Ontario Labour Relations Board

Citation: [1984] OLRB Rep. January 64

File No.: 2147-83-R

Parties: Service Employees Union, Local 204, Affiliated with S.E.I.U., A.F. of L., C.I.O., C.L.C., Applicant, v. Nucleus Housing Inc., Respondent

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members I. M. Stamp and C. A. Ballentine.

APPEARANCES: Allen Ferens and Joe Aggimenti for the applicant; A. Michael Stein ana Bobbie Blackhall for the respondent.

DECISION OF THE BOARD; January 16, 1984

1. 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 the exclusive bargaining agent for all employees of the respondent Nucleus Housing Inc. ("Nucleus") in Metropolitan Toronto, ex­cluding certain classifications not relevant here. The reply filed by Nucleus asserts that there is no appropriate bargaining unit of employees. The lists of employees which it filed in com­pliance with the Board's direction as being employees coming within the bargaining unit de­scribed in the application includes persons all but one of whom are given the occupational classification of attendant. The single exception is a person who is given the occupational clas­sification of housekeeper. For ease of reference hereafter, the Board will refer to the em­ployees as attendants.

4. Counsel for Nucleus took the position at the hearing that there was no appropriate bargaining unit because the persons whom the applicant was seeking to represent are do­mestics employed in private homes and, by virtue of clause a of section 2 of the Labour Re­lations Act, excluded from it. In that respect the Act states that:

2. This Act does not apply,

(a) to a domestic employed in a private home.

The Board reserved its decision after hearing the representations of the parties on the issue. The Board then proceeded to hear the application on its merits on the basis that it would de­termine the application upon its merits only if resolution of the threshold issue failed to dis­pose of the application.

6. The facts asserted by counsel for Nucleus in his representations to the Board may be summarized as follows:

(1) Nucleus is a non-profit corporation. It leases from the Metropolitan Toronto Housing Authority 14 individual apartments in a single, multi-floor building comprised of 252 units. Each of the 14 apart­ments is located on a different floor and is sublet by Nucleus to a male quadriplegic. The apartment tenant in each case pays his rent to Nucleus which in turn pays the housing authority.

(2) Nucleus receives funds in the form of grants from the Ontario Gov­ernment. These funds are used to provide each of the 14 apartment tenants with 24 hour personal attendant care. The tenants refer to the attendants as their "arms and legs" because they perform or assist the tenants in performing all of the ordinary, daily things that a per­son with full use of his limbs usually performs for himself.

(3) Not all of the tenants require an attendant for~ 24 hours each day. Therefore, the tenants tell Nucleus the number of hours for each day in the week during which they will require the services of a personal attendant. The attendants are scheduled to the tenants on the basis of those stated needs. The attendant assigned to a tenant on a particular day takes instruction from him as to the tenant's needs. The tenant does not necessarily have the same attendant each day and it may be inferred from the representations that some tenants will require per­sonal attendant care over a period of time each day that would make it necessary for them to have more than one attendant in the course of a day.

(4) Nucleus was formed when one of its present tenants obtained leave to live outside of the special nursing home where it had been nec­essary for him to live up to that time. He was joined by a dozen more male quadriplegics. They were able to obtain grants from the provincial government for the purpose of providing them with per­sonal attendant care. One of the conditions for obtaining those grants was that they be made to a corporation and not to the persons in­dividually. Nucleus is run by a Board of Directors, 14 in number, 6 of whom are tenants in the 14 apartments leased from the housing authority through Nucleus.

(5) The Board was told also that one of the conditions under which the housing authority supplied the apartment units was that the authority would deal with the tenants only through Nucleus. That is why Nu­cleus receives rental payments from the 14 tenants and submits them to the housing authority.

7. Nucleus submits that the attendants are employed jointly by each of the 14 tenants. Counsel for Nucleus admits that it is arguable that Nucleus is the employer of the attendants and provides personal attendant care to the tenants, but he claims the attendants are, in reality, employees of the tenants in their homes for each day on which they are assigned to a tenant. During the term of his daily assignment, each attendant is the personal domestic servant of the tenant performing all of the services commonly associated with that function in the course of being the "arms and legs" for the tenant. Although it may be a different person each day who performs these functions, they are persons who are providing a domestic service in a private home. Counsel emphasizes that this set up is wholly distinguishable from a nursing home or chronic care home. Each tenant who uses the domestic services of the attendants is an individual tenant living in his own distinct apartment unit. While all 14 tenants live in a common building, they could just as well be living in any housing accommodation and hiring directly their own personal attendants. The only reasons it is not that way, according to coun­sel, is because the provincial government has not been prepared to fund each person indi­vidually. Therefore, in order to gain independence from institutional living, they have had to create Nucleus as the enabling agency for channeling the available funding to each of the 14 persons. Counsel asserts that this is a facade and the Board must look beyond it and find that the tenants are the true employers of the attendants and that each attendant, by virtue of the nature of the service rendered to the tenants, is "... a domestic employed in a private home;".

8. There is no doubt that the 14 tenants, having come to terms with their individual disabilities, would prefer to live as independant lives as is possible in their circumstances. To this end, it is understandable that they would prefer to be dealt with as individuals when it comes to receiving the funding essential to the provision of the personal attendant care which they must have in order to live outside of institutions. It is quite apparent from the repre­sentations to the Board that these young men, several of whom were in attendance at the hear­ing, have made Herculean efforts in order to gain as much independence as they presently have. Nonetheless, as much as they might wish it to be otherwise, funding is available to them only through Nucleus. That is the reality of the situation which is before this Board.

9. While counsel for Nucleus submits that each tenant is the master of the person or persons assigned to him as his daily personal attendant in terms of directing what services the attendant is to perform for him, all of the other elements characteristic of an employee-employer relationship are clearly within the control of Nucleus. In these circumstances, the Board finds that Nucleus is the employer of the persons whom the applicant is seeking to represent. Consequently, they are not domestics employed in private homes within the mean­ing of section 2(a) of the Act.

10. The parties were agreed, should the Board find that the persons affected by this application were employees under the Act and employed by Nucleus, that the bargaining unit proposed by the applicant in its application was an appropriate one. Having regard to their agreement, the Board finds that all employees of the respondent in Metropolitan Toronto, On­tario, save and except supervisors, persons above the rank of supervisor and office staff, con­stitute a unit of employees of the respondent appropriate for collective bargaining.

11. The Board is satisfied, on the basis of all of 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 December 22, 1983, 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.

12. A certificate will issue to the applicant.