Ontario Labour Relations Board
2767-99-R Brewery, General and Professional Workers Union, Applicant v. The Toronto Board of Trade, Responding Party.
BEFORE: Marilyn Silverman, Vice-Chair and Board Members J. A. Ronson and R. R. Montague.
DECISION OF THE BOARD; February 8, 2000
1This is an application for certification.
2On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.
3The parties agreed to resolve all matters in dispute between them with the exception of the appropriate bargaining unit description. The outstanding issue is whether or not “students employed in a co-operative education program with a university or community college” (“co-op students”) should be included in the bargaining unit description.
4The parties request that the Board make this determination without a hearing based on the earlier submissions filed and an agreed upon document entitled “Basic Facts re: Co-op Students”. That document provides as follows:
The Board of Trade has a history of taking co-op students at the Airport Centre. The arrangement of one student terminated in December, 1999 prior to the vote. Two more will commence in the first week of January.
The co-op arrangements are normally with Humber College in conjunction with the Food and Beverage Program. The placements are normally for an 8 week period and are without pay. Placements can be made at anytime during the academic year and the Board of Trade is not restricted in the number of students it takes on.
The nature of the assignments are to provide kitchen help and server duties in order to provide the students with a full experience in the operations. The students receive no benefits and even gratuities are not distributed to them. These students are assigned hours similar to the regular full-time employees and the two new students, referred to in paragraph 1, constitute approximately 10% of the core group of twenty regular full-time employees.
Matters of discipline are the responsibility of the Community College although the Board has the ability to cause students to be removed.
In these circumstances, the Board asserts that the traditional co-op exclusion is appropriate.
The Union asserts that, in the context of the rest of the agreed-upon description, co-op students should be included in the bargaining unit.
The parties agree not to submit further submissions or agreements.
5The Board notes that the only submissions other than the “Basic Facts re Co-op Students” are found in the representations from counsel for the applicant dated December 23, 1999. This submission provides as follows:
Students employed during the school vacation period or who are involved in a cooperative education program with a post-secondary community college – The Applicant denies that there is any history of such employment, and submits, based on the principles set out in The Hospital for Sick Children case (supra), that these employees should be included in the appropriate unit even if there were such a history.
6The applicant takes the position that the co-op students should be included in the bargaining unit and the responding party asserts that they should not.
7This is not just a full-time unit and as such the Board is not inclined to exclude from that unit this group of employees. The Board’s jurisprudence (see Tricil (Sarnia) Limited [1986] OLRB Rep. Nov. 1604 and cases cited therein) has been to exclude students employed in a co-operative training program from a full-time unit. In these circumstances, the parties have not agreed to simply a full-time unit and these employees should not be excluded.
8However, there may be an issue as to whether or not the co-op students in these circumstances are in fact employees but that determination is not one that affects the bargaining unit description. It is an issue that the parties can address if necessary through arbitration or through the appropriate Board application.
9The Board notes that the parties have agreed that once the “co-op student” issue has been determined a certificate should issue in the normal course.
10Having regard to the agreement of the parties and the findings above, the Board finds that:
all employees of The Toronto Board of Trade at 830 Dixon Road in the City of Toronto, save and except Assistant Managers, persons above the rank of Assistant Manager, Catering Co-ordinator, Head Chef, Head House Attendant;
constitute a unit of employees of the responding party appropriate for collective bargaining.
11A certificate will issue to the applicant.
12The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.
13The responding party is directed to post copies of this decision immediately, adjacent to all copies of the “Notice of Vote and of Hearing” posted previously. These copies must posted for a period of thirty (30) days.
“Marilyn Silverman”
for the Board