[1981] OLRB Rep. December 1772
0012-81-R Hotel, Restaurant & Cafeteria Employees Union —Local 75, Applicant, v. Filkon Food Services Limited c.o.b. as By The Way Frozen Yogurt, Respondent.
BEFORE: M. G. Mitchnick, Vice-Chairman and Board Members J. D. Bell and O. Hodges.
DECISION OF THE BOARD; August 24, 1981
- This is an application for certification in which the Board certified the applicant in separate decisions for both a "full-time" and a "part-time" unit. The respondent by letter dated July 15, 1981, now asks the Board to reconsider its decision with respect to the latter. The text of the letter is as follows:
On May 14, 1981, the Board issued its decision in the above-noted Application for Certification in which it certified the Union. This bargaining unit involved a group of restaurant employees comprised of full-time, part-time, and the summer students. The parties agreed there should be two separate bargaining units. The Respondent argued that as it planned to open an outdoor cafe in the summer of 1981, which opening would result in a significant increase in the number of employees in the part-time and student bargaining unit, the Board should apply its normal build-up principle and thereby defer consideration of the Application until the planned build-up was completed. The Board found at page two of its decision:
"The Board in most instances, in other words, does not take into account the normal ebb and flow of the work force. That is all that is occurring in the instant case, albeit for the first time because this is the first year the respondent will be operating on a "seasonal basis".
The Board went on to find that the part-time employees then employed were representative of the bargaining unit and therefore decided not to defer consideration of the application. As a result, two certificates were issued by the Board.
The Respondent has carefully considered the Board's reasons for issuing a certificate covering the employees employed for not more than twenty-four hours per week and the students employed during the school vacation period, and having done so, would ask the Board to reconsider that decision based on the following representations.
The Respondent submits when as in this instance, the Board chooses to combine part-time employees and students into one unit, it has a duty to exercise due regard for the interests of both groups. The interests of one group cannot be considered to be subordinate to the interests of the other. If the Board finds it cannot respect the interests of both groups equally in a one unit situation, then it is the respectful submission of the Respondent that the part-time and summer student employees should be separated into two units in order to ensure that an equitable result is obtained.
The Board states in Paragraph 5 of its award dealing with this matter that it is "not of the view that the desire of a "permanent" complement or part-time employees for collective bargaining (even recognizing that such employees may themselves be "students") ought to be deferred in a case such as this to await the determination of the wishes of additional students employed only during the school vacation period." This summation of the circumstances surrounding the case at hand is somewhat illusory, in the Respondent's submission, on three separate heads:
1The "permanent" complement of part-time employees is subject to the high rate of turnover typical for this industry.
Some of the additional students employed "only during the school vacation" may well stay on or return at a later date to replace those part-time employees who leave.
The length of time employed (especially in regard to the summer students) should not be a consideration, at least in industries subject to high rates of turnover.
As noted in points 1 and 2, some summer students may quite possibly be employed for as long as or longer than some part-time employees. To assign them a lesser weighting than part-time employees is unjust and flies in the face of the spirit and intent of the Labour Relations Act as evidenced in the Preamble.
"Whereas it is in the public interest of the Province of Ontario to further harmonious relations between employers and employees by encouraging the practice and procedures of collective bargaining between employers and trade unions as the freely designated representatives of employees."
The Board, in proceeding as the decision set out, completely ignores the desires of what will be approximately 67 per cent of the employees in that particular bargaining unit. In the Respondent's respectful submission, the Board appears to be proceeding in this manner on the invalid supposition that while the individuals falling within the summer student category will only be there for a limited duration, the part-time employees will be there permanently. When one reflects upon the reality of the situation, bearing in mind the previously-noted high rate of turnover, it becomes clear that the premise is inaccurate and results in an injustice to the "summer vacation" student employees.
It is submitted that in instances such as this case where;
(a) the size and date of the build-up are certain; and
(b) the industry is subject to a high rate of turnover,
the Board should, in the interest of equitable treatment of all employees involved in the bargaining unit, alter its policy as expressed in the decision in a bargaining unit comprised of only part-time employees and students employed during the school vacation period. The Respondent need not remind the Board of its more realistic approach on Applications for Certification for seasonal employees in the canning and tobacco industries. It is respectfully submitted that these two situations are comparable and as such, the Board should reconsider its earlier decision not to invoke the build-up principle and thereby delay consideration of this Application until the number of employees in the unit has reached a more truly representative figure of at least more than 50 per cent of the number of employees to be employed in the bargaining unit. This, it is submitted, would be the only fair and consistent approach.
In summary, the Respondent submits that the build-up of the part-time and summer student bargaining unit is not a cyclical fluctuation as found by the Board, but rather, a permanent build-up of the bargaining unit for which a certificate was issued.
The policy grounds for combining part-time employees and vacation students in a single bargaining unit are set out by the Board in Plummer Memorial Hospital, [1979] OLRB Rep. May 433. In the present case the description of the bargaining units reflected as well the agreement of the parties, the second unit being made up of persons regularly employed for not more than 24 hours per week, and students employed during the school vacation period. In dealing with units which include students employed during the school vacation period, the Board historically has not permitted a cyclical increase in the number of students to be employed during that period to cause the deferral of an application for certification made at a time other than that period. With respect to the instant application, the Board noted in its original decision that the number of persons employed at the time the application was made is representative of the employee complement in the unit for approximately ten months out of every year. The respondent now asks the Board to reconsider on the basis of findings and assumptions as to the rate of turnover and the pattern of employment of part-time employees at this establishment, which, even if material, are not supported by any evidence presented to the Board at the hearing.
Having reviewed the submissions of the respondent, the Board finds no basis to reconsider its decision of May 14, 1981, wherein it refused to exercise a discretion to defer immediate processing of an otherwise timely application.