Canadian Union of Educational Workers v. University of Ottawa, 1986 CanLII 1570

Canadian Union of Educational Workers v. University of Ottawa

Citation: [1986] OLRB Rep. March 353

File No.: 2969-85-R

Parties: Canadian Union of Educational Workers, Applicant, v. University of Ottawa, Respondent, v. The Association of Professors of the University of Ottawa (APUO), Intervener

Before: Owen V. Gray, Vice-Chairman, and Board Members I. M. Stamp and E. G. Theobald.

Decision of the Board: March 25, 1986

Decision

1The title of this proceeding is amended to describe the respondent as "University of Ottawa."

2This is an application for certification in which the applicant has requested that a pre-hearing representation vote be conducted.

3Except as to the emphasized portions, the applicant and respondent agree that the following describes a unit of employees of the respondent appropriate for collective bargaining:

All part-time academic staff, professional counsellors and professional librarians of the Respondent in the Regional Municipality of Ottawa­Carleton, Stormont-Dundas, Renfrew North, Prescott and Lanark Counties, save and except:

1. employees in bargaining units for which any trade union held bargaining rights with the Respondent as of the date of application, March 5th, 1986;

2. employees who exercise managerial functions or are employed in a confidential capacity in matters relating to labour relations;

3. all those paid from other than operating funds;

4. all students registered at the University of Ottawa who do not have full responsibility for at least one course;

5. all persons who are otherwise actively involved in the practice of law including judges;

6. all those engaged in the practice of medicine in the course of clinical teaching of medicine;

7. all those involved in the clinical teaching of nursing and psychology;

8. all those engaged in the teaching of non-credit courses, except for those engaged in the Centre for Second Language learning.

Clarity Note No. 1 - "all part-time academic staff" shall mean those sessional lecturers and part-time language teachers having full or joint full responsibility for one or more courses.

Clarity Note No. 2 - For the purpose of clarity the parties agree that the following positions are excluded by virtue of exercising managerial functions or are employed in a confidential capacity in matters relating to labour relations:

Rector, the vice-rectors, the assistant vice rectors, Secretary of the University, the deans, the administrative officers, the director of the Counselling Service, the director of the Institute for International Development and Cooperation, Chief Librarian, Associate Librarians, members of the Board of Governors or the Joint Committee, the Director of Institutional Planning and the University Reporting Officers, and the directors of administrative units.

4It is not our function at this stage to determine the composition of the appropriate bargaining unit. As appears from subsection 9(4) of the Labour Relations Act, that determination is only made after the vote is conducted, after all interested persons have had the opportunity of a hearing before the Board. Nevertheless, as the Board observed in Scarborough General Hospital, [1984] OLRB Rep. Dec. 1765 at paragraph 5:

... Although the appropriate bargaining unit is not determined by the Board until after a pre­hearing 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.

While the scope of the parties' agreements over the description of the appropriate bargaining unit ordinarily establishes the range of likely determinations of that issue, that is not always so. The parties' agreement on a bargaining unit description does not relieve the Board of its statutory obligation to determine whether the agreed upon unit is appropriate. Parties' agreements on what would constitute an appropriate unit for the purposes of collective bargaining between them are ordinarily accorded considerable deference because they are presumed to reflect their special knowledge of the matters relevant to that determination. Such agreements are not determinative, however, and in certain circumstances the Board may decide not to accept the parties' agreement: Tamco Ltd., [1974] OLRB Rep. Nov. 764; North York Board of Education, [1982] OLRB Rep. June 918; St. Joseph's Hospital, Sarnia, [1983] OLRB Rep. June 984. Accordingly, when determining a voting constituency, the Board must be sensitive to the possibility that language agreed to by the applicant and respondent may not be accepted by the panel which makes the post-vote determination required by subsection 9(4) of the Act.

5In this case, the parties' agreement to exclude "all those paid from other than operating funds" gives us concern. The phrase is unclear. It is not apparent what "non­operating" funds are~ nor why the difference would have labour relations relevance. It is well established that a bargaining unit description that distinguishes between "hourly-rated" and "salaried" employees is not appropriate. Duplate Canada Ltd., 60 CLLC 16,169. At first blush, a differentiation based on the way the employer allocates labour costs to revenue sources seems an equally fragile basis on which to define bargaining rights. (See also Kelowna Centennial Museum, [1977] 2 Can. LRBR 285 and Waterloo County Roman Catholic School Board, [1977] OLRB Rep. Dec. 856; and compare Elizabeth Fry Society of Ottawa, [1985] OLRB Rep. July 1026.) In the