[1991] OLRB Rep. April 517
2742-90-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Kehl Tools Ltd., Respondent v. Group of Employees, Objectors
BEFORE: M. A. Nairn, Vice-Chair, and Board Members R. W. Pirrie and B. L. Armstrong.
APPEARANCES: D. Flynn, H. Powers and P. Campeau for the applicant; P. F. Milloy and G. Kehl for the respondent.
DECISION OF THE BOARD; April 25, 1991
I
This is an application for certification. The parties met with a Labour Relations Officer prior to the date scheduled for hearing and reached agreement on certain of the matters in dispute between them. A hearing was convened before this panel to deal with outstanding issues with respect to the bargaining unit description and the list of employees.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act (the "Act").
The applicant applied for a bargaining unit consisting of all employees of the respondent excluding foremen, persons above the rank of foreman, and office and sales staff. The respondent employer requested that the Board find two appropriate bargaining units; one bargaining unit consisting of full-time employees and a separate corresponding part-time employee bargaining unit. In addition, the parties disagreed on whether certain individuals should be classified as "full-time" or "part-time".
The applicant challenged four employees on the employer's list. It is the applicant's position that Chris Young, Jim Villemaire, Ken Farough and Joe Lyons were all "full-time" employees on the date of application. It is the respondent's position that these four individuals are "part-time" employees (Joe Lyons was listed on Schedule D because he was not scheduled for and did not work on the application date. Mr. Lyons did return to work on January 18, 1991 so falls within the Board's 30/30 rule. However the question of whether he is a full-time or part-time employee remained outstanding).
In determining whether an employee is "full-time" or "part-time" the Board normally looks at the employer's records of time worked in the seven weeks preceding the application date. The applicant argued that the Board should choose a different representative period in this case. The applicant further argued that these challenged individuals and the employees listed on Schedule A share a community of interest and that, in the circumstances of this case, it is appropriate that there be one bargaining unit. In other words, the applicant submits that whether or not these challenged employees are considered "part-time", all employees have a sufficient community of interest to share a single unit for collective bargaining purposes.
It is the position of the respondent that full-time and part-time employee bargaining units are appropriate. The respondent argued that the Board has long recognized a different community of interest between full-time and part-time employees and that there is nothing in the circumstances of this case that would warrant a departure from that recognition. In characterizing the employees, the respondent urged the Board to follow its usual approach, that is, to look at a representative seven week period immediately preceding the date of application in order to determine whether for four out of those seven weeks the employees were employed for not more than twenty-four hours per week and consequently would be considered part-time employees.
II
The circumstances that are relevant to this dispute can be summarized as follows. Kehl Tools Limited is an established shop that performs copy milling or machining and also gun drilling. It takes on overflow work from larger shops having contracts with the automakers in the Windsor area. The employees in the proposed bargaining unit(s) are all machinists with the exception of one maintenance person. While the hours of work fluctuate depending on the amount of available work, employees regularly work for more than twenty-four hours per week (excluding for the moment the period during the Work Sharing Program discussed later).
In late September or early October 1990 the respondent experienced a slow-down in work. Initially the respondent employer made efforts to find other work for its employees including maintenance and cleaning of the shop. However, the slow-down continued. On October 28, 1990, the respondent entered into a Work Sharing Agreement with Employment and Immigration Canada pursuant to which seven or eight employees (including the four challenged employees) began to participate in a work share program. In accordance with that agreement available work was shared among the employees participating in the program. The respondent paid the employees for hours actually worked and Employment and Immigration Canada subsidized the employees' wages with Unemployment Insurance benefits.
In reviewing the application forms that an employer must complete in order to participate in this government program, its intent is clear. As explained in the "Notes to Assist in the Preparation of a Work Sharing Agreement":
The Work Sharing Program is designed to avoid the layoff of some employees by providing a means whereby the available work is shared by all the employees. They will be working fewer hours, and receive Unemployment Insurance benefits for those days or hours that they do not work. It is a program intended to assist employers in retaining skilled employees during a period of "temporary" work shortage.
[emphasis added]
In order to participate, the employees affected by the Work Share Agreement must sign a declaration which reads: "In order to eliminate the proposed layoff we the undersigned employees of (name of company) hereby agree to enter into a work sharing arrangement ...". George Kehl, the respondent's general manager acknowledged in evidence that the idea behind the work share program was to avoid a lay-off.
Commencing October 28, 1990 the respondent and the employees entered into the Work Sharing Agreement and employees were paid for statutory holidays and benefits in accordance with practice and the requirements of the Agreement. Hours of available work were shared between the participants in the program and as a consequence the number of hours worked by each of them was reduced. In reviewing the payroll records of the four challenged employees, it appears that this reduction was gradual.
Each Work Share Agreement operates for a maximum of 26 weeks. Although the program was scheduled to end on April 26, 1991, the program was terminated early on or about February 4, 1991. Employees were not satisfied with the program. Not only were their hours of work limited but the work available was unpredictable. As Mr. Kehl put it, the employees were almost working "on-call". Upon the termination of the Work Share Program three employees, Chris Young, Jim Villemaire and Joe Lyons were placed on indefinite layoff effective February 4, 1991. Ken Farough was not laid off and continues to work.
We are satisfied that the program contemplates that the employees who participate in the Work Sharing Program are full-time employees who are subject to a temporary reduction in the amount of available work. In addition to the notes referred to earlier, point 5 of the Work Sharing Agreement and point 7 of the Employer Eligibility Criteria provide as follows:
When a Work Sharing Agreement is to be terminated, the company is required to provide the following information on, or prior to, the effective date: the reasons for the termination, the future plans for Work Sharing, members, i.e., full-time work, layoff etc., and the effective date of the termination. This date may be the date when all members of the Unit resumed full-time work;
Retained Work Activities Significant
The establishment must still maintain a significant work activity. This means that during each week of the agreement, the hours worked by members of the Unit must be at least 40% of what would have been their total normal hours of work (or the equivalent of two days for a normal 5 day week). Periodic complete plant closures (except normal vacations [sic] periods) involving the total work force are not permitted.
[emphasis added]
- The application date in this case was January 17, 1991. Using the Board's usual four out of seven week rule in determining whether or not an employee is regularly employed for not more than twenty-four hours per week, the representative seven week period in this case would run the seven weeks from November 29, 1990 through to January 16, 1991. Applying the rule in this case, the four challenged individuals would be treated as part-time employees.
III
In the circumstances of this case, we would not be prepared to move from the Board's usual approach to determining who is a full-time or a part-time employee. While the "rule" is in fact only a guideline, and while the use of the representative period for determining whether someone is full-time or part-time has created and will create some anomalies, a method must exist to make the determination. We obviously favour one which developed to reflect an apparently reasonable distinction between full-time and part-time employees and is now well established, well known, and easy to apply. The parties are then able to govern themselves accordingly. (See Sydenham District Hospital [1967] OLRB Rep. May 135 and Trenton Memorial Hospital [1980] OLRB Rep. Jan. 116). In particular circumstances, the Board has chosen to look at a different representative period. (See for example, Westgate Nursing Home Inc. [1981] OLRB Rep. Apr. 503 and SGS Supervision Services Inc. [1981] OLRB Rep. Oct. 1471). Such circumstances do not arise in this case. Nor are we persuaded that looking at a representative period prior to the implementation of the Work Share Program would be the appropriate approach in this case. Given our conclusion regarding the appropriate bargaining unit however, it is unnecessary to formally decide whether these four challenged individuals are full-time or part-time employees.
In fashioning appropriate bargaining units the Board generally accedes to a party's request to group full-time and part-time employees in separate bargaining units for collective bargaining purposes. There are two caveats to that approach. First, the Board looks to whether there is a history of employing part-time employees (see Teinspec Inc. [1985] OLRB Rep. May 756 and compare Board of Education for the Borough of Scarborough [1980] OLRB Rep. Dec. 1713 with Paris Poultry Products [1978] OLRB Rep. May 453). It makes no sense to create a "notional" bargaining unit which has no members at the time of certification, and may never have any. However, if there is a history of part-time employment two units may be appropriate.
In order to show a history of employing individuals on a part-time basis, the respondent pointed to the Work Share Program which, it said, established a part-time workforce almost three months prior to the date of application for certification. But even if such a limited time period (and one resulting from a temporary program) could show a "history", we do not accept that the employer was creating a part-time workforce. It was, rather, participating in a temporary Work Share program designed to avoid the lay-off of some of its otherwise full-time employees.
More fundamentally, the employer's argument is based on the assumption that there is necessarily and inevitably a separate and distinct community of interest between full-time and part-time employees. As the respondent noted, the Board has generally accepted that such a distinction can be made. (See Board of Education for the Borough of Scarborough, supra, and cases cited therein). It is probably also the case that a party challenging that assumption must provide evidence to show the Board that the full-time and part-time employees share a community of interest so as to include them in the same bargaining unit.
However, in the circumstances of this case, the four challenged employees more than resemble the full-time employees. The difference between them is the fact of their participation in the Work Share Program. We note that there were at least seven individuals participating in the program. We can only assume that the other employees in the program had sufficient work to maintain their average hours in excess of 24 hours per week.
Until their participation in the Work Share Program these employees were working in excess of twenty-four hours per week. There is no evidence of any other employment of part-time employees. The employees in dispute were not historically "part-timers", nor is there anything unique about a temporary part-time status that is not fully explained by the government program in which they participated for a time (and which, even as of the date of the hearing, was over).
In our view, the circumstances and considerations in this case resemble those in Paris Poultry Products, supra. We are satisfied that the evidence in this case supports the conclusion that an all employee bargaining unit is an appropriate bargaining unit.
Having regard to the above, we find that all employees of the respondent in the Township of Sandwich West save and except foremen and persons above the rank of foreman, office and sales staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
Having regard to our finding with respect to the bargaining unit and the conclusions with respect to the list of employees, we are satisfied that there were thirteen employees in the bargaining unit at the time the application was made.
In support of its application for certification the applicant trade union filed valid documentary evidence of membership on behalf of eight individuals, all of which coincide with names of employees in the bargaining unit. A duly completed Form 9 was also filed. A document was also filed by employees opposing the certification application. There is no overlap between the names of employees expressing opposition to the application and the names of employees who have signed membership cards in the trade union. Therefore no doubt is cast on the membership evidence filed by the applicant and there is no need to inquire into the voluntariness of the document filed.
The Board is satisfied, on the basis of all the evidence before it, that 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 February 4,1991, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(g) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
A certificate will issue to the applicant.