Marriott Corporation of Canada Ltd. (at Carleton University) v. Canadian Union of Public Employees and its Local 2451, 1997 CanLII 15567

[1997] OLRB REP. MAY/JUNE 468

3791-95-R Marriott Corporation of Canada Ltd. (at Carleton University), Applicant v. Canadian Union of Public Employees and its Local 2451, Responding Party

BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members J. A. Rundle and D. A. Patterson.

APPEARANCES: P M. Rusak, Joe Boregisi, Frank Gillett and John Babiak for the applicant; Sean McGee, Andy Mele, Larry Wong and Alain Belanger for the responding party.

DECISION OF RUSSELL G. GOODFELLOW, VICE-CHAIR, AND BOARD MEMBER J. A. RUNDLE; May 1, 1997

1. This application is made pursuant to section 5(2) of the transitional provisions of the Labour Relations Act, 1995. Section 5 states in its entirety:

2. (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:

1. The bargaining unit is divided into two bargaining units, one composed of full-time employees and one composed of part-time employees.

2. Subject to subsection (6), the trade union continues to represent the employees in each of the bargaining units.

3. 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.

2. The unit in question was created by a decision of the Board dated August 19, 1994. That decision was made pursuant to section 7 of Bill 40. The decision combined two pre-existing bargaining units into one. The pre-existing bargaining units were an exclusively full-time and an exclusively part-time unit. The present application was filed on January 30, 1996. That date was within 90 days of the coming into force of section 5. Accordingly, the requirements of sections 5(1) and (2) are met. That leaves the language of section 5(3).

3. Section 5(3) requires the Board to issue the declaration referred to in section 5(2) (i.e. "that the bargaining unit is not appropriate for collective bargaining") 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". The onus of proof, therefore, is on the union.

4. The parties directed their evidence and submissions towards two issues: the existence of a community of interest between the full-time and part-time employees and whether the inclusion of both types of employees in a single bargaining unit had created or would be likely to create serious labour relations problems. At the risk of over-simplifying the parties' positions, the employer argued that there was no community of interest between the two groups and, in the event that it was relevant, their inclusion in a single bargaining unit had created and would be likely to continue to create serious labour relations problems. The union argued, on the other hand, that there was a sufficient community of interest between the two types of employees and that the combined bargaining structure had not generated and would not be likely to generate any serious labour relations problems.

5. In the Board's view, the fundamental question to be decided is the meaning to be given to section 5(3). Specifically, is the reference to "a community of interest" meant to invoke the Board's traditional approach to this concept or its more modern version as expressed, for example, in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266. The difference is significant. Prior to "Sick Kids" the Board would determine the appropriateness of a proposed bargaining unit, in part, with reference to the existence of what it described as a "community of interest" between the employees. At that time, and prior to Bill 7, those words did not appear in the statute and the Board was not expressly required to give content to them. Whether a community of interest existed depended upon the application of a variety of factors and presumptions. In the case of full-time and part-time employees, the Board presumed disparate collective bargaining interests and routinely placed such employees in different bargaining units at the behest of either party. However, 30 years of collective bargaining experience, changing patterns of work and organizing, and a deepening labour relations wisdom changed all of that. In Sick Kids the Board re-examined its approach to the determination of appropriate bargaining units and, in the process, assigned a new role and standard to the concept of community of interest. In what has become the critical passage of that decision, the Board stated:

6. We might make an additional but related observation. 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...

7. As a result of this and subsequent decisions the Board has shifted the focus of its analysis from "community of interest" to the more functional "serious labour relations problems". The evolution in the Board's thinking was captured in Burns International Security Services Limited, [1994] OLRB Rep. April 347, After setting out the foregoing passage from Sick Kids, the Board stated:

27 If the unit applied for meets that simple test, it serves no purpose to litigate alternative bargaining unit configurations, nor does the term "community of interest" usually provide much guidance to what is an appropriate bargaining unit. All employees. .share a "community of interest" by virtue of working for the same employer, and "real life collective bargaining" seems to be able to accommodate groups with quite different duties and conditions, who one might still argue had a separate "community of interest".

28. Both in Hospital for Sick Children and in later cases, the Board has explored the tension between bargaining structures that facilitate organizing (one of the goals of the statute), and bargaining structures that are likely to be more stable and effective in the long-run (another goal of the Act). The former objective points to smaller employee groupings which are more readily organized. The latter goal points to broader-based bargaining units that have the organizational mass and bargaining power to survive over time and in changing market conditions.

29. 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 toast 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. The focus is on concrete problems rather than the sometimes nebulous concept of "community of interest”…….

30. Similar sentiments were expressed subsequently in Active Mold Plastic Products Ltd., [1994] OLRB Rep. June 617, where the Board stated:

31. Most recently, in Burns International Security Services Limited (unreported. April 7. 1994. Board File 3340-93-R), the Board addressed the utility of the concept of "community of interest". In this decision, it was noted that the term "community of interest" does not usually provide the Board with much assistance in determining whether an applied for bargaining unit is appropriate. It was observed in this decision that the focus before the Board in bargaining unit determination cases should be upon "concrete problems rather than the sometimes nebulous concept of 'commu­nity of interest

32. This panel of the Board agrees with the approach to the concept of "community of interest" which is reflected by the decision of Burns International Security Services Limited, described above. In the case before us, we found the numerous references to "community of interest" to be unhelpful. As noted by the Board in Burns International Security Services Limited, all employees share a "community of interest" by virtue of working for the same employer. In point of fact, there are numerous "communities of interest" that can be identified in any particular workplace. It is not necessary nor is it desirable for the Board to assess the relative strengths of the varied "communities of interest" in the workplace, just as it is unnecessary for the Board to consider alternative bargaining unit descriptions in the absence of serious labour relations problems.. At the end of the day, the Board's focus should be upon the concrete, demonstrable problems which will result from the applicant's proposed bargaining unit should it be granted by the Board. In the absence of such concrete, demonstrable problems, the applicant's proposed bargaining unit will be acceptable to the Board.

33. 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.

34. 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.

35. 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.

36. In the present case, the evidence indicates that we are dealing with a very "traditional" type of part-time workforce. The overwhelming majority of the part-time employees in the applicant's university food services business are students. Many of these are in the country on visas. Approximately 60 percent of the part-time employees leave the applicant's employ annually. For the most part (although not exclusively), the part-time employees work in the lower skilled, lesser paying jobs requiring little or no training. Their hours of work tend to be fewer than 16 in a week and are meant to accommodate their other activities, such as attending classes and studying. Each year, a managerial employee, known as a "student manager", is solely responsible for the hiring and orientation of part-time employees and supervises the front service area where most of the part-time employees work.

37. While the continuing validity of traditional assumptions about the attachment of part-time employees to the workplace is questionable, the part-time employees in this particular workplace display many of the attributes associated with the traditional view. For example, the historical assump­tion that part-time employees have little or no attachment to the workplace and, therefore, little or no interest in long-term terms and conditions of employment may be seen to be supported here by the fact that after II years of collective bargaining the part-time employees have not negotiated any "welfare benefits" (i.e. life insurance, A. D. and D., OHIP coverage, vision care, drug care and dental plan). These benefits are, however, part of the full-time employees' terms and conditions of employment. Moreover, after two combined agreements (albeit one of which was really just an extension of the expiry date of the full-time agreement), there continues to be a vast number of differences in the terms and conditions of employment applicable to the two types of employees. Employer counsel pointed to approximately 21 such differences in the collective agreement, including the maintenance of separate seniority lists, different scheduling provisions, different holidays, different vacation and vacation pay, and different wage schedules. While some of these variations maybe attributable to different bargaining dynamics under the former collective bargaining structure, the sheer magnitude of the differences supports the inference that the two types of employees do not share the kind of "community of interest" required by section 5(3).

38. In our view, this is the point at which our inquiry must end. The statute neither requires nor entitles us to ask whether the full-time and part-time employees share "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". That issue is not before us. Rather, as indicated, the issue is whether they share "a community of interest". We have found that they do not. If this outcome raises the possibility that a part-time/full-time bargaining unit that may have been found to be "appropriate" in the context of an application for certification may be de-combined under section 5 of the transitional provisions, so be it. The Board is required to apply the language that it is given. Indeed, the possibility of just such a result was noted by the Board in Caressant Care Nursing Home of Canada Limited, [1996] OLRB Rep. Oct. 748, where the Board stated:

39. ... 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.

40. The thrust of the Board's decision in Caressant Care, supra, was that customary assump­tions about combined part-time/full-time bargaining units are no longer applicable in the modern workplace. Traditional part-time units - in which employees routinely come and go and exhibit relatively little long-term attachment to their jobs - are no longer the norm and, accordingly, presumptions about disparate collective bargaining interests no longer apply. Caressant Care says, in effect, that "all bets are off' and the Board can be expected to apply the more functional Sick Kids analysis when assessing the appropriateness of full-time/part-time bargaining units in future applications for certification. While we see no reason to depart from that approach, this is not an application for certification and this is not the kind of part-time workforce that was dealt with in Caressant Care. This is an application to "de­combine" a full-time bargaining unit from a very traditional type of part-time bargaining unit in which the union is required to establish that "a community of interest" exists among the full-time and part-time employees. On the facts before us, that requirement has not been satisfied.

41. In the result, and having regard to the provisions of section 5(3), the Board hereby declares that the existing bargaining unit is not appropriate because a community of interest does not exist between the full-time and the part-time employees. The Board will remain seized, pursuant to section 5(6), to make such further orders as may be necessary to give effect to this direction.

CONCURRING OPINION OF J.A. RUNDLE; May 1, 1997

1. While I concur with the final disposition of this matter, I have some comments with respect to the concept of "community of interest" and its application by the Board.

2. One must not forget that the test enunciated in the Hosp ital for Sick Children [1985] OLRB Rep. Feb. 266 is a two-fold test. The first element of the test being:

"does the unit which the union seeks to represent encompass a group of employees with a sufficiently coherent common it)' of interest that they can bargain together on a viable basis".

[emphasis added]

followed by the second element:

"without at the same time causing serious labour relations problems for the employer

I would note that the community of interest element was always part of the Hospital for Sick Children test. It was only during the Bill 40 era that this element of the test was negated by the Board.

3. In structuring the transitional provisions the Legislature, in Bill 7, is clearly sending a message that "community of interest" is a principal consideration in determining the appropriateness of separate or combined full-time/part-time bargaining units. It behooves the Board to heed this message.

DECISION OF OF BOARD MEMBER, D.A. PATTERSON; May 1, 1997

1. I dissent from the majority decision of the Board,

2. I would have come to a different conclusion on this application for de-combination. I would have based my decision in this matter on two factors. These two factors are the community of interest of the effected employees and the existence of serious labour relations problems created by the combination of existing bargaining unit.

3. I am convinced by the evidence heard and the filings of the applicant and the respondent that there still remains a sufficient community of interest between the existing employees in the combined bargaining unit as determined by the Board August 19, 1994, under the existing law at that time. Section 7 of the then Bill 40 gave the Board discretion under that section to combine existing full-time and part-time bargaining units into one unit for the purpose of collective bargaining. This application was made under the new law, Bill 7, which gave an applicant the right to make application under Section 5(3) to de-combine such configured units provided it was applied for within the 90 day period immediately following the passage of Bill 7. I am not convinced based on what I heard or read is enough to reverse the Board's original decision. The Board was not presented with enough evidence to show that there is no community of interest amongst the employees nor were there any serious labour relations problems put before the Board that would compel the Board to reverse its decision of '94. The evidence and assertions of the applicant in the instant case did not show that there was no community of interest between those employees in the bargaining unit since the combination nor did the applicant point to any serious labour relations problems since the combination.

4. I would hold that the same community of interest exists now as it did at the time of the application for combination back in '94. The same would hold true for the question of serious labour relations problems or the lack thereof, since I would maintain that what existed prior to the combination exists now and the applicant was not able to show how these administrative inconveniences were such to constitute a serious labour relations problem.

5. In the instant case the Board is not confronted with a small struggling employer who provides a food service in a campus environment. The Marriott Corporation has operated in Canada for 30 years, as a matter of fact Marriott's first food service contract started at Carleton University. In 1994, Marriott made $56 million in profit in its Canadian ventures. It employs 5,000 people here in Canada and 180,000 workers worldwide. The applicant's corporate history and background hardly fit the profile of a small entrepreneur food service provider. From its humble beginnings in Washington D.C. in 1927, Marriott now has a presence in 25 countries and holds in excess of 4,200 contracts worldwide. Surely, the expertise Marriott has developed over the years as a sophisticated corporate entity in terms of its dealings with its employees has arrived at the point where the issues raised by the applicant cannot amount to any real serious labour relations problems. I would not dispute that the assertions raised may be of some administrative inconvenience but certainly not of the magnitude that would cause it any great hardship from the point of view of how it deals with this small group of employees. I also did not hear of any labour relations problems arising from the combination of the bargaining unit. Also the Board heard no assertion from the applicant that if the Board were to grant the application that these assertions would go away or disappear. Specially, counsel for the applicant drew the Board's attention to 21 different administrative differences which she aptly described as to why the two groups of employees do not share a community of interest. Despite the persuasive nature of counsel for the applicant, I am not convinced to agree with counsel that the community of interest between the two groups is any less now than it was when the units were combined. The assertions outlined are not insurmountable nor do they constitute any change from what existed prior to this application.

6. I would also hold that the Board in the exercise of its discretion take into account the common sense principles of collective bargaining and labour relations, and on balance, before the Board should exercise that discretion it should hear some hard evidence of serious labour relations problems which commenced or were initiated during the time of the combination of the previous bargaining units. The Board should not be a party to the dismantling of the collective bargaining process unless we hear the kinds of arguments which lend themselves to making the process work that much more smoothly. One of the Board's founding principles is to regulate the affairs between employers and employees in a harmonious relationship in an environment conducive to good labour relations.

7. The community of interest between the employees of the bargaining unit is no less now than it was prior to the combination. The most compelling factor for the community of interest between these employees is their employer, this is the common thread which weaves the employees together. If any detrimental side effect can be anticipated I believe it could come in the form of representation within the units proposed by the applicant. To date the respondent has serviced its members satisfactorily, by the sheer absence of any intervention filed by employees it would seem that the bargaining unit employees have chosen their union representation from the ranks of the bargaining unit, there have been no filings to indicate that the employees are not feeling represented fairly or adequately in their dealings with the employer.

8. In conclusion, I would not have exercised the Board's discretion and ordered the de­combination application under Section 5(3) of the Act.