSEU and OSSTF each made representations only in respect of certain bargaining units consistent with the positions of either CUPE or the school board.
3The essential disputes between the parties are two. The school board took the position that a separate bargaining unit for educational assistants was appropriate. CUPE took the position that educational assistants ought to be included in the office-clerical bargaining unit. Both these positions were reflected in the historical relationships at one or more of the predecessor boards. Secondly, the school board was advocating a separate bargaining unit for bus drivers while CUPE took the position that bus drivers ought to be included in the custodial and maintenance bargaining unit.
4The parties were in essential agreement that there ought to be an office and clerical bargaining unit; a custodial and maintenance bargaining unit; and a professional student services personnel bargaining unit. The precise configuration of these units however depended on the outcome of the above-noted disputes.
5A consultation was held on Friday, June 19, 1998. Having reviewed these matters with the parties I made the following oral ruling:
Regarding bus drivers:
I reject the school board's assertion that this issue is moot - bargaining rights are not extinguished by the fact that there are not any employees in the bargaining unit at the moment. However that does not address the issue of within which bargaining unit bus drivers ought to fail. The fact that there are no employees in the stand-alone unit for drivers does suggest that maintaining that stand-alone unit is less appropriate than placing them in the larger custodial and maintenance units. Fragmentation in this situation is an issue. Bus drivers are to be included in the larger custodial and maintenance bargaining unit.
Regarding educational assistants - both pre-existing bargaining units are appropriate and viable. Sometimes there is little to choose as between one or the other. I disagree that a stand-alone unit of educational assistants would be smaller/weaker given the combined size of that unit. Nor has the Board concluded that "bigger is always better". There are minimal limits on mobility in a stand-alone unit given the very different skill set and work of educational assistants compared to office and clerical employees. There is some evidence of labour relations problems where educational assistants have been included in the larger office and clerical units. These reflect issues that are subject to bargaining but which remain somewhat unresolved. If the bargaining units are separate the parties may be required to focus more specifically on these issues that relate specifically to educational assistants. I note that the employer is not objecting to this degree of fragmentation or any additional costs associated with bargaining reflecting its view of the need. In the long run, if feasible it may be easier for parties to continue units than to separate them. The funding issue (classroom vs. non-classroom) is of some limited concern as it too reflects a potential for creating internal tensions in bargaining which may result in labour relations problems. Finally, given the particular pre-existing configuration of the bargaining units I'm satisfied there is a representation issue that warrants consideration in determining the issue. On balance, there will be a separate bargaining unit for educational assistants.
6Having made this ruling I adjourned to allow the parties the opportunity to discuss the precise parameters of the bargaining units and to deal with any vote issues. They were able to largely agree although there is some dispute with respect to certain positions in certain of the units. Those disputes however do not affect the ability of the Board to conduct the appropriate votes.
7The bargaining units agreed to by the parties are described as follows:
Bargaining Unit #1 - Facility Services, Transportation Services and Maintenance Services Employees
The Grand Erie District School Board recognizes the Union as the sole and exclusive bargaining agent for all employees engaged in facility services, transportation services and maintenance services save and except supervisors and those above the rank of supervisors, health and safety officer, environmental officer, and pending resolution by the Board excluding as well students and persons employed under co-op programs or work incentive programs.
Bargaining Unit #2- Clerical and Technical
The Grand Erie District School Board recognizes the Union as the sole and exclusive bargaining agent for all office, clerical and technical employees of the Grand Erie District School Board save and except supervisors, persons above the rank of supervisors, human resource co-ordinators, human resource secretaries, buyers, and pending resolution by the Board, excluding as well communications and records management officer, training and developmental officer, administrative assistants, local service representatives, security to the manager of facility services, accounting analyst, budget grants officer, students and persons employed under co-op programs or work incentive programs.
Bargaining Unit #3 - Professional Student Services Personnel
The Grand Erie District School Board recognizes the Union as the sole and exclusive bargaining agent for all employees of the Grand Erie District School Board employed as Psychologists, Speech Pathologists, Psychological Services Consultants, Psycho - Educational Assessment Counsellors, Social Workers, Youth Counsellors, Attendance Counsellors, save and except supervisors and those above the rank of supervisor.
Bargaining Unit #4 - Educational Assistant Employees
The Grand Erie District School Board recognizes the Union as the sole and exclusive collective bargaining agent for all educational assistants. Without limiting the foregoing the bargaining unit includes the positions of:
Educational Assistant - Regular
Educational Assistant - DD
Educational Assistant - Food Technician
Communication Disorders Assistant
8The parties agree that OSSTF properly represents the employees within the professional student services personnel bargaining unit. Representation votes are required in the other three. In the facility services, transportation services and maintenance services bargaining unit and in the office and technical bargaining unit voters will be asked if they wish to be represented by CUPE or OSSTF in their employment relations with the school board. In the educational assistants bargaining unit voters will be asked whether they wish to be represented by CUPE or OPSEU in their employment relations with the school board.
9The parties were not able to agree on a vote date. Having heard the parties' representations, and in an attempt to balance the needs of notice to the affected employees, some opportunity for the bargaining agents to contact affected employees, and the need for expedition, the vote will be held on July 9, 1998. Vote arrangements are set out in the attached "Notice of Vote".
10There are disputes between the parties as to whether certain positions ought to be included in or excluded from certain bargaining units. Those positions are reflected earlier in the bargaining units described as those positions which are pending resolution by the Board. In the facility services, transportation services and maintenance services bargaining unit this includes students and persons employed under co-op programs or work incentive programs. In the clerical and technical bargaining unit this includes communications and records management officer, training and development officer, administrative assistants, local service representatives, secretary to the manager of facility services, accounting analyst, budget grants officer, students and persons employed under co-op programs or work incentive programs. If any person holding such a position wishes to cast a ballot, the person shall identify himself or herself as occupying a disputed position and such person shall be entitled to cast a ballot. Any such ballot cast shall be segregated and not counted until the Board so orders or the parties consent.
11The school board is directed to immediately post copies of this decision and the "Notice of Vote" adjacent to the Board's decision of May 27, 1998. These copies must remain posted for 30 days. The school board is also directed to immediately forward the "Notice of Vote" to each employee affected by the vote, and to forward that notice by priority courier or other comparable delivery method. The school board is also directed to provide to each of the bargaining agents affected by the vote, a list of the names, addresses, and phone numbers of each employee in the bargaining unit for which the bargaining agent is pursuing bargaining rights. Said lists are to be provided no later than Friday, June 26, 1998.
12Any 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 other 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.
13This matter is referred to the Registrar.