[1999] OLRB REP. MARCH/APRIL 298
3348-98-R Ontario Public Service Employees Union, Applicant v. Ontario Property Assessment Corporation, Responding Party v. The Association of Management, Administrative and Professional Crown Employees of Ontario (AMAPCEO), Intervenor
BEFORE: Gail Misra, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
APPEARANCES: Donald K. Eady, Debra Parkes, Bill Henry, Ed Ogibowski and Connie Husiak for the applicant; Jason Hanson, Patricia Ross, Jack Julien and Tristan Brown for the responding party; James K. McDonald and Anna Rae Fishman for the intervenor.
DECISION OF THE BOARD; March 16, 1999
This is an application for certification in which a vote was held on January 11 and 12, 1999. The applicant ("OPSEU") is seeking to represent all employees of the Ontario Property Assessment Corporation ("OPAC") in the province of Ontario, save and except certain positions.
The intervenor ("AMAPCEO") claims that the bargaining unit that OPSEU is claiming to represent is not appropriate because it would result in the dismantling of pre-existing bargaining unit structures which it claims have proved viable and which are consistent with employee wishes.
The parties had agreed that the Board should first address the following issue:
Is the bargaining unit applied for by the applicant appropriate in light of the position taken by AMAPCEO in its Intervention?
The parties further agreed that following the Board issuance of its ruling on this question, they would meet with a Labour Relations Officer to deal with all other outstanding issues including all exclusion and status issues.
FACTS
In order to comprehend the issue in this application it is necessary to outline some history between AMAPCEO and OPSEU. In 1992 the provincial government determined that certain classes of government employees who had not previously been represented should have access to collective bargaining. It was initially envisaged that OPSEU would represent these employees. However, apparently many of them, in the supervisory, administrative and professional classifications, did not wish to be represented by OPSEU and went about forming what became AMAPCEO. As a consequence of subsequent amendments to the Crown Employees Collective Bargaining Act a new seventh bargaining unit comprised of these groups of employees was given the right to choose its own bargaining agent. In a contest between OPSEU and AMAPCEO, the latter trade union was able to sign up the majority of employees in the seventh bargaining unit.
In 1995 the provincial government voluntarily recognized, and the Board ratified, AMAPCEO as the bargaining agent for the supervisory, administrative and professional employees who made up what was designated as the seventh bargaining unit in the Ontario public service. A collective agreement was finally reached in May 1998.
At and around the time of the voluntary recognition, OPSEU, the provincial government and AMAPCEO reached a tri-partite agreement pursuant to which the government agreed that certain employees would be in the AMAPCEO bargaining unit, and OPSEU agreed that it would not object to the configuration.
Until December 30, 1998 the employees the applicant is seeking to represent worked for the provincial government in the Property Assessment Division of the Ministry of Finance. On December 31, 1998 the Ontario Property Assessment Corporation, a new corporation, was formed to assume the responsibilities, mandate, work and employees of the Property Assessment Division (the "Division"). Up until December 30, 1998 the supervisory, administrative and professional employees in the Division had been represented by AMAPCEO, while all other employees in the Division were represented by OPSEU. Both unions represented the respective groups of employees as part of their wider bargaining units for the Ontario public service. Thus, approximately 200 of the Division's supervisory, administrative and professional employees were part of that seventh bargaining unit. The remaining almost 2,000 employees of the Division were part of OPSEU public service bargaining units.
The transfer of the Division's operations to OPAC was designed to be seamless: The same work would be done in the same locations by the same personnel. All employees of the Division were offered employment with OPAC, and their significant terms and conditions of employment remained the same. However, since the provincial government had legislated that there would be no successor rights in this type of devolution and privatization, as of December 31, 1998, no trade union represented the employees of OPAC nor could claim any successor rights. (See section 10 of the Crown Employees Collective Bargaining Act, 1993).
On December 31, 1998 OPSEU filed the instant application to represent an "all employee" bargaining unit at OPAC, with some exceptions. The OPSEU bargaining unit sought may include some positions which had heretofore been represented by AMAPCEO prior to December 31, 1998. On January 8, 1999 AMAPCEO filed an application to represent 148 employees of OPAC. It is not seeking to represent anyone in a position which would have been in the old OPSEU bargaining units. The AMAPCEO application is not before this panel of the Board.
ARGUMENTS
AIVIAPCEO argues that despite the lack of any successor rights the present situation is analogous to one where there are pre-existing bargaining structures. It suggests that the Board's process for the determination of the appropriate bargaining unit should be analogous to a determination in a displacement application where the established bargaining unit configuration is presumptively appropriate. AMAPCEO argues that its members do not wish to be represented by OPSEU, that they have so indicated in the past when they had the opportunity to choose their bargaining agent, and that these employees have a different community of interest from the employees who OPSEU used to represent in the Division. It states that OPSEU should not be permitted to sweep into its proposed bargaining unit those who had heretofore been represented by AMAPCEO.
In the alternative, AMAPCEO requests that the Board consider that there is more than one appropriate bargaining unit in the circumstances of this case. It argues that there are separate communities of interest between those that AMAPCEO is seeking to represent and those who OPSEU traditionally represented within the Division. Furthermore, it suggests that the employer would not face any serious labour relations problems if the Board found that two bargaining units would be appropriate, as there have been two units to be dealt with until December 31, 1998.
Counsel for OPSEU asks the Board to begin with the premise that this is an application for certification, and is neither a displacement application nor a successor rights application. In that regard OPSEU points out that the Board's jurisprudence has indicated a preference for "all employee" bargaining units in the absence of any serious labour relations harm which such a bargaining unit would cause to an employer. OPSEU argues that there was simply no bargaining agent to displace on December 31, 1998, there was no open period, and there were no bargaining rights which OPSEU was attempting to extinguish. Furthermore, OPSEU points out that the previous bargaining configuration was not one which the Board had found appropriate, but rather was a government construct. It was also not a bargaining unit configuration which only applied to the employees of the Division of the Ministry of Finance, but rather applied to the whole public service.
OPSEU points out that for the Board to find in favour of AMAPCEO the Board would have to find that the applicant's bargaining unit is not an appropriate one. It argues that the bargaining unit it seeks to represent is presumptively appropriate on the Board's traditional test, and there is no serious labour relations harm being contended by the employer in this case. OPSEU argues that the Legislature intended that pre-existing bargaining units would be dismantled when it passed the amendments to CECBA which resulted in the addition of section 10 of that Act. The consequence is that there are no pre-existing bargaining units and, to the extent that there were any bargaining rights, they have been extinguished. In any event, it is argued, there were no bargaining units made up of just Division employees - all those represented were part of comprehensive public service bargaining units.
With respect to AMAPCEO's argument that OPSEU had been part of a tripartite agreement wherein it agreed not to dispute the inclusion of certain positions or persons in the AMAPCEO bargaining unit, OPSEU argues that is irrelevant at this juncture. That agreement was in the context of the voluntary recognition agreement between the Crown and the two unions, and, as has been noted, the bargaining rights which flowed from that agreement have lapsed as of December 30, 1998. In any event, OPAC was not a party to that agreement.
OPAC's position in the AMAPCEO certification application is that the persons that union is seeking to represent are not employees within the meaning of the Act. In the present application the employer's position is that those persons and positions are excluded as managers, and that the OPSEU bargaining unit description on its face excludes them.
Further, OPAC argues it is not in law a successor employer, so the successor rights principles should have no application. It is also not bound by any agreements which the provincial government may have reached with either of these unions, so that the tripartite agreement is of no effect as far as OPAC is concerned. Notwithstanding the position it is taking, OPAC suggests that the Board simply open the segregated ballots of those who AMAPCEO had asked be separated, and that the Board then determine what to do. OPSEU objects to this course of action pointing to the Board's normal practice of not opening the ballots cast by those who are found not to be employees. It suggests that the Board would first have to determine whether all those persons whose ballots were segregated are or are not employees within the meaning of the Act.
DECISION
Having considered the parties' submissions and for the reasons which follow the Board is of the view that this is simply an application for certification which should be dealt with by the Board in the normal course. Pursuant to the apparent intention of the provincial government, as of December 31, 1998 no trade union which had previously held bargaining rights for Crown employees continued to have such bargaining rights once the Division was transferred to the new corporation, OPAC. Furthermore, the government was quite clear in CECBA about its intention that section 69 of the Labour Relations Act, 1995, regarding successor rights, would have no application in this type of privatization effort. Hence, AMAPCEO has no legal basis for suggesting that the Board should consider successor rights principles, or displacement application principles.
Section 10 of CECBA states:
(1) Section 69 of the Labour Relations Act, 1995 does not
form part of this Act.
(2) Despite the Labour Relations Act, 1995, section 69 of that Act does not apply,
(a) with respect to a person who purchases a business from the Crown or sells a business to the Crown;
(b) with respect to an interested person, trade union or council of trade unions in relation to a purchase or sale of a business by the Crown;
(c) with respect to a collective agreement that binds or, but for this section, would otherwise bind employees of the Crown or of a person described in clause (a), or with respect to the bargaining for such a collective agreement as the bargaining is affected by section 69.
Whatever may have been the bargaining structures within the provincial government prior to December 31, 1998, as of that date those structures no longer existed for the employees who are the subject of this application. All that remained was a workforce which had been offered work with the new corporation. It seems clear that the government wished a new employer to be able to start afresh, without the constraints of pre-existing bargaining structures and without employee recourse to section 69 of the Labour Relations Act, 1995 and the attendant jurisprudence. Thus OPAC found itself with a workforce transferred to it from employment with the Crown, and employees found themselves with jobs but without any collective bargaining agents.
It appears that OPSEU had been active in organizing the prospective OPAC employees even before the official inception of that corporation, and that it therefore filed its application for certification on the day the new corporation was in operation. AMAPCEO did not file its application until one week later. While AMAPCEO now argues that this matter should not be decided on the basis of who was first out of the gate, it is unclear to the Board why that principle should not apply. The Board has consistently held that it will deal with competing applications on the basis of which application was received at the Board first, except in some exceptional circumstances. If the two applications for certification had been received on the same day, they would have been dealt with together. However, in this case it appears that everyone knew that the work of the Division was being transferred to a new corporation, and that the date upon which that was to take place was December 31, 1998. OPSEU acted swiftly to put in its application for certification on that date, thereby both signalling its intention to attempt to represent the employees of OPAC, and simultaneously effecting a freeze on working conditions for the employees who had heretofore been employed by the Crown and who had been largely represented by OPSEU until December 30, 1998.
The Board disagrees with AMAPCEO's characterization of the situation in this case as being akin to a case where there are pre-existing bargaining structures. It is disingenuous to say that there were pre-existing bargaining structures in any event since the employer is a new employer - it was not in any position to agree to the so-called pre-existing bargaining structure. Furthermore, by virtue of the operation of the statute there are no such structures. It is therefore simply a clean slate, and whichever bargaining agent applies first to represent the employees of the new entity, that agent's application will have to be considered in light of the employer's response to the bargaining unit configuration and the Board's policies with respect to appropriate bargaining units.
In a similar vein, the Board cannot see how OPSEU can be bound by a tripartite agreement reached with AMAPCEO and the Crown in the context of a voluntary recognition agreement with that employer. The employer is no longer the same and the bargaining rights both unions had with respect to that employer have been terminated by dint of the statute.
In Humber/Northwestern/York-Finch Hospital, [1997] OLRB Rep. Sept./Oct. 872, the Chair of the Board had occasion to consider an appropriate bargaining unit configuration in the context of the merger of three hospitals where the parties had agreed that there had been the sale of a business within the meaning of the Labour Relations Act, 1995. The Board made some pertinent comments about organizational change in the era of restructuring and about what an appropriate bargaining unit configuration may, in the circumstances, be. The Board stated as follows:
The first aspect worth mentioning, is the pace of organizational change on the "employer side of the bargaining table" - beginning in recent years with "downsizing" and "restructuring" in the private sector, and now accelerated in the public sector, as cash-strapped governments try to find more efficient ways to deliver public services. Today, across Ontario, hospitals, school boards and municipal institutions are being restructured at an unprecedented pace, and on an unprecedented scale. And although this does not necessarily mean that the resulting institutions will be bigger overall, (because the consolidated organization may be smaller than the sum of its parts), it probably does mean that there will be fewer individual organizations, as their diverse elements are welded together and rationalized.
Against that background, it seems odd to suggest that the bench mark for bargaining structure should be the status quo, or that one should strive to maintain the checker board of bargaining units that prevailed historically. When business and government organizations are changing - sometimes radically - it seems curious to suggest that collective bargaining structures should stay the same or that the Board should not take the opportunity to evaluate that history in light of current concerns. It seems more appropriate to give serious consideration to consolidation (given the employee intermingling) and to cast a critical eye on bargaining-unit patterns that may retard the ability of employers and employees to adapt to these changes.
The current pattern of bargaining units in the broader public sector was, for the most part, established on a case-by-case basis from the 1960s to the mid-1980s - having regard to local conditions and the collective bargaining environment of the time, and, in recent years, giving considerable weight to the parties' agreement (i.e. whether or not the Board itself would find that unit to be appropriate, absent such agreement). And, no doubt, at individual institutions, those bargaining structures have worked more or less well. But I do not think that this history provides an unfailing guideline to what the "appropriate" bargaining structure should look like in the year 2000. Nor is precedent determinative in a situation that is quite unprecedented.
In exercising its discretion to determine what is "appropriate" under section 69(6) of the Act, I do not think that the Board can ignore what is going on in the rest of the collective bargaining system. Any sensible reading of the word "appropriate" must take these realities into account. And the dominant reality today is towards fewer, larger public sector institutions - be they hospitals, school boards or municipalities - and fewer, bigger bargaining units.
The second factor that one has to keep in mind is the evolving consensus that broader-based bargaining structures are generally better for collective bargaining - and ultimately better for BOTH employers and employees.
This is not to say that "bigger is always better". However, labour relations boards across the country have all recognized the utility of broader-based bargaining structures, because they are more likely to: promote stability, increase administrative efficiency, enhance employee mobility, and generate a common framework for employment conditions for all employees in an enterprise. Bigger bargaining units also have more critical mass, so that they are better able to facilitate and accommodate change. (See the policy considerations enunciated by the British Columbia Labour Relations Board in Insurance Company of British Columbia (1974), 1 Can. LRBR 403 - a case which, incidentally, involved a large public sector institution; and compare, in a different legal context, the decision of this Board in Mississauga Hydro-Electric Commission, [1993] OLRB Rep. June 523.)
In the absence of statutory prescriptions, there is, today, a pronounced preference for broader-based bargaining units, unless that objective collides in a serious way with the employees' ability to organize themselves. Indeed, the Board has often favoured broader-based bargaining units, even in certification situations, where the shape of the unit may well influence whether there will be any collective bargaining at all. The Board has recognized that the structure of collective bargaining "matters" - as it noted in cases such as Board of Governors of Ryerson Polytechnical Institute, [1984] OLRB Rep. Feb. 371; Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250; The Board of Education for the City of Toronto, [1986] OLRB Rep. June 900; Kidd Creek Mines Limited, [1984] OLRB Rep. Mar. 481; TV Guide Inc., [1986] OLRB Rep. Oct. 1451; and, more recently, Pepsi Cola, [1995] OLRB Rep. Aug. 1311. Fragmented bargaining structures can pose serious labour-relations problems. Conversely, broader based bargaining units make collective bargaining go more smoothly and successfully.
There is nothing particularly novel about these observations. Nor are they unique to Ontario, or to the Ontario Labour Relations Board. The consolidation of bargaining structures has been ongoing in other jurisdictions for many years (the Post Office, CBC, railways, and airlines come to mind); and policy considerations such as those discussed in the Ontario cases can be found in the reasons of other adjudicators in other jurisdictions. Those boards, too, have been inclined to favour more comprehensive bargaining units unless there are persuasive countervailing considerations. See, for example: ICBC, supra; Canadian Pacific Limited (1976), 1 CLRBR 361; Saskatchewan Wheat Pool (1977), 1 CLRBR5lO;AtomicEnergy of Canada Ltd. (1978), 1 CLRBR 92;British Columbia Telephone Limited (1977), 2 CLRBR 385; CBRT and Sea Span International Ltd. (1979), 2 CLRBR 213; and compare the "rethinking" evidenced in Ontario cases such as Mississauga Hydro-Electric Commission, supra, and Caressant Care Nursing Home of Canada Limited, [1996] OLRB Rep. Sept/Oct. 748.
The fact is: bargaining units are being consolidated on a regular basis - either because the legislation requires it, or because the legislation permits it, (e.g. section 7 of Bill 40), or because of employer restructuring, or contingent upon the merger of trade unions themselves. And generally speaking, neutral commentators think that such consolidation is a good thing. Bigger may not always be better, but broader, more comprehensive bargaining units are usually preferable – and more appropriate - than narrow fragmented ones. On the other hand, there may well be a variety of broadly-based groupings (but less than "all employees") which were and continue to be appropriate despite an operational merger of the predecessor organizations. In the hospital sector, for example, comprehensive units of paramedicals, service workers, etc. have been and may still be appropriate despite the bigger size of the successor organization.
In summary, the direction of the law, the direction of policy, the metamorphosis of employer and union organizations, and the evolution of thinking on these issues have, for the most part, all pointed towards broader bargaining units and extended area bargaining.
The much cited test for the consideration of an appropriate bargaining unit was first described in Hosp ital for Sick Children, [1985] OLRB Rep. Feb. 266, at para. 23, as follows:
Does the unit which the union seeks to represent encompass a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer.
On the subject of community of interest we agree with the Board's expression in Brookfield LePage Management Eastern Ltd. (unreported, Board File No. 2007-96-R, January 21, 1997):
We will deal first with the concept of community of interest and the first prong of the test. It is fair to say that the concept of community of interest is a concept that has evolved over the years, both in its meaning and the weight accorded it by the Board. All employees of an employer have a community of interest by the very fact of the common employer. The community of interest of employees in a department or a classification is a sub-category of that general community of interest and may be experienced by employees as stronger than the general community of interest because it is reinforced by closer daily working relationships, or from the employer's point of view, by distinct reporting relationships. But the Board has not, particularly in recent years, supported the idea that the smaller unit of community of interest is an appropriate base for bargaining. A dominant theme in the definition of bargaining units by the Board, in the absence of factors relating to access to bargaining, has been the reduction of fragmentation. Accepting departments or classifications as the appropriate basis for bargaining units because of the strength of the more local community of interest runs directly counter to the reduction of fragmentation. And the Board's experience over the years is that the broader commonalty of the economic interest of the employees of a common employer has made it quite feasible for employees with very diverse skills and functions within an organization to bargain together without serious labour relations problems. See, among many others, Active Mold Plastic Products Ltd., [1994] OLRB Rep. June 617, Hospital for Sick Children, cited above, and Burns International Security Services Limited, [1994] OLRB Rep. Apr. 347, and the cases cited therein.
In the case before us it is neither the applicant nor the responding party employer which is claiming that there is insufficient community of interest between those employees OPSEU is seeking to represent. Only AMAPCEO is taking that position. The intervenor suggests that the interests of those previously represented by AMAPCEO is distinct from the interests of the employees previously represented by OPSEU. As the Board has observed in Simcoe Terrace, [1994] OLRB Rep. Feb. 178, at para. 10, "real life collective bargaining has shown that it is possible to group together for collective bargaining purposes a group of employees with quite diverse skills, education, training and aspirations". The Board in that case quoted the following passage from Hospital for Sick Children, cited above:
It will be seen that the statutory language has remained basically unchanged for more than four decades, and in the early years it provided the basis for making broad distinctions for bargaining unit purposes between such groups as: "white collar" office and technical employees, and "blue collar" production employees; skilled tradesmen (electricians, plumbers, sheet metal workers, etc.), and unskilled or semi-skilled workers; part-time employees and full-time employees; employees working for an employer in one plant or municipality and employees in another plant or municipality; and so on. However, these fairly simple, and then unexceptional distinctions, do not apply so easily today. Collective bargaining has extended beyond its traditional "blue collar" industrial base, into the public sector and to increasingly sophisticated and diverse job hierarchies. Real life collective bargaining experience has outstripped some of the conventional wisdom and has shown that the collective bargaining system can exhibit quite a variety of structures, which, at one time, parties might have considered unconventional or inappropriate. Ontario Hydro, for example, has a province-wide bargaining unit, encompassing a broad range of employee classifications, and thousands of employees, ranging from unskilled workers to highly trained technicians. A typical municipal "inside workers"' (white collar) bargaining unit may include occupations ranging from filing clerks, to computer programmers, economists and planners with a considerable amount of post-secondary or even graduate training [see the Board's decision in The Regional Municipality of Durham, Board file 1818-84-R, decision released November 20, 1984]. The Ontario Civil Service bargaining unit contains thousands of employees ranging from clerks and typists to sophisticated scientific and technical personnel - and, incidentally, the staff of a number of provincial psychiatric hospitals (see: Owen Sound General and Marine Hospital, [1978] OLRB Rep. May 445, where the Board noted that in the government sector nurses, paramedicals, service employees, and clericals are all in the same unit, even though under the Labour Relations Act, they have typically been segregated into separate units). While at one time common opinion and industrial relations practice might have supported fairly rigid (almost "class") divisions between employee groups, modern collective bargaining seems to be able to thrive quite well in many contexts without such rigid distinctions. It is no longer as easy as it once was to say that it is "inappropriate" to group together for collective bargaining purposes, employees with quite diverse skills, education, training, position in the job hierarchy or probable aspirations.
Like the panel in Brookfield, we are of the view that there is insufficient material before us to find that there is a lack of community of interest between the groups of employees. While there may be differences in skills, areas of discretion, and job functions, these differences are not in our view so wide that separate bargaining units are called for.
The Board is also not swayed by the argument that former AMAPCEO members did not want to be represented by OPSEU in the past, and that therefore they should be permitted to be represented by a separate bargaining agent now. The seventh bargaining unit was a government construct which appears to have permitted many persons who may not have been considered "employees" within the meaning of the Labour Relations Act, 1995 (the "LRA") to have access to collective bargaining. The present application for certification is brought under the LRA, and as such only employees within the meaning of this Act will have access to collective bargaining. Therefore, it is first necessary to determine who may legally be in the proposed bargaining unit. It may be that following that assessment, there may not be very many persons who may have been in the AMAPCEO bargaining unit who will have to be represented by OPSEU. In any event, even if there are some such persons, they will have had their opportunity to vote in the representation vote and to express their wishes.
The Board in Simcoe Terrace (cited above) also addressed a request that the ballots cast by registered nurses in that case be counted in such a way that their wishes could be taken into account separate from the other employees who had cast ballots. The Board found the proposal to be without merit as it had found that the registered nurses were properly a part of a larger bargaining unit. As such, the Board observed as follows in para. 14:
Within this unit, the wishes of all employees in the bargaining unit as to their preferred bargaining agent have been tested by way of a secret ballot in which all affected employees have had the opportunity to vote; within this unit, each employees' wishes will be given equal weight.
We are not drawn to the employer's suggestion that the segregated ballots should be counted to determine who the majority of those individuals support. That would be of no assistance to the Board's determination of an appropriate bargaining unit. The issue with respect to the segregated ballots should be the employee status of those who cast ballots. If they are found, or agreed, not to be employees, their ballots will not be counted. Only those who are employees within the meaning of the Act, and who would fall within the parameters of the bargaining unit description should have the opportunity to have their ballots count for the purpose of determining whether or not there is majority support in favour of the applicant.
The Board does not grant separate bargaining units to different unions simply because some minority of employees does not wish to be represented by a certain union. In this particular case, it may he that there are only a few categories of employees who were formerly represented by AMAPCEO who remain capable of having access to collective bargaining under the provisions of the LRA. In that case it would not make good labour relations sense for them to be represented by one union, while the majority of their employee colleagues would be represented by another union. It would also not make much sense from the employer's perspective to have to deal with two unions in such a situation.
In this case the Board is satisfied that, despite AMAPCEO's intervention, an all employee bargaining unit is appropriate. We will not at this stage dictate the exact configuration of that bargaining unit since it appears that the employer and OPSEU wish to work on some exclusion issues first. However, in principle, and in accordance with the Board's views as expressed in the Hosp ital for Sick Children case, cited above, we are of the view that an all employee bargaining unit at OPAC is an appropriate unit for the purposes of collective bargaining.