International Union of Operating Engineers, Local 793 v. Tricil (Sarnia) Limited
[1986] OLRB Rep. November 1604
1804-86-R International Union of Operating Engineers, Local 793, Applicant, v. Tricil (Sarnia) Limited, Respondent, v. Group of Employees, Objectors, v. Teamsters, Chauffeurs, Warehousemen and Helpers Local 880, Intervener
BEFORE: Ken Pet ryshen, Vice-Chairman and Board Members W. G. Donnelly and J. Sarra.
APPEARANCES: Jack J. Slaughter and Bruce Knight for the applicant; Barbara G. Humphrey, Ian Hamilton and Robbin Dawe for the respondent; John Gabriel for the objector; no one appearing on behalf of the intervener.
DECISION OF THE BOARD; November 13, 1986
1This is an application for certification.
2The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
3The parties were unable to agree on the bargaining unit description. In the bargaining unit description set out below, the parties are in dispute with respect to the underlined portions:
all employees of the respondent in the Township of Moore, save and except supervisor, persons above the rank of supervisor, office and sales staff, dispatchers, employees for whom any trade union held bargaining rights as of September 24, 1986, persons regularly employed for not more than twenty-four hours per week, students employed during the school vacation period and students employed in a co-operative training program.
4The applicant contends that the position of supervisor represents the first level of management while counsel for the respondent argues that the first level of management is represented by the chief chemist position. The applicant also takes the position that students employed in a co-operative training program should be excluded. Counsel for the respondent disagrees. With respect to this latter issue, the parties agreed on the material facts and made their submissions to the Board. After entertaining the parties' submissions, the Board reserved its decision. This decision represents the Board's ruling and reasons on the issue of whether students who are employed in a co-operative training program are to be excluded from the bargaining unit in this application.
5The person who was employed by the respondent in a co-operative training program on the date of the application is Mike Kitchen. Prior to starting with the respondent as a lab technician on December 16, 1985, Kitchen had been in a college program for approximately 1 1/2 years. From December 16, 1985 until the end of April, 1986, Kitchen worked full-time hours for the respondent. For a period of nine weeks in May and June, 1986, Kitchen worked "part-time" hours which varied from a low of 5 1/2 hours to a high of 37 hours per week. Kitchen resumed working full-time hours for the respondent in July, 1986 and it is expected that he will continue to work full-time hours until the end of December 1986. It is expected, as well, that this pattern of work will continue for Kitchen until he completes the study portion of the program at the end of 1987.
6There are three lab technicians in the bargaining unit who are not in dispute. All three of these persons were involved in a co-operative training program similar to Kitchen's training program prior to becoming permanent full-time employees. It is expected that Kitchen will also be hired by the respondent as a full-time lab technician once his study program is completed.
7Kitchen's terms and conditions of employment are similar to those of the other lab technicians, except that Kitchen does not receive a weekly salary, he is not covered by the respondent's benefit plan, he does not receive time off in lieu of overtime and the respondent does not provide him with safety boots. All of the lab technicians essentially perform similar work. On the schedules filed by the respondent, Kitchen is described as a "laboratory technician in training". As one would expect from such a position and as counsel indicated in her argument, Kitchen's duties and responsibilities vary to some degree and he is paid less when compared with the other lab technicians.
8Counsel for the applicant argued that the Board's practice is to exclude students employed on a co-operative training basis from a full-time unit and that the Board should follow this practice in this case given the circumstances. Counsel submitted that the different terms and conditions of employment of Kitchen, when compared to the other lab technicians, should lead the Board to conclude that Kitchen does not have a community of interest with the full-time permanent employees. Counsel argued that placing Kitchen in the full-time unit may have the effect of depriving the permanent employees of bargaining rights.
9Counsel for the respondent submitted that the Board's policies of ensuring access to collective bargaining and of defining bargaining units in such a way so as to promote harmonious and meaningful bargaining should lead the Board, on these facts, to include Kitchen with the full-time unit. Counsel suggested that previous Board decisions were of little assistance in this case, and even if the Board's practice is to exclude such a category of employee, such a practice is not carved in stone and each case must be examined in light of its own facts. Counsel emphasized Kitchen's work experience when arguing that he should not be treated by the Board in the same way it treats students employed during the school vacation period. Counsel argued when one looks at Kitchen's terms of employment in comparison with the other lab technicians, one does not find such a diversity so as to lead one to conclude that Kitchen has no community of interest with the other lab employees. By excluding Kitchen from the bargaining, counsel argued, the Board would effectively be depriving him of the opportunity to gain the advantages of collective bargaining.
10The Board's practice, as revealed by its decisions, has been to consistently exclude students employed in a co-operative training program from a full-time unit. Although there are not many published decisions on point, we are not aware of any decision which has included such a category of employee in a full-time bargaining unit where the issue was in dispute. In Union Carbide Canada Limited Gas Products, [1971] OLRB Rep. Aug. 464, after reiterating the Board's policy regarding students employed during the school vacation period, the Board indicated that "we see no reason why such a policy should not likewise be applicable to students employed on a co-operative training basis". Since it is clear that the employer in that case did not employ persons in that category on the date of the application, but had a history of employing such persons, the Board requested further particulars of its expectations of employing such students in the future. In Lely Limited, [1971] OLRB Rep. Aug. 539, the Board concluded, having regard to the evidence contained in an examiner's report, that a person in dispute was employed as a student in a co-operative training program and, therefore, excluded from the bargaining unit. The Board noted that it was its regular practice to exclude such persons from a bargaining unit at the request of either party. Although not dealing with the precise issue, subsequent Board decisions have confirmed its practice with respect to students employed in a co-operative training program (see, for example, Trent Metals Limited, [1976] OLRB Rep. Dec. 840, and S.G.S. Supervision Services Inc., [1981] OLRB Rep. Oct. 1471).
11The Board is concerned with attempting to structure bargaining units in a way that will promote collective bargaining. To achieve this objective, the Board will not place employees who have significantly different interests in the same bargaining unit. In addition, when it fashions bargaining units, the Board is concerned with ensuring that access to collective bargaining is not unduly restricted. Based on these policy considerations, the Board has developed a practice of excluding students employed during the school vacation period from a unit of full-time employees. Generally, students do not have a long term commitment to a particular employer and they have terms and conditions of employment which differ in a material way from the terms and conditions of employment of the permanent full-time employees. By placing such a constituency with its distinctive interests in a bargaining unit with the full-time employees, the Board would be creating a potentially unworkable bargaining structure as well as perhaps depriving the full-time employees of their right to collective bargaining.
12The Board has treated students employed in a co-operative training program in the same way it treats students employed during the school vacation period for essentially the same policy and community of interest considerations. In the Board's view, students employed in a co-operative training program would have interests more akin to those of students generally as opposed to those of the permanent full-time employees.
13In approaching the issue before us, we accept the position advocated by counsel for the respondent that the Board's practices are not carved in stone. We agree with the following comments in The Toronto General Hospital, [1986] OLRB Rep. April 566, wherein the Board stated at page 571:
we must also say that we are in full agreement with counsel for the Hospital that such practices and policies must always be open to challenge and be capable of being examined fully in the light of each case and each new set of facts that are presented. Otherwise, the Board would be seen to be fettering its discretion and failing to exercise its jurisdiction to determine the appropriate bargaining unit in cases such as this.
14In examining the facts in the instant case, we are not satisfied that the circumstances before us warrant departing from the Board's usual practice. The fact that Kitchen has worked for the respondent for some time, is expected to work for some time in the future and the respondent expects to hire him as a full-time lab technician, are factors which do favour placing him in the full-time unit. But even though it is expected he may become a permanent employee in the future, his status as of the application date is still that of a person who is studying and working in the hope of qualifying as a registered technician. If Kitchen does not successfully complete his course, presumably he will not secure a permanent position with the respondent as a lab technician. If he does complete the course, he may decide to secure permanent employment elsewhere. Although Kitchen's work experience gives the appearance of an on-going relationship between him and the respondent, there is still an element of uncertainty that characterizes the relationship. It is this element of uncertainty, in part, which places Kitchen in a different position than that of the permanent full-time employees. In one sense, Kitchen is no different from students who work for an employer for many summers and expect to obtain permanent employment once their schooling is completed. Until individuals acquire permanent full-time employment, their interests and, accordingly their appetite for collective bargaining, are likely to be quite different from those of permanent full-time employees.
15The differences in the terms and conditions of employment between Kitchen and the other lab technicians are not insignificant. These differences emphasize the fact that Kitchen is in a less permanent relationship with the respondent and the fact that his bargaining interests are quite different from those of the other lab technicians. The fact that Kitchen does not receive any benefits is consistent with a recognition by the employer that Kitchen is in quite a different position than the other lab employees. Given Kitchen's different bargaining interests and his minority position, the Board may well be ensuring that his interests would not be addressed if it were to include him in the full-time bargaining unit.
16Kitchen is the one remaining employee at the date of the making of the application who would not fall into the bargaining unit given our decision to exclude students employed in a co-operative training program. In such a situation, the Board would not give the exclusion and would include such an employee in the bargaining unit if that employee is a member of the trade union seeking bargaining rights (See Forf Frances Clinic, [1983] OLRB Rep. Aug. 456). Contrary to the submission of counsel for the respondent (as set forth in the final sentence of paragraph 9 of this decision), as a result of that well-established Board practice, in the particular circumstances in this case it is ultimately Kitchen's own choice as to whether he is to be included in or excluded from the full-time bargaining unit.
17Therefore, having regard to the Board's usual practice, the particular facts in this case and the submissions of the parties, the Board will exclude students employed in a co-operative training program from the bargaining unit in this application.
18The only outstanding issue in dispute between the parties is whether Gordon Hennin, Laboratory Supervisor, is excluded from the bargaining unit because he exercises managerial functions under 1(3)(b) of the Act. The Board hereby appoints a Board Officer to inquire into and report back to the Board on the duties and responsibilities of Gordon Hennin.