[1985] OLRB Rep. January 130
1404-84-R Teamsters Local Union No. 419, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Westburne Industrial Enterprises Ltd., Respondent.
BEFORE: S. A. Tacon, Vice-Chairman, and Board Members F. W. Murray and W. F. Rutherford.
APPEARANCES: Ken Petryshen and Jim O'Donnell for the applicant; W R. Thornton, G. S.White and R. Abramovitch for the respondent.
DECISION OF THE BOARD; January 29, 1985
By decision dated October 16, 1984, (now reported at [1984] OLRB Rep. Oct. 1525) the Board (differently constituted) appointed a Board Officer to inquire into and report back on various matters with respect to several named individuals, as set out in paragraphs 1 5 and 16 of that decision. The Board reconvened proceedings on January 18, 1985 to hear submissions on the Officer's report.
The parties met with the Board Officer, B. McLean, on November 14, 1984. Appearing for the applicant were Ken Petryshen and Jim O'Donnell; for the respondent, W. R. Thornton and Gerald Champagne. The agreements reached and proceedings conducted on that date were without prejudice to the respondent's request for reconsideration dated October 31, 1984, a request which was before the Board at that time.
At that meeting, the applicant agreed that Brad Aitken was properly included in the bargaining unit. Further, where the applicant formerly asserted that Andrea Knies should be excluded from the bargaining unit as an "office" employee and as a "student employed during the school vacation period", the applicant now restricted its objection to the latter category. Finally, the respondent agreed that Denis Bouchard should be excluded from the bargaining unit as a part-time employee.
For clarity, the Board notes at this point that the respondent, subsequent to the Board's ruling on the "student" issue (see para. 10, below), also agreed that Cindy Statham should be excluded from the bargaining unit as an "office" employee.
At the hearing on January 18, 1985, counsel for the respondent submitted that it was appearing without prejudice to filing an application for judicial review. Counsel stated that he had been instructed to apply for judicial review of the Board's decision dated October 16, 1984 although the application had not, as yet, actually been filed. The respondent's request for reconsideration was rejected by the Board in its decision dated January 11, 1985.
The respondent also submitted that the Board stay a decision in this case, (e.g., directing a representation vote, issuing an interim certificate, etc.) pending the ultimate disposition of the application for judicial review. The applicant opposed this submission.
The Board ruled orally as follows:
Having considered the submissions of the parties, the Board is not prepared to grant a stay of proceedings in this case. The respondent is, of course, free to pursue its remedies in other forums if it so wishes. The Board would comment that this ruling is in accordance with the Board's usual practice. Further, while the parties did not refer the Board to any jurisprudence, the Board would cite Cedarvale Tree Services (1972) 1971 CanLII 341 (ON CA), 22 D.L.R. (3d) 40, (1971) CLLC 14,087 (Ont. C.A.). There, the Board was actually served with an application for prohibition on an issue which involved a jurisdictional challenge. The Ontario Court of Appeal held that the Board was entitled to proceed in such circumstances.
The respondent submitted that four individuals (A. Knies, S. White, R. White, G. Aitkin) ceased to be "students employed during the school vacation period" when the four requested to continue in the company's employ after their return to school and the company accepted this proposal. In the respondent's view, the type of employment requested (i.e., whether full or part-time employment) was irrelevant. Once the request was made and accepted, the four should be classified as in or out of the bargaining unit on the basis of the Board's usual test for "full-time" or "part-time" status as of the date on which the union applied for certification. On this basis, the four would be considered full-time employees.
The applicant asserted that the proper test was the status of the four as of the application date. On that date, the four were "students employed during the school vacation period". That status was not lost because they requested to be continued by the company in some fashion at a future date. Counsel conceded that one's status could change from "student" to "full-time employee" in some circumstances but submitted that had not happened in the instant case. August 29, 1984, the application date, fell within the normal school vacation period and the status as of that date could not be changed by some agreement as to the future events.
The Board adjourned to consider the submissions and then made the following oral ruling:
The Board has considered the submissions of the parties and reviewed the cases cited by the respondent. Firstly, the Board considers Holiday Inn (Yorkdale), [1976] OLRB Rep. Nov. 709, St. Raphael's Nursing Home,* [1977] OLRB Rep. Sept. 580, and Trenton Memorial Hospital, [1980] OLRB Rep. Jan. 116 [three cases cited by the respondent] as irrelevant since those cases dealt with the [appropriateness of] of the "four in seven" rule to determine employee status. The Board also considers the Muskoka Board of Education, [1975] OLRB Rep. March 209 [another case cited by the respondent] as not helpful since that case dealt with a dispute as to whether students should be excluded from the applicant's proposed part-time bargaining unit. The comments in paragraph 7 [of the Muskoka decision], then, are directed to the submission that "there be a separate exclusion of casually employed students during the school year." This Board agrees with the rejection of that argument in Muskoka, supra. Here, however, the parties have agreed that "students employed during the school vacation period" are to be excluded. The comments in paragraph 7 [in Muskoka] cannot be wrenched out of context to assist the respondent here.
In this case, the issue before the Board is "what was the status of the four named individuals on August 29, 1984, the application date". On the agreed statement of facts, three were students employed during the school vacation period [for the first time in the summer of 1984] who "requested continuation of employment while attending school which was to commence September 1984". (See item 3 of paragraph c of the agreed statement of facts in the Board Officer's report). In the Board's view, this request does not change the status of these individuals. Nor does the Board consider the circumstances of the fourth individual, S. White, as so different as to lead to a different result. S. White, was also a "student employed during the school vacation period" who had worked for the company on a part-time basis prior to the summer of 1984. That is, the Board finds as a fact that the four named individuals were "students employed during the school vacation period" and, therefore, are excluded from the bargaining unit.
*St. Raphael's Nursing Home also dealt with the appropriateness of including students and part-time employees together in one bargaining unit (see para. 11, below).
The Board hereby confirms the above ruling and would add the following comment. The respondent's argument would shift the question of "status" to a date other than the relevant date, i.e., the date on which the application for certification was filed. In effect, the respondent is saying that an agreement as to a future status can change the present status of individuals. There are several flaws with this argument. Firstly, "student employed during a school vacation period" is not a status which is lost if one requests to continue in employment while continuing to attend school after the vacation period is ended. There is nothing in the status of "student employed during the school vacation period" which precludes a part-time employment relationship during the school year. Indeed, such a combination is not unusual and, further, supports the Board practice of placing "students employed during the school vacation period" in a standard bargaining unit with "part-time employees" (see: St. Raphael's Nursing Home, supra). Secondly, the respondent's argument requires the Board to turn a blind eye to what the actual request was both in general and in the instant case. Here, the four are working on a part-time basis while attending school. Further, in general, the respondent's argument would lead to the absurd result that if a student requested employment as a part-time security guard for the company (a category which under the Labour Relations Act must be excluded from other bargaining units) after returning to school, that individual would be in the bargaining unit for the purposes of the count. The Board does not accept the inconsistency of the respondent's argument which says "not a student" because of a request for continued employment but prohibits the Board from looking at what actual employment relationship resulted or even to look at the request itself. The Board is not here proposing a new test to determine employee status as "in" or "out" of the bargaining unit for the purpose of the count. The Board is merely pointing out the fallacy in the respondent's position. That is, the Board confirms that the status must be determined as of the application date. See also Simpsons Limited, [1984] OLRB Rep. Oct. 1520 wherein the Board found employees who had received termination notices to take effect at a specified date subsequent to the application date to be included for purposes of the count. The notice as to future "status" (termination) did not affect the status of those employees as of the application date. Finally, as stated in paragraph 10, the Board finds as a fact that the four named individuals were "students employed during the school vacation period" as of that date.
For clarity, the Board repeats the bargaining unit description set out in paragraph
3 of the October 16, 1984 decision:
all employees of the respondent in its Distribution Services Division in Mississauga, Ontario, save and except supervisors, those above the rank of supervisor, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.
The Board is satisfied on the basis of all 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 September 13, 1984, 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.
A certificate will issue to the applicant.