Local 323T, Bakery, Confectionery & Tobacco Workers International Union v. VS Services Ltd.
[1980] OLRB Rep. March 380
1977-79-R Local 323T, Bakery, Confectionery & Tobacco Workers International Union, Applicant, v. VS Services Ltd., Respondent.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. D. Bell and O. Hodges.
APPEARANCES: Morris Zimmerman, Charles Ernest Hill, Robert Conway and Sean Kelly for the applicant; M. Kane for the respondent.
DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER J. D. BELL; March 12, 1980
This is an application for certification.
At the outset, the applicant was required to prove its status as a trade union within the meaning of The Labour Relations Act.
The evidence establishes that the Bakery, Confectionery & Tobacco Workers International Union arose out of the merger in August 1978 of the Tobacco Workers International Union of America and the Bakery and Confectionery Workers International Union of America. Prior to the merger, bargaining rights for the Imperial Tobacco Company's employees in its plant at Guelph, Ontario were held by Local 323 of the Tobacco Workers International Union of America. Following the merger, a new charter was issued by the parent body in the name of Local 323T, Bakery, Confectionery & Tobacco Workers International Union, the present applicant. The "new" Local has already been recognized by Imperial Tobacco for its own production employees.
Having regard to all of the evidence, the Board is satisfied that the applicant is a trade union within the meaning of section 1(1)(n) of The Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that all employees of VS Services Ltd. at the Imperial Tobacco plant, Woodlawn Road, Guelph, save and except unit manager, supervisors and persons above the rank of supervisor, office staff, persons regularly employed for not more than twenty-four hours per week, and students employed during the school vacation period, constitute a unit of employees appropriate for collective bargaining purposes.
A certificate will issue to the applicant.
DECISION OF BOARD MEMBER O. HODGES:
I dissent.
The applicant had applied for a bargaining unit which excluded "persons employed less than 24 hours a week". The unit proposed by the respondent in its reply excluded "persons regularly employed for not more than 24 hours per week and students". At the hearing the applicant agreed to also exclude students as sought by the respondent. The respondent advised the Board that neither part-time employees nor students were employed on the date of application or at the time of the hearing, and that there was no history of employing either category.
Under section 6(1) of the Act, the Board is required to determine the unit of employees that is appropriate for collective bargaining upon an application for certification. Where the parties have reached agreement on the description of the bargaining unit, the Board will take into consideration any such agreement of the parties in determining the appropriate bargaining unit, though not if it contravenes a Board policy. The Board is never bound by an agreement between the parties. (See Tamco Limited, [1974] OLRB Rep. Nov. 764.)
The question of the Board's general policy regarding part-time employees and students has been raised in several recent cases. This is an appropriate occasion to outline my position on this matter.
It is my opinion that when the schedules filed by an employer do not contain the names of persons designated as "regularly employed for not more than 24 hours per week" and where neither party requests the exclusion of a part-time category, the Board should not question the parties as to whether a part-time category is to be excluded.
Where the schedules filed by an employer do contain the names of persons designated as "regularly employed for not more than 24 hours per week", the Board should, at the time the bargaining unit is being discussed, ask the parties whether they wish to exclude such persons. The number of persons in the part-time category should not be revealed at this stage, even in response to a specific inquiry.
Where either party asks for exclusion of the part-time category and the schedules filed by the employer do not contain the names of persons designated as "regularly employed for not more than 24 hours week", the Board should ask whether the employer has had such persons employed at any time. When there has been a history of employing persons in the part-time category, the Board should ascertain:
(a) How many such persons have been employed;
(b) How recently such persons were employed;
(c) Whether such persons may be employed again and if so, when is that likely to be.
- When the schedules are filed after the date of the hearing and they contain the names of persons designated as "regularly employed for not more than 24 hours per week", but the respondent has not appeared at the hearing, and:
(a) No reply has been filed by the respondent prior to the hearing, or
(b) A reply has been filed which makes no reference to the exclusion of the part-time category, and
(c) The applicant has not requested the part-time exclusion, the applicant is to be informed that the names of such persons do appear on the schedules, if the applicant's entitlement to certification or to a vote may be affected by the inclusion of such persons in the bargaining unit. In these circumstances the applicant will be requested to make representations as to whether it does or does not want the inclusion of such persons in the bargaining unit.
In the situation set out in Para. 8, the respondent having failed to file the requisite schedules before the hearing, will not normally be afforded an opportunity to make representations as to whether or not such persons are to be included in the bargaining unit.
No question should be asked concerning the wishes of the parties as to the exclusion of students employed during school vacation periods, unless such an exclusion is specifically requested by one of the parties.
Where one of the parties asks for the exclusion of students employed during the school vacation periods, the Board should ascertain the employment history of students along the lines indicated in Para. 7.
Where only one name appears on Schedule "B" as being "regularly employed for not more than 24 hours per week", and the applicant trade union requests the inclusion of part-time employees in the bargaining unit, and the part-time employee is a member of the union, the bargaining unit should be described in the endorsement so as to include the part-time employee.
In circumstances where employees have been engaged for only a short time, as at a new manufacturing facility, and the stage of development or the period of the year when part-time employees or students are likely to be employed has not been reached, the Board should not find these circumstances a sufficient consideration to warrant a departure from the general principle that such classifications are to be included in a bargaining unit where the employer has not had persons in such classifications in his employ prior to or at the time of the application. It appears that this general principle has been followed for many years and until very recently, as for example, in the instant case.
It is my view that the above-described rationale and procedure previously followed by the Board was effective and fair. It is my opinion that the current practice in the matter of the exclusion of part-time and student categories merits reconsideration. For those reasons and following my reasons in Jutras Die Casting Limited, Board File No. 1974-79-R, I would reject the agreement of the parties to exclude part-time employees and students, and I would not exclude those categories from the bargaining unit.
In the particular circumstances of this case, where the applicant trade union is the incumbent bargaining agent for the production employees of the Company (Imperial Tobacco Company), which has awarded a contract for the catering services of the respondent herein (VS Services Ltd.), I accept the agreement of the parties to restrict the certification to the premises of the host company who have contracted for the services of the respondent employer.