Canadian Union of Public Employees v. Kinark Child and Family Services, 1985 CanLII 1064

Canadian Union of Public Employees v. Kinark Child and Family Services

[1985] OLRB Rep. October 1473

2306-84-R Canadian Union of Public Employees, Applicant, v. Kinark Child and Family Services, Respondent, v. Group of Employees, Objectors

BEFORE: Paula Knopf, Vice-Chairman, and Board Members J. Wilson and H. Kobryn.

APPEARANCES: Helen O'Regan for the applicant; Brian P. Smeenk and Barbara Wade for the respondent; no one appearing for the objectors.

DECISION OF THE BOARD; October 25, 1985

1. This case involves an application for certification. An interim certificate was issued by the Board on December 21, 1984 and then later amended by decision of January 16, 1985 which resulted in the interim description of the bargaining unit as follows:

all employees of the respondent at Thunder Bay, Ontario, employed in the respondent's native program, save and except supervisors, persons above the rank of supervisor, registered and graduate nurses, psychologists, social workers included in the professional resource group, staff training co-ordinator, secretary co-ordinator-personnel, office staff, maintenance staff, child care teachers employed in the cultural awareness center, persons employed for not more than 24 hours per week and students employed during the school vacation period (hereinafter referred to as bargaining unit #1) and all employees of the respondent in Thunder Bay, Ontario, employed in the respondent's non-native program save and except supervisors, persons above the rank of supervisor, registered and graduate nurses, psychologists, social workers included in the professional resource group, staff training co-ordinator, secretary co-ordinator-personnel, office staff, maintenance staff, child care teachers employed in the cultural awareness center, persons employed for not more than 24 hours per week and students employed during the school vacation period (hereinafter referred to as bargaining unit #2).

2. Further, in the Board's original decision of December 21, 1985 five items were identified as being in dispute between the parties and thus the Board directed a Labour Relations Officer to enquire into those issues and report to the Board. The Labour Relations Officer and the parties were able to reach agreement on three of the five areas in dispute, but were unable to resolve the following two issues:

(1) the request of the respondent for the exclusion of "househeads" on the grounds that they exercise managerial functions; and

(2) the request of the representative of the group of objecting employees that "child care teachers employed in the cultural awareness centre" be excluded on the basis that those persons do not share a community of interest and ought to be represented in their own bargaining unit.

3. Following the release of the Labour Relations Officer's report, counsel for the employer requested that the Board hold a hearing in order to hear representations as to the conclusion which ought to be reached as a result of the report on the two issues which remained in dispute. On the same day, the respondent union advised that it did not desire a hearing before the Board but instead forwarded written submissions. The Registrar scheduled the matter for hearing on September 23, 1985. All parties including the objecting group of employees were given notice of the hearing. However, no one appeared on behalf of the objectors.

4. The first issue to address is whether the employees in the classification of "househead" should be included within the bargaining unit as "employees" within the meaning of the Act, or whether they ought to be excluded because of the exercise of managerial powers.

5. The evidence establishes that therapeutic homes are operated by the employer with the object of providing care for children in a setting that is as close as possible to a healthy family home situation. The homes are usually staffed by three child care workers and two night relief staff as well as the househead. The househead works together with the rest of the staff, with the same hours, under the same conditions and participates directly in child care. The homes are under the direct managerial control of the Native Programme Residential Supervisors and the Thunder Bay Programme Supervisor. The evidence makes it clear that the househeads try to operate on a consensual basis with the staff arranging scheduling and work duties co-operatively as far as possible. Thus, the position of the respondent union was that the househead should be viewed as a "team member" who is there to provide direction to other members when a consensus cannot be achieved. Further, the powers of the househead would be always subject to review by the residential supervisor and/or the programme manager.

6. However, there was also extensive evidence outlining the extent of "power" or authority that is vested in the househeads. With respect to hiring, the househeads play a significant role. Initially, prospective employees are interviewed by senior members of management and, if they appear to be suitable, are sent into a family home for a three-day observation period. During that period, the prospective employee is assessed by the househead and the rest of the staff. But at the end of the three-day observation period the househead is able to make a recommendation to the supervisor as to whether the prospective employee should be hired or not. The evidence establishes that the house head's recommendation has always been followed and that management has never overridden any recommendation of the househead with regard to hiring.

7. Once hired, employees have a probationary period. When the three-month probationary period has come to an end, a decision has to be made as to whether a person should be taken on to full-time staff. Again, the househead is called upon to make a recommendation in this area. Similarly, the househead's recommendation has always been followed.

8. With regard to discipline and discharge, the evidence establishes that the househeads have issued formal discipline to child care workers in their homes and have had significant input into the question of discharge. Examples of disciplinary letters were entered as exhibits that had been signed by househeads. Further, a notice of discharge signed by a househead was entered into evidence. The evidence also revealed a situation where, on the recommendation of the househead, a decision to issue a suspension rather than a discharge was taken by management in the face of a serious act of misconduct which would normally lead to automatic discharge.

9. Another function of the househead is to participate in the performance evaluation of child care workers in their individual homes. These evaluations are kept on file and impact on employees' futures with the employer.

10. The househeads also have a large role to play in the scheduling of the child care workers including the allocation of overtime and the decision to grant time off. It is clear that the homes tried to work out schedules on a co-operative basis allowing for the staff's personal needs and lifestyles as much as possible. However, if full co-operation cannot be achieved, it is ultimately up to the househead to decide schedules. Employees are then required to fill out time sheets on a daily basis and these are checked and signed by the househeads at the end of each pay period. Paycheques cannot be issued without the signature of the househead which verifies the hours. However, it is true that management has often reduced the number of hours' payment despite approval by the househead. When casual time off is desired, the househead is the one who approves this. Further, the househead would have the power to grant a leave of absence under two weeks' duration on his or her own.

11. The applicant union describes the househead's duties as "consultation or input" as opposed to actual decision making. It was submitted that rather than having a power of "effective recommendation” or "independent managerial authority", the househeads instead "engage in occasional participatory management with the real managers". It was submitted that this should indicate that any supervisory activity is simply incidental to the primary task of providing child care services together with their colleagues who are the child care workers.

12. In contrast, the respondent submits that the evidence establishes that the househeads exercise "effective control" over the employees, i.e., the child care workers who they supervise because they have the ability to make other decisions or effective recommendations in areas that materially affect the economic lives of the employees.

13. In order to decide this issue, the Board has indicated in cases such as The Hydro Electric Commission of the Borough of Etobicoke, [1981] OLRB Rep. Jan. 38 and The Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121 that we should examine issues such as hiring, discipline and discharge, performance evaluation, wage increases, scheduling, including time off and overtime, and the nature of the particular business or the employer's organizational scheme. In addition, the Board is always concerned about whether the inclusion of certain persons within the bargaining unit would put them in a position of a conflict of interest with the other people in the unit.

14. In this case, the Board concludes that the househeads must be considered to be holding a managerial position because they do possess control and effective powers of recommendation over the other workers in the house. Their ability to discipline and indeed dtscharge employees is the most startling example of this. In addition, their ability to make effective recommendations with regard to hiring, achievement of probationary status and annual evaluations is also the exercise of a managerial function. We are satisfied that their involvement goes beyond mere consultation or input even though decisions are often made together with other members of management. But far more importantly, their ability to make effective recommendations or indeed make the ultimate decisions themselves in this area puts them in an irreconcilable conflict of interest with the other employees in the unit. Such a conflict of interest would make it impossible for them to fulfil all their duties if they were considered to be members of the bargaining unit. For all these reasons, the househeads must be excluded from both bargaining units.

15. The next issue for the Board to address is the question of whether the child care teachers employed in the Cultural Awareness Centres should be excluded from the bargaining unit. It was the position of both the applicant and the respondent that this group of employees should be included in the bargaining unit. However, the group of objecting employees took the position that the child care teachers did not share a community of interest with the rest of the unit and ought to be represented in their own bargaining unit.

16. The Board did not have the benefit of any submissions from the objecting employees who were seeking the separate bargaining unit. However, the Board has been able to review the evidence carefully and consider the submissions made on behalf of the applicant and the respondent.

17. The Board notes that the applicant and the respondent had agreed early in these proceedings to establish separate units for the "native" and "Thunder Bay" programmes for the stated reason of taking into consideration the "substantial cultural content of the native programme and the unanimous desire of all parties to protect the cultural integrity of the [native] programme." It was the position of both the applicant and the respondent that the child care teachers and the child care workers in the native programme shared a community of interest and to separate them into a further unit would lead to unwarranted fragmentation, jurisdictional disputes and difficulties in administration dealing with layoff, recall, transfer and seniority.

18. In assessing this issue, the Board has applied the traditional indicia set out in Usarco Limited, [19671 OLRB Rep. Sept. 526 which include:

(1) nature of the work performed;

(2) conditions of employment;

(3) skills of the employees;

(4) administration;

(5) geographic circumstances;

(6) functional coherence and interdependence.

19. We note that the native programme is designed to provide both residential and non­residential therapeutic services to native children and their families. This involves the residential treatment programme, the non-residential treatment programme and the Cultural Awareness Centre. The residential treatment programme is staffed by child care workers and night relief staff. The non-residential programme is staffed by "family workers" at the Cultural Awareness Centre. The children for the residential and non-residential programmes attend school which is designed to cope with their special situations. It is here that the child care teachers carry out their functions. The teacher's job is to provide child care from the non­residential aspects of the programme or for those in the residential programme who require a high ratio of staff attention. They also provide care, safety, programming of activities and are involved in counselling. They work together with the child care workers in assessing the needs of the situation of the children. While the child care teacher's focus is primarily in the area of education, the child care worker's focus is to provide a therapeutic and normalized home life.

20. The evidence establishes that the conditions of employment are very similar for the child care teachers and the other members of the bargaining unit. While they may work in very different settings, the hiring procedure is the same and the respondent applies the same policies with regard to pay increases to all the other employees insofar as salary scale and fringe benefits are concerned. The child care teachers work the same number of hours per pay period and are paid on the same overtime basis as other members of the bargaining unit. All personnel matters are administered through the respondent's central Thunder Bay Office. It is true that the Cultural Awareness Centre is separate from other areas of the respondent's operation. However, it is to be remembered that all the respondent's therapeutic homes are geographically separate. Thus, this does not appear to the Board to be a significant factor, especially in the light of the fact that there is no suggestion that the geographic separation itself ought to result in a separate bargaining unit.

21. The Board also notes that there is a great deal of exchange between the child care teachers and the child care workers with regard to advising each other on difficulties or significant areas of concern with the child on a daily basis. In addition, when required, the child care worker will assist a child care teacher at the Cultural Awareness Centre to meet the needs of the individual children. Employees in the child care worker, child care teacher and relief staff classifications are able to fill in for each other as required.

22. The above does not amount to a complete review of all the evidence regarding the child care teachers in the Cultural Awareness Centre and the issue of whether they ought to be included in the bargaining unit. However, it is sufficient to illustrate that they must be seen to share a community of interest with the other members of the bargaining unit which the parties have described as bargaining unit #1. We can see no cogent reason to separate these employees from the rest of the group which provides the services to the children on behalf of the employer. To separate them, would cause unnecessary fragmentation and would render impossible the process of collective bargaining and collective agreement administration.

23. Therefore, because we have found that there is a community of interest and we can see no reason to create separate units, we conclude that the child care teachers ought to be included in the bargaining unit which the parties have described as bargaining unit #1.