Service Employees Union, Local 210 v. Essex County Automobile Club, 1985 CanLII 897

[1985] OLRB Rep. February 256

1098-84-R Service Employees Union, Local 210, Affiliated With Service Employees International Union, AFL-CIO-CLC, Applicant, v. Essex County Automobile Club, Respondent, v. Group of Employees, Objectors

BEFORE: S. A. Tacon, Vice-Chairman, and Board Members A. Grant and P. Grasso.

DECISION OF THE BOARD; February 6, 1985

1. By decision dated December 21, 1984, in which Board Member A. Grant hereby concurs, the Board found that the dispatchers do share a community of interest with the classifications in the bargaining unit, and thus, are an appropriate inclusion in that unit. In accordance with paragraph 5 of that decision, the following are the reasons for the Board's determination.

2. The Board has reviewed the testimony of Ann Wright, a dispatcher employed by the respondent, as set out in the report of the Board Officer. The parties were afforded full opportunity to examine and cross-examine the witness. Further, the parties were given an opportunity to call further witnesses but none were so called. The facts, as elicited through Wright's testimony, were not in dispute although the parties differed as to the importance of the various facts and the impact of those facts in light of the jurisprudence.

3. The respondent organized its submissions as follows:

(a) The nature of the dispatcher's work is distinguishable from that of the agreed bargaining unit;

(b) The working and pay conditions are more closely aligned with a clerical and office unit than that with the agreed bargaining unit;

(c) The skills required of the dispatcher are different from those skills required of members of the agreed bargaining unit;

(d) The intermingling of job function and employees of both bargaining unit and non-bargaining unit drivers, including independent contractors and clerical employees dictate a community of interest other than that with the agreed bargaining unit;

(e) The source of work and the method of assigning work raises a potential for conflict between the dispatchers and others placed in the agreed bargaining unit;

(f) The dispatchers are responsible for the security of the building during certain of the business hours.

Examples were given from Wright's evidence in support of each of the above propositions. The respondent also relied on Hamilton Automobile Club, [1984] OLRB Rep. Jan. 35. In that decision, the Board found that a bargaining unit composed solely of dispatchers would not be appropriate for collective bargaining purposes. In paragraph 8, however, the Board also stated "…..the Board is satisfied on the undisputed facts asserted by the respondent that dispatchers share a greater community of interest with office and sales staff than with tow truck operators." The respondent submitted that, in the instant case, as the employment conditions and circumstances were on all fours with those in Hamilton Automobile Club, supra, this Board should likewise conclude that the dispatchers share a greater community of interest with the office and clerical staff and should be excluded from the bargaining unit.

4. The applicant submitted the Hamilton Automobile Club case, supra, was distinguishable. In Hamilton Automobile Club, there were already two bargaining units (one of in-car driving instructors and one of tow-truck operators). The application was for a third unit consisting solely of dispatchers. The Board in Hamilton Automobile Club rejected such a unit as appropriate to avoid undue fragmentation. The applicant submitted the Board in Hamilton Automobile Club should not have gone further than what was necessary for the decision to comment on the community of interest issue. Here, however, the respondent was unorganized, operated on a small scale and the application was for an all employees unit (i.e., full and part-time). Further, the applicant asserted Hamilton Automobile Club had not decided that dispatchers had no community of interest with ERS drivers as that question had not been before that Board and, thus, this Board could find such a community of interest based on the facts in the instant case. The applicant also reviewed the conditions of employment and other employment circumstances of the dispatchers to illustrate the asserted community of interest with the bargaining unit. Finally, the respondent asserted the proper test was whether there was a community of interest between the dispatchers and the bargaining unit not whether there was a greater community of interest between the dispatchers and the office staff.

5. Given that the "bottom line" decision has already issued, the Board has not listed the examples cited by counsel in support of their respective positions. Further, as the facts, as contained in the Board Officer's report, were not in dispute, the Board has not set out the facts separately but rather incorporated them into the analysis. The Board also notes that, while the bargaining unit includes several classifications (see paragraph 7, infra) the Board generally refers to the agreed unit as "drivers" in assessing the facts in accordance with the criteria below.

6. The criteria enunciated in Usarco Limited, [1967] OLRB Rep. Sept. 526 have been accepted as the appropriate tests to assess the community of interest amongst employees. For convenience, those criteria are summarized:

(a) nature of work performed;

(b) conditions of employment;

(c) skills of employees;

(d) administration;

(e) geographic circumstances;

(f) functional coherence and interdependence.

7. The parties had agreed upon a bargaining unit consisting of several classifications: emergency service drivers (ERS drivers), tow-truck operators, day care drivers, mechanic, "utility" person (referred to as a "gofer"). The Board intends to discuss the criteria listed in paragraph 6 separately with respect to the disputed inclusion of the dispatchers in the bargaining unit.

8. NATURE OF WORK PERFORMED:

The dispatchers' primary function is to receive calls from members and dispatch drivers or contractors to service the requests for assistance. Other duties include handing out and receiving keys from drivers, receiving cash receipts from drivers on occasion for forwarding upstairs and issuing supplies to drivers. Dispatchers also perform some "record-keeping" tasks associated with the receiving and dispatching of calls. That is, call slips are "batched" for forwarding upstairs so the appropriate data may be computerized. This is performed only during the day shift and is sometimes carried out in part by the supervisor. The dispatcher on the "c" shift does the "midnight books", i.e., recording and averaging calls and mileage for drivers. Dispatchers also are responsible for letting persons in and out of the building in off-hours. The nature of work performed, taken as a whole, is similar neither to the work performed by the other members of the bargaining unit nor to that of the office and clerical staff. The Board considers this criterion to be neutral and, thus, it is not necessary to set out the duties of those other employees in detail.

9. CONDITIONS OF EMPLOYMENT:

(i) The dispatchers work three shifts: 8:00 a.m. to 4:00 p.m. ("A" shift); 4:00 p.m. to 12:00 p.m. ("B" shift); 12:00 p.m. to 8:00 a.m. ("C" shift). The dispatchers, thus, are on duty 24 hours per day and seven days per week. Part-time dispatchers generally work weekends except during peak periods when part-timers may work up to forty hours per week. Overtime is also a regular feature of dispatchers' employment during peak periods and even during the off-season to cover in case of illness, for example.

The drivers also work shifts on a seven day per week basis although the shift hours are somewhat different (6:30 a.m. — 2:30 p.m. and 2:30 p.m. to l-:30 p.m.) and there is no "C" shift. (Calls in that period are referred to outside operators). The day-care drivers have hours which, not unexpectedly, reflect the usual schedules of day-care operations. Overtime is also usual during peak periods for drivers.

This shift operation contrasts with the more regular hours of the office and clerical staff (i.e, 9:00 a.m. to 5:00 p.m. with extended hours on Thursday evenings to 8:00 p.m. and every other Saturday from 9:00 a.m. to 1:00 p.m.). Overtime is not a regular feature of this group.

(ii) This contrast is emphasized in the timing of breaks and scheduling of vacations. That ts, drivers and dispatchers have no scheduled breaks in order to ensure coverage during the shift. Office staff, however, do have regularly scheduled lunch and coffee breaks. Moreover, the dispatchers and drivers (again, unlike the office staff) are restricted in scheduling their vacations to off-peak periods.

(iii) It was agreed that the drivers are paid hourly. Further, the dispatchers as well as other bargaining unit members punch a time clock while office staff apparently do not. (Part-time sales staff who solicit membership in the evening also punch a clock but the Board does not consider this as blurring the distinction between the dispatchers and drivers on one hand and the office and clerical staff on the other.)

(iv) There are no differences amongst classifications in the benefit accorded full-iime employees.

This criterion, in the Board's view, favours the inclusion of the dispatchers in the unit.

10. SKILLS OF EMPLOYEES:

The skills of the dispatchers and other members of the bargaining unit are certainly different in that the mechanical skills of the drivers (although such skills are not likely of a high level) are not needed by the dispatchers. However, drivers on occasion have assisted dispatchers during peak periods, as have office staff on a very infrequent basis. It is also true that dispatchers have performed minimal clerical functions, such as stuffing envelopes, as a "filler" during slow times. The dispatchers, though, do not perform even these minimal clerical functions as a significant part of their responsibilities. The "midnight books" and batching, as well, are not time consuming responsibilities nor do they require specialized clerical skills. Also significant is the fact that there has been virtually no intermingling or transfer of employees between the dispatchers and office staff (or the drivers for that matter). Except as noted with respect to overtime assistance on occasion, the respondent hires dispatchers "off the street" rather than filling its needs from within its workforce. This criterion, then, is neutral, in the Board's view and does not assist the community of interest argument of either the respondent or applicant.

11. ADMINISTRATION:

This too is a "neutral" factor and is not dealt with extensively. The Board would only note that the dispatchers have their own supervisor, as do the drivers. In fact, the day-care drivers also have their own reporting line, i.e., to the manager of driver education. The witness did not disagree, when told by counsel for the applicant, that the dispatchers' supervisor reported through the drivers' supervisor -to the general manager of the respondent.

12. GEOGRAPHIC CIRCUMSTANCES:

This criterion tends to reinforce the relationship between dispatchers and drivers. The dispatchers sit with a radio, microphone and maps at the counter in the south-west corner of the building downstairs. The dispatchers' supervisor, the drivers' supervisor, his secretary and the charge guard are also located in that area. Adjacent is the drivers' room where the drivers punch in and receive their keys. Also on the main floor are the touring staff, driver education staff, insurance agents and the cashier. Except for the driver education staff dropping off their keys in the evenings to the dispatchers, there is no contact between dispatchers and the other staff on the main floor. On the second floor are located the sales staff, accounting department, management offices, tourist guide book staff, record department and other secretarial staff. Occasionally, records is contacted by the dispatchers with respect to a recently renewed membership but otherwise there is no regular contact with the second floor employees. The Board considers that that geographic circumstances favour the finding of a community of interest between the dispatchers and the other employees in the bargaining unit.

13. FUNCTIONAL COHERENCE AND INTERDEPENDENCE:

(i) The Board regards the dispatchers and the drivers as intimately related in providing service to club members. The dispatchers receive the calls directly from the club members, dispatch drivers directly and those drivers provide the actual assistance. The dispatchers are in contact with the drivers via radio throughout the shift. There is additional contact with respect to handing out and returning of keys, collection of appropriate data, supplies distribution from the utility person to dispatchers to drivers, and cash receipts from drivers to dispatchers for some customer services. In contrast, there is little or no daily contact with employees in other departments. While, in a broad sense, it may be said that the entire operation is concerned with servicing members, the functional coherence of the dispatchers and drivers is distinct from a broader view of "service".

(ii) The Board does not consider the handling of cash, responsibility for building security on off-hours or the minimal clerical duties as detracting from the functional interdependence of dispatchers and drivers. The clerical functions, as stated, are low-skilled and either not a regular or time-consuming part of the dispatchers' responsibilities. The responsibility for "security" really amounts to letting people in and out after regular working hours. It was not asserted that the duties are those of "security guards" which, by virtue of section 12 of the Act, would require a separate bargaining unit. The handling of cash is simply receipt of cash from the drivers themselves in respect of certain services to customers.

(iii) The respondent submitted that, as the dispatcher decides which driver will handle which call or whether an outside contractor is to be called, there was a potential conflict between dispatchers and drivers and, accordingly, both classifications should not be in the same bargaining unit. On the evidence, the Board finds that the dispatchers do "direct" the drivers in one sense, but that the decision is actually determined by clear guidelines. That is, the driver closest to the call is dispatched. If that driver is busy, a driver from another area who is not on a call but is relatively close is dispatched. If all drivers are busy, an outside contractor is called. The Board is satisfied that the dispatchers do not "direct" the drivers in a way which raises a conflict of interest. The relationship of dispatcher and driver is likely less authoritative than that of lead hands and line employees, and lead hands are almost invariably included in the unit. Moreover, there was no assertion by the respondent that the dispatchers should be excluded from the unit as "managerial" persons in accordance with section l(3)(b) of the Act. The Board would also note that the relationship of dispatcher and driver is very different from that of dispatcher and driver in the taxi-cab or trucking industries where the dispatchers usually have a direct impact upon the earnings of the drivers. Here, the drivers are on duty for their shift; if there are no calls, the drivers are still paid hourly but "sit" in their cars or occasionally in a restaurant or at home if these locations are within the area and provided the dispatcher ts notified as to where the driver can be reached by telephone. Since the choice of driver to be dispatched is so clearly governed by the company guidelines, the dispatcher does not have the discretion to "play favourites" amongst the drivers nor to incur undue costs by hiring outside contractors. It should also be stressed that there was no evidence of actual conflicts of interest between dispatchers and drivers. In the absence of such evidence, the Board should be cautious in placing considerable reliance solely on an asserted potential for conflict in resolving community of interest issues. In any event, in this case, the Board finds no basis for the conflict of interest as submitted by the respondent.

(iv) Thus, on balance, the Board considers the duties of dispatchers and drivers to exhibit a considerable functional coherence and interdependence. This criterion certainly supports the inclusion of the dispatchers in the bargaining unit.

14. Of the six criteria, three (skills of employees, administration and nature of work performed) may be considered neutral on the question of community of interest between the dispatchers and the other employees in the bargaining unit. The three other criteria (conditions of employment, geographic circumstances and functional coherence and interdependence) strongly favour the inclusion of the dispatchers in the bargaining unit. No single factor is pre-eminent and all criteria are to be considered (see: Adams Furniture Co. Ltd., [1975] OLRB Rep. June 491; Extendicare Diagnostic Services, [1982] OLRB Rep. Aug. 1168). In the circumstances of this case, however, the Board finds that consideration of the criteria must lead to a conclusion that the dispatchers should be included in the bargaining unit as sharing a community of interest with those employees.

15. The Board does not regard the decision in Hamilton Automobile Club, supra, as of assistance in resolving the issue before this Board. That is, the Board in Hamilton Automobile Club rejected a unit composed solely of dispatchers as not appropriate. That Board was concerned with the balkanization of bargaining if such a dispatcher-only unit was considered appropriate. This basis for the decision is clear in the underlined passage from paragraph 8:

16. If the Board were to assume, without finding, that dispatchers do not exercise managerial function [sic], the Board is satisfied on the undisputed facts asserted by the respondent that dispatchers share a greater community of interest with office and sales staff than with tow truck operators. Furthermore, there are already two bargaining units: tow truck operators and in-car driver instructors. If the dispatchers were to be carved out of the remaining unrepresented employees, it would mean that there would be a minimum of four full-time bargaining units possible. The respondent employs also a significant number of part-time [sic] employees, so there is a potential for additional bargaining units of part-times employees which would be the mirror image of the full-time units. This opportunity for fragmentation of the respondent's Hamilton employees into multiple bargaining units would not be conducive to sound collective bargaining.

[emphasis added]

The Board need not deal with the first sentence in that paragraph except to note that the issue before this Board is different, i.e., whether the dispatchers share a community of interest with the otherwise agreed bargaining unit, a unit significantly broader than the tow-truck operators unit in Hamilton Automobile Club. Further, the Board's aversion to fragmentation of the unit would not lead to the exclusion of the dispatchers in this case. Rather, since the Board is of the view that there is no community of interest between the dispatchers and the office and clerical staff, the concern with respect to avoiding fragmentation would favour the inclusion of the dispatchers with the otherwise agreed on bargaining unit. In any event, the Board has expressly found the dispatchers do share a community of interest with the others in the bargaining unit.

16. Thus, for the reasons given, the Board finds that the dispatchers do share a community of interest with other employees in the bargaining unit and, as set out in paragraph 4 of the December 21, 1984 decision, finds that all employees of the Essex County Automobile Club in Windsor, Ontario, save and except supervisors, those above the rank of supervisor, driver instructors, sales staff, office and clerical staff and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

17. This matter is hereby referred to the Registrar.