[1981] OLRB Rep. May 601
2455-79-R Canadian Union of Educational Workers, Applicant, v. York University, Respondent
BEFORE: Rory F. Egan, Vice-Chairman, and Board Members C. G. Bourne and O. Hodges.
APPEARANCES: E. Shilton Lennon for the applicant; D. Hersey 'for the respondent.
DECISION OF RORY F. EGAN, VICE-CHAIRMAN, AND BOARD MEMBER C. G.
BOURNE; May 12, 1981
This is an application for certification in which the applicant seeks certification as bargaining agent for all part-time employees enrolled as graduate assistants and research assistants paid from operating funds of the respondent. For the purposes of this decision, the term "graduate assistants" is used to cover both types of assistants.
The applicant, under another name, applied for certification of a bargaining unit which included graduate assistants in 1975. In a decision dated September 16, 1975, the Board found that graduate assistants at York University did not qualify as employees within the meaning of The Labour Relations Act (York University, [1975] OLRB Rep. Sept. 683).
The respondent argued that there had been no material change in the status of graduate assistants since 1975 and that resjudicata applied.
It was submitted by the applicant that a substantial change had occurred in the relationship between the University and the graduate assistants and that, furthermore, the law or interpretation thereof with respect to graduate assistants had changed, having regard to the decision of the Board in the Carleton University case, [1978] OLRB Feb. 179. The bargaining unit found by the Board to be appropriate in the Carleton case was:
All employees of the respondent in Ottawa employed as teaching assistants, demonstrators, part-time or seasonal lecturers, markers, research assistants or associates, and service assistants, who are graduate students enrolled in the Faculty of Graduate Studies or undergraduate students at Carleton University, excluding employees covered by collective agreements with Canadian Guards' Association, Local 103; C.U.P.E., Local 910; I.U.O.E., Local 796; Graphic Arts International Union, Local 224, the Carleton University Support Staff Association and the Carleton University Academic Staff Association.
Teaching Assistants at York are already represented by the applicant by virtue of the 1975 decision.
The applicant was unable to produce witnesses who knew of the arrangements under which the graduate assistantships were awarded in 1975. The Board ruled that if the applicant could establish that the present graduate assistants could be shown to be employees within the meaning of The Labour Relations Act, it would accept that as proof that a change must have occurred since 1975. On that basis the matter was allowed to proceed.
It was the position of the respondent that the status of graduate assistants and the university's manner of dealing with them had remained virtually unchanged since 1975 except for the fact that the university had become more flexible about the detailed distribution of the available funds. That position was supported by the evidence.
In view of the fact that the applicant placed a great deal of emphasis on what it perceived to be a change in the viewpoint of the Board with respect to graduate assistants since the 1975 decision, we propose to examine that award together with the criteria used in the Carleton award and the evidence adduced in this application.
In the Carleton case the Board found that that university was in large measure dependent upon the performance of a wide variety of academic tasks by students who are paid for that purpose and selected on the basis of academic merit.
The evidence called by the applicant here is that no such dependency on the performance of the tasks exists. The testimony given by Professor Ellis of the Faculty of Environmental Studies and Chairman of the Awards Committee who was called by the applicant, indicated that 85% of the jobs assigned to graduate assistants could be dispensed with without affecting the operation of the university. Professor Ellis explained that the reason any task at all was assigned was to justify to the government the handing out of money. Professor Ellis also testified that if 70 graduates applied for 50 tasks, then it would become necessary to "drum up" additional tasks.
The evidence in the present case (again given by the applicant's witness) is that the primary criterion for an award is the financial need of the student. A secondary criterion, if that is the correct word, was the need felt by the university to offer awards to prospective graduate students with outstanding academic records, in order not to perform any task as a graduate student assistant, but to lend prestige to the graduate school with the task being a secondary matter to justify the enticement.
The Carleton decision found that the graduates which it found to be employees were remunerated for their work and the quantity of their remuneration relates to the amount of work they do and to their academic qualifications. The evidence in the present case is that there is little relationship between what a student is asked to do and the amount of the award allocated to that student. The evidence is that, in the Humanities at least, many students continue to receive payment although they have nothing to do because so many are assigned similar tasks.
Taken into account in reaching its determination in the Carleton case was the fact that deductions were made for income tax, unemployment insurance and Canada Pension Plan from the money paid to the graduate students dealt with in that award. In the Appointment Form used at York with respect to Teaching Assistants as well as Graduate Assistants and Research Assistants is the following paragraph:
GRADUATE ASSISTANTS AND
GRADUATE RESEARCH ASSISTANTS:
The amount of money stated above is not classified as employment income; therefore no deductions are made at source for Income Tax, Unemployment Insurance or Canada Pension Plan contributions, and no additional amount is payable as Vacation Pay. The Grant in Aid is classified in the same way as Graduate Assistantship. It is understood that the above amount includes all consideration for Vacation Pay.
It is obvious from the foregoing that the University and the Graduate Assistant who sign the appointment form have no intention of establishing an employer-employee relationship.
It was also in evidence that applicants for entrance into the School of Graduate Studies were offered graduate assistantships at a named sum with the proviso that some task would be assigned to them at a later date.
Before leaving the Carleton case, it should be observed that that decision distinguishes its facts from those underlying the York decision, (supra).
It is clear that the facts upon which the Carleton decision is based render the decision of little or no avail to the applicant and lends no support to the contention that the "law" or anything else in the Board's approach to matters such as those raised in this and the prior York case has changed.
There are approximately 300 graduate and research assistants involved in the application. The applicant called nine witnesses who had recently held graduate assistantships. They were not, of course, able to give any testimony with respect to 1975 and the only evidence we have with respect to that comes from the university as we have already intimated.
There is no doubt that these witnesses in varying degrees and for varying amounts provided work or performed tasks assigned to them which were of value to the university. No attempt was made at all by the university to disparage the work of these witnesses. There was, however, no evidence to indicate that the work was imperative or as to the relationship between the assignments and the money paid.
In support of their evidence, reference was made to the university calendar which advises graduates of the possibility of obtaining an assistantship for which a "stipend" will be paid to those appointed. It was also in evidence that the tasks for which money would be allocated were made up by the faculty and posted on a board so that students might see what was available a rid consult with the professors involved. This is the closest the evidence comes to a "predetermination" of work to be done. It is, however, quite clear that it is not work upon the accomplishment of which the university is dependent. In one instance at least, the work for which a grant was made was outside the faculty of the professor director. The posting appears to add some formality to the scheme even though the tasks are devised as a means of dispensing money, according to the university, which would otherwise not be available to the graduates or to anyone else. The hours involved and amount available would be shown on bulletin boards but, according to Professor Ellis, it might be that the professor concerned would indicate to a student that the hours shown on the posting might not all be required but that, nevertheless, the full amount of money shown in the posting would be paid. If the duties have been decided upon, the fact is entered on the appointment form; if not assigned, that too is indicated. That is to say, the stipend is fixed before a task is assigned.
The graduate assistantship programme, as the evidence makes plain, does notarize out of dependency on the part of the university on anyone for the carrying on of its funstions. It is therefore basically not a matter of recruiting graduates to assist the university but, rather, a scheme devised to finance needy students in order to attract them to, and help them during their studies at the graduate school. It is very clear that the staff is required to think up tasks that could be used to justify the payment of money to students in need and those whom the university wants to attract. The university does not have scholarship funds with which to attract students and uses the graduate assistants programme as the best substitute available. The fact is that the university is basically not offering jobs; it is offering money to help students and because of the legalities involved, offers the student an opportunity to fulfill a task in order to justify the money grant.
In our opinion we find, without denegrating in any way the work of the students, that the graduate assistants are not employees within the meaning of The Labour Relations Act. We would add that, on the evidence, nothing has changed materially since the 1975 decision of the 1~oard. The application is accordingly dismissed.
Mr. Hodges' decision will follow.