[1982] OLRB Rep. October 1482
1165-82-R Ontario Public Service Employees Union, Applicant, v. Industrial Resource Centre (Windsor/Essex) Inc.., Respondent
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members J. Wilson and H. Kobryn.
APPEARANCES: Barbara Linds and Bill Stammler for the applicant; R. D. Perkins and Frank Smith for the respondent.
DECISION OF THE BOARD; October 22, 1982
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The parties are agreed that the bargaining unit should be described as all office and clerical employees of the respondent at Windsor, Ontario, save and except the secretary to the general manager and persons above the rank of secretary to the general manager. While the parties have agreed on the description of the bargaining unit, they are not in agreement on who should be included in the unit.
The respondent, with the sponsorship of 30 businesses and 2 trade unions from the Windsor area and in co-operation with Canada Employment and Immigration and the Ontario Government, has established and operates a training centre in Windsor. One of the functions of the centre is to provide pre-apprenticeship training in three trades to approximately 160 persons. The persons presently in that program are already designated to be indentured to various of the 30 businesses as apprentices on completion of 44 weeks training. The parties agree that these persons are not employees of the respondent.
There is another application for certification before the Board, differently constituted, in which this applicant is seeking to represent in collective bargaining the persons who do the training of the participants in the pre-apprenticeship training program. The parties agreed in that application to a bargaining unit described as an "all-employee" type of unit from which is excluded the "office and clerical staff'. The application at hand is for office and clerical staff. The Board must resolve an issue of who is to be included in that unit. There is no dispute with respect to one person whom the respondent classifies as a program clerk, but five other persons are in dispute. The respondent characterizes these persons as "students" who are being trained in office skills in a manner parallel to the training of the 160 persons who are being prepared to enter apprenticeship training. The respondent asserts that, in the absence of apprenticeship programs for office and clerical jobs, these five students are being given "handson" experience in particular types of clerical and office functions in order to supply skills which will be needed by the supporters of the centre.
Towards the objective of supplying those skills, the respondent has entered into an agreement with the Canada Employment and Immigration Commission to sponsor and operate a program under the Commission's Canadian Community Development Projects. The respondent has contracted to provide individual training programs for two tool crib attendants, one office clerk intern, two receptionist/switchboard operators and one building maintenance man. The respondent has undertaken also to provide at least three of the students with full-time employment on completion of the project. When this application was made, there was no one in the building maintenance category.
The contract spells out the type of duties in which each person is to be trained, requires that orientation and training be provided Donna McIntyre, who is responsible under the contract for the day by day supervision of the project, and by other staff of the centre.
The contract specified also a variety of other conditions which the respondent as sponsor of the training project must satisfy. In setting forth these conditions, the contract variously refers to the students as "project employees", "employees of the project" and "employees in the employ of the project sponsor". These conditions require the respondent to:
(a) supply each student at the beginning of the project with a copy of the Project's Personnel Policies and have the student sign them;
(b) make all payments required of an employer by statute with respect to income tax, unemployment insurance, Canada Pension and Quebec Pension;
(c) accept sole responsibility for the supervision and control of the students;
(d) use the services and facilities of a Canada Employment Centre in order to fulfill the project's obligation of employing unemployed women and youth who are actively seeking work and registered with a Canada Employment Centre; and
(e) maintain books and records of the financial management of the project to include the names, addresses and work of all "employees", their wage rates, the wage actually paid and the daily hours worked by each one of them.
The program will operate for a period of approximately eleven months. The final results of the training are to be reported to the Canada Employment Centre which will seek to place the students in employment with one of the thirty employers who support the respondent's training centre. If they cannot be placed, the respondent is responsible for providing full-time employment for at least three of them. The respondent's contract with the Commission is for a 52 week term. Counsel for the respondent informed the Board that it is the respondent's intention to attempt to negotiate a renewal of the contract prior to its termination.
The primary undertaking of the Canada Employment and Immigration Commission pursuant to the terms of the contract is to contribute an agreed sum of money “… for and in respect of wages paid to employees hired by the project sponsor to work on the project, …”. That contribution is based on the number of weeks of training which the students undergo at a weekly rate of $168.00. The students are paid by cheque in the respondent's name at the rate of $200.00 per week, which is made up of the $168.00 funded by the Employment and Immigration Commission and $32.00 from other revenues of the respondent. The respondent deducts from these payments the amounts required by statute for income tax, unemployment insurance and Canada Pension Plan.
It is on these representations of the parties as to the facts in this application that the Board must determine whether the five persons are employees within the meaning of the Act. If they are employees, all five of them would be in the bargaining unit described above, including the two who are referred to as tool crib attendants. If they are not employees within the meaning of the Act, all five of them would be excluded from the bargaining unit thus leaving only one person falling within that unit on the date on which the application was made. In that case, since section 6(1) of the Act requires that a bargaining unit shall consist of more than one employee, there would be no appropriate bargaining unit.
The respondent referred to these persons as "students" throughout the hearing and asks the Board to find that they are not employees within the meaning of the Act because they are persons partaking of a program funded by funds from the Federal and Ontario governments which has the purpose of helping them acquire individual skills applicable to office work which are likely to be required by the employers in their local community. Counsel contends that the persons are in the program for a specific and limited period of time at the end of which it is intended that they return to the regular employment market. They would be replaced, in turn, by another group of persons if the respondent is successful in negotiating a new contract with the Canada Employment and Immigration Commission, which persons might be trained in office skills of a different nature than the first group. The applicant contends that these persons were hired by the respondent, their wages are set by the respondent within the limits allowed by its contract with the Canada Employment and Immigration Commission and the work which they do in connection with their training is supervised by the respondent's staff. The applicant further contends that the source of the funds from which the respondent pays these persons is not germane to the determining whether they are employees under the Act. The applicant asked the Board to find on these grounds that the persons are employees within the meaning of the Act and entitled to be represented in collective bargaining as provided in the Act.
Both parties referred the Board to its recent decision in Regional Municipality of Hamilton-Wentworth, [1982] OLRB Rep. Aug. 1179. In that decision the Board found certain persons employed in the Helping Hands program operated by the Social Services Department of the Hamilton-Wentworth region to be employees of the Regional Municipality of Hamilton-Wentworth within the meaning of the Act. The Board observed the Helping Hands program to have two purposes: "to assist the elderly; and to assist some of the chronically unemployed individuals on the welfare rolls to both provide for themselves through their own efforts and improve their job habits and skills sufficiently so as to be able to compete in the regular job market.". The funding for the program was shared in the approximate ratio of 80 per cent from the province and 20 per cent from the municipality. The average duration of employment for the approximately 28 persons was between one and one-half and two years, although “… as many as five individuals…” have continued to work in the program for five years. In deciding that these persons were employees, the Board found that it could not ignore some of the usual legal criteria of an employment relationship, criteria which are quite similar to those present in the instant case, although the employment duration of the Helping Hands program is longer and not for a term certain as it is here. On the other hand the weekly income is greater in the case at hand and the type of work which they perform is that which would commonly be found in the Windsor labour market.
The Board described the Helping Hands employees to be “… on the periphery of the Act's coverage, …”. Counsel for the respondent suggests that the Board reached that conclusion because the purpose of the Helping Hands program was to keep people off the welfare rolls by providing them with alternative steady work and remuneration. He asks the Board to distinguish the instant case and find that the "students" are beyond the periphery of the Act's coverage because they have been diverted from the regular employment market into a "holding" operation to receive training preparatory to reentering that market. The Board is not persuaded that there is any merit to that distinction. Both programs seek to equip persons who have difficulty sustaining regular employment to participate more effectively in a competitive labour market. The differences in the programs is one of the particular sources of the unemployed from which they draw their participants and how the programs approach the problem. There is nothing in those differences which would distinguish one group as employees under the Act and the other as not.
The five persons in question here were selected from amongst unemployed women and youths referred by a Canada Employment Centre and interviewed by the respondent before being offered one of the training opportunities. They are instructed and supervised by the respondent's staff, paid by the respondent on its own cheques from which the statutory deductions for income tax, unemployment insurance and Canada Pension are made. There can be no doubt from the respondent's contract with the Employment and Immigration Commission that the Commission is not the employer of these persons and that the respondent is. So, to the extent that an employment relationship exists, it is between the respondent and these five persons. While they are in a learning situation and are being paid to learn new job skills, they are doing so by performing work functions for the respondent. They are not students in the usual sense of the word, as the respondent would like the Board to see them. Just as the Board found it difficult to ignore the indicia of the employment relationship in the "Helping Hands" case, so does the Board here find it difficult to ignore the fact that many of the usual signs of an employment relationship are present in this case. The fact that the five persons are employed only for approximately eleven months does not alter the fact that they are employees for that period. If the duration of the relationship were a basis for not making the collective bargaining process available to them, it would be difficult to reconcile that situation with students who are employed during school vacation periods and who are regularly found by the Board to be entitled under the Act to be represented in collective bargaining. Consequently, the Board finds that the five persons at issue are employees of the respondent within the meaning of the Act who are included within the bargaining unit description agreed to by the parties.
Having regard to that agreement, the Board further finds that all office and clerical employees of the respondent at Windsor, Ontario, save and except the secretary to the general manager and persons above the rank of secretary to the general manager, constitute a unit of employees of the respondent appropriate for collective bargaining.
For purposes of clarity, the parties have agreed that the tool crib attendants are included in the unit.
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 September 29, 1982, the terminal date fixed for this application and the date which the Board determines, under section 103(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.