The Canadian Union of Public Employees v. The Association of Community Centres of the City of Toronto et al., 1985 CanLII 1019

The Canadian Union of Public Employees v. The Association of Community Centres of the City of Toronto et al.

[1985] OLRB Rep. August 1323

0464-84-R The Canadian Union of Public Employees, Applicant, v. The Association of Community Centres of the City of Toronto, the City of Toronto, Cecil Street Community Centre, Central Eglinton Community Centre, Cowan Avenue Firehall, Scadding Court Community Centre, Ralph Thorton Community Centre, The 519 Church Street Community Centre, Community Centre 55, and Applegrove Community Complex, Respondents

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

APPEARANCES: Ian Roland, Kevin Whitaker and Helen O'Regan for the applicant; David Leibson for the City of Toronto; J. C. Murray for the eight community centres.

DECISION OF N. B. SATTERFIELD, VICE-CHAIRMAN AND BOARD MEMBER I. M. STAMP; August 15, 1985

1This is an application for certification in which the applicant, the Canadian Union of Public Employees ("CUPE") is seeking to be certified as the exclusive bargaining agent for the employees in eight community recreation centres operating within the City of Toronto.

2The application as originally filed named as respondent the Association of Community Centres of the City of Toronto. It came for hearing before the Board differently constituted. As a result of issues identified during the hearing and for reasons set out in the Board's decision following the hearing, the Board added as respondents to the application the City of Toronto and the eight community recreation centres. The Board also directed that a new terminal date and a new hearing date be set for the application and that notices of the application and of the hearing into it be sent to each of the additional respondents together with new notices to the employees to be posted at each centre along with a copy of the Board's decision setting out the issues raised by the application. The Board's decision identified three particular, interrelated issues:

(1) whether employees working at the community centres are employees of the individual community centres, the City of Toronto, or The Association of Community Centres of the City of Toronto;

(2) if the employees are employed by the individual community centres, is this an appropriate case for the Board to apply section 1(4) of the Act and treat the community centres as well as the City of Toronto as one employer; and,

(3) whether there should be a single bargaining unit covering employees at all of the community centres or eight bargaining units, one at each centre.

3When the application came back on for hearing before the Board as constituted herein, the parties were agreed that the Board should deal with all three issues, but decide first the question of who is the employer of the employees affected by the application because a finding that the employer was the City of Toronto would render redundant the issue with respect to section 1(4) of the Act. The applicant takes the position that the City is the actual employer of the employees while the City and the eight community recreation centres take the position that each centre is the employer of the persons employed at the centre. The parties were disagreed whether a decision that the City was the employer would dispose of the bargaining unit issue; that is, whether there should be one or eight appropriate bargaining units. CUPE takes the position that there should be one unit and the other parties take the opposite position.

4Some of the evidence heard by the Board is relevant to more than a single issue, therefore, the Board has not attempted to segregate the facts by issue. While certain of the facts herein were asserted by one or other of the parties and either specifically agreed to or not disputed, the majority of the facts are based on the Board's assessment of the evidence of the persons who testified in the proceedings. The Board heard the testimony of Morley Bregman, Director of Planning and Budgets in the City's Management Services Department, Deborah McGovern, a senior job evaluation officer in the Management Services Department, Mary Kainer, Executive Director of Scadding Court Community Centre, Roger Hollander, Executive Director of The 519 Church Street Community Centre and Charlene Sheard, Program Co-ordinator at Central Eglinton Community Centre. Sheard testified on behalf of CUPE. Hollander and Kainer testified on behalf of the eight community recreation centres and McGovern and Bregman testified on behalf of the City.

5Each of the eight centres has been created by a by-law enacted by the Council of The Corporation of the City of Toronto pursuant to either the Municipal Act R.S.O. 1970, c. 302 or the Community Recreation Centres Act R.S.0. 1974, c. 80. The by-laws respecting Scadding Court Community Centre ("Scadding Court") and Applegrove Community Complex ("Applegrove") were the only ones amongst the eight by-laws which were enacted pursuant to the Community Recreation Centres Act ("the CRC Act"). These statutes also give Council discretionary authority to appoint a board of management (Municipal Act) or a committee of management (the CRC Act). The City has used this authority to appoint a committee of management at each of Scadding Court and Applegrove and a board of management at each of the six other centres. For ease of reference in this decision, the term "board of management" will be used to refer to either situation except where the context requires otherwise. Neither statute operates to make a board of management established by a municipality pursuant to the statute a corporate entity separate from the municipality which created it. The by-law governing each centre establishes the number of persons who are to be on the board of management and provides for their appointment by Council. The numbers on the boards differ from centre to centre, but generally Council appoints the two aldermen for the area served by the centre plus other persons who are nominated by the membership of the centre. In the case of Scadding Court, there are four persons who are appointed by Council without nomination from the centre. The two enabling statutes and the by-laws creating each centre make it clear that the appointments are at the pleasure of Council, although generally for a specific term. There is evidence before this Board that Council has removed and replaced an entire board of management in circumstances where it deemed that action to be necessary.

6The centres have two major sources of funds for their operation: the City and various governmental and non-governmental granting agencies. Some centres also receive funds in the form of user fees and from the proceeds of other community fund raising activities. Those two major sources of funds are reflected in the budgets by which the centres plan and manage their financing. Each centre has a core administration budget and a program budget, also referred to as a self-sustaining budget. The core administration budget is financed by the City and the program budget is financed by funds from all of the other sources. Separate accounting records, including bank accounts are maintained for core administration funds and for program funds at each centre.

7Each centre is required to present a budget annually to the City setting out its requirements for core administration funds for the forthcoming year. These budgets must conform with and go through the same review and approval procedures that the budgets of operating departments of the City are subjected to. Final approval comes from Council. Once Council has given that approval, the funds are advanced monthly to the centres and become their funds kept in bank accounts in the name of each centre, the signing authority for which is designated by the centre's board of management. The centres are free to spend that money without any further approval for the purposes for which it was approved in the budget. These funds cover such expenses as the salaries, statutory and voluntary benefits for full-time core administration employees, salary and statutory benefits for part-time core administration employees, supplies used in the operation of the centres and, if the centre's arrangements with the City includes having the centre pay for the utilities and physical maintenance of its premises, these expenses also would be covered by the core administration budget.

8The program budget deals with all funds from sources other than the City. These funds are used to meet the expenses associated with the programs provided by each centre to its community. These expenses include such things as the salaries, statutory and voluntary benefits of employees who put on the programs provided by the centre. Subject to any accounting of the use of the funds which the centre may have to make to the granting agency, the spending of these funds is at its discretion and are not funds for which the centre must account to the City. The program budget is prepared according to the centre's requirements and does not go through any review and approval process by the City. A copy of the budget is provided to the City for information purposes. Scadding Court has exercised its discretion respecting the spending of these funds to, for example, supplement the salary of a part-time core administration employee. The 519 Church Community Centre ("519 Church") uses funds from its program budget to provide voluntary benefits to the part-time core administration staff because the core administration budget contains no provision for this purpose.

9The proportion of a centre's total funds represented by the funds in the core administration budget varies widely from centre to centre. The core administration funds might represent most of the funds for a small centre, but for Scadding Court they represent approximately fifty-five per cent of its 1984 funding and for 519 Church, the core administration funds are approximately seventy-five per cent of its total spending. The proportion of total expenditures represented by the core administration and program budgets is not reflected in the number of employees in core administration jobs compared with those in program jobs. Program jobs are predominately either part-time or seasonal part-time and full-time jobs and, as a result, a larger number of employees are employed in program jobs than core jobs. For example, Scadding Court has nine core administration employees in a total complement which fluctuates between 30 and 45 employees. 519 Church Street has six full-time core administration employees and four to six part-time. Its program staff fluctuates between a minimum of six and a maximum of twenty employees.

10The by-laws under which the eight centres operate serve three objects:

(1) define the premises which are to be used and establish those premises as a community centre (the Municipal Act) or a community recreation centre (the CRC Act);

(2) establish a committee or board of management "... to manage and control the Premises as a community recreation Centre under the [CRC] Act . . ." or, pursuant to the Municipal Act, " ... to maintain, manage and operate the Premises on behalf of the Council, as a community centre."; and,

(3) define the broad conditions under which the committees or board's of management will operate the premises as community recreation centres or community centres.

The City remains owner of the property and premises or holds the premises as lessee where it is not the owner. Item 3 above refers to the conditions under which the property and premises will be operated by a centre's board of management. The particular conditions vary from by-law to by-law, but there are certain ones which are common to all eight by-laws. These are:

(1) sole responsibility for the custodial care of the premises and for providing the management and supervision required to assure that the premises are used in a fit, orderly and lawful manner as a community centre or community recreation centre;

(2) manage and operate the premises efficiently in accordance with standard good business practices;

(3) keep proper records of board of management meetings and provide a copy to the Commissioner of City Property;

(4) adopt and maintain banking arrangements and ordinary good accounting practices that are acceptable to the City Auditor and keep such books of account and submit such statements from time to time as the City Auditor may require;

(5) provide at all reasonable times access by the City Auditor to all books of accounts and records for inspection or audit purposes;

(6) maintain at all times and at the sole expense of the board of management a public liability and property damage indemnity policy for the premises satisfactory to the City Treasurer and deposited with him; and

(7) provide annually to the City Treasurer financial statements audited by the City Auditor and covering the maintenance, management and operation of the premises.

11Each centre has its own catchment area or neighbourhood to serve. The by-laws for some of the centres define the geographic limits of these areas and in other cases the by-laws are silent. Sometimes there will be overlap of the areas served by some of the centres. The services which a centre will provide to its area is determined by its board of management based on what the board perceives to be the community's needs. Subject to the limits imposed by the premises and by the centre's program funds, the board has full discretion to decide what programs, activities and services will be provided by the centre. In this respect, the board's do all of the following either directly or by delegation to the staff of the centre:

(1) determine what manpower is required and how it will be organized to deliver the services, including the design of the jobs and the qualifications required to perform them;

(2) locate, select and hire the persons to fill the jobs;

(3) determine the rates of pay, benefits and other working conditions of employees;

(4) provide training as needed;

(5) discipline employees, including discharge;

(6) pay employees on cheques of the centre drawn on its bank account; and,

(7) make the statutory deductions and remittances for income tax, unemployment insurance and Canada Pension Plan, all in the name of the centre.

12Those functions apply equally to core administration staff and program staff, although the extent of discretion exercised by the centres with respect to core administration staff is modified to a certain extent by the terms under which the City provides funds to the centres for the salary and benefit expenses of the core administration staff. The core administration jobs in each centre were graded in a job audit by application of one of the job evaluation programs which the City uses to grade the jobs of some of the employees represented by CUPE. Those centres which agreed to pay core administration staff according to the City's salary scales applicable to the job grades assigned were assured of funding for the salary expenses of core administration employees according to those salary scales. These are the salary scales which govern the pay of City employees in jobs represented by CUPE. As a result of this arrangement, the centres which have adopted the job grades and salary scales use those scales in making their requests through the budget review procedure for funds to meet the salary expenses for core administration employees. This also qualifies the centre for funds to meet the expenses of providing benefits to the core administration employees. Full-time core administration employees receive the same benefits as the City provides for employees in similar jobs under one of its collective agreements with CUPE. For part-time core administration employees, the centres receive funding only for benefits such as unemployment insurance, Canada Pension Plan, vacation and holiday pay which are mandated by statute. Unless the centres are prepared to make funds available from sources other than the core administration budget, the rates of pay and level of benefits which they provide for core administration employees are limited to those levels set out in their approved budgets. There are two examples in evidence where the centres have supplemented pay or benefits from other funds. Scadding Court has chosen to supplement the salary expense of a part-time core administration employee so as to provide full-time employment for that person. 519 Church Street provides benefits to part-time core administration employees beyond the statutory benefits and does so out of its program funds.

13The evidence with respect to the Association of Community Centres of the City of Toronto is that it is an ad hoc association of the eight centres formed initially to share information with respect to the manner in which the centres were funded by the city and to help co-ordinate the relationships between the centres and City Council and its committees. The Association has not functioned in any way to seek to bring about a standardization of the pay and benefits for part-time core administration employees or for the program employees at the various centres.

14Some of the centres have been recently formed and others have been in operation for ten years or more. During all of this time CUPE has had collective bargaining relationships with the City respecting its employees but, prior to the making of this application, CUPE had not attempted to assert any bargaining rights with respect to the employees of the eight centres.

15While there is viva voce evidence that the members of Scadding Court have incorporated a not-for-profit corporation, Scadding Court Community Centre Inc., there is no evidence that the members of any of the other centres have established corporations. It appears that the only activities carried on with respect to the Scadding CourtCorporation is that its members annually elect twelve directors of the corporation for the sole purpose of putting forward the names of those persons as members of the board of management to be appointed by City Council. There are sixteen members on the Scadding Court board of management. The Scadding Court Corporation does not maintain separate books andy except for the election of its directors, the only other function which it serves is to use its seal and name for issuing receipts for program funds. The centres have registered themselves with Revenue Canada as charitable organizations and as such issue receipts in their own name for donations received for their programs.

16After all of the evidence had been heard, applicant counsel advised the Board and the parties that the applicant was satisfied that the Association was not the employer of the employees whom the applicant was seeking to represent. Thus, the first question becomes one of whether the City or each of the eight centres is the employer of the employees affected by this application.

17Applicant counsel urges the Board to answer that question by deciding the narrow, legal issue of what sort of entity was created by the by-laws which established them pursuant to either the Municipal Act or the CRC Act. That was the same question, according to counsel, which confronted the Board in its decision in Corporation of the Town of Meaford, [1980] OLRB Rep. May 667. There was an issue in that application for certification of whether the Corporation of the Town of Meaford was the employer of certain employees working at a cemetery and at a community centre both located within the Town of Meaford. With respect to the cemetery employees, the Board found the Board of Park Management of the Town of Meaford, which had been established pursuant to the provisions of The Public Parks Act to manage the cemetery, to be an employer independent of the Town of Meaford and the employer of the cemetery employees on the basis of certain provisions of The Public Parks Act. These were:

(1) The Board, pursuant to section 4 of that Act, was deemed to be a corporation;

(2) the Act authorized the Board to employ all necessary clerks, agents and servants;

(3) the Act gave the Board discretion to prescribe the duties and compensation of employees; and,

(4) the Act provided provision for officers and employees of the Board to become employees of the Town of Meaford if the Board ceases to exist.

The Board found that the Corporation of the Town of Meaford, however, was the employer of the community centre employees and its reasons are given in paragraphs 3 and 4 of the decision set out hereunder:

3. The Meaford and St. Vincent Community Centre is operated by the Comnuttee of Management of the Meaford and St. Vincent Community Centre. The relevant statute here is The Community Recreation Centres Act which empowers a municipality to appoint a committee for the management and control of a community centre. The Act contemplates that actual ownership of the centre will remain with the municipality. The Act does not deem a committee of management to be a corporation, nor does it refer to such a committee as having employees of its own. A reading of the Act as a whole satisfies us that the purpose of a committee of management is simply to manage the day-to-day affairs of a community centre on behalf of a municipality, and that such a committee has no separate legal status as an employer separate and apart from the municipality which creates it.

4. The evidence indicates that the Town of Meaford treats the Committee of Management of the Community Centre in much the same way as it does the Board of Park Management. According to Mr. Floto, the Meaford Town Clerk, the Committee alone is responsible for hiring employees and for setting their conditions of employment. To our mind, this situation reflects only the fact that the Town has seen fit to give the conunittee a wide degree of discretion which, by itself, cannot have the effect of creating the Committee as a separate employer in its own right.

18As the Board understands applicant counsel's argument, he contends that the Board in Meaford decided the question of who was the employer by deciding the narrow legal issue of what kind of entities had been created when the Corporation of the Town of Meaford established the Board of Parks Management pursuant to the Public Parks Act and the Committee of Management of the Community Centre under the CRC Act. That same legal issue confronts the Board in the instant case according to counsel, and even one of the enabling statutes, the CRC Act, is the same as one of the statutes considered in the Meaford decision, supra. Counsel contends that the same factual basis exists in the instant case. Therefore, the Board should decide this case on the same basis as the Meaford case was decided; in other words, by deciding what kind of entity was created when the City passed by-laws under the Municipal Act and the CRC Act establishing each centre and its board of management.

19Counsel for the respondents disagree. They argued that the instant case is readily distinguishable from Meaford because it is clear from the decision that the Board did not have the kind of evidence before it which has been adduced in the instant case. They argue further that, when the evidence of the board of management's scope of authority is related to the factors by which this Board has usually decided which of two or more entities is the employer, it will establish that the boards control all of the incidents of employment. Counsel for the City, in light of such strong evidence, contends that were this Board to decide the case on the basis proposed by applicant counsel, it would be abandoning the criteria for determining who is the employer followed by the Board in York Condominium Corporation, [1977] OLRB Rep. Oct. 645 and in subsequent decisions, like Sutton Place Hotel, [1980] OLRB Rep. Oct. 1538.

20The York Condominium decision pulled together the variety of criteria which the Board had developed over many years to guide it when deciding which entity amongst two or more was the employer of employees whom a trade union was seeking to represent. The manner in which the Board has applied these criteria was later analysed in substantial detail in the Board's decision in Sutton Place, supra. There were seven such criteria and, as the Board observed in Sutton Place, no relative priority as to weight has been assigned to them. Rather, the Board has decided which of two or more entities was the employer based on the proponderance of the evidence before it respecting all seven criteria and after considering how the particular facts apply to those criteria. The criteria are set out at paragraph 26 of the Sutton Place decision as follows:

(1) The party exercising direction and control over the employees performing the work. - See the Municipality of Metropolitan Toronto case, 61 CLLC 16,214; the Sentry Department Stores Limited case, [1968] OLRB Rep. Sept. 540, 546; the Beer Precast Concrete Limited case, [1970] OLRB Rep. May 224, 227-8; the Belcourt Construction (Ottawa) Limited case, [1971] OLRB Rep. June 321, 324; and the Reid's Holdings (Belleville) Limited case, [1972] OLRB Rep. July 753, 761.

(2) The party bearing the burden of remuneration. - See the Municipality of Metropolitan Toronto case, supra; the Goldlist Construction Limited case, [1966] OLRB Rep. Oct. 487, 488; the Kel Truck Services Ltd. case, 1972 CLLC 16,068; and the Templet Services case, [1974] OLRB Rep. Sept. 606, 608.

(3) The party imposing discipline. - See the Reid's Holdings (Belleville) Limited case, supra; and the Templet Services case, supra.

(4) The party hiring the employees. - See the Municipality of Metropolitan Toronto case, supra the Sentry Department Stores Limited case, supra; and the Reid's Holdings (Belleville) Limited case, supra.

(5) The party with the authority to dismiss the employees. - See the Municipality of Metropolitan Toronto case, supra; and the Templet Services case, supra.

(6) The party which is perceived to be the employer by the employees. - See the Sentry Department Stores Limited case, supra.

(7) The existence of an intention to create the relationship of employer and employees. - See the Belcourt Construction (Ottawa) Limited case, supra.

21Counsel for the respondents are likely correct when they say that the Board would be in peril of abandoning these criteria if it does not apply them when deciding which one of two or more legal entities is the employer. A review of those two decisions and the other ones to which they make reference makes it clear, however, that the criteria have been applied to a legal entity in the form of a corporation, person, partnership, either corporate or personal, or some other legal form specifically created by statute. One example of this latter type of legal entity is found in Meaford, supra, with respect to the Board of Park Management which was deemed to be a corporation pursuant to the Public Parks Act under which it was established. Another example is the Province of Ontario Board of International Economy, the respondent in the Board's decision Province of Ontario Board of Internal Economy, [1980] OLRB Rep. Jan. 88. The legal status of the Board of Internal Economy is described in the following terms at paragraph 3:

The evidence establishes that the respondent Board of Internal Economy is a governing body of the Office of the Legislative Assembly, which in turn is the administrative office of the Government of Ontario, including such things as the Office of the Clerk, the Office of the Speaker, the Hansard Reporting Service, and personnel and finance administration. Reference may be made to The Legislative Assembly Act, R.S.O. 1970, c. 240, particularly sections 71-86. The Office of the Legislative Assembly implements the decisions of the Board of Internal Economy. The Board is composed of Members of the Legislature with the Speaker as chairman, and acts as the representative of the Members and transmits their wishes into actions.

It is one of the decisions discussed in Sutton Place, supra.

22The significance under the Act of identifying the legal entity which is the employer was commented on by the Board in Beatrice Foods (Ontario) Limited, [1982] OLRB Rep. June 815. The Board in an earlier decision, had directed the taking of a representation vote in a unit described in terms of "all employees of the respondent at its Model Dairy Division" having first substituted "Beatrice Foods (Ontario) Limited" for "Model Dairy (Division of Beatrice Foods)" as the name of the respondent in the style of cause of the application. The Board received a request from the respondent to reconsider and amend its decision to show as the respondent (employer) "Beatrice Foods Ontario Limited, Model Dairy Division". The Board's decision denying the request was preceded by these comments at paragraph 3:

the Board is of the view that it would not be appropriate to amend the style of cause in the manner requested by the respondent. While a corporation may be subdivided into a number of divisions for operational, marketing and other purposes, the creation of such internal divisions does not change the fact that the legal entity which is the employer remains the corporation itself, which must have "Limited", "Incorporated", "Corporation", "Ltd.", "Inc." or "Corp." as the last word in its name (see Business Corporations Act, R.S.O. 1980, c. 54, s. 8, and Canada Corporations Act, R.S.C. 1970, c. C-32. s. 25). To forestall various difficulties that might otherwise arise with respect to such matters as enforcement of Board decisions and others, it is preferable (although it has not, to date, been the Board's unvarying practice) to include only the corporate name of an (incorporated) employer in the style of cause of an application or complaint. If, as in the present case, it is appropriate to restrict the applicant's bargaining rights to employees who work in a particular division that has been established by their corporate employer, this can be accomplished by referring to that division in the description of the bargaining unit, as was done in the aforementioned decision dated May 31, 1982 in which the unit was described as 'all employees of the respondent in its Model Dairy Division at Sault Ste. Marie...' (emphasis added).

23The Board's decision in Sutton Place is an example of the admission in those comments that it has not been the Board's unvarying practice to use only the corporate name of an incorporated employer in the style of cause of an application or complaint. The style of cause of the decision names Dennis Management Company, a Division of Affiliated Realty Corporation as one of the respondents. The correct style according to Beatrice Foods, supra, would have been simply Affiliated Realty Corporation. What is clear about that decision, however, and this is made clear by paragraphs 4 and 6, the Board was applying the York Condominium criteria to decide which of two corporations was the employer: Affiliated Realty Corporation or an apparent partnership of two corporations, York Steel Construction Limited and Affiliated Realty Corporation, even though the presenting issue was which of Dennis Management Company or Sutton Place Hotel was the employer. Dennis Management was an unincorporated operating division of Affiliated Realty Corporation. Sutton Place Hotel was a joint venture of York Steel Construction Limited and Affiliated Realty Corporation.

24The Municipal Act' and the CRC Act permit municipalities to establish boards or committees of management. Neither Act requires a municipality to establish a board or committee for the purpose of operating a community centre or community recreation centre when a centre is established under either Act. It is in the discretion of the municipality whether it will do so. Nor is there any language in either statute which would make a board or committee established under them a corporation or deem it to be a corporation. Therefore, none of the boards or committees of management of the eight centres is a corporation or deemed to be a corporation under the statutes which enables the City to establish them. The members of Scadding Court, on the evidence before the Board, ostensibly are incorporated under the Corporation Act, R.S.O. 1980, c. 95. If there is a corporation, clearly it is not that corporation which operates Scadding Court centre. That is the responsibility of the committee of management. The directors of the purported corporation are nominated to Council for appointment to the committee. Once appointed they function as members of the committee, not as directors of the corporation.

25The continuing existence of the board of management of the eight centres is at the will of the City. Their existence can be ended by a stroke of Council's pen. While the evidence is that the membership of a centre could continue to provide services to its community if the City revoked its by-law, or amended the by-law to eliminate the board, whatever the organization called itself, it would have to be reconstituted in a different form in order to continue its operation.

26Therefore, on the evidence before the Board, it finds that the boards and committees of management established by the City to operate the eight centres affected by this application have no legal status separate and apart from the City. The evidence demonstrates emphatically that the boards and committees have broad discretion to operate the centres. However, in the words of the Board in Meaford, supra, such discretion ..... by itself, cannot have the effect of creating [each board or committee] as a separate employer in its own right.". If they are not employers in their own right, then the City is the only legal entity which bears the ultimate burden of an employer under the Act. In these circumstances, the York Condominium tests have no application. Consequently, the Board finds the Corporation of the City of Toronto is the employer of the employees of the eight centres who are affected by this application.

27In the result, the question of whether section 1(4) of the Act has any application is redundant. That leaves only the question of whether there should be one or eight bargaining units.

28When the Board is faced with the task of defining appropriate bargaining units of employees of municipalities, usually the Board will define separate units of office staff and all other staff across the whole municipality. These are commonly, if not always correctly, referred to as the "inside" and "outside" bargaining units and, where a successful application for certification is made for one or the other group of employees, the Board generally certifies the applicant to represent all employees in the particular group~ for example, the outside employees, across the municipality even though they may work at or out of different locations. The Board's approach to defining units of employees of municipalities is one of a few departures made by the Board as a matter of policy from its general approach to defining appropriate bargaining units. Other examples are variety chain stores, Brewers' Warehousing stores~ retail food stores and retail service stores. In this regard, see the Board's decision in York Steel Construction Limited, [1980] OLRB Rep. Feb. 293, at paragraph 7 and the quotation therein from the Board's decision in The Goodyear Tire Service Stores, 65 CLLC 16,018. Where one employer operates a business at two or more locations within a single municipality, the Board's general practice is to find a separate unit of employees at each location to be appropriate for collective bargaining except where the operations at the locations are functionally integrated or the employees at the locations share a community of interest such as would cause the Board to group the employees at the various locations into a single bargaining unit.

29When the Board is called upon to decide whether a group of employees at one location of several within a municipality would constitute a viable bargaining unit, it has usually relied on the tests set out in its decision in Usarco Limited, [1967] OLRB Rep. Sept. 526: community of interest; centralization of managerial authority; and the economic impact, if any, on the employer's business of having two or more units instead of one. The Board eschews the Usarco tests, however, in favour of the other policy considerations in those exceptions referred to above. In the Board's decision in Corporation of the Town of Meaford, [1980] OLRB Rep. Nov. 1611 (hereinafter called "Meaford #2"), the Board did not apply the Usarco tests when it decided, having certified the applicant on an interim basis for two units of employees, to issue the formal certificate for a single unit consolidating the two "interim" units. Instead the Board decided on the facts before it not to depart from the usual approach to describing units of municipal employees, which is a policy approach based primarily on the avoidance of undue fragmentation. The Board was concerned in Meaford #2, that " [to] formalize the division of the respondent's employees into two bargaining units would result in two units of semi-skilled employees, one with four employees and the other with only three." and further that ".... This degree of fragmentation would not be conclusive to stable industrial relations and is not warranted on the facts involved.".

30While the facts in Meaford #2 are rather sketchy, the facts herein are extensive and, amongst other things, establish that management of the centres is highly decentralized in the hands of their boards of management. Those boards have and exercise considerable autonomy from the City in the operation of the centres, particularly with respect of the management of the employees. In these circumstances and in all of the circumstances before the Board, it considers this to be an appropriate case in which to apply the Usarco tests of community of interest, centralization of managerial authority and economic impact. The Usarco decision sets out six factors for establishing whether there is a community of interest between employees in separate locations within a municipality: 1) nature of the work performed; 2) conditions of employment; 3) skills of employees; 4) administration; 5) geographic circumstances; and 6) functional coherence and interdependence.

31With respect to the nature of work and the skills of employees, there is no detailed evidence, but the indications from the evidence of the services and activities provided by the units are that the nature of the work performed and the skills required by core administration employees are similar from one centre to another. To the extent that some of the centres have recreation programs in common, the nature of work and skills of employees involved with programs are similar. At a centre like 519 Church, on the other hand, which does not have a recreation focus but which provides services such as day care for children and a drop-in centre for adults, the nature of the work and employee skills involved with programs would differ from centres like Scadding Court where the focus tends to be on recreation.

32While there are no common employment policies between the centres, there are incidentally more similarities than differences in their working conditions. With respect to core administration employees, that is a function of the budget process and the fact that employees in jobs of the same grade or value, as determined by the job audit in which the centres participated, are paid within the same salary scale. They also have the same benefits, except for the part-time core staff of 519 Church. Any similarities in pay and benefits for the program staff would result incidentally from the fact that the centres, presumably within the restrictions of their program funding, measure and attempt to meet community or market standards.

33Administration of the centres is clearly decentralized with each centre's board of management. They are ultimately responsible to Council, but there is no evidence of them having a direct reporting relationship below Council level of the kind commonly associated with the delegation of managerial authority. For example, they do not report in that sense to the Commissioner of Parks and Recreation for the City. They are required by their by-laws to report certain information to certain City officials, but that is strictly informational reporting and stops far short of establishing a managerial relationship. Even Council has delegated to the boards of management complete authority in matters of administration of those functions which are critical to the bargaining unit employees: hiring, firing, discipline, time off, vacation benefits and scheduling, actual rate of pay, the interval and method of payment and control over the funds from which they are to be paid. The City has no direct say in these matters on a day-to-day basis. It can influence them only on a global basis through the core administration budget with respect to the employees covered by it, or by such a draconian step as replacing a board. Thus all matters of administration which bear directly on the bargaining unit employees are in the sole control of the boards.

34All that can be said about the geographic circumstance is quite obvious, the employees work at centres which are located within the City's boundary. The areas which they serve apparently abut one with the other and in some cases overlap. Nonetheless there is no evidence that the employees at the bargaining unit level of activity in one centre have any social or functional contact with the employees of another centre. If the Board was to draw inferences from the evidence as a whole, it would be that there is no contact between these employees on any but the most random and incidental basis.

35Turning then to the final factor, functional coherence and interdependence amongst the eight centres or between any pair of them, there is no evidence of any. There is no evidence of any interchange of employees between any two centres. Nor is there any evidence that the centres even exchange information about job openings or available candidates. All of the evidence points to each centre operating entirely independent of the others to serve a different community. The fact that they have banded together in a loose association for the exchange of information generally or for trying to adopt a common position on matters bearing on their individual relationships with the City, or the fact that the City's budget process requires the eight centres to approach the City at the same time through the same process for their core administration funds does not diminish their independence from each other. Furthermore, the fact that they act independently of each other respecting the raising of their program funds adds reality to the aura of independence.

36The Board does not attach particular significance to any one factor, but considers all of them. The factors nature of work, conditions of employment and skills of employees are somewhat equivocal respecting there being any community of interest amongst the employees of the eight centres. Geographic circumstances point in the direction of the employees of each centre having their own community of interest. Two factors, administration and functional coherence and interdependence, point overwhelmingly and conclusively to there being a community of interest within the employees of each unit and entirely separate from the employees of the other centres. Therefore, the Board finds that community of interest is exclusively with the employees within each centre and there is no community of interest between the employees of the various centres as would cause the Board, on that test alone, to join the employees in a single bargaining unit.

37With respect to the two tests centralization of managerial authority and economic impact, the facts are that there is no centralization of managerial authority. Each board of management must determine for itself how to comply with the objects for its centre set out in the by-law under which the centre and its board were established by Council. Except for information reporting responsibilities and compliance with the budget process for the core administration budget, the only centralization of management authority is in each board of management. There is no evidence to suggest that establishing separate bargaining units in the circumstances of the application would have any adverse impact on the City's normal way of carrying on its operations. Obviously it has been functioning for some ten years or more wtth those of its centres which are managed by boards of management operating independently of each other.

38The results from applying the community of interest and centralization of managerial authority tests point positively to the employees of each centre constituting separate units of employees appropriate for collective bargaining. No contrary indication is revealed from applying the economic impact test. Therefore, the Board is satisfied that the employees of the Corporation of the City of Toronto at each of the following centres constitute units of employees, subject to the necessary and appropriate exclusions, appropriate for collective bargaining:

(1) Cecil Street Community Centre;

(2) Central Eglinton Community Centre;

(3) Cowan Avenue Firehall;

(4) Scadding Court Community Centre;

(5) Ralph Thornton Community Centre;

(6) The 519 Church Street Community Centre;

(7) Community Centre 55; and

(8) Applegrove Community Complex.

39The Registrar is directed to list this application for hearing with respect to all the matters outstanding.

DECISION OF BOARD MEMBER C. A. BALLENTINE;

1. I disagree with the majority.

2. I believe there should be one municipal-wide bargaining unit pursuant to the Board's policy respecting such units. It makes good labour relations sense to have bargaining co-ordinated.