C.U.P.E. v. Governing Council of the University of Toronto

[1988] OLRB Rep. November 1183

2477-87-R C.U.P.E., Applicant v. Governing Council of the University of Toronto, Respondent v. Group of Employees, Objectors

BEFORE: Patricia Hughes, Vice-Chair, and Board Members D. A. MacDonald and R. R. Monta­gue.

DECISION OF THE BOARD; November 18, 1988

1. The Board directed the taking of a pre-hearing vote in this application and further directed that the ballot box be sealed (see decision dated March 31, 1988). The dispute between the parties with respect to the composition of the parties involves approximately one-third of the proposed bargaining unit; the ballots of the persons among those challenges who voted were, of course, segregated. At the vote held on April 25, 26 and 27, 1988, nearly 2,500 persons voted, the ballots of approximately one-third of whom were segregated.

2. In its March 31st decision, the Board set out the bases upon which the respondent, the University of Toronto ("the University"), made certain of its challenges; attached as Appendix A to that decision is a complete list of the persons in dispute divided into the specific ground for the challenge. The respondent challenged over 250 persons on the basis that they are employed in a confidential capacity relating to labour relations; about '400 more people on the basis that they exercise managerial functions and/or are employed in a confidential capacity; and about 70 other persons are challenged on those bases plus a lack of community of interest basis. Thirty persons are challenged on the basis they are employed in a confidential capacity and/or do not have a com­munity of interest with the other persons in the proposed unit or that they perform managerial functions and/or lack a community of interest. Only one person was challenged under the "mana­gerial" branch of clause 1(3)(b) of the Labour Relations Act ("the Act"). Two persons have been categorized by the respondent as "part-time, confidential and managerial". The parties reached an agreement on how to deal with the challenges (reproduced in the Board's decision of June 15, 1988) and as a result of that agreement Labour Relations officers began examinations of certain of the persons in dispute.

3. By letter dated October 14, 1988, counsel for the University seeks two orders from the Board: the first is to require the Officers to make a full inquiry into the duties and responsibilities of persons who were cited by the University as performing managerial functions or as being employed in a confidential capacity; the second is to permit the University to add to the list of chal­lenged individuals those persons who have since the determination of the challenges been found by the University to be performing managerial duties or to be employed in a confidential capacity. The union opposes the University's request. The University also seeks an oral hearing to make submissions on its request.

4. The Officers have ruled against the University's adding to 1:he grounds of challenge and to adding to the list of persons challenged. The University is in effect appealing the rulings of the Officers during the course of the Officers' inquiry.

5. In the normal course, the Board is not prepared to make a determination with respect to the appropriateness of an Officer's inquiry: see Strongland Construction Ltd., [1987] OLRB Rep. Oct. 1330. The parties have the right to address rulings of Officers before the Board after the Officers' report has been completed (see Rule 67 of the Board's Rules of Procedure; also see Prac­tice Note No. 4). It is inconsistent with the expeditious conduct of an Officer's inquiry to interrupt the course of that inquiry to consider parties' objections to the Officer's rulings. One possible con­sequence of the Board's general practice is that an inquiry might have to be re-opened after the completion of the Officer's report or that the panel of the Board hearing the case might embark upon further questioning of witnesses if it disagrees with the Officer's rulings to exclude certain questions or witnesses. When the Officer has included questions or witnesses whom the Board later determines should not have been included in the inquiry, the Board will merely ignore the inappli­cable evidence. It is for the Officers to decide how to conduct the inquiry in the knowledge that their decisions may or may not be upheld by a panel of the Board. (In this regard, we note sub­paragraph 3 of the parties' agreement which states broadly "It is understood by the parties that this agreement in no way alters the Labour Relations Officer's authority as set out in Paragraph 4".) But, quite simply, it is not expeditious for the Board to engage in a constant process of reviewing Officers' rulings during the inquiry or in a determination of the kinds of Officers' rulings which might appropriately be reviewed and those which should not be.

6. Counsel for the University makes the following submission:

[T]his is an unusually large bargaining unit with a large number of exclusions identified by the University. The issue of the jurisdiction of the Labour Relations Officers will be fundamental in these lengthy proceedings and may affect a number of positions within the potential bargaining unit. It is submitted that resolution of this matter should occur as soon as possible rather than waiting until the Officer's report is released to argue the point at that time.

We have considered that submission very carefully; nevertheless, we are not persuaded that we should interfere with the course of the inquiry. We note, however, that the parties have agreed to the issuance of an interim report which may be subject to representations by the parties.

7. We note that in this case, the parties requested that the Bcard hold a hearing after the taking of the vote for the purpose of determining the procedure to be followed in dealing with the challenges and a hearing was scheduled for that purpose. Indeed it would have been desirable to hold a hearing for that purpose even had the parties not requested it, given the number of chal­lenges involved. On the first day of that scheduled hearing, however, the parties requested a meet­ing with a Labour Relations Officer and arrived at the agreement referred to above. It clearly is not an exhaustive approach to dealing with the challenges and it may be that the Board would have given different directions as to how the parties were to proceed had the hearing occurred. The par­ties chose not to come before the panel and certainly one would think that they could and would more easily and readily adhere to an agreed-upon way of proceeding than to one which in the end might have been imposed by the Board based on what might have been opposing submissions by the parties. But having reached the agreement, they are now obliged to proceed on that basis and, with the Officer's, to deal with whatever questions arise as a result of its incompleteness.

8. In view of our determination of this matter, we make no comment on the merits of the University's request. The Officers are directed to continue their inquiry into the challenges on the bases specified by the respondent and set out in the Board's decision of March 31st.