Appearances:

Shannon Joly, for TRU.

Jamie McPherson, for CUPE.

G. James Baugh, for TRUFA.

I.   NATURE OF APPLICATION

¶ 1      This application was filed by the University College of the Cariboo Faculty Association (now TRUFA). TRUFA seeks a declaration under Section 139 of the Labour Relations Code (the "Code") that a number of positions transferred from the Open Learning Agency ("OLA") to the University College of the Cariboo are included in the TRUFA bargaining unit rather than in the CUPE bargaining unit.

¶ 2      Since the transfer, the University College of the Cariboo has been renamed Thompson Rivers University (TRU) and will be referred to as such for the remainder of this decision.

II.  BACKGROUND

¶ 3      On April 1, 2005, British Columbia Open University ("BCOU"), which was part of the OLA located in Burnaby, was transferred to TRU, located in Kamloops.

¶ 4      B.C. Government and Service Employees' Union ("BCGEU") members who were employees of BCOU were offered the opportunity to transfer to TRU; continuing to work in Burnaby until some time in 2006 when facilities were to be available at TRU in Kamloops. In fact, at least one of the positions in dispute, that of the Structured Information Developer, was not transferred to Kamloops until the summer of 2007.

¶ 5      Two memorandums of agreement were signed regarding transferring employees. The first, dated February 9, 2005 was between the two Employers, TRU and OLA, and two Unions, BCGEU and CUPE. The second, dated March 22, 2005, was between the same two Employers and BCGEU and TRUFA.

¶ 6      Each memorandum of agreement ("MOA") sets out the terms upon which the affected employees would be transferred from the OLA to TRU, as well as dealing with jurisdictional assignments.

¶ 7      A number of jurisdictional assignments remained in dispute following the negotiation of the TRUFA MOA. The application before me is in respect of four positions which TRUFA says have been improperly assigned to the CUPE bargaining unit.

¶ 8      Regarding jurisdictional assignments, the TRUFA MOA provides as follows:

¶ 9      The parties failed to agree on the expedited process contemplated in clause 15 with the result that TRUFA brought the present application.

¶ 10      During the course of this proceeding, the incumbent of each of the four disputed positions testified regarding the duties they currently perform. Each testified, as well, that they believed that their community of interest lies with TRUFA rather than CUPE.

¶ 11      TRUFA called evidence to support the assertion that the work performed by the four incumbents was work typically done by members of the TRUFA bargaining unit, while CUPE called evidence to support the assertion that the work being performed by the incumbents is work that is typically done by members of its bargaining unit.

¶ 12      TRUFA is certified as the bargaining agent for employees in a unit composed of:

¶ 13      The CUPE certification is for a unit composed of:

III. ANALYSIS AND DECISION

¶ 14      The parties made various arguments and referred me to a number of authorities in support of their respective positions. I have considered the arguments and authorities but do not find it necessary to set them out in detail for purposes of this decision.

¶ 15      As a starting point, I note that there is an area of shared jurisdiction between CUPE and TRUFA. The CUPE certification is for an all employee unit "except teaching staff". The TRUFA certification encompasses a variety of classifications, such as librarians, which would not generally be considered to fall within the teaching staff description. More particularly, the TRUFA certification includes a number of laboratory demonstrator and coordinator positions which are not teaching staff positions but have been included in the TRUFA unit by agreement. It is these demonstrator and coordinator positions, according to TRUFA, to which the positions in dispute are equivalent.

¶ 16      As noted above, the incumbent in each of the contested positions testified regarding their current job responsibilities. None of them was cross-examined. Accordingly, their evidence must be taken at face value. Position descriptions from OLA were entered in evidence regarding each position. The evidence of each incumbent centered primarily on the additional duties they now perform which are not reflected in the OLA position descriptions.

¶ 17      In determining the appropriate bargaining unit for each of the positions, I must compare the job duties of each to those of other positions in the two bargaining units and to the certification descriptions and collective agreements in order to determine where each properly falls.

¶ 18      It is unfortunate that I do not have the benefit of evidence from TRU regarding the incumbents' testimony as to the duties they are presently performing. Neither was the testimony of the incumbents tested through cross-examination. In the result, I am left with the evidence of the incumbents that they perform certain tasks but no evidence regarding the frequency or importance of those tasks in their overall duties.

¶ 19      With the agreement of both CUPE and TRUFA, a statement of agreed facts was entered in evidence by TRU. That statement of facts sets out, from the perspective of TRU, the principal duties and responsibilities of each of the disputed positions. Put another way, it is a statement of those duties and responsibilities TRU has assigned to each incumbent.

¶ 20      To some extent, the assigned duties and responsibilities set out in the agreed facts do not accord with the evidence of the individual incumbents regarding what they are actually doing. For purposes of this decision, I have preferred the evidence of the incumbents concerning the duties they actually perform to evidence of duties they have been formally assigned by the TRU, reflected in the statement of agreed facts. There is no suggestion by TRU that the incumbents are not doing the work they say they are doing. However, given the state of the evidence before me, as described above, I recommend that, regardless of my findings in this decision, the parties revisit the jurisdictional assignments of the disputed positions once TRU has finalized the job description for each of the positions.

¶ 21      Heath Hamoline, the incumbent in the disputed Senior Client Support Analyst position, has been working at TRU in Kamloops for about three years. He testified that he is performing duties formerly performed by Natasha Scott. Until March or April, 2007, Scott was the Instructional Assistant, Web-based Application at TRU. Her former position is included in the TRUFA certification. Hamoline has not been assigned to Scott's former position, nor applied on a posting for that position. However, it is not disputed that Scott's position is properly included in the TRUFA bargaining unit. Nor is it disputed that Hamoline is performing the duties formerly performed by Scott. It follows that Hamoline's position, as it presently exists should be included in the TRUFA unit rather than in the CUPE unit.

¶ 22      In making my determination regarding Hamoline's position, I am mindful of the fact that the statement of agreed facts setting out the current duties and responsibilities of the Senior Client Support Analyst, does not indicate that any of Scott's former duties have been or will be assigned to Hamoline's position. However, the uncontradicted evidence of Hamoline is that he is presently performing those duties.

¶ 23      Jeannine Lefebvre is the incumbent in the position of Structured Information Developer. She was the Structured Information Developer at OLA from 1991 until her arrival in Kamloops several months ago. Lefebvre testified that the OLA job description for the position she occupied, at that time entitled "Technical Specialist" was out of date. She prepared a job description for the Structured Information Developer position. That job description was entered in evidence but has not been endorsed by TRU.

¶ 24      The current duties and responsibilities for the Structured Information Developer detailed in the agreed facts differ, to a degree, from those set out in the job description prepared by Lefebvre. For example, the description prepared by Lefebvre states:

The statement of agreed facts states:

¶ 25      Neither the description prepared by Lefebvre nor the statement of agreed facts discloses the amount of time, if any, which might be devoted to actual instructional activities by the incumbent. However, the uncontradicted evidence of Lefebvre is that training is a vital part of her work and consumes several hours each day. The matter is not entirely free of ambiguity. Lefebvre also stated that training might not be the most appropriate term for all of the activities she encompassed within the term; suggesting that "collaborative meeting exercise" might be a more apt description of at least a part of the work.

¶ 26      On balance, I have concluded that the focus of Lefebvre's present activities is instruction and/or instructional support. This is the primary focus of the majority of positions included in the TRUFA unit. Accordingly, TRUFA is the appropriate bargaining unit for the position Structured Information Developer.

¶ 27      Nancy Wilson, the incumbent in the disputed Curriculum Editor position, testified that she moved to TRU in Kamloops in 2005. She had initially been a proofreader/copy editor at OLA and had been appointed to the position of Curriculum Editor as the result of a classification appeal. TRUFA entered a job overview document prepared by Wilson in support of its argument that her duties were more akin to those of TRUFA members than of CUPE members.

¶ 28      According to the statement of agreed facts, Wilson's key areas of accountability are copy editing; curriculum/substantive editing; and standards maintenance and development. These are typical duties of the CUPE curriculum editor position. Again, it is not clear that Wilson has been assigned, or is required to perform duties that would warrant transferring her position from the CUPE unit to the TRUFA unit.

¶ 29      Wilson's uncontradicted evidence is that she provides quality control of instructional content and pedagogy in a variety of ways, including adapting the work of course instructors, course writers and instructional designers. She is the subject expert for French and Spanish materials and revises TRU-Open Learning courses, independently or in collaboration with others to update and/or correct content. She also reviews courses produced by external instructional designers and rewrites or amends them to ensure the content is readable and pedagogically sound for open learning students and that it adheres to TRU-Open Learning policies and standards. Work of this nature has much more in common with instruction and instructional support than with the majority of classifications in the CUPE bargaining unit. I find that this position falls within the TRUFA certification.

¶ 30      I note that TRUFA has not claimed all the Curriculum Editor positions at TRU; there is at least one more than the one occupied by Wilson. Once the job description for her position is finalized, the parties should be in a position to determine whether Wilson's position is sufficiently different from the other(s) that it should remain in the TRUFA bargaining unit.

¶ 31      The final position at issue is that of the Media Producer/Director, occupied by Robert Swanson. Swanson was employed at OLA from 1998 until July 2007, when he moved to TRU in Kamloops. Swanson testified that he is part of a team that works principally with Instructional Designers and Course Writers who are generally contractors. Swanson stated that he is responsible to advise on how best to present material rather than to act as a content expert. The purpose of his advice is to ensure that the chosen media are useful in the course being taught. In summary, it is clear from his testimony that Swanson functions in an instructional support role.

¶ 32      Swanson testified that his role is equivalent to the role of the Audio-Visual Coordinator included in the TRUFA bargaining unit. He was not challenged on that evidence. Furthermore, Bob Clark, the Audio-Visual Coordinator testified that Swanson's job, as described by Swanson, is comparable in many respects to that of the Audio-Visual Coordinator. The principal difference between the two, according to Clark, is that Clark generally works with the content expert, while Swanson works with a curriculum developer who may or may not be a content expert.

¶ 33      Based on the evidence before me, I find that the position of Media Producer/Director falls in the TRUFA certification.

¶ 34      The dispute between CUPE and TRUFA has at its root, not the duties set out in the OLA job descriptions, or performed by the incumbents as BCGEU members while employed at OLA, but a new bundle of duties they are performing at TRU, which has not been officially sanctioned by a job description. Because of this, I wish to emphasize that my decision should be treated by the parties as an interim one and that the parties should revisit the matter themselves once TRU has completed the preparation of a formal position description for each position. My decision is based solely on the evidence before me regarding the duties being performed by each incumbent at this point in time.

LABOUR RELATIONS BOARD

PHILIP TOPALIAN
VICE-CHAIR

QL Update:  20071123
cp/e/qlrds