[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
1This is an application for certification in which the applicant has requested a pre-hearing representation vote.
2The name of the respondent is hereby amended to read "Queen's University at Kingston".
3In 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".
4The 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.
5A 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.
6The 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.
7Although 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.
8The 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