New York Institute of Technology, (the “Employer”) and Education and Training Employees Association, (the “Union”)
Ken Saunders V-Chair
Judgment: September 13, 2010
Docket: B151/2010
Counsel: Ib S. Petersen, for Employer
Phillip Legg, for Union
Ken Saunders V-Chair:
- Nature of Application
1 The Union applies under Section 18 of the Labour Relations Code (the “Code”) to be certified as the bargaining agent for a unit described as “teaching faculty at 1700 – 701 West Georgia Street, Vancouver, BC except administration support staff”.
2 There are three issues for determination: 1) is the proposed unit appropriate for collective bargaining; 2) is Dean Goddard an employee in the proposed unit; and 3) is Kimberly Burkhardt an employee in the proposed unit, either for the purposes of determining the Union’s threshold support or for the purposes of the representation vote?
3 This decision is based on uncontested factual assertions in the parties’ written submissions.
- Background
4 The Employer operates a private post-secondary school at campuses throughout the world. The Vancouver campus is managed by a Regional Associate Dean and four full-time administrative staff.
5 The proposed unit includes members of the teaching faculty. The teaching faculty ordinarily includes two or three residents of the United States. These persons are assigned temporary work at the Employer’s Vancouver campus under the terms of a collective agreement (the “Collective Agreement”) between the Employer and the American Association of University Professors (”AAUP”). The United States National Labour Relations Board has certified the AAUP to represent the Employer’s academic staff. The bargaining unit established under the Collective Agreement includes “all full-time and regular part-time members of the instructional and research faculty…” employed at various campuses located in the state of New York. The Collective Agreement is comprehensive in that it provides, among other things, for rates of pay, promotional increments, benefits coverage, the review of discipline/discharge as well as access to binding grievance arbitration.
6 The United States residents in the proposed unit and employed under the Collective Agreement are Benjamin Khoo, Leslie Bobb, and Abram Poczster. Their jobs include a short-term, temporary work assignment at the Vancouver campus.
7 Burkhardt was employed as a part-time, casual instructor until the Employer ended her employment on June 18, 2010. The Employer asserts, and I accept as a fact for present purposes, that Burkhardt indicated that she was prepared to resign on or about June 2, 2010. However, Burkhardt did not carry out her resignation.
8 The Board received the Union’s application for certification on June 11, 2010. The Employer ultimately dealt with the matter of Burkhardt’s employment status in a letter dated June 18, 2010. That letter indicates that Burkhardt’s employment was terminated “effective immediately”.
9 A representation vote was held in respect of the Union’s application on June 21, 2010. All ballots were individually sealed pending adjudication.
10 Dean Goddard taught courses from 2003. The Employer repeatedly requested an updated resume from Goddard. Goddard failed to comply. As a result, Goddard was not engaged to teach when the Union filed its application for certification.
III. Analysis and Decision
- Is the Proposed Unit Appropriate for Collective Bargaining?
11 The Employer submits that the proposed unit is inappropriate for collective bargaining because it includes foreign domiciled teachers whose terms of employment are governed by the Collective Agreement. Among other things, the Employer argues that including the foreign nationals would generate conflicts and difficulties in the negotiation and administration of a collective agreement for the proposed unit. The Employer asks that the application be denied or in the alternative, that the unit description be amended to exclude foreign domiciled professors governed by the Collective Agreement.
12 The Union submits as follows:
[The Employer] NYIT operates a campus in Vancouver that employs both full-time (Frank Lorne) and adjunct faculty. Our certification application would cover both full and adjunct faculty. The amount of work available to adjunct faculty varies considerably depending on their specific discipline and capacity to take on additional teaching assignments. As well, the amount of teaching assignments available at the Vancouver campus is a function of the recruitment effort by [the Employer] NYIT, especially within the international student market. The use of US-based faculty is a function of the regulatory requirements of the BC Ministry of Advanced Education. To be considered a degree granting university operating in BC, a percentage of courses must be taught by full-time continuing faculty. Currently [the Employer] NYIT has opted to fill that regulatory requirement by having US-based faculty teach at their Vancouver campus. However, given [the Employer’s] NYIT’s strategic plan (Paragraph 7) of becoming a global university by 2030, it is likely that more of the full-time requirements will be met by Vancouver-based faculty. The more important consideration here is that questions about how teaching assignments are allocated between faculty based in Vancouver and those dispatched from the New York-based campuses is a matter that will be resolved through collective bargaining.
13 I am not satisfied on the submissions before me that a bargaining unit including the foreign national employees is conducive to the orderly and constructive negotiation or administration of a collective agreement. The foreign nationals’ terms of employment for work done at the Vancouver campus is governed by the Collective Agreement. It follows that the Employer and foreign national employees, who act in compliance with the collective agreement and Code provisions governing the proposed unit, may be acting inconsistent with the Collective Agreement and vice versa. For example, individuals lawfully on strike under the Collective Agreement may be simultaneously compelled to work under a collective agreement for the proposed unit. These employees would be exposed to potential repercussions with their respective unions if they ignore the dictates of one regime out of respect for another. Other examples of discord arise with respect to the administration of discipline and discharge as well as collective agreement provisions governing hours of work, etc. There is also a real potential for conflicting arbitration awards between the collective agreement regimes. This serves to undermine the effectiveness of grievance arbitration as a method for the final and conclusive resolution of disputes. For these reasons I do not find the proposed unit as it is presently described, is appropriate for collective bargaining.
14 The Union enjoys the requisite support to proceed with a vote if the foreign nationals (Khoo, Bobb, and Poczster) are excluded from the unit. In order to facilitate access to collective bargaining and in view of the above-noted appropriateness concerns I accept the Employer’s alternative position. I conclude that the proposed unit description should be amended to exclude the following group: foreign domiciled professors employed under the collective agreement between the Employer and the American Association of University Professors. In making this determination I record for greater certainty that Frank Lorne is included in the proposed unit.
- The Status of Dean Goddard
15 I conclude on the submissions before me that Goddard was not an employee on the date the Union filed its application for certification. Therefore, Goddard is not counted as an employee, both for the purpose of determining whether the Union has shown the threshold membership evidence to order a vote or for the purpose of casting a ballot at the representation vote.
- The Status of Kimberly Burkhardt
16 The Board’s policy is to determine a union’s membership support as of the date the Board receives the application for certification. The general rule is that persons who count as “employees” on the date of the application but who are not employed on the date of the representation vote are not eligible to cast a ballot: Naya Inc., BCLRB No. B294/98, paras. 63-65. No exceptional circumstances justify a departure from this rule in the present case. Accordingly, and on the basis of the factual determinations set out above, I conclude that Burkhardt is an employee in the proposed unit for the purposes of determining whether the Union met the threshold to order a vote. Burkhardt’s ballot does not count for the purposes of the representation vote.
- Conclusion
17 The proposed unit description is amended as set out above. The Union has the threshold membership evidence to proceed with a representation vote. Ballots cast by Goddard and Burkhardt will not be counted.