Wilfrid Laurier University Faculty Association v. Wilfrid Laurier University

[1988] OLRB Rep. August 851

0477-88-R Wilfrid Laurier University Faculty Association, Applicant v. Wilfrid Laurier University, Respondent v. Group of Employees, Objectors

BEFORE: S. A. Tacon, Vice-Chair, and Board Members M. Rozenberg and H. Peacock.

APPEARANCES: Michael Mitchell, Tanya Lee, Jim Harkins and Michael Moore for the applicant; C. G. Riggs, Russell Muncaster and Erich Schultz for the respondent; Theresa McClenaghan for the objectors.

DECISION OF THE BOARD; August 17, 1988

1. This is an application for certification dated May 20, 1988 in which the applicant was notified by the Registrar that its status as a trade union within the meaning of section l(l)(p) of the Labour Relations Act would have to be proved. The terminal date set in this application was June 3,1988 and the hearing date June 17, 1988.

2. The applicant called two witnesses, S. Stack and M. Moore, with respect to the issue of trade union status. Having weighed and assessed that testimony in the context of the usual factors going to credibility, the documentary material filed and what is reasonably probable in the circumstances, the Board makes the following findings of fact.

3. The applicant has existed as an Association representing the full-time faculty of the respondent since the 1950's. It original constitution dated from 1957 and was amended in 1964, 1968, 1970 and twice in 1976. The constitution currently in effect was approved April 30, 1978. Clauses 2.1 and 3.1 of that document read:

Purpose

2.1 The purpose of this Association shall be to negotiate and regulate employment relations of the academic personnel of the university and to promote their welfare as a community of scholars.

Membership

3.1 Membership in the Association shall be open to all full-time employees of Wilfrid Laurier University whose responsibilities are primarily academic rather than administrative, and to those whom the Association from time to time deem eligible.

The bylaws presently in force were approved in 1977. It is appropriate to set out clause 1.1 of those bylaws.

Membership

1.1 There shall be two categories of members, Regular and Associate.

1.11 Regular Members:

Any employee of the University whose responsibilities are primarily academic rather than administrative and whose contract is governed by the Faculty Manual shall be eligible for Regular Membership in the Association.

1.12 Associate Members:

The Executive shall recommend to the general membership individuals for Associate Member status and shall specify the fights and obligations of such members.

4. It is also useful to note that the name of the respondent has changed over the years from The Waterloo College to The Waterloo Lutheran University to its present name, Wilfrid Laurier University. The name of the Association reflected those changes. In 1976, a proposed amendment to adopt the name the Wilfrid Laurier University Academic Personnel Association was defeated and the name of the applicant remained the Wilfrid Laurier University Faculty Association. In contrast, the other proposed amendments, including clause 2.1 (purpose) to refer to "academic personnel" rather than "teaching staff', were approved at that time. This change in language was intended to enable the Association to represent a broader category of persons than full-time teaching staff and, in particular, the Association had in mind professional librarians and those teaching physical education courses and/or coaching in that department.

5. The Association has traditionally represented full-time faculty whose contract was governed by the Faculty Manual. The Faculty Manual is referred to and incorporated into the contract of employment. Since 1969, senior administrators, such as the President, Vice-Presidents and Deans, have been excluded on the basis that their duties are primarily administrative rather than academic. While the chief librarian had been a member of the Association, in 1976, the Association Executive decided that the chief librarian should be excluded for the same reasons as other senior administrators. Apart from this, professional librarians traditionally have not been represented by the Association. In the mid-1970's, the Association did consider admitting professional librarians to membership in response to a general request to the Canadian Association of University Teachers (CAUT) affiliates (including the Association) to so consider professional librarians and in response to inquiries from one or two interested librarians. That matter was not pursued, however, because the Association Executive concluded that the University administration was unlikely to recognize the Association as the representative of the professional librarians as the administration had taken the position that the Association could not represent persons teaching and coaching in the physical education department as those individuals were not formally classified as full-time faculty, i.e., those whose contract was governed by the Faculty Manual. Thus, while the bylaws provided for Regular Members and Associate Members from 1977 onwards, no Associate Members were ever admitted to the Association.

6. In early 1988, the possibility of certification of the applicant was general knowledge on campus. Informal invitations from the professional librarians led to more formal discussions with the Association Executive. At the May 6, 1988 general membership meeting, the following is recorded in the Minutes:

2.2. Librarian Meeting:

Barry Gough reported on a meeting of the Executive Committee with the professional staff in the library which the latter had requested. He indicated significant support among the full-time professional employees in the library for certification along with the faculty. If the definition of a bargaining unit includes librarians, the constitutional definition of membership in the Faculty Association would be automatically amended.

At the hearing, Moore testified that the last sentence just quoted did not represent the view of the Association or the Executive. At its meeting on May 19, the Executive decided to bring a formal motion admitting professional librarians to membership in the Association to the next general membership meeting. The Minutes of the Executive Committee state that "the Executive determined that the bargaining unit for the certified Association will include full-time faculty and professional librarians." That general membership meeting was held on May 26; the relevant excerpt from the Minutes reads:

4. Report on Librarians

MOTION (Barry Gough/Michael Moore): that this association admits WLU professional librarians other than the Head Librarian as Associate Members, and does so under the terms of the WLUFA Constitution, and empowers the Executive to work out the precise details of the arrangement with those in question.

CARRIED.

Moore also testified that, at the meeting, it was expressly specified, although not recorded, that the rights and privileges of Associate Members were the same as those of Regular Members. The "precise details" which remained to be finalized referred only to the calculation of dues. That is, the Association dues for a full-time faculty reflect the various academic ranks, such as the Assistant Professor, Associate Professor and Full Professor. At the time, the Association was not aware of the formal ranking of professional librarians, if any, and, hence, could not finalize the quantum of dues to be paid by Associate Members.

7. Counsel for the applicant briefly reviewed the constitutional history and bylaws in support of his assertion that the applicant constituted a trade union within the meaning of the Act. Counsel asserted it could not reasonably be suggested that the applicant was not a trade union entitled to represent full-time faculty. With respect to the issue of professional librarians, it was contended that the question went to whether the applicant could be certified to represent librarians rather than trade union status. And, in any event, counsel argued that the evidence warrants a conclusion that librarians could be, and were, properly admitted to membership in the applicant and, thus, the Association could represent those persons. Counsel also distinguished between the application date as the date on which the applicant must be a trade union within the meaning of section l(l)(p) and a later point in time (i.e., the terminal date or the date of the hearing) by which the applicant must be able to admit as members those persons whom it seeks to represent. Even if the appropriate date for admission to membership was the application date, it was asserted that the Executive recommendation (on May 19) was sufficient to satisfy this concern. Counsel referred to: Buckley Cartage Limited, [1964] OLRB Rep., Jan. 593; Playtex Limited (Arnprior), [1959] OLRB Rep. Dec. 316; The Hamilton and District School of Nursing, [1968] OLRB Rep. Jan. 960; Verafood Services Limited, [1967] OLRB Rep. Sept. 539. In reply, it was submitted that the applicant had the capacity, from 1976 onwards, to admit others. Moreover, the Association's own interpretation of those constitutional documents should govern rather than a narrow reading, particularly given the Act's acceptance of a practice of admitting certain categories of persons as sufficient notwithstanding the express provisions of the constitution. Finally, it was argued that the policy concerns (i.e., the potential of closed shop provisions) underlying the requirement that persons whom an applicant seeks to represent must be able to be admitted to membership were not applicable here.

8. Counsel for the employee objectors did not assert the applicant was not a trade union entitled to represent full-time faculty. However it was submitted that the applicant did not have trade union status to represent professional librarians. That is, counsel asserted that the critical date was the application date and, as of that point, the general membership had not approved the admission of professional librarians into membership. Moreover, it was contended that the procedure followed subsequent to the applicant date itself was defective in that the professional librarians were not admitted to membership as individuals by name nor were the rights and obligations sufficiently specified. That is, counsel argued that the professional librarians were still not admitted as members in accordance with the applicant's constitution.

9. Counsel for the respondent, as well, did not assert that the applicant lacked status as a trade union with respect to an entitlement to represent full-time faculty. Counsel reviewed the constitutional documents and asserted that those documents still precluded the admission of professional librarians to membership. That is, the absence of a specific prohibition against professional librarians and the presence of an "open-ended" category of membership was insufficient; rather, an amendment to the bylaws, at least, was needed. Further, it was contended that constitutional documents should be interpreted strictly. In this case, the failure to specify in detail and in writing the "rights and obligations" of the professional librarians purportedly admitted as a Associate Members was fatal. Counsel contended that the appropriate date for the Board's assessment was the application date and, given the language of the documents and the history of the Association, the applicant was not entitled to represent professional librarians.

10. The statutory definition of a trade union in the Act requires an applicant seeking to prove its status establish that it is an organization of employees formed for purposes which include the regulation of relations between employees and employers. Specifically, the applicant must prove it is a viable organization with officers elected in accordance with its constitution. A useful summary of the requisite process is set out in Sack and Mitchell, Ontario Labour Relations Board Law and Practice (Butterworths, 1985) at page 130:

The Board has said that the following steps should be taken to form a bonafide trade union: (1) a constitution should be drafted setting out, among other things, the purposes of the organization (which must include the regulation of labour relations) and the procedure for electing officers and calling meetings; (2) the constitution should be placed before a meeting of employees for approval; (3) the employees attending such meeting should be admitted to membership or, if they have joined before, should be confirmed as members; (4) the constitution should be adopted or ratified by vote of the said members; (5) officers should be elected pursuant to the constitution.

(See: Local 199 U.A. W. Building Corp., [1977] OLRB Rep. July 472; E. B. Eddy Forest Products Ltd., [1977] OLRB Rep. Oct. 694; Associated Hebrew Schools of Toronto, [1978] OLRB Rep. Sept. 797; Canteen of Canada Ltd., [1978] OLRB Rep. Sept. 802; Brant County Board of Education, [1979] OLRB Rep. Feb. 70; Comco Metal & Plastic Industries Ltd., [1979] OLRB Rep. June 498; National Steel Car Corp. Ltd., [1979] OLRB Rep. June 542; Niagara Veteran Taxi, [1979] OLRB Rep. Sept. 889; Cambridge Motor Hotel, [1980] OLRB Rep. Dec. 1725; Ontario Hospital Association (Blue Cross), [1981] OLRB Rep. June 763.) See also Niagara Veteran Taxi, [1979] OLRB Rep. Sept. 889; University of Ottawa, [1975] OLRB Rep. Sept. 694 wherein the Board looked to evidence of continuous functioning of an organization under subsequent amendments to its original constitution in concluding a constitution existed at the organization's inception. In this instance, given the considerable history of the applicant as an organization operating in accordance with a constitution and representing full-time faculty, there is no question that those factors have been satisfied. Indeed, neither the respondent nor employee objectors asserted otherwise. Moreover, the Board has no jurisdiction to create standards for determining trade union status beyond those set out in section l(l)(p) itself, i.e. to refuse to find trade union status where the constitutional provisions of the applicant might be discriminatory, apart from the relevance of those provisions to the issues of viability, purpose, etc.: CSAO National (Inc.) v. Oakville Trafalgar Memorial Hospital Assoc. and Ontario Labour Relations Board (1972), 1972 CanLII 563 (ON CA), 26 D.L.R. (3d) 63, 72 CLLC 26 14,118 (Ont. C.A.); revg. (1971), 1971 CanLII 726 (ON HCJ), 23 D.L.R. (3d) 649 (Ont. H.C.); affg. [1971] OLRB Rep. Feb. 70. Accordingly, the Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Act.

11. The respondent and employee objectors, however, assert that the applicant lacks the capacity, or has not properly exercised its capacity, to represent professional librarians. In the Board's view, this assertion goes not to trade union status but to the question of whether the applicant should be certified to represent a bargaining unit which includes professional librarians (should such a unit be found appropriate). The Board has traditionally refused to certify a trade union as bargaining agent where that union's constitution renders ineligible for membership at least some of the persons whom the union will be required to represent if certified: G. K. L. Industries Ltd., [19851 OLRB Rep. Oct. 1464. This policy is grounded on the potential consequences for such employees should the trade union negotiate a collective agreement which required membership in that organization as a condition of employment: quite simply, those persons ineligible for membership could have their employment terminated. In determining this issue in the instant application, the Board must examine the constitution and bylaws of the applicant and, alternatively, given section 103(4) of the Act, its history of membership. To deal with the latter aspect first, it is acknowledged that the applicant has not traditionally admitted professional librarians to membership. The relevant excerpt from the current constitution and bylaws have been reproduced in paragraph 3 above and need not be repeated here. In the Board's opinion, the change in language in Article 2.1 of the constitution to refer to "academic personnel" clearly broadens the groups of persons which the organization could represent and was enacted specifically with reference to professional librarians, inter alia, who ostensibly would not have fallen within the earlier reference to "teaching staff'. That the bylaws established two categories of members, "Regular" and "Associate", does not derogate from the entitlement of the applicant to represent professional librarians. Nor does the reference in 1.12 of the bylaws to "individuals" preclude, of itself, the establishment of rights and obligations of a category of persons as Associate Members. There is nothing on the face of the bylaws which requires discriminatory treatment of the two categories of membership. The Board should not, without more, transform a potential for discrimination in the future into a bar to certification. [Moreover, the evidence suggests there is no existing discrimination and none intended in the future: see infra at par. 12]. While the prudent course might suggest recording such rights and obligations in writing, the Board is not prepared to characterize the absence of such a written record as a fundamental defect prohibiting the applicant from representing professional librarians. It should be noted that, while the references throughout have been to professional librarians for ease of exposition, the reference is intended to embrace the library systems manager as well. Thus, the Board finds that the applicant has the capacity to represent professional librarians. Certification would not be refused in respect of a bargaining unit which included professional librarians on the basis asserted by the respondent and intervener.

12. The dates on which the Executive Committee meeting and general membership meetings were held which ultimately resulted in the admission of individual professional librarians to membership as Associate Members with all the rights of Regular Members are irrelevant, for the foregoing reasons, to the issue of trade union status and to the capacity of the applicant, given its constitution and bylaws, to represent persons in that category. The Board also notes that, while the analysis has referred to the "potential" for discriminatory treatment amongst members, the evidence (while irrelevant to the issues just mentioned) indicates that Associate Members are not discriminated against. That the details of the dues level remain to be finalized is of no consequence to this Board in the circumstances (see paragraph 6 above).

13. The Board stresses that the above comments are made in the context of a partial agreement with respect to the bargaining unit description. The parties remain in dispute, as set out infra at paragraphs 15 and 16. Thus, the finding of trade union status 'within the meaning of section l(l)(p) of the Act and the Board's conclusion that the applicant possesses the capacity to represent professional librarians does not resolve the question as to whether the appropriate bargaining unit should, in the circumstances, include professional librarians. As noted infra, a Board Officer is appointed to inquire into the community of interest aspect.

14. The parties were in partial agreement with respect to the bargaining unit as follows:

all full-time faculty employed by the respondent in the Regional Municipality of Waterloo, save and except the President, Vice-Presidents, Deans, Director of Computing Services.

Clarity Note:

For purposes of clarity, the parties agree that persons holding visiting appointments for one (1) year or less are not included in the bargaining unit.

15. The parties remained in dispute with respect to the professional librarians, library systems manager, University librarian and in-residence appointments. It is the applicant's position that the professional librarians and library systems manager should be included in the bargaining unit on the basis that those persons share a community of interest with the full-time faculty. The respondent and the intervener disagree. All parties agree that the Board's determination of this issue would resolve the question of the University librarian. That is, if the applicant's position is upheld, the University librarian should be specifically excluded from the bargaining unit as managerial by virtue of section 1(3)(b) of the Act; otherwise, the University librarian need not be noted in the bargaining unit description. With respect to the professional librarians, the applicant also asserts that "library heads" should be included in the bargaining unit. Conversely, the respondent contends that library heads should be excluded because they do not share a community of interest with the full-time faculty and, in the alternative, that the library heads are managerial within the meaning of section 1(3)(b) of the Act. The intervener concurs with the respondent's latter ground for excluding library heads. It is useful at this point to note the names of the persons challenged: Herb Schwartz, Library Systems Manager; Joan Mitchell, John Arndt, Richard Woeller, Diane Wilkins, Brooke Skelton, H. Parkinson, library heads.

16. Finally, the parties disagreed as to the inclusion or exclusion of in-residence appointments. The applicant contended that those persons share a community of interest with full-time faculty and, therefore, should be included in the bargaining unit. The respondent disagreed. The intervener took no position on this question.

17. The Board hereby appoints a Board Officer to inquire into and report back to the Board as follows:

(i) on the community of interest between the professional librarians and library systems manager, on the one hand and full-time faculty, on the other;

(ii) on the community of interest between the library heads and full-time faculty and, as well, on the duties and responsibilities of the library heads, namely, Joan Mitchell, John Arndt, Richard Woeller, Diane Wilkins, Brooke Skelton and H. Parkinson;

(iii) on a community of interest between the in-residence appointments and the full-time faculty.

18. The Board has determined that the applicant's right to certification cannot be affected by the Board's ultimate decision concerning the inclusion or exclusion of the above-mentioned classifications and persons. On the basis of all the evidence before it, the Board is satisfied that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on June 3, 1988, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act. Specifically, of the 259 persons in the bargaining unit (including the persons challenged), the applicant filed membership cards in respect of 163. Further, the membership evidence was in the proper form and supported by a Form 9 Declaration filed with the Board attesting to the authenticity of the membership evidence.

19. The Board also notes that a statement of desire in opposition to the applicant was filed with the Board including the names of 13 persons who had previously signed membership cards. However, the Board need not deal further with the statement of desire because, even if voluntary, it does not raise doubt concerning the continued support for certification of the applicant, by a sufficient number of employees who also signed membership cards, so that the Board generally would exercise its discretion under section 7(2) of the Act to direct that a representation vote be taken despite the fact that more than fifty-five per cent of the employees in the bargaining unit were members of the applicant at the relevant time. This is so regardless of the Board's ultimate decision concerning the inclusion or exclusion of the earlier-noted matters remaining in dispute between the parties.

20. Accordingly, the Board, pursuant to its discretion under section 6(2) of the Act and pending the final resolution of the composition of the bargaining unit, certifies the applicant as bargaining agent for all full-time faculty employed by the respondent in the Regional Municipality of Waterloo, save and except the President, Vice-Presidents, Deans, Director of Computing Services and, pending the final determination of the matters in dispute, excluding as well professional librarians, library systems manager, university librarian, library heads and in-residence appointments. In this regard, the Board adds the clarity note agreed to by the parties: for purposes of clarity, the parties agree that persons holding visiting appointments for one (1) year or less are not included in the bargaining unit.

21. A formal certificate must await the final determination of the bargaining unit.