ONTARIO LABOUR RELATIONS BOARD. York University, Applicant v Canadian Union of Public Employees, Local 3903, Responding Party

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ONTARIO LABOUR RELATIONS BOARD Labour Relations Act, 1995 OLRB Case No: 3488-17-VO Last Offer Vote York University, Applicant v Canadian Union of Public Employees, Local 3903, Responding Party OLRB

Canadian Union of Public Employees, Local 3903, Responding Party COVER LETTER TO THE PARTIES LISTED ON APPENDIX A: The Board is attaching the following document(s): Decision - March 28, 2018 DATED:

1 ONTARIO LABOUR RELATIONS BOARD Labour Relations Act, 1995 OLRB Case No: VO Last Offer Vote York University, Applicant v Canadian Union of Public Employees, Local 3903, Responding Party OLRB Case No: VO Last Offer Vote York University, Applicant v Canadian Union of Public Employees, Local 3903, Responding Party OLRB Case No: VO Last Offer Vote York University, Applicant v Canadian Union of Public Employees, Local 3903, Responding Party COVER LETTER TO THE PARTIES LISTED ON APPENDIX A: The Board is attaching the following document(s): Decision - March 28, 2018 DATED: March 28, 2018 Website: Address all communication to: Catherine Gilbert Registrar The Registrar Ontario Labour Relations Board 505 University Avenue, 2nd Floor Toronto, Ontario M5G 2P1 Tel: Toll-free: Fax: Pg. 1 of 1

2 ONTARIO LABOUR RELATIONS BOARD OLRB Case No: VO York University, Applicant v Canadian Union of Public Employees, Local 3903, Responding Party OLRB Case No: VO York University, Applicant v Canadian Union of Public Employees, Local 3903, Responding Party OLRB Case No: VO York University, Applicant v Canadian Union of Public Employees, Local 3903, Responding Party BEFORE: Matthew R. Wilson, Alternate Chair APPEARANCES: Simon Mortimer, Lyndon Martin, Leanne De Filippis, and Kieran Dyer appearing for the applicant; Richard Blair, Raj Virk, Justin Paros, and Sandra Hudson, appearing for the responding party DECISION OF THE BOARD: March 28, The Board has received a request, dated March 27, 2018, from the Director of the Office of Dispute Resolution Services to make the necessary arrangements for a supervised secret-ballot vote on the final offer made by York University in respect to the negotiations of renewal collective agreements for three bargaining units represented by Canadian Union of Public Employees, Local 3903 ( CUPE ). The request is made on behalf of York University for a separate vote to be taken for each of the three bargaining units of employees represented by CUPE pursuant to section 42 of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended, (the Act ). The Board was asked to immediately

3 - 2 - contact the parties and meet with them to make the necessary arrangements for a supervised-secret ballot vote. 2. To be clear, it is necessary to conduct three separate votes as there are three bargaining units. 3. On March 27, 2018, the Registrar s Office directed the parties to attend to the Board on March 28, 2018 to meet with the Manager of Field Services to discuss the arrangements of the vote. The parties were advised that if they could not agree on those arrangements a hearing would convene at 1:00 p.m. 4. The parties were not able to reach an agreement on the voting arrangements. Thus, as directed by the Board, the parties made submissions on the vote arrangements. The main issue in dispute is whether the secret ballot vote should be conducted by electronic voting (occasionally referred to as e-voting). York University takes the position that electronic voting is appropriate in the circumstances. CUPE disagrees and asserts that traditional voting, in person, is the appropriate way to conduct the vote. There is also a dispute about the proper way to give notice of the vote. 5. There is some urgency to this matter. There are approximately 3,200 employees on strike in three bargaining units across two campuses of York University. Picket lines are active. Recent media reports have indicated that individuals are occupying a building in protest. Some classes have been cancelled and there has been significant disruption for the affected students. 6. The power to order a final offer vote rests with the Minister pursuant to section 42 of the Act, which reads as follows: a. 42 (1) Before or after the commencement of a strike or lock-out, the employer of the employees in the affected bargaining unit may request that a vote of the employees be taken as to the acceptance or rejection of the offer of the employer last received by the trade union in respect of all matters remaining in dispute between the parties and the Minister shall, and in the construction industry the Minister may, on the terms that he or she considers necessary direct that a vote of the employees to accept or reject the offer be held and thereafter no further such request shall be made.

4 - 3 - b. (2) A request for the taking of a vote, or the holding of a vote, under subsection (1) does not abridge or extend any time limits or periods provided for in this Act. 7. Therefore, it is not the Board that orders the vote on the terms that it considers necessary, but rather the Minister. The Board usually conducts the vote and oversees the calculation of the results at the request of the Minister. 8. Recently, the Board ordered electronic voting in the final offer vote conducted under the Colleges Collective Bargaining Act, 2008, S.O. 1990, c.5 (See College Employer Council v Ontario Public Service Employees Union, 2017 CanLII (ON LRB)). The vote taken of more than 12,000 striking employees - was held approximately one week following receipt of the application and conducted over roughly a 48-hour period. The voter turnout exceeded 90% of the bargaining unit. The results were tabulated quickly and reported back to the parties within an hour of the polls closing. 9. The parties submissions to the Board were fairly straightforward and similar to those made in College Employer Council, supra. York University argued that it would be more efficient and allow for greater participation if electronic voting was used. CUPE responded that an electronic voting process was inappropriate because it was not the traditional means of voting that its members were comfortable with. It noted the risks associated with not being able to visible identify voters, challenge ballots, and physically double check the count. 10. In the Board s view, it is desirable to conduct the three votes in a manner that is expeditious, efficient, and allows for full participation. To conduct a traditional vote while employees are on strike would require the Board to locate and book multiple off-site meeting rooms, (as there are continuing picket lines at the employer s premises), over numerous days and require the Board to send its staff to the various sites to conduct and supervise the voting process (recent amendments to the Employment Standards Act, 2000 impose restrictions on the hours of work of the Board s staff) so that more than three thousand striking employees can attend those sites. Following the vote, the Board s staff would need to spend the necessary time to manually count the ballots. The advantages of electronic voting eliminate these inefficiencies and logistical issues.

5 It is time for the labour relations community to accept the advantages of electronic voting in certain circumstances and be prepared to utilize the technological advancements in conducting the various votes that are provided for under the Act. In addition to an increasing use of correspondence and e-filing with the Board, recent amendments to the Act allow the Board to utilize electronic voting (see s. 111(2)(h.1) of the Act). The parties acknowledged that electronic voting is regularly used by the Canada Industrial Relations Board. 12. CUPE has not raised any issue that persuades the Board that its positive experience in conducting the vote through electronic balloting could not be replicated. 13. As there was no dispute that three votes would be occurring in this matter, the parties quite properly agreed on the following steps to ensure that proper notice of the vote would be given to the employees: (i) York University will post the Notice of the Vote (which includes the voting instructions) and a copy of the Final Offer on its website; (ii) CUPE will post the Notice of the Vote (which includes the voting instructions) on its website; and (ii) The Board will post the Notice of the Vote (which includes the voting instruction) and the Final Offer on its website. 14. There was disagreement about whether York University should be required to mail a copy of the Final Offer and Notice of Vote to all employees in the three bargaining units. CUPE argued that this would ensure effective notice was given to all affected employees. Leaving aside the irony of arguing for the efficacy of ordinary mail over electronic communication, in this era of electronic information and social media, the Board is confident that effective Notice of the Vote and the voting instructions can be achieved by the steps described in the aforementioned paragraph. Obviously, nothing precludes either party from utilizing other methods to inform employees of the vote. 15. Therefore, the Board s recommendation to the Minister is to conduct the three secret ballot votes under s. 42 of the Act by way of electronic voting and that such arrangements should be left to the Board

6 - 5 - to communicate with the parties in the timelines that are either agreed to by the parties or otherwise directed by the Board. 16. The Registrar s office is directed to forward a copy of this decision to the Minister s office. "Matthew R. Wilson" for the Board

7 APPENDIX A Hicks Morley Hamilton Stewart Storie LLP 77 King Street W TD Centre 39th Floor P.O. Box 371 Toronto ON M5K 1K8 Attention: Simon E. Mortimer Tel: Fax: keziah-ferreira-ally@hicksmorley.com; simon-mortimer@hicksmorley.com York University York Lanes, 276, 4700 Keele Street Toronto ON M3J 1P3 Attention: Ms. Leanne De Filippis Assoc Dir, Employee Relations York University York Lanes, 276, 4700 Keele Street Toronto ON M3J 1P3 Attention: Lyndon Martin, Dean Ryder Wright Blair & Holmes LLP 333 Adelaide Street W, 3rd Floor Toronto ON M5V 1R5 Attention: Richard A. Blair Tel: Fax: rblair@rwbh.ca; rgisonni@rwbh.ca CUPE Strike Headquarters 45 Four Winds Drive Unit Q-1 North York ON M3J 1K7 Attention: Raj Virk, Staff Representative Fax: ; Canadian Union Of Public Employees, Local Four Winds Drive Unit Q-1 North York ON M3J 1K7 Attention: Justin Paros CUPE Strike Headquarters 45 Four Winds Drive Unit Q-1 North York ON M3J 1K7 Attention: Raj Virk, Staff Representative Pg. 1 of 1

ONTARIO LABOUR RELATIONS BOARD. Labour Relations Act, 1995

ONTARIO LABOUR RELATIONS BOARD Labour Relations Act, 1995 OLRB Case No: 1956-17-VO Last Offer Vote College Employer Council, Applicant v Ontario Public Service Employees Union, Responding Party COVER LETTER