United Steelworkers of America v. Temspec Inc.

[1985] OLRB Rep. May 756

3427-84-R United Steelworkers of America, Applicant, v. Temspec Inc., Respondent

BEFORE: Robert D. Howe, Vice-Chairman, and Board Members J. A. Ronson and L. C. Collins.

DECISION OF THE BOARD; May 27, 1985

1. In a decision dated April 19, 1985 in respect of this application for certification, the Board wrote, in part, as follows:

3. With respect to the bargaining unit, the parties are in dispute as to whether persons regularly employed for not more than twenty-four hours per week should be excluded from the bargaining unit, as submitted by the respondent. After hearing the submissions of the parties with respect to that issue, the Board indicated in an oral ruling that, subject to its usual second check, the Board would certify the applicant pursuant to section 6(2) of the Act, pending the final resolution of that issue. We made that ruling because we were satisfied that the applicant's right to certification could not be affected by the Board's ultimate decision as to the inclusion or exclusion of persons regularly employed for not more than twenty-four hours per week.

4. Accordingly, the Board, pursuant to its discretion under section 6(2) of the Act and pending the final resolution of the composition of the bargaining unit, hereby certifies the applicant as bargaining agent for all employees of the respondent in the Municipality of Metropolitan Toronto, save and except foremen, persons above the rank of foreman, engineering technicians, office and sales staff, students employed during the school vacation period, and, pending the final determination of the matter in dispute, excluding as well persons regularly employed for not more than twenty-four hours per week.

5. A formal certificate must await the final bargaining unit determination.

2. As indicated in that decision, the sole issue remaining in dispute between the parties is whether or not persons regularly employed for not more than twenty-four hours week (also referred to in this decision as part-time employees, for ease of reference) should be excluded from the bargaining unit. The current practice of the Board in this regard was delineated as follows in Inter-City Bandag (Ontario) Limited, [1980] OLRB Rep. March 324:

6. The Board's tendency, at least in recent times, has been to link students with part-time employees in order to make available to students a second bargaining unit, apart from the full-time unit, which will have some viability as a bargaining structure. The problem with the agreement of the parties in the present case is that future part-timers (if any) are, by the lack of an exclusion, automatically subsumed within the bargaining unit created by this application, leaving the students no opportunity to form a subsequent bargaining unit composed of any employees other than themselves.

7. The Board gave careful consideration to this problem in Plummer Memorial Public Hospital, [1979] OLRB Rep. May 433. There, the application was for a unit of part-time employees, from which both parties agreed to exclude students employed during the school vacation period. The Board had this to say:

Where students employed during the school vacation period are excluded from a bargaining unit of full-time employees and an application for part-time employees is filed it is the practice of the Board to include both the part-time employees and the students employed during the school vacation period in the bargaining unit. The Board's practice is predicated upon its belief that students employed during the school vacation period could not form a viable bargaining unit standing alone and even if they could, the result would be to create an unduly fragmented situation, while the Board is receptive to agreements of the parties in respect of bargaining unit descriptions it will not accede to these arrangements where the result is to do violence to its policies. The Board is of the view that the agreement of the parties in this case to exclude students employed during the school vacation period from a unit of part-time employees would do fundamental violence to the policy of the Board in this regard

Accordingly, the agreement of the parties was rejected, and the applicant was certified for a bargaining unit composed of both part-time employees and students employed during the school vacation period.

8. As Plummer was the first clear articulation of the Board's policy not to sever part-time employees and students, even where the parties agree, the Board accepted an agreement of the parties to exclude students from a pan-time unit in The Regional Municipality of Peel, Board File No. 0919-79-R, a case already before the Board at the time the Plummer decision was issued. Since that time however, the Board has been quite rigid in its adherence to the tandem principle with regard to part-time employees and students. Thus in Dominion Steel Export Co. Ltd., [1979] OLRB Rep. Oct. 953, the Board excluded both students and part-time employees from a full-time all employee unit, even though the employer had a history of employing students only, and not part-timers. And in Banvil Limited (unreported — Board File No. 1052-79-R), a case exactly analogous to the present one, the parties had agreed to exclude students but not part-timers from a full-time bargaining unit, on the basis that the employer had a history of hiring only the student category. Notwithstanding the agreement of the parties, the Board applied the tandem principle and described the full-time bargaining unit so as to exclude both students and part-time employees.

9. It must be recalled that Plummer dealt with a part-time application. As can be seen, however, the Board's concerns expressed in Plummer over the availability for students of a viable bargaining structure (as well as the potential for fragmentation), have led the Board in subsequent instances to exclude from a full-time bargaining-unit description a non-existent category, i.e. part-time employees, contrary to its normal aversion to such a practice, and even to the agreement of the parties. Accordingly, the Board is of the view that its tandem principle relating to part-time employees and students ought to be less rigidly applied, and will do so both in dealing with full-time and with part-time applications. Where the parties are able to agree on the part-time/student question, whether it be to combine or sever the two groups (and whatever the employment history may be), the Board will, in the absence of special circumstances, accept that agreement.

10. Where there is a history of hiring only one or the other of the two groups, the Board will tend, in the absence of agreement by the parties, to exclude the existent, but not the non­existent group from a full-time unit. Where, however, a full-time unit excludes part-time employees and students, and an application is made for the part-time unit, the Board (again in the absence of agreement by the parties) will tend to keep the two categories combined, even though only one exists, in order to avoid undue fragmentation.

11. Similarly, where both groups exist and there is no agreement between the parties, the Board will likely treat the two groups in tandem, having regard to the community of interest which often exists between the two, as well as the usual concern over fragmentation.

The rationale for the Board's approach in this area was outlined in the following passage from Toronto Airport Hilton, [1980] OLRB Rep. Sept. 1330:

6. The Board's general practice concerning exclusion of part-time employees and students from full-time bargaining units is set forth in Inter-City Bandag (Ontario) Limited, [1980] OLRB Rep. Mar. 324. (See also The Post Printing Company Ltd., a division of Thomson Newspapers Limited (Leamington), [1966] OLRB Rep. Mar. 930; Premier Plastics Limited, [1969] OLRB Rep. July 508; Wilson-Munroe Company Ltd., [1973] OLRB Rep. Dec. 647; and The Beacon Herald of Strafford Limited, [1975] OLRB Rep. Feb. 103.) This practice reflects the Board's view, supported by the extensive labour relations experience and knowledge of its members, that part-time employees and students, on the one hand, and full-time employees, on the other hand, do not generally share a community of interest since the former are primarily concerned with maintaining a convenient work schedule which permits them to accommodate the other important aspects of their lives with their work and with obtaining short-term immediate improvements in remuneration rather than with obtaining life insurance, pension, disability and other benefit plans; extensive seniority clauses; and other long-term benefits. See, for example, Leon's Furniture Limited, [1976] OLRB Rep. May 232, paragraph 5, in which the Board stated:

we have learned through experience in such applications that part-time employees do not share a community of interest with full-time employees in many aspects of the collective bargaining scenario. More precisely part-time employees are more pragmatically concerned with immediate as opposed to long-term benefits with respect to improving their terms and conditions of employment. In applying this proposition to more practical issues the part-time employee usually prefers to sacrifice long-term pension, medical and other welfare benefits for a more substantial increase in wages or a longer vacation period. The nature of seniority provisions contained in a collective agreement with respect to promotions, transfer and lay-offs does not always assume the same degree of significance to the part-time employee as it would to the full-time employee. In other words, the Board has discerned a natural, inevitable schism in measuring the community of interest between the two categories of employees that invite separation into peculiar bargaining units .

7. For the foregoing reasons, part-time employees and students generally tend to have less initial interest in collective bargaining. Moreover, since the union organizing campaign may give rise to considerable uncertainty and apprehension among part-time employees and students with respect to the continued accommodation of their particular needs and desires for a convenient work schedule and maximum short-term remuneration, they are prone to oppose applications for certification. Such opposition could preclude full-time employees from engaging in collective bargaining if the Board generally exercised its discretion under section 6(1) of the Act in favour of bargaining units which included not only full-time employees but also part-time employees and students. Accordingly, the Board's practice concerning part-time employees and students is not only a policy designed to avoid difficulties which may arise where groups with separate communities of interest are included in a single bargaining unit, but is also an organizing rule which promotes the public interest, identified in the preamble of The Labour Relations Act, in furthering harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees.

(See also Board of Education for the Borough of Scarborough, [1980] OLRB Rep. Dec. 1713.)

3. It is common ground between the parties that the respondent has a history of employing students . . . during the school vacation period and that, in accordance with the Board's usual practice, they should be excluded from the bargaining unit. However, as indicated above, the parties have been unable to reach a similar agreement in respect of part-time employees. They have, however, agreed upon the facts which the Board should take into account in determining whether the employer has a history of part-time employment. An individual who had been regularly employed by the respondent for more than twenty-four hours per week was given time off work to have a baby. When she returned to work, she was regularly employed for not more than twenty-four hours per week on the mutual consent of herself and the respondent. She later returned to full-time employment (i.e., she was again regularly employed by the respondent for more than twenty-four hours per week). She was a full-time employee on March 22, 1985, the date of the instant application, and had been for the preceding two or three months.

4. Counsel did not refer the Board to any Board decisions or other sources which are of assistance in determining whether the foregoing is sufficient to constitute a history of part-time employment, nor has the Board's independent research disclosed any such material. However, having carefully considered the submissions of the parties, we have concluded on balance that the facts set forth above do not justify the exclusion of part-time employees from the bargaining unit in the present case, as an isolated instance in which a person who has been employed on a full-time basis prior to her confinement is permitted to work less than twenty-four hours per week for a period of time before returning to full-time employment does not, in our view, constitute a history of part-time employment.

5. For the foregoing reasons, the Board, in the exercise of its discretion under section 6(1) of the Labour Relations Act, hereby finds that all employees of the respondent in the Municipality of Metropolitan Toronto, save and except foremen, persons above the rank of foreman, engineering technicians, office and sales staff, and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

6. A formal certificate will now issue to the applicant for that bargaining unit.