Canadian Union of Public Employees v. Governing Council of the University of Toronto, 1989 CanLII 3471

Canadian Union of Public Employees v. Governing Council of the University of Toronto

[1989] OLRB Rep. May 521

2477-87-R Canadian Union of Public Employees, 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.

APPEARANCES: David Bloom, David Askew and Brian Sheehan for the applicant; W.J. Hayter, J. Parker and B. Marshall for the respondent; Betty Isbister for the objectors.

DECISION OF THE BOARD; May 23, 1989

1The Canadian Union of Public Employees ("C.U.P.E.") requested a pre-hearing representation vote in this application for certification with respect to certain employees of the Governing Council of the University of Toronto ("the University"). A vote was directed by the Board by decision dated March 31, 1988 and taken on April 25, 26 and 27, 1988; the ballot box was sealed pending challenges to the inclusion in the bargaining unit of a great number of persons, both under clause 1(3)(b) of the Labour Relations Act ("the Act") and on community of interest grounds. There have also been statements in opposition to the union filed; they themselves have no effect since this is a pre-hearing representation vote application, but the objecting employees who filed them do have party status in these proceedings.

2C.U.P.E. and the University have developed what they term "an alternative dispute resolution procedure" ("the procedure") to deal with the challenges under clause 1(3)(b) of the Act (the challenges based on community of interest are the subject of a different procedure currently in effect). Because its implementation would involve the assistance of a Vice-Chair of the Board, the procedure was submitted to us for our approval. In a decision dated April 10, 1989, we indicated our general satisfaction with the proposed procedure but set out some specific concerns which we had with it and directed that a date be fixed when the parties could address those concerns. That hearing occurred on May 5, 1989, and it resolved all the concerns we had about the procedure.

3Specifically, our concerns were alleviated and the procedure modified in the following way (the following paragraphs relate to the same numbered paragraphs in our April 10th decision):

1. We noted that the objecting employees were not party to the procedure. We directed that Notice of Hearing be sent to the representatives of the objecting employees along with a copy of the procedure. A representative of the objecting employees attended at the hearing and advised us that their interest was to be kept informed. She stated that they had no objection to the procedure developed by C.U.P.E. and the University and were content to leave the implementation of the procedure to those parties. We take her submissions to constitute an agreement to be bound by the resolution of the challenges arising out of the procedure. Counsel for C.U.P.E. and the University will ensure that the objecting employees' representative is copied with documents flowing between them unless all three parties reach some other agreement.

2. Paragraph 3 of the procedure has been deleted.

3. Paragraph 4 of the procedure provides for joint access to certain specified individuals and "such other persons as [C.U.P.E. and the University] may determine are necessary to be informed of all relevant facts". C.U.P.E. and the University confirmed that should they disagree on persons to be added, they would request the Vice-Chair appointed to assist them to resolve the dispute.

4. C.U.P.E. and the University confirmed that they anticipated they would have no role in the selection of a Vice-Chair to participate in the procedure.

5. C.U.P.E. and the University have appointed their own representatives to attempt to agree on the status of the disputed individuals. Their determination will be based on the Board's jurisprudence. (Our concern on this point effectively became moot with the deletion of paragraph 3 of the procedure.)

6. See paragraphs 5-8 of this decision below.

7. C.U.P.E. and the University do not expect to be able to select "representative" persons among the challenged individuals for the purposes of this procedure, nor do they anticipate conferring on the Vice-Chair the authority to require them to select such persons.

8. The procedure contemplates that C.U.P.E. may designate up to 5 persons whose status will be determined by this panel rather than through the procedure. The same "exemption" will apply to persons "elected or appointed to Governing Council, and who would otherwise be members of the bargaining unit". Such determinations are to be made (or may involve) full evidentiary hearings before this panel. Since the procedure states that such hearings will occur "unless the parties can otherwise agree", we will not direct that dates be set down for such hearings until one or more than one party so request.

9. The Vice-Chair is given authority by the procedure to terminate the procedure. C.U.P.E. and the University confirmed that a decision to terminate would constitute an agreement of the parties to terminate. The matter of the challenges would then come back before this panel.

10. [sic] C.U.P.E. and the University have established ground rules covering their own conduct in paragraph 14 of the procedure. They confirmed that that paragraph is not intended to encompass complaints before the Board.

11. Paragraph 15 of the procedure is deleted.

4The representative of the objecting employees had no submissions to make on these issues and accepted the clarifications of and modifications to the procedure articulated by counsel for C.U.P.E. and the University.

5The crux of the procedure from the Board's perspective is the involvement of a Vice-Chair in the process. The terms of the procedure envision the "appointment" by this panel under clause 103(2)(h) of the Act of a Vice-Chair upon whom the parties will "confer broad powers" and who will have the responsibility of making "expedited and binding decisions on the parties". Clause 103(2)(h) of the Act reads as follows:

103……

(2) Without limiting the generality of subsection (1), the Board has power,

(h) to authorize the chairman or a vice-chairman to inquire into any application, request, complaint, matter or thing within the jurisdiction of the Board, or any part of any of them, and to report to the Board thereon;

6As we pointed out in our April 10th decision, while clause 103(2)(h) appears to give a broad scope of inquiry to the Vice-Chair so authorized, it does not appear to delegate the Board's decision-making authority to such a Vice-Chair. Rather, the Vice-Chair is given authority only to report back to the Board (that is, the panel authorizing him or her to make an inquiry); the Board then will make a determination or decision based on that report. The procedure as originally proposed does not appear to recognize this distinction; paragraph 7 of the procedure, perhaps inadvertently, seems to suggest that the Vice-Chair will have final authority to determine the issues in dispute (that is, the status of the disputed individuals). Specifically, paragraph 7 of the procedure provides that the Vice-Chair authorized by the Board to participate in the procedure will have

complete authority to determine hearing procedure and to resolve any disputes between the representatives that may arise from the implementation of this agreement, including the authority to finally determine the status of those persons who the representatives have been unable to agree on, based on the criteria established under section 1(3)(b). The Vice-Chair shall make binding oral rulings and shall not provide reasons in writing with respect to the status of disputed persons. The Vice-Chair shall also have the authority to review and monitor the progress of the representatives and to review and approve settlements agreed to by the representatives.

7The oral submissions by C.U.P.E. and the University clarified their perception of the role of the Vice-Chair. It is their intention that any rulings by the Vice-Chair would become settlements of the parties which would then constitute the Vice-Chair's report to the panel (presumably, the Vice-Chair would also include other material in the report he or she considered pertinent to his or her inquiry). Counsel for C.U.P.E. analogized the procedure to the one which often occurs on Fridays, certification day at the Board. It is common for the parties to a certification to agree on whether persons in dispute under clause 1(3)(b) of the Act or on a community of interest basis are included in or excluded from the bargaining unit; only rarely does the Board question such settlements, although it always retains the right to do so and, as counsel suggested, the obligation to do so where the settlement on its face raises serious concerns. We agree that this approach satisfies both legal requirements relating to the Board's jurisdiction and the scope of the Vice-Chair's authority and the practical requirements of the parties in dealing with a large number of challenges as expeditiously as possible.

8On the more fundamental question, we are satisfied that the procedure is one which can be carried out under clause 103(2)(h). In our view, we can authorize a Vice-Chair to inquire into the "matter" of the persons challenged in this application under clause 1(3)(b) of the Act. As part of his or her inquiry, the Vice-Chair is, in our view, free to engage in the process envisioned by the procedure: that is, to hear the parties' brief submissions (which we take to be, essentially, each party's "best case") and to making a ruling on the status of each person about whom submissions have been made. Such rulings are deemed to be the parties' settlements. Upon the completion of the procedure (or if considered appropriate by the parties and/or the Vice-Chair, at some point prior to the completion), the Vice-Chair will prepare a report of his or her inquiry which would be, in effect, a record of the settlements of the parties, but which might also contain other comments or findings considered appropriate by the Vice-Chair. The panel would then make the final determinations of the status of the disputed persons based on the Vice-Chair's report.

9There are approximately 650 persons in dispute under clause 1(3)(b) of the Act. The parties do not intend the Vice-Chair to resolve all those persons in dispute; rather, the Vice-Chair will be a dispute settling mechanism of "last resort". Before calling on the Vice-Chair, the parties will attempt to settle the status of as many of the persons in dispute themselves. They may seek the assistance of the Vice-Chair from time to time throughout their own process as they deal with specific groups of persons or specific departments of the University. We are advised that the parties are in fact making progress in resolving some of these disputes. The parties agree that they will to some extent have to accommodate their schedules to the Vice-Chair's other requirements at the Board.

10Accordingly, pursuant to clause 103(2)(h) of the Act, we hereby authorize a Vice-Chair of the Board, to be designated by the Chair of the Board, to inquire into the status of the persons in dispute under clause l(3)(b) of the Act, and to report back to this panel thereon upon termination of the procedure established by the parties as an "alternative dispute resolution procedure", either upon the completion of the process under the procedure or at some earlier time as determined by the parties and/or the Vice-Chair.

11The Labour Relations Officers who have been examining disputed persons under a previous process agreed to by the parties (set out in our decision dated June 15, 1988) are directed to complete those examinations with respect to persons or positions about which examinations have commenced (see paragraphs 10 and 12 of the procedure), subject to the parties' adjourning the completion of those examinations.