[1997] OLRB Rep. September/October 824
3562-95-R Collingwood Nursing Home Ltd., Applicant v. Health, Office and Professional Employees, a Division of United Food and Commercial Workers International Union, Local 175, Responding Party
BEFORE: Christopher Albertyn, Vice-Chair, and Board Members I. A. Rundle and K. S. Brennan.
APPEARANCES: Joe Liberman, Susan Zober and Peter Zober for the applicant; Georgina Watts and Laurie Phillips for the responding party.
DECISION OF THE BOARD; September 17, 1997
This is an application pursuant to section 5 of the Labour Relations and Employment Law Amendment Act, 1995 for a declaration that a bargaining unit is not appropriate for collective bargaining. The applicant seeks an order that the bargaining unit, described below, which includes full-time and part-time employees, should be split into separate full-time and part-time bargaining units.
The application is sought on the basis that "because of the nature of the work performed, the different conditions of employment, the different skills levels of the employees, the difference in functional coherence and interdependence, that there exists no community of interest between the full-time and the part-time employees". The responding party disputes the submission, arguing that the full-time and part-time employees share a community of interest.
Section 5 of the said Act reads as follows:
- (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.
(4) The following occurs upon the issuance of a declaration:
The bargaining unit is divided into two bargaining units, one composed of full-time employees and one composed of part-time employees.
Subject to subsection (6), the trade union continues to represent the employees in each of the bargaining units.
Subject to subsection (6), the collective agreement, if any, continues to apply to the employees in each bargaining unit. There shall be deemed to be two collective agreements, one for each bargaining unit.
(5) Subject to subsection (6), upon issuing a declaration the Board shall certify the trade union as the bargaining agent for each of the bargaining units if there is no collective agreement in force.
(6) When issuing a declaration, the Board may make such orders as it considers appropriate in the circumstances, including orders relating to the collective agreement if any.
The union bears the onus of establishing that the application should not be granted. (See Marriott Corporation of Canada Ltd., unreported, May 1, 1997, Board File No. 3791-95-R, ¶3) [now reported at [1997] OLRB Rep. May/June 468].
The applicant operates a nursing home in Collingwood. It has 43 employees in the bargaining unit, of whom 17 are full-time, 20 are part-time and 6 are students performing part-time work.
The union was certified under Bill 40 as the bargaining agent on May 19, 1993. The bargaining unit which the Board found to be appropriate was the following:
all employees of Collingwood Nursing Home Ltd. in the Town of Collingwood, save and except Supervisors, persons above the rank of Supervisor, Registered and Graduate Nurses and office and clerical staff.
The bargaining unit covers nursing, housekeeping, kitchen and laundry employees. The employer agreed to that unit, which combined full-time and part-time employees, and the certification was issued by consent of the parties. We do not draw any adverse conclusion from the fact of the employer's agreement - we accept the employer's submission that, at that time, when combinations of bargaining units were encouraged under Bill 40, there was little likelihood of the employer successfully opposing the union's bargaining unit request on the basis that there ought to have been separate part-time and full-time units.
The parties concluded their first collective agreement, effective from April 21, 1993 until June 30, 1996, on March 27, 1995. The agreement was concluded shortly before the parties were due to undergo first contract arbitration and their agreement was made a consent order by the arbitrator under the Hospital Labour Disputes Arbitration Act.
The employer provides a home for approximately 60 mentally handicapped, physically challenged and chronically or terminally ill patients. Most are elderly.
The applicant has the following departments and employees: maintenance - consisting of one supervisor, who does not fall in the bargaining unit; laundry - one full-time supervisor who is not in the bargaining unit and a part-time laundry aide who is; housekeeping - one full-time supervisor (not in the bargaining unit) and 2 part-time aides (in the bargaining unit); the director of nursing who is not in the bargaining unit; dietary - one full-time food services supervisor (not in the bargaining unit) and two full-time cooks, a part-time breakfast cook and 5 students (all in the bargaining unit); nursing - 5 registered nurses (1 full-time, 4 part-time; all excluded from the bargaining unit), 3 full-time and I part-time registered practical nurses (out of the bargaining unit) and 11 full-time, 14 part-time and 2 student health care aides, all of whom are in the bargaining unit.
We heard a lot of evidence of precisely what work the health care aides and other employees in the bargaining unit do. We heard much of their team work and of the method by which work is organized. We learnt of the routines of the residents in the nursing home. What follows is not a detailed record of that evidence. We provide rather a synopsis of the situation, without the informative detail upon which our general observations are drawn.
In almost all respects the provisions of the parties' collective agreement apply in the same way to full-time and part-time employees. They work at the same rates of pay, they work interchangeably and the distinction between them has no implications for work organization. Full-timers and part-timers alike report to a charge nurse and to the Director of Care. There is no superiority of full-timers over part-timers. They are treated alike in virtually every respect. They do the same work. Differences that exist in the work of the employees concerns their functions (e.g. kitchen, laundry, housekeeping or nursing) and not in whether they are full-time or part-time. Both categories of employee who work in the nursing section, except students, are required to have a health care aide certificate in order to perform the work they do. Job postings are available to full-time and part-time employees alike.
Work by nursing aides is done in teams of three. There are 8 employees engaged during the day shift, two teams of three employees and one team of two, all of whom report to a charge nurse on duty. No distinction is made between full- and part-time employees. There is a team leader appointed for each team, who can be either a full-time or part-time employee, although, in practice, the team leader is almost always or almost exclusively a full-time employee. There are no differences in the tasks performed by the employees, whether full-time or part-time.
Under the employer's previous director of care, full-time and part-time employees could switch shifts with each other and accommodate each other without prior permission to do so. The employer contended that that practice had changed, although conceded that the employees were likely to be unaware of the change. According to the employer, the new practice was that full-timers could switch with full-timers, and part-timers with part-timers, but not with each other, without the Director of Care's permission. The change in practice appears, though, not to have been implemented to any significant degree.
There is one policy manual for all employees, whether full-time or part-time.
The evening shift, from 3 p.m. to 11 p.m., has 6 employees. Part-timers tend to predominate. There is also a short shift (a tub shift) from 5 p.m. to 9 p.m. which is worked by two students. During the night shift (from II p.m. to 7 a.m.) there are two health care aides and a charge nurse on duty. There is also a short morning shift, from 7 a.m. to 11 a.m. - the morning tub shift. Those too are usually staffed by part-timers.
There are some differences. Seniority is calculated differently for full-time and part-time employees. For full-time workers seniority is calculated on the basis of years of service with the employer; for part-timers a year's seniority is calculated on the basis of 1,800 hours of work. Full-timers almost exclusively perform their work during the main day shift, from 7 a.m. to 3 p.m. and the part-timers almost exclusively work in the other times - on the evening and night shifts and during the tub shifts. However there is an overlap between the two categories of employees - part-timers replace absent full-timers and vice-versa and there is a degree of inter-change of employees as between the different shifts. There is no need for any orientation if a full-time employee replaces a part-timer, or vice-versa. Management regards the part-timers on the regular day-shift as being replacements for regular full-time incumbents. Some full-timers prefer to work evening or night shifts instead of the day shift, and they are scheduled to do so. The work required during each of the three main shifts (day, evening and night) differs in some respects, but the quantity of the work and the extent of the employees' responsibilities do not differ to any significant degree.
The employer presented figures of significantly higher turn-over of part-time, than full-time, employees (in 1995 - 80% of the turnover was of part-time employees; 1996- 100%). Of the part-time employees who left employment in the high turn-over figures, some were terminated by the employer, either at the end of their probation or laid-off. The higher turn-over figure of part-time employees was somewhat explained by evidence that most of the part-time employees would like to become full-time and have more hours of work, and the shifts which are more readily available for part-time work are those at less convenient times of the day. Hence if part-time workers can get other work at more convenient times of the day, or if they can secure full-time work with another employer, they accept the alternative.
Similarly the employer's figures revealed that part-time workers required more than double the time off work than did full-time workers (in the latter half of 1995 - 69% compared to 31%; in the first 4 months of 1996 - 70% to 30%). There were many more requests for shift changes from part-time than from full-time employees (in the latter half of 1995, 82% were from part-timers, 18% from fulltimers; in the first 4 months of 1996, 79% part-timers, 21% full-timers).
When the employer's figures were questioned during cross-examination, it was explained that the figures for full-time employees included all of the employer's staff, whether or not they fell into the bargaining unit, including its management. Hence the above statistics are not entirely helpful.
We heard evidence, the relevance of which was challenged, of the historical roots of the Board's jurisprudence for the bargaining unit distinction between full-time and part-time employees. We admitted the evidence, but reserved our ruling as to its relevance. The evidence concerned the sociological assumptions prevalent in the 1970's when the full-time - part-time bargaining unit distinction was substantially established by the Board. We find that evidence to be relevant to our consideration, and helpful. (See R. v. Gratt 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at 836). The fact that the Board is assumed to have specialist knowledge of industrial and labour relations matters does not mean that it cannot learn from other specialists in the same field, particularly from their sociological inferences and insights of trends revealed by statistical and other research, which can serve to illuminate areas of the field which might otherwise have remained obscure, unexceptional or opaque. The expert's opinion does not usurp our function of deciding this case. It merely provides some of the sociological and theoretical elements which indirectly serve to inform our decision.
Professor Robert Hebdon, now of Cornell University, an expert in industrial relations, testified that the Board's jurisprudence concerning the division of part-time and full-time workers into separate bargaining units was grounded in certain sociological assumptions which, in his opinion, were no longer well-founded. He himself has not done original research on this issue, although he is well acquainted with the literature on the subject. The lack of his own original research on the topic does not vitiate his evidence. (R. v. Valley (1986), 1986 CanLII 4609 (ON CA), 26 C.C.C. (3d) 207, at 240 (C.C.C.); R. v. Abbey 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24; R. v. LavalMe 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852; R. v. Anderson (1914), 1914 CanLII 361 (AB SCAD), 22 C.C.C. 455, at 476).
Professor Hebdon suggested that while previously there might have been a difference of interest between part-time and full-time employees, that no longer obtains to nearly the same extent. During the 1970's, when the Board's jurisprudence made a distinction between full-time and part-time employment, part-time work tended to be a lifestyle choice by people who preferred not to work full-time. Such work contrasted with the work of full-time employees who were obliged, by economic necessity, to work full-time and did not enjoy the luxury of being able to choose part-time work as a lifestyle preference. The conceptual distinction between full-time and part-time workers was made because they appeared to have significantly divergent interests.
Twenty years later, in the 1990's, the character of part-time work has changed fundamentally, according to Professor Hebdon. Now those who work part-time out of choice have become a smaller majority. A far higher proportion of part-time workers (36% in 1994 as compared to 12% in 1976- a threefold jump) are involuntary part-timers. They have been unable to secure full-time work; they need their part-time jobs as the necessary means of earning a living and many of them work multiple part-time jobs. Furthermore, the relative number of part-time employees has increased as compared to full-time employees: from 12.5% of the total number of people in employment in 1976 to 18.8% in 1994. These figures are commensurate with the increasing proportion of non-standard or atypical forms of employment (part-time work, temporary work, dependent contracts, limited term contracts, 'on-call' employment) in comparison to the standard form of full-time, indefinite or permanent employment which predominates.
The aspirations of part-time workers have altered over the past two decades. During the 1970's their principal interest was job flexibility and convenience. In the 1990's, while that remains of concern, part-time workers have a greater interest in securing employment benefits, pension entitlements, vacation, higher wages and job security. Those interests are now more similar to those most desired by full-time employees than was previously the case.
To summarize Professor Hebdon's evidence: he was of the opinion that the motivation for working, as between full-time and part-time workers, was markedly distinct from that some twenty years ago. Now, full-timers and part-timers are motivated by substantially the same interests.
These matters to which Professor Hebdon attested were subsequently canvassed thoroughly in Caressant Care Nursing Home of Canada Limited, [1996] OLRB Rep. September/October 748. The parties were given an opportunity to comment on that decision. The same is true of the Board's decision in Marriott Corporation of Canada Ltd. (at Carleton University), above.
We have regard to, and adopt, the following in the Marriott case as the proper interpretation of section 5 of the Labour Relations and Employment Law Amendment Act, 1995:
It will be apparent from this brief review of the Board's recent case law that the concept of 'community of interest" no longer plays a significant role in the determination of appropriate bargaining units in applications for certification, and the union urged us to take a similar approach here. CUPE suggested that we apply the "Sick Kids analysis" and focus our attention on the presence of a sufficient community of interest among the full-time and part-time employees and the absence of any concrete, demonstrable, serious labour relations problems flowing from their inclusion in a single bargaining unit.
It is tempting for the Board to presume that the reference to "community of interest" in section 5(3) was intended to incorporate the meaning the Board has recently given to that concept. We might then be prepared to find that the union's evidence of: a single employer; an overlap in certain job functions, classifications, hours of work and supervision; and a union executive drawn from the ranks of both types of employees, satisfies that test. However, we do not believe that that was the Legislature's intention.
First, and perhaps most obviously, section 5(3) does not reproduce the 'Sick Kids test" nor does it make any reference to "serious labour relations problems". That part of the Sick Kids analysis is noticeably absent, and we do not think it can be inferred from the reference to community of interest. "Community of interest" and “serious labour relations problems" are different, albeit related, concepts. "Serious labour relations problems" are, among other things, the filter through which an allegedly deficient "community of interest" must pass. Second, the Board has said that most, if not all, employee groupings share "a community of interest" by virtue of working for the same employer and that many "communities of interest" can be located within a given workplace. Were we to take this approach to the requirements of section 5(3), it is plain that all, or virtually all, such applications would be doomed to failure. In our view, that cannot have been the Legislature's intention. A more satisfactory approach, from a statutory interpretation point of view, is to assume that the Legislature intended its words to have some meaning. That meaning can be found in the more "traditional" approach to the concept of community of interest expressed in such cases as Board of Education for the Borough of Scarborough, [1980] OLRB Rep. Dec. 1713; Toronto Airport Hilton, [1980] OLRB Rep. Sept. 1330, and Leon's Furniture Limited, [1976] OLRB Rep. May 232.
In this case the full-timers and the part-timers are employed on virtually identical terms. The full-timers enjoy more day shift work than do the part-timers, but in virtually all other respects they are treated alike. The parties have a different method for calculating seniority. Part-timers accrue seniority on the basis of their total hours; full-timers on the basis of years of service. That is a difference, but it is not one which has caused any labour relations problems and it is one which has a rational kernel. Full-time workers would tend to work the same number of hours each week and each year; part-timers would not necessarily work the same number of hours. There might be claims of discrimination or unfairness if those part-timers who worked fewer hours in any year were treated as having the same seniority as those who worked significantly more. This is not to say that one method of calculation is better than another-rather it is intended to show that the different method of calculation has a rational basis and does not suggest any conflict of interest between the two categories of employee. There is a difference in their seniority calculation; nothing more. It has no wider significance for the purposes of determining appropriate collective bargaining structures. To use the categories for assessing a community of interest used in Usarco Limited, [1967] OLRB Rep. September 526 at 529, the part-time and full-time employees perform the same work, they are employed under virtually identical terms and conditions of employment, they work in the same workplace with each other and there is a functional coherence and interdependence between them. They have a very substantial community of interest.
While adopting the approach of the Board in the Marriott case, above, we come to a different conclusion than the Board did in that case because of the factual differences between that case and this. In that case there was a significant divergence of interest between the full-time and the part-time employees. There the Board was faced with a part-time workforce of students who were quintessentially temporary employees. That is not the case here. What we have is an integrated work force, working inter-changeably, sharing substantively the same terms and conditions of employment, being treated alike in virtually all significant respects and having regard for themselves-and in large measure being treated as such by management-as being of the same circumstance. We are dealing with part-time employees who are substantially long-term employees. They seek secure and stable employment like their full-time counterparts.
From the evidence presented to us, and having regard to the parties' respective submissions on the issues in dispute between them, we are satisfied that there is a substantial community of interest between the full-time and the part-time employees in a combined unit. We accordingly determine that the union has met its burden of proof in this matter and that the existing bargaining unit is appropriate because a community of interest exists between the full-time and the part-time employees.
Accordingly, the employer's application is dismissed.
A concurring opinion of Board Member Brennan may follow.