Patrick Gilligan-Hackett and Muriel Henry, for SFU.
Mariam Gropper, Q.C. and Michelle Blendell, for APSA.
Leo McGrady, Q.C. and Maria Koroneos, for CUPE.
¶ 1 APSA applies under Section 18 of the Labour Relations Code (the "Code") to be certified to represent a bargaining unit described as "administrative and professional employees of the employer, except those employees represented by other bargaining agents; and those represented by Faculty Association".
¶ 2 SFU does not oppose APSA's certification based on the presumption against multiple bargaining units. SFU's quarrel with the application is that APSA seeks to represent about 660 individuals, 314 of which SFU says are managers, persons employed in a confidential capacity with respect to labour relations and others who do not share a community of interest with members of the proposed unit.
¶ 3 CUPE appears as an interested party. CUPE opposes the application on two principle grounds. First, CUPE says that APSA is an employer dominated or influenced organization for the purposes of Section 31. In the alternative, CUPE argues that the certification of an additional bargaining unit is not appropriate for collective bargaining.
¶ 4 SFU takes no position regarding CUPE's objections to APSA's application albeit SFU disputes a number of factual assertions CUPE advanced in support of its position.
¶ 5 The adjudication of outstanding issues was divided into two stages. Given the threshold nature of issues raised by CUPE, the first stage focused on CUPE's employer influence/domination and appropriateness objections. At the end of the hearing I advised the parties that a quick decision would be issued in keeping with the expedited nature of the proceeding. To meet that objective I have considered all the evidence and submissions but only set out the facts, arguments and analysis necessary to make this determination. Given the outcome of CUPE's appropriateness objection it is not necessary to address the argument that APSA is employer dominated or influenced.
II. FACTUAL BACKGROUND
¶ 6 SFU employs about 3,600 persons and offers undergraduate, graduate and post-graduate education to about 24,000 students at three campuses. The University's administrative structure is broadly organized under academic and non-academic divisions. Each division is in turn managed by a complex and multi-layered bureaucracy.
¶ 7 As it presently stands, there are three certified bargaining agents at SFU. CUPE represents office, clerical and technical (including laboratory) employees. Janitorial, maintenance and service employees are represented by the Poly-party union. The Teaching Support Staff Union ("TSSU") represents sessional instructors.
¶ 8 Eight unions are certified to represent employees of eight employers that do business at SFU campuses. For example, CUPE Local 2396 is certified to represent employees of the Student Society.
¶ 9 The Faculty Association represents faculty in negotiations with SFU. The Faculty Association is not a certified bargaining agent.
¶ 10 APSA is a society incorporated for the purpose of negotiating its members' terms of employment with SFU. In Simon Fraser University, BCLRB No. B293/98 the Board observed that, "APSA is not a trade union and does not purport to negotiate a collective agreement as defined under the Code": para. 19. However, SFU has recognized APSA as the representative of its administrative and professional employees since December 1982 (the "group" or the "APSA group"). The group presently includes about 530 members. SFU and APSA have since negotiated terms of employment (the "Basic Agreement") setting out terms of employment as well as administrative policies governing the APSA group.
¶ 11 Persons in the proposed unit work at all three campuses. They are present throughout virtually all of the University's operations, and generally work in the middle reaches of the administration. Some supervise employees in other bargaining units in addition to performing other administrative tasks. The typical member of the APSA group is highly educated (the proposed unit includes a technical group), works independently and exercises decision-making authority. For these reasons APSA has identified itself as a group of "professionals" in counter-distinction to persons in other bargaining units. Gary Hall is the President of APSA. Hall characterized the APSA group as consisting of all the "white-collar" workers not included in other certified bargaining units or the Faculty Association. Hall testified that members of APSA would likely find working under the terms of the CUPE collective agreement to be too restrictive and would reject the external control exerted by CUPE.
¶ 12 The CUPE bargaining unit includes about 850 employees. CUPE has not attempted to organize the APSA group albeit it claims that up to 200 members of the APSA group are in its unit. CUPE would not refuse to organize the APSA group provided it was approached to do so. Members of the CUPE bargaining unit successfully apply for jobs in the APSA group on a frequent basis. There is a group of technical employees in the CUPE unit and some are highly educated. CUPE participates in a pension plan with APSA and other bargaining units at SFU.
¶ 13 APSA adduced evidence relating to the practice and history of collective bargaining in the university sector. The Professional Employees Association ("PEA") was certified to represent employees of the University of Victoria on September 7, 1995. The appropriateness of the PEA unit was not contested. The unit is described as "employees in British Columbia who are employed to perform Administrative and Academic Professional duties except professional librarians, faculty and those covered by Certifications held by Locals 957 and 951 of the Canadian Union of Public Employees". On March 31, 1998 CUPE Local 4163 was certified to represent a fourth bargaining unit of academic support employees at the University of Victoria. Again there was no dispute about whether this unit was appropriate for collective bargaining.
¶ 14 Since 1995 the PEA has negotiated three collective agreements with the University of Victoria without a strike or lockout. Thomas Gore is a member of the PEA executive at the University of Victoria and is familiar with the history of the PEA's collective bargaining relationship with the University of Victoria. Gore testified that the certification of the PEA led to greater stability but only in the sense that it has contributed to a more supportive, collaborative and satisfying workplace for PEA members. Strikes, lockouts and jurisdictional disputes have not been significant features of the labour relations environment at the University of Victoria before or after the certification of PEA.
¶ 15 There have been seven strikes by unions bargaining with SFU as employer over the past twenty-nine years. Four of those disputes occurred between 1974 and 1979 and three occurred since 2000. There have been five further occasions where strike votes were taken and strike notice served in collective bargaining with SFU.
III. POSITIONS OF THE PARTIES
¶ 16 APSA says the proposed unit is appropriate for collective bargaining when assessed against the six factors identified in Island Medical Laboratories Ltd., BCLRB No. B308/93 (Leave for Reconsideration of IRC No. C217/92 and BCLRB No. B49/93), (1993) 19 CLRBR (2d) 161 ("IML"). Those factors are as follows: 1) similarity of skills, interests, duties and working conditions; 2) the physical and administrative structure of the employer; 3) functional integration; 4) geography; 5) the practice and history of the current collective bargaining scheme; 6) the practice and history of collective bargaining in the industry or sector: IML at page 192.
¶ 17 APSA submits that employees in the proposed unit work under a common framework of employment conditions, perform similar duties, share common interests and are similarly situated within SFU's physical and administrative structure. There is no functional integration of employees in and out of the proposed unit. APSA does not view the factor of geography as relevant to the analysis.
¶ 18 APSA says there is no evidence to suggest that certifying an additional unit at SFU would contribute to labour relations instability and notes that it is not SFU but CUPE that advances this position. APSA points to its relationship with SFU over the years and the existence of a relatively calm labour relations climate at the University despite the existence of multiple units. Given this context APSA contends that certifying one more unit will not contribute to instability. APSA says these factors, combined with the practice and history of a separate PEA unit at the University of Victoria, rebuts the presumption against multiple units enunciated in IML. APSA says the relevant sector under the sixth IML factor includes universities in British Columbia and observes that the PEA (at the University of Victoria) is the only union certified to represent professional and administrative employees in the university sector.
¶ 19 SFU takes no position regarding CUPE's appropriateness objection.
¶ 20 CUPE argues that APSA has not satisfied its burden to rebut the presumption against the proliferation of bargaining units. Therefore the unit is not appropriate for collective bargaining and the application should be dismissed. CUPE points to its ongoing claim that a large number of the APSA group belong in its unit and says that it is willing to organize the remaining employees in the proposed unit. Hence, there is no concern that APSA members will be denied access to collective bargaining. CUPE also says that because its members work closely with members of the proposed unit that they are functionally integrated. In CUPE's submission, these factors weigh against the application.
¶ 21 CUPE says that APSA failed to draw an adequate causal connection between the certification of a PEA unit at the University of Victoria and the incidence of labour relations instability (strikes/lockouts/jurisdictional disputes) with that employer. Moreover, CUPE disputes APSA's contention that the universities comprise the relevant sector under the sixth IML factor.
¶ 22 Lastly, CUPE emphasizes that the potential for more labour disputes at SFU engages an important public interest component given the wide-ranging effect of these disputes on the community served by the institution.
IV. ANALYSIS AND DECISION
¶ 23 The parties referred to a number of Board decisions in their submissions about the appropriateness of the proposed unit. Some of the decisions pre-date the Board's decision in IML and are of little assistance for that reason. The cases that post-date IML rest on distinct factual foundations. For the purposes of this decision it is only necessary to apply the community of interest factors and policy set out in IML.
¶ 24 APSA has demonstrated that persons in the proposed unit share a community of interest based on the first four IML factors identified above. Assuming they are employees, persons in the proposed unit work under a common framework of employment conditions, share common interests and in many cases perform similar duties. These conclusions largely flow as a natural consequence of the fact that the APSA group has negotiated with SFU for some twenty years regarding terms of employment. Given this history it is not surprising that APSA has developed an identity and culture in counter-distinction to persons outside the APSA group.
¶ 25 I reject CUPE's contention that there is significant functional integration of persons in and out of the proposed unit as defined in IML. Functional integration arises from the regular performance of shared/overlapping duties, integrated work processes or the regular interchange of employees in and out of the unit. At best the evidence demonstrates a close functional relationship between employees in and out of the proposed unit.
¶ 26 Despite the existence of a potential community of interest among persons in the proposed unit (when assessed against the first four IML factors), the outcome of this application does not turn on the first four IML factors alone. In IML the Board identified industrial stability as the most important consideration when existing units are in place with an employer. The primary rationale for this concern is simple and is borne out of the Board's real-life experience in labour relations. With each additional unit comes an additional round of collective bargaining along with the additional potential for a strike or lockout. As the number of units increases so too does the bargaining dynamic of "leapfrogging" and "whipsawing" between unions and the employer: IML at page 187-188. This dynamic further increases the potential for strikes and lockouts. In IML the Board held that the instability resulting from multiple units is axiomatic. Accordingly, there is a rebuttable presumption against multiple units with an employer. The presumption increases "markedly" with the number of units. In IML the Board's concern with the instability resulting from unit proliferation was also premised on the then Section 2(d) purpose of promoting conditions favourable to the orderly and constructive resolution of disputes between employers and unions. It is worth noting that since IML, Section 2 has been amended so that the Board now has a positive obligation to meet this objective.
¶ 27 There are three certified units in place at SFU. Accordingly, the community of interest factors governing this determination include a consideration of all six IML factors. The fifth and sixth factors boil down to the proposition that past conduct in collective bargaining sometimes provides a good prediction of future conduct in collective bargaining. If the parties (the fifth IML factor) or others in the sector/industry (the sixth IML factor) have established a record of conduct that allows the Board to reasonably conclude that an additional unit will not lead to instability, the Board may weigh this evidence along with other relevant factors to certify an additional unit.
¶ 28 Against the backdrop of this analytical framework there are a numbers of factors that do not figure prominently in the analysis. The first relates to APSA's suggestion that CUPE somehow has less of a legitimate interest with the proliferation of units than SFU. I recognize that the impact of the bargaining unit structure on SFU as an employer may differ from its impact on CUPE. SFU's interests and goals in this respect may differ from CUPE's. However, these facts do not support APSA's contention that SFU as the employer is the party primarily concerned with the issue of proliferation and that CUPE's submissions in this regard should be taken with a "grain of salt". In so far as the certification of additional units at SFU might impact the dynamic of collective bargaining at the University, CUPE's submissions deserve no less consideration than submissions that might be advanced by other parties. Moreover, the fact that employees chose to prefer one bargaining agent over another does not determine whether a unit is appropriate for collective bargaining: IML, at page 184. By parity of reasoning, when the appropriateness of a unit is contested, the Board's determination is not governed by an employer's preference for the additional unit or its decision to take no position about the issue.
¶ 29 This leads to a consideration of the fifth IML factor. APSA and SFU have bargained terms and conditions of employment for the APSA group in a multiple bargaining unit environment for some twenty years. In light of this history it is understandable how APSA might view its certification as the recognition of, or at least a natural progression from, the existing status quo. Labour relations between SFU and its certified bargaining agents have not been marked by recurring job action. Thus APSA queries how its certification could negatively impact collective bargaining at the University. However, there remains a fundamental difficulty with APSA's reliance on the history of its relationship with SFU. The basic agreement is not a collective agreement as contemplated by the Code. No one argues that APSA's relationship with SFU was a collective bargaining relationship like that arising from a voluntary recognition. APSA has never had the right to strike and SFU has never had the right to lock out APSA members to press their demands in bargaining. Consequently, the fact that APSA and SFU have peacefully coexisted in a multiple unit environment does not speak directly to whether the certification of an additional APSA unit might not contribute to instability. Accordingly, this record of conduct cannot be given significant weight under the fifth IML factor. Even if I accept the proposition that SFU has enjoyed a history of relative labour peace, the fact that three units are presently certified only increases the threshold APSA must meet to rebut the IML presumption.
¶ 30 APSA points to the experience of the University of Victoria and the PEA in its submissions about the sixth IML factor. The PEA was certified to represent a third unit at the University of Victoria in 1995 and CUPE was certified to represent a fourth unit in 1998. Since that time the PEA has negotiated three collective agreements without a labour dispute. There is evidence employees in the PEA enjoy greater work satisfaction under the present regime but this does not directly relate to the stability concerns identified in IML. Further, even if I assume that the universities comprise the relevant sector under this factor, I am still not satisfied that the PEA's relatively short experience at the University of Victoria permits a reasonable judgment about the likely consequences of certifying an additional APSA unit at SFU. Likewise, there is an equally short record of collective bargaining at the University of Victoria with four units in place. This is not the type of sector/industry practice that can be given significant weight under the sixth IML factor.
¶ 31 I recognize that the Board certified third and fourth units at the University of Victoria. In light of those outcomes it might appear incongruous to find that a fourth unit is inappropriate at SFU. The answer to any apparent inconsistency is that the applications for third and fourth units at the University of Victoria were never opposed because of proliferation. The Board hears applications for certification on an expedited basis and in the context of an adversarial as opposed to inquisitorial proceeding. Hence, a practical matter it is often the parties who define the issues in dispute. This is consistent with the Section 2(e) duty to promote conditions favourable to the settlement of disputes and the Section 2(c) duty to promote the practice of collective bargaining. The Board retains the jurisdiction to consolidate bargaining units if the parties' arrangements contribute to instability.
¶ 32 In addition to the foregoing six factors, a number of other considerations inform this analysis. While it may be true that employees in the APSA group do not prefer to belong to CUPE, employee choice is not a determinative factor. Currently, there is no real issue regarding access to collective bargaining given CUPE's stated position in this proceeding. Further, the Board has recognized that the modern day collective agreement in the public sector may encompass a broad range of employees with different skills, interests and work duties, including different professional groups: IML at page 181. Lastly, CUPE raises an important point in that the application raises a significant public interest component that weighs against the appropriateness of the proposed unit. SFU is a public sector institution, employs a significant number of people and provides an important service to the community. A number of different employers do business at SFU's campuses. Thus, labour disputes at SFU have a substantial impact on the community. When existing units are in place with an employer the predominate purpose in certifying an appropriate bargaining unit is to foster industrial peace and stability. This objective not only accounts for the interests of the parties at the bargaining table but is also designed to protect the public interest by reducing the potential for work stoppages.
¶ 33 Weighing all six IML factors I find that the proposed unit is not appropriate for collective bargaining. Therefore, the application is dismissed.
K. SAUNDERS, VICE-CHAIR
QL Update: 20030911