International Brotherhood of Electrical Workers, Local 353 v. General Signal Limited

[1993] OLRB Rep. November 1141

0185-93-R International Brotherhood of Electrical Workers, Local 353, Applicant v. General Signal Limited, Responding Party v. Group of Employees, Objectors

BEFORE: Roman Stoykewych, Vice-Chair, and Board Members J. A. Rundle and K. Davies.

APPEARANCES: Bernard Fishbein, Graeme Aitken and Larry Venning for the applicant; David L. Brisbin, Neil Jeffrey, Geoffrey Bourne and David Pinto for the responding party; Ken Roach, Don Hickey, Gary Jones and Steve R. Gerber for the objectors.

DECISION OF THE BOARD; November 12, 1993

[1]. This is an application for certification. In an earlier decision issued by this panel on June 8, 1993 [now reported at [1993] OLRB Rep. June 509], the Board certified the applicant on an interim basis pending our decision with respect to the parties' dispute concerning the bargaining unit description. The following is our decision with respect to that matter.

[2]. The applicant is engaged in the installation, service, maintenance and verification of fire protection systems, emergency lighting systems and life safety systems. On the date of application, April 19, 1993, approximately 46 persons were employed in the proposed bargaining unit working at or out of the employer's premises in Mississauga. At the time, all of the employees in the pro­posed bargaining unit were full-time employees. There were no part-time employees working for the employer on the date of the application nor has the employer employed part-time employees in the past. However, the employer has for many years employed students during the summer vaca­tions, although given the date of the application, there were no summer student employees at work at the time. The students, when employed, work on a full-time basis, ie., for more than twenty-four hours per week. No evidence was led with respect to the number of students normally employed during the course of the summer, nor was there any indication of the nature of the rela­tionship of the such students to the remainder of the workforce.

[3]. The parties are agreed that, subject to other exclusions which are not germane to the issue before us, a unit including both full-time and part-time employees is appropriate in light of the provisions of the recently amended section 6 (2.1) of the Act. However, they disagree as to whether summer students should be included in the unit, and in particular, they disagree on what effect, if any, section 6 (2.1) should have with respect to the Board's approach to determination of the appropriateness of the bargaining unit in these circumstances.

[4]. Section 6(2.1) reads as follows:

A bargaining unit consisting of full-time employees and part-time employees shall be deemed by the Board to be a unit of employees appropriate for collective bargaining.

[5]. Both parties, of course, were of the view that this amendment had the effect of modify­ing the Board's policy respecting the appropriateness of separate full-time and part-time units. However, the employer took the position that, in the face of the long-standing Board policy of treating part-time and summer student employees "in tandem", the omission of students from the effect of the deeming provisions was significant. Mr. Brisbin asked us to draw the inference, on the basis of the exclusio unius maxim, that the Legislature intended the deeming provisions to extend only to part-time employees, and not to summer students. Given the Board's well-known practice of treating the two groups together, he argued, the Legislature would have included summer stu­dents in a unit to be deemed appropriate had that been its intention. In this respect, it was argued that it is not surprising that no such inclusion was made, given the divergent interests of the two groups, and the dissimilar relationships to employers that the two groups develop. Rather than relying upon a deeming provision, he submitted, it would be incumbent upon the trade union to organize the students themselves.

[6]. By contrast, counsel for the trade union asked us to draw the opposite inference: by making no reference to summer students in the amendment, the Legislature intended no alteration to the Board's usual treatment of the two groups in tandem. He stressed that there would have to be specific language to displace such a well-established policy and that in its absence, he asked us to draw the inference that there was no intention on the part of the Legislature to depart from the Board's established practice. In short, it was the trade union's position that the legislation has the effect of according "tandem treatment" to part-time and summer student employees. In this respect, counsel directed us to a number of Board decisions in which the tandem policy was articu­lated, in particular, Plummer Memorial Hospital, [1979] OLRB Rep. May 433, Inter-City Bandag (Ontario) Limited, [1980] OLRB Rep. March 324, Elizabeth Fry Society, [1985] OLRB Rep. July 1026, and Toronto General Hospital, [19861 OLRB Rep. April 566. Although counsel conceded that the Board's assessments of the interests of part-time employees relative to those of full-time employees may require reassessment in light of the new deeming provisions, he maintained that the factors considered in these decisions, particularly with respect to the non-viability of summer student units, remained decisive and that the Board should continue to treat the two groups together.

[7]. Upon a careful examination of the Board's practice with respect to summer students we are not satisfied that the tandem treatment of part-time and summer student employees is so unequivocal or invariable a policy as to warrant the inferences either of the parties request the Board to draw. This is especially the case where, as in the present circumstances, the employer has a practice of employing summer students, but no such practice with respect to part-time employ­ees. Indeed, as may be seen below, in the absence of agreement, the Board's usual approach prior to the amendment in such circumstances was to include the part-time employees but to exclude the summer students from the bargaining unit.

[8]. There is no doubt that it has been the Board's general preference to link summer stu­dents with part-time employees in certification proceedings. The Board has expressed the concern that, were summer students to organize and be grouped in their own bargaining unit, the lack of continuity in the employment relationship inherent in their status would prevent them from consti­tuting a viable bargaining unit for purposes of collective bargaining. (Elizabeth Fry Society, supra.) In addition, the Board has indicated that students-only bargaining units, were they to be certified, would likely lead to excessive fragmentation. These concerns are set out very clearly in Plummer Memorial Hospital, supra, at para. 2:

…..Where students employed during the school vacation period are excluded from a bargaining unit of full-time employees and an application is filed for part-time employees it is the practice of the Board to include both the part-time employees and the students employed during the school vacation period in the bargaining unit. The Board's practice is predicated on the belief that students employed during the school vacation period could not form a viable bargaining unit standing alone and even if they could, the result would be to create an unduly fragmented situation.

(See also the Regional Municipality of Peel, [1979] OLRB Rep. Dec. 1285 at paragraph 4.) In light of these concerns the Board has been reluctant to create circumstances where summer students will be required to organize and to bargain alone. Accordingly, upon application for certification for a part-time unit, the Board has normally included both categories in that unit, even if no summer students are present. (St. Raphael's Nursing Homes Ltd. (Kitchener), [1977] OLRB Rep. Sept. 580.)

[9]. Nevertheless, the tandem policy is by no means invariable and exceptions have been made by the Board in circumstances that include the present one (i.e., where there is no history of part-time employees, a history of summer students, and no agreement between the parties as to their inclusion). Thus, where the parties have agreed upon the part-time/student issue, whether it be to combine or to sever the two groups, and whatever the employment history may have been, it has been the Board's practice, in the absence of special circumstances, to accept that agreement. However, in an application for a full-time unit in circumstances where the employer had estab­lished a practice of employing one, but not both of the groups, upon request of one of the parties the Board has normally excluded from the bargaining unit the group present at the workplace~ but not the group that was absent. The leading decision in which the policy is most clearly articulated is Inter-City Bandag, supra:

10. Where there is a history of hiring only one or the other of the two groups, the Board will tend, in the absence of agreement by the parties, to exclude the "existent", but not the "non-ex­istent" group from a full-time unit. Where, however, a full-time unit excludes part-time employ­ees and students, and an application is made for the part-time unit, the Board (again, in the absence of agreement by the parties) will tend to keep the two categories combined, even though only one "exists", in order to avoid undue fragmentation.

11. Similarly, where both groups exist and there is no agreement between the parties, the Board will likely treat the two groups in tandem, having regard to the community of interest that often exists between the two, as well as the usual concern over fragmentation.

[10]. In Inter-City Bandag, supra, the rationale for the exceptions to treating part-time employees and summer students in tandem was spelled out. The Board reviewed a number of pre­vious decisions in which it was held that, notwithstanding the agreements of the parties to exclude only the summer students, both part-time and summer students should be excluded from the unit in circumstances where, as in the present case, there was no history of part-time workers. (Plummer, supra; Regional Municipality of Peel, Board File No. 0919-79-R; Dominion Steel Export Co. Ltd., [1979] OLRB Rep. Oct. 953; Bonvil Limited, Board File No. 1052-79-R). In Inter-City Bandag, the Board explicitly rejected such an approach, noting that the policy factors militating in favour of tandem treatment should not override the long-standing Board concerns regarding the exclusion of non-existent groups, especially in circumstances where to do so would override the agreement of the parties. (Inter-City Bandag, supra, at paragraph 9.) Accordingly, since that time the Board has been reluctant to apply the tandem policy "rigidly" in circumstances in which the addressing of the concerns of the summer students would entail the exclusion of a non-existent part-time group.

[11]. As can be seen, this aspect of the Board's policy was formulated in a context in which it was open to parties to exclude part-time employees from the full-time bargaining unit. More signi­ficantly, the practice was developed within a broader policy background in which separate full-time and part-time units were seen as appropriate. The statute has now significantly altered that con­text. Although the precise scope of section 6(2.1) has yet to be determined by the Board, it is clear that the provision would prevent an employer from seeking the exclusion of a "non-existent" part-time complement in circumstances where the trade union applied for both full-time and part-time employees. More generally, the provision can be seen as a legislative endorsement, albeit a limited one, of the desirability of "mixed" bargaining units. It would appear, then, that the concerns that caused the Board to limit the application of the tandem treatment policy in Inter-City Bandag are no longer extant in circumstances in which a bargaining unit of both full-time and part-time employees is deemed appropriate. Indeed, the factors relating to difficulty of organization, viabil­ity, and fragmentation are, if anything, highlighted in such circumstances. Accordingly, we have considerable doubt as to whether this aspect of the policy can sustain its relevance in the new statu­tory context.

[12]. In any event, the Board's general approach to the assessment of appropriateness of bar­gaining units has developed significantly over the last ten years in a manner that diminishes the role the Board has played in determining the composition and defining the precise parameters of a bargaining unit. Especially as it has been expressed in the Hospital for Sick Children decision, [19851 OLRB Rep. Feb. 266, this approach is characterized by less attention being paid to issues related to the "communities of interest" between various groups of employees that had in the past been the basis of its policies. Instead, the Board now concentrates on the broader labour relations suitability of the unit proposed by the trade union. In this regard, the Board's approach recognizes that the range of appropriateness is broad. The Board has made it very clear that it is not inter­ested in defining the best possible unit or the better of two possible units. Rather, the focus of the inquiry is whether the unit advanced by the trade union is a workable arrangement that would per­mit collective bargaining to proceed in an orderly fashion. Thus, when it inquires into the appropri­ateness of a bargaining unit, the Board now addresses the following question:

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?" (Hospital for Sick Children, supra, at page 277)

[13]. This is not to say that the Board's discretion in these matters is unstructured nor that the policies respecting bargaining unit composition no longer provide useful guidance as to the appropriateness of a unit. Rather, it is a matter of a change of emphasis. Particularly in such cases as Board of Governors of Ryerson Polytechnical Institute, [1984] OLRB Rep. Feb. 371, Kidd Creek Mines Ltd., [1984] OLRB Rep. March 481 and Hospital for Sick Children, [1985] OLRB Rep. Feb. 266 the Board has expressed a decided preference for broader-based bargaining structures that minimize the fragmentation entailed by a multiplicity of bargaining units, and absent such con­cerns as the difficulty of organization, it is clear that when the applicant's proposed bargaining unit is, in the Board's view, likely to engender such difficulties, the proposed unit will not be accepted. Moreover, this perspective to a considerable extent dovetails with the legislative policy direction emanating from the recent amendments to the Act and more particularly, section 6(2.1) (discussed above) and section 7, which now permits the Board to combine two or more bargaining units con­sisting of employees of the same employer and represented by the same trade union. In our view, these amendments point in the direction of more inclusive, broadly-based bargaining units that, at the same time, do not adversely affect employees' right to organization and participation in collec­tive bargaining. It is with this legislative purpose in mind, rather than the sometimes dubious con­clusions derived from the application of maxims of construction, that the Board proposes to deter­mine whether the bargaining unit proposed by the applicant is appropriate.

[14]. Bearing the above in mind, therefore, the Board is satisfied that the applicant's pro­posed unit, comprised of the employer's full-time workforce in addition to summer students consti­tutes an appropriate unit for purposes of collective bargaining. As indicated, no evidence was led by either party with respect to the nature of the students' employment relationship, the nature of their work, or what relationship they may have with the remainder of the workforce. The Board was asked, in effect, to make a ruling on the basis of its accumulated collective experience in such matters. In this respect, the Board notes that on numerous occasions parties have agreed to include summer students in bargaining units otherwise comprised of full-time employees and that it is the experience of the Board that these groups can bargain together effectively. In the absence of any evidence to the contrary in this respect, we see no reason why such a unit cannot be considered via­ble. It is the Board's further observation that with the increasing utilization by employers of a "flexible workforce", involving short-term and otherwise non-permanent employment relation­ships, the employment circumstances of summer students are no longer anomalous, and that the clear distinction drawn in the policy between summer students and other employees has become increasingly blurred. Indeed, in light of these concerns, there may be reason to doubt that the dis­tinction remains significant for labour relations purposes.

[15]. Moreover, the employer has not led any evidence that would indicate that labour rela­tions problems of any degree of seriousness would result from the inclusion of the summer students into the bargaining unit, nor has counsel adverted to any such difficulties in his submissions. The Board can see no particular administrative, organizational or other operational difficulties that would arise by grouping these employees together.

[16]. We therefore find that the applicant has satisfied the test that the Board has established in Hospital for Sick Children, supra, and that accordingly, the unit sought by the applicant is appropriate. Therefore, the Board, pursuant to section 6(1) of the Act certifies the applicant as the bargaining agent for:

all employees of General Signal Limited working at or out of the City of Mississauga, in its ser­vice division of its Edwards unit, save and except supervisors, persons above the rank of super­visor, and office and sales staff.

Clarity Note: For the purposes of clarity, the parties agree that the bargaining unit does not include employees performing work for the International Division, which is not work for the Ontario market.

[17]. A certificate will issue to the applicant.