Ontario Public Service Employees Union v. The Corporation of the County of Essex, 2001 CanLII 4560

Ontario Public Service Employees Union v. The Corporation of the County of Essex

2891-00-R Ontario Public Service Employees Union, Applicant v. The Corporation of the County of Essex, Responding Party v. Canadian Union of Public Employees Local 2974.1, Intervenor v. Teamsters, Chauffeurs, Warehousemen & Helpers Local No. 880, Intervenor.

BEFORE: Christopher J. Albertyn, Vice-Chair.

APPEARANCES: Maureen Doyle, Tracey Mussett and Dan Pickel for the applicant; Patrick F. Milloy, Donald E. Shaban and Brain Bildfell for the responding party; Brian Sheehan and Terri Marenette for CUPE Local 2974.1; J. James Nyman, Nini Jones and Tom Baldwin for Teamsters Chauffeurs, Warehousmen & Helpers Local No. 880.

DECISION OF THE BOARD; April 10, 2001

1. This is a certification application filed pursuant to the Labour Relations Act, 1995, R.S.O. 1995, c.1, as amended (“the Act”). The applicant (“OPSEU”) seeks bargaining rights in respect of paramedic employees, who, since January 1, 2001, have become employees of the responding party (“the County”) as part of the downloading of land ambulance services to upper-tier municipalities by the Province under amendments to the Ambulance Act.

2. The intervenors, Teamsters Local 880 (“the Teamsters”) and CUPE, Local 2974.1 (“CUPE”), claim bargaining rights in respect of the paramedic employees. They and the County claim that the paramedic employees are covered by one or other of their collective agreements. The County and the Teamsters claim the paramedic employees fall into the Teamsters’ bargaining unit; CUPE claims they fall into its bargaining unit.

3. There are 86 paramedics who have become employees of the County from January 1, 2001. Leaving aside the paramedic employees, there are 38 employees in CUPE’s bargaining unit and 28 in the Teamsters’ unit.

4. On January 16, 2001 the Board ordered a representation vote and directed that the ballot box be sealed. Paramedic employees voted on whether they wished to be represented by OPSEU. The Teamsters and CUPE were not on the ballot.

5. There are two issues in the matter. The first is whether OPSEU’s application is untimely or otherwise barred from proceeding. The County, CUPE and the Teamsters contend that it is. The second issue arises if they are correct. It concerns which bargaining unit the paramedic employees fall into, either that of the Teamsters or that of CUPE.

6. During the course of the hearing on April 2, 2001 I informed the parties that I would address only the first issue and that, if OPSEU were unsuccessful, then I would refer the second issue back to the County, the Teamsters and CUPE for further consideration. They could elect to have the matter determined at arbitration or they could return to the Board.

7. The County held discussions with the Ontario Ministry of Health (resulting in a written agreement on October 18, 2000) in which the County undertook to provide land ambulance services from January 1, 2001. The County also held discussions with the Teamsters and CUPE as to which of their bargaining units would cover the paramedic employees when they became employed. These discussions did not result in an agreement. The County eventually decided (and on October 5, 2000 informed CUPE) that the paramedic employees would be included within the Teamsters’ bargaining unit. CUPE filed a grievance on November 7, 2000 (which was referred to arbitration on December 7, 2000) claiming that its collective agreement had been violated and that the paramedic employees ought to be in its unit. The parties have yet to appoint an arbitrator to determine the matter.

8. OPSEU says there ought to be a separate bargaining unit for paramedic employees. It claims that neither the Teamsters’, nor CUPE’s, bargaining unit covers paramedic employees and that it is entitled to be the bargaining agent for them. That determination depends upon the bargaining unit descriptions of the collective agreements between the County and the Teamsters and CUPE respectively. The scope of the Teamsters’ bargaining rights are as follows:

The Corporation recognizes the Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union 880, as the exclusive Bargaining Agency for Checkers, and all employees, save and except Foreman, those above the rank of Foreman, and Office Staff.

The scope of CUPE’s bargaining rights are:

The Corporation or anyone authorized to act on its behalf, approves and recognizes the Canadian Union of Public Employees and its Local 2974.1 as the sole and exclusive Collective Bargaining Agent for all its employees save and except Department Heads, persons above the rank of Department Head, the Human Resources Officer, Human Resources Secretary, Human Resources Assistant, Recording Secretary, Administrative Secretary, Clerk Typist Administration, Building Maintenance Supervisor, Supervisor Central Duplicating, Assistant County Engineer, Road Maintenance Foreman, Assistant Road Maintenance Foreman, Senior Planner II, Senior Planner I, Supervisors in Social Services, Operations Manager, Assistant Operations Manager, Secretary to Administrator in Social Services, Supervisor, Adult Protective Services, Home Support Co-ordinator, Cafeteria Manager, Accounting Supervisor, Treasurer-Deputy Clerk, General Manager, EWSWA, Landfill Engineer, Manager, Finance and Administration, EWSWA, Manager, Solid Waste Disposal, EWSWA, Solid Waste Supervisor, EWSWA, Manager, Waste Diversion, EWSWA, Recycling Supervisor, EWSWA, Controller, Administration, Computer Programmer, Administration, and employees in bargaining units for which any trade union held bargaining rights as of May 25, 1985.

9. The Teamsters’ bargaining rights preceded those of CUPE. Hence the reference in the scope clause of CUPE’s collective agreement to “employees in bargaining units for which any trade union held bargaining rights as of May 25, 1985” includes those employees covered by the Teamsters’ collective agreement.

10. The County, the Teamsters and CUPE argue that there is a seamless cover of all of the County’s employees under the two collective agreements. There is no gap between the two which might create the possibility of OPSEU’s entrance to the collective bargaining stage. The stage is fully covered, either by the Teamsters or by CUPE. To use the Teamsters’ counsel’s phrase, there is no excluded middle.

11. OPSEU responds by suggesting that the Teamsters’ bargaining rights are restricted to the County’s Road Department and that CUPE’s bargaining rights never contemplated the inclusion of paramedic employees. OPSEU refers to several articles in the Teamsters’ collective agreement which appears to suggest that the County and the Teamsters had in mind that only employees of the Road Department are covered by it. As regards CUPE’s collective agreement, OPSEU points to the absence of any job classifications which are similar to those of paramedic employees. OPSEU suggests that it makes no operational sense to include the paramedic employees within CUPE’s unit.

12. The other parties respond, in my view correctly, that the absence of paramedic employee classifications and provisions in the collective agreements which might reasonably apply to paramedic employees is because parties cannot be expected to make fanciful provisions in their agreements, such as might cover positions and situations which do not exist at the time. When the collective agreements were concluded there was no expectation of paramedic employees being covered by them. That is the reason why no reference is made to them and why the existing provisions are not modified to accommodate them. Clearly some of the provisions do not fit well, if at all, with the terms and conditions under which paramedic employees are employed, but that does not, in the submissions of the County, the Teamsters and CUPE, mean that the bargaining rights of the Teamsters and CUPE are any less extensive.

13. A letter was written by the Teamsters to the County on November 8, 2000. In it the union asserts bargaining rights in respect of the paramedic employees who were then shortly to be employed by the County. It also suggests, to satisfy the County’s concerns, that it might consider placing the paramedic employees in a separate bargaining unit. OPSEU’s counsel relies upon this letter to suggest that even the Teamsters realized there was no match between the Teamsters’ existing bargaining unit and the paramedic employees.

14. The other parties respond that the issue before the Board is not such as might be the case were this an application under Bill 136, to determine the new bargaining unit structures of an amalgamated municipality. Considerations as to whether there will be a good fit, a nice match, between the paramedic employees and those existing employees in either the Teamsters’ or CUPE’s bargaining unit are appropriate in a Bill 136 inquiry into the appropriate bargaining unit configuration of the new entity, but that is not what is involved in this application. The Board is not concerned to re-configure the County’s bargaining units. Here the Board is determining whether the employees in respect of whom OPSEU is seeking bargaining rights are in fact represented by unions which already possess bargaining rights. As the other parties rightly contend, considerations as to where the paramedic employees might more suitably fit are not relevant – certainly not to the first inquiry, and arguably not to the second issue either.

15. Assuming, as OPSEU’s counsel argues, without finding, that the references to the Road Department and to particular members of management within that department (and there are many such references) in the Teamsters’ collective agreement are such as to derogate from the scope of the Teamsters’ bargaining rights, that would not be sufficient to create a gap within which OPSEU could assert bargaining rights. That is because where the Teamsters’ bargaining rights end, CUPE’s begin. The bargaining rights of those unions are to be determined by reference primarily to the scope clauses in their collective agreements. Those clauses make clear that the bargaining rights of the Teamsters and of CUPE are complementary. Employees of the County who do not fall into the one bargaining unit fall into the other. There is no hiatus, no gap between them. Both units are all employee units; CUPE’s bargaining rights are subject only to the Teamsters’ bargaining rights. The County and the Teamsters say that the Teamsters’ bargaining rights are now effectively for all outside employees, not merely those in the Road Department. That is not agreed by CUPE, but whether or not that is so, what is clear is that CUPE is the bargaining agent for all employees who are not represented by the Teamsters. That means, for the purposes of this application, that all employees of the County are covered either by the Teamsters’ or by CUPE’s collective agreement. There has been an accretion to one or other of their bargaining units as a result of the downloading of the paramedic employees to the County by the province.

16. If the paramedic employees fall within the Teamsters’ bargaining unit, the application is untimely. The Teamsters’ collective agreement expires on March 31, 2003. Any displacement application would have to wait until then.

17. If the paramedic employees fall within CUPE’s bargaining unit, the application would be timely, but OPSEU has not sought to carve out a paramedic employees bargaining unit from CUPE’s unit and it has not sought to displace CUPE from its existing unit. It accepts that if I find that the paramedic employees fall within CUPE’s or the Teamsters’ bargaining unit, as I have, then its application will fail.

18. In the above circumstances OPSEU’s application must fail. It is dismissed.

19. The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.

20. This leaves the second issue: do the paramedic employees fall into the Teamsters’ bargaining unit as the Teamsters and the County contend, or do they fall in CUPE’s bargaining unit? This matter should now be determined. There is some urgency in getting the matter resolved. Union dues payable by the paramedic employees are being deducted and held in trust until their bargaining agent is determined. The County, the Teamsters and CUPE should meet, perhaps with a Labour Relations Specialist/Officer of the Board, to endeavour to reach agreement on the division between the Teamsters and CUPE as to their respective bargaining agency. Failing agreement, the parties can pursue the matter under the grievance filed by CUPE, alternatively they may return to the Board for determination of the matter. Should the parties agree to pursue the matter at arbitration, they should advise the Registrar accordingly and this matter will be terminated. In that event, no party may contend that the board of arbitration does not have jurisdiction to determine the issue. Failing agreement to have the matter arbitrated, any of the three parties may request the Registrar to relist the matter for hearing. In that event I will remain seized. OPSEU will no longer have standing in the matter.

21. The County is directed to post copies of this decision immediately, adjacent to all copies of the “Notice of Vote and of Hearing” posted previously. These copies must remain posted for a period of 30 days.

22. The Board hereby adjourns this application sine die for a period not exceeding one year. Unless within that time either party requests that the Board proceed with the matter, it will be deemed terminated without any further notice to the parties.

“Christopher J. Albertyn”

for the Board