[1980] OLRB Rep. March 330
1974-79-R International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (U.A.W.), Applicant, v. Jutras Die Casting Limited, Respondent.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. D. Bell and O. Hodges.
APPEARANCES: H. Carl Anderson and Howard Powers for the applicant; Joseph Carrier and Ralph Webbe for the respondent.
DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER J.D. BELL; March 4, 1980
This is an application for certification.
The Board finds 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 the respondent in metropolitan Toronto save and except supervisors, persons above the rank of supervisor, office and sales staff, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
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 January 30, 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.
A certificate will issue to the applicant.
DECISION OF BOARD MEMBER O. HODGES:
I dissent.
The bargaining unit suggested by agreement of both parties in this case provides for the exclusion of part-time employees and students in a situation where there are no part-time employees and there has been no history of hiring part-time employees. There are no students now employed, but there is a history of hiring students. The applicant did not seek the exclusion of part-time employees or students; the agreement regarding these categories was reached at the request of the respondent at the hearing before the Board.
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 Board's former policy regarding these two groups was clearly stated in Wilson-Munroe Company Ltd., [1973] OLRB Rep. Dec. 647:
"The Board wishes to clarify a statement made to the parties at the hearing with respect to the exclusion from the bargaining unit of persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period. Where a party requests the exclusion of both categories and the employer has in his employ both categories as of the date of the application (or a past history thereof), then the Board will accede to the request. But where the Board upon the request of a party is asked to exclude only one category and there is in the employ of the employer as of the date of the application (or a past history thereof) employees of both categories, the Board will only accede to the request by excluding both categories. But where the employer has employees of only one category in his employ as of the date of the application (or a past history thereof), then the Board will accede to the request to exclude only that one category."
Recently, however, this policy has become somewhat modified.
- In Plummer Memorial Public Hospital [1979] OLRB Rep. May 433, both parties sought to exclude students from a unit of part-time employees. The Board rejected this, stating:
"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."
- In Banvil Limited, [1979] OLRB Rep. Oct. 919 there were no part-time employees and no history of hiring them. The parties agreed to exclude students; there were no students employed on the date of application, but there was a history of doing so. The Board reiterated its policy of including or excluding the two categories together when both are employed or there is a history of hiring them, then cited the reasons in Plummer Memorial Public Hospital, and said
"For the same reasons, it is the Board's practice to include in or exclude from a bargaining unit both categories if either category is present." [emphasis added]
This practice was applied in Kafko Manufacturing Limited [1979] OLRB Rep. Oct. 994; the applicants were certified for a bargaining unit comprised of both part-time employees and students, although the respondent only employed students and had no history of part-time employees.
The practice was applied again in Dominion Steel Export Co. Ltd., [1979] OLRB Rep. Oct. 953, where the facts were similar to Kafko: the respondent had a history of hiring students but no history of part-time employees — the Board excluded both categories together.
Lastly, in The Regional Municipality of Peel, Board File No. 0919-79-R, the facts were similar to Plummer Memorial, supra. The parties had agreed to exclude students from a part-time employees unit; there were students employed on the application date. However, the Board accepted the agreement of the parties in this case, having regard to, firstly, the collective bargaining history of the parties which had excluded students (a history which was consistent with the prevailing pattern in similar operations in the municipality), and, secondly, the timing of the applicant's membership campaign, which results in it being unaware of the implications of the Plummer decision for its campaign.
In summary, these recent changes which have taken place reflect the Board's conviction that, in general, students alone do not constitute a viable bargaining unit. Whereas in the past the Board would include or exclude the student category alone where there were no part-time employees or a history thereof, the Board now will describe the exclusion or inclusion in terms of both categories even though there is no history of nor are there any actual part-time employees.
However, these changes of description are merely cosmetic. In Banvil Limited, Kafko, and Dominion Steel, supra, although the exclusion is described as "part-time and students", the reality in these cases is that the only excluded employees are students; they will have difficulty bargaining effectively and appear to be an inappropriate unit by themselves according to the reasoning of the Board itself in Plummer and other cases.
This new policy is also a departure from the general principle previously followed that part-time or student 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. The Board must recognize that if they now adopt the practice of excluding nonexistent categories, they are pre-determining the bargaining rights of whole groups of people who may be hired in the future.
The Board's only alternative in cases like these would be to refuse to exclude students from the full-time unit where to do so would leave them standing alone. However, the Board has always made the exclusion when requested, presumably on the basis of the difference in interests between full-time and non-full-time employees. Furthermore, when describing the inappropriateness of student-only units, the context has been one where an alternative unit was under consideration, that is, students together with a part-time group.
If students alone will have difficulty in exercising their collective bargaining rights, it is incumbent on the Board to rectify this situation. It is clear that where there is a part-time group in existence or in the history of the employer's work force, it is most appropriate for the students to be combined with them. However, if there is no part-time group in existence or in the history of the employer's work force, the students should not be excluded from the full-time unit. This would establish a policy that the facilitation of students' exercise of their collective bargaining rights outweighs the possible disparity of interest between them and full-time workers.
One final question arose in Jutras Die Casting Limited: did the wording "students employed during the school vacation periods" which was used, rather than the usual "students employed during the school vacation period" create any problem? The answer appears to be negative. The Board discussed the meaning of "student" and "vacation~~ in United Co-operatives of Ontario, [1970] OLRB Rep. Dec. 954. A vacation is a period during which there is a formal suspension of activity, and it is common for schools to have more than one such period in the year. In addition to the summer vacation, there is usually a Christmas vacation and there is frequently a week in the spring where activities are suspended. The students employed at these times have essentially the same interests as students who are employed only during the summer vacation period. Thus it is unnecessary to make any distinctions between the two groups, and the variation in the descriptions creates no problem.
For the foregoing reasons, I would find that, in these circumstances, the agreement of the parties in this case to exclude part-time employees and students employed during the school vacation periods should be rejected. I would find that all employees of the respondent constitute a unit of employees of the respondent appropriate for collective bargaining, and note that this was the unit originally applied for by the applicant.