Canadian Union of Operating Engineers and General Workers v. Simcoe County Association for the Physically Disabled, 1992 CanLII 6343

Canadian Union of Operating Engineers and General Workers v. Simcoe County Association for the Physically Disabled

[1992] OLRB Rep. July 857

2732-91-R Canadian Union of Operating Engineers and General Workers, Applicant v. Simcoe County Association for the Physically Disabled, Respondent

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members J. A. Ronson and C. McDonald.

APPEARANCES: Melissa J. Kronick and Zoran Grgar for the applicant; Joseph N. Tascona and Kim Dancavitch for the respondent.

DECISION OF K. G. O'NEIL, VICE-CHAIR AND BOARD MEMBER C. MCDONALD: July 15, 1992

1. These are the reasons for the Board's decision dated February 28, 1992, which decided that the bargaining unit should be composed only of full-time employees, as requested by the applicant, rather than of both full-time and part-time employees as requested by the respondent.

2. The employer took the position that to prevent undue fragmentation and to respect lines of community of interest, the full-time and part-time employees should be in the same bargaining unit. The employer noted that the applicant's original application asked for an "all employee" bargaining unit. However, subsequent to that, but before the officer's meeting concerning the pre-hearing vote held in this matter, the applicant informed the employer that it wished to have the part-time employees excluded from the bargaining unit. The applicant's position is that it is the Board's practice to exclude part-time employees at the request of either party. Therefore, the applicant maintained that there was an onus on the respondent to show that the full-time and part-time employees share a community of interest which the applicant maintains they do not.

3. The employer called Kim Dancavitch, Executive Director, Simcoe Association for the Physically Disabled as a witness. Her evidence was basically uncontradicted; the union called no evidence. That evidence disclosed that the drivers who are the subject matter of this decision performed essentially the same services for the respondent, regardless of whether they are full or part-time. The main difference between the two is that the full-time employees work more hours and the part-time employees all have full-time employment elsewhere. A more detailed summary of her evidence follows.

4. The respondent provides a number of services for the physically disabled in the Barrie area. The Barrie Accessible Community Transportation Service (BACTS) provided by the drivers in the bargaining unit sought is one of those services and is considered a separate department of the organization. There are four full-time and six part-time drivers in the BACTS program. All these drivers are scheduled by the employer through its head-office and communicated with at the garage, which is some distance away from the head office, by way of written schedules and memos. Both full-time and part-time drivers report to the Transportation Manager.

5. All drivers serve six-month probationary periods and a six-month waiting period for benefits. Both groups are paid the same hourly wage and move through the wage grid at twelve-month intervals depending on performance and recommendations of their Managers. Performance evaluations are carried out annually for both full-time and part-time drivers. The benefit plan, while the same for full-time and part-time drivers,is somewhat different than for the other employees of the employer. Both full-time and part-time employees accumulate vacation entitlement at the same rate, paid at 4 percent of gross pay.

6. All drivers are required to submit log sheets on a daily basis of the hours worked for the employer, giving a detailed breakdown of the services performed. Both full-time and part-time drivers are booked a substantial amount of time in advance, the schedule being made up monthly. Part-time drivers are apt to work between 4:30 and 11:00 p.m. Monday to Friday and 9:00 a.m. to 11:00 p.m. on Saturdays whereas full-timers normally work a forty-hour day shift between Monday and Friday. It was estimated that part-timers average about 20 hours a week. Both full-time and part-time drivers may be assigned extra shifts if they wish as the need arises. Overtime entitlement is computed on the same thresholds for full-time and part-time. Part-time employees are used to replace full-time employees if they are sick, on vacation, or if there is a vacancy in a full-time position which is as yet unfilled. Full-time drivers are required to apply for vacancies in the part-time positions and vice-versa, and there has been movement back and forth between the two groups.

7. There are two other groups of employees in the employ of the respondent. First are attendant care-workers who are hourly paid workers who give physical support services to disabled clients in residential or community outreach programs, approximately nine full-time and twenty-seven part-time. There are also two driver/dispatchers, one full-time and one part-time.

8. The employer asked for a single unit to avoid the risk of work disruption which it says would be caused by having a multiplicity of bargaining units in such a small employment situation. Counsel asked us to consider BACTS an essential service to the physically disabled and to consider that there exists a strong community of interest between the full-time and part-time drivers and none with the rest of the hourly workers. Therefore the employer submits a single "all employee" unit should be the appropriate unit.

9. The union characterizes the issue as whether or not the union's requested bargaining unit is an appropriate unit, not whether it was the most appropriate unit. As to community of interest, the union argues that the single most important factor is that all of the part-time employees have full-time employment elsewhere which puts them into a very different category as to community of interest, with different needs for collective bargaining.

10. Employer counsel referred us to Emergency Health Services Commission and CUPE, Local 873, 6 CLRBR (2d) 111, a decision of the British Columbia Industrial Relations Council. In that case, an application by the union for certification of ambulance drivers and attendants, the panel had to decide the appropriate bargaining unit. The existence of a divergence between the interests of part-time and full-time drivers was not considered to be so extensive as to create a barrier to a single bargaining unit. The panel spoke of the need to minimize the risk of industrial disruption among the employees of a public sector employer such as health services. Although there are similarities between the facts in our case and the case cited, it is clear from the Industrial Relations Council's reference to the decision in Insurance Corporation of British Columbia, supra, (1974) 1 CLRBR 403 (BC) June 12, 1974 that the considerations relied on are very specific to the B.C. policy on public service units, not one found in a similar form in the different statutory structure in Ontario.

11. We were also referred to the Geri-Care Nursing Home of Caressant Care Limited, [1986] OLRB Rep. Oct. 1338, a decision that concluded that notwithstanding the fact that two groups of part-time employees employed in a related rest-home and nursing home shared a community of interest, they should be in separate bargaining units to mirror the configuration of the full-time bargaining unit. This case is not of assistance to the Board in this matter, and if anything, supports the division between full-time and part-time. We were also referred to Chateau-Laurier Hotel, [1988] OLRB Rep. Feb. 119 where the Board departed from its normal practice of separating full-time and part-time and awarded a single bargaining unit of full-time and part-time banquet employees. That case reflected the very particular circumstances of a group of banquet workers who were part-time in regards to several different hotels and employed on an on-call basis. The Board found at paragraph 11:

……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 and rejecting "calls", and a relatively limited allegiance to the respondent.

The Board also considered that the applicant had not relied on the Board's normal practice in organizing the two groups, since it had initially applied for a bargaining unit composed of all of the respondent's banquet department employees without an exclusion of part-time employees and students. On those facts the Board was satisfied that the rationale which supports the general exclusion of part-time employees, at the request of either the applicant or the respondent, was inapplicable on the facts of that case.

12. Also referred to by the respondent was KehI Tools Ltd., [1991] OLRB Rep. April 517. In that case, as opposed to all of the others argued by the respondent, it was the applicant who wanted a single unit and the respondent who wanted it divided into part-time and full-time. This was a very specific fact situation involving a temporary work-share program among individuals who were otherwise full-time employees, designed to avoid the lay-offs of some of its otherwise full-time employees. In that circumstance the Board did not accede to the employer's request. Other than during the work-share program, there was no history of employing part-time employees. That case really turned on the normal practice of the Board to avoid "notional" bargaining units, i.e., to not create a part-time unit where there is no history of employing part-time employees.

13. In the Board of Education for the Borough of Scarborough, [1980] OLRB Rep. Dec. 1713 the Board elaborated on the reasons for the Board's normal practice of excluding part-time employees on the request of either party. In that case the Board found that the fact of common terms of employment between full-time and part-time employees did not address the Board's historical view that there are different appetites for collective bargaining between part-time and full-time employees due to their different levels of attachment to the work force. In coming to this conclusion it cited Toronto Airport Hilton, [1980] OLRB Rep. Sept. 1330 where it was explained that the Board's practice concerning part-time employees is not only a policy designed to avoid difficulties which may arise when groups with little community of interest are included in a single bargaining unit but is also an organizing rule to promote the public interest in furtherance of harmonious labour relations. We find the arguments put before us to be very similar to those in Board of Education for the Borough of Scarborough and Toronto Airport Hilton. See also more recently, Vaughan Public Libraries, [1989] OLRB Rep. Dec. 1282.

14. Since the Hosp ital for Sick Children, [1985] OLRB Rep. Feb. 266, the Board has made it plain that there are many cases in which there is more than one bargaining unit configuration that can be considered appropriate. It suggests a focus on the applicant's bargaining unit, in the absence of serious labour relations problems to the employer. The evidence does not disclose such factors. Having an organized unit of full-time drivers side by side with an unorganized group of part-time drivers and driver/dispatchers is not the kind of fragmentation that is of sufficient concern to deny the applicant an otherwise appropriate unit. There is nothing that we find inappropriate about the applicant's requested unit. It is also consistent with the Board's normal practice, which developed out of important labour relations considerations, including predictability for the labour relations community.

15. Therefore, having regard to the partial agreement of the parties and the above considerations, the Board found that

all employees of Simcoe County Association for the Physically Disabled employed as drivers in the County Simcoe, save and except supervisors, persons above the rank of supervisor, office and clerical staff, dispatcher/drivers and persons regularly employed for not more than twenty-four (24) hours per week.

was a unit of employees appropriate for collective bargaining and certified the applicant.