[1999] OLRB REP. NOVEMBER/DECEMBER 1020
1774-99-R; 1944-99-U; 2071-99-U United Food and Commercial Workers International Union Local 175, Applicant v. Journey's End Midland Inc., Responding Party; Journey's End Midland Inc., Applicant v. United Food and Commercial Workers International Union Local 175, Responding Party
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: Kelvin Kucey, Mike Duden and Hans Reupke for the applicant; Jason Hanson and Sarah Downie, Al Richards and Brenda Lucas for the responding party.
DECISION OF THE BOARD; November 2, 1999
1The style of cause in Board File No. 1774-99-R is hereby amended to reflect the proper name of the responding party "Journey's End Midland Inc."
2Board File No. 1774-99-R is an application for certification. Board File Nos.1944-99-U and 2071-99-U are applications under section 96 of the Labour Relations Act, 1995.
3A representation vote was held in Board File No.1774-99-R on September 27, 1999. Ten votes were cast. Five votes were cast in favour of the applicant (referred to as the "union"). Four votes were cast in opposition to the union. One vote was segregated and not counted. The Board determined that it was appropriate to determine the status of the individual whose vote was segregated and not counted before considering the other matters in dispute.
4After considering the evidence presented and the submissions of the parties, the Board finds that Lindsay Stewart is entitled to cast a ballot in the representation vote.
Facts
5The relevant facts are not really in dispute. The responding party (referred to as the "company") is a motel. Lindsay Stewart is a high school student who works there part-time. She was hired as a housekeeper by the company's manager in 1997. The manager was the mother of a friend and Ms. Stewart approached her to find out if there was work available. Ms. Stewart worked five, three to five hour shifts per week, in the summer months and once or twice per month on weekends during the school year. She was scheduled more frequently but would be "called off' i.e. told not to report to work, as there were not enough guests at the motel to require her services. In February 1999, the manager asked Ms. Stewart if she wanted to work on the front desk to replace another employee on maternity leave. Ms. Stewart testified that this was a temporary position which was to end in August, 1999 when the other employee returned from maternity leave. Ms. Stewart worked two or three, seven hour, shifts per week from February to June and five, eight hour, shifts per week during the summer.
6In August, Ms. Stewart was advised that the employee on maternity leave had decided not to return and that she would therefore continue to work on the front desk until further notice. Ms. Stewart testified that she continued to believe that the front desk position was temporary but that she would still have her housekeeping shifts when a replacement was hired for the employee who resigned. She acknowledged that no one actually told her that another employee would be hired.
7Ms. Stewart's name continued to appear on the housekeeping schedule throughout this period. The schedules submitted in evidence indicate that she was scheduled for 12 housekeeping shifts between February and the end of June, 1999 and that she worked three of them. The union disputes whether she actually worked the three shifts as she did not indicate the rooms she had cleaned in the book used for that purpose by the company. Ms. Stewart testified that she just forgot to write in the book. The Board does not find it necessary to determine whether Ms. Stewart actually worked the shifts or not. Between July 1, 1999 and the date of application Ms. Stewart was scheduled for about 15 housekeeping shifts and worked 12 of them. She worked three shifts in September.
8The union applied for certification on September 20, 1999. Prior to the vote the parties agreed upon a bargaining unit description as follows:
All employees of Journey's End Midland Inc. in the Town of Midland, save and except supervisors and those above the rank of supervisor and front desk staff.
9Ms. Stewart cast a ballot but the union challenged her status to vote on the basis that she was excluded from the bargaining unit as she is "front desk staff'. The company takes the position that she is in the bargaining unit.
Argument
10The union argues that Ms. Stewart holds a "composite" job and that the Board therefore needs to consider the percentage of time she spends doing front desk work and the percentage of time she spends doing housekeeping work. It submits that since the majority of her time since February has been spent on the front desk she is not in the bargaining unit. According to the union, the Board also needs to consider whether Ms. Steward has a community of interest with the employees in the bargaining unit. It asserts that since the majority of her time is spent on the front desk, she does not have a community of interest with the employees in the bargaining unit.
11The union referred to the following decisions of the Board: Usarco Limited, [1967] OLRB Sept. 526; Paragon Tools Limited, [1969] OLRB Rep. May 209; Wragge Shoes Limited, [1969] OLRB Rep. Nov. 961; Brockville Chemicals Limited, [1962] OLRB Rep. April 23; Cherokee Disposals & Construction Limited, [1970] OLRB Rep. July 450.
12The company claims that the evidence supports its assertion that Ms. Stewart is in the bargaining unit. It notes that the position she was hired into was in the bargaining unit and that she will return to exclusively performing shifts in that unit. It also points out that she worked housekeeping shifts throughout the period in which she was also doing front desk shifts and in particular in the few months leading up to the vote. In the alternative, the company argues that Ms. Stewart holds two part-time positions one on the front desk and one in housekeeping. As part-time and casual employees are not excluded from the bargaining unit she is entitled to vote.
13The Board was referred to the following decision SGS Supervision Services Inc., [1982] OLRB Rep. Jan. 105.
Decision
14The Board has determined that Ms. Stewart is entitled to cast a ballot in the representation vote. This is not a case in which an individual holds a position with a composite of duties only some of which fall within the bargaining unit. In such cases the Board has to decide whether the position as a whole is, or is not, excluded from the bargaining unit. Ms. Stewart, on the other hand, works either on the front desk or in housekeeping. She does not perform both jobs at the same time or in a single shift. She was hired as a housekeeper and has always remained on the housekeeping schedule. She worked 12 housekeeping shifts between July and the certification application date and expects to return exclusively to housekeeping shifts. There was no suggestion that she did not perform the same job as the bargaining unit employees when she was working a housekeeping shift. Ms. Stewart therefore holds a part-time position in the bargaining unit. The union agreed that if she did not work on the front desk, but only worked the 12 or 15 housekeeping shifts since February, she would be entitled to vote since casual and part-time employees are not excluded from the unit. The fact that she also holds a part-time position on the front desk does not deprive her of the entitlement to participate in a representation vote with respect to her housekeeping position. The certification application affects her directly and if the union is successful she will presumably be entitled to claim whatever terms and conditions of employment the parties negotiate when working as a housekeeper. There may be some labour relation problems arising from having employees who are sometimes, in and sometimes excluded from, the bargaining unit, but those problems arise from the description of the bargaining unit and are not a reason to deprive Ms. Stewart of her entitlement to participate in the vote.
15The Board therefore finds that Ms. Stewart is entitled to cast a ballot in the representation vote. However, counting Ms. Stewart's ballot would disclose her choice contrary to the Act. It is therefore necessary to hold another representation vote. There are also the outstanding unfair labour practice complaints to consider. The Board therefore directs the parties to file submissions with the Board on or before Tuesday, November 16, 1999, indicating how they would like to proceed with these matters. Copies of the submissions should also be provided to the other party.
16The company is directed to post copies of this decision in locations in the workplace where they are most likely to come to the attention of the affected employees. The copies should remain posted for 30 days.