Service Employees International Union Local 532 v. Meadowcroft Holdings Inc., 1995 CanLII 9963

[1995] OLRB Rep. March 324

3248-94-R Service Employees International Union Local 532 affiliated with the A.F. of L., C.I.O., C.L.C., Applicant v. Meadowcroft Holdings Inc., c.o.b. as Execu-Care Nursing Services, SM Management Services Ltd., and Meadowcroft Limited Partnership c.o.b. as Meadowcroft Place (Guelph), Responding Party

BEFORE: Judith McCormack, Chair, and Board Members R. W. Pirrie and R. R. Montague.

APPEARANCES: Luiza Monteiro, Ron Roscoe and Andrew Mackenzie for the applicant; Wesley

Emerson, Yvonnetta Bushell and Sonja Altshul for the responding party.

DECISION OF THE BOARD; March 30, 1995

1. This is an application for certification involving employees who work at the responding party's 60-bed retirement home in Guelph, Ontario.

2. On the agreement of the parties, the name of the responding party is amended to read: "Meadowcroft Holdings Inc., c.o.b. as Execu-Care Nursing Services, SM Management Services Ltd., and Meadowcroft Limited Partnership c.o.b. as Meadowcroft Place (Guelph)". Counsel for the responding party acknowledged that these companies were related employers within the mean­ing of section 1(4) of the Labour Relations Act.

3. The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.

4. The parties were in dispute in regard to the parameters of the appropriate bargaining unit in this matter. The essence of that dispute involves whether fifty "floating" employees should be included in the bargaining unit. Neither party chose to call evidence. As a result, we relied upon those of their respective assertions which were not contested in coming to our conclusions. Our decision in this matter was given orally at the hearing, and we now provide our reasons.

5. The responding party owns or manages some twenty-five retirement facilities in Ontario. The retirement home involved in this case is Meadowcroft Place (Guelph) which employs twenty-five individuals based at the home itself. There is no dispute that the appropriate bargain­ing unit should be focused on this specific home, and that these twenty-five employees should be included in that unit.

6. However, there are also approximately fifty other full-time and part-time employees who service all twenty-five homes, including this one, from other locations. Approximately 80% of these fifty employees are maintenance employees, with the remainder performing housekeeping functions. They are assigned by one of two head offices of the responding party through a system where they are called at their personal residences and sent to the particular retirement home which is their next assignment. Maintenance employees do painting, cleaning, minor repairs, and floor-stripping. There is also one maintenance employee who works only at Meadowcroft Place (Guelph).

7. The two head offices of the responding party employ eighteen other people who per­form such functions as payroll, accounting, clerical, and billing for the twenty-five homes. In addi­tion, there are marketing consultants who may be assigned to some of the homes~ although the individual home administrator plays a role in marketing as well.

8. A floating maintenance person may work at Meadowcroft Place (Guelph) for up to 50 hours in a two week period, depending on the nature of the assignment. At the other end of the spectrum, there are a number of maintenance employees who have never worked at this home. More typically, a floating employee might work four hours a month at this home. Assignments depend on the work to be done and the skills of the employee involved. Although employees are assigned and disciplined by individuals in the responding party's head office~ the parties were in dispute with respect to whether they were supervised by the head office or the individual home in which they were working that day. They receive the same paycheque regardless of which home they have been assigned to during the week, but the cost is charged to the account of the individual home within the responding party's organization.

9. The responding party's position was that the fifty employees who service all the homes should be considered as part of the bargaining unit of this home. Counsel acknowledged that the responding party had taken the position that these same employees were part of the bargaining unit in certification proceedings involving at least one other home and possibly two. His view was that those of the floating employees working at this home on the date of application or within the Board's 30/30 period should be included for the purposes of assessing the level of membership sup­port under section 8 of the Act. Ultimately, however, all maintenance employees would be included in the bargaining unit, but only when working at this home. If they were working at another home, they would be included in that unit for the day or portion thereof, or in no bargain­ing unit if the other home was not organized.

10. Counsel asserted that since maintenance employees did floor-stripping, if they were not in the same bargaining unit with employees based at the home who did cleaning, there was some potential for a jurisdictional dispute. He also suggested there was the possibility that a mainte­nance person might walk a resident down the hall, and that this might result in a jurisdictional dis­pute as well. Counsel argued as well that not including floating employees in this home's unit could lead to increased work stoppages because there would be at least two bargaining units instead of one, and the home had not yet been declared a hospital for the purposes of the Hospital Labour Disputes Arbitration Act which prohibits work stoppages. In his view, including these employees in the unit of each specific home would not run counter to the Board's policy of structuring units so that employees would only be in one bargaining unit at a time because different employers would be involved. In this regard, he noted that one of the three entities making up the responding party would be different for a number of the homes, although he acknowledged that the make-up of the employer would also be the same for a number of them as well. In support of his arguments, coun­sel referred the Board to Sifion Properties Limited, [1993] OLRB Rep. Oct. 1010.

11. The union's view was that these employees should be included in a bargaining unit of their own along with the other head office employees who service all the homes. In particular, counsel objected to the responding party adding these employees to the lists of employees for each home as applications for certification were filed, suggesting that it was padding the lists for the pur­poses of defeating the certification applications. Counsel noted that if these employees were included in the bargaining units at each home, it would force the union to organize on a province-wide basis, because it would never know which of these employees might be working at a particu­lar home on the date of application. This would defeat the purpose of allowing the union to orga­nize homes individually. It would also mean that the floating employees could be members of up to twenty-five different bargaining units simultaneously. In support of the proposition that the Board does not structure bargaining units which will result in employees being members of more than one bargaining unit at the same time, the union cited Western Inventory Services Ltd. (unreported), Board File 1094-89-R, decision released October 6, 1989. In counsel's view, these employees did not have sufficient attachment to the Guelph home to be included within its bargaining unit. The union also disputed that these individuals were at work on the date of application or encompassed by the Board's 30/30 rule. Among other things, counsel argued that the responding party's asser­tion that there were eight floating maintenance employees at the Guelph home on the date of application was not credible given the size of the home. She noted that including the floating employees in the unit would mean that employees who rarely or never work at the Guelph home would be included in its bargaining unit. The union also pointed out that the potential for jurisdic­tional disputes was no greater than those that might arise as a result of the responding party's pro­posed structure. In addition, counsel argued that it would be very difficult if not impossible to administer a collective agreement for employees floating in and out of the bargaining unit.

12. The Board's approach to determining bargaining units has evolved over the course of fifty years of jurisprudence. As a starting point, section 6 of the Labour Relations Act invests the Board with a broad discretion to "determine the unit of employees that is appropriate for collec­tive bargaining". Based on long experience, the Board has acknowledged the elasticity of the con­cept of the appropriate bargaining unit. Rather than seeking to ascertain the one perfect bargain­ing unit in each situation, it has recognized that there may be more than one equally appropriate bargaining unit in a particular case. In The Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, the Board noted as follows:

The Board has long recognized that the structure and appropriateness of a bargaining unit can­not be determined with scientific precision. In any given situation there may not be only one uniquely appropriate bargaining unit. Quite the contrary. As we have already noted, the institu­tion of collective bargaining has shown itself capable of accommodating a variety of bargaining structures, even in broadly similar circumstances, and in particular situations there may be sev­eral alternative and equally appropriate ways of framing the bargaining unit description. There may be varying degrees of "appropriateness", with one or more unit descriptions being appro­priate, even though some other (usually more comprehensive) bargaining unit might also be appropriate. For example, a single plant unit may be appropriate but so may a multi-plant unit. Full-time and part-time employees can be segregated, but there are many situations where they have not been. This reality was discussed in the Board of Education for the City of Toronto, [1970] OLRB Rep. July 430, in a long passage to which we might usefully refer, and which also contains a review of the mechanics of the certification process:

14. The Board has a wide discretion pursuant to section 6(1) of the Labour Relations Act in determining what is appropriate in the facts of each case. Also section 1(1)(a) [now section 1(1)(b)] provides:

"bargaining unit" means a unit of employees appropriate for collective bar­gaining, whether it is an employer unit or a plant unit or a subdivision of either of them.

Section 6(1) requires that an appropriate bargaining unit shall consist of more than one employee. In addition section [6(3)] which is concerned with craft units requires that in certain circumstances a group of employees shall be deemed to be appropriate and further section [119(1)] makes special provisions for determining an appropriate bargaining unit in construction industry situations.

15. It is apparent that section [l(1)(b)] contemplates that an individual employer may employ persons who can be subdivided into more 'than one appropriate bargaining unit. It has therefore been common for a single employer to be certified for a number of appropriate bargaining units, e.g. office unit, craft unit, plant unit, sales unit, part-time unit. We emphasize the capacity for more than one appropriate bargaining unit to exist with respect to a single employer, a capacity which is statutorily confirmed by section [1(1)(b)l, because from time to time persons have argued before this Board that the use of the definite article in section 6(1), i.e.

"The Board shall determine the unit of employees that is appropriate for collective bargaining"

means that there is only one appropriate bargaining unit in each case.

16. It is also helpful to review the process of determining the appropriate bargaining unit. In each particular application the applicant trade union is required to provide a "detailed description of employees of the respondent that the applicant claims to be appropriate for collective bargaining" …….The respondent employer is by way of reply, entitled to provide a detailed description of the unit claimed by the respondent to be appropriate for collective bargaining . . . A respondent employer is further directed If, in your reply, you propose a bargaining unit different from the one proposed by the applicant, you shall indicate on the list of employees referred to in paragraph 7 the name and classification of any person you propose should be excluded from, as well as the name and classification of any person you propose should be added to, the bargaining unit proposed by the applicant". Accordingly, in any single application, the applicant trade union and respondent employer may make submissions that agree or disagree on all or some of the various factors concerning the appropriate bargaining unit. Where the parties disagree it is the function of the board to decide which, if any, or part of the contending positions is proper. For example the Board in an individual application may exclude certain persons as being managerial while including others; again groups of employees may be included or excluded from bargaining units depending upon whether they share a community of interest with other employees. See e.g. Wakefield Lighting Limited 1965 May OLRB Mthly. Rep. 143 (plant clerical staff); Sherman Mine, Cliffs of Canada, Limited July 3, 1969 Board File No. 15604-68-R (laboratory employees); Affiliated Medical Products Limited Jan­uary 9, 1969 (quality control laboratory technicians). In other situations the Board may be required to exclude persons because of a statutory prohibition. See e.g. The Corporation of the City of Cornwall June 3, 1969 Board File No. 16166-69-R (police employees). The Board's process is a fact finding one resulting in inclusions, exclu­sions, accretions and deletions to the proposed bargaining units.

17. After sifting the various facts the board must determine "the unit of employees" that is appropriate having regard to the particular situation then before the Board. The only fetters on the Board's discretion to make a determination are the require­ments contained in section 6(1) that the "unit shall consist of more than one employee", Albert Fuel Limited, 1969 October 3, Board File No. 16685-69-R, and that the unit of employees is appropriate for collective bargaining - there are no other requirements. The unit that is appropriate is the unit that emerges after all the facts have been considered.

18. The fact finding process is at all times directed toward and governed by the con­cept of appropriateness and the essence of appropriateness in the context of labour relations is that the unit of employees be able to carry on a viable and meaningful col­lective bargaining relationship with their employer. It is the Board's experience that employees may in some cases subdivide themselves into small groups which may result in an unnecessary fragmentation or atomization of the employees. Thus an employer faced with the possibility of lengthy, protracted and expensive bargaining and the further possibility of jurisdictional disputes among multiple bargaining groups represented by one or more trade unions may find it impossible to carry on a viable and meaningful collective bargaining relationship. The Board therefore is adverse to certifying employee groups where the result is undue fragmentation and in those cir­cumstances the Board will find the unit proposed inappropriate on the basis that a meaningful and viable collective bargaining relationship will not result. See e.g. Waterloo County Health Unit, 1969 January OLRB Mthly. Rep. 1016.

19. In finding appropriate bargaining units the Board must also be cautious that its determination as to what is appropriate will not impede the right of self-organization guaranteed in section 3 of the Labour Relations Act. The National Labor Relations Board in the United States has recognized in certain cases that its determination of appropriate bargaining units has "operated to impede the exercise by employees ……of their rights of self-organization Save-on-Drugs Inc. 138 NLRB 1032 (1961); see also Quaker City Life Ins. Co., 134 NLRB 960 (1961). While great weight must be given to prior cases dealing with similar situations, those cases are not dispositive of the issue in any given case. Bargaining unit determination requires a case by case review of the facts and this is compelled by the working of section 6(1) which provides that the Board "Upon an application. . . shall determine the unit of employees that is appropriate for collective bargaining.

20. It is readily apparent why plant units, or office and sales units are appropriate as a subdivision of an employee unit. There are, however, cases where the lines of demar­cation are not so readily apparent and that is particularly so in areas apart from pri­vate industry. For example, in the Canadian Union of Public Employees v. The Gov­ernors of the University of Toronto February 1969 OLRB Mthly. Rep. 1149; June 1969 OLRB Mthly. Rep. 334, the applicant proposed a bargaining unit for all non­professional employees of the respondent in those libraries that fall within the juris­diction of the University of Toronto Library while the respondent submitted that the appropriate bargaining unit was one encompassing all non-academic employees of the University of Toronto. The Board concluded that the non-academic or non-profes­sional employees of the University Library was an appropriate bargaining unit. In that case a bargaining unit composed of all non-academic employees would also have been appropriate, and perhaps more appropriate as a subdivision of an employer unit. In arriving at its determination the Board was simply fact finding for the purpose of determining and describing an appropriate unit and as such considered the employer's organization and the extent of organization of employees with other factors. It was not choosing between or among appropriate units or more or most appropriate units. Its fact finding was governed simply by what in all the circumstances was appropriate. That is a process that is carried on in many of the situations confronting this Board in making bargaining unit determinations.

21. The Board's process therefore in determining appropriate bargaining units is not directed to certifying the more or the most appropriate bargaining unit - the Labour Relations Act only requires that the unit of employees be appropriate; the Act does not require labour organizations to seek representations in the most comprehensive or optimum groupings unless such grouping constitutes the only appropriate unit. Cf. Federal Electric Corp. 157 NLRB 89 (1966); Bagdad Copper Company 144 NLRB 1496 (1963).

22. In conclusion we hold that where section 6(1) refers to "the unit of employees that is appropriate" it does not impose any requirement that the Board choose the more or most comprehensive unit - it only requires the Board to determine the unit of employees that is appropriate for collective bargaining having particular regard to the facts of the immediate application.

23. Similar views were expressed in Ponderosa Steak House (A Division of Foodex Systems Limited), [1975] OLRB Rep. Jan. 7:

24. A primary theme set out in the Labour Relations Act, and affirmed by the Board, is the prin­ciple of freedom of association. The preamble to the Act makes it clear that it is the intention of the Legislature to encourage collective bargaining "between employers and trade unions as the freely designated representatives of employees". More specifically, section 6(1) of the Act expressly provides that the wishes of the employees as to the appropriateness of the unit are to be considered by the Board. In other words, the Act recognizes that it is desirable that employ­ees be able to organize in a form that corresponds with their own wishes. Given this legislative policy favouring the right of self-organization, the Board must be careful that its determination as to the appropriateness of the bargaining unit has given proper weight to the wishes of the employees. An earlier decision of the Board, The Board of Education for the City of Toronto, July OLRB Monthly Report 430, clearly endorses such an approach. In giving due consideration to the wishes of the employees, the Board, in the absence of contrary evidence must assume that their wishes are expressed by the applicant union as the representative of the employees. This point was made by the Board in Board of Health of the York-Oshawa District Health Unit, 1969 June OLRB Monthly Report 340.

25. The right of self-organization, however, must at times compete with the need for viable and harmonious collective bargaining. Section 6 of the Act specifically requires the Board to deter­mine, not just a unit of employees, but "the unit of employees that is appropriate for collective bargaining". In other words, the Board has a responsibility under the Act to create a rational and viable collective bargaining structure, even though the exercise of this responsibility may sometimes conflict with the right of self-organization. This responsibility was recognized by the Board in the McMaster University case, 1973, February OLRB Monthly Report 103, and in the Board of Education for the City of Toronto case, supra.

26. The determination of what constitutes a viable collective bargaining structure requires the Board to consider matters of industrial relations policy, such as community of interest and frag­mentation of employees. Community of interest may be a requisite for viable collective bargain­ing, since the representation of disparate employee groups by one bargaining agent may put impossible strains upon it as it performs its role in the bargaining process. At the other extreme, a too narrow definition of community of interest may create undue fragmentation of employees, leading to a weak employee presence at the bargaining table, or the possibility of jurisdictional disputes among competing bargaining groups. It should be observed, however, that the Act does not create any presumption in favour of the most comprehensive unit of employees, even though these employees may have a community of interest. Section 1(1)(b) of the Act states that: "'bargaining unit' means a unit of employees appropriate for collective bargaining, whether it is an employer unit or a plant unit or a subdivision of either of them." This provision makes it quite clear that the determination of appropriateness does not always lead to the conclusion that the most comprehensive unit is also the most appropriate unit. Consideration of the wishes of employees, and of industrial relations policy, may very well dictate that a smaller bar­gaining unit is the appropriate unit. This point was clearly made in Board of Education for the City of Toronto case, supra.

27. Generally speaking then, the Board seeks to balance the need for viable collective bar­gaining structures with the importance of facilitating entry into collective bargaining and freedom of association (see also Board of Governors Reason Polytechnic Institute, [1984] OLRB Rep. Feb. 371, Adams Furniture Co. Limited, [1975] OLRB Rep. June 491, Canada Trustco Mortgage Company, [1977] OLRB Rep. June 330, K Mart Canada Limited, [1981] OLRB Sept. 1250 and National Trust, [1986] OLRB Rep. Feb. 250).

28. In Hospital for Sick Children, supra, the Board also commented on the fact that modern collective bargaining thrives in many contexts:

29. It will be seen that the statutory language has remained basically unchanged for more than four decades, and in the early years it provided the basis for making broad distinctions for bar­gaining unit purposes between such groups as: "white collar" office and technical employees, and "blue collar" production employees; skilled tradesmen (electricians, plumbers, sheet metal workers, etc.), and unskilled or semi-skilled workers; part-time employees and full-time employees; employees working for an employer in one plant or municipality and employees in another plant or municipality; and so on. However, these fairly simple, and then unexceptional distinctions, do not apply so easily today. Collective bargaining has extended beyond its tradi­tional "blue collar" industrial base, into the public sector and to increasingly sophisticated and diverse job hierarchies. Real life collective bargaining experience has outstripped some of the conventional wisdom and has shown that the collective bargaining system can exhibit quite a variety of structures, which, at one time, parties might have considered unconventional or inap­propriate. Ontario Hydro, for example, has a province-wide bargaining unit, encompassing a broad range of employee classifications, and thousands of employees, ranging from unskilled workers to highly trained technicians. A typical municipal "inside workers"' (white collar) bar­gaining unit may include occupations ranging from filing clerks, to computer programmers, economists and planners with a considerable amount of post-secondary or even graduate train­ing [see the Board's decision in The Regional Municipality of Durham, Board File 1818-84-R, decision released November 20, 1984]. The Ontario Civil Service bargaining unit contains thou­sands of employees ranging from clerks and typists to sophisticated scientific and technical per­sonnel - and, incidentally, the staff of a number of provincial psychiatric hospitals (see: Owen Sound General and Marine Hospital, [1978] OLRB Rep. May 445, where the Board noted that in the government sector nurses, paramedicals, service employees, and clericals are all in the same unit, even though under the Labour Relations Act, they have typically been segregated into separate units). While at one time common opinion and industrial relations practice might have supported fairly rigid (almost "class") divisions between employee groups, modern collec­tive bargaining seems to be able to thrive quite well in many contexts without such rigid distinc­tions. It is no longer as easy as it once was to say that it is "inappropriate" to group together for collective bargaining purposes, employees with quite diverse skills, education, training, position in the job hierarchy or probable aspirations.

30. The Board went on to set out its approach in the following terms:

We are troubled by the fact that a largely administrative and policy-laden determination has mushroomed in some cases into an elaborate, expensive and time-consuming process for decid­ing a relatively simple 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 the employer.

(emphasis added)

17. With this jurisprudential context in mind, we turn to the facts of the instant case. As a general proposition, a unit of all employees working at a particular home is consistent with the Board's previous determinations and the pattern of collective bargaining in this sector. The excep­tions agreed upon by the parties are not in issue here. There is, however, no reason on the facts before us to exclude the one part-time maintenance employee who works exclusively at Meadow-croft Place (Guelph). It was not suggested by either party that this individual did not share a suffi­ciently coherent community of interest to allow him to bargain together with the other employees at this location on a viable basis, nor that his inclusion would cause serious labour relations prob­lems for the employer.

18. Similarly, there was no suggestion that the employees based at this particular home could not bargain together on a viable basis. The real issue between the parties is whether the exclusion of the floating employees would cause serious labour relations problems for the employer. As noted above, the responding party cites the possibility of jurisdictional disputes over floor-stripping or accompanying residents, and the potential of work stoppages relating to two bar­gaining units rather than one. The Board has recently commented on the impact of the possibility of jurisdictional disputes in determining bargaining unit configurations. In Journey's End, [1994] OLRB Rep. Nov. 1538 where there was some "relief' interchange of duties between employees the applicant sought to be included in the bargaining unit and those whom the applicant wished to exclude, the Board said as follows:

In these circumstances, jurisdictional disputes must be 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.

19. There was no suggestion in this case that there might be widespread or persistent juris­dictional disputes. Rather, counsel cited only floor-stripping and the possibility a maintenance per­son might "walk a resident down a hall" if other employees were busy. The latter was apparently speculative; it was not asserted that this did in fact occur at the present time. The very tentative and limited nature of these problems, together with the ability of the parties to prevent them, leads us to the conclusion that they do not represent the kind of serious labour relations difficulties that would cause us to reject an otherwise viable unit.

20. The same is true for the responding party's argument with respect to the possibility of increased work stoppages. Without commenting on the assertion that this home has not yet been declared a facility under the Hospital Labour Disputes Arbitration Act, (which would eliminate the right to strike and lockout), the facts before us do not amount to the kind of potential for multiple or alternating strikes that might lead us to the conclusion that the unit was not appropriate.

21. It is also far from clear that the unit proposed by the responding party would reduce the likelihood of such problems. In addition, it would indeed have the effect that the floating employ­ees might be represented by a potential of twenty-five different bargaining agents with respect to the same employment with the same or overlapping employers. This strikes us as difficult to administer for both the employer and the union, not to mention the employees who might find it somewhat bewildering to have their working conditions and their coverage under any particular collective agreement change on a daily or even half-daily basis.

22. Typically, the Board has resolved this kind of problem relating to a mobile workforce by including them in a bargaining unit relating to their home base such as a head office or a partic­ular terminal, or the location from which they are assigned. These are sometimes referred to as "at or out of' bargaining units. In this manner, the difficulty of an employee potentially falling into more than one bargaining unit can be minimized.

23. We accept the proposition that the exclusive nature of bargaining unit representation means that there is a concomitant requirement that the bargaining unit be defined in a manner which ensures that an employee falls only within one bargaining unit at any particular point in time (see for example, Western Inventory Services Ltd. sup ra; Laurent Lamoreux Co. Ltd., [1985] OLRB Rep. Nov. 1618). It is not clear whether this proposition is strictly applicable to the facts before us, however, since the responding party is asserting that an employee would only be in the home's bargaining unit for the period he or she is working there. Of course, the scheme prepared by the responding party has other significant difficulties associated with it as we have noted above. More pertinent is the Board's approach to employees who may potentially fall within two units~in which the Board considers the unit to which the employee has the greatest attachment. In this case, the facts before us do not suggest that floating employees would have anything but the most casual attachment to the Guelph home.

24. The bargaining unit issue must be distinguished from the Board's rules of thumb for ascertaining the number of employees in the bargaining unit. Those rules only apply when the Board has determined the parameters of the bargaining unit, including the inclusion or exclusion of any particular employee classification or group under section 6 of the Act. Once the Board has determined the composition of the bargaining unit in general terms, it then moves on to ascertain the number of employees in that bargaining unit on the application date and the number of those employees who are members or who have applied to become members of the applicant. It is in this latter assessment that the Board applies various rules for determining whether any particular indi­vidual in the bargaining unit was employed in the unit on the date of application, including the Board's 30/30 rule which sweeps in bargaining unit employees not actually at work on the applica­tion date. Neither the application date rule nor the 30/30 rule determines the contours of the bar­gaining unit; rather, they are used to assess the number of bargaining unit members for the pur­pose of determining the percentage of membership support. (See Western Inventory, supra.)

25. For all these reasons, we decided that maintenance and housekeeping employees who float to different homes would not be included in the bargaining unit.

26. Following our decision, the parties were able to agree on the following description, which we find constitutes a unit of employees of the responding party appropriate for collective bargaining:

all employees of Meadowcroft Holdings Inc., c.o.b. as Execu-Care Nursing Services, SM Man­agement Services Ltd., and Meadowcroft Limited Partnership c.o.b. as Meadowcroft Place (Guelph) in the City of Guelph save and except supervisors, persons above the rank of supervi­sor, office and clerical staff and registered nurses.

For the purposes of clarity, the parties agree that maintenance and housekeeping employees who float to different homes are not included in the bargaining unit description.

27. The parties were also able to reach agreement to the effect that the positions of Charge

Nurse and Cook are included in the bargaining unit and the position of Activity

Co-ordinator/Assistant Administrator is not.

28. In accordance with the Rules of Procedure respecting applications for certification, the named responding party filed a list of employees in the bargaining unit, together with sample sig­natures for the employees on that list.

29. In support of its application for certification, the applicant union filed documentary evi­dence of membership in the form of cards. The cards were signed by each employee concerned and indicate a date within the six-month period immediately preceding the application date. The mem­bership evidence was supported by a duly completed Declaration Verifying Membership Evidence.

30. The 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 responding party in the bargaining unit on December 9, 1994, the certification application date, had applied to become members of the applicant on or before that date.

31. A certificate will issue to the applicant.