Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 91 v. Inter-City Bandag (Ontario) Limited
[1980] OLRB Rep. March 324
2128-79-R Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 91, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Inter-City Bandag (Ontario) Limited, Respondent, v. Group of Employees, Objectors.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.
APPEARANCES: Paul Brennan and Ralph Wedge for the applicant; J. Forbes-Roberts for the respondent; no one for the objectors.
DECISION OF THE BOARD; March 24, 1980
1This is an application for certification.
4The respondent has a history of employing students in the summer vacation period, but no history of employing part-timers (persons regularly employed for not more than 24 hours per week). The parties reached agreement on the following bargaining-unit description:
"All employees of the respondent working at Kingston, Ontario, save and except foreman, persons above and rank of foreman, students employed during the school vacation period, office and sales staff."
5The parties were advised that there was some question as to whether or not the Board would accept the above-described unit. While the Board will always take into account an agreement reached by the parties, the Board is not bound by that agreement, and may in fact decline to accept it if, in the Board's view, such agreement may do violence to overriding considerations of labour relations policy. It is ultimately for the Board to determine the unit of employees that is appropriate for collective bargaining, pursuant to its mandate set out in section 6(1) of The Labour Relations Act. (Fonthill Lumber Ltd., 64 CLLC ¶16,305; Tamco Limited, [1974] OLRB Rep. Nov. 764.)
6The Board's tendency, at least in recent times, has been to link students with part-time employees in order to make available to students a second bargaining unit, apart from the full-time unit, which will have some viability as a bargaining structure. The problem with the agreement of the parties in the present case is that future part-timers (if any) are, by the lack of an exclusion, automatically subsumed within the bargaining unit created by this application, leaving the students no opportunity to form a subsequent bargaining unit composed of any employees other than themselves.
7The Board gave careful consideration to this problem in Plummer Memorial Public Hospital, [1979] OLRB Rep. May 433. There, the application was for a unit of part-time employees, from which both parties agreed to exclude students employed during the school vacation period. The Board had this to say:
"Where students employed during the school vacation period are excluded from a bargaining unit of full-time employees and an application for part-time employees is filed it is the practice of the Board to include both the part-time employees and the students employed during the school vacation period in the bargaining unit. The Board's practice is predicated upon its belief that students employed during the school vacation period could not form a viable bargaining unit standing alone and even if they could, the result would be to create an unduly fragmented situation. While the Board is receptive to agreements of the parties in respect of bargaining unit descriptions it will not accede to these arrangements where the result is to do violence to its policies. The Board is of the view that the agreement of the parties in this case to exclude students employed during the school vacation period from a unit of part-time employees would do fundamental violence to the policy of the Board in this regard..."
Accordingly, the agreement of the parties was rejected, and the applicant was certified for a bargaining unit composed of both part-time employees and students employed during the school vacation period.
8As Plummer was the first clear articulation of the Board's policy not to sever part-time employees and students, even where the parties agree, the Board accepted an agreement of the parties to exclude students from a part-time unit in The Regional Municipality of Peel, Board File No. 0919-79-R, a case already before the Board at the time the Plummer decision was issued. Since that time however, the Board has been quite rigid in its adherence to the "tandem" principle with regard to part-time employees and students. Thus in Dominion Steel Export Co. Ltd., [1979] OLRB Rep. Oct. 953, the Board excluded both students and part-time employees from a full-time "all employee" unit, even though the employer had a history of employing students only, and not part-timers. And in Banvil Limited (unreported — Board File No. 1052-79-R), a case exactly analogous to the present one, the parties had agreed to exclude students but not part-timers from a full-time bargaining unit, on the basis that the employer had a history of hiring only the student category. Notwithstanding the agreement of the parties, the Board applied the tandem principle and described the full-time bargaining unit so as to exclude both students and part-time employees.
9It must be recalled that Plummer dealt with a part-time application. As can be seen, however, the Board's concerns expressed in Plummer over the availability for students of a viable bargaining structure (as well as the potential for fragmentation), have led the Board in subsequent instances to exclude from a full-time bargaining-unit description a non-existent category, i.e. part-time employees, contrary to its normal aversion to such a practice, and even to the agreement of the parties. Accordingly, the Board is of the view that its tandem principle relating to part-time employees and students ought to be less rigidly applied, and will do so both in dealing with full-time and with part-time applications. Where the parties are able to agree on the part-time/student question, whether it be to combine or sever the two groups (and whatever the employment history may be), the Board will, in the absence of special circumstances, accept that agreement.
10Where there is a history of hiring only one or the other of the two groups, the Board will tend, in the absence of agreement by the parties, to exclude the "existent", but not the "non-existent" group from a full-time unit. Where, however, a full-time unit excludes part-time employees and students, and an application is made for the part-time unit, the Board (again in the absence of agreement by the parties) will tend to keep the two categories combined, even though only one "exists", in order to avoid undue fragmentation.
11Similarly, where both groups exist and there is no agreement between the parties, the Board will likely treat the two groups in tandem, having regard to the community of interest which often exists between the two, as well as the usual concern over fragmentation.
12In the present case, therefore, the Board has no difficulty accepting the bargaining unit agreed upon by the parties to this application.
13The Board therefore finds that all employees of the respondent working at Kingston, Ontario, save and except foreman, persons above the rank of foreman, students employed during the school vacation period, office and sales staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
15A certificate will issue to the applicant.