Ontario Provincial Police Association v. The Crown in Right of Ontario

2213-01-R Ontario Provincial Police Association, Applicant v. The Crown in Right of Ontario represented by Management Board of Cabinet, Responding Party v. Ontario Public Service Employees Union, Intervenor.

BEFORE: Mary Ellen Cummings, Alternate Chair, and Board Members J. A. Ronson and H. Peacock.

DECISION OF THE BOARD; November 20, 2001

1. This is a displacement application brought pursuant to the Public Service Act (the “Act”). That Act provides a window in which the Ontario Provincial Police Association (the Association) may seek to displace the bargaining agents that represent groups of civilian employees who work at the Ontario Provincial Police, an agency of the Crown in Right of Ontario (the employer). In this application, the Association seeks to displace the Ontario Public Service Employees’ Union (OPSEU) who presently represent the following employees:

all public servants in the Province of Ontario who are either instructors at the Ontario Police College, or are under the supervision of the Commissioner of the Ontario Provincial Police or of the Chief Firearms Officer for Ontario, and who are currently represented by the Ontario Public Service Employees Union, save and except for those persons who are excluded under section 26(2)2. of the Public Service Act, R.S.O. 1990, c. P.47, as amended by S.O. 2001, c. 7.

2. At the risk of oversimplifying the process, the Public Service Act has “borrowed” a number of the substantive and procedural provisions found in the Labour Relations Act which govern the certification of trade unions. The Board has been given the jurisdiction over the displacement applications in the Public Service Act. The relevant provisions of that legislation are as follows:

28.0.1 In sections 28.0.2 to 28.0.10,

"AMAPCEO" means the Association of Management, Administrative and Professional Crown Employees of Ontario;

"Association" has the same meaning as in section 26;

"Board" means the Ontario Labour Relations Board;

"designated position" means an employment position held by a public servant who either is an instructor at the Ontario Police College or who is under the supervision of the Commissioner of the Ontario Provincial Police or of the Chief Firearms Officer for Ontario and who is represented for purposes of collective bargaining by either AMAPCEO, OPSEU or PEGO; ("poste désigné")

"OPSEU" means the Ontario Public Service Employees Union;

"PEGO" means the Professional Engineers Government of Ontario.

28.0.2 (1) The Association may, during the periods described in subsection (2), make the following applications to the Board:

1. An application for certification as the exclusive bargaining agent for the public servants who hold designated positions and who are represented by AMAPCEO for collective bargaining purposes.

2. An application for certification as the exclusive bargaining agent for the public servants who hold designated positions and who are represented by OPSEU for collective bargaining purposes.

3. An application for certification as the exclusive bargaining agent for the public servants who hold designated positions and who are represented by PEGO for collective bargaining purposes. 2001, c. 7, c. 12.

(2) An application referred to in subsection (1) shall be made only during the following periods:

1. In the case of an application for certification as the exclusive bargaining agent for public servants in designated positions within a bargaining unit that is represented by AMAPCEO, during the three months immediately preceding the expiry of the first collective agreement between the Crown in Right of Ontario and AMAPCEO to come into force after March 31, 2001.

2. In the case of an application for certification as the exclusive bargaining agent for public servants in designated positions within a bargaining unit that is represented by OPSEU, during the three months immediately preceding the expiry of the collective agreement between the Crown in Right of Ontario and OPSEU that is in force on January 1, 2001.

3. In the case of an application for certification as the exclusive bargaining agent for public servants in designated positions within a bargaining unit that is represented by PEGO, during the three months immediately preceding the expiry of the first collective agreement between the Crown in Right of Ontario and PEGO to come into force after December 31, 2000.

(3) The right of the Association to apply for certification under this section is subject to subsection 28.0.5 (3).

(4) An application for certification may be withdrawn by the Association upon such conditions as the Board may determine.

(5) Subject to subsection (6), if the Association withdraws an application for certification as the exclusive bargaining agent for one of the three groups of public servants referred to in subsection (1) before a representation vote is taken, the Board may refuse to consider another application for certification of the Association as the exclusive bargaining agent of a group of public servants holding designated positions and represented by the same bargaining agent as the one identified in the original application.

(6) If the Association withdraws the application before a representation vote is taken, and the Association has withdrawn a previous application under this section, the Board shall not consider another application for certification by the Association as the exclusive bargaining agent of a group of public servants holding designated positions and represented by the same bargaining agent as the one identified in the original application.

(7) If the Association withdraws an application for certification as the exclusive bargaining agent for one of the three groups of public servants referred to in subsection (1) after a representation vote is taken, the Board shall not consider another application for certification of the Association as the exclusive bargaining agent of a group of public servants holding designated positions and represented by the same bargaining agent as the one identified in the original application.

(8) The Association shall deliver a copy of the application for certification to the employer by such time as is required under the rules made by the Board and, if there is no rule, not later than the day on which the application is filed with the Board.

(9) The application for certification shall contain a written description of the group of public servants from among the three groups referred to in subsection (1) to which the application relates and shall include an estimate of the number of individuals in the group.

(10) The application for certification shall be accompanied by a list of the names of Association members who are part of the group of public servants to whom the application relates and evidence of their status as Association members but the Association shall not give this information to the employer.

28.0.3 (1) Upon receiving an application for certification made under section 28.0.2, the Board may determine the voting constituency to be used for a representation vote and in doing so shall take into account the description of the group of public servants described in subsection 28.0.2 (1) and identified in the application.

(2) If the Board determines that 40 per cent or more of the individuals in the group of public servants identified in the application appear to be members of the Association at the time the application was filed, the Board shall direct that a representation vote be taken among the individuals in the voting constituency.

(3) The determination under subsection (2) shall be based upon the information provided in the application for certification and accompanying information provided under subsection 28.0.2 (10).

(4) The Board shall not hold a hearing when making a decision under subsection (1) or (2).

(5) Unless the Board directs otherwise, the representation vote shall be held within five days (excluding Saturdays, Sundays and holidays) after the day on which the application for certification is filed with the Board.

(6) The representation vote shall be by ballots cast in such a manner that individuals expressing their choice cannot be identified with the choice made except in a case where there is only one member in the bargaining unit.

(7) The Board may direct that one or more ballots be segregated and that the ballot box containing the ballots be sealed until such time as the Board directs.

(8) After the representation vote has been taken, the Board may hold a hearing if the Board considers it necessary in order to dispose of the application for certification.

(9) When disposing of an application for certification, the Board shall not consider any challenge to the information provided under subsection 28.0.2 (10).

28.0.4 (1) If the employer disagrees with the Association's estimate, included in the application for certification, of the number of individuals in the group of public servants to whom the application for certification relates, the employer may give the Board a notice that it disagrees with that estimate.

(2) A notice under subsection (1) must include the employer's estimate of the number of individuals in the group of public servants to whom the application for certification relates.

(3) A notice under subsection (1) must be given within two days (excluding Saturdays, Sundays and holidays) after the day on which the employer receives the application for certification.

(4) If the Board receives a notice under subsection (1), the Board shall direct that the ballot boxes from the representation vote be sealed unless the Association and the employer agree otherwise.

(5) The following apply if the Board receives a notice under subsection (1):

1. The Board shall not certify the Association as the exclusive bargaining agent or dismiss the application for certification except as allowed under paragraph 2 or as required under paragraph 6.

2. If the Board did not direct that the ballot boxes be sealed, the Board may dismiss the application for certification.

3. Unless the Board dismisses the application as allowed under paragraph 2, the Board shall determine the number of individuals in the group of public servants to whom the application for certification relates.

4. After the Board's determination under paragraph 3, the Board shall determine the percentage of the individuals in the group of public servants to whom the application for certification relates who appear to be members of the Association at the time the application for certification was filed, based upon the Board's determination under paragraph 3 and the information provided under subsection 28.0.2 (10).

5. If the percentage determined under paragraph 4 is less than 40 per cent, the Board shall dismiss the application for certification and, if the ballot boxes were sealed, the Board shall direct that the ballots be destroyed without being counted.

6. If the percentage determined under paragraph 4 is 40 per cent or more,

i. if the ballot boxes were sealed, the Board shall direct that the ballot boxes be opened and the ballots counted, subject to any direction the Board has made under subsection 28.0.3 (7), and

ii. the Board shall either certify the Association or dismiss the application for certification.

28.0.5 (1) The Board shall certify the Association as the exclusive bargaining agent for the group of public servants described in the application if more than 50 per cent of the ballots cast in the representation vote are cast in favour of the Association.

(2) The Board shall not certify the Association as the exclusive bargaining agent for the group of public servants described in the application if 50 per cent or less of the ballots cast in the representation vote are cast in favour of the Association.

(3) If the Board dismisses an application to certify the Association as the exclusive bargaining agent for a group of public servants referred to in subsection 28.0.2 (1), the Board shall not consider another application by the Association for certification as the exclusive bargaining agent for a group of public servants holding designated positions and represented by the same bargaining agent as the one identified in the original application.

(4) For greater certainty, subsection (3) does not apply with respect to a dismissal under paragraph 5 of subsection 28.0.4 (5).

28.0.8 (1) If the Association is certified as the exclusive bargaining agent for one of the three groups of public servants referred to in subsection 28.0.2 (1),

(a) the trade union that previously was the bargaining agent for that group of public servants, AMAPCEO, OPSEU or PEGO, as the case may be, forthwith ceases to represent the public servants; and

(b) the collective agreement between the employer and the trade union that previously was the public servants' bargaining agent ceases to operate in so far as it affects such public servants.

(2) Upon the certification of the Association as the exclusive bargaining agent for one of the three groups of public servants referred to in subsection 28.0.2 (1), the bargaining unit for civilian employees in the Ontario Provincial Police described in paragraph 2 of subsection 26 (2) is established and the designated positions of the public servants to whom the application related shall be included in the bargaining unit.

(3) If, after having been certified as the exclusive bargaining agent for one of the three groups of public servants referred to in subsection 28.0.2 (1), the Association is certified as the exclusive bargaining agent for one or both of the other groups of public servants, the designated positions of those public servants shall be included in the bargaining unit for civilian employees in the Ontario Provincial Police referred to in paragraph 2 of subsection 26 (2).

(4) The bargaining unit established under subsection (2) shall be deemed to be appropriate for collective bargaining.

(5) If one or both of the other groups of public servants referred to in subsection 28.0.2 (1) are added to the bargaining unit established under subsection (2), the bargaining unit shall be deemed to be appropriate for collective bargaining.

(6) Despite the certification of the Association under subsection 28.0.5 (1) and the definition of trade union in subsection 1 (1) of the Labour Relations Act, 1995, that Act does not apply to the Association except as may be provided in this Act.

28.0.9 The Board shall not consider itself bound by, or have any regard to, any provision of this Act permitting the exclusion of public servants from their existing bargaining units under the Crown Employees Collective Bargaining Act, 1993 if any future applications are made to the Board under section 7 of the Labour Relations Act, 1995 for the certification of a trade union as the bargaining agent for employees who are part of a bargaining unit established under the Crown Employees Collective Bargaining Act, 1993.

28.0.10 (1) The rules of practice made by the chair of the Board under subsection 110 (17) of the Labour Relations Act, 1995 apply to a proceeding before the Board relating to a question referred to in subsection 26 (4.1), a complaint made under section 27 or an application made under section 28.0.2.

(2) In a proceeding referred to in subsection (1), the Board has all of the powers and duties referred to in section 111 of the Labour Relations Act, 1995. 2001, c. 7, c. 12.

(3) Section 108, subsections 110 (9), (11), (12), (13), (14), (15) and (16), section 112, subsection 114 (1) and sections 115.1, 117, 119, 120, 122 and 123 of the Labour Relations Act, 1995 apply with necessary modifications to a proceeding referred to in subsection (1). 2001, c. 7, c. 12.

(4) Sections 116 and 118 of the Labour Relations Act, 1995 apply with necessary modifications to a decision or order of the Board made under sections 28.0.2 to 28.0.7 or made with respect to a complaint made under section 27. 2001, c. 7, c. 12.

(5) Any reference to a trade union in any of the provisions of the Labour Relations Act, 1995 referred to in subsections (1) to (4) shall be deemed to include a reference to the Association for the purposes of the application of those provisions to a proceeding referred to in subsection (1) or to a decision or order of the Board with respect to a complaint made under section 27 or made under sections 28.0.2 to 28.0.7. 2001, c. 7, c. 12.

3. This application would appear to be timely.

4. It appears to the Board on an examination of only the information provided in the application and the information and membership evidence filed by the Association, in accordance with section 28.0.2(10) that not less than 40 per cent of the individuals in the bargaining unit were members of the Association at the time the application was made.

5. The Board notes that the employer took issue with the Association’s estimate of the number of employees in the bargaining unit, but did not file a notice pursuant to section 28.0.4(1). We also note that OPSEU submitted that the total number of employees in the Association’s Schedules A and B exceeded the Association’s estimate as set out at paragraph 4 of the application creating “…significant doubt about the Applicant’s entitlement to a vote in the circumstances”. As a result, OPSEU has requested that the ballot box be sealed. The Board has considered that submission. The Association has filed sufficient membership evidence to entitle it to a vote, even taking into account the numbers of employees set out in the Association’s Schedule A and B. There is no reason to direct that the ballot box be sealed.

6. The employer agreed with the Association’s description of the bargaining unit, but OPSEU did not explicitly agree or disagree. The Board directs that a representation vote be taken of the individuals in the following voting constituency:

all public servants in the Province of Ontario who are either instructors at the Ontario Police College, or are under the supervision of the Commissioner of the Ontario Provincial Police or of the Chief Firearms Officer for Ontario, and who are currently represented by the Ontario Public Service Employees Union, save and except for those persons who are excluded under section 26(2)2. of the Public Service Act, R.S.O. 1990, c. P.47, as amended by S.O. 2001, c. 7.

7. Because of the large number of employees involved, and their locations all over the Province, the representation votes will take place over a number of days, with polls in different locations each day, commencing November 26, 2001 and ending December 6, 2001. Employees are directed to look closely at the voting arrangements attached to the “Notice of Vote and of Hearing” to determine the times and locations of polls.

8. All individuals who had an employment relationship with the employer in the voting constituency on November 7, 2001, the application filing date, are eligible to vote. Employees having an employment relationship on November 7, 2001 include employees who were not at work on that date, so long as there is a reasonable expectation of their return to employment.

9. Voters will be asked to indicate whether they wish to be represented by the Association or OPSEU in their employment relations.

10. The employer is directed to post copies of this decision and of the “Notice of Vote and Hearing” in locations where they are most likely to come to the attention of affected employees.

11. Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to this application must file a detailed statement of representations with the Board and deliver it to the other parties so that it is received by the Board by December 21, 2001. Representations with respect to any status dispute must be made in accordance with the directions provided in Information Bulletin No. 4: Status Disputes in Certification Applications (Non-construction).

12. This matter is remitted to the Registrar.

“Mary Ellen Cummings”

for the Board