Ontario Association of Weight Counsellors v. Weight Loss Inc., 1980 CanLII 890

Ontario Association of Weight Counsellors v. Weight Loss Inc.

[1980] OLRB Rep. June 928

0176-80-R Ontario Association of Weight Counsellors, Applicant, v. Weight Loss Inc., Respondent.

BEFORE: Rory F. Egan, Vice-Chairman, and Board Members T. G. Armstrong and C. A. Ballentine.

APPEARANCES: B. P. Bellmore for the applicant; W. J. McNaughton and E. Foote for the respondent.

DECISION OF THE BOARD; June 6, 1980

1. This is an application for certification in which the applicant was required to estab­lish its status as a trade union within the meaning of section l(l)(n) of The Labour Relations Act.

2. A question was raised at the hearing with respect to the failure of the founding group of employees to confirm the election of officers who had been elected prior to the adop­tion of the constitution. The whole transaction of election of officers, adoption of the constitu­tion and the signing of members occurred at the same meeting which was held on March 26, 1980. As the Board has said in similar cases, it would be overly technical to insist upon a rigid sequence of events when the whole transaction is carried out at the same meeting. In the pre­sent case, as already noted, all steps were taken at the one meeting and the failure to reconfirm the officers does not constitute grounds for denying the applicant of status as a trade union.

3. A further objection was raised with respect to the membership evidence since the documents presented as evidence of membership were undated. The Board, having regard to the definition of "member" and "membership" set out in section 1(l)(j) of the Act in the follow­ing terms:

"l.—(l) In this Act,

(j) 'member', when used with reference to a trade union, includes a person who,

(i) has applied for membership in the trade union, and

(ii) has paid to the trade union on his own behalf an amount of at least $1 in respect of initiation fees or monthly dues of the trade union,

and 'membership' has a corresponding meaning;"

and it being plain that the membership evidence indicated an application and the payment of $1.00 by the employees concerned, heard oral evidence to establish the dates at which the cards were signed as evidence substantiating the written evidence, pursuant to section 48(2) of the Rules of Procedure. The Board is satisfied that none of the membership cards were signed prior to the founding meeting and none were signed or filed after the terminal date. The membership cards are accordingly accepted as proper evidence of membership in the appli­cant.

4. The Board accordingly finds that the applicant is a trade union within the meaning of section l(l)(n) of the Act.

5. The applicant seeks to be certified as bargaining agent for all employees of the re­spondent below the rank of Clinic Director at the respondent's clinics at Hamilton, Burlington and London.

6. The respondent proposes that there be three separate bargaining units with each confined to the clinics in the cities of Hamilton, Burlington and London respectively.

7. The respondent also proposed that the units be described as comprising all regis­tered and graduate nurses at each of the municipal clinics. This latter request was based upon the insubstantial grounds that a bargaining unit of the employees of the respondent at St. Catharines represented by the Ontario Nurses' Association is so described. As the Board indi­cated at the hearing, an all-employee unit, subject to certain exemptions set out later, is appro­priate in the circumstances.

8. In support of its contention that the bargaining unit should cover the Municipalities of Hamilton, Burlington and London as one unit, the applicant cited the Adams Furniture Co. Ltd. case,[1975] OLRB Rep. June 491. That case dealt with the coverage of several municipa­lities in one bargaining unit. In the Adams case the Board dealt with an application for certifi­cation in which the applicant sought a unit comprising all employees of the respondent in the Regional Municipality of Niagara and Dunnville. The Board found a community of interest to exist between employees in the municipalities of Welland, Port Colborne, Fort Erie (which are in the Regional Municipality) and Dunnville which is just outside the regional municipality. The Board also found a significant degree of interchange of employees between the stores in these municipalities and a significant degree of administrative control. On that basis the Board found that employees at Welland, Port Colborne, Fort Erie and Dunnville (only one full-time person was employed at the latter) comprised an appropriate unit. At the same time, the Board found that employees at Niagara Falls and St. Catharines, both of which are in the Regional Municipality of Niagara, did not have a community of interest and separate units for each of these cities were found to be appropriate.

9. In the present instance the municipalities involved are not part of a common muni­cipal region nor does any situation exist similar to that at Dunnville. There is no suggestion of any interchange between the employees in the municipalities, significant or otherwise, in the instant case so that notwithstanding the fact that there is general overall management of the individual offices, and the work is similar, the Board is not persuaded that there is a commu­nity of interest between the employees in the three separate municipalities such as to cause the Board to find that the employees in the three cities form an appropriate combined bargaining unit. (See Canada Trustco Mortgage, [1977] OLRB Rep. June 330).

10. The Board accordingly treats the application as relating to three separate bargain­ing units of employees of the respondent at Hamilton, Burlington and London respectively.

11. There was disagreement between the parties as to exemptions from the bargaining unit claimed by the respondent. The latter seeks to exclude Area Director, Assistant Area Director, office and sales staff and persons regularly employed for not more than 24 hours per week. The applicant agrees to the exclusion of Director, but objects to the exclusion of certain persons as "sales staff" and 24-hour people. The respondent has persons regularly employed for not more than 24 hours per week and the Board grants the request for their exclusion from the units of full-time employees.

12. The persons whose status is in dispute are Sarah C. Bethune, classified as Assistant Director, employed at Hamilton, whose exclusion is sought under section l(3)(b) of the Act, and Sandar L. McGlynn-McVey, whose exclusion is sought on the grounds that she is a sales person. She is employed at London. A third exclusion was sought for Ricky Wraight as a sales person employed at Burlington. Wraight, however, is in the group of employees regularly employed for not more than 24 hours per week. This group does not have sufficient member­ship to entitle it to certification or a vote in any event, so that the request need not be inquired into further.

13. Accordingly, the Board appoints Ms. B. McLean, Labour Relations Officer, to inquire into the duties and responsibilities of Sarah C. Bethune and Sandra L. McGlynn­McVey, and report to the Board thereon.

14. The Board has determined, however, that the applicant's right to certification at Hamilton cannot be affected by the Board's ultimate decision as to the inclusion or exclusion of the Assistant Director. On the basis of all the evidence before it, the Board is satisfied that, in any event, more than fifty-five per cent of the employees of the respondent in the bargaining unit at Hamilton, at the time the application was made, were members of the applicant on May 5, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertain­ing membership under section 7(1) of the said Act.

15. Accordingly, the Board, pursuant to its discretion under section 6(la) of the Act and pending the final resolution of the composition of the bargaining unit, certifies the appli­cant as the bargaining agent for all employees of the respondent at Hamilton, save and except Area Director, persons above the rank of Area Director, office and sales staff, and persons regularly employed for not more than 24 hours per week and, pending the resolution of the status of this category, excluding as well the Assistant Director.

16. A formal certificate must await the final determination of the appropriate bargain­ing unit.

17. The Board finds that all employees of the respondent at Burlington, save and except Area Director, persons above the rank of Area Director, office and sales staff, and persons regularly employed for not more than 24 hours per week, constitute a unit of employees of the respondent appropriate for collective bargaining.

18. The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the applica­tion was made were members of the applicant on May 5, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

19. A certificate will issue to the applicant.

20. The final disposition of the application with respect to the employees at London must await the outcome of the report of the Labour Relations Officer with respect to the duties and responsibilities of Sandra L. McGlynn-McVey.