2994-99-R Ontario Public Service Employees Union, Applicant v. The Regional Municipality of York, Responding Party; Canadian Union of Public Employees, Local 4900, Intervenor.
BEFORE: D. L. Gee, Vice-Chair.
APPEARANCES: David Wright, Connie Huziak, Ed Ogibowki and Tracey Mussett for the applicant; Joy Halton, Anthony Dimonte, Brad Meekin and Phil Branston for the responding party; B. Sheehan, D. Ivanochko, D. Shephard for the intervenor.
DECISION OF THE BOARD; March 2, 2000
- This matter is an application for certification filed on January 10, 2000 in which the applicant, Ontario Public Service Employees Union (“OPSEU”) seeks to represent employees in the following bargaining unit:
All ambulance officer (paramedic) employees of the Regional Municipality of York in the Regional Municipality of York save and except managers, persons above the rank of manager.
The employer, The Regional Municipality of York (the “Region”) and Canadian Union of Public Employees, Local 4900 (“CUPE”) each filed a timely response in which it was asserted that a vote should not be conducted on the basis that the application is not timely. Both the Region and OPSEU assert that the employees OPSEU seeks to represent (“paramedics”) are covered by a collective agreement between the Region and CUPE with a duration clause of April 1, 1998 to March 31, 2001 (the “Collective Agreement”).
By decision dated January 13, 2000 the Board (differently constituted) declined to order a vote and directed that the matter be listed for hearing expeditiously.
A hearing was held on January 28, 2000. The parties agreed to the following facts.
Agreed Facts
The Ambulance Act was amended in 1996 to require upper tier municipalities (of which the Region is one) to assume responsibility for the provision of ambulance services in their respective regions effective January 1, 2000.
Prior to January 1, 2000 ambulance services were provided in the Region by a series of separate ambulance services. Two of the services were operated by the Ministry of Health and three of the services were crown agency services. The individuals employed in the services operated by the Ministry of Health and the crown agency services were represented by OPSEU. In addition, there were hospital based services whose employees were represented by Service Employees International Union (“SEIU”). The Region itself did not have ambulance services and CUPE did not represent any ambulance employees in the Region.
On March 11, 1999 the Region’s council adopted a recommendation that it operate the ambulance service directly commencing January 1, 2000. The decision was made to place the ambulance service as a Branch of the Health Services Department (“HSD”) of the Region. Staffing for the service commenced in June 1999 with the hiring of management staff. The recruitment of paramedics began in October 1999 with offers of employment being issued on November 15, 1999. The hiring of paramedics was completed by mid-December 1999.
CUPE has a long standing collective bargaining relationship with the Region. The Collective Agreement was agreed to in the fall of 1998, with a duration clause of April 1, 1998 to March 31, 2001. The bargaining unit covered by the Collective Agreement is extremely large, comprising hundreds of employees in over 60 different classifications including positions such as office cleaner, accounting clerk, social assistance worker, transportation analyst and electrician. It is not disputed classifications have been absorbed into the bargaining unit in the past.
CUPE, Local 1076 had a long standing bargaining relationship with the Public Health Department of the Region. In the Fall of 1998 the Region and CUPE, Local 1076 entered into a renewal collective agreement for that unit with a duration clause of April 1, 1998 to March 31, 2001. In the summer of 1999, CUPE, Local 4900 and CUPE, Local 1076 were merged. The Region and CUPE agreed to merge the two bargaining units. A single collective agreement covering the merged unit is being finalized.
When CUPE and the Region reached agreement on the Collective Agreement, the recognition clause was amended. Prior to the amendment, the recognition clause referred to the “Plumbing Inspections Branch of Health Services Department”. As a result of the amendment, the recognition clause now refers to the “Health Services Department”. The amendment was undertaken to facilitate the merger of CUPE, Local 4900 and CUPE, Local 1076 and their bargaining units.
On August 4, 1999, CUPE and the Region entered into an addendum to the Collective Agreement to place the classifications of Paramedic I and Paramedic II in the Collective Agreement. On November 18, 1999 CUPE and the Region entered into a further addendum regarding the paramedics classifications.
In addition to its bargaining relationship with CUPE, the Region has a collective agreement with CUPE, Local 4900-03 with respect to the Long-Term Care Division of the Region and with the Ontario Nurses Association (“ONA”) with respect to nurses in the Public Health Branch of the HSD.
The Region and CUPE were aware from March 1999 that OPSEU continued to be interested in representing ambulance workers in the Region. Meetings were held between the parties respecting the transfer of ambulance services on May 6 and June 15, 1999 with OPSEU representatives in attendance. OPSEU tabled a proposal with the Region respecting the transfer of ambulance services in the summer of 1999. The proposal did not speak to the issue of representation.
Ambulance officers were never asked to vote for or approve the August or November addendums to the Collective Agreement.
There has been downloading of other provincial government employees to the Region namely: income maintenance or welfare workers and court administration workers. Such employees were included in the CUPE unit. The inclusion of the court administration workers resulted in the creation of a new classification. The court administration workers were put in a new division of an existing department.
The paramedics subject to this application were told prior to their hiring that it was the position of the Region and CUPE that they would be part of the CUPE bargaining unit and represented by CUPE.
In the past when departments of the Region have been reconfigured or renamed CUPE continued to represent the employees of the amalgamated or new department.
The only departments of the Region for which CUPE does not represent employees are those departments where employees are represented by ONA and CUPE, Local 4900-03 and employees in the Human Resources Department and the Chief Administrator’s office who are excluded on the basis that they are engaged in a confidential capacity.
Collective Agreement and Addendums
- The relevant articles of the Collective Agreement are as follows:
2.1 RECOGNITION OF UNION
The Employer recognizes the Canadian Union of Public Employees and its Local 4900 as the sole bargaining agent for collective bargaining purposes for the group of employees including students, employed by the Regional Municipality of York who occupy the position set forth the in the attached Schedules annexed hereto and forming part of this agreement, within the following areas: Corporate & Legal Services Department; Transportation & Works Department; Planning & Development Services Department; Health Services Department; the Social Services Department; and the Finance Department.
2.2 NEW CLASSIFICATIONS
Regarding any newly established classifications which, in the opinion of either party, should be included or excluded from the bargaining unit, the question as to its inclusion or exclusion shall be determined by mutual agreement or failing agreement, by reference to the Grievance Procedure.
33.1 NEW CLASSIFICATIONS – NOTICE
The Employer shall give written notice to the Union before it establishes a new classification either inside or outside the bargaining unit.
33.2 NEW OR CHANGED CLASSIFICATIONS
When:
(a) the duties of any position or classification set out in the attached Schedules are changed, or
(b) the Union and an employee feel that the employee is incorrectly classified; or
(c) any classification not included within Schedules A, B, C or D is established, provided such classification is appropriate for inclusion in the bargaining unit;
the rate of pay and classification regarding such position shall, at the request of the Union, be subject to negotiation between the parties, and if the parties are unable to reach a satisfactory settlement, the matter may be submitted to grievance and Arbitration.
Any change in the rate established by the Employer either through meetings with the Union or by a Board of Arbitration shall be made retroactive to the time at which the new classification was first filled or established.
- The relevant articles of the August 1999 Addendum are as follows:
The Parties hereby agree as follows:
- The following position shall be placed in the bargaining unit of CUPE Local 4900. They shall be placed in Schedule “F” 84 hours bi-weekly of the collective agreement. The positions will be placed on the wage grid as follows:
(a) Paramedic I (PI) at new pay grade 1 with the following steps: Start 19:34, 735 Hrs 19.95, 18 Mos. 20.56;
(b) Paramedic II (PII) at new pay grade 2 with the following steps; Start 20:75, 735 Hrs 21.40, Mos. 23.00
The parties agree that the rates contained in 1(a) and 1(b) above shall be subject to a 2.25 percent increase April 1, 2000, as well as subsequent increases provided for in the collective agreement.
Employees hired to commence employment on or before the date the Region assumes operation of land ambulance services shall have their seniority and service recognized by the Region and CUPE Local 4900, provided the employee was hired directly from the current ambulance operators in York Region or any other ambulance service in Ontario where CUPE is the bargaining agent.
The Parties agree that in all respects the collective agreement between the Region and Local 4900 applies to the provision of Emergency Medical Services, except that the probationary period shall only apply to those employees who were still subject to a probationary period with their previous employer. The Parties recognize and agree that further negotiations shall be required to resolve issues of hours of work, location, uniforms, additional bargaining unit positions, a framework for an essential services agreement, and any other issues relating to the working conditions of Emergency Medical Services.
Issue
- The parties agreed that the issues before the Board were twofold. First, is the bargaining unit described in the Collective Agreement an all employee or departmental unit such that it is inclusive of the paramedics? If not, do the August and November Addendums to the Collective Agreement constitute a valid voluntary recognition agreement?
Submissions of the Parties
OPSEU points to the language of article 2.1 of the Collective Agreement in support of its assertion that the bargaining unit consists of “the group of employees... who occupy the positions set forth in the attached Schedules” in specified departments and is not an all employee unit. In OPSEU’s submission, article 2.2 of the Collective Agreement, which provides for the referral of disputes concerning the inclusion or exclusion of new classifications in the bargaining unit, is evidence that not all classifications are included in the bargaining unit. OPSEU further relies on paragraph 1 of the August Addendum wherein it states that the paramedic positions “shall be placed in the bargaining unit of CUPE Local 4900” as evidence that the positions did not automatically fall within the bargaining unit, but rather had to be placed there on agreement of the parties. Further, OPSEU points to the fact that the November Addendum contains special provisions, such as an essential services agreement, which are applicable solely to the paramedics, as evidence that this is not a situation of simply adding more of the same to the bargaining unit. It is not a situation where the employer has expanded and needs more people.
In OPSEU’s submission, the Region and CUPE cannot claim that the Collective Agreement covers all employees when the nurses employed by the HSD are represented by ONA and employees in the Long-Term Care Division of the HSD are represented by CUPE Local 4900-03. The fact that the unit is not an all employee unit is, in OPSEU’s submission, further demonstrated by the parties need to amend the recognition clause in the fall of 1998 to accommodate the merger of CUPE, Local 4900 and CUPE, Local 1076 and the merger of the bargaining units.
Thus, it is OPSEU’s submission that the Collective Agreement does not provide for an all employee unit. The paramedics did not automatically fall within the bargaining unit. In OPSEU’s submission, CUPE and the Region are attempting to sweep a whole new group of employees, who have never worked for the Region, in circumstances where the Region employs no similar employees and CUPE has never represented such individuals, into the Collective Agreement in a manner that gives the employees no say in who their bargaining agent is. In OPSEU’s submission, the August and November Addendums are a voluntary recognition agreement.
OPSEU asserts that the voluntary recognition agreement is invalid for two reasons. First, it is asserted that the agreement is invalid because it was entered into at a point in time when OPSEU was on the scene. In support of this position, OPSEU relies on Trent Metals Limited, [1979] OLRB Rep. August 827 wherein the Board stated at paragraph 7 the following:
The recognition agreement between the applicant and the respondent employer was entered into at a time when the intervener trade union was in the process of signing employees of the respondent into membership. Indeed the intervener had signed more than one third of the respondent’s employees into membership at the time the recognition agreement was entered into therefore, there was a legitimate contest between the two unions at the time as to which one would become the bargaining agent for the respondent’s employees. Having regard to this fact the Board hereby declares, pursuant to its authority under section 52 of the Act, that the applicant was not entitled to represent the respondent’s employees at the time the recognition agreement was entered into. Accordingly, that agreement and the “wage settlement”, whatever it may have been, cease to operate and cannot bar the intervener’s application. The Board must consider both applications.
OPSEU points to the fact that the Region knew that OPSEU was interested in representing the paramedics, OPSEU had membership cards signed on the earliest possible date and filed the instant application as early as possible in support of its argument that, at the time the Addendums were entered into, it was on the scene and there existed a legitimate contest. In light of those facts, based on Trent Metal Systems, OPSEU asserts that the voluntary recognition agreement is invalid.
OPSEU asserts that the voluntary recognition agreement is also invalid because there is no evidence that the paramedics covered by the agreement wished to be represented by CUPE at the time the agreement was signed. OPSEU submits that, in light of the terms of the Addendums, which give up the right to strike, support of the individuals affected is very important.
OPSEU referred to the Board’s decision in Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250 wherein the Board stated as follows:
The differences between a certificate and fresh voluntary recognition, on the one hand, and an agreement enlarging an existing agreement, on the other, can be briefly summarized. Present employees can participate in a certification campaign. Majority rule is tempered by the notions of community of interest and self-determination, subject to a countervailing concern for viable bargaining structures. The creation of a new unit by voluntary also entails employee participation. But all of these safeguards are absent in the context of a recognition agreement that expands bargaining rights if the litmus test is an overall majority.
Section 60(1) does not compel this result. In interpreting this section, one must remember that the legislative draftsman had the paradigm voluntary recognition agreement in mind. That agreement creates a brand new bargaining unit. In this context, there can be no dispute about what unit is to be looked to for the purpose of measuring support for the union. The statutory language fits an agreement expanding a unit imperfectly. Reference to the bargaining unit prompts the question which bargaining unit – the enlarged unit or the new addition? The parties have already agreed to the larger bargaining unit and, if the voluntary recognition survives, this will continue to be the unit for the purpose of collective bargaining. For these reasons, one may be tempted to say the expanded bargaining unit is the one to which section 60(1) refers. But the works of section 60(1) take on another meaning when the underlying purpose is borne in mind. In the paradigm case, section 60 allows the employees for whom a union is granted bargaining rights to challenge the voluntary recognition. The only employees who inherit a bargaining agent when an existing unit is expanded are those who are newly added. In this sense, they are the group of employees, or the bargaining unit, effected by the challenged agreement. A strong argument can be made that this is the bargaining unit to which section 60 refers. Any remaining ambiguity should be resolved by adopting the interpretation which meshes best with the general framework of the Labour Relations Act. Certification, the primary mechanism for creating bargaining rights, allows employees to participate in making a majority decision and also places some limits on majoritarianism. As an alternative to certification, voluntary recognition occurs outside the Board’s purview, but the Act provides a mechanism for retrospective review. In the paradigm case, voluntary recognition also entails employee participation. Turning to the penumbral case of an agreement to expand bargaining rights, we prefer the interpretation of section 60(1) that grants employees this same procedural safeguard. Consequently, the word bargaining unit in section 60(1) must be read to mean the addition to an existing unit. A voluntary recognition agreement is not valid unless a majority of the additional employees support the union. Metfalfe Realty, supra should not be followed.
We now shift our focus from an agreement that adds present employees to existing bargaining unit to a voluntary recognition entered into before there are any employees in the new component added to an old unit. In this context, only future employees are affected. Their stake in the creation of bargaining rights is much weaker than that of the present work force. The reason is obvious. A person who is already employed when a bargaining agent is recognized has no real choice about union representation. The only way for this employee to escape the union is to quit, leaving behind seniority rights and perhaps also benefit entitlements and disrupting personal life. By contrast, an employee who enters an existing bargaining unit knowing at the time of hire that a union is tied to the job can avoid the trade union by not accepting employment. This difference between today’s employees and tomorrow’s work force becomes highly significant when self-determination is balanced against the dangers of a fragmented bargaining structure.
What about a voluntary recognition agreement that expands a bargaining unit? In the context of present employees, we have already assigned a greater weight to self-determination than to consolidated bargaining, by ruling that a group of employees cannot be added to an existing bargaining unit unless a majority of them wish to be. However, we believe that future employees should bow to the benefits of broadly based bargaining structures. A recognition agreement that expounds bargaining rights to encompass prospective employees should not be struck down.
This policy judgment can be comfortably accommodated by section 60(1). It states “the Board may … declare that the trade union was not, at the time the agreement was entered into, entitled to represent the employees in the bargaining unit.” In this setting, the bargaining unit is the addition to an existing unit and contains no employees at the crucial time. Consequently, the Board could make a declaration. But the word “may” clearly confers a discretion not to do so. For the reasons set out above, we believe a declaration would be inappropriate in these circumstances.
Under the approach we have described, the time when existing bargaining rights are expanded is crucial. An agreement made after there is a work force in place is subject to challenge, but the voluntary recognition that precedes the hiring of employees is not. The reason for the difference is that employees come to the union in one situation, whereas the trade union comes to them in the other. With this rationale in mind, we can formulate the question that determines on what side of the line any particular case falls. At the time the work force was hired, were employees told, or could they reasonably be expected to have discovered, that their jobs entailed union representation? In other words, the determining factor is what employees knew or could have learned with reasonable effort. The precise moment at which a recognition agreement becomes legally binding is in itself not relevant.
We will briefly summarize our conclusions about the application of section 60 to the expansion of existing bargaining rights. The term bargaining unit means the addition to the old unit. An agreement that sweeps in present employees will be struck down pursuant to section 60(1) unless a majority of them support the union. But the Board will exercise its discretion under section 60(1) to uphold an agreement entered into before there any employees in an addition to an existing bargaining unit.
OPSEU submits that the Board should not follow the Board’s comments in Bestview Holdings Limited to the effect that a voluntary recognition agreement entered into prior to the hiring of employees is not subject to challenge. In OPSEU’s submission such an approach undercuts the principles of majoritarianism. In OPSEU’s submission, if the Board’s approach was ever correct, it is no longer so. The Act has since been amended to place greater emphasis on employee choice. Reference was made to the provisions of the Act that provide for a vote in all certification applications, a vote to ratify every collective agreement and the Purposes of the Act.
In the alternative, if Bestview Holdings Limited is good law, OPSEU suggests that is not applicable in the instant case where, in order for the individuals hired to escape CUPE, they would have to leave behind their seniority rights and benefit entitlements. In OPSEU’s submission, these people are more analogous to existing employees than new hires and the voluntary recognition agreement should be scrutinized accordingly.
The Region asserts that the Collective Agreement is an all employee bargaining unit. It does not dispute that new classifications were created or that the Collective Agreement did not previously contain the classification of “paramedic”. In the Region’s submission, all that took place here was the negotiation of a new classification as anticipated by article 33 of the Collective Agreement. In support of its position, the Region points to the fact that the Collective Agreement covers all Departments of the Region except for those excluded because the individuals employed therein are employed in a confidential capacity. The Region asserts that the recognition clause is drafted as it is because, had it been drafted in terms “all employees save and except” the list of exclusions would have been extremely lengthy. The present wording was therefore adopted and should not in any way detract from the fact that it is an all employee unit.
In the alternative, the Region asserts that the Addendums are a valid voluntary recognition agreement. The Region distinguishes Trent Metals Limited on the basis that no contest between trade unions existed in respect of the paramedics similar to that found by the Board in Trent Metals Limited. The Region points out that there is no evidence of an awareness by the Region of efforts by OPSEU to seek bargaining rights for this group of employees. At the time the Addendums were entered into, in the Region’s submission, there existed no legitimate contest between trade unions.
Further, the Region relies on the Board’s comments in Bestview Holdings Limited and asserts that, having regard to the fact that the voluntary recognition agreement was entered into prior to the employees being hired, the agreement is not subject to challenge. At the time the employees accepted employment, they were aware of the implications of doing so and had a choice as to whether they would accept or decline.
CUPE takes positions similar to those of the Region. It is CUPE’s position that the Collective Agreement is an all employee bargaining unit. It is pointed out that others in the same position as the paramedics, who were downloaded by government initiatives, were automatically included in the bargaining unit. In support of its position, CUPE points to article 33 of the Collective Agreement wherein it is contemplated that, if a new classification developed, and there was a dispute, for example as to whether the position was managerial, such dispute could be referred to arbitration. In CUPE’s submission article 33 is evidence of the fact that the Collective Agreement was intended to be a dynamic embodiment of an all employee unit.
In the alternative, CUPE submits that it is a departmental unit and that the paramedics fall within a department covered by the Collective Agreement.
In the further alternative, CUPE submits that, if there has been a voluntary recognition agreement, it is valid. In CUPE’s submission, Trent Metals Limited is easily distinguishable on the basis that it involved the recognition of an employee association that was created overnight when the employer became aware of the interest of a legitimate trade union. CUPE relies on the Board’s comments in Bestview Holdings Limited to the effect that a voluntary recognition agreement entered into prior to their being employees in the unit is not subject to challenge. CUPE points out that the Board’s comments in Bestview Holdings Limited have not been overturned since they were made in 1983. CUPE suggests that the approach is a valid one as it prevents undue fragmentation and allows the parties to deal with the dynamic nature of their relationship.
In reply, OPSEU asserted that the fact is that the paramedics in issue in the present case are more akin to a bargaining representative being thrust on an existing employee than a new hire. The Board has typically not been concerned with a bargaining representative being thrust on a new hire because that person has a choice of taking the job and accepting the union’s representation or, if they are opposed to being represented by the union, they can decline to take the job. In the present case, the choice faced by the paramedics is not so simple. If they do not want to be represented by CUPE they not only have to not accept the job offer, they have to forego their seniority rights and benefit entitlements. In OPSEU’s submission, these people are simply not in an analogous position to the typical individual being offered employment. Further, OPSEU states that the agreement reached between CUPE and the Region takes away the paramedics’ right to strike. Thus, the Board should be concerned when a very significant right is being taken away without the individuals affected having been provided with any say in their bargaining representative.
With respect to article 33 of the Collective Agreement, OPSEU says that it is typical classification language that is included in all comprehensive collective agreements. It appears in both all employee and classification based units. Further, OPSEU submits that, if the Collective Agreement was an all employee unit, that article 2.2 would not be necessary.
With respect to Bestview Holdings Limited, OPSEU urged the Board not to follow it and indicated that there have been no cases that have followed it.
OPSEU asks that the voluntary recognition agreement be declared not to constitute a bar to the instant application and that a vote be ordered.
Decision
It is my determination that the agreement entered into between the Region and CUPE is sufficient to constitute a valid voluntary recognition agreement such that, regardless of the outcome of the issue with respect to the scope of the Collective Agreement, there would be a bar to OPSEU’s application for certification. As a result, I make no determination with respect to the issue of the scope of the Collective Agreement.
It is my determination that, so long as a trade union continues to enjoy the support of a majority of the employees in the bargaining unit, an employer and trade union are entitled to adjust the parameters of the bargaining unit to encompass new classifications. In the instant matter, assuming without so finding that the placement of the paramedics in the bargaining unit was an expansion of the pre-existing bargaining unit, it is my determination that CUPE and the Region were entitled to enter into such an agreement provided CUPE maintained majority support in the entire bargaining unit and the agreement did not constitute employer support within the meaning of section 53. CUPE clearly has majority support in the bargaining unit and I do not find the Region to have given support to CUPE within the meaning of section 53. Thus, assuming the agreement to constitute a voluntary recognition agreement it is valid.
For the reasons that follow, I respectfully decline to follow the Board’s determination in Bestview Holdings Limited to the effect that, where an addition is made to an existing bargaining unit, the resulting voluntary recognition agreement is not valid unless a majority of the employees in the add on group support the union.
As indicated by the Board in Bestview Holdings Limited, section 66 was drafted to address the situation where an employer and a trade union enter into a fresh agreement that has the effect of creating a brand new bargaining unit. It is apparent from its language that section 66 was not drafted with an expansion of an existing bargaining unit in mind. To adopt the phraseology of the Board in Bestview Holdings Limited “[t]he statutory language fits an agreement expanding a unit imperfectly.”
The fact that the language of section 66 is an imperfect fit with an agreement expanding a unit caused the Board in Bestview Holdings Limited to look to the larger scheme of the Labour Relations Act in order to assist it in reaching an informed interpretation and application of the section. In this regard, the Board was influenced by the fact that, in the instance of a trade union’s certification or a fresh voluntary recognition agreement, a number of safeguards were present. After reviewing the nature and effect of the “safeguards” at paragraphs 24 through 29 of the decision, the Board summarized its conclusions at paragraph 30 as follows:
The differences between a certificate and fresh voluntary recognition, on the one hand, and an agreement enlarging an existing agreement, on the other, can be briefly summarized. Present employees can participate in a certification campaign. Majority rule is tempered by the notions of community of interest and self-determination, subject to a countervailing concern for viable bargaining structures. The creation of a new unit by voluntary recognition also entails employee participation. But all of these safeguards are absent in the context of a recognition agreement that expands bargaining rights if the litmus test is an overall majority.
While the Board recognized the importance of creating viable bargaining structures and avoiding fragmentation, the Board determined that, at least in the context of existing employees, greater weight should be afforded to self-determination than to consolidated bargaining units.
The Board then determined that it was possible to interpret section 66 in a manner so as to provide the safeguards referred to above in the context of an agreement expanding a unit by requiring a majority of the employees in the add on group to support the union. Further, the Board concluded that, to do so, was consistent with the treatment of employees who are added to an existing unit by means other than voluntary recognition.
I am not persuaded by the Board’s reasoning. The only safeguard referred to by the Board that is preserved by the application of section 66 to a fresh voluntary recognition agreement, which is the paradigm which the legislature had in mind when section 66 was enacted, is employee participation in the selection of the trade union. None of the other safeguards referred to by the Board, namely the tempering of majority rule by the notions of community of interest or self-determination, are preserved by the application of section 66 to the paradigm. Accordingly, I am not persuaded that such safeguards are relevant considerations in the course of determining the application of section 66 to the expansion of an existing bargaining unit.
Further, the Board stated that its determination was consistent with the treatment of employees who are added to an existing unit by means other than voluntary recognition. In support of such statement, however, the Board referred to instances where a bargaining unit is expanded by order of a labour relations board pursuant to a statutory power invoked by application of one of the parties to a collective agreement.
The Board makes no reference to what, in my view, are more analogous situations in which employees are added to an existing bargaining unit without regard to their wishes. In the case of all employee bargaining units, the acquisition of another non-union operation within the geographic scope of the agreement by the employer would automatically result in the employees engaged in such operation being covered by the agreement. Likewise where, after the initial certification or voluntary recognition, there are accretions to a bargaining unit, such individuals have no say in whether they wish trade union representation or the identity of the trade union that will represent them. In my view such situations are analogous to the situation where there is an expansion of an existing bargaining unit. In all cases, the trade union in question has status in the work place as a bargaining agent and, at one point, had the support of a majority of a group of the employer’s employees. Thereafter, the individuals who joined the bargaining unit did so pursuant to an agreement reached between the employer and such a trade union. In such situations, the tenet of majoritarianism is protected by the availability of termination applications and, under the present scheme of the Act, the need to conduct ratification and strike votes.
Further, the Board used the term “majoritarianism” as if there are a number of possible constituencies one could canvass to determine the trade union’s level of support. The entire structure of the Act, how one obtains, preserves and terminates bargaining rights, is premised on the wishes of those in the “bargaining unit”. “Bargaining unit” is a defined term (see section 1(1) of the Act). It is “a unit of employees appropriate for collective bargaining”. Employees covered by a single collective agreement are such a unit. It is that unit, i.e. the single bargaining unit covered by the collective agreement, that is relevant for the purposes of assessing majoritarianism.
In any event, if Bestview Holdings Limited was correct at the time it was written, it is my view that the considerations applied by the Board in the course of determining the appropriate scope of bargaining units have changed so as to render Bestview Holdings Limited no longer good law.
Bestview Holdings Limited was written at a point in time when “community of interest” and the ability of distinct groups of employees to determine their own fate were matters of concern to the Board. For example, as stated in Bestview Holdings Limited, the prevailing view of the Board was that plant and office employees would not be combined in a single bargaining unit based on the premise that they lacked a community of interest. It was felt that trade unions would not be able to adequately represent the interests of divergent groups of employees. As a result, the Board was fairly active in the area of determining the composition of the appropriate bargaining unit.
Very shortly after Bestview Holdings Limited, most notably in The Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, the Board articulated an approach that signaled a departure from its prior focus on community of interest and a desire on the Board’s part to structure bargaining units so as to avoid the problems inherent in undue fragmentation. The Board specifically rejected its prior practice of creating divisions amongst employee groups based purely on the nature of the work they performed and advocated broadly based, diverse bargaining units. The advantages of fewer, more broadly based bargaining units are aptly discussed by the Board in The Hospital for Sick Children. Further, the Board indicated that it would no longer closely scrutinize the composition of bargaining units based on factors such as community of interest as it had done in the past. Henceforth the Board would adopt an approach whereby the applicant would be granted the bargaining unit for which it applies unless the granting of such a unit would result in serious labour relations problems for the employer.
Having regard to the Board’s change in approach with respect to the composition of bargaining units, it is my view that the concern expressed by the Board in Bestview Holdings Limited, to the effect that the add on group must be permitted a say in trade union representation in order to preserve the safeguard of “community of interest” and self-determination and that such interest outweighs the countervailing interest in consolidation of bargaining units, is no longer valid. Having regard to the present day scheme of the Act, which provides members of bargaining units with a number of opportunities to express their views, including ratification and strike votes and termination applications, it is my view that the present day balance, in the case of an expansion to a bargaining unit, ought to lie in favour of consolidation.
Thus, for the reasons set out above, I do not accept the Board’s determination in Bestview Holdings Limited to the effect that, where there is an expansion to an existing bargaining unit, the trade union must have the support of the majority of those in the group added on. In my view the language of section 66 on its face suggests that the trade union must have support of the majority of the employees in “the bargaining unit” of which, in an expanded bargaining unit there can be only one – the entire, overall bargaining unit, and that such interpretation is consistent with the larger scheme of the Act.
I turn then to a consideration of OPSEU’s argument based on Trent Metals Limited, that the agreement is invalid on the basis that it was entered into with the knowledge that OPSEU was interested in representing the ambulance officers. I am not persuaded that what occurred in the instant matter is analogous to the facts at issue in Trent Metals Limited. In the instant case, CUPE and the Region honestly and reasonably were of the view that that the ambulance officers fell within the scope of the Collective Agreement. Further, they treated the ambulance officers in the same fashion that they have treated other new classifications including the income maintenance or welfare workers and the court administration workers who were previously represented by OPSEU. The Region and CUPE’s discussions were carried on openly and with the full knowledge of OPSEU. I do not perceive what occurred in this case as an attempt on the Region’s part to lend assistance to CUPE or an attempt to thwart OPSEU.
Determination
Having regard to the foregoing, it is my determination that in order to establish that a voluntary recognition agreement was valid, the onus on the Region and CUPE in the instant matter would be to demonstrate that CUPE enjoyed the support of a majority of the employees in the overall bargaining unit. Having regard to the fact that the number of employees in the bargaining unit that existed prior to expansion far out number the ambulance officers added to the unit, it is apparent that such support could be established regardless of the wishes of the ambulance officers. Accordingly, the agreement to expand the scope of the agreement would be a valid voluntary recognition agreement and a bar to the instant application. As a result, this application is hereby dismissed.
The Region is hereby directed to post copies of this decision immediately in all locations that it had previously posted copies of the application for certification. These copies must remain posted for 30 days.
“D. L. Gee”
for the Board