[1982] OLRB Rep. May 753
0223-82-R The Canadian Union of Educational Workers, Applicant, v. Queen's University at Kingston, Respondent, v. Group of Employees, Objectors
BEFORE: R. D. Howe, Vice-Chairman, and Board Members W. G. Donnelly and O. Hodges.
APPEARANCES: Elizabeth J. Shilton Lennon, Michael O'Keefe and Bev. Chaykowski for the applicant; Robert A. Little, Maurice Yeates, M. W Wright, Douglas Heath, and Allan Headrick for the respondent; Pieter Geekens for the objectors.
DECISION OF THE BOARD; May 31, 1982
This is an application for certification in which the applicant has requested that a pre-hearing representation vote be taken.
This is the fourth pre-hearing vote certification application which the Canadian Union of Educational Workers (the "Union") has filed with the Board in the past fifteen months in its efforts to obtain bargaining rights for various students at the respondent University who are employed by the respondent as research assistants or as employees who engage in teaching, tutoring, marking, demonstrating, lecturing or instructing. On March 24, 1981, the Union applied for certification as bargaining agent for "all employees of the respondent engaged in teaching, tutoring, marking, demonstrating, lecturing or instructing who are enrolled as students at Queen's University (and are paid out of operation funds)." In a decision dated April 7, 1981 in that matter (File No. 2790-80-R), the Board, differently constituted, directed that a pre-hearing representation vote be taken of all employees in the voting constituency on the 1st day of April, 1981, who had not voluntarily terminated their employment or who had not been discharged for cause between the 1st day of April, 1981, and the date of the vote. By letter dated April 10, 1981, counsel for the Union requested leave of the Board to withdraw that application. However, in accordance with its normal practice as set forth in paragraph 6 of Practice Note No. 7, the Board (in a decision dated April 15, 1981) dismissed the application and drew the attention of the parties to the decision of the Board in Mathias Ouellette (1955), 55 CLLC ¶ 16,026.
On April 27, 1981 the Union filed a second pre-hearing vote certification application (File No. 0199-81-R). That application, like the present application, was confined to employees of the respondent "engaged in teaching, tutoring, marking... who are enrolled as graduate students in the School of Graduate Studies and Research at Queen's University at Kingston and paid out of operating funds" (emphasis added). In view of its previous decision, "the Board [deemed] it advisable to hear the representations of the parties as to whether it should entertain [that second] application" (see paragraph 2 of the Board's decision dated April 29, 1981 in File No. 0199-81-R). At the hearing scheduled for that purpose, the parties filed the following "Minutes of Settlement" with the Board:
"The parties hereto hereby agree to the settlement of the within application for certification on the following basis:
The applicant undertakes not to make a new application for certification covering any of the employees sought in the within application or the earlier application (Board File No. 2790-80-R) before September 20, 1981.
The respondent agrees that if the applicant makes a new application for certification after September 20, with respect to any of the employees referred to in paragraph 1 hereof, there shall be no bar to that application flowing from either of the application for certification referred to in the said paragraph.
The applicant agrees to seek leave to withdraw this application."
In a decision dated May 19, 1981, that application was dismissed by the Board.
- On April 6, 1982, the Union filed a further pre-hearing vote certification application in which it sought bargaining rights for a unit of employees identical to that requested in its initial application (i.e., a unit including both graduate students and undergraduate students). In support of that application the Union filed membership evidence consisting of 302 combination application for membership and receipts. The list of employees filed by the respondent in fiat matter, as amended at the pre-hearing vote meeting, contained a total of 887 names, of which the applicant challenged 262. After the pre-hearing vote meeting had been held but before the Board had issued any decision as a result thereof, the Union sought leave to withdraw that application. The reason for that request, as set forth in letter dated April 26, 1982 from Paul Pellettier, a Staff Representative of the union, was as follows:
"The Union wishes to withdraw the above-noted application. As indicated in a letter from our counsel, Elizabeth J. Shilton Lennon, dated and delivered to the Board April 22, 1982, we have been investigating the circumstances surrounding the names on the Employer's list of employees which we challenged at the meeting with the Labour Relations Officer in Kingston. We have come to the conclusion that we will not be able to be successful in a sufficient number of our challenges in order to entitle us to a pre-hearing vote on this application in the end. This is the reason for our withdrawal of the application."
In a decision dated April 27, 1982, another panel of the Board chaired by the present Vice-Chairman dismissed that application in view of the stage in the proceedings at which the request for withdrawal was made.
The present application was filed on April 28, 1982. The Union seeks certifications, through a pre-hearing representation vote, for "all employees of the respondent engaged in teaching, tutoring, marking, demonstrating, lecturing, or who are employed as research assistants, who are enrolled as graduate students in the School of Graduate Studies and Research at Queen's University at Kingston, and who are paid out of operating funds; save and except those covered by existing collective agreements or who are regular faculty." Thus, like the second application filed in the spring of 1981, the instant application is confined to graduate students. In accordance with the Union's request, 264 of the combination applications and receipts filed by the Union in support of its April 6, 1982 application have been transferred to this application.
A hearing was scheduled by the Board on May 12, 1982 for the purpose of calling upon the applicant to show cause why the Board ought to direct that a pre-hearing representation vote be taken in the circumstances of this case. The facts agreed upon at the hearing, together with the additional evidence adduced by the parties, indicate that, on the date of the application, there were 603 employees in the bargaining unit proposed by the applicant. In addition, there were 110 other employees whom the respondent contends ought to be included in the appropriate bargaining unit, which the respondent submits should include not only graduate students in the School of Graduate Studies and Research, but also undergraduate students (106 of those 110 employees) and students enrolled in the graduate program in the School of Business (the remaining four employees). As of the terminal date fixed for this application, May 10, 1982, there were only 113 employees in the bargaining unit proposed by the applicant (and only 8 other employees whom the respondent contends ought to be included in the bargaining unit). The reason for this very substantial reduction in the size of the bargaining unit is that most of the employees' (written) contracts of employment with the respondent had a termination date of April 30, 1982.
While many of the graduate students in the humanities and social sciences remain in Kingston during the summer to continue their research, course work and other scholastic endeavours, it appears that some of the other graduate students leave the Kingston area during the summer to conduct research in other locations. Relatively few of the graduate students who plan to remain in the Kingston area during the summer will be employed in the bargaining unit during that period. Moreover, the 113 graduate students employed during the summer will not be representative of the graduate students employed during the regular academic year; 79 of those 113 summer employees are in the Department of Economics and approximately 15 of them are in the Department of Psychology. Thus, graduate students from those two departments would have a slightly disproportionate influence on the outcome of the application if the Board were to conduct a vote during the summer in accordance with its general practice concerning eligibility to vote in a pre-hearing representation vote, which enfranchises all the employees in the voting constituency on the terminal date who have not voluntarily terminated their employment or who have not been discharged for cause between the terminal date and the date the vote is taken.
Counsel for the applicant urged the Board to depart from that general practice and direct that all persons employed in the bargaining unit on the date of the application be permitted to vote. However, the Board is not prepared to accede to that request. As noted by the Board in London District Children's Treatment Centre, [1980] OLRB Rep. April 461:
"17. The line which the Board has traditionally drawn respecting the eligibility of employees to vote, namely that the employee be in the bargaining unit both on the date that the vote is ordered (or on the terminal date in a pre-hearing vote or as otherwise agreed by the parties) and on the date the vote is taken, is clear and well known through the Board's published decision, its practice notes (see Practice Note No. 9, August 1964) and its layman's handbook. While originally the Board merely stated that employees in the bargaining unit would be entitled to vote (see e.g., The Borden Co Ltd., (1946), 46 CLLC ¶116,461) it evolved the two-pronged eligibility rule to give clarity and certainty to voter's lists, as well as to eliminate the possibility of an employer influencing the outcome of a vote by hiring new employees. The Board's practice and the principles underlying it were well canvassed in J. McLeod & Sons Ltd., [1970] OLRB Rep. Feb. 1316."
In J. McLeod & Sons Ltd., supra, the Board considered and rejected the contention that it has no authority under the Act to determine voter eligibility dates other than the date on which the application was made.
Although the Board's approach to determining eligibility to vote is not entirely inflexible, there is a substantial onus on any party who seeks to have the Board depart from it in a particular case. It might be appropriate in some circumstances to use the application date, rather than the terminal date, as the first prong in determining voter eligibility. However, that departure from the Board's normal practice would not, by itself, assist the applicant since the termination of the employment of over eighty per cent of the persons in the proposed unit two days after the application date would nevertheless preclude all of those persons from voting unless the Board also abandoned the second prong of its normal voter eligibility direction, which as a matter of labour relations policy, we are not prepared to do in the circumstances of this case. As noted by the Board in Trenton Memorial Hospital, [1980] OLRB Rep. May 805, at paragraph 8, "[p]art of the reason for the two-pronged rule is to ensure, insofar as possible, that the vote will reflect the true wishes of the employees with the most direct interest in its outcome, namely, the employees who are in the bargaining unit at the time the vote is taken.... Persons who have become strangers to the bargaining unit by the time the vote is taken do not have a right to vote, notwithstanding that they may have been in the bargaining unit on the date that the application for certification was filed." If the summer period were merely a temporary hiatus in the employment of most of the persons employed on the date of the application, it might be appropriate to conduct a representation vote during the summer and' to permit them to cast ballots in such vote despite their lack of employment status at the time of the vote. However, the high degree of turnover in the unit from year to year gives rise to a substantial doubt that many of those persons would have a direct interest in the outcome of the vote as a significant number of them have little prospect of re-employment with the respondent during the 1982-83 academic year. Thus, the major departure from the Board's normal practice which the applicant seeks would very likely result in many persons being eligible to vote who would have n personal stake in the outcome of this application.
This is not the first case in which the Board has been called upon to deal with an application concerning trade union representation rights in the context of an employer with a work force that is subject to regular cyclical fluctuations. In cases involving seasonal industries such as the canning industry and the tobacco industry, the Board has developed the practice of including seasonal or temporary employees in the bargaining unit if the application for certification is made during the season, and excluding such employees if the application is made in the off-season. (See, for example, Melnor Manufacturing Limited, [1969] OLRB Rep. March 1288. The Canada Labour Relations Board applied a similar approach in Canadian Brotherhood of Railway, Transport and General Workers and Canadian National Railway (1970), 70 CLLC ¶116,019, in which the applicant sought certification in respect of a unit of employees at Jasper Park Lodge. At the time of the application in March of 1970, the Lodge employed only about 50 employees, but during the summer season that number would increase to approximately 450 employees. The C.L.R.B. declined to defer or reject the application on that basis but excluded from the bargaining unit "the relatively large group of temporary employees consisting of students hired on a temporary basis for employment in the Lodge operation, for the summer period.") This approach seeks to assure that the collective bargaining desires of the persons employed during the season. Although it has been the Board's experience that this approach has worked well in the context in which it arose (i.e., the tobacco and canning industry), the Board has been reluctant to extend it to "seasonal" employees in other industries (other than students employed during the school vacation period, whom it will generally exclude from a "full-time" unit at the request of either party, where the employer has a history of employing such students: see Inter-City Bandag (Ontario) Limited, [1980] OLRB Rep. March 324). For example, in Indusmin Limited, [1981] OLRB Rep. Dec. 1790, the Board noted that it has been "specifically freed" of seasonal considerations in the construction industry by section 119(2) of the Act, and declined to characterize as seasonal the respondent's aggregate hauling activated which were functionally related to the construction industry. See also Filkon Food Services Limited, [1981] OLRB Rep. Dec. 1771 (application for reconsideration dismissed, [1981] OLRB Dec. 1772) in which the Board wrote (in paragraph 4):
"..... the Board has consistently refused to take into account seasonal fluctuations in a work force from the point of view of either 'build-up' or bargaining unit configuration, outside of certain historically-recognized industries such as canning and tobacco-harvesting (see Universal Cooler, [1967] OLRB Rep. Sept. 546, and Me/nor Manufacturing Ltd., [1976] OLRB Rep. May 215.) The Board in most instances, in other words, does not take into account the normal ebb and flow of the work force."
In the Filkon case, the employment level at the time of the application was representative of the employee complement in the bargaining unit for ten months of every year. Only during the remaining period of two months was the employee complement to increase by sixteen students (for a total of twenty-two bargaining unit employees). The Board was not of the view that the desire of that "permanent" complement of part-time employees for collective bargaining ought to be deferred to await the wishes of additional students employed only during the school vacation period. Accordingly, the Board declined to exercise its discretion to defer further processing of the application. Since the Board found that more than fifty-five per cent of the employees in the bargaining unit at the time the application was made were members of the union at the terminal (and membership) date, the Board certified the union without a representation vote. Similarly, in Peter Austin Manufacturing Company, Division of Kelton Corporation Limited, [1967] OLRB Rep. May 144, the Board granted certification without a vote because it was of the view that the 42 persons employed in the bargaining unit "on a year-round basis" constituted "a substantial and representative number of persons in the employ of the respondent" (which manufactured toys), despite the fact that the regular cyclical fluctuation to which the work force was subject would result in a group of approximately fifty additional production workers being hired in about two months time for the remaining six months of that year.
II. As in the Filkon and Peter Austin cases, the employment level at the time of the present application (603 employees) constituted a substantial and representative number of the persons in the employ of the respondent (during the period from September to late April). Therefore, if the applicant were able to satisfy the Board that more than fifty-five per cent of those employees were members of the applicant on May 10, 1982 (the terminal date, and the membership date determined by the Board under section 103(2)0)), the Board could certify the applicant without a representation vote. However, the applicant does not purport to be in a position to do so. Thus, if it is to obtain bargaining rights, it must win a representation vote. It is this aspect of the case which has presented the Board with some difficulty. Unlike the Filkon and Peter Austin cases, the persons employed in the proposed unit on the terminal date (and the persons who would be employed at the time at which a pre-hearing vote would be taken in the normal course of events) are not persons employed in the unit on a year round basis, nor can they be said to be substantially representative of the persons who are generally employed in the unit during the period from September to late April. Quite to the contrary, they are only a small fraction of such persons, and a highly disproportionate number of those who make up that fraction are graduate students in Psychology or Economics.
The timing of a representation vote is a matter that lies within the discretion of the Board, as does the determination of the persons eligible to case ballots in such vote (see section 68(a) and (c) of the Board's Rules of Procedure; see also section 103(2)(f) of the Act). In Island of Bob-lo Company, [1970] OLRB Rep. May 211, both of the employees in the bargaining unit, at the time that a termination application was filed with the Board, had signified in writing that they no longer wished to be represented by the respondent trade union on April 24, 1970 (the terminal date fixed by the Board in respect of that application). However, since the company's amusement park operated only during the summer months, the Board deferred the taking of the representation vote until after June 1,1970 when a representative number of the company's full complement of approximately 13 workers would be employed in the bargaining unit.
Although we are concerned that deferral of a pre-hearing representation vote will delay the processing of this application somewhat, we are nevertheless of the view that an approach similar to that adopted in the Bob-b case should be applied by the Board in the circumstances f this case in order to avoid unreasonably disenfranchising a very substantial number of employees who will have to work under the labour relations regime determined by the outcome of the vote. Accordingly, having regard to the cyclical and relatively high turnover aspects of employment in the university graduate (and undergraduate) student context in which this case arises, the Board is of the view that the proper balancing of the various labour relations interests involved in the case requires that the taking of a pre-hearing representation vote (which will, of course, only be taken if on the basis of the Labour Relations Officer's prehearing vote report it appears to the Board that not less than thirty-five per cent of the employees in the voting constituency hereinafter described were members of the applicant at the time the application was made) be deferred until October of 1982, when a representative number of employees will be in the bargaining unit so that the Board can properly satisfy itself, within the scheme of free employee choice and majority representation established under the Act, as to whether or not a majority of the those in the unit desire to be represented by the applicant trade union in their employment relations with the respondent. The persons eligible to cast ballots in such vote would be the employees in the following voting constituency on the date the vote was directed (or on such other date as might be specified by the Board in its decision directing the vote) who did not voluntarily terminate their employment or who were not discharged for cause between that date and the date the vote was taken:
All employees of the respondent engaged in teaching, tutoring, marking, demonstrating, lecturing or employed as research assistants, who are enrolled as graduate students in the School of Graduate Studies and Research at Queen's University at Kingston and who are paid out of operating funds; save and except regular faculty and persons covered by existing collective agreements.
In view of the dispute with respect to the appropriate bargaining unit, undergraduate students enrolled at Queen's University, and graduate students enrolled in teaching, tutoring, marking, demonstrating, lecturing or employed as research assistants, who are paid out of operating funds, would also be permitted to cast ballots in such vote, but their ballots would be segregated and not counted pending determination of the appropriate bargaining unit.
Accordingly, Labour Relations Officer S. Nicholson is hereby directed to convene a meeting of the parties to this application pursuant to her appointment dated April 30, 1982 in this matter.
This matter is referred to the Registrar.