Ontario Public Service Employees Union v. Board of Governors of Ryerson Polytechnical Institute, 1984 CanLII 1074

[1984] OLRB Rep. February 371

2150-83-R Ontario Public Service Employees Union, Applicant, v. Board of Gov­ernors of Ryerson Polytechnical Institute, Respondent, v. Group of Employees, Objectors

BEFORE: Richard M. Brown, Vice-Chairman, and Board Members F. W Murray and W. F. Rutherford.

APPEARANCES: Chris Paliare and Barbara Linds for the applicant; Michael Gordon and John Rolian for the respondent; Michael G. Horan and Penny Lee for the objectors.

DECISION OF THE BOARD; February 21, 1984

1. This is an application for certification.

I

4. OPSEU sought to be certified for a single bargaining unit comprised of employees engaged in office, clerical and technical work and in the food services department at Ryerson Polytechnical Institute ("Ryerson"). Ryerson contended that these employees should be di­vided into three bargaining units: (1) all career employees; (2) all non-career employees, ex­cept those working in the food services department; and (3) non-career employees in the food services department. Excluded from any of the three units proposed by Ryerson are employees engaged on projects financed by funds separate from the regular operating budget. This cat­egory includes approximately twenty people. The parties are agreed that whether there be one unit or three~ students and part-time employees are to be excluded.

5. Just over a year ago, Ryerson voluntarily recognized the Ryerson Staff Association as bargaining agent for some of the employees affected by this application — all career em­ployees and some non-career employees. This collective bargaining relationship has not yet produced a first agreement.

6. There are four other bargaining units in existence at Ryerson. All faculty members employed in the regular day-time program are organized: "tenure-track" faculty members are represented by the Ryerson Faculty Association and their "non-tenure track" colleagues — both full-time and part-time — are represented by the Canadian Union of Educational Workers. Night course instructors, who work part-time, are excluded from both of these units and are without a bargaining agent. Markers, demonstrators and tutors, who are also part-time employees, are similarly unrepresented. Typesetting employees fall under the jurisdiction of the Toronto Ty­pographical Union. Maintenance and care taking staff are represented by Local 233 of the Canadian Union of Public Employees.

7. The distinction between career and non-career staff has been reflected in Ryerson' s personnel policies for the past nine years. These two groups are not differentiated by the work they perform; a career secretary may work alongside a non-career secretary doing the same tasks. The only difference between them lies in their terms and conditions of employment. Career employees are told by Ryerson when hired that they will have a job for as long as they perform satisfactorily and Ryerson continues to exist in substantially its present form. Redundancies within this group rarely occur. An employee whose job becomes obsolete is typically transferred to another job, perhaps after retraining. A person who is terminated through redundancy is entitled to a severance payment in the amount of two weeks pay for every year of employment. Career employees are paid according to an establish salary scale derived through a system of job analysis. The fringe benefits they receive include OHIP cov­erage, disability insurance, life insurance, and a pension. With minor exception, all vacancies in career positions are advertised, and the qualifications and seniority of all applicants for a vacant position are considered before an appointment is made. Only service as a career em­ployee is recognized for the purpose of calculating seniority for this purpose.

8. Non-career employees are hired to do a particular job for a predetermined period ranging up to a maximum of one year. They are told not to expect continued employment beyond this time, but are assured they will be considered for any subsequent job that might become available. A non-career employee often works for more than a year, under a series or two or more short-term contracts. There is no established salary scale for non-career em­ployees; the amount they are paid is largely determined by current labour market conditions. Some are on salary and some are paid on an hourly basis. Aside from OHIP benefits provided to some non-career employees, there are no fringe benefits for this group. All of the non-career employees in the food services department and two thirds of those working elsewhere are employed only during the academic term.

9. At the time the application was made, during the Christmas break, there were 382 career employees and 185 non-career employees. However, the number of non-career em­ployees working during the school term is substantially higher. According to Mr. Rolian, who is in charge of personnel matters at Ryerson, the reason for distinguishing between these two groups is to create a core of experienced staff upon whom the Institute can rely to provide its basic manpower needs. He conceded that there were also budgetary advantages to this per­sonnel policy.

10. Mr. Rolian testified that the large differences between the terms and conditions of employment of these two groups of employees has been the single largest barrier standing in the way of a collective agreement between Ryerson and the Ryerson Staff Association. That bargaining agent currently represents career employees and non-career employees hired for a term of at least four months. Throughout the course of negotiations, these non-career em­ployees have sought to achieve the benefits now enjoyed by their career counterparts. But ca­reer employees have recognized that their privileged status is threatened by this call for equal treatment. Therein lie the seeds of internal discord. However, Mr. Rolian also volunteered that negotiations were impeded by a lack of experience on the part of Ryerson Staff Association representatives and by a change in the Association's leadership.

11. At the time of the hearing, the food services department was made up of forty non-career employees doing manual work and seven career employees in positions such as su­pervisor, chef and food technologist. All non-career employees in this department are paid on an hourly basis, at a rate of pay different than other non-career employees. As food services is a small department, there is little chance of advancement for any employee. Mr. Rolian testified that this department is self-funding in the sense that all costs, except the expense of employing career staff, are paid out of cafeteria revenues.

12. Some of the work carried on at Ryerson is funded by special grants from govern­ment bodies, cooperation on other similar sources. In some cases, the funds are impressed with a direction from the donor as to how much may be spent for salaries and wages. The only grants in evidence which dictate who may be employed apply only to students and so need not be considered.

II

13. The concept of a bargaining unit performs two quite distinct functions in labour relations law. In order to be certified, a trade union must enjoy the support of a majority of employees in a bargaining unit. The unit serves as an electoral district in this setting. After a union is certified, the bargaining unit found by the Board to be appropriate strongly influ­ences the conduct of collective bargaining. Although the parties sometimes vary this unit de­scription, it is frequently simply reproduced in the recognition clause in a collective agreement.

14. A trade union may experience insurmountable difficulties in trying to organize em­ployees in a unit that is broadly defined to embrace employees who are geographically dis­persed or perform substantially different jobs. As one of the fundamental objectives of the Labour Relations Act is to assist employees to join together for collective bargaining, this Board has been reluctant to establish units which are so broadly based that they defy organization. See Ponderosa Steak House, [1975] OLRB Rep. Jan. 7. The public policy of facilitating or­ganization is a two-edged sword. A trade union may propose a unit defined so as to leave unrepresented a group so small that they have no real chance of entering the world of col­lective bargaining alone. In these circumstances~ the Board expands the proposed unit to in­clude the employees in question, even though the result may be to dilute support for the union to the point that the application is dismissed. See Board of Education for the City of North York, [19821 OLRB Rep. June 918 at paragraph 7.

15. Organizational concerns are not the only forces that shape bargaining units. The Board must also strive to create a viable structure for ongoing collective bargaining. See Usarco Limited, [1967] OLRB Rep. Sept, 526; K Mart Canada Limited, [1981] OLRB Rep. Sept. 1250; and Insurance Corporation of British Columbia, [1974] 1 CLRBR 403 (B.C.). From this perspective, a broadly based bargaining unit offers several advantages over a frag­mented structure.

16. A proliferation of bargaining units increases the risk of unnecessary work stop­pages. The likelihood of a strike occurring grows with the number of rounds of negotiations and may be further increased by competitive bargaining between two trade unions. The po­tential for mischief is greatest when the work performed in two or more units is integrated. In these circumstances, whenever one group strikes, other employees who are functionally dependent upon struck work are deprived of employment, though they may stand to gain noth­ing from the strike because their agreement has just been renewed. Even in the absence of functional integration, strikers may erect picket lines that keep other employees away from work, although a concerted refusal to cross a picket line, by employees who are not entitled to strike, is an illegal work stoppage.

17. There are other drawbacks to a multiplicity of bargaining units. Each unit is likely to become an enclave surrounded by legal barriers — designed to enhance the job opportun­ities of employees within the walls — that impede the mobility of employees. Restrictions on mobility may entail significant costs for an employer whose practice is to frequently transfer employees between jobs that fall in different units. In some cases, these barriers may close natural lines of job progression to the detriment of all concerned. A fragmented bargaining structure also inevitable spawns jurisdictional contests over the allocation of work among units, disputes which in the long run benefit no one. And a proliferation of bargaining units entails the time and trouble of negotiating and administering several collective agreements. From the perspective of an employer with centralized control over labour relations, there is an unnec­essary duplication of effort. All of these concerns — work stoppages, restricted employee mo­bility, jurisdictional disputes and administrative costs — favour consolidated bargaining structures, although the force of each vector varies from case to case.

18. But the community of interest among employees may point towards either a broadly based structure or separate bargaining units. In this context, the word interest, in the phrase community of interest, refers to the bargaining objectives of the employees in question. The most important determinate of those objectives is the work performed. Skills and terms and conditions of employment are also relevant, but these factors are largely derived from the na­ture of work. In deciding whether to include a population of employees in one bargaining unit or to divide them into separate units, the Board has recognized that within a single unit there is a tendency to compress existing differentials in wages, benefits and other work rules. People who perform the same, or substantially similar, work are likely to have similar aspirations concerning terms and conditions of employment. And a strong argument can be made that they ought to be treated in the same way. Equal treatment is fostered by including all such employees in one bargaining unit. Conversely, employees whose jobs differ radically from the work of their fellow employees have a legitimate claim to different terms and conditions of employment. If they are pressed into one large unit, the logic of collective bargaining is bound to erode existing differentials. Those on the short end of the stick not only have a compelling grievance but also may cause disruption. And an employer may experience difficulty in re­cruiting for jobs in which the terms and conditions of employment are less attractive than elsewhere. Separate bargaining units may alleviate these problems. However, not all differ­ences between jobs are this fundamental. As a single collective agreement permits of some variation in terms and conditions of employment, it can embrace employees whose jobs differ to some degree, without generating undue dissatisfaction. When entertaining an application by a special interest group for a separate bargaining unit, the Board must also bear in mind that these employees would not achieve complete autonomy by winning a separate unit, be­cause it could not be insulated from the forces of pattern bargaining exerted by neighboring units. The challenge is to decide what differences between jobs are of sufficient magnitude to justify the creation of separate bargaining units, with their attendant disadvantages. In other words, a balance must be struck between the competing considerations that bear upon the cre­ation of a viable bargaining structure.

19. The design of bargaining units becomes even more complex when the focus of at­tention is expanded to include not only ongoing collective bargaining but also organizational concerns. The optimal unit for long-term bargaining may be larger than the grouping within which a trade union can be reasonably expected to obtain the level of employee support nec­essary for certification in the short-run. In other words, there is an inherent stress lurking within the concept of an appropriate bargaining unit because it performs two very distinct functions. How has the Board responded to this industrial relations conundrum? The decision in K Mart Canada Limited, supra, at paragraphs 18 to 20, provides an apt illustration. The employer operated four stores in one municipality, the union had organized one at which 127 employees worked, and a certificate was granted for this unit. A broader-based structure was rejected, because it might significantly impede access to collective bargaining. However, the Board suggested it would have been "hard pressed" not to certify a municipal unit if the union had organized all four stores, suggesting a consolidated structure would lead to more effective collective bargaining than several smaller units. In other words, the viability of on­going collective bargaining was compromised to this extent in order to foster self-determi­nation. But the Board declared that self-determination would not always come out on top. One example used to make this point involved an employer operating fast food outlets at several locations in a municipality and employing at each a substantially smaller number of employees than worked at one K Mart store. The Board strongly hinted that an application for a bar­gaining unit comprised of one outlet would be rejected.

20. The creation of a viable bargaining structure is the only objective when employees have ready access to collective bargaining whatever the unit configuration — i.e. when a single large unit will not unduly impede organization. The Board has often been called upon to rec­oncile the claims of special interest groups with the considerations that favour a consolidated bargaining structure. There is a long-standing practice of segregating plant and office em­ployees in separate units in recognition of their divergent interests. See H Gray Limited, 55 CLLC ¶18,011. But bargaining units consisting of employees in one particular classification or department are not generally considered by the Board to be appropriate because such small units entail excessive fragmentation. See Corp. of the City of Barrie, [1974] OLRB Rep. Nov. 813. And in Stratford General Hospital, [19761 OLRB Rep. Sept. 459, paramedical personnel were included in the same hospital unit as professional staff. In that case, the Board said:

Rational solutions lie in the careful examination of evidence for signifi­cant differences in community of interest between occupational groupings bearing in mind the structural requirements for effective collective bar­gaining and labour relations. At the risk of being repetitive we think it important to observe that it is natural for certain groups of employees to be apprehensive about the outcome of collective bargaining if their oc­cupation does not dominate a bargaining unit in sheer numbers and sel­dom is the Board confronted with applications for certification affecting employees with identical interests, abilities and backgrounds. Thus, if the Board was to be preoccupied with these apprehensions an unmanageable proliferation of potentially ineffective bargaining units would be the likely result. Accordingly, the Board must concern itself with only significant differences between employee interests and these significant differences must result in practical bargaining unit demarcations — practical in the sense that demarcations must provide efficient answers to like cases; there must be reasonable assurance that they can withstand the passage of time; and practical in the sense that sound collective bargaining relationships can be built upon them.

21. Can the interests of employees who perform the same work, but on different tem­poral basis, diverge sufficiently to require the certification of separate units? Full-time and part-time employees, who often perform the same tasks, are always separated because they do not share a community of interest. As was said in Toronto Airport Hilton, [1980] OLRB Rep. Sept. 1330, at paragraph 6:

This practice reflects the Board's view, supported by the extensive labour relations experience and knowledge of its members, that part-time em­ployees and students, on the one hand, do not generally share a com­munity of interest since the former are primarily concerned with maintaining a convenient work schedule which permits them to accom­modate the other important aspects of their lives with their work and with obtaining short-term immediate improvements in remuneration rather than with obtaining life insurance, pension, disability, and other benefit plans; extensive seniority clauses; and other long-term benefits.

22. But the Board has consistently refused to segregate permanent employees from those employed on a casual or temporary basis. Sydenham Hospital, [1967] OLRB Rep. May 135; Centre Gray General Hospital, [1968] OLRB Rep. Mar 1172; United Counties of Northum­berland Durham, [1968] OLRB Rep. Dec. 915; Oshawa General Hospital, [1970] OLRB Rep. Jan. 1218; Chapples Stores Ltd., [1970] OLRB Rep. June 313; Board of Education of Bor­ough of Scarborough, [1975] OLRB Rep. Sept. 657; Spramotor Ltd., [1976] OLRB Rep. 215; Board of Education of Borough of Scarborough, [1980] OLRB Rep. Dec. 1713; and Board of Education for the City of Toronto, [1983] OLRB Rep. Feb. 273. (Only seasonal employees in the canning and tobacco industry have been excepted from this rule. See Melner Manu­facturing Ltd., [1969] OLRB Rep. Mar. 1288.) This has been the Board's policy even though the interests of these two groups of employees sometimes diverge. Consider two full-time em­ployees, one hired for an indefinite term and the other engaged occasionally over a period of few months. The temporary/full-time employee is likely to want terms and conditions of em­ployment different than the permanent/full-time employee for much the same reasons as a part-time worker does. But some limit must be placed upon the number of bargaining units in order to avoid undue fragmentation. Another reason for not creating yet another unit for tem­porary employees is that one cannot always forecast whether an employee's term of employ­ment will turn out to be temporary or permanent. An employee is often hired with a promise of work for a fixed term coupled with the possibility of continuing to work thereafter. In this setting, a person's bargaining objectives change slowly over time as he or she begins to per­ceive a permanent nexus with the employment relationship. Consequently, there is no neat division between employees who see themselves as temporary and those whose self-perception has a permanent hue.

23. We know of no case in which the Board has established separate units for two cat­egories of previously unorganized employees who perform the same work, over the same time frame, and are distinguished only by their terms and conditions of employment — one group having received preferred treatment in the past. In these circumstances, the legitimate aspi­rations of all employees are the same. And as was noted in Board of Education of the Borough of Scarborough, [1980] OLRB Rep. Dec. 1713, at paragraph 13, these aspirations — not the terms and conditions of employment unilaterally promulgated by management — are what es­tablishes a community of interest. Nor is the source of funds from which employees are paid relevant to community of interest.

III

24. In the case at hand, the union has organized a sufficient number of the employees in question to be entitled at least to a vote, and perhaps to outright certification, whatever the unit configuration. Indeed, OPSEU has asked us to define one large bargaining unit. Con­sequently, our only concern is the viability of the structure we create for ongoing collective bargaining.

25. We were asked by Ryerson to segregate non-career employees from career em­ployees. The two groups generally perform the same work. In addition, many of the non-career employees, whose contracts have already been renewed on one or more occasions, have a re­lationship with Ryerson which has spanned several years. And there are others who reasonably expect a relationship of similar duration to unfold in the future. For want of a better de­scription, we will apply the label long-term/non-career to these employees. Terms and con­ditions of employment aside, long-term/non-career workers are little different than career employees — even though most of the non-career employees work only during the academic term. The best evidence of a community of interest between these two groups is the past ef­forts of long-term/non-career employees to win the benefits, promotional opportunities, and job security enjoyed by their career colleagues. That is not to say that all non-career em­ployees have a strong community of interest with career workers. Someone who is employed for a very short time with no possibility of extension does not. But this person has no greater community of interest with long-term/non-career employees. Any attempt to divide non-career employees according to their bargaining objectives is likely to be frustrated by changes in an employee's aspirations caused by the show emergence of a perception of a long-term rela­tionship. In any event, we were not asked to draw such a line. Ryerson seeks to exclude all non-career employees from a career employee unit. This division does not coincide with any watershed that divides these employees according to their employment aspirations. And the proposed dividing line would lead to further fragmentation of a work force already split among four bargaining units. In these circumstances, the difference in terms and conditions of em­ployment offered to career and non-career employees in the past is not a sufficient reason to place these groups in separate units.

26. In accordance with the Board's practice of not creating a separate unit for a de­partment, we would not find the food services department to be an appropriate bargaining unit. Ryerson proposed a unit comprised not of all kitchen employees but of only those with non-career status. There is even greater reason not to hive off part of a department. By sug­gesting that career employees in all departments be grouped together, the employer recognized that career employees in the kitchen have a community of interest with career workers else­where in the institution. For the reasons set out in the preceding paragraph, we believe this community of interest is also shared by long-term/non-career employees in the food services department. This consideration, coupled with our aversion to fragmentation, leads us to con­clude that a unit of non-career employees in the kitchen is not appropriate for collective bargaining.

27. We were asked to exclude employees engaged on special projects — projects financed by funds separate from the regular operating budget — from whatever unit(s) we found to be appropriate. As noted above, the source from which employees are paid has no bearing on their community of interest. Given the small size of this group and the limited duration of many projects, excluding these employees would seriously impair their opportunity to engage in collective bargaining. Barring these employees from bargaining collectively is precisely the employer's objective. The rationale advanced in support of this goal is that special grants re­ceived by Ryerson often carry a direction from the donor as to how much of the grant may be spent on salaries and wages. There is no evidence that the terms of any such grants pre­clude Ryerson from supplementing the salary portion with its own funds, although fiscal re­straint may preclude this. But these employees are entitled, by the Labour Relations Act, to bargain collectively with their employer.

28. In short, we believe all of the employees embraced by this application ought to be included in a single unit. We await the assistance of the parties in formulating a precise de­scription of that unit.