Canadian Brotherhood of Railway, Transport and General Workers v. Chateau Laurier Hotel, 1988 CanLII 3616

Canadian Brotherhood of Railway, Transport and General Workers v. Chateau Laurier Hotel

[1988] OLRB Rep. February 119

1952-87-R Canadian Brotherhood of Railway, Transport and General Workers, Applicant v. Chateau Laurier Hotel, Respondent

BEFORE: Robert D. Howe, Vice-Chair, and Board Members W. H. Wightman and R. R. Montague.

APPEARANCES: Gary Caroline and Rick Beckwith for the applicant; Stewart Saxe, David Turner and Francine Sauriol for the respondent.

DECISION OF THE BOARD; February 10, 1988

1This is an application for certification.

2The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.

3As indicated in paragraph 3 of the (Form 1) Application for Certification which the applicant filed with the Board on October 16, 1987, the unit of employees of the respondent that the applicant initially claimed to be appropriate for collective bargaining was "all employees of the banquet facilities department of the respondent, save and except banquet manager, maitre d'hotel, assistant maitre d'hotel, bar manager, catering manager and assistant catering managers". In paragraph 4 of the Application, the applicant indicated that there were approximately 38 employees in that unit. In paragraph 5 of its (Form 10) Reply, the respondent accepted that unit as being appropriate for collective bargaining with only one change (the pluralisation of "banquet manager"). However, paragraph 4 of the Reply indicated that there were 167 employees in the unit as of the date the application was made. The primary reason for that significant difference is that the respondent's list includes as employees a large number of persons whom the applicant contends are employees of an employment agency and not of the respondent.

4The application was scheduled for hearing on November 13, 1987 before another panel of the Board. Prior to that hearing, the parties met with a Board Officer to review the respondent's list of employees, and to attempt to resolve or narrow the issues in dispute between them. After reviewing the list, the applicant sought to revise its proposed bargaining unit description so as to exclude "persons regularly employed for not more than 24 hours per week and students employed during the school vacation period". The respondent did not object to the timing of the applicant's change in position, but did assert that the proposed exclusions were inappropriate in the circumstances of this case.

5By letter dated November 26, 1987, the Registrar advised the parties as follows:

After reviewing with the parties their proposed departmental unit as opposed to a tag-end unit, and the exclusion of part-time employees, the Board has directed me to advise you that there is to be an exchange of pleadings.

More particularly, each of the parties shall deliver to the Board, within 15 days from receipt of this letter, a statement of the material facts on which it relies in connection with the exclusion of persons regularly employed for not more than 24 hours per week and students employed during the school vacation period from the bargaining unit, which is opposed by the respondent.

6The application was subsequently listed for hearing before the present panel on January 22, 1988. Prior to that hearing, the parties met again with a Board Officer. The Board Officer's report (signed by the parties' respective counsel) regarding that meeting indicates that in addition to the aforementioned dispute concerning the bargaining unit description, there are two other matters in dispute between the parties. Appendix "A" to the report describes those two matters as follows:

1. The Applicant takes the position that all persons on schedule "D" are not employees of the Respondent, except #5, 12, 21, 33, 37, 40, 41, 42, 44, 48, 55, 56, 57, 61, 63, 70, 76, 85, 92, 116, 117, 119, 121, 127,130,138.

The Respondent takes the position that all employees on schedule "D" are employees of the Respondent.

2. The Respondent takes the position that the Board should not apply the 30/30 rule. The Respondent takes the position that all employees who maintain an employee relationship should be on the list for the count.

The Applicant takes the position that in accordance with its usual practice the Board should apply the 30/30 rule.

7After meeting with the Board Officer, counsel appeared before this panel of the Board and agreed to argue the bargaining unit description issue on the basis of the following facts:

1. The Respondent operates a large hotel in Ottawa employing in excess of 550 persons.

2. Banquet employees are employed on an "on-call" basis. In other words they are called in when needed and may either accept or reject the call without consequence. For many the "call" is made by a posting put up in the Hotel on Friday for the week commencing that Sunday; others are actually telephoned. The different treatment is based on whether they are scheduled to be in and will see the posting.

3. The Hotel's need for banquet employees varies greatly from day to day, week to week and month to month.

4. At any time the division of employees along the Board's traditional 24 hour rule will reflect

• who happened to be called that week(s)
• who happened to be available that week(s)
• the particular business pattern at the time, though the Hotel does give some consideration to length of service when scheduling.

5. The actual work performed by part-time ("P.T.") personnel is the same as by full-time ("F.T.").

6. The reporting structure and call in structure does not differ on P.T./F.T. basis and does differ from other employees.

7. The wages and benefits of banquet employees do not differ on P.T./F.T. basis and do differ from other employees.

8. The working conditions do not differ on a P.T./F.T. basis and do differ from other employees.

9. Banquet employees do not owe an employer-employee type allegiance to a particular hotel in the same manner as regular non-banquet employees. This is a result of working for many different employers in the Industry.

10. This unique feature of banquet employees to work for many employers - it could be 4 in a week - is shared by all banquet employees whether or not they happen to work for one hotel a lot in a particular month, although this is impacted somewhat by the seniority component of the scheduling decision.

11. Many of the banquet employees covered by this application likely have membership in the Hotel, Club and Restaurant Employees Union Local in Ottawa as they will work in other Ottawa hotels requiring such membership. This will be true of both F.T. and P.T. employees and will be very different from other employees in the Hotel.

12. The practice in other Ottawa area hotels is to consider banquet employees as a single group treated differently regarding wages, benefits and working conditions from the regular F.T. and P.T. bargaining unit employees.

13. This practice in the Industry to treat banquet employees as a single separate group undistinguished along F.T. and P.T. lines is also reflected in Toronto hotel Collective Agreements and practices.

Points 1 to 8 inclusive are agreed facts for the purpose of determining the appropriate bargaining unit. The parties are also in agreement regarding points 9 and 10, subject to the proviso that those two points are less applicable to employees who regularly work in the area of forty hours per week for the respondent. The only information before the Board regarding the number of such employees is counsel for the respondent's acknowledgment that there may be two or three of them. Counsel for the applicant advised the Board that the applicant has no knowledge of the information contained in points 11, 12, and 13, but that in the interests of expediting the matter, the applicant is prepared to have the Board treat those points as undisputed facts for the purposes of determining the appropriate bargaining unit.

8In Toronto Airport Hilton, [1980] OLRB Rep. Sept. 1330, the Board wrote as follows concerning its general practice of placing full-time and part-time employees in separate bargaining units at the request of either a trade union or an employer (or both):

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 Stratford 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 had 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.

9In Board of Education for the Borough of Scarborough, [1980] OLRB Rep. Dec. 1713, after quoting with approval the preceding passage from Toronto Airport Hilton, the Board stated:

12. We are of the view that the case before us presents much less compelling evidence for the requested inclusion of the so-called permanent part-time employees than existed in the Toronto Airport Hilton case. The employees in question work precisely one-half the hours of full-time employees and this fact is usually the critical advantage flowing to those employees attracted to part-time work. It is this reality that allows them to accommodate the other important aspects of their lives in a much more substantial way than full-time employment allows. For example, a 1976 study revealed that key reasons given for working part-time included: "going to school", "personal or family responsibilities" and "not wanting to work 'full-time'." See Robertson, Part-time Work in Ontario: 1966 to 1976, Research Branch, Ontario Ministry of Labour, August 1976, study No. 20, page 18. The fact that part-time employees perform the same work under the same conditions as full-time employees and the fact that their terms and conditions of employment are similar are not unusual facts in pre-collective bargaining employment patterns and pale in comparison to respective attachments to the work place of full and part-time employees. As the panel in Toronto Airport Hilton case, supra, indicated, it is this Board's experience that part-time employees have less initial interest in collective bargaining than do full-time employees because of the aforementioned attraction of part-time work. Indeed, it is our opinion that collective bargaining would have been impeded for entire industries had this Board taken any other view. It is uninstructive to point to situations where parties are now providing for part-time and full-time employees in one collective agreement (and even here many qualifications have to be inserted). This is the end result of collective bargaining, after a relationship has matured and after the parties have come to an understanding over the proper balance of full-time to part-time work. In fact, without such an understanding, full-time and part-time employees may come into dramatic opposition should an employer decide to rely more heavily on part-time employees for reasons of economy and/or administrative efficiency. Finally, it is important to stress that none of the above deprives part-time employees of collective bargaining. Our approach responds only to the appropriateness of any bargaining unit where a party asks the Board to require their inclusion with regular full-time employees.

13. In the facts at hand the respondent points to the common terms of employment as evidence of a community justifying one bargaining unit. As noted above, these factors do not go to the different appetites for collective bargaining exhibited by these two distinct groups of employees regardless of industry. Moreover, such factors are often the product of unilateral employer action and, thus, unreliable indicators of employee interests. There is no indication that the respondent provided similar conditions of employment in response to employee demands or marketplace pressures. The interchange between full-time and part-time employment in evidence before us is also not unusual and is a phenomenon that can be accommodated by the collective bargaining process. This is not a case where there is no identifiable group of employees hired to work part-time as in Paris Poultry Products Limited, [1978] OLRB Rep. May 453; Canadian Pacific Railway Company, Royal York Hotel Case, [1960] OLRB Rep. May 1960; and in the construction industry.

10The Board will not lightly depart from that well-established practice, which is underpinned by sound labour relations policy considerations. However, as noted in Leon's Furniture Limited, supra, at paragraph 5, the Board must not "exercise 'tunnel vision' with respect to determining questions of appropriateness generally and the exclusion of part-time employees particularly." In the circumstances of the instant case, we are persuaded that the exclusion of "persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period" is not warranted.

11As contended by respondent's counsel, it is clear from the facts set forth above that the persons who would be considered to be part-time employees under the Board's usual approach (of considering the number of hours worked in each week of the seven-week period preceding the application) do not have a separate community of interest from those who would be considered to be full-time under that approach. They perform the same work for the respondent, under the same working conditions, for the same wages and benefits. The respondent's practice in that regard is not merely the product of unilateral employer action. It reflects the practice of other hotels in the Ottawa area, where the practice is to consider banquet employees as a single group treated differently regarding wages, benefits, and working conditions, than the regular full-time and part-time bargaining unit employees who work in other departments. All of the respondent's banquet department employees are employed on an "on-call" basis, and may accept or reject any call without consequence. Thus, they are all in a position to accommodate their working hours with the other important aspects of their lives. Moreover, with the possible exception of two or three persons who may be regularly scheduled to work approximately forty hours per week, the hours, if any, worked in a particular week by a particular employee will reflect who happened to be called that week (in which determination seniority is given some consideration), who happened to be available that week, and the particular business pattern, which varies greatly from day to day, week to week, and month to month. The agreed facts do not point to two relatively distinct groups of employees, separated on the basis of their respective attachments to the work place and their respective number of hours generally worked for the respondent on a weekly basis. Rather, the facts point to a single, relatively amorphous group of employees who share a community of interest based upon common terms and conditions of employment, highly variable hours of work, great flexibility in accepting or rejecting "calls", and a relatively limited allegiance to the respondent.

12As noted above, the Board's practice concerning part-time employees (and students) is also an organizing rule which reflects the different appetites for collective bargaining often exhibited by full-time employees on the one hand, and part-time employees on the other. However, in the instant case the facts support the respondent's contention that its banquet department employees are not divided into two such groups, but rather form a single, relatively amorphous group. Moreover, it is clear that the applicant did not rely upon that rule in seeking to organize the respondent's employees. It initially applied for a bargaining unit composed of all of the respondent's (non-managerial) banquet department employees, without an exclusion of part-time employees and students. Those exclusions were requested only after the applicant reviewed the respondent's list.

13For the foregoing reasons, the Board is satisfied that the rationale which generally warrants the exclusion of part-time employees (and students) at the request of either the applicant or the respondent is, on the basis of the facts set forth above, inapplicable in the instant case. Having regard to that conclusion and to the agreement of the parties concerning the other aspects of the bargaining unit description, the Board, in the exercise of its discretion under section 6(1) of the Labour Relations Act, hereby finds that all employees of the banquet facilities department of the respondent in the City of Ottawa, save and except assistant maitre d'hotel, the bar supervisor, and persons above the rank of assistant maitre d'hotel or bar supervisor, constitute a unit of employees of the respondent appropriate for collective bargaining.

14The Registrar is directed to list this matter for hearing, for the purpose of hearing the evidence and submissions of the parties with respect to the respondent's contention that the Board should not apply the "30/30 rule", the applicant's contention that persons obtained by the respondent through an employment agency are not employees of the respondent, and all other outstanding matters arising out and incidental to this application.

15This panel of the Board is not seized of this application.