[1983] OLRB Rep. February 225
0878-82-R Service Employees Union, Local 204 Affiliated with the A.F. of L., C.I.O., C.L.C., Applicant, v. Dewson Private Hospital Limited, Respondent
BEFORE: Rory F. Egan, Vice-Chairman, and Board Members E. J. Brady and B. K. Lee.
APPEARANCES: H. Goldblatt and A. Ferrens for the applicant; Brian P. Smeenk and L. W Freeman for the respondent.
DECISION OF THE BOARD; February 14, 1983
Pursuant to the decision of the Board dated August 25, 1982, a Labour Relations Officer inquired into and reported to the Board on the list filed by the respondent and upon the composition of the bargaining unit.
The Board held a hearing for the purpose of considering the representation of the parties as to the accuracy of the report or as to the conclusions the Board should reach in view of the report.
The Labour Relations Officer reported to the Board that the parties agreed that A. Banate, J. Fotr, T. Villaruz, E. Wagner and H. Ke be excluded from the bargaining unit as they are employed as graduate nurses.
There remains in dispute the status of C. Dirollo, R. Harper and D. Marinelli. The applicant seeks the exclusion of C. Dirollo and R. Harper on the grounds that they exercise managerial functions within the meaning of the Act. The applicant sought the exclusion from the bargaining unit of D. Marinelli on the grounds that he was not an employee of the respondent on the date of the application. The applicant had also sought the exclusion of Marinelli as a person regularly employed for not more than 24 hours per week. The union, however, did not press that position at the hearing.
Having considered the evidence contained in the Officer's report and the submissions of counsel for the parties with respect thereto, the Board finds that R. Harper, classified as First Cook, exercises managerial functions within the meaning of section l(3)(b) of the Labour Relations Act and is accordingly excluded from the bargaining unit. The Board further finds that while C. Dirollo, classified as Housekeeper, has some very minor supervisory functions to perform, they are not such that they would involve her in any conflict of interest with respect to duties or loyalties between union and management that would in any way warrant her exclusion from the bargaining unit. The Board finds accordingly that C. Dirollo does not exercise managerial functions within the meaning of section l(3)(b) of the Act and that she is included in the bargaining unit.
It was the contention of the applicant that D. Marinelli was not an employee of the respondent at the date of the application and that his name should accordingly be removed from the list.
The facts are that Marinelli had worked for the respondent as a maintenance man for some six to seven years. In June of 1982, he became sixty-five and a recipient of the Canada Pension. His evidence is that shortly before his sixty-fifth birthday and in contemplation of his retirement, he told his employer, Mr. Freeman, that he wanted to buy a truck "to enjoy later pension time" [sic].
Mr. Freeman loaned the grievor $5,000.00 to buy the truck and the grievor agreed to continue to carry on his usual work for the respondent and the respondent agreed to credit him at the rate of $334.00 per week until the $5000.00 was repaid. The grievor did not cease to work on June 7th, 1982, the day he became 65, but continued his employment at the same hours per day and week as he had worked before June 7th. He kept a record of the days worked and at the time of the Examiner's report had sufficient credit on the arrangement to discharge the $5,000.00 loan plus a slight surplus. He was unsure as to what arrangements were to be made as to his future remuneration if he continued to work.
The $334.00 per week appears to have been the equivalent of the grievor's net pay before the loan was made. No deductions were made from the $5,000.00 nor were any made from the $334.00 credits as they accumulated. Otherwise the relationship between the employer and employee remain unchanged.
It is the view of the Board that at the time the application for certification was made the grievor was an employee of the respondent notwithstanding the accommodation that was reached with respect to the repayment of the $5,000.00. At the material time, no actual break in the employee's service had taken place and his duties and responsibilities had not been altered. The only change in the relationship, as we view the evidence, was that the employee received an advance on his prospective wages in order to allow him to buy a truck. As to what was to happen when the $5,000.00 was repaid there is little evidence, except that he anticipated a continuation of employment at a wage to be negotiated.
D. Marinelli's name should remain on the list as an employee of the respondent on the date of the application.
In the result the Board directs that the ballots cast in the representation vote, including the segregated ballots, if any, cast by C. Dirolo and S. Marinelli, be counted.