Ontario Public Service Employees Union v. Avenue II Community Program Services (Thunder Bay) Incorporated
[1991] OLRB Rep. July 807
0749-91-R Ontario Public Service Employees Union, Applicant v. Avenue II Community Program Services (Thunder Bay) Incorporated, Respondent
BEFORE: M. G. Mitchnick, Chair, and Board Members R. W. Pirrie and R. R. Montague.
APPEARANCES: Nick Coleman and Vic Williams for the applicant; Alan Jones, J. V. Boeckner and Allan McKitrick, Jr. for the respondent.
DECISION OF THE BOARD; July 11, 1991
1This is an application for certification in which the parties have reached agreement on all aspects of an appropriate bargaining-unit description, save for the question of the inclusion or exclusion of the four individuals described as "Home Support Workers". The parties were advised at the meeting with the Labour Relations Officer that the applicant was in a certifiable position regardless of the outcome of this single issue in dispute.
2Funded by the Ministry of Community and Social Services, the respondent employer is an agency whose goal is to assist and allow individuals with at least some form of developmental disability to become integrated into the community in all aspects of their lives. There are virtually no services provided to the client group (referred to as "members") at the office of the agency. The agency arranges the leasing of residential accommodation suitable for two or three persons throughout the community, and places a member in such accommodation, along with a Home Support Worker and normally one other member. The cost of the lease is undertaken by the agency, with assistance from the member or members where they have the means to do so.
3The bargaining unit applied for by the applicant is composed of 34 persons, that total being made up of one receptionist, one bookkeeper, 28 Support Workers, and the four Home Support Workers who are the subject matter of the present determination. It is the responsibility of the Support Workers to develop programs for the "members" of the agency in response to identified needs, and to then implement that program through the training of the individual involved. The Support Workers report to supervisors or "Co-ordinators", and are required to attend case planning sessions to report on how matters are proceeding with respect to members assigned to them. The majority work a 37¼-hour week, although the "Support Workers" group includes some part-time workers as well. Daily hours are worked out with the Co-ordinator, around the core hours of 9 to 3. Support Workers are notionally on 11-month contracts, for funding purposes, and towards the end of each contract undergo a formal evaluation process. They are paid a salary which works out to approximately $24,000 a year, and can opt into a 50%-paid employer fringe-benefit package. They also receive vacation and sick leave. The "Co-ordinators" not only carry out the aforesaid performance appraisals, but also are responsible for ensuring that the Support Workers are "at work" according to their schedule.
4The function of teaching the members the basic skills of residential living rests, not with the Home Support Worker, but with Support Workers assigned to the Residential program, who attend at the residence during daytime hours to prepare the member in such matters as personal grooming. Support Workers in another program, the Vocational program, have the responsibility for preparing the member for integration into the work force, and carry that responsibility out primarily by attending with the member at the place of employment and sitting by the member's side to assist in the transition. A third program, Life Skills, is carried out by a further group of Support Workers who attend with the member in the community, for example, at their bank, to teach those skills at the actual site at which they are applied. The Home Support Worker, by contrast, is simply required to be at their place of residence during the evening and night-time hours as negotiated, and their specific responsibilities are far more limited. The employer's evidence is that it is not the responsibility of a Home Support Worker to teach life skills to the members with whom they reside, other than to accompany them on the weekly shopping trip to buy groceries for dinners, the one common meal of the day to which all members of the household contribute both money and suggestions for the menus. The Home Support Worker negotiates his/her hours of being "at home" in the residence with the Co-ordinator, but essentially the "core" hours of 10:00 p.m. to 8:00 a.m. are required to be covered. The idea of the program, and in particular its residential component, is that the member is free to live his/her own life; however, the Home Support Worker has a silent alarm in the worker's bedroom which is triggered by the front door being opened, and it is the responsibility of the Home Support Worker to ascertain the reason why any member is leaving the residence in the evening. Some members are considered perfectly competent to make their way out for "a stroll" on their own, while others would be considered seriously at risk, and the employer makes it clear that it would hold the Home Support Worker severely accountable if one such member had been permitted to leave the apartment, without monitoring by the Home Support Worker, and a call having gone to the agency for back-up support if necessary. Apart from that, however, the apartment is the normal place of residence of the Home Support Worker as well. The Worker is expected to carry out a normal daily routine, including sleeping at night, and hopefully will have a job, or be enrolled in school, during the daytime hours.
5The Home Support Worker's contract with the agency notionally covers 365 days a year, with the emphasis being on maintaining stability in the relationship developed within the shared place of residence. Obviously replacement coverage for the Home Support Worker does have to be arranged from time to time during the course of the year, however, and the Home Support Worker has the option of either advising the agency of such need and relying upon the agency to provide the coverage, or of arranging the coverage directly with an individual who has previously been approved by the agency. It is not disputed that the most common way of dealing with such "coverage" needs is through the use of the "regular" Support Workers already employed in the agency's program. Conversely, the Home Support Workers are looked to by the agency as a ready supply of experienced back-up personnel in covering for vacancies in the "day" units, with two of the four Home Support Workers currently being used on an ad hoc basis and paid at an hourly rate, while a third is in fact a "regular" part-time day worker in the Life Skills unit, carrying out all of the responsibilities of a Support Worker in that unit, including the development of the individualized programs themselves. The assignment of "regular" staff into the residence in fact provides the employer with the one source of evaluation available to it with respect to the relationship existing between a Home Support Worker and his/her co-tenant members, and if reports from Support Workers indicate an inappropriate situation, the agency will take steps to remove the member or members from the care of that particular Home Support Worker.
6The Home Support Workers sign exactly the same form of contract for "full-time" employment as do the "regular" Support Workers. That form of contract provides for the insertion of a "probationary period", and such insertion has in fact been made for a three-month period with respect to the contract filed for at least one of the current incumbents. The "Contract Period" is also set out within this standard form, and the contract closes with the words:
"I hereby accept the above-noted conditions of employment."
There is an additional document which sets out further guidelines for the Home Support Worker, and which is agreed to form part of the contract of employment. This further document provides:
AGREEMENT BETWEEN AVENUE U AND THE HOME SUPPORT WORKERS (HSW)
The H5W will assist fellow tenants with daily routines as outlined in the supported Independent Living Program duty roster.
These may include but are not restricted to: dining; dressing, housekeeping; medication; leisure; recreation; laundry; grocery shopping; and menu planning.
The HSW will act as a correct role model for fellow tenants and participates in SIL program, staff and tenant meetings.
The HSW will be considered as Part time employee of Avenue II.
The H5W will be responsible for his/her portion of household costs (ie: food, telephone, rent) and ensures that any decision which affects the income of his/her room mates (ie: cable T.V., and so forth) will be discussed with the 5ILP Component Co-ordinator.
The H5W will be responsible to the 5ILP Component Co-ordinator, and will perform duties as assigned by that senior staff member. Any disagreement should be submitted to the Executive Director in writing.
The H5W will be in the home during the hours scheduled. If due to circumstances he/she cannot be in the home at the designated time he/she will contact the home 1/2 hour ahead of schedule to inform the SILP staff, tenants, and/or on-call staff members, who may then elect to arrange coverage at the HSW's expense if necessary.
The HSW will identify to the Executive Director, two "backup" individuals who will undergo vetting by Avenue II to determine their qualifications to provide that coverage. The "backup" individual will be paid by the HSW at an agreed rate. Avenue II requires this agreement to be in writing and held on file. Standard forms will be provided by Avenue II. "Backup" individuals should be introduced to other tenants and visit the home at least once a month to interact with the tenants and review changes in program routine for which they may be responsible.
The H5W will safeguard the room mates against loss of their living quarters by ensuring that noise levels due to stereos, TV's etc. are not excessive; physical abuse to the unit is mitigated; and the upkeep of the yard, walkways and so forth are maintained in an acceptable manner.
The H5W agrees to work with his room mates toward providing a normalized housing situation wherein the room mates can move toward a goal of independent living as it applies to their own individual abilities and capabilities.
[emphasis added]
7The employer argues in support of the Home Support Workers' exclusion that:
(1) they are "dependent" contractors; and alternatively,
(2) if they are "employees", they are not appropriate for inclusion in this bargaining unit.
While initially put forward as a "community of interest" type of argument, it is clear from the employer's elaboration that what it really is saying with respect to point #2 is that the nature of the these Home Support Workers and their responsibilities, including, the employer submits, their legal "tenure" as tenants on the residential lease, make them inappropriate for inclusion in any bargaining unit. The removal of services of this particular group, the employer submits, would create such difficulties for the employer that the normal balance sought to be struck through collective bargaining under the Labour Relations Act could not be achieved, and it is therefore simply not appropriate that the organizational rights arising from that Act be found to apply in this situation. The employer queries whether any collective agreement negotiated for these individuals could properly take into effect the conditions and goals under which the Home Support Workers are expected to work, and whether the principles of any "unionized" workplace could be compatible with the philosophy of this unique developmental program.
8Certainly the evidence does disclose some obvious differences between the "Home Support Workers" and the broader group of "Support Workers" essentially making up the remainder of the bargaining unit. The latter group performs a much more active, "teaching" role, "working" a day shift, and the qualifications sought are generally at a minimum the Developmental Service Worker certificate, or its equivalent. In comparison, the emphasis on hiring "Home Support Workers" is more in the nature of identifying a "caring" kind of person who will also provide an appropriate role model in carrying out his or her own daily life. In return the agency, as explained, provides the Worker with a place of residence rent-free, together with a stipend of $1,000 a month. Home Support Workers are not invited to participate in the fringe-benefit programs offered the "regular" staff by the employer, although they are permitted to elect to have the employer make the normal deductions for Unemployment Insurance, Canada Pension Plan and Income Tax, and all four of the existing Home Support Workers have made that election.
9The employer in its argument refers in particular to the following passage from the Hospital for Sick Children case, [1985] OLRB Rep. Feb. 266, wherein the Board indicated that in its view, the question of an "appropriate" bargaining unit can effectively be reduced to "a relatively simple question" as follows:
Does the unit which the union seeks to represent encompass a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour-relations problems for the employer?
10The Board very much agrees with that essential statement of the issue, but considers the employer to have misapprehended its impact in the present situation. The Labour Relations Act contains no exclusion from the application of its rights for persons in the category of the present "Home Support Workers", and the employer's underlying position that these individuals not be permitted to participate in collective bargaining at all is simply untenable. Nor does the lack of any restriction on how these individuals use their day-time hours bring them within the category of what the Board might conclude to be "dependent contractors", as opposed to "employees": all that this arrangement demonstrates is that these individuals are in the position of carrying on a second, "day" job if they choose to. The only question for the Board, therefore, is whether this small group of four employees of the agency are to be set apart on their own from the otherwise all-inclusive group of employees of the agency for whom the applicant has indicated its willingness to act as bargaining agent. And for the Board to come to that kind of a conclusion, the evidence pertaining to incompatibility and community of interest would have to be compelling indeed.
11And clearly it is not. Rather, all that the evidence appears to demonstrate is that there are two different classifications, being Support Workers and Home Support Workers, employed within the program of the agency, each attracting the terms and conditions of employment appropriate to their responsibilities and work context. But the applicant in its submissions acknowledges that. Beyond that, however, the extent of the cross-over in practice between the two groups is indicative of their overall community of interest, skills and experience, and indeed, the final paragraph in the above set out "agreement" between Avenue II and the Home Support Worker underscores the extent to which the role of the Home Support Worker is but one of the several components going to make up this unified and highly integrated program of development. And, as can be seen, the very limited opportunity for direct supervision by the employer is not confined to the persons utilized in the capacity of Home Support Workers, but rather is a common attribute of a program in which the bulk of the performance of an employee's job is carried out in "real-life" settings, away from the head office premises of the agency.
12As for the issue of the lease, we note that, while the employer's evidence was that it believes there might still be in existence leases to which the Home Support Worker him or herself was an actual signatory, none such were produced in evidence. On the only lease which was produced, only the agency and the member appear as signatories, undertaking the obligations of the lease. The Home Support Worker is simply identified as that, and thus as being one of the individuals who will be occupying the premises being rented. But even if that were not the case, and the Home Support Worker were in fact a signatory to the lease, we agree with the submissions of counsel for the applicant that that simply raises for the agency legal considerations entirely distinct from the question of whether or not an employment relationship with the Home Support Workers is in existence, or how the Board ought to deal with that relationship. And while such complications do in fact appear on occasion to have provided problems for the agency in moving a recalcitrant Home Support Worker out of the rented premises, it has not prevented the agency from simply removing the members from the care of that Home Support Worker, and of ceasing the payment of salary to the worker from that time forward.
13On all of the evidence, therefore, the Board is not persuaded that the persons in dispute are anything other than "employees" for the purposes of the Act, or that they ought to be excluded from an otherwise "all-employee" unit of employees engaged to deliver the program of the respondent employer. The Board accordingly finds that all employees of the respondent in the City of Thunder Bay save and except supervisors, persons above the rank of supervisor, students employed during the school vacation period and persons employed on a cooperative training program with a school, college or university, constitute a unit of employees of the respondent appropriate for collective bargaining.
Clarity Note #1: For the purpose of clarity, the parties agree that supervisor includes neighbours co-ordinator, administrative coordinator, component coordinator living skills, component coordinator vocational and program coordinator.
Clarity Note #2: For the purpose of clarity, the parties agree that the housing coordinator is included in the above bargaining unit.
14The Board is satisfied on the basis of all of 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 June 17, 1991, 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.
15A certificate will issue to the applicant.