[1994] OLRB Rep. November 1538
1977-94-R Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351, Applicant v. 772427 – O/L, CDA. Inc. O/A c.o.b. Quality Suites by Journey's End, Responding Party
BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members F. B. Reaume and Pauline R. Seville.
APPEARANCES: Susan Philpott, T. Corrigan, Bill Hutton and Joelle Spadacini for the applicant; Dave Daniels, Diane Bergeron and Leanne Wallace for the responding party.
DECISION OF VICE-CHAIR RUSSELL G. GOODFELLOW AND BOARD MEMBER PAULINE R. SEVILLE; November 28, 1994
The name of the responding party in the title of proceedings has been amended to read: "772427 - O/L. CDA. Inc. O/A c.o.b. Quality Suites by Journey's End".
This is an application for certification.
The issue is the appropriateness of the applicant's proposed bargaining unit. The unit claimed by the applicant to be appropriate for collective bargaining is:
all employees of 772427 - O/L. CDA. Inc. c.o.b. as Quality Suites by Journey's End at 262 Carlingview Drive, Etobicoke, save and except supervisors, persons above the rank of supervisor, office, clerical and sales staff, accounting staff, front desk staff, and students employed during the school vacation period.
- The unit claimed by the respondent to be appropriate for collective bargaining is:
all employees of 772427 - OIL. CDA. Inc. c.o.b. as Quality Suites by Journey's End at 262 Carlingview Drive, Etobicoke, save and except supervisors, persons above the rank of supervisor, office, clerical and sales staff, accounting staff, and students employed during the school vacation period.
The difference between the two units relates to the front desk staff. The respondent proposes their inclusion. The applicant seeks their exclusion. On the basis of the documentary evidence of membership filed with the Board, the applicant's position would result in automatic certification. The respondent's position would result in a vote.
There was no dispute that the appropriate test to be applied by the Board is set out in the following passage from the Hospital for Sick Children, [1985] OLRB Rep. Feb. 266:
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.
- The respondent acknowledges that the applicant's proposed bargaining unit meets the first part of this test. The issue is with respect to the second part. The respondent asserts that the
unit proposed by the applicant would cause "serious labour relations problems". These problems relate to the "fragmentation" of its work force. In particular, the respondent raises the possibility of jurisdictional disputes in the event another trade union acquires the right to represent front desk staff, the possibility that grievances could arise under a collective agreement over the entitlement of front desk staff to perform bargaining unit work, and the possibility of disputes arising over the entitlement of front desk staff to perform bargaining unit work in the event of a strike to which the replacement work provisions of the Act apply. As a further basis for rejecting the applicant's proposed unit, the respondent raises the possibility that the applicant might later seek to organize front desk staff and then apply for a combination of bargaining units. According to the respondent, all of these possibilities are "reasonably foreseeable" given the substantial overlap in duties between the front desk staff and those whom the applicant seeks to represent.
The Board heard evidence from the employer's general manager, Leanne Wallace. Ms. Wallace testified that, on average, front desk employees spend approximately 25 per cent of their time performing work which is ordinarily performed by members of the applicant's proposed bargaining unit. This would include various housekeeping, mini-bar and continental breakfast tasks. Ms. Wallace testified that front desk staff perform this work on both a scheduled and non-scheduled basis. Although Ms. Wallace's initial testimony did not appear to suggest that the scheduled activities constitute any lesser portion of the total overlap than the non-scheduled tasks, a subsequent review of the schedules for the three month period immediately preceding the application date, which were produced at the request of the union and by order of the Board, revealed that there were very few occasions on which front desk employees were actually scheduled to perform the disputed tasks. Moreover, the scheduled assignments appear to have been shared among only three of the 12 or 13 front desk employees, with only one of those employees performing the tasks other than in the first two weeks. The bulk of the 25 per cent overlap, then, would appear to arise on a non-scheduled basis.
Ms. Wallace testified that the cross-utilization of front desk personnel is essential to the respondent's business plan, which is to offer suites at prices that would be charged for a room in a full service hotel. Payroll is one of the respondent's main costs. Counsel for the respondent asserts that the Board must take the employer as it finds it, including its business plan, when assessing the seriousness of the labour relations problems associated with the applicant's proposed unit. In the words of counsel, what may be a "mere inconvenience for one employer may constitute serious labour relations problems for another".
Despite the able submissions of counsel for the employer, we are satisfied that the applicant's proposed unit is appropriate for collective bargaining. Even accepting the evidence of Ms. Wallace described above as an accurate reflection of the degree of overlap in duties between the front desk staff and those whom the applicant seeks to represent, we believe that the problems identified by the employer are neither sufficiently serious nor certain as to cause us to reject the unit sought.
Collective bargaining is not a neutral institution. It imposes burdens on employers as well as employees. Typically, employers lose a degree of independence in the direction of the working forces, and wages may go up. Employees are required to pay union dues, and sacrifice a degree of individual autonomy to collective action. These are predictable outcomes of the exercise of employee freedoms protected by the Labour Relations Act.
In this case, underlying the employer's position appears to be the assertion that it will suffer some unquantified economic hardship if the trade union acquires the right to represent persons employed in housekeeping, food and beverage, and related functions but not front desk staff.
It also suggests that it may incur some organizational difficulties in the event of a strike, that disputes over work jurisdiction may arise and that if the union might later seek to organize front desk staff and bring a combination application, the Board ought to determine that the broader unit is appropriate now.
In our view, and without articulating what problems would be sufficiently serious to deny a trade the unit applied for, we believe that the employer's concerns can be accommodated in the give and take of collective bargaining.
We begin by noting that the tasks in question, although said to constitute a "regular" part of the duties of the front desk staff, appear to be, essentially, of a "relief' or "supplemental" nature. They are the "core" functions of the housekeeping and food and beverage classifications, not those of the front desk staff. In these circumstances, jurisdictional disputes must been seen as neither inevitable nor insoluble. Their occurrence and resolution depend upon a variety of factors including the advent of another trade union in the workplace and the parties' inability to come to agreement on the proper scope of work associated with each bargaining unit. Likewise, the absence of "watertight compartments" surrounding job classifications means that grievances under a collective agreement over the entitlement of front desk staff to perform bargaining unit work are neither unavoidable nor guaranteed of success.
Similarly, it is far from clear that the application of the replacement worker provisions in the event of a strike would restrict an employer's ability to utilize non-bargaining unit personnel in precisely the same manner as they were being utilized by the employer prior to the strike. Whether this issue will need to be litigated depends upon such factors as the occurrence of a strike, the similarity of these facts to any previous Board decisions, the parties' inability to agree, and so on. The further suggestion that the union might later attempt to organize front desk staff and then apply for a combination of bargaining units is speculative and does not provide any independent basis for determining whether the unit applied for now is appropriate.
Last, but not least, we point out that the applicant's proposed unit, if not the standard in the hotel industry, is far from uncommon. The applicant produced seven certificates granted to it by this Board since 1983 in which front desk staff were not included with the kinds of classifications covered by the applicant's proposed unit.
Accordingly, and for all of these reasons, we find that the bargaining unit set out in paragraph 3 of this decision is appropriate for collective bargaining.
The Board further finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
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 responding party in the bargaining unit on September 6, 1994, the certification application date, had applied to become members of the applicant on or before that date.
A certificate will issue to the applicant.
DECISION OF BOARD MEMBER F. B. REAUME; November 28, 1994
I respectfully dissent from the majority decision in this matter.
There is no doubt that this business venture has made it a practice to utilize the front desk staff, when and as required in the normal service areas of the hotel, both on a scheduled and an emergency basis. The only credible evidence we heard in this regard, given by Ms. Wallace, suggested that this could be as much as 25% of the front desk time in a given period.
Although union counsel expressed confidence that any overlap of duties could be taken care of in the bargaining process, I remain skeptical in this particular instance.
As a result, I believe that the exclusion of the front desk staff will unduly fragment the overall labour relations of the parties in this case.
As a result of the above, I would have included the front desk staff in the bargaining unit to preserve the established community of interest.