Ontario Public Service Employees Union v. Queen's University at Kingston, 1987 CanLII 3284

[1987] OLRB Rep. June 925

0419-87-R Ontario Public Service Employees Union, Applicant v. Queen's University at Kingston, Respondent V. Canadian Union of Public Employees, Intervener

BEFORE: Patricia Hughes, Vice-Chair, and Board Members W. H. Wightman and B. L. Armstrong.

DECISION OF THE BOARD; June 10,1987, as amended June 26, 1987

This is an application for certification in which the applicant has requested a pre-hearing representation vote.
The name of the respondent is hereby amended to read "Queen's University at Kingston".
In accordance with its usual practice, the Board, by order dated May 25, 1987, appointed a Labour Relations Officer to examine the records of the applicant and the respondent 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 for the purposes of any vote which might be directed and other matters relating to entitlement to and arrangements for such a vote, as well as "any other matter relating to the application".
The Officer so appointed met with the parties on June 4,1987. During that meeting, the parties agreed on a bargaining unit description, evolved a voters' list and set out their positions on the inclusion in or exclusion from the bargaining unit of a number of individuals. They also agreed on the time and place of the vote and the form of the ballot. In addition, the question of the Canadian Union of Public Employees' ("CUPE" 's) status was raised. With respect to the participation of CUPE herein, the applicant contends that CUPE does not have status to make representation on bargaining unit issues that do not affect CUPE's interests. CUPE's status and the extent of its participation can be considered by this Board at the post-vote hearing referred to below.
A pre-hearing representation vote is intended to expedite the certification process. To that end, the Board will normally direct that a vote be taken to determine the level of the union s support prior to resolving any disputes between or among the parties where there is an appearance of sufficient support in accordance with subsection 9(2) of the Labour Relations Act ("the Act"):

see The Board of Education for the City of North York, [1984] OLRB Rep. July 989. The Board will not reach a decision on matters in dispute; if such matters "are so complex that there is no reasonable utility in conducting a vote before resolving those concerns or issues", the Board will likely not direct that a vote be taken: St. Clair College of Applied Arts and Technology, [1984] OLRB Rep. Dec. 1776. The issues raised during the Officer's meeting in this application can be addressed at a hearing following the taking of the pre-hearing representation vote, at which time the parties will have the opportunity to produce evidence and make full submissions.

The parties are agreed on the description of the bargaining unit. Having regard to the agreement of the parties, the Board determines that the voting constituency will be

all support staff of the respondent in the County of Frontenac save and except supervisors, persons above the rank of supervisor, persons regularly employed for not more than twenty-four (24) hours per week, students employed during the school vacation periods and employees in bargaining units for which any trade union held bargaining rights as of May 13, 1987.

The use of the "County of Frontenac" to establish the geographic scope of the unit is intended to encompass certain facilities of the respondent located outside Kingston but within the County of Frontenac. The Board also notes the wording of this description and its departure from the usual "office and clerical" or "clerical" phrasing and reminds the parties that they may be required to make submissions on this description to the Board when the hearing is held after the vote. The Board further notes the parties' agreement that "support staff' does not include faculty members, professional engineers, chartered accountants, professional librarians and physicians. The respondent is of the view that "support staff" does not include "adjunct academics and academic assistants, teaching staff and graduate and undergraduate students engaged in academic activities". The applicant takes the position that the phrase "support staff" does not include "persons properly engaged in teaching". The intervener takes no position on that issue. The respondent takes the position that the phrase excludes "chartered accountants or equivalent", while the applicant and intervener maintain the underlined words are not appropriate.

Although the parties have agreed on the description of the unit, they have raised a considerable number of challenges to the inclusion of particular individuals in the unit. In this regard, it is noted that the intervener and the respondent are party to three collective agreements. The agreement with respect to CUPE Local 1302 covers 'all employees of the Library and Archives' with certain exclusions. The agreement covering CUPE Local 229 encompasses "any employee of the Campus Engineering Services, Residence Operations, Parking Staff and certain staff in the Donald Gordon Centre, Physical Education Centre and General Services Group as agreed upon" with certain exceptions, including "clerical, office and technical staff'. The collective agreement with respect to CUPE Local 254 defines members of the bargaining unit as "all employees of Queen's University working in a technical capacity in any teaching or research laboratory, a shop related to any laboratory, or other related area or other mutually agreed areas for more than 17.5 hours in a week" with exclusions. There does not appear to be any contention by either the intervener or the respondent that the applicant is seeking to represent employees already represented by the intervener and indeed, on the wording, there seems to be no overlap between the agreed-upon unit and the collective agreement descriptions. CUPE will not appear on the ballot since this application does not constitute a raid by OPSEU. On the contrary, the dispute centres on the exclusions from those units. The respondent and intervener contend that the phrase "employees in bargaining units for which any trade union held bargaining rights as of May 13, 1987" includes all employees covered by an exclusion from subsisting collective agreements.
The challenges to the inclusion of certain persons in the unit which is the subject of this application appear to be based on the unique proposition that exclusion from a unit represented by one union means exclusion for all time. To the extent that the exclusion from CUPE units was on the basis that the individuals exercised managerial or confidential functions, it is not clear whether such exclusions were on the agreement of the intervener and the respondent or resulted from a determination by the Board that such persons were to be excluded pursuant to paragraph 1(3)(b) of the Act. Only decisions by the Board have any significance in such a context.
The applicant challenges the inclusion of the following individuals in the bargaining unit:

Sch. /P.

A/iS

927

No.

Name

19 K. Pearce 24 H. Pelletier

Reason

Supervisor

manager and academic.

The respondent challenges the inclusion in the bargaining unit of the following individ

uals:

Sch./P. No.

A/4 2S A/S 6 A/6 14 A/8 25 AJ14 19 tX/iS 20 tX/19 5 tX/22 2 3 6 21 Ai23 3

'X/26 1

Name

Reason

R. Conway

J. Crawford

K. Duttle

L. Harris

D. Muncey

D. Pearse

R. Smithies

P. Bryson

M. Burns

K. Carruthers

M. Hood

S. Lillis

R. Meers

C. Purcell

J. Sinnott

Arrowsmith

P. Brown

E. Cerisana

M. Coates

Duttle

E. Gargaro

B. Gee

Gower

T. Grice

La Croix

Ladoucer

B. Livingstone

M. Nash

R. Price

Williams

M. Zureik

J. Row

G. Bastianutti

P. Candido

M. Chirinian

S. Cutway

J. Deslauriers

F. Dunphy

L. Freeman

L. Garrison

R. Graham

J. Harris

D. Horsley

J. Jarus

M. King

excl. from L.254 excl. from L.254 excl. from L.229

comm. of mt. with L.254 excl. from L.254 excl. from L.229 excl. from L.254 part-time

part-time

part-time/managerial

part-time

part-time part-time not employee (at Queen's) supervisor supervisor not employee (at Queen's) not employee (at Queen's) supervtsor supervisor not employee (at Queen's) supervisor supervisor not employee (at Queen's) supervisor supervtsor super/excl. from L.229 not employee (at Queen's) supervisor supervisor supervisor not employee (at Queen's) part-time supervisor supervisor excl. from L.254 supervisor not employee (at Queen's) teacher

supervisor excl. from L.254 not employee (at Queen's) supervisor

928

A/27 1 G. Laporte supervisor 2 M. Lusk supervisor 3 T. Martin not employee (at Queen's) 4 5. Needham supervisor 5 J. Niemann supervisor 6 E. Potts comm. mt. with L.254 7 A. Potvin teacher 8 P. Scott supervisor 9 R. Snetsinger teacher 10 J. Topping supervisor ii I. Troughton not employee (at Queen's)

The intervener takes the position that R. Price should be excluded on the basis of exclusion from Local 229 and of a community of interest with the employees in the unit represented by Local 229, that S. Cutway has a community of interest with employees represented by Local 254, and agrees with the respondent that F. Dunphy and D. Horsley should be excluded from the unit on the basis of exclusion from Local 254. The intervener also agrees with the respondent that E. Potts should be excluded because of a community of interest with employees in the bargaining unit represented by Local 254 and that A. Potvin should be excluded on the basis of being a teacher. CUPE also agrees with the respondent with respect to R. Conway, J. Crawford, K. Duttle, L. Harris, D. Muncey, D. Pearse, R. Smithies and R. Meers (and also contends R. Meers has a community of interest with employees &epresented by Local 229). The intervener takes the applicant's position with respect to K. Pearce and also maintains that K. Pearce has a community of interest with employees represented by Local 229 (because parking and security constitute a department and since parking is part of the Local 229 unit, security shares a community of interest with the Local 229 unit). CUPE takes no position with respect to any other challenges by the applicant or by the respondent. In addition, the intervener seeks the exclusion of the following persons from the unit:

Sch./P. No. Name Reason A/8 20 B. Hamilton comm. of mt. with L.229 (See above: K. Pearce) A/13 1 F. Manning comm. of mt. with L.229 A/18 20 C. Skipper comm. of mt. with L.229 (see above: K. Pearce)

It appears to the Board, having examined the records of both the applicant and the respondent, that not less than thirty-five per cent of the employees of the respondent in the voting constituency were members of the applicant at the time the application was made.
Having set out all matters relating to this application, there remains one more matter for this panel to consider and determine since it concerns a request relevant to the period prior to the taking of the vote.
Following the meeting convened by the Officer, counsel for the applicant, by letter dated June 5,1987, raised a new issue, one which had not been raised during the Officer's meeting. The applicant asked the Board "to direct the respondent to make available to OPSEU [the applicant] and the intervener a list of names and mailing addresses of all employees in the voting constituency" -
The Board has made such a direction in the past. In The Board of Education for the City

929

f York, [19851 OLRB Rep. May 767, the Board directed a pre-hearing representation vote with respect to a unit of occasional teachers and also directed that the respondent provide the union ~ ith a list of the names and addresses of the members of the voting constituency, in large party at last, because of the "dispersion of the electorate". The provision of such a list was, in the Board's v .ew, "necessary to ensure an informed electorate" where there was no regular work place for many of the teachers and no automatic right of access to the union to school premises. For similar rasons, the Board directed the employer to provide a list of names and addresses to the union in Scarborough Board of Education, [19851 OLRB Rep. July 1164 (see reconsideration [1986] OLRB IF ep. Mar. 361 in which the Board confirmed its direction to the employer).

1S. In this instance, however, the Board is not prepared to entertain the applicant's request because it was not made at the Officer's meeting.

1 7. The Officer's meeting with the parties is crucial to the pre-hearing representation vote

process. The parties are on notice prior to attending the meeting that the Officer is convening the

n meeting to deal not only with specified matters such as the description of the bargaining unit and

v Iting arrangements, but also with all other matters arising out of the application. While many

is ~ues are dealt with by agreement, and others are dealt with by a simple statement of the parties'

p4 )sitions, other issues may require somewhat more extensive submissions by the parties. The Offict r records the results of the meeting, including the agreements and disagreements of the parties,

iii a report which is read to the parties, signed by them and then transmitted to the panel assigned

tc determine whether a pre-hearing representation vote is appropriate. Where the parties wish to

ni ake additional submissions the Officer sets a date by which such submissions are received by the

B ard and makes a note to that effect in the report.

The panel assigned the file then determines on the basis of the Officer's report and any additional submissions filed by the parties pursuant to the Officer's instructions at the meeting, w[iether it should direct a pre-hearing representation vote. To do so, it must be confident that all rt levant matters have been raised by the parties and have been addressed by all parties. While the B ard at this stage does not resolve or consider matters in dispute, it must be aware of all matters in dispute in order to determine whether a pre-hearing vote is appropriate or whether it is precli ided by the nature of the contentious issues. Similarly, the nature of the issues will determine w] tether the Board directs that the ballot box be sealed. The importance of the Officer's meeting to th.s process should be clear on these grounds alone.

i~. There is, however, another factor which must be considered. It is vital to the expediti( us processing of pre-hearing representation vote applications that the Board know that all releva nt issues have been canvassed in the Officer's report and that the parties have had an opportuni ;y to make submissions on those issues. The parties may make additional submissions at the hc aring held after the taking of the vote pursuant to subsection 9(4) of the Act, but they are re ~uired to state their basic positions at the Officer's meeting in order to permit the other parties ar opportunity to respond in a fashion which is timely within the specific context of pre-hearing re ?resentation votes.

20~ While the applicant's request in this case does not appear relevant to the basic question of whether a vote is appropriate, it does raise an entirely new issue to which the other parties have nct had an opportunity to respond. To allow this request to stand and invite submissions from the other parties would endanger the expedition which is at the core of subsection 9(1) applications. Had the matter been raised at the Officer's meeting it may have been resolved there, at least to the parties' satisfaction (since the Board is not bound by parties' agreements). At worst, the other parties would have been on notice immediately that their submissions on the issue were required

930

by the Board within the time specified by the Officer. In this respect, we note that this is a matter which the Board is required to resolve prior to the votes being held and not one which can be heard by the Board after the taking of the vote.

While there was no indication in The Board of Education for the City of York, supra when the request for the list was made, it was stated explicitly in the Scarborough Board of Education case, supra, that the issue was raised at the Officer's meeting. In any case, in this instance, this matter was not raised at the meeting, nor is there any suggestion that it was.
In light of our conclusion, we do not make a determination on the merits of the request. However, we do make the following observations. It was of significance in The Board of Education for the City of York, supra, that the occasional teachers were dispersed and not attached on a regular and consistent basis to a particular work location. While that may not constitute the only circumstance in which the Board is prepared to direct the delivery of a list of employees' names and addresses to the applicant by the respondent, such a direction will usually be predicated on factors which put the union at a disadvantage vis-a-vis the employer with respect to communicating its position and views to the employees. The applicant herein cites as a reason for its request that "[t]he bargaining unit is distributed throughout a number of locations in the City of Kingston and it is not open to the applicant to distribute its literature in these premises". There is no indication why the applicant is disabled in this way - whether, for example, there is a legal, physical, financial or other impediment. Where a party makes such a request, it must clearly explain why its circumstances warrant a direction that the employer provide names and addresses.
In this instance, however, the Board is not directly concerned with the sufficiency of the applicant's submissions since it rejects the applicant's request because it was not raised at the Officer's meeting.
The Board hereby directs the taking of a pre-hearing representation vote in this matter.
All employees of the respondent in the voting constituency on June 2,1987, who have not voluntarily terminated their employment or who have not been discharged for cause between June 2, 1987, and the date the vote is taken will be eligible to vote.
If any of the individuals listed in paragraphs 9, 10 and 11 above attends to vote, he or she is to be allowed to vote and any ballot so cast segregated.
Voters will be asked to indicate whether they wish to be represented by the applicant in their employment relations with the respondent.
This matter is referred to the Registrar to make vote arrangements and, pending the outcome of the vote, to schedule a hearing at which the parties may address the issues in dispute.