Hilary Newman

Earlier this year, the Prince Edward Island Labour Relations Board (“Board”) issued a decision¹ wherein it certified the Charlottetown Professional Firefighters Association (“Association”) as bargaining agent for:

All employees of the City of Charlottetown Fire Department below the rank of Deputy Chief, including Engineers, Assistant Engineers, Fire Inspectors, Fire Prevention Officers, Firefighter II’s, Seasonal Firefighters, and Entry Level Seasonal (ELS) Firefighters, employed in the City of Charlottetown.

In doing so, the Board “carved out”, or “fragmented”, the employees of the City of Charlottetown Fire Department (“Firefighters”) from their existing bargaining unit, CUPE, Local 501.

Background

At the time the Association filed its Application for Certification on August 4, 2017 (“Application”), CUPE, Local 501 was the certified bargaining agent for the following civic affairs departments of the City of Charlottetown (“City”): fire, clerical, public works, public property and parks and recreation. The Firefighters had been a part of the CUPE, Local 501 bargaining unit since 1953.

The Board’s decision

The Board broke its decision into two separate issues:

1. whether the Board should allow the Firefighters to be carved out from the existing bargaining unit; and
2. if the carve out should be allowed, whether the Application satisfied the certification requirements under the Labour Act, RSPEI 1988, c L-1.

I. Carve out

In determining that the carve out should be allowed in this case, the Board found that the Firefighters led sufficient evidence to rebut the presumption in favour of the appropriateness of the existing bargaining unit, and had established that there were compelling labour relations reasons to carve up the existing unit.

The Board recognized the well-established principle that most labour boards prefer to consolidate bargaining units, rather than break apart, or fragment, existing units. The following principles with respect to applications to fragment existing bargaining units were cited by the Board:

• there is a strong presumption in favour of the appropriateness of an existing bargaining unit;
• the onus lies on the party seeking to change the bargaining unit to rebut the presumption in favour of the existing unit, by establishing that there are compelling labour relations reasons to carve up the unit;
• the Board should look for cogent evidence of real operations or labour relations problems in the existing bargaining unit structure before it considers a certificate to break apart an existing unit; and
• the employees’ wishes in the carved out group are relevant, but are not on their own sufficient to overcome the Board’s reluctance to change the existing bargaining unit structure.

Evidence at the hearing of the Application demonstrated that the Firefighters were experiencing difficulty in having their grievances heard in a timely manner. As of the date the Application was filed, the Firefighters had fourteen grievances outstanding, some of which had been outstanding for at least six years.

The Firefighters also submitted evidence that CUPE, Local 501 had failed to negotiate a 24-hour shift schedule for the Firefighters. This meant that career Firefighters were required to work alone at times. The Board heard evidence that, in the past, career Firefighters who had been working alone had been unable to enter a building at the scene of a fire due to the requirement that at least one other firefighter be present.

Further, the Board’s decision noted the evidence before it indicated that the Firefighters training and work performed was very different than the remainder of workers in the CUPE, Local 501 bargaining unit. Most other workers were, for example, truck drivers, equipment operators, park staff and street sweepers.

Being satisfied that the carve out should be allowed, the Board moved on to the second issue – the determination of whether the Application satisfied the certification requirements under the Labour Act, RSPEI 1988, c L-1.

II. Certification requirements

In order for the Association to be certified as bargaining agent for the Firefighters, the Association had to establish: (1) that it was a trade union; (2) that a majority of the Firefighters were in favour of selecting the Association as its bargaining agent; and (3) that the bargaining unit that would be formed by the Association would be appropriate for collective bargaining.

The Board was satisfied that the Association was a trade union and that the majority of the Firefighters wished for the Association to act as their bargaining unit. The bulk of the Board’s analysis was spent on its determination of whether the Firefighters’ proposed bargaining unit was “appropriate” for collective bargaining. The Board considered a number of factors, including the following:

• the Firefighters had a strong “community of interest”;
• industry practice indicated that firefighters are typically represented by their own “stand-alone units” comprised of firefighters only;
• the City did not oppose the proposed bargaining unit;
• the qualifications and training of the Firefighters were more comprehensive than the other groups in the CUPE, Local 501 bargaining unit;
• there was essentially no mobility between other groups of CUPE, Local 501 to the Firefighters group;
• little contact was had between the Firefighters and other groups in the CUPE, Local 501 bargaining unit; and
• the Firefighters had different reporting and pay structures than the other groups in the CUPE, Local 501 bargaining unit.

In summary, the Board was of the view that the Applicant’s bargaining unit was appropriate and that it would be responsive to the qualifications, needs and expectations of the Firefighters. The Board carved out the Firefighters from the existing CUPE, Local 501 bargaining unit, and certified the Association as the bargaining agent for the Firefighters.

Take away from this decision

Successful carve out applications are rare. Labour boards regularly refuse such applications based on the principle that larger bargaining units promote industrial stability.  The Board’s decision on this Application is very much the exception. It does, however, serve as a reminder that the presumption in favour of the appropriateness of the existing bargaining unit is one that can be rebutted on the right set of facts.

¹ Charlottetown Professional Firefighters Assn. and Charlottetown (City), Re, 26 C.L.R.B.R. (3d) 1 [2019].

This update is intended for general information only. If you have questions about the above, please contact a member of our Labour & Employment group.

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