Caressant Care Nursing Home of Canada, Limited v. Canadian Union of Public Employees, Local 2225.09, 1996 CanLII 11192

[1996] OLRB REP. SEPTEMBER/OCTOBER 748

3189-95-R Caressant Care Nursing Home of Canada, Limited, Applicant v. Cana­dian Union of Public Employees, Local 2225.09, Responding Party

BEFORE: B. Herlich, Vice-Chair, and Board Members O. R. McGuire and R. R. Montague.

APPEARANCES: P Straszynski and Steve Pawelko for the Applicant; B. Sheehan, G. Hewitt and J. Lindsay for the Responding Party.

DECISION OF BRAM HERLICH, VICE-CHAIR AND BOARD MEMBER R. R. MONTAGUE; October 2, 1996

1. The style of cause is hereby amended to reflect the correct name of the responding party: "Canadian Union of Public Employees, Local 2225.09".

2. This is an application brought pursuant to section 5(2) of the Labour Relations and Employ­ment Statute Law Amendment Act, 1995 ("Bill 7"). The applicant (the "employer") seeks to create separate bargaining units for its full and part-time employees. The parties filed the following "Agreed To Facts" at the commencement of the hearing in this matter:

AGREED TO FACTS

Background

1. The Applicant operates a Retirement Home and Nursing Home in Lindsay, Ontario. The Homes are located on the same premises and are physically attached.

2. As a result of a displacement application of bargaining rights held by the Christian Labour Association of Canada (CLAC) since 1981, CUPE Local 2225.09 in 1989 became the exclusive bargaining agent for employees in the following bargaining units, which were the same bargaining units for which CLAC held bargaining rights.

RETIREMENT HOME (FULL-TIME)

Article 3 - Recognition and Negotiations

3.01 The Employer recognizes the Union as the sole collective bargaining agent for, and this Collective Agreement shall apply to, all employees of Caressant Care Nursing Home of Canada Limited, operating under the style and cause of Caressant Care Retirement Home at Lindsay, Ontario, save and except registered and graduate nurses, supervisors, persons above the rank of supervisor, office and clerical staff and those regularly employed for not more than twenty-four (24) hours per week and students employed during the vacation period.

RETIREMENT HOME (PART-TIME)

Article 3 - Recognition and Negotiations

3.01 The employer recognizes the Union as the sole collective bargaining agent for, and this Collective Agreement shall apply to, all employees of Caressant Care Nursing Home of Canada Limited, operating under the style and cause of Caressant Care Retirement Home at Lindsay. Ontario, regularly employed for not more than twenty-four (24) hours per week and students employed during the vacation period, save and except registered and graduate nurses, supervisors, persons above the rank of supervisor, office and clerical staff.

NURSING HOME (FULL-TIME)

Article 3 - Recognition and Negotiations

3.01 The Employer recognizes the Union as the sole collective bargaining agent for, and this Collective Agreement shall apply to, all employees of Caressant Care Nursing Home of Canada Limited, operating under the style and cause of Caressant Care Retirement Home at Lindsay, Ontario, save and except registered and graduate nurses, supervisors, persons above the rank of supervisor, office and clerical staff and those regularly employed for not more than twenty-four (24) hours per week and students employed during the vacation period.

NURSING HOME (PART-TIME)

Article 3 - Recognition and Negotiations

3.01 The employer recognizes the Union as the sole collective bargaining agent for, and this Collective Agreement shall apply to, all employees of Caressant Care Nursing Home of Canada Limited, operating under the style and cause of Caressant Care Retirement Home at Lindsay, Ontario, regularly employed for not more than twenty-four (24) hours per week and students employed during the vacation period, save and except registered and graduate nurses, supervisors, persons above the rank of supervisor, office and clerical staff.

3. On or about October 7, 1994, the Local applied for a combination of all four bargaining units (Board File No. 2468-94-R).

4. On or about November 10, 1994, the parties reached a settlement regarding the applica­tion to combine bargaining units. Pursuant to that settlement, on November 15, 1994, the Board issued a decision combining the four bargaining units.

5. At the time of the combination, the four separate collective agreements had a uniform expiry date of March 31, 1995.

6. Prior to November 10, 1995, the parties were in the process of negotiating a renewal collective agreement with respect to the combined bargaining unit. In this regard, as of November 10, 1995, the parties had not addressed merging seniority and as of today there remains four separate seniority lists. Subsequent to November 10, 1995, the parties agreed to proceed with joint negotiations without prejudice to the Employer's position that in light of Bill 7 there should be four bargaining units.

7. As of today the sizes of the four bargaining units are as follows:

Nursing Home: 3 full-time employees, 45 part-time and 20 students Retire­ment Home: 2 full-time, 19 part-time and 10 students

Staffing levels outlined above are consistent with past years.

Community of Interest - Part-Time/Full-Time Employees

8. Employees in the part-time and full-time bargaining units in each of the Nursing Home and the Retirement Home respectively work along side each other performing the same work involving the same residents, in accordance with the same supervisory structure.

9. In particular, employees in the part-time and full-time bargaining units at both Homes perform the exact same duties.

10. Part-time employees generally are employed on a regular basis. The hours of work for part-time employees generally follows an eight hour pattern. There are, however, shifts of shorter durations worked by part-time employees. Students, do not work on as regular a basis as part-timers and could work varying hours of work.

11. Regarding shift patterns, full-time employees generally work ten shifts every two weeks with part-timers working on the basis of five shifts every two weeks.

12. All departmental meetings held respectively in each facility (i.e. housekeeping, dietary) include both full-time and part-time employees.

13. There are no separate job descriptions for full-time and part-time employees.

14. There is no difference in orientation and staff training for full-time and part-time employees.

15. Subject to the differences noted herein, the conditions of employment of the employees are the same. In this regard, the expired separate full-time and part-time collective agreements mirror each other. That is, the full-time and part-time collective agreements for both the Retirement and Nursing Homes are almost identical. Further, there is a great deal of integration and overlap between the collective agreements. For example, consider that the following provision regarding seniority appears in alt four existing collective agreements.

Article 12 - Seniority

12.01 (a) Unless stated otherwise, seniority shall be the number of hours worked since last hire or transfer into the bargaining unit.

Specific exception: a person who, immediately prior to being covered by this collective agreement, who was employed in Lindsay by Caressant Care Nurs­ing Home of Canada, Limited, shall be given credit for her seniority accrued in that former position. The credit for an employee coming directly from the full-time bargaining unit at the Nursing Home or from the full-time bargaining unit at the Rest Home shall be determined as follows: such an employee shall be given sixty (60) hours seniority for each full two (2) weeks of seniority accumulated in her former position.

12.01 (b) An employee's seniority, as defined inArticle 12.01 (a), shall transfer with the employee when she transfers out of one bargaining unit and into another bargaining unit for which the Union has bargaining rights with Caressant Care Nursing Home of Canada, Limited, at Lindsay. For purposes of clarity, an employee may have seniority in only one bargaining unit at any given time except where otherwise provided for in this agreement.

12.02 (a) A newly hired full-time employee shall be on probation for forty-five (45) working days from the last date of hiring.

12.02 (b) A newly hired part-time employee shall be on probation for three hundred and fifteen (315) hours worked from the date of the last hiring.

12.02 (c) During the probationary period, an employee may be terminated at the sole discretion of the Employer.

16. Likewise, the following bridging provision appears in all four collective agreements.

15.12 In the event there are no successful applicants from within the bargaining unit, employees other than students covered by the collective agreement respecting part-time employees at the Nursing Home shall be eligible for the vacant position on the same criteria as out in Article 15.03. To be eligible, such employees must submit their names within the time period as set out in Article

15.04. The Employer agrees to then consider applicants from the Rest Home on the same criteria as set out in Article 15.03 before making an outside hire.

17. It is understood, however, that initially job postings and bumping rights are restricted to the members of the relevant bargaining unit in question.

18. While the part-time employees do receive a ten (10%) percent payment in lieu of receiving certain fringe benefits, part-time employees are entitled to receive the following benefits: overtime, shift premium, vacation pay, jury and witness duty and bereavement pay.

19. Further to paragraph 18, full-time employees exclusively enjoy sick leave benefits, the welfare benefits outlined in the full-time collective agreement, including eleven statutory holidays and a uniform allowance.

20. Students are not entitled to benefits or pay in lieu and they are not entitled to shift premium.

21. Progression along the vacation grid and wage grid differs for full-time and part-time employees. For full-time employees it is by years of service and for part-time it is on an hours worked basis.

22. The parties agreed to a pension plan provision that applied to both part-time and full-time employees. The pension plan provision was not in fact applied because the Nursing Homes and Related Industries Pension Plan requires mandatory participation of all eligible employees. The provision of the collec­tive agreement only provided for voluntary participation of part-time employ­ees.

23. Regarding the two rounds of collective bargaining since CUPE was certified, that bargaining has taken place on the basis of joint negotiations at the same bargaining table involving the same representatives of the parties covering all four bargaining units.

24. The parties have only one Health and Safety Committee.

25. All four collective agreements are administered by the same personnel on behalf of both the Employer and the Local.

26. Local 2225.09 in the operation of its affairs does not distinguish between members of the part-time and full-time bargaining units. The President of the Local can and does represent employees in both the full-time and part-time units. The officers of the Local [who] are elected from the membership as a whole have the right to represent the employees of both the full-time and part-time units.

27. In addition to the facts just recited, the parties agreed that a number of documents ought to be marked as exhibits. These included the seniority lists, the most recent collective agreements, copies of the 1989 certificates granted to CLAC in respect of the four separate bargaining units, and the 1994 agreement between the parties along with the resulting Board decision directing the combination of the four bargaining units.

28. There was no issue as to the timeliness of the instant application; indeed, the application was filed even before the Board had the opportunity to generate the new forms required to accommodate such an application. Perhaps as a result of that there is some uncertainty on the face of the application itself which is styled as an "application for the separation of bargaining units" and refers to "Section 7 of the Labour Relations Act as amended by Bill 7" [we take the reference to section 7 to be a reference to the Board's power under that section of the Labour Relations Act as it existed prior to Bill 7 (hereinafter referred to as the "old Act") to combine bargaining units]. As the parties agreed at the commencement of the hearing, the actual operative legislative provisions are sections 5 and 6 of the Labour Relations and Employment Statute Law Amendment Act, 1995, the relevant portions of which provide as follows:

29. (1) This section applies with respect to bargaining units that include both full-time and part-time employees on the day this section comes into force but did not include both full-time and part-time employees before January 1, 1993.

(2) The employer or the trade union that represents the employees in the bargaining unit may apply to the Ontario Labour Relations Board within 90 days after this section comes into force for a declaration that the bargaining unit is not appropriate for collective bargaining.

(3) The Board shall issue the declaration unless the Board is satisfied that the existing bargaining unit is appropriate because a community of interest exists between the full-time and the part-time employees.

6. (1) This section applies with respect to bargaining units that were combined into a single bargaining unit under section 7 of the old Act or that were combined on or after January 1, 1993 and before this section comes into force.

(2) Ninety days after this section comes into force, the combined bargaining unit is divided into the separate bargaining units that were combined.

5. Similarly, the parties agreed that while the application itself purports to seek the "decombi­nation" of all 4 bargaining units, it is only the separation of full and part-time employees into distinct bargaining units which is at issue before the Board. To summarize: four separate bargaining units were combined into one by agreement of the parties and by order of the Board. In February of 1996 the combination of employees of the Retirement Home and Nursing Home was nullified by simple operation of law pursuant to section 6(2) of Bill 7. Subject to this application there are now two separate bargaining units (each consisting of full and part-time employees) of the Retirement Home and the Nursing Home employees respectively. In this application the employer seeks, pursuant to section 5(2) of Bill 7, to separate each of those two units into distinct full and part-time units.

6. The employer argument in this case was concise and straightforward. The intention of Bill 7 was to restore bargaining unit configurations which existed prior to the passage of the Labour Relations and Employment Statute Law Amendment Act, 1992 ("Bill 40"). Bill 7, it is asserted, codified the Board's pre-Bill 40 presumptions and, in particular, has revived the presumption that there is generally speaking, no community of interest as between full and part-time employees. Reference was made to decisions of the Board, including Board of Education for the Borough of Scarborough, [1980] OLRB Rep. Dec. 1713, to establish and justify the Board's policy, as it existed prior to the passage of Bill 40.

7. In addition, and in an effort to address some of the specific circumstances of this case, the employer pointed to differences, asserted to be significant in relation to the issue of community of interest, in the treatment of the employer's full and part-time employees.

8. The union's submissions were only slightly more complex. Two different approaches were suggested either of which, it was asserted, would lead to the same result. If the only real issue currently before the Board is whether or not there is a community of interest between the employer's full and part-time employees, the affirmative conclusion is apparent on the specific facts of this case. Alterna­tively (though in fact the union's primary argument), the Board ought to approach the issue slightly differently. The real issue ought to be whether the combined full and part-time units are appropriate in this case and the Board ought to approach the matter much as it would in an initial certification application in light of the Board's recent jurisprudence on issues relating to the appropriateness of bargaining units.

9. In support of either approach, the union pointed to the similarity of various terms and conditions of employment to support the existence of a community of interest between the full and part-time employees. We were also pointed to a number of Board decisions including The Hospital for Sick Children, [1985] OLRB Rep. Feb. 266 and Burns International Security Services Limited, [1994] OLRB Rep. April 347, as indicative of the Board's more recent general approach to appropriate bargaining unit and community of interest issues. The union also challenged the propriety of the Board's pre-Bill 40 policy of routinely separating full and part-time employees at the request of either party. Support for that challenge was provided by reference to Ronald Davis, The OLRB Policy on Bargaining Units for Part-Time Workers (Kingston: Industrial Relations Centre, Queen's University, 1991) and some of the empirical studies referred to therein.

10. Both parties addressed the issue of onus in this case. We are satisfied that there is no reason to dwell on this question. The issue in this case, as the Board sees it, is whether or not there is a community of interest as between the employer's full and part-time employees. The case has proceeded on the basis of agreed facts and documents introduced as evidence on consent of the parties. If, at the end of the day, the Board felt that it was hard pressed to answer the question put to it, the question of which party may have failed to discharge the legal onus might be relevant. Such is not the case here.

11. Since the employer asks us to restore, or asserts that Bill 7 has restored, the Board's pre-Bill 40 policy in respect of part-time employees, it is useful to examine the origin and basis for that policy.

12. There is no doubt that the Board's practice of excluding part-time employees from full-time bargaining units is one of considerable vintage. Examples of such apparent automatic exclusions can be found as early as 1946 (see for example, Brown's Bread Ltd., [1946] CLLC para. 16,433) although no specific rationale for the exclusion is explicitly articulated. In more recent but considerably dated decisions the Board has acknowledged its "usual practice [is] to exclude 24 hour persons and students from the full-time bargaining unit if the employer has a history of employing such persons, when one of the parties makes a request for such an exclusion" (see The Post Printing Company Ltd., [1966] OLRB Rep. March 930 at paragraph 7). Although no rationale was provided for the exclusion in the Post case, one can find bald assertions in Board decisions of the time to the effect that part-time employees "do not have the same community of interest with the full-time employees" (see Premier Plastics Limited, [1969] OLRB Rep. July 508 at paragraph 2). One might note that this formulation is perhaps somewhat less inflexible than the unreflective post-war exclusion. The 1966 formulation requires a request of either party to trigger the exclusion. Thus, it exhibits a certain internal logical inconsistency. The agreement of the parties or their joint failure to request the exclusion could result in the Board finding a bargaining unit which includes full and part-time employees to be appropriate. In other words, though generally expressed in emphatic and unreserved tones, the Board's concern about the lack of community of interest as between full and part-time employees was never so absolute as to invariably preclude their inclusion in the same bargaining unit.

13. In any event, the Post case description is one which accurately reflects the Board's practice from 1966 up to 1993 (when Bill 40 came into force). It was not until ten years after the Post case that the Board first had occasion to meaningfully address the rationale for its policy. In Leon's Furniture Limited, [1976] OLRB Rep. May 232 the Board confirmed its practice of excluding part-time employees from a full-time bargaining unit although it recognized that individual cases might warrant a departure from that practice. In explaining the "fundamental rationale underlying the Board's policy", the Board observed as follows (at paragraph 5):

……..we have learned through experience in such applications that part-time employees do not share a community of interest with full-time employees in many aspects of the collective bargaining scenario. More precisely part-time employees are more pragmatically concerned with immediate as opposed to long term benefits with respect to improving their terms and conditions of employment. In applying this proposition to more practical issues the part-time employee usually prefers to sacrifice long term pension, medical and other welfare benefits for a more substantial increase in wages or a longer vacation period. The nature of the seniority provisions contained in a collective agreement with respect to promotions, transfer and lay-offs does not always assume the same degree of significance to the part-time employee as it would the full-time employee. In other words, the Board has discerned a natural, inevitable schism in measuring the community of interests between the two categories of employees that invite separation into peculiar bargaining units.

(emphasis added)

14. Similar and related observations can be found in other Board decisions which followed the Leon's case. In Toronto Airport Hilton, [1980] OLRB Rep. Sept. 1330 the Board discussed its practice of excluding part-time employees and students from full-time bargaining units:

……..This practice reflects the Board's view, supported by the extensive labour relations experience and knowledge of its members, that part-time employees and students, on the one hand, and full-time employees, on the other hand, do not generally share a community of interest since the former are primarily concerned with maintaining a convenient work schedule which permits them to accommodate the other important aspects of their lives with their work and with obtaining short-term immediate improvements in remuneration rather than with obtaining life insurance, pension, disability, and other benefit plans; extensive seniority clauses; and other long-term benefits.

15. In Board of Education for the Borough of Scarborough, [1980] OLRB Rep. Dec. 1713 the Board (at paragraph 12) also adverted to some empirical data in support of its policy:

…….The employees in question work precisely one-half the hours of full-time employees and this fact is usually the critical advantage flowing to those employees attracted to part-time work. It is this reality that allows them to accommodate the other important aspects of their lives in a much more substantial way than full-time employment allows. For example, a 1976 study revealed that key reasons given for working part-time included: "going to school". "personal or family responsibilit­ies" and "not wanting to work 'full-time'." See Robertson, Part-time Work in Ontario: 1966 to 1976, Research Branch, Ontario Ministry of Labour, August 1976, Study No. 20, page 18. The fact that part-time employees perform the same work under the same conditions as full-time employees and the fact that their terms and conditions of employment are similar are not unusual facts in pre­collective bargaining employment patterns and pale in comparison to respective attachments to the work place of full and part-time employees.

16. It would appear that the Board, in formulating and justifying its policy, has relied upon a particular image of the typical part-time employee. The Board's conclusion that there is a "natural inevitable schism" between the interests of full and part-time employees is clearly built upon what has been viewed as the transitory or at least tenuous nature of the connection between the part-time employee and the workplace. However sound such images and assumptions may have been in 1946 or even in 1976, it is not at all apparent to us that they continue to apply in the present economic climate. It is no longer evident to us that assertions about the lack of community of interest as between full and part-time employees ought to continue to be elevated to the level of a labour relations axiom.

17. The Board's practice has come under sharp criticism in the monograph authored by Ronald Davis, cited above. It is not necessary for us to consider that work in detail. What is, however, significant for present purposes, is the fact that Davis cites a number of empirical studies (including J. Wallace, Part-time Work in Canada. Report of the Commission of Inquiry into Part-time Work (Ottawa: Supply and Services Canada, 1983) and M.L. Coates, Part-Time Employment: Labour Market Flexibility and Equity Issues (Kingston: Industrial Relations Centre, Queen's University, 1988)) which provide data arguably inconsistent with the Board's assumptions. Those studies support the conclusion that part-time employees, rather than being "attracted" to part-time work because it provides the conve­nience necessary for the employee to attend to the "other important" aspects of her life, may well be forced into part-time employment out of simple economic necessity and the lack of available full-time work. Other aspects of traditional assumptions about part-time employees, such as a lack of interest in long term employment or a preference for immediate remuneration over long term employment benefits, can equally be called into question on the basis of some of this empirical data. It is not necessary, and neither do we feel capable on the basis of the materials placed before us in this case, to paint some definitive sociological portrait of the archetypal part-time employee for the purposes of determining some universal presumption about their inclusion in full-time bargaining units. The only conclusion we can comfortably arrive at is that the conflicting data and accompanying polemics suggest that any effort to arrive at some monolithic model may well be doomed to failure. Such a conclusion is obviously inconsistent with any continuing presumptions about the exclusion of part-time employees. Hence, we reject the assertion by the employer in this case that we must now return to a practice whereby part-time employees are automatically and unreflectively excluded from full-time bargaining units on the request of a party.

18. Indeed, when we consider some of the recent trends and Board jurisprudence regarding determinations of appropriate bargaining units, we are fortified in our conclusion that the automatic exclusion of part-time employees effected by the simple request of either party should no longer be the Board's reflex practice.

19. There can be no doubt that the Board's decision in The Hospital for Sick Children, [1985] OLRB Rep. Feb. 266 (hereinafter referred to as "Sick Kids") has ushered in a new approach to bargaining unit determinations. What has now become the essential test for determining the appropriate bargaining unit was articulated in the following concise terms (at paragraph 23):

………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 employer.

20. The contribution of that case can be usefully highlighted by considering some of its innovation in the context of the Scarborough case, discussed and cited above. In coming to its conclusion and affirming the Board's policy of exclusion of part-time employees at the request of either party, the Board, in addition to the factors already discussed above, adverted briefly to the potentially broad and general impact on collective bargaining should the Board relinquish its practice. It should be recalled that in that case the responding party employer attempted to convince the Board that full and part-time employees ought to be included in the same unit. The Board's concern, though not fully elaborated, appears to have been the impact on organizing which might result from the inclusion of part-time employees and the resulting obligation on applicant unions to organize all employees. The Board thus expressed its concern that "collective bargaining would have been impeded for entire industries had this Board taken any other view".

21. A moment's reflection reveals how diminished the significance of the Board's previously articulated concern becomes in the wake of the Sick Kids formulation. As the Board has often said, the issue in bargaining unit determinations is not whether the unit in question is the one and only appropriate unit, but rather is simply whether the unit in question is an appropriate unit. And as the Sick Kids test has helped to make clear, the unit in question is the one proposed by the applicant union. Thus, were the Scarborough case to have been decided 5 years after rather than 5 years before Sick Kids the Board may well have been able to acknowledge that bargaining units including or excluding part-time employees might well be appropriate, but that so long as the unit proposed by the applicant met the Sick Kids test the Board would not hesitate to find it an appropriate unit. In other words, to the extent the Board's concerns about the potential impact on organizing have contributed to the maintenance of its practice with respect to part-time employees, those concerns must be seen to have dissipated. While there has been a value to the virtual certainty associated with the Board's practice, that certainty alone is little justification for its continuation. A more flexible approach is the natural result of the Sick Kids test. Applicant unions may decide in individual cases whether to organize and seek certification for separate or combined full and part-time bargaining units, confident in the knowledge that, so long as the Sick Kids test can be met, their applications will not be defeated by artificial and anachronistic rules about part-time employees. Similarly, employers can be assured that where they can persuade the Board that the bargaining unit proposed by the union, regardless of whether it includes or excludes part-time employees, is one which will create serious labour relations problems, the Board will not find such a unit to be appropriate.

22. The employer argued that the clear and obvious result in this case flows directly from the provisions of Bill 7 and the statutory intent in its promulgation. In short, the employer argues, Bill 7 has codified the pre Bill 40 presumption and/or Board policy to the effect that there is generally no community of interest between full and part-time employees. It is true, as we have already discussed, that the Board, prior to Bill 40, routinely excluded part-time employees from full-time units. However, upon considering the relative statutory treatment of part-time employees, both in terms of certification provisions and in terms of the transitional provisions under which the instant case is brought, we are not persuaded, as a matter of statutory interpretation, that Bill 7 has codified what the employer has referred to as the pre 1993 presumption or policy.

23. Following decades of legislative silence on the issue and as a result of Bill 40, section 6(2.1) of the old Act explicitly directed that the Board deem bargaining units consisting of full and part-time employees to be appropriate. It also (in section 6(2.4) of the old Act) directed the mandatory combina­tion of full and part-time units in certain situations in certification applications. Further, the instant parties are but some among many who saw their pre-existing separate full and part-time units combined under section 7 of the old Act.

24. Bill 7 repealed the old Act and replaced it with the Labour Relations Act, 1995 (the "new Act"). Essentially, the new Act resembles and in most cases revives the provisions of the Act as they existed prior to the passage of Bill 40. (There are notable exceptions to this general characterization which need not be elaborately detailed for our purposes: they include, of course, significant changes to the certification process but there are also some instances where Bill 40 changes have been retained.) What specific conclusions are to be drawn from these changes in respect of the treatment of part-time employees?

25. First, in the context of certification applications, can the Legislature be said to have codified a presumption regarding the essential lack of community of interest as between full and part-time employees? Has the "natural inevitable schism" formerly identified by the Board been given some form of legislative recognition? We think not. It would have been a simple matter, just as the old Act explicitly mandated the appropriateness of combined full and part-time bargaining units, for the new Act to explicitly preclude the inclusion of full and part-time employees in the same unit. In crafting the new Act the legislators, generally speaking, chose between 3 options: returning to the pre Bill 40 provisions, retaining the provisions of the old Act, and drafting new provisions. In view of the prior legislative silence on the point, any codification of the Board's former practice would have necessitated the drafting of new and explicit provisions, an option which was not chosen.

26. Neither are we persuaded that a consideration of the transitional provisions of Bill 7 leads to any materially different conclusion. A comparison of sections 5 and 6 of Bill 7 is instructive in this regard. Under section 6 bargaining units combined while the old Act was in force are (subject to an agreement of the parties to the contrary) "decombined" by simple operation of law. There is no need for any application to be brought. There is no necessity for the Board to make any finding as to the appropriateness of any bargaining unit in question. There is no need or opportunity for the Board to exercise any discretion or to make any assessment as an expert labour relations tribunal. The units are simply decombined.

27. Section 5, on the other hand, applies specifically to bargaining units which came to include both full and part-time employees while the old Act was in force (presumably whether by way of combination of existing or certification of new bargaining units). Its structure is markedly different. The decombination of full and part-time employee units is not a matter of simple operation of law. Such a decombination will only occur when one of the parties takes the steps necessary to effect it. An application must be filed with the Board. There is a limited 90 day window (which has long expired) for the bringing of such an application. There is no decombination unless and until the Board declares that the combined bargaining unit is not appropriate for collective bargaining. Where the Board is satisfied that the existing bargaining unit is appropriate because a community of interest exists between the full-time and part-time employees the application will be dismissed.

28. Section 5, when viewed on its own and, in particular, when contrasted with section 6, can hardly be described as precluding the continuing inclusion of full and part-time employees in the same bargaining unit. This is not a legislative incorporation of the notion of a natural inevitable schism. The net effect of section 5 is that, unlike the case in respect of other combined bargaining units, there is no universal legislative barrier to the continuation of combined full and part-time bargaining units. Indeed, even in the cases where one of the parties seeks to decombine the unit and even accepting the employer's argument that the onus lies on the responding party to persuade the Board that the existing unit is appropriate, the application may well be dismissed and the combined unit may well continue to exist. Such a result, one which the legislation clearly contemplates, is hardly consistent with any inflexible rule regarding the exclusion of part-time employees from full-time units.

29. It is for these reasons that we are unable to accept the employer's argument that Bill 7 has codified the pre Bill 40 presumption and/or Board policy that there is no community of interest between full and part-time employees.

30. We do, to a large extent, however, accept the employer's argument that insofar as it pertains to the issues surrounding the inclusion of full and part-time employees in the same bargaining unit, the effect of Bill 7 has been to restore the labour relations landscape as it existed on the eve of Bill 40. Now, as then, and subject to whatever specific statutory guidelines or directions there may be, it is and has been the Board's function to determine the unit of employees that is appropriate for collective bargaining. (That statutory charge is now found in section 9(1) of the new Act in wording which has remained unaffected by either Bill 40 or Bill 7.) We qualify our acceptance of the employer's argument in one important respect. It is true that there may be some variability in the precedential value of decisions of the Board based upon statutory provisions since repealed or significantly amended. Put most simply, the fact that the Board, pursuant to a since repealed statutory direction, has found combined full and part-time units to be appropriate may provide little jurisprudential foundation for a similar conclusion under the new Act. At the same time, however, the Board cannot simply ignore all of its institutional experience under the old Act. There are two relevant aspects of that experience.

31. First, during the period in which the old Act was in force, a cursory review of the Board's own records discloses some 47 instances in which formerly separate full and part-time bargaining units were combined. In addition, during the same period, there would appear to be some 167 instances of certifications in respect of bargaining units which included both full and part-time employees. By contrast there have been only 29 applications under section 5 of Bill 7 to divide any of those units into separate full and part-time units. This bit of empirical data, while admittedly not conclusive evidence, is entirely consistent with the view we have already expressed. It would appear that the proliferation of bargaining units which have included full and part-time employees has, for the most part, not created serious labour relations difficulties, otherwise we might have expected to have seen a more pronounced number of applications such as the present one filed during the relevant and now expired 90 day period. With all due respect to the prior Board decisions, this bit of empirical information is simply inconsistent with any concept of an invariable and natural inevitable schism between the interests of full and part-time employees.

32. Similarly, the Board cannot ignore the evolution of its jurisprudence with respect to bar­gaining unit issues generally. Again, while decisions clearly related to or founded upon now repealed legislative provisions may be of less utility, the Board's approach has continued to develop. For example in the recent case of Burns International Security Services Ltd., [1994] OLRB Rep. April 347 the Board dealt with whether a bargaining unit ought to be restricted to security guards and what the geographic scope of the unit ought to be. While the specific issues under consideration are of no direct relevance, the case nonetheless captures the contours of the Board's approach in a fashion which is highly relevant to our determination. For example, at paragraph 20, the Board offered the following:

……in recent years, the Board has been much less moved than it once might have been by white collar/blue collar distinctions or position on some notional job hierarchy. Indeed, in the Board's experience, quite diverse groupings have been able to function together without any serious labour relations problems; and it is not obvious to us that if other workers were added to the employer's complement, their inclusion in a bargaining unit would generate any serious labour relations problems.

33. The Board went on to cite a lengthy extract from the Sick Kids case, cited above, a portion of which we reproduce:

…….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.... While at one time common opinion and industrial relations practice might have supported a 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.

(emphasis added)

34. In concluding, the Board in the Burns case expressed its clear preference for a more flexible approach rather than a strict adherence to so-called Board policies which may or may not continue to reflect labour relations realities. The Board therefore recognized the need to balance the sometimes competing goals of facilitating collective bargaining and creating bargaining units which are stable and effective:

These goals must be harmonized within a framework that now recognizes (as early Board "policies" might not) that there is no single unique and indisputably "appropriate" unit. There are degrees of appropriateness; or to put the matter another way, sensible, alternative ways in which one can define the bargaining unit without triggering (as the Board in Hospital for Sick Children put it) "serious labour relations problems". A trade union need not seek to represent the most comprehensive or most appropriate bargaining unit; and as the applicant or moving party, the union has a degree of flexibility in deciding what unit to organize. As long as the unit it seeks does not generate serious labour relations difficulties for the employer, it will be granted the unit that it applies for.

35. Despite the fact that they are separated by almost ten years and a period a significant legislative change, one can easily identify the Board's decisions in the Sick Kids and Burns cases as two points along a common jurisprudential trajectory.

36. With those qualifications acknowledged but set aside for the moment, let us return to the employer's submission that, with respect to the inclusion of full-time and part-time employees in the same bargaining unit, the effect of Bill 7 has been to restore the labour relations landscape as it existed on the eve of Bill 40. While accepting that submission, we are satisfied that performing the somewhat artificial if not revisionist task of trying to assess how the Board might have decided the issue had it arisen, say, in 1992, leads to similar reservations about the continuing propriety of the Board's concept of a natural inevitable schism between the interests of full and part-time employees.

37. Indeed, one need only consider a 1992 decision of the Board in Motor Coach Industries Limited, [1992] OLRB Rep. June 744 to find another point along the Sick Kids trajectory which suggests that the duration and certainty associated with a Board practice are not necessarily sufficient reasons for its maintenance. Similarly, reference can also be made to the dangers of elevating certain historical distinctions (like full-time/part-time) to the level of legal rules (see Homewood Health Centre, [1992] OLRB Rep. Feb. 181 at paragraph 4).

38. The issue in the Motor Coach case was whether, as the applicant union requested, office and clerical employees ought to be included in an "all employee" unit. While the nature of the class of employee in question was different, the case and its reasoning are particularly germane to our considera­tions. The employer in that case relied upon the Board's "long established policy ... to place office workers in a bargaining unit separate and apart from other employees, save in the most exceptional circumstances" (see H. Gray Limited (1955), 55 CLLC para 18,011).

39. The Board reviewed the origins of the "policy" (at least to the extent they could be identified), and essentially concluded that while there may have been some basis for its formulation in the 1940s, there was no reason to assume that those considerations continued to apply to the modem workplace. In any event, the Board, citing the Sick Kids case, affirmed that the issue in a bargaining unit determination is decided by reference to the Sick Kids test, not by determining whether exceptional circumstances exist to warrant a departure from an otherwise invariable Board policy. The Board concluded that the bargaining unit sought by the union was appropriate and in a concluding paragraph made the following observations:

The separation of "office and clerical employees" from others in composing a bargaining unit is sufficiently conventional that the Board will act without further inquiry on an otherwise unchal­lenged agreement by affected parties that such a course of action is appropriate. Equally, given the diversity of modern jobs and of the workplaces in which they are performed, it is plausible today to imagine workplaces in which an "all employee" unit from which "office and clerical employees" are not excluded would be entirely appropriate.

40. In view of our previous discussion, we see no reason why the above comments would not be equally valid substituting the words "part-time employees" for "office and clerical employees". Simply put, just as we cannot assert or conclude that the natural inevitable schism has been immutably bridged, neither are we prepared to presume its existence in each and every case. Rather, in cases where the inclusion or exclusion of part-time employees is an issue between the parties, the Board, based on the materials before it, will determine whether or not the unit proposed by the applicant is one which encompasses 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.

41. The employer in the instant case cannot therefore rely on any so-called policy of the Board to invariably place full and part-time employees in separate bargaining units at the request of a party. The determination regarding the continued existence of the combined full-time/part-time bargaining units in the instant case will have to be made, not on the basis of any rigid Board practice, but rather on the basis of an assessment of the particular circumstances of the case. We now turn to that assessment.

42. The trade union argued that in coming to its conclusion the Board could choose between two routes leading to the same result. The Board could treat the instant matter akin to a fresh certification application and determine, just as the Board does in such cases, whether the existing bargaining units are appropriate. If the Board were satisfied that they were, then the employer's application must be dismissed. The employer candidly conceded that the result in this case could and should be different from the one it was seeking if the tests normally associated with certification applications were to be applied. In view of that concession, the Board's task in determining this case might be exceptionally simple were we to accept the union's urging that we treat this as, in effect, a certification application. While, as will become evident, it makes no difference to the result in this case, we cannot accept the union's invitation that we treat the issue before us simply as the same determination that might be made should the bargaining unit(s) in question be the subject of a certification application. And while there must be some concern about the (at least theoretical) possibility that in an application under section 5(2) of Bill 7 the Board might divide (or affirm) a bargaining unit that it would otherwise consider to be appropriate (or not) in a certification context, we feel compelled, in the context of the time-limited transitional applications which may be brought under the section, to frame our inquiry in the fashion the Legislature has directed.

43. Thus, the question in this case becomes not simply whether the existing bargaining units are appropriate but whether or not such appropriateness can be linked to the existence of a community of interest between the full-time and the part-time employees affected by this application. If such a community of interest exists the application will be dismissed; if not, the declaration sought will be granted.

44. In reviewing the agreed facts and exhibits put before the Board in this case, we are satisfied that there is a clear community of interest between the affected full and part-time employees. All employees in each of the homes work side by side performing the same duties under the same supervisory structure. They all receive the same training and orientation. Not only are the conditions of all employees generally the same, but the four separate collective agreements, which predate the combination of the units, read, in many respects like a single collective agreement with four different seniority divisions (akin perhaps to departmental seniority) - seniority is recognized and maintained upon movements between bargaining units; and while employees in the bargaining unit in question have priority, employees in the other three bargaining units are given job posting rights in the nature of internal candidates.

45. Indeed, even when one considers some of the issues which may be seen to have troubled previous panels of the Board, they point to the existence of a community of interest. The essence of the rationale for the conclusion that there is a natural inevitable schism between their interests flowed from the Board's concerns and assumptions about the respective attachments to the workplace of full and part-time employees. There can be no doubt about that attachment in this case. First of all, the enterprise is built upon part-time employees - there are 86 of them compared with only 5 full-time employees in the two homes. More importantly, a glance at the seniority lists graphically illustrates the attachment of part-time employees to their workplace. In the case of both homes one must move close to the midway point on the list before finding a part-time employee with a hire date more recent than five years old. This is not a transitory workforce. Further, while any expectation of an absolute identity in the benefits received by full and part-time employees would be unrealistic, the part-time employees do receive some benefits as well as a 10 percent payment in lieu of others. Most significant in this regard, however, is the fact that the parties had agreed to a pension plan which would apply to part-time employees. And although that agreement was not consummated, its mere existence demonstrates the similarity of interests between the full and part-time employees and is a dramatic example inconsistent with the traditional stereotype of part-time employees' preference for immediate remuneration over long term benefits.

46. In all of the circumstances and for all of the reasons set out, we are satisfied that the existing bargaining units are appropriate because a community of interest exists between the respective full-time and part-time employees.

47. This application is dismissed.

DECISION OF BOARD MEMBER O. R. MCGUIRE: October 2, 1996

I dissent. Reasons to follow.