[1995] OLRB Rep. September 1213
1976-95-R Queen's University Faculty Association, Applicant v. Queen's University at Kingston, Responding Party v. Thomas Harris and others, Intervenors
BEFORE: Christopher Albertyn, Vice-Chair, and Board Members W. H. Wightman and G. McMenemy.
DECISION OF THE BOARD; September 20, 1995
1The style of cause is hereby amended to reflect the correct name of the responding party: "Queen's University at Kingston".
2This is an application for certification. The applicant seeks a pre-hearing representation vote. It appears from the records of the applicant and the responding party that not less than thirty-five per cent of the employees in the voting constituency were members of the applicant at the time the application was made.
3On September 6, 1995 a meeting was held between the applicant, the responding party, a Labour Relations Officer of the Board and certain employees. Prior thereto the responding party posted over eighteen notices to employees in the workplace informing them that an application for certification had been made by the applicant and that there would be a meeting with a Labour Relations Officer. The date, time and location of the meeting were stated in the notices.
4During the September 6, 1995 meeting arrangements for a representation vote were discussed. At the meeting an agreement between the applicant and the responding party was concluded that a representation vote would take place on September 27 and 28, 1995, subject to the determination of the voting constituency and the Board's resources.
5A further meeting between the applicant and the responding party was held on September 12, 1995 at which the dates for the representation vote were confirmed as being September 27 and 28, 1995. The voting constituency was defined. By letter to all academic staff of the responding party, the Principal of the responding party advised that the representation vote would take place on September 27 and 28, 1995. That letter was sent to all of the University's academic staff on September 12, 1995.
6The intervenors, by letter of their counsel dated September 13, 1995, now seek a postponement of the pre-hearing representation vote. Their argument for wishing to stay the vote to a future date, not before October 9, 1995, is set out in the letter from their counsel dated September 13, 1995, which reads as follows:
Further to our letter of September 11, 1995 and the pre-hearing vote meeting held on September 12, 1995, we wish to advise the Board that we represent not less than 48 faculty members who wish to seek intervenor status (the "intervenor"). The Labour Relations Officer has directed that our submissions regarding that application and the proposed intervenors allegation that the Queen's University Faculty Association (QUFA) should not be certified as a result of the operation of s. 13 of the Labour Relations Act be submitted by September 15, 1995. However, the Labour Relations Board directed that our submissions regarding the dates of the prehearing vote be made by the end of today. We, therefore, make the following submissions.
It is our respectful submission that one of the primary goals of the Labour Relations Act and the certification process is to allow the proposed bargaining unit members to exercise their democratic right to vote in favour of or against the certification of the union. One of the pillars of the democratic process is the right to freedom of expression and the opportunity to debate all issues surrounding the proposed certification. It is only after all proposed bargaining unit members are fully apprised of the issues, have had an adequate opportunity to obtain all of the necessary facts, have been able to express their views and debate the issues with others, can they effectively exercise their democratic right to vote. It is our respectful submission that the dates proposed for the pre-hearing vote in this matter, namely September 27 and 28, do not provide for an adequate amount of time for the issues to be addressed, the facts to be disseminated and the proposed bargaining unit members to make an informed decision.
It is our respectful submission that the nature of the institution to which this certification application applies warrants an extension of the proposed dates of the vote to allow for a full and frank discussion and debate of all issues surrounding the certification application. Queen's University at Kingston is an institution of higher learning. One of the fundamental purposes of such an institution is to preserve, protect, promote and provide a forum for the exercise of free speech and debate of all issues, even if controversial. A delay in the vote will allow for a full and frank discussion and debate of all issues surrounding the certification application and its effect if successful, the dissemination of the necessary facts and an expression by those affected of their views to their colleagues. To have a certification vote in an institution such as a university without a full and frank discussion of the issues is, in our respectful view, unconscionable and offensive to natural justice.
QUFA purports to support the democratic process by applying for a pre-hearing vote but has opposed the application by the intervenors for a delay in the vote to allow for a full and frank discussion of the issues, its purported support for democracy must be questioned when it opposes a fundamental component of the democratic process, namely the dissemination of information and the opportunity of those personally and directly impacted by its application, to fully exercise their right to freedom of speech and debate.
The timing of the application for certification and the vote is important in our respectful submission. Many of the proposed bargaining unit members were not at the university until very shortly before the beginning of classes on September 11, 1995. Therefore, many of the proposed bargaining unit members were unaware of the August 21, 1995 application for certification and the time limit for responding. Further, the first week of classes is a very busy time in the academic year during which many of the proposed bargaining unit members must attend to their teaching responsibilities, including the preparation of lesson plans, and are therefore not able to devote the necessary time to become properly informed and debate the issues surrounding this certification.
It is our understanding that the Applicant takes the position that the application for certification is the culmination of a three year process during which all of the relevant issues have been discussed and debated. However, in our respectful submission, only a small number of the relevant issues have been the subject of debate by the proposed bargaining unit members. The debate that has taken place focused on dispute resolution issues and did not address many of the other issues raised by the certification application. It is these issues to which these submissions relate and which the intervenors wish to ensure are considered by all proposed bargaining unit members prior to a vote.
The delay of the vote will also allow for the student body at Queen's University at Kingston to express their views regarding the certification of the Applicant. While they have no direct involvement and are not a party to these proceedings, at a university institution, the students should be allowed an opportunity, if they choose to do so, to express their views to the proposed bargaining unit members.
The intervenors are content to accept an extension of the time for voting for two weeks. However, it is our understanding from the Labour Relations Board that the Board does not have sufficient human resources available to it to conduct a vote during the second week of October. A vote conducted at any time after that date is acceptable to the intervenors.
The intervenors hereby formally request a delay in the certification vote in the within matter to a time not earlier than the week of October 9, 1995.
7The applicant has filed submissions in response to the intervenors' application for a stay of the representation vote.
8The intervenors filed their From A-3 intervention on September 14, 1995. They seek intervenor status and they oppose the certification of the applicant pursuant to section 13 of the Act.
9On September 15, 1995 counsel for the intervenors amplified by letter the averments made in their Form A-3 application, and made submissions concerning the relevance of section 13 of the Act to this application, in order that the Board grant a hearing at which the matters raised may be fully addressed before any decision on certification is made by the Board.
10By letter on September 18, 1995 the intervenors' counsel informed the Board that the intervenors wish formally to withdraw their challenge to the applicant's certification pursuant to section 13 of the act. The intervenors also withdraw their challenge to the A-4 Declaration. However the intervenors maintain their application for intervenor status and their request for a delay in the pre-hearing vote.
11The normal practice of the Board, and the usual expectation of the labour relations community, is that a pre-hearing representation vote will occur as quickly as is practically feasible, often approximately two weeks after the meeting between the interested parties and a Labour Relations Officer.
12In this case the time period between the meeting between the principal parties and the proposed date of the vote is approximately three weeks, somewhat longer than the Board's usual practice. That longer period was occasioned by relatively substantial administrative arrangements which need to be made to provide for the relatively large constituency of voters who will be entitled to participate in the representation vote.
13There are compelling labour relations reasons for prompt representation votes. The longer the delay in the taking of a vote, the greater is the opportunity for improper interference in the employees' exercise of their right to freely choose whether or not they wish to be represented by the particular trade union applicant. As stated in Emery Industries Limited, (19801 OLRB Rep. March 316:
- . .. The purpose of the pre-hearing, or "quick vote" procedure is to facilitate a prompt resolution of representation questions, by permitting the Board to test employee wishes as soon as possible following the application date. This avoids the potential prejudice that might arise if a representation vote had to await a decision following a formal certification hearing. Some delay is inevitable, but the pre-hearing vote procedure is a legislative attempt to remove some of the problems, and prejudice, associated with delay while, at the same time, ensuring that all of the parties will be given a full opportunity to make their submissions with respect to any matters in dispute.
See also Associated Toronto Taxi-Cab Co-Operative Limited, [1991] OLRB Rep. July 805; Ontario Hydro, [1991] OLRB Rep. Jan. 83.
14The intervenors seek to suggest that they should be treated differently from other employees by reason of the fact that they are university academics. They suggest that they require more opportunity to discuss the pros and cons of unionization than do ordinary working men and women. The Board is not persuaded that academic staff, as employees of the university, should be treated any differently from other working people who must grapple with the same question, as to whether or not they wish to be represented by a trade union in their relations with the employer. In our view no greater time should be afforded to university academics to make up their minds as to the question they will face in the representation vote than should be allowed to any other working person.
15We are not convinced that a delay in the pre-hearing representation vote is justified. The arrangements for the vote have now been made between the applicant, the responding party and the Field Services Staff of the Board and those arrangements would be unnecessarily disrupted were the vote to be postponed.
16Our view is that a representation vote should be taken as quickly as is reasonably feasible and practicably convenient for the principal parties, being the applicant trade union and the responding employer. That approach best serves a purpose of the Act, which is to ensure the speedy resolution of potential conflict between employers and employees.
17We are satisfied that the intervenors have sufficient interest to be parties to this application and they are granted intervenor status.
18No decision need be made at this stage as to whether a hearing is necessary. That decision is appropriately made after the pre-hearing vote.
19In the circumstances the Board will not interfere in the arrangements reached between the applicant, the responding party and the responsible Labour Relations Officer. The pre-hearing representation vote will accordingly take place, as arranged, on September 27 and 28, 1995. All of those employed in the voting constituency (described in the Appendix hereto) on August 28, 1995 who are so employed on the date the vote is taken will be eligible to vote.
20Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
21The applicant has not yet proved its trade union status before the Board. It will have to do so before the count of the votes. Accordingly the votes will be sealed in the ballot boxes until the union's status has been determined.
22The matter is referred to the Registrar. [Appendix omitted: Editor]