Chemistry Graduate Students' Association of the University of Ottawa v. University of Ottawa, 1981 CanLII 1015

Ontario Labour Relations Board

[1981] OLRB Rep. February 232

2090-80-R Chemistry Graduate Students' Association of the University of Ottawa, Applicant, v. University of Ottawa, Respondent.

BEFORE: M. G. Picher, Vice-Chairman, and Board Members J. D. Bell and O. Hodges.

APPEARANCES: Martin Laplante for the applicant; Pierre-Yves Boucher and Dean Peter Morand for the respondent.

DECISION OF THE BOARD; February 19, 1981

1. This is an application for certification.

2. The applicant has not previously established its status as a trade union within the meaning of section l(l)(n) of The Labour Relations Act. Upon being advised by the Registrar, it adduced evidence at the hearing to satisfy that requirement.

3. The applicant is an association of graduate students in the chemistry department of the University of Ottawa. It exists as a subordinate association of the Graduate Students Association of the University of Ottawa, itself an organization under the greater umbrella of the Students Federation of the University of Ottawa. It is not seriously challenged that the applicant Association has existed for years as an Association of graduate students in chemistry dedicated to the advancement of the interests of its membership. It has carried out its activities under a constitution through duly elected officers.

4. In September of 1980 a general meeting of the Association resolved to establish a committee to revise its constitution. After notice was given to the members of the Association a general meeting was held on November 5, 1980 at which an amended constitution was presented to the membership for their approval. The revised constitution was passed un­animously. It included an article adding as one of the aims of the Association the pursuit of collective bargaining for graduate students employed by the University.

5. At the time of the meeting there was some uncertainty in the Association as to the exact number of its membership. Under the constitution all graduate students in chemistry are members, but it appears that only the University has precise knowledge of the identity and number of all students who would so qualify. Unfortunately the Association's officers were unable to obtain an accurate number from the University. The officers of the Asso­ciation were fairly certain that the full membership numbered some 28. The material filed by the University in this application indicates the correct number is 33. Because there were only some fifteen members present at the meeting, the Association's officers determined to cure any risk that a quorum of fifty per cent plus one was not present when the constitution was amended. This they did by circulating a ratification petition. The unchallenged evidence is that it was signed by twenty-four of the Association's members in the period immediately following the meeting of November 5, 1980. Further, to comply with the evidentiary require­ments of the Board in certification proceeding, the Association gave a printed membership card to the twenty-four members who signed the ratification petition and collected $1.00 from each of them. In support of this application the Association submitted both the petition, by which the signatories empower the Association to act as their collective bargaining repre­sentative, and the receipts for the payment of $1.00, signed by both the student member and the Association's collector.

6. The procedures detailed above are in many respects unusual when compared to the normal steps customarily taken when a group of employees establish a new association to bargain collectively on their behalf. The Association's representative pleads the special circumstances of this case, stressing that the applicant was a pre-existing Association of long-standing. Even counsel for the University conceded that it would be artificial to view the applicant Association as a wholly new organization, even though it purported to abolish its old constitution and adopt an entirely new one at the meeting of November 5, 1980. Before that meeting the Association had a constitution, duly elected officers and members for whom dues are deducted out of tuition payments by the University. The membership funds are either forwarded to the Association through the Students Federation or diverted to a university charity on an "opt out" formula for students who do not wish to participate. There is no evidence before the Board of any graduate student in chemistry having opted out of membership.

7. Counsel for the University submits that the Association's attempt to reform its constitution is flawed in three respects. Firstly, he attacks the amendment of the constitution in the apparent absence of a quorum at the general meeting which approved the new con­stitution. Secondly, he questions the authority of the Association's officers to discharge any functions, or indeed to hold office under the new constitution. Lastly, he submits that the Association cannot be viewed as a union because under its constitution it does not in his words "control its own membership" since any graduate student in chemistry is de facto a member of the Association.

8. The first thing to be determined is whether the Association is a body which draws its life and existence from a constitution which includes among its aims the representation of its members in their employment relationship with the University. It should be emphasized that for the Board this is not a technical concern with no purposive foundation. In James B. McGregor - Division of Toby Industries Limited, [1976] OLRB Rep. Oct. 643 the Board commented at p. 644:

As was stated by this Board in J. Harris & Sons Ltd. ‘… the constitution of the applicant is the source and limit of its existence…’. The Board's concern for the constitution and the regularity of its adoption in that circumstance is not borne of devotion to mere technicality, but of the Board's fundamental concern that the applicant be a viable entity to carry out the purposes described in section l(l)(n) of The Labour Relations Act. If a constitution were not properly adopted or, if properly adopted, not properly adhered to, questions might arise as to whether those who purported to be its officers duly appointed or elected under the constitution were indeed its officers at all, and if not, whether it could be considered a viable entity for carrying out the purposes described in the Act. Needless to say, those concerns must always be satisfied when the Board inquires into the status of an applicant organization....

9. In National Steel Car Corporation Limited, [1979] OLRB Rep. June 542 the Board was faced with a fact situation somewhat similar to the instant case. An association of employees met and elected a group of officers. The officers subsequently prepared a con­stitution. There was, however, no subsequent meeting or ratification of the constitution. The association then gathered membership documents signed by the employees and tendered them to the Board with its application. The Board found that the association had a constitution and officers, but that it had not satisfied the requirement of proving that its constitution had been duly ratified by a meeting of the membership. It specifically rejected the contention of the association that the signing of membership applications and the payment of the initiation fee amounted to a sufficient ratification of the constitution by the membership.

10. In the instant case the constitution of the Association is silent on the method by which it is to be ratified. The best evidence on that point is the testimony of Mr. Laplante, the secretary treasurer of the Association and the only witness called on its behalf. It is clear from his testimony that a quorum voting at a meeting after prior adequate notice was seen by the Association's officers as necessary to ratify the constitution. That procedure would, more­over, be in keeping with the traditional requirements of the Board. In this case, however, that was not followed. Because of inadequate attendance the Association's attempt to have its constitution ratified at the general meeting of November 5, 1980 was ineffective. The Asso­ciation then sought to have its constitution ratified by having individual employees indicate their wish to ratify the constitution on the same document by which they authorized the Association to act as their bargaining agent.

11. In the face of that evidence the Board must have some fundamental concerns. The officers of the Association radically departed from the procedure which they themselves felt bound to follow, being the procedure which this Board in its decisions has indicated should insofare as possible, be adhered to. We must have serious doubts that an association is a viable entity for the purposes of collective bargaining when by its own standards the procedure by which its constitution was established or amended is an obvious doubt. The constitution by which it purported to become a union is, on the most generous view of the facts, under a cloud.

12. So are its officers. Mr. Laplante's evidence is that the matter of proposing a new election of officers was suggested at the meeting of November 5, 1980. When no one made any motion it appears that the officers under the previous constitution were presumed to continue in office. There was, however, no motion to reconfirm them in office either at the abortive meeting or in the subsequent petition. While the Board should allow the broadest latitude for employees unfamiliar with constitutions and the procedures of associations, it must at a minimum be satisfied that an applicant for certification is a viable entity with duly confirmed officers. We must, moreover, have obvious concerns about the viability of an association which has apparently been unable to hold a single "meeting" within the definition of its own constitution for the purpose of ratifying that constitution. In our view it is not too much to expect these basic conditions to be met before this Board is satisfied that an association has the minimal qualifications that entitle it to the rights and privileges of a trade union under the Act. For the foregoing reasons, and for those expressed in National Steel Car Corporation Limited the Board cannot find that the applicant is a trade union within the meaning of section l(l)(n) of The Labour Relations Act.

13. In light of that conclusion the Board need not deal with the two alternative arguments of counsel for the University. It is also not necessary for the Board to deal with the separate question of the bargaining unit. That matter was fully argued, however, and in light of the effort expended by the Association and the possibility that it might go through the pains of another constitutional revision for the sole purpose of filing a new application, the Board feels that it should make some comment for the future guidance of the parties. The Association applied for a bargaining unit comprised solely of graduate students in chemistry employed as laboratory demonstrators, teaching or research assistants or otherwise salaried by the University. It is common ground that the students in question work only in the chemistry department. The University maintains that the appropriate bargaining unit should include graduate students employed as laboratory demonstrators as well as research and teaching assistants in all faculties and departments of the University.

14. In every application for certification the Board had a duty under section 6(1) of the Act to "determine the unit of employees that is appropriate for collective bargaining". In responding to that statutory obligation the Board strives to fashion groupings of employees that will constitute a rational and viable bargaining structure. Factors to be taken into account include the nature of the work performed, conditions of employment, skills of employees, the administrative structures of the employer, the geographic circumstances of the workplace and the functional coherence and interdependence of the work performed by the employees. (See Usarco Ltd., [1967] OLRB Rep. Sept. 526).

15. In some instances the Board must be careful to give adequate weight to the wishes of self-determination of a given group of employees. The most comprehensive unit contended for is not necessarily the most appropriate. The Board is therefore not inclined to find bargaining units whose very size and complexity will make them virtually impossible to organize, so that the Board's very determination of the bargaining unit effectively puts collective bargaining out of reach of the employees. (The Board of Education of the City of Toronto, [1970] OLRB Rep. July 430; McDonald's Restaurants of Canada Limited, [1974] OLRB Rep. Oct. 755; Ponderosa Steak House (a division of Foodex Systems Limited), [1974] OLRB Rep. Nov. 7; Woodward Stores (Vancouver) Limited, [1975] 1 Can LRBR 114; Canada Trustco Mortgage Co., [1977] OLRB Rep. June 330.)

16. An equally real concern is that the Board not grant bargaining rights simply on the basis of the wishes of the smallest definable unit of employees. In the instant case the Asso­ciation argues that it should not be denied the wishes of its members nor should it be required to organize on a broader base. That argument fails, however, to appreciate that the interests of the employer are also to be considered in establishing a bargaining unit. We must always be concerned whether establishing a single small bargaining unit is not taking the first step in a set of incremental decisions that will result in an unwieldy number of fragmented units in the future. As the B.C. Labour Board commented in Insurance Corporation of British Columbia, [1974] 1 Can LRBR 403 at p. 406:

If we follow the logic of pure freedom of choice to its ultimate point, then every time a new group of employees wanted to carve out a different bargaining unit and select a new representative this should be per­missible. Right now that is not the case and once an appropriate unit has been settled and collective bargaining has begun, a strong presumption exists against changing it. As new unions come in to organize remaining segments of the employees, their certifications will be erected around the original one. The result is often a chaotic patchwork of bargaining units dividing up the employees of one employer, a situation which it is almost impossible to rationalize later on.

17. In our view the foregoing passage makes the appropriate response to the argument of the Association. There are 63 academic departments in the University of Ottawa with some 30 graduate students associations like the applicant, some of which encompass more than one department. In our view to certify on the basis of a departmental bargaining unit would set the stage for confused pattern of multiple bargaining units which would have serious draw­backs for the employer as well as for the employees concerned. There would be obvious cost and dislocation to the University if it should be required to negotiate and administer what could potentially be a mass of collective agreements in a series of fragmented units whose members essentially perform the same kinds of functions. It is also obvious that employee groups so small and separated would not have the bargaining authority or the administrative coherence that would flow from the establishment of a single bargaining unit university wide. Those are consequences to be avoided.

18. We see no reason, moreover, to believe that it would impose an unrealistic standard to require that students employed by the University of Ottawa organize on a university wide basis. Their professors have done so without apparent difficulty. (University of Ottawa, [1975] OLRB Rep. Sept. 694). The Board has had prior occasions to consider the appropriateness of graduate assistants' bargaining units. On one occasion it found the more comprehensive designation of all graduate and undergraduate students within a university employed as research assistants and teaching assistants to be an appropriate bargaining unit. (Carleton University, [1978] OLRB Rep. Feb. 179). In an earlier decision the Board found that all graduate students employed as teaching assistants at York University were an appropriate bargaining unit (York University, [1975] OLRB Rep. Sept. 683).

19. The issue of whether the appropriate bargaining unit should comprise both graduate and undergraduate students employed as teaching assistants and research assistants is a determination that must depend on the facts of each particular case. The Board does not adopt an inflexible policy in any given application. But where the Board's experience has evolved policies and principles conducive to sound collective bargaining, there is a heavy onus on any party seeking to satisfy the Board that a departure from its policies is justified. In the instant case, assuming that the applicant had satisfied the requirement of union status, for the reasons canvassed above we would not have found the graduate students employed in the chemistry department of the University of Ottawa to constitute an appropriate bargaining unit.

20. The application is hereby dismissed.