[1985] OLRB Rep. January 90
2674-84-R Ontario Public Services Employees Union, Applicant, v. Niagara South Board of Education, Respondent.
BEFORE: Harry Freedman, Vice-Chairman, and Board Members J. Wilson and H. Kobryn
DECISION OF THE BOARD; January 25, 1985
This is an application for certification.
The applicant has requested that a pre-hearing representation vote be taken.
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 hereinafter described were members of the applicant at the time the application was made.
The parties agreed upon the following voting constituency:
all employees of the respondent in the Regional Municipality of Niagara, save and except supervisors, persons above the rank of supervisor, the secretary to the superintendents of Program, the secretary to Business Affairs, the secretary to Special Services and Operations, the Recording Secretary, the Staff Relations Secretary, the Administrative Clerk-Benefits, the Administrative Assistant to the Director of Education, persons above the rank of Administrative Assistant, occasional teachers and persons covered by subsisting collective agreements.
The Board notes that the applicant requested and the parties agreed to exclude "persons covered by subsisting collective agreements" from the voting constituency. The applicant did not identify those collective agreements in its application, nor does it appear from the Labour Relation Officer's report of the parties' meeting that the parties specifically identified those agreements.
Three collective agreements to which the respondent was a party were filed with the Board, although they are not referred to in any of the other documents that had been filed. Those agreements all have a nominal expiry date of December 31, 1984, so it would appear that they were not subsisting collective agreements as of either January 3, 1985, the application date or January 16, 1985, the date upon which the parties met and agreed to the voting constituency.
It appears that the parties have agreed on the parameters of the voting constituency as is evidenced by their having established a voter's list, and having agreed on the description of the voting constituency. However, in our view, the description of the voting constituency is imprecise. The parties should consider the desirability of continuing to describe the exclusions from the voting constituency and the bargaining unit by reference to "persons covered by subsisting collective agreements". It is apparent to us that the parties seek to exclude from this application those employees for whom another union holds bargaining rights. We believe that the scope of this exclusion should not be dependent upon what is done by persons or unions that are not a party to this proceeding. (See The Wellesley Hospital Limited, Board File No. 2562-84-R, as yet unreported, decision dated January 14, 1985.) In view of the potential difficulties that may arise if, for example, the bargaining unit in one or more of those agreements is amended, or the bargaining rights of the union which is a party to one of those agreements is terminated, it appears to us that it would be prudent for the parties and the Board to specifically designate the excluded employees, or at the very least, specifically identify the collective agreements to which the parties are referring when the term "persons covered by subsisting collective agreements" is used in a bargaining unit description. Therefore, at this point, we believe that in place of using the term "persons covered by subsisting collective agreements" in the description of the voting constituency, the exclusion should read: "employees in bargaining units for which any trade union held bargaining rights as of January 3, 1985." The application date was January 3, 1985 which is the date as of which the bargaining unit determination should be made.
Having regard to the foregoing, the Board directs a representation vote in the following voting constituency:
all employees of the respondent in the Regional Municipality of Niagara, save and except supervisors, persons above the rank of supervisor, the secretary to the superintendents of Program, the secretary to Business Affairs, the secretary to Special Services and Operations, the Recording Secretary, the Staff Relations Secretary, the Administrative Clerk-Benefits, the Administrative Assistant to the Director of Education, persons above the rank of Administrative Assistant, occasional teachers and employees in bargaining units for which any trade union held bargaining rights as of January 3, 1985.
- All employees of the respondent in the voting constituency on the 16th day of January,
1985, who have not voluntarily terminated their employment or who have not been discharged
for cause between the 16th day of January, 1985, and the date the vote is taken will be eligible
to vote.
Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.
The matter is referred to the Registrar.