[1984] OLRB Rep. December 1765
2375-84-R The Canadian Union of Public Employees, Applicant, v. Scarborough General Hospital, Respondent, v. International Union of Operating Engineers, Local 796, Intervener
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members W. G. Donnelly and W. F. Rutherford.
DECISION OF THE BOARD; December 12, 1984
This is an application for certification in which the applicant has requested that a pre-hearing representation vote be taken.
The unit applied for by the applicant was described in its application as follows:
All employees of the respondent in Metropolitan Toronto, employed as Stationary Engineers, save and except Assistant Chief Engineer and persons above the rank of Assistant Chief Engineer.
The unit proposed by the respondent in its reply was as follows:
All Stationary Engineers employed by the respondent in the power-house, save and except Assistant Director, Maintenance and Engineering, those above the rank of Assistant Director, Maintenance and Engineering and persons covered by subsisting collective agreements.
The respondent and intervener are parties to a collective agreement which, by its terms, applies to:
All Stationary Engineers in the employment of the Employer, save and except Assistant Chief Engineer and persons above the rank of Assistant Chief Engineer.
- In accordance with its usual practice, the Board by order dated November 29, 1984, appointed a Labour Relations Officer to examine the records of the applicant and of the respondent for the purpose of obtaining the information required by the Board under subsection 2 of section 9 of the Labour Relations Act, and to confer with the parties as to the description and composition of an appropriate bargaining unit, the description and composition of the voting constituency, the list of employees as of the terminal date, to be used for the purposes of any vote that might be directed by the Board, and with respect to arrangements for the conduct of any such vote. The officer so appointed met with the parties December 10, 1984, at which time they all agreed that the appropriate bargaining unit and voting constituency in this application should be described as follows:
All employees of the respondent in Metropolitan Toronto, employed as Stationary Engineers, save and except Assistant Director of Maintenance and Engineering, persons above the rank of Assistant Director of Maintenance and Engineering and persons covered by subsisting collective agreements.
The bargaining unit and voting constituency description agreed to by the parties differs from the unit description in the existing collective agreement in four particulars: (a) "Stationary Engineers" is changed to "Employees employed as Stationary Engineers"; (b) the implicit province-wide scope of the existing unit is narrowed to Metropolitan Toronto; (c) the job title applied to the first — line managerial exclusion is changed from "Assistant Chief Engineer" to "Assistant Director of Maintenance and Engineering"; and, (d) the exclusions are expanded to cover "persons covered by subsisting collective agreements".
Where there is a request for a pre-hearing representation vote on a displacement application, the Board's standard practice is to require the applicant to accept as a voting constituency the bargaining unit represented by the incumbent union; see Toronto East General and Orthopaedic Hospital, Inc., [1981] OLRB Rep. Feb. 225 at paragraph 9. This is because the Board's general practice in displacement applications is to view the established bargaining structure as prima facie appropriate. Although the appropriate bargaining unit is not determined by the Board until after a pre-hearing vote has been conducted, the likely outcome of that determination is a factor considered in striking the voting constituency or constituencies at the pre-vote stage, because a pre-hearing vote is of little use unless one can reconstruct from it a vote of the employees in the unit ultimately found appropriate by the Board. The question we are obliged to determine at this stage is whether, against this background, it would be inappropriate to adopt the parties' agreement on the voting constituency description.
The general proposition that a raiding union should be required to take the incumbent's unit does not require that the language used to describe that unit be identical to the language employed in an existing collective agreement or certificate. There is often more than one way to describe a bargaining unit without affecting its actual or even potential composition. Here, for example, we have a craft unit description which appears to have remained unchanged for some period of time. Because it is a craft unit description, the words "stationary engineers" would ordinarily be taken to mean "employees employed as stationary engineers". The change from one phrase to another at best clarifies the original meaning and at worst does nothing to obscure it. Similarly, the reference to "Assistant Chief Engineer" in the original description functions as an indication of the level at and above which employees are excluded from the unit by reason of their functions, having regard to the provisions of section 1(3)(b) of the Labour Relations Act. The applicant, incumbent and respondent all now say that the person who occupies that position now holds the title "Assistant Director of Maintenance and Engineering". Again, the change in language does not change the composition of the bargaining unit, and adds no complication about which the Board would have been concerned if the question of bargaining unit description were arising as a matter of first impression. The added restriction of the unit to Metropolitan Toronto does not exclude from the unit anyone now represented by the intervener, as the respondent's operations are limited to that geographic location. It does restrict the potential scope of the unit; this, however, is highly academic having regard to the nature of the respondent's operations. As it makes no difference to voter eligibility, and would not offend any principle which the Board applies to the description of bargaining units as a matter of first impression, the change is not objectionable in this context.
We are troubled by the parties' addition of the words "persons covered by subsisting collective agreements" to the existing description. It is not at all clear what these words do to the actual scope of the bargaining unit described. The representation to the Labour Relations Officer was that workers with stationary engineer's "tickets" might be employed by the respondent otherwise than as stationary engineers and therefore fall within the scope of another collective agreement. That possibility is completely provided for by the words "employees employed as stationary engineers". It appears that the words "persons covered by subsisting collective agreements" contribute nothing to the definition or description of the bargaining unit or voting constituency, other than potential uncertainty and confusion.
Within narrow limits, it is open to the parties to a displacement application to agree upon a voting constituency description which is a different description of the bargaining unit represented by the incumbent trade union; indeed, this is to be commended if it make that description more intelligible and less ambiguous. The important qualification is that the new description must apply to all the employees covered by the existing description, and to no others. It should also remain as faithful as possible to the original description's potential scope, it should be consistent with the principles applied by the Board when the description of units arises as a matter of first impression, and it should not introduce any new ambiguity or uncertainty. Applying those principles to the agreement made by these parties, we are prepared to accept the first three of the changes noted in paragraph 4 of this decision, but not the last. Accordingly, we determine that the voting consistency for the purpose of the pre-hearing vote in this application shall be as follows:
all employees of the respondent in Metropolitan Toronto employed as Stationary Engineers, save and except Assistant Director of Maintenance and Engineering and persons above that rank.
In determining that this shall be the voting constituency, we have not finally adjudicated the description of the appropriate bargaining unit for the purpose of any certificate which might be issued as a result of this application. That issue is determined only after the vote is conducted, as will appear from an examination of the language of section 9(4) of the Labour Relations Act. As the voting constituency we have determined is different from the bargaining unit description to which the parties have agreed (in that it eliminates the words "and persons covered by subsisting collective agreements"), we would ordinarily direct that this matter be listed for hearing following the vote so that the parties can make representations to the Board with respect to the description of the appropriate bargaining unit. It may be, however, that the parties upon reflection will choose to adopt our voting constituency description as the description of the appropriate bargaining unit. In those circumstances, a hearing following the conduct of the vote would be unnecessary, unless any of the parties or employees affected requests one. We will therefore put the onus on the parties affected to advise the Board in writing, before the expiry of the period referred to in subsection 70(2) of the Board Rules of Procedure, if any of them wishes the Board to entertain the submission that the appropriate bargaining unit in this application should be described otherwise than as the voting constituency has been described in this decision. If no such written representation is made within that time, the application will be processed thereafter on the assumption that the parties agree that the appropriate bargaining unit in this application is as we have described the voting constituency.
It appears to the Board, on an examination of the records of the applicant and the records of the respondent, that not less than thirty-five per cent of the employees of the respondent in the voting constituency hereinbefore described were members of the applicant at the time the application was made.
The Board directs that a pre-hearing representation vote be taken of the employees of the respondent in the aforesaid voting constituency. All employees of the respondent in the voting constituency on December 7, 1984, who have not voluntarily terminated their employment or who have not been discharged for cause between December 7, 1984, and the date the vote is taken will be eligible to vote.
Voters will be asked to indicate whether they wish to be represented by the applicant or the intervener in their labour relations with the respondent.
The matter is referred to the Registrar.