0149-01-R Canadian Union of Public Employees, Applicant v. Ryerson Polytechnic University, Responding Party.
BEFORE: Patrick Kelly, Vice‑Chair, and Board Members J. A. Rundle and D. A. Patterson.
DECISION OF THE BOARD; April 19, 2001
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act, 1995 (the “Act”).
The responding party contends that a prior application for certification (Board File No. 0048-01-R) brought by the applicant in respect of employees who are the subject of this application had not been finally disposed of by the Board when this application was file on April 12, 2001. What remained to be determined in Board File No. 0048-01-R was the applicant’s request to withdraw that application. The responding party urged that the withdrawal should be granted, but with the imposition of a (bar pursuant to section 7(9) of the Act to another application for certification.
The Board (differently constituted) issued a final decision in Board File No. 0048-01-R on April 19, 2001, granting leave to withdraw the application without conditions.
The applicant has asked that the membership evidence in Board File No. 0048-01-R be transferred to this file for the purpose of an examination of the applicant’s information and membership evidence in this application. We have agreed to consider the information and membership evidence from Board File No. 0048-01-R in this application, pursuant to the Board’s usual practice. However, we make no determination at this point concerning the responding party’s argument that this application overlaps with the previous application, and cannot therefore be considered by the Board. Nor do we make any determination at this point whether, as the responding party argues, this application should be barred because of alleged abuse of process or, in the alternative, because it makes labour relations sense to do so in order to avoid confusion among employees who were affected by the previous application and are affected by this one. To the extent it wishes to do so, the responding party may raise these matters with the panel of the Board assigned to the hearing in this matter.
It appears to the Board on an examination of only the information provided in the application and the information and membership evidence filed by the applicant (see section 8(3) of the Act), (including the information and membership evidence transferred from Board File No. 0048-01-R) that not less than forty per cent of the individuals in the bargaining unit proposed in the application for certification were members of the union at the time the application was made.
The responding party disputes the applicant's estimate of the number of employees in the applicant's proposed bargaining unit. Furthermore, the responding party proposes a different bargaining unit than that proposed by the applicant and it contends that the applicant's bargaining unit could not be appropriate. It gives notice under section 8.1 of the Act.
The Board finds that the bargaining unit described in the application could be appropriate. After comparing the membership evidence provided by the applicant against the information provided by the responding party, the Board cannot be absolutely certain that the percentage of the individuals who appear to be members of the trade union is 40 per cent or more in the bargaining unit proposed by the applicant. In these circumstances, and having regard to section 8.1 of the Act, the Board directs that the ballot box from the representation vote be sealed. The ballots will not be counted until the Board so orders or the applicant and responding party agree.
The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Ryerson Polytechnic University in the City of Toronto who provide course assistance, teaching assistance, tutor, demonstrate, monitor, invigilate, mark, or grade, save and except supervisors, persons above the rank of supervisor, and persons for whom a trade union held bargaining rights on the date of application.
The vote will be on April 24, 2001. The responding party requested that any representation vote ordered should be held over two days. In our view, the number of potential voters does not justify a two-day vote. Other vote arrangement will be as determined by the Registrar and set out on the attached “Notice of Vote and of Hearing”
All individuals who had an employment relationship with the responding party in the voting constituency on April 12, 2001, the certification application filing date, are eligible to vote. Employees having an employment relationship on April 12, 2001, the certification application filing date, include employees who were not at work on that date, so long as there is a reasonable expectation of their return to employment.
There is a dispute between the parties as to whether instructors and faculty members should be included in the bargaining unit. If any individual holding such a position wishes to cast a ballot, the individual shall identify himself or herself as occupying a disputed position and such individual shall then be entitled to cast a ballot. Any ballot cast by such an individual shall be segregated and not counted until the Board so orders or the parties agree.
Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
The responding party is directed to post copies of this decision and of the "Notice of Vote and of Hearing" adjacent to each of the posted copies of the "Notice to Employees of Application for Certification". These copies must remain posted for 30 days.
Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the application for certification, including any matters relating to the representation vote, must file a detailed statement of representations with the Board and deliver it to the other parties, so that it is received by the Board within five days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken. Representations with respect to any status dispute must be made in accordance with the directions provided in Information Bulletin No. 4: Status Disputes in Certification Applications (Non-Construction).
The matter is referred to the Registrar.
“Patrick Kelly”
for the Board