Ontario Public Service Employees Union v. Elizabeth Fry Society of Ottawa, 1985 CanLII 999

[1985] OLRB Rep. July 1026

2591-84-R Ontario Public Service Employees Union, Applicant, v. Elizabeth Fry Society of Ottawa, Respondent

BEFORE: R. 0. MacDowell, Vice-Chairman., and Board Members F. C. Burnet and P. Grasso.

APPEARANCES: Barry Casey, Charleen Rose and Faye Ball for the applicant; John M. Scott and Carol Faulkner for the respondent.

DECISION OF R. O. MacDOWELL, VICE-CHAIRMAN, AND BOARD MEMBER P.

GRASSO; July 9, 1985

I

1. The name of the respondent is amended to read: "Elizabeth Fry Society of Ottawa".

2. This is an application for certification.

3. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

4. When this matter originally came on for hearing before the Board on January 18, 1985, the parties were able to reach only partial agreement on the description and composition of the unit of employees appropriate for collective bargaining. There was no substantial dispute as to the facts; however, there was some dispute as to how the bargaining unit should be framed in light of the agreed facts, and because this application was not reached until late in the day, the parties were only able to outline their respective positions. Accordingly, it was agreed that they would make their submissions in writing. Unfortunately, there was some delay in forwarding those submissions to the Board.

II

5. The respondent is a non-profit corporation carrying on activities in the City of Ottawa. Its mandate is to provide assistance to women in conflict with the law. This mandate is carried out through counselling, a residential programme, court programmes, advocacy and fund raising. The respondent receives funding in various proportions from: The United Way, private donations, the (Federal) Department of Correctional Services, the Ontario Ministry of Correctional Services, the Ontario Ministry of Community and Social Services, and the local and regional municipalities. In addition, it provides supervision for parolees on a fee for service basis, paid by the federal correction authorities.

6. The respondent has a central office location at 195A Bank Street, Ottawa, where its administrative work, client counselling, and volunteer co-ordination is carried on. In addition, the respondent owns and operates two residential facilities at 240 Charlotte Street, Ottawa ("Ferguson House"), and 24 Adelaide Street, Ottawa ("McPhail House"). This application relates to the employees at Ferguson House and McPhail House. The employees in the proposed bargaining unit are primarily "residential supervisors" and social workers.

III - Youth Corps Workers

7. The first problem raised by the respondent concerns certain individuals employed for a limited time under municipal, federal, or provincial government funded programmes -in particular, persons working pursuant to the "Ontario Youth Corps Programme". The respondent maintains that these individuals are not its employees.

8. The goal of the Ontario Youth Corps Programme is to reduce unemployment among young people who have left school and are experiencing difficulty finding work or starting a career. It is administered by the Ontario Youth Secretariat which is concerned that such persons be directed to projects which are capable of:

1. providing jobs for those facing special difficulties in seeking employment (Group A – eg/ grade 11 education or less; minimal work experience, physical and/or mental disabilities; problems with the law; and/or those in receipt of welfare assistance);

2. providing jobs to young people with academic qualifications suitable for a skilled or professional job, or who require an opportunity to begin a career (Group B - eg/ graduation from a secondary or post­secondary course; qualified in a trade; qualified business skills; etc.);

3. providing jobs in community organizations offering training and/or the opportunity to provide basic job skills;

4. providing jobs in community organizations offering career-related work;

5. providing worthwhile community services and/or contributing to the economic development of the province.

The programme is open to Ontario residents aged 15 to 24 who have left school, are unemployed, and have been looking for work for at least twelve weeks. As noted, potential participants are divided into two groups. Those in Group A, facing particular difficulties in seeking employment, are entitled to a full wage subsidy from the government. The participants in "Group B" have a higher level of skill or education, but are likewise having difficulty finding a full-time job. They are entitled to receive a $2.50 per hour wage subsidy. The persons we are concerned with fall into Group A.

9. The programme guidelines establish the terms and conditions of employment. All Ontario Youth Corpsparticipants must be paid the provincial minimum wage, plus statutory holiday pay and vacation pay benefits. The programme prohibits any "supplementation of wages beyond the minimum wage". "OYC" employees receive neither travel allowances nor room and board. They may work a maximum of forty hours per week, but they are not supposed to work or be paid for overtime hours, nor are they supposed to work on statutory holidays. If this is unavoidable, they must be given compensatory time off in lieu of pay. They must not be paid for meal breaks unless the specific employment situation requires that they work during this time, and they are paid only for hours actually worked. If a participant takes time off due to vacation leave or illness, he is not paid for that time. Days lost for these reasons may be made up at the end of the programme if there is sufficient time remaining prior to March 31, 1985. It is interesting to note that a letter to the respondent from an official of the Ministry of Correctional Services contains the following statement:

Youth Corps participants are considered employees of your organization and should be covered under your workers' Compensation schedule. Please ensure that a copy of any worker's Compensation report filed is forwarded to the Special Employment Coordinator."

However, Youth Corps workers must not replace or encroach upon the work of regular employees.

10. The general information filed with the Board indicates that the Ontario Youth Corps Programme operates for a maximum of 26 weeks starting on or after September 4, 1984, and ending no later than March 31, 1985. The precise duration of the subsidy is subject to change from year to year. Under the auspices of the Ministry of Correctional Services, the respondent currently provides work opportunities for a maximum of 20 weeks, commencing on or after October 15, 1984, and terminating no later than March 31, 1985. In the previous year, the work opportunities were of 16 weeks duration. It is not clear whether there has been any continuation of these "programme positions" past March 31, 1985. Presumably, that will depend upon a favourable assessment by the established administrative and political authorities.

11. It is clear that, in the absence of the programme, there would be no positions with the respondent. From the respondent's perspective, it is providing a form of subsidized work experience for young people in difficulty. It does not "need" their services, in the sense that they are filling a vacant position or performing work which would otherwise be done by the respondent's own employee complement. Indeed, as we have already mentioned, one of the express terms of the programme is that its participants must not displace regular employees. The primary beneficiary of the programme is the participant who gains work experience, but must still be supervised by the respondent's regular employees. The benefit to the respondent, if any, comes only during the final weeks of the programme when the participant has learned the respondent's routine and can work without assistance or supervision. Before that, she can only be assigned relatively menial tasks.

12. The number of programme participants placed in the respondent's organization was determined not by the respondent's need to service its clients, but rather by the respondent's ability to supervise and assist the Youth Corps participant. The respondent was asked "how many can you take" and decided it could take two. The respondent considers itself under a moral obligation to assist disadvantaged young people, however, there is no commitment or expectation of continued employment beyond the end of the programme. A participant may acquire skills or a familiarity with the respondent which will make her more competitive should a vacancy subsequently arise in the respondent's organization, but there is no real likelihood that this will occur, or that the Youth Corps participant would be given any particular priority. The respondent keeps no personnel records and makes no formal evaluation of the Youth Corps workers.

13. The Youth Corps workers perform tasks assigned by the respondent and subject to its supervision, direction and control. They are paid by cheque bearing the respondent's name. The respondent is shown as the "employer" for unemployment insurance and Canada pension plan purposes, and deducts those amounts from the individual's cheque, as it is required to do under the terms of the programme. Likewise, the respondent deducts any income tax which may be payable. Payroll statements are then prepared in the prescribed form and submitted to the Ministry of Correctional Services for reimbursement. The terms and conditions of employment for the Youth Corps participants bear no relation whatsoever to the terms of the respondent's regular employees. They are prescribed and circumscribed by the provisions of the programme. Any effort by the respondent to modify or supplement those terms is prohibited.

14. The first question which we must consider is whether the disputed individuals are employees" and, if so, of whom. The applicant union takes the position that they are employees of the respondent. The respondent asserts the contrary. The respondent notes the practical and administrative control exercised by the Ministry of Correctional Services over both the selection and remuneration of the disputed individuals. The respondent also points out that although it may benefit from their work performance, they are not required by the respondent, nor would the respondent normally consider hiring them. The respondent argues that, if anything, they are "crown employees" employed by the Ministry of Correctional Services which ultimately provides their wages.

15. We do not agree. If one applies the usual legal criteria to the relationship between the respondent and the participants in the programme, there is little doubt that it points to an employer-employee relationship. The participants are not volunteers, students, or independent contractors. They work for wages. They are referred to the respondent by others, but they are interviewed and finally selected by the respondent, and paid at a fixed rate computed hourly from which the usual "employee" contributions (UIC, CPP, income tax, etc.) are deducted. Although the participants may be inexperienced, their tasks are not generically different from those performed by the respondent's regular employees. After an initial familiarization period, they are providing services to the respondent, subject to the respondent's direction and supervision. While not determinative, it is also interesting to note that the terms of the programme itself envisage that the participants will be "employees" of the participating organizations. That is why it is necessary to ensure proper documentation and coverage for workers' compensation purposes. Rehabilitation and training are aspects of the programme, but employment is the dominant theme - albeit short-term employment in "make work" projects. The circumstances here are different from those before the Board in Regional Municipality of Hamilton-Wentworth, [19821 OLRB Rep. Aug. 1179, but the observations of the Board at paragraph 18 of that decision are equally apposite:

We do not attach much significance to the fact that an arrangement may be described as a "make work" scheme funded in whole or in part by the public purse. Over the years (and particularly in times of economic difficulty) many Canadians have derived their wages through work support programs such as Dree, LIP, the Young Canada Works Program, and numerous other schemes for the support of employment through direct channelling of Government funds to employers both public and private. The whole purpose of such program is to draw on the pool of unemployed workers in an area or category (e.g. youth), and it is not at all unusual to find that such programs give preference to the 'hard core" unemployed, whose U.I.C. benefits have expired and who have little chance finding other jobs. Nor is it unusual that such individuals would be employed by a public sector employer to do manual work of a community service character. And, as in the instant case, the number of jobs provided will be contingent upon the funds made available. In today's society there is nothing particularly novel about employment in a publicly funded "make work" program of limited duration where the participants have no real prospects of advancement. One may question the value of collective bargaining for such persons but that does not mean that they are not employees. (See: Waterloo Roman Catholic Separate School Board, [1977] OLRB Rep. Dec. 856, and Kelowna Centennial Museum Association, [1977] 2 Can LRBR 285 - both of which involved persons employed in a government funded make work program, performing jobs which, but for those government funds would not be done.)

We conclude that the Youth Corps participants are "employees" of the respondent.

16. But that is not the end of the matter. It remains to be determined whether this particular category of employee should be included in a bargaining unit of individuals exhibiting more "normal" employment characteristics.

17. In resolving this question, we might begin by observing that the notion of an "appropriate" bargaining unit is a labour relations concept with no common law anticedents and, in the general case, no precise statutory definition. What it means, quite simply, is the group of employees whom it makes "labour relations sense" to lump together for the purposes of collective bargaining. Section 6(1) of the Act leaves the Board's discretion to fashion bargaining units largely unfettered, permitting the Board to weigh the facts before it in light of its own experience, collective bargaining criteria, and public policy considerations. Yet the Board's determination is obviously of immense practical importance. The more disparate are the interests enclosed within the unit, the more difficult it may be for the union to organize or effectively represent the group of employees. In practice, a markedly different community of interest may be coincident with a markedly different appetite for collective bargaining with the result that if the Board frames the unit too broadly, there may be no collective bargaining at all. This is one of the reasons (although not the only one), why the Board continues to maintain the distinction between "part-time" and "full-time" employees (see Toronto Airport Hilton, [1980] OLBR Rep. Sept. 1330 and Board of Education for the Borough of Scarborough, [1980] OLRB Rep. Dec. 1713).

18. There can be little doubt that the respondent's relationship with the participants in the Youth Corps Programme is not the same as that of a typical employer, nor do they have a typical relationship with the respondent's other employees. By the very nature of their position, their collective bargaining interests or concerns could not be the same. Not only is the duration of their employment fixed and limited, but more importantly their terms and conditions of employment are prescribed externally and (in accordance with the terms of the programme), cannot be altered without prejudicing the subsidy which creates the work opportunity in the first place. Obviously, any collective bargaining on their behalf would take place under severe constraints, and there are real impediments to the application of collective bargaining methods and sanctions (including a strike) to these unique circumstances. Indeed, one may well question the efficacy of formal collective bargaining for persons in the position of the participants here, since, as a practical matter, there really Would be little prospect of improving their economic circumstances without eliminating the very rationale and basis for their existence within the respondent's organization. They simply do not "fit" the collective bargaining model envisaged by the Labour Relations Act.

19. This is not to say that the Board should be exclusively or unduly concerned with the likely results of collective bargaining, or whether it would be effective from the employees' point of view. Collective bargaining effectiveness is largely linked to the exercise of bargaining power, and while the Act contemplates that collective bargaining will enhance the employees' bargaining power and ability to improve their economic position, there is no guarantee that this will be the case. However, the Board must be concerned where a proposed bargaining unit includes individuals who have such a divergent community of interest that their very presence might be eliminated if collective bargaining were actually applied to them, and where the rights and collective bargaining objectives of the respondent's regular employees (part-time and full-time) could be retarded by including in their bargaining unit employees with such different interests. In any event, we conclude that the Youth Corps workers should be excluded from the bargaining units the applicant seeks to represent.

20. The other issues raised by the respondent pose fewer difficulties, since there is a well-established body of board jurisprudence and collective bargaining practice in Ontario which can assist the Board in framing the appropriate bargaining unit. Much of this material is considered at length in the recently published Ontario Labour Relations Board Law and Practice, by J. Sack, Q.C. and C.M. Mitchell, both of the Ontario bar. However, it may be of assistance to the parties to refer briefly to certain matters of particular relevance to the issues raised in this case.

IV - Part-time Employees and Students

21. The respondent operates on a 24-hour basis, providing "around the clock" services and supervision for its "clients". In order to maintain its schedule, it is necessary for the respondent to engage what it describes as "relief workers" who fill in the gaps in that schedule (usually on weekends or holidays). The respondent argues that they should be excluded from a "part-time" bargaining unit, because they are not regularly employed for any particular hours. They are engaged on a sporadic "as needed" basis. There is no guarantee by the respondent that any particular individual will be given work, and conversely, there is no commitment by any such persons that they will be available to work. They are paid on an hourly basis with no deductions withheld, other than for income tax, unemployment insurance and Canada pension plan. The respondent further seeks the exclusion of "students employed during the school vacation period" although on the material before the Board there is no evidence of any history of hiring such individuals.

22. Over the years, the Board has developed a number of general approaches to bargaining unit definitions, which, in turn, have become incorporated into the structure of collective bargaining in this province. That, after all, is one of the purposes of section 6(1): to inject a public policy element into the process of bargaining unit determination so as to establish a degree of uniformity and viability consistent with the needs of an employer in a particular case and the desires of his employees for self-organization and self-determination. These guidelines cannot, of course, be applied in an arbitrary way without regard to the case before the Board, but with certification applications now numbering over a thousand each year, there is an obvious need for procedural certainty and predictability to serve the expectations of the labour relations community and the parties who appear before the Board on particular cases. Moreover, since the Board has been making these bargaining unit determinations for almost four decades, what we might describe as "approaches" or "practices" or "policies" have been translated into collective bargaining practice over the years. Accordingly, there is a substantial onus on any party requesting that the Board depart from procedures that are known, accepted and relied upon by unions and employers alike.

23. In recognition of the fact that employees who work substantially fewer hours than full-time employees, do not generally share a community of interest with the latter group, the Board has generally excluded "part-time employees" from full-time bargaining units, and placed them in a separate unit at the request of either employer or the trade union (see Board of Education for the Borough of Scarborough, supra, and Toronto Airport Hilton, supra, for a discussion of the policy considerations which underlie that approach and which we here -adopt). However, the practice of the Board has been against making distinctions between employees based upon the (actual or probable) duration of their employment with an employer (with the exception of certain "seasonal" employees in certain industries, such as the canning industry and the tobacco industry). Thus the Board has generally declined to distinguish between permanent and temporary (or "casual") employees, and has generally included them in a common bargaining unit (see, for example, Philcon Food Services, [1981] OLRB Rep. Dec. 1771, application for reconsideration dismissed, [1981] OLRB Rep. Dec. 1771; Board of Education for the Borough of Scarborough, supra, and Spraymotor Ltd., [1976] OLRB Rep. May 215).

24. As we have already noted, persons employed less than 24 hours per week are typically excluded from the "full-time" bargaining unit and included in their own bargaining unit together with students employed during the school vacation period. Balancing concerns about fragmentation with those of community of interest, the Board, early in its history, decided that the standard "part-time" bargaining unit should consist of not only part-time employees, but also students employed during the school vacation period. The Board has sometimes deviated from that approach to accommodate the agreement of the parties in particular cases, but in general "part-timers" and "students" have been grouped together. And whatever the merits or origins of this practice, it is now well rooted in collective bargaining practice and much too late to suggest that this way of describing a bargaining unit is "inappropriate" - at least in the absence of compelling evidence to the contrary.

25. Here, the respondent does not dispute the appropriateness of a "part-time" bargaining unit, but claims that its relief workers are not regularly employed for not less than 24 hours per week. However, the respondent's position is based upon a misreading of the Board's jurisprudence and the established collective bargaining practice. It is not the regularity of their employment or hours which is significant, but rather whether, when employed, they regularly work less than the 24-hour cutoff point which has traditionally distinguished "full­time" and "part-time" workers for collective bargaining purposes (and which is recognized in the forms prescribed by the regulations made pursuant to the Act). Someone working ten hours one week, five hours the week after that, and twelve in the following week would still be a "part-time" employee because his regular work pattern involves work weeks of less than 24 hours. Moreover, there are lots of employers who employ workers on a part-time "casual call-in" basis. A public hospital, for example, will typically have a list of registered nurses who "fill in" on weekends or holidays. So will many nursing homes. Such nurses are generally grouped in the "part-time" bargaining unit.

26. The Board's normal practice in determining which employees are full-time and which are part-time, is to look to a period of seven weeks immediately prior to the application as being a representative period in which to assess the number of hours worked. If during four or more of the seven weeks examined a person works more than 24 hours per week, he will ordinarily be treated as falling within a bargaining unit of full-time employees. Conversely, if during four or more of those weeks the individual works less than 24 hours per week, he will be treated as a "part-time" employee properly included in a part-time bargaining unit. The 7-week guideline is, of course, another procedural construct, arising from the Board's experience, adopted in certification proceedings to facilitate and give some predictability to resolving the characterization of employees appearing on the employer's full-time and part-time list. The Board recognizes that working hours are infinitely variable but, by the same token, it is necessary for employers to have some guidelines as to how to reply to a certification application, and for trade unions to know how to structure their organizing activities (see Trenton Memorial Hospital, [1980] OLRB Rep. Jan. 116, and Sydenham District Hospital, [1967] OLRB Rep. May 135).

27. Having considered the representations of the parties, and in the circumstances of this case, we see no reason to depart from the established Board approach to bargaining unit determinations. We are satisfied that "part-time" status should be measured in accordance with the 7-week rule mentioned above, and that there is no reason to depart from the practice of grouping together part-time employees (i.e., persons regularly employed by the employer but for periods varying from 1 to 24 hours) with students employed during the school vacation period.

V - Contract Employees

28. We have also considered the respondent's submissions with respect to the so-called "limited term contract employees" who may be hired from time to time, for limited periods, to perform specific projects such as preparing briefs to government agencies. We are not persuaded that we should specifically exclude them from the bargaining unit. Not only is there no evidence that any such individuals currently exist, but it is by no means clear that should such persons be hired from time to time, they would have a markedly different community of interest from the other employees in the bargaining unit. And, of course, to exclude them merely further fragments the respondent's small work force, since they too would be in a separate bargaining unit.

29. All employees have a "contract" of some kind or other and provide their particular skills to their employer for a period of time. There is nothing particularly unusual about preparing reports on social subjects. Many larger social service agencies have persons on staff whose duties include preparing such material. It is not obvious that someone hired to do this work, even on a short-term basis, will have such a different community of interest from the respondent's regular employees. As we have noted, the Board has not been inclined to define bargaining units in terms of the duration of employment, nor exclude non-existent classifications. We do not think we should do so here.

VI - The 30/30 Rule

30. On an application for certification, the Board is required to determine the number of "employees in the bargaining unit at the time the application is made" and assess membership support as of the "terminal date" fixed pursuant to section 103(2)(j). These two dates establish the temporal reference points for making the determinations and calculations contemplated by section 7 of the Act. For the most part, subsequent changes in employee complement or wishes are irrelevant.

31. The only individuals with an unequivocal claim to being employees in the bargaining unit at the time the application is made are those actually at work on that date - even though, for various reasons, there may be other individuals (on layoff, sick leave, maternity leave, etc.) who are not actually at work when a certification application is made, but who should nevertheless be treated as employees in the bargaining unit for labour relations purposes. That is the group to which the Board looks when determining whether the applicant union has the level of support necessary for outright certification or entitlement to a representation vote (see section 7 of the Act). The Board endeavours to give the words "employee in the bargaining unit" a meaning which is sensible and workable and which will also appropriately accommodate the individual and collective bargaining interests at issue.

32. What are those interests? They can be simply stated. Employees seeking to organize themselves should be able, with some certainty, to identify the constituency of their fellow employees whom they must organize, and that will be used by the Board when assessing the degree of membership support necessary for certification. On the other hand, there will always be some individuals who are not actually at work on the date of the certification application, but who will still have a sufficiently substantial employment attachment to the bargaining unit (however defined) to justify inclusion in the employee constituency and a voice in the selection of the bargaining agent, even though they may not be actively employed on the day the application is made. In order to balance these concerns, the Board has developed what is now colloquially described as the "30/30 rule" which the Board applies for the purposes of determining whether the individuals in the bargaining unit not actually at work on the date the application is made should nevertheless be treated as employees in the bargaining unit at that time (see Ampliphone Canada Limited, [1967] OLRB Rep. Dec. 840). The "30/30 rule" is applied to the persons whom the employer is required to list on Schedules "C" and "D" of its reply.

33. In order to meet the requirements of the 30/3 0 rule, a purported bargaining unit employee not actually at work on the application date must have worked at some time in the 30-day period immediately preceding the application and work, or be expected to return to work at some time in the 30-day period immediately after the application date. Of course, like all rules, this one could be considered somewhat arbitrary; however, the fact is that it too, has withstood the test of time (at least 30 years) and without it or some similar arguably arbitrary rule, it would be impossible to expeditiously process the hundreds of certification applications which the Board must resolve every year. Time is of the essence in labour relations matters, and without such guidelines, collective bargaining rights could be practically defeated or denied. The 30/30 rule has been regularly and routinely applied in a variety of industrial contexts to the obvious advantage of parties who must make or respond to certification applications. No rule is written in stone, and from time to time the Board has departed from the 30/30 rule where the circumstances warranted a different approach. But, once again, there is a substantial onus upon any party seeking to persuade the Board to depart from this well-established, useful and well-accepted practice. The Board is satisfied that the 30/30 rule can and should be applied in this case.

VII

34. Having regard to the evidence and representations of the parties, the Board finds the following two units to be appropriate for collective bargaining:

Bargaining Unit #1

All employees of the respondent in Ottawa, save and except supervisors, persons above the rank of supervisor, office and clerical staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period and persons employed pursuant to the Ontario Youth CorpsProgramme.

Bargaining Unit #2

All employees of the respondent in Ottawa regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, save and except supervisors, persons above the rank of supervisor, office and clerical staff, and persons employed pursuant to the Ontario Youth Corps Programme.

35. Having regard to the agreed facts respecting their duties and responsibilities, the Board is of the opinion that Ms. Coflin and Ms. Horner do not exercise managerial functions

within the meaning of section 1 (3)(b) of the Act; however, for the purpose of clarity, the Board notes the agreement of the parties that they are properly characterized as "office employees" and are excluded from the above-mentioned bargaining units. The Board's decision in this regard should not be construed as any general statement on the appropriateness of bargaining units in similar facilities.

36. On the basis of the documentary evidence of membership filed with the Board, it appears that regardless of whether certain disputed individuals are regarded as "part-time" or "full-time" employees in accordance with the approach set out above, the union will be entitled to certification on an interim basis in the full-time bargaining unit. In other words, whether Ms. Clark, Turner and Murray are properly on Schedule "A" or Schedule "C", 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 January 8, 1985, 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.

37. Accordingly, pursuant to section 6(2) of the Act, the Board hereby certifies the applicant on an interim basis for the "full-time" bargaining unit described above.

38. It also appears that the union will be entitled to at least interim certification in the part-time bargaining unit, because of the level of membership support among the respondent's part-time employees. However, the Board is reluctant, at this stage, to do the arithmetic necessary to establish a precise membership count because some of the respondent's written representations include mention of several other relief workers who might be considered "part­time" employees in accordance with the "7-week rule" and included in the bargaining unit "at the time the application was made" in accordance with the 30/30 rule mentioned above. The Board does not wish to delay this matter further, but out of an abundance of caution, the Board considers it appropriate to appoint a Labour Relations Officer to meet with the parties to enquire into the employee list and composition of the part-time bargaining unit. In all likelihood, when the parties examine the respondent's work records and apply the above-noted "rules", they will be able to settle the employee list and the composition of the part-time bargaining unit without a further hearing before the Board. Accordingly, the Officer is authorized, in his discretion, to reveal the membership count once the list has been settled. If appropriate, a certificate can then issue in respect of the part-time unit, without the expense and delay of a further hearing.

DECISION OF BOARD MEMBER F.C. BURNET;

1. I am in agreement with the substantive decisions of the Board set forth in Section VII of the award, but wish to record my dissent with respect to the classification of Youth Corps participants as employees of the respondent for the purposes of the Act.

2. The respondent is in the business of providing rehabilitative services to various persons, including the subject participants. In business terms, Youth Corps participants represent a market for the respondent, rather than providers of service to maintain operation of the business. Thus, they are customers, not employees. They provide no service for the primary benefit of anyone but themselves; they do not perform work which would otherwise be done by anyone else; and their hours, duration of employment (20 weeks), and remuneration levels are controlled entirely by the Department of Correctional Services, not by the respondent. The respondent is simply the agency which provides and supervises their rehabilitative training and not their employer as that term is usually understood.

3. Their inclusion on the payroll of the respondent serves two basic purposes; it is a convenient way of controlling and channeling funds which are essentially intended to be rehabilitative allowances and training subsidies; and second, it simulates an earned wage, which is psychologically important to the rehabilitative process, as well as establishing a basis of participation in U.I.C. and other social benefit plans. These are valid approaches to the objective no doubt, but the simulation of employee status for these purposes does not qualify the participants for employee status within the meaning and intent of the Labour Relations Act. Their status is more analogous to that of an unemployed person who is sent to school by U.I.C. for skills upgrading and who continues to draw taxable remuneration even though not in the job market during their training period. They do not thereby become employees of either U.I.C. or the school.

4. I would not classify Youth Corps participants as employees under the Act.