[1987] OLRB Rep. April 508
3104-86-R London and District Service Workers' Union, Local 220, SEIU, AEL, CIO, CLC, Applicant v. The Corporation of the County of Grey operating as Grey County Homes for the Aged, Respondent
BEFORE: Owen V. Gray, Vice-Chair, and Board Members R. M. Sloan and R. R. Montague.
APPEARANCES: J. H. Nicholls for the applicant; Randolph Kinghorne, R. Butcher and Brian Manser for the respondent.
DECISION OF THE BOARD; April 6, 1987
The name of the respondent is amended to read: "The Corporation of the County of Grey operating as Grey County Homes for the Aged."
This is an application for certification affecting employees of the respondent's home for
the aged in the Town of Durham. The applicant is a trade union within the meaning of clause l(l)(p) of the Labour Relations Act.
The parties agree that there are two appropriate bargaining units for the purpose of this application: a unit of "full-time" workers and a unit of "part-time" workers and students employed during the school vacation period. They have agreed that supervisors, persons above the rank of supervisor, registered and graduate nurses and office and clerical staff should be excluded from both units. The respondent takes the position that "persons employed under a co-operative or governmental training program" should be excluded from both units; the applicant disagrees.
The respondent was invited to state the material facts on which it relies in support of the disputed exclusion. It stated that it has not employed persons under a co-operative training program, although it is engaged in negotiations with respect to the employment of such persons. It has employed persons under governmental training programs for young recipients on welfare payments who are engaged in upgrading of their education to the high school level. The respondent understands that these students receive "credit" for work experience. It has been party to two successive agreements with the Crown in Right of Ontario, as represented by the Minister of Community and Social Services, for the provision of employment experience. By agreement dated August 25, 1986, the respondent agreed to provide "an employment experience for certain students for a period not to exceed twelve weeks from May 1,1986 to August 1, 1986." It agreed it would "pay each student the current minimum wage and benefits" and that "the maximum working week is not to exceed forty hours per week per student." It also agreed to supply the Ministry with such reports as it might require. The Ministry agreed that it would "reimburse" the respondent "a maximum amount not to exceed $900.00 per month per student." This agreement was terminable by either party on ten days' notice. In a subsequent agreement dated October 20, 1986, the respondent agreed to "provide a part-time employment experience for certain students from September 1, 1986 to June 1, 1987" and to pay each student "the current minimum wage up to ten hours per week and a maximum of $50.00 per week." Again, the respondent agreed to provide the Ministry with such reports as it might require, and the Ministry agreed to "reimburse" the respondent "a maximum amount not to exceed $50.00 per week per student." This agreement is terminable by either party on seven days' written notice. As of the application date, one student was being employed on a part-time basis as a result of this agreement. There were 23 other part-time employees on that date, including 6 described on the employer's list as "student."
Each person employed pursuant to these agreements (hereafter referred to as a "subsidized employee") has worked with an employee (hereafter referred to as an "unsubsidized employee") who would fall within either party's description of one or other of the appropriate bargaining units. The unsubsidized employee has trained the subsidized employee to do the work done by the unsubsidized employee; thus, subsidized employees do work ordinarily done by unsubsidized employees. The respondent says it has a unwritten understanding with the Ministry that persons hired pursuant to these programs will not displace current employees or affect the salaries or work schedules of current employees.
The respondent argues that subsidized employees do not share a community of interest with other employees because their employment pursuant to the government program is for a fixed period of time, their terms and conditions of employment are responsive to the terms and conditions of the employer's agreement with the Ministry and their work of is of no value in the sense that the work load of other workers is not decreased as a result of their presence and they do nothing which would have been done in any event at no additional cost to the employer. Counsel for the respondent concedes that its contracts with the Ministry do not prohibit it from providing subsidized employees with terms and conditions of employment more favourable than the minimum provisions which are subsidized by the Ministry, nor from continuing to employ a subsidized employee at its own expense at the conclusion of the program. It appears to us that this distinguishes the facts in this case from those with which the Board was faced in Elizabeth Fry Society of Ottawa, [1985] OLRB Rep. July 1026, where the Board excluded from a unit of other employees persons employed pursuant to a program which, the Board found, "prohibits any 'supplementation of wages beyond the minimum wage'."
The respondent concedes that persons employed under these programs are employees of the respondent to whom the Labour Relations Act applies. (If they were not employees of the respondent, they would not fall within the bargaining unit as described by the applicant.) The question is not whether subsidized employees are to be excluded from collective bargaining under the Labour Relations Act. The question is whether they are to be included in a bargaining unit with the other employees affected by this application. If they are not, it would follow that they would either be included with the office and clerical employees (if they were to be organized) or form a bargaining unit of their own. As subsidized employees perform work similar to the work performed by other employees affected by this application, it seems more appropriate for them to be included with those employees than with the office and clerical employees. While the subsidized employees' interests with respect to their employment will be substantially different from those of unsubsidized full-time employees and even from those of non-student part-time employees, it is not immediately obvious that their interests differ greatly from those of other students employed part-time during the school year or full-time during the school vacation period, except as a result of their being employed pursuant to these programs. It is the long-standing practice of this Board to include students with part-time workers in a single unit, notwithstanding that there can be substantial differences in interest between the two groups, and it strikes us that a focus on the particular revenue sources against which wage costs are allocated on a cost accounting basis is a potentially unstable and undesirable basis for drawing bargaining unit boundaries.
One of the premises of the respondent's argument for exclusion of subsidized employees from a unit consisting of the unsubsidized employees who do similar work is that collective bargaining might result in terms and conditions of employment for subsidized employees which are so inconsistent with the government program, either legally or in a practical sense, that the Ministry would discontinue the program at this work place and these work opportunities would become unavailable. We note, however, that the exclusion of subsidized employees from the bargaining unit for which the applicant seeks certification would not necessarily insulate their employment from the effects of collective bargaining. We can take notice that the employment of persons outside a trade union's bargaining unit to do work which the trade union regards as "bargaining unit work" is often the subject of collective bargaining. Restrictions on the use of such persons to do such work can be the result of negotiations or interest arbitration. If subsidized employees were excluded from the unit for which the applicant seeks certification, the applicant would have no reason to be concerned about the interests of those persons in formulating and pursuing such collective bargaining goals. If subsidized employees are included in the appropriate bargaining unit, on the other hand, subsidized employees would be among those to whom the trade union certified to represent that bargaining unit would owe the duty described in section 68 of the Labour Relations Act. While we do not suggest that section 68 would compel the union to take any particular position in bargaining, the inclusion of subsidized employees in the unit would at least require that the union take their interests into account in formulating and pursuing bargaining goals. Assuming, without deciding, that a potential negative impact on the continuation of these governmental programs with this employer is something about which we ought to be concerned in formulating the appropriate bargaining unit, we are persuaded that a concern of that sort is best addressed by including subsidized employees in the bargaining unit in which they would fall if their employment were not subsidized.
Accordingly, and having regard to the partial agreement of the parties, we are satisfied that the appropriate bargaining units in this application are described as follows:
Bargaining Unit #1 - full-time
all employees of The Corporation of the County of Grey in its home or homes for the aged in the Town of Durham, save and except supervisors, persons above the rank of supervisor, registered and graduate nurses, office and clerical staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period;
Bargaining unit #2 - part-time
all employees of The Corporation of the County of Grey in its home or homes for the aged in the Town of Durham regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, save and except supervisors, persons above the rank of supervisor, registered and graduate nurses and office and clerical staff.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five percent of the employees of the respondent in each of these bargaining units at the time this application was made were members of the applicant on February 25, 1987, 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.
Certificates shall issue to the applicant with respect to each of the aforesaid bargaining units.