Service Employees Union, Local 204 v. Extendicare Diagnostic Services, 1982 CanLII 954

[1982] OLRB Rep. August 1168

1276-81-R Service Employees Union, Local 204 Affiliated With A.F. of L., C.I.O., C.L.C., Applicant, v. Extendicare Diagnostic Services, Division of Extendicare Limited, Respondent, v. Group of Employees, Objectors.

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members W. H. Wightman and B. L. Armstrong.

APPEARANCES: Naomi Duguid, Joe Aggimenti and Allen Ferens for the applicant; James F. Bowden, Donald McKillop, Dawn Jefferv and Joyce Allin for the respondent; Adelyne Bornstein and Doreen Lash for the objectors.

DECISION OF THE BOARD; August 20, 1982

I. This is an application for certification.

2. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

3. The applicant has applied to be certified as bargaining agent for all office and clerical employees employed by the Extendicare Diagnostic Services Division of Extendicare Limited in Metropolitan Toronto. It is one of two applications for certification filed by the applicant with respect to the employees of that Division at its 11 locations in Metropolitan Toronto. The other one is with respect to an all employee type of unit referred to by the parties as the technical unit. See the decisions of the Board, differently constituted, in Board File No. 0722-81-R which issued August 17, 1981 and May 18, 1982. The parties herein agreed with the respondent's description, set out in paragraph 5 of its reply, of the inclusive part of the bargaining unit which it claimed to be appropriate for collective bargaining. The applicant and respondent were not in agreement, however, on the description of the exclusions from the bargaining unit. More specifically, the applicant sought the exclusion of purchasing agents from the unit on the grounds that Joanne McGarry, classified on the lists filed by the respondent as purchasing agent, exercised managerial function within the meaning of section I (3)(b) of the Labour Relations Act and did not share a community of interest with the other employees who were agreed to be in the unit. The applicant claims as well that Doreen Lash, classified on the lists filed by the respondent as senior data entry operator, should be excluded because she exercised managerial function within the meaning of section l(3)(b) of the Act. The respondent, on the other hand, claims that Joanne Ewing and Dale Jacobs, classified on the respondent's lists as lab reporter, should be excluded from the unit because they do not share a community of interest with the other employees in it. The applicant and respondent advised the Board that Ewing and Jacobs are at issue in Board File No. 0722-81 -R wherein the applicant is claiming that they should be included in the technical unit. The parties are agreed that they are employees who would be in one unit or the other. The applicant challenged as well the accuracy of the lists filed by the respondent.

4. A Board Officer was appointed to inquire into and report to the Board on the duties and responsibilities of Lash and McGarry, on the community of interest, if any, between McGarry, Ewing and Jacobs and the other employees in the unit and on the list of employees filed by the respondent. The applicant subsequently dropped its challenge to the lists and its claim that McGarry did not share a community of interest with the other employees in the unit. That challenge with respect to McGarry was dropped at the hearing scheduled to receive the submissions of the parties with respect to officer's report. The submissions of the parties with respect to the remaining issues were heard during hearings on two separate days at neither of which were the objectors represented. The issues were:

(a) whether Lash and/or McGarry exercised managerial functions within the meaning of section l(3)(b) of the Act; and

(b) the community of interest, if any, between Ewing and Jacobs and other employees in the bargaining unit.

5. All four employees at issue are employed at the same location of the respondent, 4949 Bathurst Street in Metropolitan Toronto, as are the majority of the employees in the office and clerical unit. The Board has considered the evidence in the report of the Board Officer and the submissions thereon of the applicant and the respondent and finds as follows.

6. Neither Lash nor McGarry exercise managerial function within the meaning of section l(3)(b) of the Act. The report reveals that their regular duties and responsibilities do not include, at all times material to the application, the hiring or firing of employees, evaluating their performance, disciplining them, scheduling their hours of work or granting time off from work. Nor do either of them make effective recommendations with respect to any of those matters. McGarry does not exercise any type of supervision over the work of other employees. Lash was assigned the responsibility of making sure that the batches of source documents which the data entry operators entered for processing on the computer were distributed evenly between the operators on the day shift and the night shift. This responsibility was added to her responsibilities in June 1981 as the result of a problem arising out of insufficient computer processing capacity. A notice was posted at the time appointing her as senior data entry operator responsible for the supervision of data entry operators. There is no evidence that the supervision consisted of anything more than the distribution between the operators of the batches of source documents. The evidence also indicates that the need for this particular function ceased to exist within approximately two months of her appointment, although the respondent did not rescind its notice of her appointment. In any event, the Board is satisfied that Lash's responsibilities were not even those of a leadhand.

7. The applicant argues that McGarry, as purchasing agent, exercises a level of decision making which requires independent judgment such as should cause the Board to judge her to be exercising managerial function. (See lnglis Limited, [1976] OLRB Rep. June 270). The Board is satisfied that the evidence in the officer's report simply does not support such a finding.

8. For the foregoing reasons, the Board finds that Doreen Lash and Joanne McGarry, classified by the employer respectively as senior data entry clerk and purchasing agent, do not exercise managerial function within the meaning of section l(3)(b) of the Act. They are, therefore, employees within the meaning of the Act and would fall within the bargaining unit sought by the applicant.

9. The Board turns now to consider the community of interest question with respect to Joanne Ewing and Dale Jacobs. The community of interest which exists between employees, or the absence of it, is one of several factors which the Board takes into consideration when determining whether a unit is appropriate for collective bargaining purposes. See the Board's decision in Usarco Limited, [1967] OLRB Rep. Sept. 526 at p. 529. That decision in turn identifies six sub-factors or criteria for determining community of interest:

(a) nature of work performed

(b) conditions of employment

(c) skills of employees

(d) administration

(e) geographic circumstances

(f) functional coherence and interdependence

10. Ewing and Jacobs refer to themselves as clerks, although they are classified on the lists filed by the respondent as lab reporters. The Board sees no significance in this distinction and will refer to them as lab reporters. They work in a section of the respondent's premises at 4949 Bathurst Street referred to as lab results. These premises include also the main offices of the Division and three laboratories and, as already noted, the majority of the office and clerical employees are employed at this location, the exceptions being the receptionists who work at some of the other locations. Lab results provides a central filing facility for all of the test results from the laboratories at that location and from the other ones. The lab reporters separate and file the forms on which the test results are recorded and record tests from some laboratories in registers or books maintained in lab results. This work consists in the main of simple filing tasks and some typing, generally limited to the typing of envelopes. Approximately 75 per cent of their work time is spent on these tasks. Most of the remainder is spent locating test results in the laboratories at this location in answer to queries from doctors and other customers about the tests which they have requisitioned. This requires them to go into the laboratory in question and either or both check out the register where the laboratory staff record test results and/or seek out the technologist responsible. On the other hand, it is sometimes necessary for laboratory staff to go into lab results and check with the lab reporters or check the files to see if a particular result has been correctly recorded. The lab reporters also take and fill orders from doctors for supplies of blank test requisition forms and specimen containers. The skills required by their duties are very basic clerical ones.

II. Test specimens and requisitions are brought several times daily to these laboratories by drivers in special bags for this purpose. When tests have been completed by the laboratory staff and the results recorded on the requisition, two copies of the requisition are sent to lab results. The lab recorders separate these, filing the Division's copy and placing the customer's copy in a filing rack by customer. The drivers pick up these results, place them in the customer's bag and deliver them to the customer.

12. The lab reporters work day shift only, as do most of the office and clerical employees, the one exception in evidence being a data entry operator. The laboratory staff work shifts, although the evidence indicates that not all of them do. There appears also to be a night driver. There are no other differences discernible from the evidence in the methods of payment, working conditions or benefits between any of the employees in the technical unit and the office and clerical employees, or between the lab reporters and either group of employees.

13. The lab results section is located on the lower level of the premises referred to as the basement in a room adjacent to one of the laboratories. Another laboratory is located on the second floor, the same floor as the office. There are two receptionists located at the basement level nearby the lab results room. They are in the proposed office and clerical unit. They receive patients coming to have tests done or have test specimens taken. The test requisitions for these patients also end up in lab results when the tests have been completed, but do not come directly from the receptionists. The receptionists receive telephone queries from doctors about test results and refer these for handling to the lab reporters. In addition to these two receptionists, one of the secretaries on the second floor performs receptionist duties for the office. Twice daily the lab reporters deliver test results and pick up requisitions from doctors who have offices in the building at 4949 Bathurst Street. On these rounds they stop at the laboratory on the second floor and pick up test results. They also drop off any mail for the office on that floor with the office receptionist.

14. The office and technical functions of the Division, including the satelite stations outside of 4949 Bathurst Street, report to Dawn Jeffery, assistant vice-president. One of the positions reporting to her is that of office manager. Joyce Allin, the office manager, is responsible for accounting, lab results, the receptionists and transportation. Transportation includes the drivers and one person referred to variably as the shipper! receiver or supplies man. They are employees in the technical unit. The supervisor responsible for transportation is Jo Albani and she is also the supervisor responsible for lab results. Allin looks after the receptionists and accounting, both of which are in the proposed office and clerical unit, with assistance from another person in the supervision of part of the accounting function.

15. The criteria of nature of the work, conditions of employment and skills are of little assistance in determining community of interest in this instance. There is little in the evidence about conditions of employment which assists in distinguishing technical employees from office and clerical. Nature of work and skills points slightly in favour of office and clerical. Administration, geographic circumstances and functional coherence and interdependence point towards the community of interest being with the technical unit. While Allin's overall responsibility includes persons who, without dispute, fall into both units, accounting and receptionists, which are her own direct responsibility, are in the office and clerical unit. Responsibility for supervision of transportation and lab results has been delegated by her to Albani who is excluded from either unit. Transportation employees are in the technical unit. There is regular daily liaison between Ewing and Jacobs and the drivers as well as the shipper/receiver essential to the performance of their work. There is regular daily liaison as well with the laboratory staff who are in the technical unit as a requirement of their jobs as lab reporters. Both employees consider that they have more frequent and regular contact with the drivers than any other group of employees and this is supported by the evidence in the report. These latter criteria, in the Board's view, are more indicative of a community of interest with the employees in the technical unit than with those in the office and clerical unit.

16. Having assessed these criteria, the Board finds that the community of interest of the lab. reporters, Joanne Ewing and Dale Jacobs, is with the technical unit. The Board, accordingly, will exclude them from the office and clerical unit. Since the parties are agreed that they are employees who would fall in one unit or the other, they would expect them to be included in the technical unit. That is a finding to be made, however, by the Board seized with that application and cannot be made by the Board herein notwithstanding the fact that the Board's decision which issued May 18, 1982 in Board File No. 0722-81-R advised the parties that the Board in the case at hand would determine their status.

17. The result of all of the foregoing is that Doreen Lash, senior data entry operator, and Joanne McGarry, purchasing agent, are included in the office and clerical unit and Joanne Ewing and Dale Jacobs are excluded from it.

18. In view of that conclusion, having heard the representations of the parties on the exclusions from the proposed bargaining unit and having regard for their agreement on the inclusive part of the unit description the Board finds that:

all office and clerical employees of the respondent in Metropolitan Toronto, save and except supervisors, persons above the rank of supervisor, persons secretary to the assistant vice-president, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period,

constitute a unit of employees of the respondent appropriate for collective bargaining.

19. For purposes of clarity, the Board notes the agreement of the parties that Pearl Bahla who, according to the respondent, performs public relations responsibilities, is not an employee in the unit described above.

20. The lists of employees filed by the respondent, excluding Ewing and Jacobs, contain the names of 22 employees in the bargaining unit described above. The union filed 11 good cards in the names of persons whose names also appear on the respondent's lists. A petition was filed in opposition to the application. Since the applicant is already in a vote position and that is the best result which a successful petition can achieve, it is unnecessary for the Board to deal with the circumstances giving rise to the petition being filed. The Board, therefore, is satisfied that not less than forty-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 18, 1981, the terminal date fixed for this application and the date which the Board determines, under section 103(2)0) of the LabourRe/ationsAct, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

21. A representation vote will be taken of the employees of the respondent in the bargaining unit. All employees of the respondent in the bargaining unit on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote.

22. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.

23. The matter is referred to the Registrar.