John Calcafuoco, Leslie Amadio and Carmine Belsito v. Canadian Union of Public Employees, Local 4148 and Huron-Superior Catholic District School Board, 1999 CanLII 20148

Ontario Labour Relations Board

[1999] OLRB REP. JULY/AUGUST 616

0899-99-PS John Calcafuoco, Leslie Amadio and Carmine Belsito, Applicants v. Canadian Union of Public Employees, Local 4148 and Huron-Superior Catholic District School Board, Responding Parties v. Ontario Secondary School Teachers' Federation, Intervenor

BEFORE: David A. McKee, Vice-Chair.

DECISION OF THE BOARD; August 13, 1999

1This is an application under the Public Sector Labour Relations Transition Act, 1997 (the "Act"). The applicants seek to nullify the effect of the Board's decision in Board File No. 0395-98-PS. That file was an application by the Ontario Secondary School Teachers' Foundation ("OSSTF"), requesting the Board to determine the appropriate bargaining unit structure and the identity of the bargaining agents for employees of the Huron-Superior Catholic District School Board (the "Huron-Superior Board"). In that file, the Board appointed the Canadian Union of Public Employees, Local 4148 ("CUPE") as the bargaining agent for a unit of "plant/maintenance/care staff'. The applicants are three employees who were not represented by a bargaining agent prior to June 9, 1998. On June 9, 1998, in Board File No. 0395-98-PS the Board found that a plant/maintenance/care group was an appropriate bargaining unit and appointed CUPE as the bargaining agent pursuant to section 23 of the Act. The applicants are now in the plant/maintenance/care unit and seek to undo that result.

2The responding parties CUPE and the OSSTF dispute the applicants' right to bring this application on the basis that the application does not disclose a prima facie case and on the basis of the delay of the applicants. The Huron-Superior Board takes a position which appears to support the position of the applicants but remains neutral on many of the issues.

3This decision deals with the submission of CUPE and the OSSTF that the application does not make out a prima facie case or alternatively, should be dismissed for delay.

4The Act is a unique statute dealing with an extraordinary consolidation of a number of school boards across the province. The aim of the statute is to rationalize the operations, including the employee complement and the labour relations regime of the newly-created Boards of Education. The applicants' counsel is correct in stating that the process envisioned under the Act is very different from certification process under the Labour Relations Act, 1995, S.0. 1995, c. 1 ("the LRA"). It is very different primarily because it deals with a one-time adjustment to collective bargaining structures in the face of existing bargaining rights which are unavoidably brought into conflict by the consolidation of one or more school boards.

5The applicants' position (leaving aside the Charter argument) is essentially this: they are employed as skilled tradesmen doing maintenance work for what was formerly the Sault Ste. Marie District Roman Catholic Separate School Board. They were not members of a bargaining unit represented by CUPE or any other union. They have been swept into the maintenance/plant/care bargaining unit and are now represented by CUPE. They believe that their current terms and conditions of employment are superior to what they would receive under a collective agreement between CUPE and the Huron-Superior Board and that their inclusion in the bargaining unit will be detrimental to their employment benefits. They state that they were not given the opportunity to vote or to express their views to the Board. They believe that the agreement entered into by CUPE, OSSTF and the Huron-Superior Board is contrary to sections 20 of the Act, section 2(d) of The Canadian Charter of Rights and Freedoms, and section 5 of the LRA. They seek to be excluded from the bargaining unit.

6For the reasons set out below, I find that the facts as alleged do not constitute a violation of the Act or the LRA and, even putting the applicants' case at its highest, that is returning to June 1, 1998 and reassessing the situation at that time, those submissions would not have caused the Board to hold a hearing, order a vote, or in any way vary the June 9th decision.

7The sequence of events must be seen in the context of the statute itself. The Act mandates the amalgamation of, inter alia, a number of school boards. In this case there were four school boards:

(a) Sault Ste. Marie District Roman Catholic Separate School Board ("the Sault Board")

(b) Chapleau District Roman Catholic Separate School Board ("Chapleau Board")

(c) Michipocoten District Roman Catholic Separate School Board ("Michipocoten Board")

(d) North Shore District Roman Catholic Separate School Board ("North Shore Board").

8These four school boards were amalgamated into the Huron-Superior Board. For the purposes of the Act, the "changeover" date is January 1, 1998.

9Once the changeover date occurs, sections 14 to 19 freeze most employment matters and all collective bargaining. The statute permits the parties themselves to make certain limited arrangements in sections 20 and 21. Alternatively, any party may apply to the Board under sections 21, 22 or 23. The Board's power and jurisdiction to deal with that application is set out in those sections.

10In this case the parties did not come to an agreement under section 20. The agreement which is attacked by the applicants is not an agreement to which section 20(2) of the Act applies. As a result of a failure of the parties to agree to a bargaining unit structure, the OSSTF made an application under sections 21, 22 and/or 23 of the Act on April 28, 1998. In this application it proposed two units as follows:

Office/Clerical, Technical/Educational Assistants

all employees of the Huron-Superior Catholic District School Board, save and except supervisors, persons above the rank of supervisor, teachers and custodial/maintenance employees.

Custodial/Maintenance

all employees engaged in custodial/maintenance services by the Huron-Superior Catholic District School Board, save and except supervisors, and persons above the rank of supervisor.

Responses were filed by the Huron-Superior Board and by CUPE. CUPE proposed an all-employee bargaining unit. The Huron-Superior Board proposed a five-unit structure as follows:

Plant/Care Group (70 employees);

Office and Clerical Group (59 employees);

Educational Assistants (74 employees);

Noon Hour Aides (36 employees);

Maintenance Group (6 employees).

11By decision dated May 7, 1998, in Board File No. 0395-98-PS, the Board appointed a Labour Relations Officer to meet with the parties and to attempt to effect a settlement of the application. The text of this decision outlines the nature of the application and the issues at stake in it.

12The Board required the Huron-Superior Board to post the May 7th decision in places where "they are most likely to come to the attention of all employees who may be affected". The decision advises employees that they may participate in the proceeding by filing a written statement with this Board within 7 working days of May 7, 1998. It concludes with the following statement in bold print:

Employees, however, should not write to the Board if the only thing they want to say is that they support or do not support a particular bargaining agent. If the Board decides that an employee's statement will not change the result of the application, the Board may decide the application without further notice to that employee.

13The parties in fact did meet and come to an agreement. The Memorandum of Agreement states in part:

MEMORANDUM OF AGREEMENT

File No. 0395-98-PS

Ontario Secondary School Teachers' Federation ("OSSTF')

• and -

Huron-Superior Catholic District School Board ("Huron Board")

• and -

CUPE, Local 4148 ("CUPE")

Whereas OSSTF filed an Application under Section 21, 22 and/or 23 of the Act;

And whereas the Huron Board and CUPE filed Responses;

The parties have agreed to resolve the outstanding issues between them as follows:

1. There shall be three (3) separate bargaining units of employees in the Huron Board generically described as follows:

(a) Plant/Maintenance/Care Staff group;

(b) Office, Clerical, Technical and Educational Assistants; and,

(c) Noon Hour Aides.

The agreed to bargaining descriptions are attached as Schedule "A" to this Agreement.

CUPE shall be the bargaining agent for employees in the Plant/Maintenance/Care staff group (Bargaining Unit No. 1).

Schedule "A"

Bargaining Unit No. 1

All employees of Huron-Superior Catholic District School Board engaged in plant, maintenance and caretaker positions, save and except supervisors, persons above the rank of supervisor.

14On June 9, 1998 the Board issued a decision in File No. 0395-98-PS. The Board acknowledged the agreement of the parties and ordered as follows:

Bargaining Unit #1

Plant/Maintenance/Care Staff Group

The parties have further agreed that CUPE shall be the bargaining agent for Bargaining Unit #1. Having regard to the agreement of the parties and pursuant to section 23(9) of the Act, any bargaining rights possessed by the Ontario Secondary School Teachers' Federation in respect of the employees who are now in the bargaining unit are hereby terminated.

The Board appoints the Canadian Union of Public Employees as the bargaining agent in respect of Bargaining Unit #1 – Plant/Maintenance/Care Staff Group bargaining unit.

A vote was subsequently held in the other two bargaining units and on July 20th the Board made the necessary appointments for the other two bargaining units.

15Also relevant for the purposes of understanding this decision are the numbers of employees involved. In its initial response the Huron-Superior Board indicated that there were seventy employees in the Plant/Care Unit and six employees in its Proposed Maintenance Unit. The final numbers for Bargaining Unit No. 1 (that is the combined Plant/Maintenance/Care Staff group) was seventy-three. Of these seventy-three, fifty-nine persons had previously been represented by CUPE, and fourteen persons were not represented by any bargaining agent. That is, fourteen of the seventy-three or roughly nineteen percent of the bargaining unit had not been previously represented by any bargaining agent.

16The Huron-Superior Board now takes the position that it acted under a mistaken belief about its legal position or its legal obligations. In paragraph 3 of its response in this application it states:

The Huron-Superior Board was led to understand incorrectly that it was required to accept the inclusion of "Maintenance Personnel" in the plant operations bargaining unit, which is made up almost entirely of caretakers, because there were "full-time" maintenance personnel in the bargaining unit of the predecessor Michipocoten Board who were now employees of the Huron-Superior Board. As a result of this misunderstanding, the Board agreed on or about May 28, 1998 that the Canadian Union of Public Employees ("CUPE") Local 4148 would be the bargaining agent for (Bargaining Unit No. 1).

The Board has previously refused to permit an employer to resile from a formal agreement under the Act (see Lakeridge Health Corporation, Board File No. 4314-98-PS, May 27, 1999 (unreported) at para. 5). In this case, with the greatest of respect, the Board's position now seems to suffer from an opportunistic revision of its thinking process. Its response in Board File No. 0359-98-PS indicates it clearly knew of a number of employees (at the time it said six) who did "maintenance work" as opposed to "plant/care work". They agreed to combine these two groups into one bargaining unit. Had the Huron-Superior Board believed a case could be made for a separate bargaining unit of maintenance employees, it was free to argue that before this Board. This argument of course would face some considerable difficulties. The unit structure proposed by the Huron-Superior Board might well have been viewed by this Board as being unduly fragmented. Further, the Board has rarely found a bargaining unit composed of maintenance employees of an industrial or institutional establishment to be an appropriate bargaining unit in a certification application. In many applications under this Act, the Canadian Union of Operating Engineers has asserted a claim to a separate unit of stationary engineers who in fact possess specific licenses to perform the work that they do. Absent agreement of all other parties to a separate bargaining unit, the position of the Canadian Union of Operating Engineers has been rejected in virtually every case. A separate maintenance bargaining unit would also, as the Huron-Superior Board points out, have split up a bargaining unit represented by CUPE which included both. The Huron-Superior Board decided that it would not take that position but would agree to a combined unit of maintenance/plant/care staff unit. This was a sensible compromise for the Huron-Superior Board to make. In addition, it was part of an overall settlement of a number of disputes arising from the amalgamation of four school boards. Once the risk of upsetting the other compromises in the document has gone, it is rather too easy for the Huron-Superior Board to go back and detach a single issue for reconsideration. It does not elevate this process to a higher level to attempt to characterize such an attempt as a newly-discovered mistake as to the law. In any event, a party's mistaken understanding of law is not grounds for voiding an agreement in terms of contract law.

17The applicants have now filed an application with this Board and assert a position that they say ought to have been considered by the Board. In a letter dated July 20, 1999 from their counsel they assert that they did not see the June 9th decision. They do not say however that they did not see the far more significant May 7th decision. They state they did send a letter to the Manager of Field Services in June of 1998. No such letter can be found in the file. Counsel further states that in July one of the applicants spoke to the Registrar who advised him that a hearing would be scheduled where he would have a chance to express his views. Given that the Board's filing system and hearing dates are tracked on an extremely elaborate computer system, it is highly unlikely that the Registrar said anything of the sort, no matter what the applicant believed he heard. This application was filed on June 22, 1999, well after the "few months" after July 1998 when the applicant believes he spoke to the Registrar. In circumstances where all parties are entitled to rely on a Board decision to arrange their affairs and conduct collective bargaining, this delay, even accepting the applicants' explanation, is excessive.

18Within this context, the applicants seek to take the process back to a point prior to June 9, 1998 and reopen the issue of the bargaining unit structure. Even if this Board were to do so, the submissions made by the applicants would not cause this Board to issue a different decision. The applicants do not wish to be represented by CUPE. Unfortunately, the Act does not concern itself with that fact. That is why the Board's decision commencing the process involved in every application made under sections 21, 22 or 23 typically includes the bold print advice quoted above. The Board is not uninterested in the views of individual employees; it is the statute that makes them irrelevant. The view of employees not previously represented by a trade union are relevant for the purpose of the statute only when the bargaining unit structure sweeps in a large number of them. Subsection 23(5) states as follows:

(5) If 40 per cent or more of the employees in the bargaining unit were not represented by a bargaining agent immediately before the changeover date, the ballot must include having no bargaining agent as a choice.

That is, the statute specifically contemplates sweeping in previously unrepresented employees into a bargaining unit for which a bargaining agent is appointed. Only if the number of such persons exceeds 40 percent of a bargaining unit must the issue go to a vote. In this case only 19 percent of the bargaining unit had not been previously represented. In the face of those numbers, where there is an agreement on the bargaining unit structure by all three parties, the fact that three employees who were not previously represented do not wish to be swept into the bargaining unit would not cause the Board to make any different decision (see Lakeridge Health Corporation, Board File No. 4314-98-PS, June 4, 1999 (unreported). Given the length of delay in putting this position to the Board, I decline to reopen the issue at this point in time.

19The applicants have expressed some concern that the terms and conditions of their employment are likely to be adversely affected by the outcome of collective bargaining. The terms and conditions of employment are of course frozen during bargaining. CUPE has stated on the record that it is not seeking to bargain lesser terms and conditions of employment for them. This issue is at the moment only a hypothetical concern, albeit a very legitimate one, and would not cause me to reopen the entire agreement at this date.

20As noted above, the applicants also raise the issue of section 2 of the Canadian Charter of Rights and Freedoms. No notice has been given to the Attorney General of Ontario or to the Attorney General of Canada and therefore the Board may not decide that issue at this point in time (see the Courts of Justice Act, s.109 and Sheraton Fallsview Hotel Conference Centre, [1995] OLRB Rep. Dec. 1475). While it is up to the applicants to frame their own case, the attack as I understand it is at least as much directed at the statute itself as the Board's application of it. An application involving an attack on a statute is one in which the applicant, aside from giving notice to both Attorneys General, must set out a detailed factual context and legal argument with respect to its position, and specifically the sections of the statute which are impugned. The applicant has done none of these things and therefore I will not deal with the Charter issue in this application either.

21For all of these reasons, this application is dismissed.