3795-99-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. OPTIONS, Northwest, Responding Party v. Service Employees International Union, Local 268, Intervenor.

BEFORE: Patrick Kelly, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.

APPEARANCES: Catherine Gilbert, Jim Paré and Andy Savela appearing on behalf of the applicant; G. L. Firman, Carolyn Kraft and Bernie Travis appearing on behalf of the responding party; James Nyman, Nini Jones and Barbara Rankin appearing on behalf of the intervenor.

DECISION OF THE BOARD; September 6, 2000

1. This is an application for certification.

2. The applicant seeks to displace the intervenor (“SEIU”) as the bargaining agent for certain employees of the responding party (“OPTIONS”).

3. The sole issue to be determined in this matter concerns the description of the bargaining unit. The application was filed on March 21, 2000 in respect of a unit of full-time employees. Subsequently, the applicant took the position (maintained at the hearing) that the appropriate bargaining unit is a single bargaining unit consisting of both full-time and part-time employees. The applicant stated that this configuration reflects the current bargaining unit structure of the responding party. In the alternative, the applicant stated that if there are indeed two discrete bargaining units in existence in the responding party’s workplace, the Board should do one of two things, issue two certificates to the applicant, or, in the alternative, combine the bargaining units, and issue to the applicant a single certificate.

4. The responding party (“OPTIONS”) and the intervenor (“SEIU”) claim that at the time of the displacement application there were two distinct bargaining units, one covering full-time employees, the other part-time employees. They further asserted that in displacement applications, the Board’s usual approach concerning the appropriate bargaining unit description is to adopt a presumption in favour of the existing bargaining unit structure.

5. By decision dated March 27, 2000 the Board (differently constituted) ordered the representation vote in this matter, and directed that the ballots of the part-time employees be segregated from those of the full-time employees. By agreement of the parties, the full-time ballots were counted. The ballot box containing the part-time ballots remains sealed.

6. At the hearing of this matter on August 8, 2000, the parties agreed that the Board should issue a decision concerning the bargaining unit structure that exists in OPTIONS’ workplace, and that in the event that the Board determines there are two bargaining units, the parties would then file written submissions concerning the applicant’s alternative positions in this application.

The Evidence

7. OPTIONS is an organization that supports individuals with developmental disabilities in the City of Thunder Bay and surrounding area. OPTIONS currently operates 15 group homes.

8. Evidence was tendered concerning the acquisition of bargaining rights in the OPTIONS workplace; the collective bargaining history between SEIU and OPTIONS, including a copy of the existing document containing the terms and conditions of employment affecting full-time and part-time employees of OPTIONS; and the administration of that document and its predecessors.

9. There was no dispute that SEIU obtained bargaining rights in 1990, via certificates issued by the Board, for a full-time bargaining unit and a part-time bargaining unit in the first group home opened and operated by OPTIONS under a different business name at the time. There also was no dispute that at no time since the issue of those certificates did SEIU and OPTIONS enter into any formal agreement to amalgamate the two bargaining units.

10. The evidence concerning the contents of the document entitled “FULL-TIME COLLECTIVE AGREEMENT & PART-TIME ADDENDUM”, between OPTIONS and SEIU, with a term of April 1, 1998 to March 31, 2000 (“the document”), was not particularly contentious, although the applicant had a quite different view of the import of its provisions than did the other two parties.

11. On its face, the document consists of two main discrete sections. The first section (which we shall hereinafter refer to as “section I”) contains a cover page headed: “FULL-TIME COLLECTIVE AGREEMENT”, followed by a table of contents, three pages of general information concerning SEIU and the International Union of SEIU, 68 pages of various articles, a signing page containing the names of signatories, a Schedule of classifications and wages, four letters of understanding, and another signing page containing the same signatories. The second section (“section II”) contains a cover page headed: “PART-TIME ADDENDUM TO THE COLLECTIVE AGREEMENT”, followed by a relatively brief table of contents, 18 pages of various articles, a signing page containing exactly the same names of signatories as that in the first section, a substantially similar Schedule of classifications and wages, and two signed letters of understanding. Two of the letters of understanding appearing in section I are incorporated by reference in section II.

12. Section I and section II each contain 27 articles, the headings of which differ in only two instances (section I has an article headed “Sick Leave” which does not appear in section II, and section II contains an article headed “Progression on the Wage Grid” which has no correspondingly headed article in section I) and Section II is more abbreviated than section I because, rather than re-print those articles whose content is identical in language to articles already appearing in section 1, the parties to the document were content instead to simply insert, under the article headings in section II, the following: “Same as full-time agreement”. Of the 27 articles in each of section I and II, 17 are precisely identical.

13. Of significance to this case are some of the differences in the articles between the two sections. Most importantly, sections I and II have distinct recognition clauses. Article 2.01 of section I states:

2.01 Scope:

(a) Bargaining Agency: OPTIONS recognizes the Union as the sole collective bargaining agency for all its employees as defined in section (b) of this Article.

(b) The term” employee” used herein applies to the bargaining unit of all employees of OPTIONS in the District of Thunder Bay save and except supervisor, persons above the rank of supervisor, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period, office and clerical staff, professional medical staff, graduate nursing staff, undergraduate nurses, technical staff, and persons in bargaining units described in subsisting collective agreements.

Technical staff as referred to in 2.01 (b) shall include but not be limited to psychometrists, social workers, physiotherapists, occupational therapists, speech pathologists, behaviour specialists, and seating systems technicians.

14. Section 2.01 of section II states:

2.01 Scope:

(a) Same as the Full-time Agreement.

(b) Bargaining Unit: The term “employee” used herein applies to the bargaining unit of all employees of OPTIONS in the District of Thunder Bay regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, save and except supervisor, persons above the rank of supervisor, office and clerical staff, professional medical staff, graduate nursing staff, undergraduate nurses, technical staff, temporary employees hired to work on a government subsidized program or project, playaides, and persons in bargaining units described in subsisting collective agreements.

Technical staff as referred to in 2.01(b) shall include but not limited to psychometrists, social workers, physiotherapists, occupational therapists, speech pathologists, behaviour specialists, and seating systems technicians.

15. Certainly, the existence of two distinct recognition clauses (each of which contain exclusions of employees based upon number of hours regularly employed in a work week) would suggest that the parties to the document considered there to be two distinct bargaining units, one for full-time employees, and one for employees regularly employed for not more than 24 hours per week. That suggestion is reinforced by the fact that sections I and II are each signed separately, albeit by the same signatories. If the parties to the document had intended to create a single bargaining unit of full-time and part-time employees, it begs the question why they would consider it necessary to execute both discrete sections of the document.

16. Also telling is the introductory language of a letter of understanding entitled, “Classification: Night Support Staff” appearing in section II. That introductory language is as follows:

This letter is to confirm the parties understanding regarding the working conditions of the Night Support Staff (sleep shift position), which are separate and apart from all other classifications within the SEIU bargaining units… (emphasis added)

17. In short, the document appears on its face to be either one collective agreement or two collective agreements, but in either case, to cover two separate bargaining units. The evidence which was tendered concerning the administration of the document and the manner in which the parties approached the implementation of its terms and conditions was not conclusive one way or the other in terms of a finding of one or two bargaining units. The applicant adduced evidence demonstrating that the separate union committees contemplated by section I and section II of the document were in fact comprised of the same individuals, some of whom were part-time employees and some of whom were full-time employees. The union’s bargaining committee was one such example. The applicant also proved that the same union stewards represented employees without regard to their status as full-time or part-time. It was not disputed that, for the most part, the full-time employees and the part-time employees in the same job classification shared identical qualifications and carried out the same tasks for which they earned the identical hourly rate of pay. Seniority for part-time employees is accrued and calculated differently than is the case for full-time employees, but it was also clear that individual transfers between the bargaining units were facilitated by the conversion and crediting of seniority of the individual concerned such that he or she could enter the new bargaining unit with seniority intact vis-à-vis others in that bargaining unit.

18. On the other hand, the evidence of the parties in opposition to the applicant demonstrated that the administration of the posting/hiring provisions of sections I and II of the document is such that the status of the competing employees plays an important role in determining the outcome of job competitions. For example, in the case of a full-time vacancy, full-time employees must be considered first, and only in the event that there is no full-time employee with the required qualifications would the application of a part-time employee be considered. The same process is utilized in the filling of part-time vacancies: the part time staff have preference over their full-time counterparts. OPTIONS also demonstrated that in collective bargaining, proposals are distinguished as between those pertaining to part-time and full-time employees. Moreover, it was not disputed by the applicant’s witness that the full-time and part-time employees have some distinctly different collective bargaining interests and objectives. For example, the full-time employees have insurable group benefit coverage and a sick leave plan. Part-time employees are entitled to a cash percentage in lieu of these benefits. For another thing, there are different scheduling arrangements that distinguish the two groups. It was conceded by the applicant’s witness that the bargaining committee representatives of OPTIONS were always careful to label their proposals as applicable to part-time employees or full-time employees.

19. In summary, it is fair to say that there was some evidence suggesting that the document had been administered as if there were a single, combined bargaining unit, and still other evidence concerning the document’s administration and practical implementation that tended to show an intention to delineate between two bargaining units.

Decision

20. The factors which weigh in favour of a finding of two bargaining units are as follows. The certificates issued in this matter created two bargaining units. That fact, by itself, does not determine the issue, for the parties in those certification applications could have subsequently agreed to combine the bargaining units. However, they certainly never entered into a formal agreement to effect such an arrangement, nor does the document which was the focal point of this displacement application suggest that the parties to it intended to bring the employees into a single bargaining structure. In fact, everything about the appearance and structure of the document suggests that the parties to it maintained the bargaining structure envisioned by the 1990 certificates. In that regard, the most telling manifestation of separateness lies in the two distinct recognition clauses. In the face of these recognition clauses, which appear to reflect the employees’ determination to be represented separately, albeit by the same bargaining agent, the Board would require clear, cogent evidence to support the proposition that there exists a single bargaining unit. As we have indicated, the evidence adduced in this matter falls short of that standard.

21. The Board finds that there are two bargaining units. In our view, it is unnecessary for the purpose of this application to determine whether there is one collective agreement covering two bargaining units, or two collective agreements, each covering one of the two units.

22. The applicant is directed to provide to the Board and to the other parties its written submissions in support of its two alternative positions in this matter, on or before September 20, 2000. SEIU and OPTIONS shall have until October 4, 2000 to provide their written submissions in response. To the extent the applicant wishes to reply to those responses, it is directed to provide its written reply on or before October 11, 2000.

23. We are seized.

“Patrick Kelly”

for the Board