Ontario Labour Relations Board

[1996] OLRB REP. SEPTEMBER/OCTOBER 877

1139-96-R Service Employees International Union, Local 204 Affiliated with the S.E.I.U., A. F. of L. C.I.O., C.L.C., Applicant v. The McGill Club, Responding Party

BEFORE: Janice Johnston, Vice-Chair, and Board Members J. A. Ronson and R. Montague.

APPEARANCES: Michael Wright, Linda Micks, Mary Brown, Lucy Brown and Marcia Krednester for the applicant; William Gale, Sandy Turney and Anne-Marie LaBorde for the responding party.

DECISION OF THE BOARD; October 15, 1996

1. This is an application for certification in which the Board, (differently constituted) pursuant to section 9(2) of the Labour Relations Act, 1995 (the "Act"), certified the applicant, the Service Employees International Union, Local 204 Affiliated with the S.E.I.U., A. F. of L., C.I.O., C.L.C. (the "union") by decision dated August 20, 1996 for the following bargaining units:

Bargaining Unit #1 (Full-Time)

All employees of The McGill Club in the Municipality of Metropolitan Toronto, save and except supervisors, persons above the rank of supervisor, Fitness Instructors, office and clerical staff, and persons regularly employed for not more than 24 hours per week.

Bargaining Unit #2 (Part-Time)

All employees of The McGill Club in the Municipality of Metropolitan Toronto regularly employed for not more than 24 hours per week, save and except supervisors, persons above the rank of supervisor, Fitness Instructors, and office and clerical staff.

2. Section 9(2) provides as follows:

3. (2) Where, upon an application for certification, the Board is satisfied that any dispute as to the composition of the bargaining unit cannot affect the trade union's right to certification, the Board may certify the trade union as the bargaining agent pending the final resolution of the composition of the bargaining unit.

4. The only issue remaining in dispute after this decision and the issue that came before this panel of the Board concerned the status of persons classified as receptionists. There is one full-time receptionist, Mary Brown, and it appears that there are four part-time receptionists, Lucy Brown, Sandra Correira, Jackie Alvarez and Kelly Boyle. It was the position of the responding party, The McGill Club (the "employer" or the "club") that these individuals should be excluded from the bargaining unit pursuant to the "office and clerical staff' exclusion in both bargaining unit descriptions. The union takes the position that the receptionists should not be excluded from the bargaining unit.

5. As noted, the Board's determination with regard to the receptionist can have no impact on the final disposition concerning the bargaining unit description in this case. The bargaining unit description has been agreed upon and the union certified, the only issue remaining in dispute is whether or not the receptionists fall within the office and clerical exclusion. The Board's practice in the past in these circumstances was to either issue a final certificate to the union and refer the matter back to the parties to resolve (pursuant to Robin Hood Multifoods Inc. [1985] OLRB Rep. July 1159) or to issue an interim certificate and appoint a Labour Relations Officer to inquire into the duties and responsibilities of the disputed individuals. Such inquiry consisted of examinations in which the Officer might call and examine witnesses initially and then provide the parties with an opportunity to cross-examine these witnesses; both parties would then be given an opportunity to call and put witnesses or other evidence before the Officer; and the testimony of all witnesses was recorded and a transcript produced and distributed to the parties. The parties were then provided with the opportunity to make full written submissions and the dispute was ultimately resolved by a panel of the Board, generally without the necessity of a formal hearing.

6. Prior to the commencement of the hearing the Board confirmed that the parties were aware of the Board's Interim Information Bulletin No. 4 dealing with status disputes in certification applications. This information bulletin highlights the changes implemented by the Board in this area and was issued to the labour relations community on July 29, 1996 in the Board's monthly highlights.

7. The major change in this area concerns the appointment of Labour Relations Officers to conduct what have been traditionally referred to as "duties and responsibilities examinations" in status disputes. As was pointed out by the Chair of the Board in a Notice to the Community dated August 21, 1996, primarily for fiscal reasons, the Board will no longer be appointing Officers to conduct these types of examinations. Given the cutbacks the Board is facing, it has become necessary to implement a more expeditious process for dealing with this type of dispute. In addition, the changes to the certifica­tion procedures enacted by the Labour Relations Act, 1995, made it very clear that the government wished to implement a process that provided for a speedy mechanism for resolving applications for certification. The Act provides for a representation vote to be held within five (5) days of the application unless the Board directs otherwise. To date, it is only in rare circumstances that the Board has been unable to hold the vote in accordance with this time frame. If the Board were to continue to utilize Officers to conduct examinations, for obvious reasons, it would significantly slow down the certification process and the ultimate disposition of cases.

8. Accordingly, the Board has implemented a process whereby disputes concerning "status" will no longer be referred to examinations before a Board officer. Significant opportunities have been built into the new process for settlement. If it becomes obvious that the issue or issues will need to be placed before a panel of the Board, the new process provides for extensive pleadings. The parties must file with the Board a written summary of the material facts upon which they intend to rely, detailing the reasons for their positions on the substantive matters in dispute. In addition, the parties are directed to attempt to agree on the procedural aspects of the upcoming hearing including the identification of "representative witnesses", the question of who is responsible for ensuring that individuals in dispute attend the hearing (by summons or otherwise), the sequence in which individuals will be called as witnesses, and the days on which witnesses will be called. Failing agreement, the parties are directed to file with the Board and deliver to the other party written submissions detailing its position on the procedural aspects.

9. In this case, the Board in its decision dated August 20, 1996, reiterated the need for written submissions on both substantive and procedural matters. The decision contained the following direction:

10. The responding party is hereby directed to file with the Board and deliver to the applicant written submissions providing the reasons for their challenges and a summary of the material facts upon which they intend to rely by 5:00 p.m. on Wednesday, August 21, 1996.

11. The applicant is hereby directed to file with the Board and deliver to the responding party its response to the challenges, and a summary of the material facts upon which it intends to rely by Friday, August 23, 1996 at 5:00 p.m.

12. The parties have been strongly encouraged by the Board to do whatever possible to facilitate a speedy hearing, including the identification of representative persons. If the parties cannot agree on all of the procedural aspects of the upcoming hearing, each party must file with the Board and deliver to the other party, written submissions detailing its position on the outstanding procedural aspects by 5:00p.m. on Friday. August 23, 1996.

13. Both parties filed a written summary of the material facts upon which they intended to rely, including documents, in accordance with the Board's direction. With regard to procedural matters, the applicant indicated that the parties were unable to agree on a representative witness. The applicant suggested that as there was little in dispute of a factual nature, in terms of the duties and responsibilities of the receptionists, that the Board should review the material facts relied upon by the parties and determine if it was necessary to hear viva voce evidence or whether the Board should simply ask the parties to present their arguments with regard to the matter in dispute. Despite being directed to do so, the responding party did not make any submissions on procedural matters.

14. At the hearing, after ascertaining that the parties were aware of the Board's new approach in status disputes, we indicated that we would like to hear submissions concerning the procedure to be followed at the hearing.

15. The applicant argued, as there was very little factually in dispute between the parties, that the Board should proceed directly to final argument. Counsel on behalf of the responding party suggested that the written submissions highlighted that the parties were essentially in agreement upon the facts. However, he argued that there was some dispute with regard to the scope of certain functions and the significance of those functions. Counsel argued that the Board should hear viva voce evidence on these points. When the issue of a representative witness was raised by the Board, the parties were unable to agree on an individual or two individuals.

16. After reviewing the written summaries of the material facts provided to the Board by the parties, as supplemented by some additional factual agreements made at the hearing, the Board determined that it had sufficient material before it upon which to make a decision. In coming to this decision the Board noted that there was agreement on many of the material facts and that those in dispute were not crucial to the determination before the Board. In our view, there must be some good or compelling reason which requires the Board to hear vive voce evidence, considering the attendant delays and costs inherent in doing so. In this case we were satisfied that the parties had had full opportunity to put the relevant facts before the Board and given the materials filed we were of the view that we could make a decision based on the materials before us. Accordingly, in the circumstances of this case, the Board elected to proceed directly to final argument. Before setting out the final argument we turn to our conclusions of fact.

17. The parties were in agreement that the following list of duties and responsibilities accounted for approximately 80 percent of the receptionist's working hours.

(a) checking members' cards, signing in guests and explaining the Club to member guests or other individuals with guest passes;

(b) providing wake up calls to members who are in the common areas of the Club;

(c) operating the members' lost and found;

(d) calling members to remind them of committee meetings;

(e) booking members for courses which are taken through the Club, such as ceramics;

(0 contacting the valet on behalf of the members;

(g) keeping the members' car keys if the valet is not present and then providing the keys to the valet with instructions;

(h) answering the telephone and directing calls to lines for staff, members and guests;

(i) changing the function board each evening in preparation for the events on the following day;

(I) selling t-shirts, mugs and muffins to members and guests and receiving payment for same;

(k) taking reservations for the restaurant; and

(I) maintaining the member comments book, which involves simply sum­marizing comments sheets after the office staff have already reviewed them and decided on the appropriate action to be taken, if any.

14. The duties described in (b), (c) and U) do not take up a significant amount of time.

15. All staff are required to fill in a sign-in sheet indicating the time they arrived to commence work and the time they finish work. This sheet is maintained at the reception desk by the receptionist who submits it to the office on a daily basis. They are also responsible for ensuring that members and delivery and service people sign in before entering the Club. As a part of this process the receptionists monitor the number of visits made by "out-of-town" members who have a limited number of entries. Employees collect their pay cheques from the receptionists. The receptionists track and distribute mail to members of the Club, the Board of Directors and staff. On occasion, receptionists complete typing duties such as preparing envelopes or labels for mailing. They also type all new and renewed member­ship cards and issue these cards. The receptionists maintain a log of membership card numbers and expiry dates.

16. In addition to performing the switchboard function for the Club, which consists of answering internal and external telephone calls and transferring these to the appropriate staff person or member, the receptionists maintain a log of all outgoing long distance calls placed by staff which is submitted to the office every two weeks and the appropriate person charged for the call. The Club's safe is located at the receptionists' work station and the receptionist is responsible for maintaining it. Whenever a deposit is made to the safe it is noted on a document appropriately entitled the "Safe Deposit Sign-In Sheet". Receptionists can make cash deposits without the necessity of a witness to the deposit. Although other non-management staff can and do make cash deposits to the safe, this deposit must be witnessed by the receptionist. A record of the safe deposit sign-in sheets is maintained in the reception area. The receptionists complete one or more Deposit Sheets each day detailing cash, credit card and signing privilege transactions. These are then submitted to the accounting personnel as part of the accounting reconciliation process. The restaurant, nursery and valet parking services submit a sheet listing goods and services that members have signed for within the Club to the receptionists who are responsible for applying the charges to the members' credit cards and completing debit forms which are submitted to the office.

17. Notification of changes to member's information are received by receptionists from mem­bers, either on the telephone or in person. Receptionists then complete a Notice of Changes to Member's Information Form and submit the form to the office for record updating. The receptionists maintain a record of the lock combinations of each club member.

18. The receptionists are located at the main entrance to the Club and are often the first contact for Club members, staff, delivery people and service people. Due to this location and their duties, they frequently interact with Club members and other employees.

19. The office and accounting staff are located on the fourth floor of the Club in an area which is separate from the common areas of the Club which are frequented by members.

20. Both the union and the employer provided the Board with organization charts for the Club. The chart provided by the employer was dated 1995, and the one provided by the union appears to be dated 1996. In the 1995 chart, the receptionists are shown reporting to the Member/Service Director, who is also responsible for employees in maintenance, housekeeping and valet, all areas which are included in the bargaining unit. In the 1996 chart, the receptionists report to the Manager, Marketing and Membership as do the maintenance, valet, housekeeping and nursery employees. On the 1995 chart there is a position referred to as Senior accountant with two assistants reporting to it. The 1996 chart has substituted the position of Manager, Accounting and Administration for that of Senior Accountant. That position has two accountants and a vacant position for office reception/assistant reporting to it. It is not necessary to resolve which chart is more accurate. It is clear from both charts that for reporting purposes, the receptionists are included in a group of functions which are part of the bargaining unit. They do not report to the Senior Accountant or Manager Accounting and Administration, whereas the other office and clerical employees who were agreed upon as excluded from the bargaining unit do so. On May 17, 1996 the following memo was issued to staff.

MEMORANDUM TO: ALL STAFF

FROM: SANDY TURNEY

RE: STAFF REORGANIZATION

In keeping with out continuing growth and focus on both membership services and food and beverage, we are reorganizing our staff as follows, to be effective beginning June 1, 1996. The staff chart on the reverse reflects the new structure.

Elly Vlietman is Manager, Accounting and Administration. Elly will be responsible for the account­ing and administrative/office systems and operation.

Jo Ann James - continues as Fitness Director. She will be focusing on getting new members quickly involved and helping current members improve their use of the Club.

Henri Schmidt - will continue to do excellent work for our rapidly expanding Food an Beverage area, supervising the kitchen staff and the Spa Cafe.

Michael Brady - is assuming a new full time staff role as Manger of Catering and Programming. In this role he will be responsible for catering functions and our Atrium service staff. Michael will continue to coordinate programming events, many of which integrate with the Food and Beverage Department. As assistant Programming staff to be hired at a later date will assist Michael in both areas.

Erin McBride - is assuming a new position as Manager and Marketing and Membership Services. In this role she will continue to work on marketing for all program areas, and will supervise the areas that provide service to our membership. These include the nursery, valet services, housekeeping, and maintenance and the reception area.

The next year is a critical and more exciting year given our financial rebuilding and growing volume of business. Please feel discuss or ask any questions.

For reporting purposes this memo reiterates that the receptionists are being included with bargaining unit staff under the heading "areas that provide service to our membership".

21. The office and accounting staff who work on the fourth floor are salaried employees. The receptionists are paid on an hourly basis. Some of the employees in the bargaining unit, such as the housekeepers, are paid on a salaried basis whereas other bargaining unit members are paid hourly.

22. The employees who are included in the bargaining unit are employed in classifications such as: nursery, valet, catering/wait; kitchen/spa, and housekeeping. As such, many of them provide services directly to the members of the Club.

Argument

23. Counsel on behalf of the union agreed to proceed first in final argument. He took the position that the receptionists should be included in the bargaining unit because their primary function is physically servicing the members of the Club. The question before the Board in his view, is whether the receptionists provide direct member services (as do the bargaining unit members) or whether they are office and clerical. In deciding this issue, counsel suggested that the Board review carefully: what the receptionists do and don't do; how the Club organizes itself and the reporting relationships; the fact that the receptionists are geographically separate from the other office staff and are involved in direct membership service; the fact that although the receptionists handle money, so do other staff such as valets and food services staff; and that the receptionists are paid hourly while the office staff are on salary. Pursuant to the test articulated by the Board in the Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, counsel argued that the Board in this case must ask the question "is there anything you can point to that creates a problem if the receptionists were put in the bargaining unit". It would not create a viable collective bargaining structure to exclude the receptionists from the unit applied for and leave them in the position of having to apply for a separate unit on their own or with the office and clerical staff. This would result in small unit of five or six people and counsel questioned how viable a bargaining unit that would be in the event of a work stoppage. Counsel also brought to the Board's attention the fact that the union's scrutineer at the representation vote was Lucy Brown (the full-time receptionist) and that the employer's representative was Ann Marie LaBorde, one of the Accountants who was excluded from the bargaining unit pursuant to the office and clerical exclusion. Counsel argued that the fact that the receptionists supported the union and Miss LaBorde supported the Club was further evidence of the fact that the two groups of employees do not share a community of interest and are as he put it "on opposite sides of the fence".

24. In support of his position that the receptionists should be included in the bargaining unit counsel referred the Board to four cases. In the Price Club Westminster, [1992] OLRB Rep. Oct. 1098, the Board dealt with the scope of the bargaining unit exclusion of office and clerical staff and in particular whether or not numerous positions including the position of membership clerk fell within that exclusion. Counsel suggested that the receptionists in the case before us perform many of the same duties as did the membership clerks in the Price Club case. The membership clerks were included in the bargaining unit by the Board in that case as the Board concluded that they did not fall under an "office and sales" exclusion. Counsel referred to Burns International Security Services Limited, [1994] OLRB Rep. Apr. 347 for the analysis contained in paragraphs 28 and 29 of that decision concerning the approach the Board takes in determining an appropriate bargaining unit. In counsel's view, the analysis was equally applicable to the facts before us. Based on that Counsel urged us to include the receptionists in the bargaining unit. In support of his position that the geographic location of the receptionists, both apart from the other office staff and adjacent to some of the bargaining unit staff was an important consideration in this case, counsel referred the Board to Domtar Chemicals Limited, [1968] OLRB Rep. Oct. 719. In that case the Board concluded that persons classified as stockroom clerk and assistant stockroom clerk belonged in a unit of production employees due to their physical location and the nature of their duties. In Hamilton Entertainment and Convention Facilities Inc. March 27, 1991 Board File No. 1232-90-R, (unreported) the Board concluded that box office staff were not excluded from a bargaining unit of ushers/usherettes and bartenders pursuant to the "office, clerical and sales staff' exclusion in the bargaining unit description. Counsel urged us to reach the same conclusion as the Board came to in that case. In it, despite the fact that the nature of the work performed and the skills used by the box office staff were somewhat more akin to clerical employment than ushering or bartending, the Board found that the box office staff nevertheless shared a greater community of interest with the other employees in the bargaining unit than the office and clerical staff. Counsel argued that this conclusion was equally supportable on the facts before us.

25. In conclusion, counsel for the union urged us to not get caught up in the title of the position but to look at what the receptionists do and where they do it. Excluding the receptionists from the bargaining unit would impede their ability to organize and including them in the bargaining unit would have no adverse impact on the Club, its clients or other bargaining unit employees. Counsel pointed to the memo issued on May 17, 1996, which included the reception area as an area providing service to the membership, as indicative of the fact that the reception area and the receptionists shared a community of interest with the other employees included in the bargaining unit.

26. Counsel for the employer argued that the receptionists should not be part of the bargaining unit. Counsel pointed out that the union chose a bargaining unit which excluded clerical staff and in counsel's view the receptionists are clearly covered by the office and clerical exclusion. It is with the other office and clerical staff that the receptionists share a community of interest. Counsel disagreed with the assertion by union counsel that the question before the Board was whether or not the receptionists provided direct member services. In his view, it was important to look at the nature of the organization. Everyone is engaged in providing service to the Club members, some of it directly and some of it indirectly. He pointed out that there are employees in the bargaining unit who do not provide service directly to the members, such as the dishwasher or housekeepers, and that there are staff in the bargaining unit such as valets or nursery staff, who do provide a direct service. Although the office staff service members from primarily an accounting perspective, they also deal directly with members and answer their questions. Counsel suggested that there is no employee in the organization who does not deal with and service the members of the Club.

27. Employer counsel characterized the dealings of the receptionists with the Club's clients as merely an extension of the office staff. The receptionists in his view, are merely an extension of the accountants with regard to some of their duties. He pointed to the fact that the receptionists process credit card payments and are responsible for handling cash and maintaining the safe. The receptionists maintain a log of membership card numbers and expiry dates which is essentially the inventory of the Club. Counsel pointed to the fact that the receptionists keep track of the long distance telephone calls so that they can be accounted for when the telephone bill arrives as an example of the receptionists interacting directly with the accounting office.

28. Counsel for the employer argued that the receptionists perform an important monitoring function. They are responsible for maintaining the sign in sheet, tallying the time worked and submitting the information to the fourth floor to calculate the payment to employees. He submitted that the receptionists are responsible for monitoring the accuracy of the time other staff sign in and reporting any discrepancies to the Club management. This creates a conflict of interest with other bargaining unit members in his opinion. In addition, the fact that the receptionists have access to confidential informa­tion concerning which members are in default of payment of their fees, could be prejudicial to the Club's ability to negotiate a collective agreement if it fell into the union's hands as it is financial information which goes to the health of the company. The receptionists perform primarily administra­tive/clerical functions, as defined by counsel for the Club, as anything connected to maintaining records.

29. In support of his submissions counsel for the employer referred the Board to two cases, Highbury Ford Sales Limited, [1986] OLRB Rep. Jan. 94 and Bond Place Hotel, [1982] OLRB Rep. Aug. 1135. Counsel suggested that the fact that in the Highbury Ford Sales case the Board concluded that the positions in dispute were part of the office exclusion despite the fact that they were located in a geographically separate location, provided support for the employer's position that what should deter­mine this matter is what the receptionists actually do, not where they are located. Counsel asserted that in our case it was crucial to look at the flow of information from the receptionists to accounting. Although the receptionists are on the front line and deal with members, the interaction is primarily on an accounting/administrative basis. In the Bond Place Hotel, supra, switchboard operators were found to be part of the "office staff, front desk staff' exclusion. Counsel for the employer suggested that the facts in the two cases were similar. Both positions fielded incoming calls, provided wake-up calls and dealt directly with clients.

30. In response to the union's final arguments, counsel for the employer suggested that the employer's choice of scrutineer was purely coincidence as they chose someone who could identify the voters. In his view, no significance should be attached to it. In addition, no conclusions should be drawn from the organization charts or the memo dated May 17, 1996 as they are simply indicative of the fact that the Club is trying to evolve to a more efficient organization. In counsel's view, how the Club was trying to organize itself did not shed any light on the community of interest issue concerning the receptionists. Counsel suggested that the Price Club case (supra) was not helpful because it was dealing with an "office and sales" exclusion and that in that case the parties had agreed that the receptionist was covered by the office staff exclusion. As the Burns case (supra) only dealt with one classification, it was not helpful in counsel's opinion. In conclusion, counsel for the employer argued that the receptionists deal with confidential information, do not share a community of interest with the other employees in the bargaining unit and should be excluded from it.

31. In reply, counsel for the union argued that the receptionists do not have any responsibility for ensuring that employees record their hours accurately. In his view, the conflict of interest that would occur if another staff member did attempt to misstate his/her hours would be no different than the conflict of interest which would be present if any employee saw another employee stealing food or acting inappropriately. Counsel disputed the employer's characterization of the document pertaining to the members who are in default of their fees as being confidential, as the document sits at the receptionists desk, one of the most public places in the building. Counsel distinguished the Highbury Ford case (supra) on the basis that in it, the Board's analysis focused on who the individuals in dispute interacted more with and with whom they shared similar skills and abilities. There is no indication in the case before the Board that the receptionists have any specific accounting skills or could perform the functions of an accountant. The Bond Place Hotel case (supra) is not helpful in counsel's opinion as there are few facts provided to justify the decision.

Decision

32. Cases of this nature turn on their facts. Therefore, while the cases provided by the parties provide some insight into the approach the Board brings to this type of enquiry, they are not directly on point.

33. The Board's task in this case is simple. The parties have agreed on a bargaining unit description that excludes office and clerical workers. The issue before us is not the appropriateness of the bargaining unit proposed by the applicant, as the parties have reached agreement on that issue. The point we must decide, is whether or not the receptionists are covered by the office and clerical exclusion. In essence, we must examine their duties and responsibilities and determine if they fit within what has always been referred to as the "office and clerical" exemption. While it is appropriate as part of this process to look at with whom the receptionists share a community of interest, by assessing such factors as: what the duties and responsibilities of the receptionists are; the terms and conditions of their employment; where they fit in the organization, and with whom do they share functional coherence and interdependence, it is not appropriate to apply the test articulated in the Hospital for Sick Children (supra) in the manner suggested by counsel for the trade union to this exercise. The Sick Kids test reads as follows:

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?

34. In Sick Kids, supra the Board was focused on determining an appropriate bargaining unit structure. That is the task to which the test relates. The factors germane to that process are not necessarily relevant to the task we are facing. For example, when the Board is assessing bargaining unit structure, and in particular the appropriateness of the bargaining unit applied for, it considers issues such as the viability of the proposed structure and whether the proposed bargaining unit description limits access to collective bargaining opportunities for some employees. In the context of this case, if the union was concerned regarding the ability of the receptionists to access collective bargaining opportunities, why did they agree to an office and clerical exemption? While one answer might be because the union viewed them as not falling within this exclusion, surely the union realized that this conclusion was by no means certain. In addition, it is not appropriate for us to assess whether including the receptionists in the bargaining unit would create serious labour relations problems for the employer as we are not, in this case, determining the bargaining unit structure but whether or not the receptionists perform office and clerical work.

35. The Board will not, except in extreme circumstances, go behind the agreement of the parties with regard to the bargaining unit description, an agreement normally based on traditional assumptions and the Board's jurisprudence. However, the parties should question some of the long standing assumptions and exclusions traditionally agreed to automatically. The Board in Motor Coach Industries, [1992] OLRB Rep. June 744, has sent a clear signal to the labour relations community that automatic reliance should no longer be placed on antiquated Board policies which may have no relevance or applicability in today’s workplace. In the Motor Coach Industries case, the Board in concluding that an all employee bargaining unit which included office and clerical staff, was an appropriate bargaining unit stated:

36. In H. Gray Limited, supra, the Board made these observations:

The Board, since its inception, has held the view that the interests of office employees and plant employees are divergent. In the early days of the Board's history, the Board's policy was that "the two groups should be included in the same bargaining unit only if they clearly express a preference for organization along those lines (see Corbin Lock Case, (1944) D.L.S. 7-1109 CCH CANADIAN LABOUR LAW REPORTER Transfer Binder, ¶16,406). Subsequently, in 1946, in the Northern Electric Case (unreported), the Board reconsidered its policy relating to office workers and came to the conclusion, based on the wider experience it had gained by that time, that, in the interests of all parties, office workers should be placed in a bargaining unit separate and apart from other employees, even though, as was the fact in that case, there was evidence that the office employees clearly expressed a preference for inclusion in the same bargaining unit with other employees. In 1947, the Board, differently constituted, held, in the Electric Auto-Lite Case, (1947) D.L.S. 7-1343, CCH CANADIAN LABOUR LAW REPORTER, Transfer Binder, ¶16,499, that a trade union which represented the plant employees of an employer could not be certified as bargaining agent on behalf of his office workers.

……..Whatever the situation may have been under the legislation in force in 1947, we are unable to find anything in the present Act which confers upon the Board, either expressly or impliedly, authority so to limit the choice of the employees in the present context. ... I am of the opinion that the principle of the Electric Auto-Lite Case (supra) has no application under the present legislation except where a case comes within the terms of section 8 [now section 12] of the Act and that the same trade union, whether it be an "international" or a "local" of an "international", may be certified as bargaining agent for a bargaining unit of office employees as well as for a bargaining unit consisting of other employees. However, nothing I have said here is to be taken as indicating an intention to depart from the long established policy that in certification proceedings - and I am not concerned here with what parties may do in voluntary recognition situations or in collective bargaining following certification - the Board ought to place office workers in a bargaining unit separate and apart from other employees, save in the most exceptional circumstances.

The decision in H. Gray Limited, supra, does not say what sort of "office" and "plant" were contemplated by the long established policy to which it refers, nor does it indicate what circum­stances had led the Board to conclude as a general matter that the interests of office employees and plant employees were so divergent as to warrant a "policy" of almost invariable separation. The observation in H. Gray Limited, supra, that the Board had held this view "since its inception" suggests that those circumstances, whatever they may have been, were circumstances prevailing in the mid-1940's when the Board was first established. Reference to the Corbin Lock Case is of no assistance in pursuing these issues, as that decision does no more than recite that "in the opinion of the Board, the interest of employees in a plant and those in an office are so divergent that the two groups should be included in the same bargaining unit only if they clearly express a preference for organization along these lines." Again, there is no description of the characteristics of "plant" and "office" employment or other matters which are said to warrant this opinion. The Electric Auto-Lite Case is equally silent on these points, and the unreported Northern Electric Case decision referred to in H. Gray Limited, supra, is not available to us.

13. The "policy" in question is one which had fully matured more than forty-five years ago. In the state of the reported jurisprudence, we can only speculate on the facts and circumstances which might then have led the Board to articulate a "policy" that office workers would be excluded from a plant unit "except in the most exceptional circumstances." On the face of it, the basis of these pronouncements was its assessment of community of interest. We have no difficulty imagining that circumstances in which plant and office employees shared an adequate community of interest were "exceptional" in the workplaces being organized in the 1940's. It would have made sense for the Board to make it very clear that arguments for inclusion of office workers in the units sought by trade unions were unlikely to succeed, if that was its experience. We do not think that the Board's statements about the conditions of the 40's and 50's can be taken as an undertaking that the Board would continue to apply an "exceptional circumstances" test into the 90's despite changes in the nature of the workplaces being organized.

14. The nature and kinds of employment and the ways in which jobs are created, staffed and valued have all changed considerably in the last forty-five years. The fact that one person's work area is described as an "office" and another's is not does not always carry with it the same implications as it did forty-five years ago. We imagine that a workplace like this one, where the same pay scheme applies equally to office and "plant" employees and where office employees can apply for and are transferred to "plant" jobs and vice versa, would have been "most exceptional" in the 40's and 50's. We are not confident that that is so today. In any event, section 6 of the Act requires us to determine what is "appropriate". As the Board observed in Hospital For Sick Children, [1985] OLRB Rep. Feb. 266, at paragraph 23, that involves answering this 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?

The question the Board has to address does not change because office and clerical employees are involved. The question is still whether the unit proposed by the applicant is appropriate, not whether the circumstances can be described as "most exceptional."

15. 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 also possible today to imagine workplaces in which an "all employee" unit from which "office and clerical employees" are nor excluded would be entirely appropriate. The agreement of the parties does not relieve the Board of its obligation to make a finding under section 6 of the Act that a unit agreed to is appropriate. The appropriateness of an inclusive unit is sufficiently plausible, however, that the Board has acted and will act on an unchallenged agreement that it is appropriate without further inquiry and, in particular, without requiring that "most exceptional circumstances" be pleaded or proven.

16. In this case, the respondent's own treatment of the affected employees as a single unit for purposes of employee relations and the history of employee transfer between the groups which the respondent sought to have us separate demonstrated that the employees in the unit sought in this case shared a sufficiently coherent community of interest that they should be able to bargain together on a viable basis. The employer did not argue that this would cause it any labour relations problems, serious or otherwise. It simply argued that we had been shown no particular reason to "depart" from the "policy" pronounced in H. Gray Limited. For the reasons we have already set out, we did not find that argument compelling. The test propounded in Hospital For Sick Children, supra, having been satisfied, we found that the unit sought by the applicant was appropriate.

17. As the parties have agreed upon a bargaining unit structure that excludes office and clerical workers in this case, it is no longer an option open to us to reach a determination that it is appropriate to include office and clerical employees in this bargaining unit. The task before us is a more narrow one. We must determine whether or not the receptionists are part of the office and clerical exclusion.

18. Since the beginning of the Board's involvement in defining the scope of the office and clerical exclusion, receptionists appear to have automatically been included in this exclusion. Either the parties turn their minds to the issue and agree on the receptionists inclusion within the office and clerical exemption, or the receptionists inclusion is taken for granted. We have not been able to find any cases nor were any provided to us by the parties dealing with the issue of whether or not receptionists should or should not be included in the office and clerical exemption.

19. In this case the applicant asserts that one of the questions the Board has to determine is whether the receptionists provide direct member services (as do the bargaining unit members) or whether they are office and clerical. We do not find this focus or approach particularly helpful for a couple of reasons. First of all, we accept the employer's position that as the Club is a service organization all of its employees are involved in providing service, either directly or indirectly to the members. Employer counsel pointed to examples of employees who provide indirect service who are in the bargaining unit as well as examples of employees in the bargaining unit who provide a direct service. Secondly, it appears to us that the primary role of most receptionists is to be the initial contact for customers, clients and suppliers. Receptionists by definition "receive" people and callers and therefore have a great deal of contact with the people involved in the organization. Therefore it is almost invariably part of a receptionists' job to provide service directly to the employer's clients, employees, customers, suppliers, contractors etc. To determine whether employees should be included in the bargaining unit or share a community of interest with the bargaining unit members solely on the basis of whether they have regular direct contact with the Club members would be inappropriate in our view.

20. It is not necessary to list again all of the duties and responsibilities performed by the receptionists. In our view, a clear linkage based on the flow of information from the reception area to the office has been established. Most of the duties and responsibilities previously outlined are adminis­trative or clerical in nature and are supportive of the office and accounting function rather than those functions carried out by the bargaining unit members. However, the terms and conditions of employ­ment of the receptionists bear more similarity to those of the bargaining unit employees than the office and clerical workers. The receptionists are not treated the same in terms of wages as the other office workers as they are paid hourly and the other office workers are on a salary. By anyone's description, the receptionists are not part of the reporting structure of the office nor are they geographically located in the same area as the other office workers. After having carefully reviewed this matter were are of the view that the receptionists share a community of interest with both the other office and clerical staff and the members of the bargaining unit. In addition, we do not accept that any "monitoring" functions performed by the receptionists would create a conflict of interest with the other bargaining unit employees.

21. However, having said that, we are also of the view that as their duties are primarily those which we find to be administrative and clerical in nature, they share a greater community of interest with the office and clerical workers and must accordingly fall within the office and clerical exemption. The collection of information and data by the receptionists which then flows to the office accounting staff, forms an integral part of the Club's office and administrative function. Clearly, much of the work performed by the receptionists in this case is not dissimilar from work performed by receptionists generally. It would strain credulity to conclude that the work they perform is not office and clerical or administrative in nature.

22. In addition, what the union appears to be doing in this case is asking the Board to include in the bargaining unit some of the Club's office and clerical employees, but not all of them. This is not appropriate. Either the bargaining unit description includes office and clerical employees or it does not. In this case the union agreed to exclude office and clerical workers.

23. Accordingly, for the reasons stated, we find that the receptionists are included in the office and clerical exclusion and are therefore excluded from the bargaining unit. As this was the only issue remaining in dispute, a final certificate shall now issue for the bargaining units referred to in paragraph 1 of this decision.