Town of Carbonear Respondent

Transcription

1 L.R.B.D. No. 14 1I1 THE MATTER of Lbour Reltions Act R.S.N.L. 1990, Chpter L-1 nd n ppliction pursunt to section 36 of the Act ffecting Trnsport nd Affied Workers Union, Temsters Locl 855 ffilited with the Interntionl Brotherhood of Temsters Applicnt - nd Town of Crboner Respondent Before: Sheilgh M. Murphy, Q.C., Chirperson Grnt Brnes Aubrey M. Drover Bord Members REASONS FOR DECISION Summry 1. The pplicnt brought n ppliction pursunt to section 36 of the Lbour Reltions Act R.S.N.L. Chpter L-1 seeking to certify brgining unit of employees of the Town of Crboner s follows: All prt-time employees of the Town of Crboner ordinrily working less thn 20 hours per week s Lifegurds I Instructors t its swimming pool loction sve nd except Mngers, Supervisors, nd those bove the rnk of non-working supervisors. 2. The bord conducted n investigtion into the file nd, following receipt of the ppliction, reply, response to the reply nd the investigtion report, the bord considered the ppliction t its meeting of November 16, The bord rejected the ppliction nd issued n order stting tht the unit pplied for ws not pproprite for collective brgining. 3. The following re the Bord s resons for tht order. 1

2 V Fcts 4. The Trnsport nd Allied Workers Union, Temsters Locl 855 ( the Union ) IS the certified brgining gent for two brgining urnts of employees Town of Crboner, Newfoundlnd nd Lbrdor (the employer ). On September 24, 1975 the union ws certified s the brgining gent for the following: unit of employees of the Town of Crboner comprising of ll employees sve nd except town mnger, town clerk, office stff, mintennce supervisor, town policemn, non-working foremn, those bove the rnk of non-working foremn nd prt time employees ordinrily working less thn twenty (20) hours per week. 5. There ws no evidence provided s to why the min brgining unit, in the originl 1975 certifiction ppliction, specificlly excluded employees who worked fewer thn 20 hours per week. 6. The union is lso brgining gent for nother group of Town of Crboner employees pursunt to certifiction order of September 30, 1992, s follows: unit of employees of the Town of Crboner comprised of Town tresurer, clerk-typist, nd office worker-recretion. 7. On December 9, 1998 the pplicnt brought n ppliction to mend the brgining unit certified on September 30, 1992 to include the clssifiction of ccounting clerk. The ppliction ws grnted. 8. The employer dvises tht s result of chnges in the workplce over time, including chnges to the Municiplities Act which creted sttutorily-required positions t municiplities in the province, the following job clssifictions no longer exist t this workplce: ccounting clerk, town tresurer, clerk typist (they re now clerk I nd clerk II), office worker Instructor. Recretion (now the duties of the receptionist) nd Life Gurd 9. The employer hs referred to the workers working fewer thn 20 hours per week s csul employees throughout this ppliction. The union hs referred to them s prt time. Included in the min brgining unit re employees who work more thn 20 hours per week on verge but not full-time hours. They re referred to s prt time employees. To void confusion in these resons, those employees in the proposed brgining unit hve been referred to s csul nd those members of the min brgining unit who re not working full time re referred to s prt time. The bord s reference to those members of the proposed brgining unit s csul is not 1 For clrity: the brgining unit sttes working less thn 20 hours per week. Tht hs been referred to throughout these resons s working fewer thn 20 hours per week. Plese note tht the distinction is merely grmmticl correction by the uthor of these resons nd is not ment s n interprettion or ltertion of the description of the brgining unit.

3 pronouncement by the bord on the sttus of those employees s being csul workers or meeting the definition of employee under the Act; rther, it is done in n effort to differentite the two groups. 10. A number of the csul employees hve worked with the employer for five yers or more. It is difficult to show pttern of employment for these employees becuse they work when they request hours. The union rgued tht the csul employees wished to spend more time working, i.e. more thn 20 hours per week, but the employer ws refusing to schedule them the extr hours so s to keep them out of the min brgining unit. The union rgued tht the employer prefers to meet ongoing fixed stffing requirements with extensive relince on the employees in the proposed brgining unit thn hire nother min brgining unit member full time. 11. The town dmitted tht some of the members of the proposed brgining unit occsionlly sk for more shifis (for exmple, university students who re on brek from theft studies). However, these occsions re limited nd they do not represent permnent nd ongoing vilbility of those employees. 12. In his investigtion, the lbour reltions bord officer spoke with six members of the proposed brgining unit. Three of them noted tht they were referred to s prt time employees nd the other three did not know wht their clssifiction ws. All six were yer-round workers t the pool. One of them noted tht she volunteered to tke fewer hours of work in the summer so tht there were more hours vilble to students when they requested them. Three of them stted tht it ws their understnding tht the employer prevented the schedulers from giving the proposed brgining unit members more thn 20 hours work per week unless it ws bsolutely necessry. Two of those three stted tht they did not wish to work more thn 20 hours per week in ny event nd didn t know wht would hppen if they requested more hours. The remining employee thought the hours might be cpped t some point, but hd no understnding of wht number of hours the cp ws set t. 13. The qutics supervisor told the investigting officer tht the employer restricts the scheduler from scheduling members of the proposed brgining unit for more thn twenty hours of work per week. In her opinion, the inbility to obtin more thn 20 hours of work per week ws the reson the members of the proposed brgining unit were seeking union representtion. 14. There ws no evidence to support the union s ssertion tht the employer intentionlly denied members of the proposed brgining unit more hours of work when requested. The employer ws not told by the members of the proposed brgining unit their reson(s) for seeking union representtion. It hs not received from this group ny verbl or written concerns over scheduling. It ws unwre of the llegtion tht employees hd left becuse they were not ble to obtin sufficient hours; however, the employer did note tht it hd to keep lrge complement of employees becuse the schedule - the pool s bility to provide lessons nd lifegurding progrm vilbility of roster of employees to fill shifts throughout the dy. nd therefore relied on the 3

4 15. The development of work schedule for those working fewer thn 20 hours per week is bsed on the employees themselves indicting when they re vilble for work nd when they would prefer to work. Mny re high school students whose work schedule depends on their school, study, nd exti-curriculr ctivities; others re retirees who wish to work only t specific times during the dy nd only on certin dys. The d hoc scheduling of these individuls is done in consulttion with nd with the consent of those individuls. If the individul is unvilble for shift, then the shift will not be scheduled for them. If the employer schedules tht individul for time during which the individul is not vilble nd the individul refuses to work tht shift, there re no negtive consequences or reprisls for tht individul. The employer noted tht the csul worker s vilbility is the only criteri for scheduling, other thn the required certifiction i.e. tht of lifegurd or instructor. The employer rgued tht there re 22 csul individuls working t the town of Crboner nd not 15, s lleged by the union. 16. The employer provided dt to show tht the cusl workers worked n verge of hours per week from Februry 28, June 4, The employer noted tht the number of hours ech csul worker works depends on his or her vilbility nd request for hours, which explins the difference in the verge number of hours worked. 17. The full time qutic supervisor nd the full time reception] life gurd instructor, while full-time members of the min brgining unit, exercise some supervisory functions such s scheduling of employees nd supervision of the multipurpose room. However, they lso work longside the full-time, prt-time nd csul workers doing similr or the sme tsks in the pooi, on the pooi deck, nd t reception. The qutic supervisor, the receptionist! life gurd instructor, the pooi technicin, nd the prt time jnitor re ll members of the min brgining unit. The employer noted tht the min brgining unit includes the working supervisors s well s the full-time nd prt-time positions. The csul workers who worked fewer thn 20 hours / week were excluded from tht brgining unit. 18. The prties greed tht the 22 individuls included in the pplicnt s proposed brgining unit were not included in the office stff unit or the min brgining unit. 19. The director of recretion is responsible for mnging the swimming pool complex, which is one of severl work res covered by the min collective greement. The qutics supervisor, lifegurd supervisor/instructor/receptionist, the pool technicin! fcility mintennce worker nd the pool jnitoril / mintennce worker ll report to the director of recretion nd re ll in the brgining unit (with the exception of the director). The 22 individuls in the proposed brgining unit re primrily supervised by the qutics supervisor. They re sometimes supervised by the lifegurd/instructor/receptionist nd! or the Director of Recretion. 20. The prties dmitted tht the individuls in the proposed brgining unit generlly spend their work time providing swimming lessons nd lifegurding. They re lifegurds nd swimming instructors. They lso perform tsks on the front desk, perform light jnitoril 4

5 work, nd ssist in the multipurpose room. All individuls in the proposed unit do not perform ll these tsks, but most do, depending on their shift. Generlly, 2-4 lifegurds work on ech shift nd rotte between the pool deck nd the front desk. Two individuls on ech shift need to spend pproximtely 30 minutes performing light jnitoril duties. With the exception of weekends when the multipurpose room is booked for prties, there is generlly little ctivity in the multipurpose room. Lifegurds / instructors who re on shift when the multipurpose room is in use re expected to provide ssistnce with set up nd clening of tht room when required. When the prt-time jnitor is not t work (there is only one) then the lifegurds/instructors re expected to perform jnitoril duties, regrdless of how mny hours per week on verge they work. The duties performed by lifegurds / instructors re the sme regrdless of number of hours they work: full-time employees, prt-time employees working more thn 20 hours per week, or individuls working fewer thn 20 hours per week hve similr duties. 21. Lifegurds / instructors t the pool must hve t lest bronze cross certificte hve ntionl lifegurd service certificte (NLS). They must be t lest 16 yers of ge some for n NLS certificte. All must hve completed Stndrd first Aid / CPR nd AED course. In order to be n instructor, they must hve completed t lest Wter Sfety Instructor (WSI) course through the Cndin Red Cross. The Government of Newfoundlnd nd Lbrdor sets the required stndrds for lifegurd nd instructor qulifictions in the Province. All individuls who were contcted by the investigting officer indicted tht ll were required to be certified s both lifegurd nd n instructor. All greed tht while working s n instructor, they provide lessons nd while working s lifegurd they re gurding the pool nd pool deck. While working s gurd, the individuls will spend pproximtely 50% of their time t the front desk nd perform pproximtely 30 minutes of light jnitoril duties t the end of shift. They do not perfonn the sme hevy jnitoril work s the jnitors, such s hevy clening, but they will hose off the chnge rooms, pick up grbge nd squeegee the deck. The duties nd responsibilities nd the skills nd qulifictions required of the lifegurds / instructors re the sme whether they re full time, prt time or working fewer thn 20 hours per week. The non-unionized employees re pid t different wge rte thn the members of the current brgining unit. 22. All lifegurds / instructors hve frequent degree of interction with ech other. Nonunionized nd brgining unit members ll work together / longside ech other nd hve similr duties. They shre common supervision. Although the collective greement does not pply to the non-unionized lifegurds / instructors nd there is no employee hndbook in plce for them, the employer hs put some policies in plce to ensure fir tretment of these individuls (for exmple, they receive compenstion for developing lesson plns nd / or completing progress reports nd they re given equl lloction of hours). They ll shre the sme supervisor, whether unionized or not. Both full-time instructors / lifegurds perform similr or the sme tsks s the members of the proposed brgining unit. The only difference, side from wge rtes, ppers to be the csul workers bility to turn down shifts or refuse to work shifts without reprisl if the shifts scheduled do not work with their own personl schedules. ia 5

6 23. The union rgued tht lthough the lifegurds / instructors ll shre community of interest, the prt time nture of their work mkes the lifegurds working fewer thn 20 hours per week n pproprite seprte unit for collective brgining. The employer rgued tht tht due to the csul nture of their cll-in nd the flexibility of their work hours, the members of the proposed brgining unit were not pproprite for collective brgining nd csul positions do not lend themselves to 24. All lifegurds / unionized environment t ll. Instructors in the proposed brgining unit interviewed by the lbour bord s reltions investigting officer indicted tht they hd no preference s to whether they were members of stnd-lone brgining unit or dded to one of the existing brgining units. Arguments 25. The employer rgued tht the brgining unit pplied for is inpproprite for collective brgining becuse it would unduly frgment the workforce or, lterntively, tht it hs no lbour reltions purpose, s the csul workers lck the indici of employment. further rgued tht the term prt time nd ordinrily working less thn 20 hours per week bring too much potentil mbiguity to the brgining unit description to mke it n pproprite unit. prt-time employee could work more thn 20 hours per week, in which cse tht employee would fll under nd benefit from the terms of the existing collective greement. Therefore, the union rgued tht the distinction of prt-time working less thn 20 hours per week is pproprite. The employer rgued tht it hs 26. The union rgued tht never employed prt time employee who regulrly worked fewer thn 20 hours per week: those were considered csul workers, different from brgining unit members, nd not prt time employees. 27. The employer rgued tht there re Crboner. Tht workforce is totl of 55 employees employed by the Town of lredy frgmented into n office stff brgining unit nd generl brgining unit. The newly proposed brgining unit of only lifegurds /instructors who work fewer thn 20 hours per week would crete n unduly frgmented workforce, with some lifegurds working side by side with others in different brgining unit, with ll performing the sme duties nd hving the sme required qulifictions. Hving three seprte brgining units in such cuse undue frgmenttion. smll workforce would 2$. The employer rgued tht with the inclusion of the working supervisors, full-time employees, nd prt-time employees in the min brgining unit, the cretion of seprte unit for the csul group is inpproprite, s it hs no lbour reltions purpose. Given tht the csul employees were excluded from the min unit, it is unlikely, the employer rgued, tht the exclusion ws founded solely on lck of community of interest but rther on the csul nture of their employment, where the fundmentls of n employment reltionship in the scheduling of shifis nd disciplining of employees for filing to ttend scheduled shifis is not prt of the reltionship. This would mke the It

7 principles of collective brgining nd the opertion of collective greement incomptible with the true nture of the reltionship. If the employees re ble to work when they choose without discipline it is fundmentlly not n employment reltionship in the true sense nd, the employer rgued, they re not truly employees s defined by the Act; rther, they re csul workers. 29. The employer rgued in the further lterntive tht the exclusion from the min brgining unit occurred s result of n greement between the prties. It would be illogicl, the employer rgued, to exclude the prt-time csul employees from the min brgining unit bsed purely on their hours worked nd therefore, the group pplied for in this ppliction would be pproprite for inclusion in the sme unit s the full time nd prt time lifegurds! instructors. Therefore, the unit pplied for, they rgued, is fortiori not n pproprite seprte unit. There hs been no evidence put forwrd by ny prty to explin why the description of the min brgining unit limits membership to exclude those who work less thn 20 hours per week. 30. In the course of the investigtion, the union offered to mend its ppliction to include the brgining unit members pplied for (the csul employees) in the min brgining unit. In its response to the union s reply, the employer required tht the union ctully file new ppliction nd then it would consider this option, s its primry rgument is tht these csul positions were not pproprite for collective brgining in ny event. 31. The employer rgued tht the ppliction ought to be dismissed becuse the unit is not vible s stndlone unit comprised of csul employees without the employment reltionship necessry for successful unit to be cpble of operting under collective. Additionlly, the unit pplied for is inpproprite s seprte unit given tht the csul employees shre community of interest with their full-time nd prt-time counterprts in the min unit nd ought to be included in tht unit if they were pproprite for inclusion in brgining unit. This would require seprte ppliction pursunt to section 19.1 of the Lbour Reltions Act. Anlysis Proposed brgining unit is not pproprite in this instnce 32. The Bord reviewed the documenttion in this mtter nd determined tht the unit pplied for is not pproprite for collective brgining. In prticulr, the bord ws concerned with undue frgmenttion in this workplce. Prt time nd full time lifegurds / instructors hve the sme qulifictions nd the sme employment duties s the csul lifegurds. The only significnt distinctions re tht they re not pid the sme wge for the sme work nd the csul employees get to pick nd choose the hours they wish to work nd fce no reprisls if the refuse to work when scheduled. There ws not significnt mount of informtion given with respect to the prt-time employees (i.e. those working more thn 20 hours per week but not considered full time ) s to wht would hppen to them if they refused to work scheduled shift. It ppers tht if they re ble to find nother employee to substitute for their shift the employer is not concerned if th,v7

8 The If they refuse to work tht shift. Hving two seprte brgining units for employees who hve the sme skills, qulifictions nd work duties in the sme workplce would, in the bord s opinion, cuse undue frgmenttion of this unionized workforce resulting in n unwieldy brgining structure for both the employees nd the employer. The bord therefore denied the ppliction. 33. Wht ws prmount in the Bord s decision in this cse ws whether the unit pplied for ws pproprite for collective brgining. This hs been regulrly considered by this bord nd is clerly rticulted in its decision of Construction, Generl Lbourers, Rock nd Tunnel Workers, Locl 1208 nd Newfoundlnd nd Lbrdor Credit Union, (Februry 8, 20016) s well s United Brotherhood of Crpenters nd Joiners ofameric nd Mrco Services Ltd. [2005] LR.B.D. No The criteri for brgining unit determintions re often complex. There re mny fctors tht cn be considered when determining the criteri for the ppropriteness of proposed brgining unit. A lbour reltions bord is responsible to ensure it mximizes n employee s freedom to join trde union while t the sme time promoting hrmonious lbour reltions in the workplce. Key to tht is ensuring tht there re effective nd efficient collective brgining procedures in plce. (See Adms, Q.C. Cndin Lbour Lw 2 Ed. Cnd Lw Book, t section 7.60). 35. Some of the fctors relevnt to this ppliction in determining the ppropriteness of the brgining unit, s set out in Adms nd quoted by this bord in Credit Union, nd Mrco (sttpr), nd United Brotherhood Of Crpenters nd Joiners of Americ, Locl 579 v. Notre Dme Agencies (Corner Brook) (2008 L.R.B.D. No.6) re s follows: i. Community of Interest community of interest of the employees employed in the proposed brgining unit nd in reltion to other employees of the employer my be considered tking into ccount such fctors s nture of the work performed, terms nd conditions of employment, dministrtive structures, geogrphicl loction, skills of employees, interchnge of employees between loctions, lterl mobility of employees nd common employment conditions. ii. Avoidnce of Frgmenttion the community tht comprises the brgining unit is defined too nrrowly, then n unnecessry number of smll brgining units could be certified with the negtive consequences being wek employee presence t the brgining tble, unnecessry disruption to the employer nd dditionl potentil incidents of unrest. iii. Vibility of the Brgining Unit for Collective Brgining fctors to consider in this regrd re the dministrtive structures of The the employer nd convenience of brgining, the fct tht it is most conductive to effective brgining to hve ll employees entitled to collective brgining represented in one brgining unit or few

9 this Included number of brgining units, tht the collective brgining structure be rtionl nd vible, the significnce of centrlized mngement decision mking on employment issues, nd the economic dvntges of the proposed brgining unit. iv. Wishes of the Employee nd the Employer under this heding in cse where both prties hve greed s to the pproprite brgining unit. v. Employee Access to Collective Brgining nd the Right to Join Union ddresses the fer tht if brgining unit is too lrge to spred out over too mny loctions, then the prcticl effect would be to deny ccess to collective brgining to those employees. 36. Community of interest continues to remin fctor to be considered s prt of the question of whether the brgining unit is n pproprite one. In this cse, the members of the proposed brgining unit hve community of interest with ech other, but they lso hve rgubly the sme community of interest with the prt time nd full time lifegurds, lbeit with the two mjor exceptions tht they set their own hours of work nd they re pid on different scle. 37. In this cse, the bord is concerned tht the proposed brgining unit is not conducive to effective nd efficient collective brgining. It is most conducive to collective brgining to hve ll employees entitled to collective brgining represented in one brgining unit. Therefore, if the employees who work fewer thn 20 hours per week re entitled to collective brgining, then they ought to be represented in one brgining unit for this employer, with the other lifegurd / instructors. Employees under the ge of mjority 3$. The employer rgued tht persons under the ge of mjority do not hve the requisite cpcity to become member in good stnding of the union pursunt to the union s by lws nd constitution nd therefore, the csul workers in the proposed brgining unit ought not to be pennitted to vote in this mtter. Therefore, the employer sought to exclude nine (9) employees from the proposed brgining unit on the bsis tht they hd not ttined the ge of mjority (19 yers) t the dte the certifiction ppliction hd been filed. The union disgreed. 39. The union s By-lws stte: Eligibility to membership in this Locl Union shll be s set for the in the Interntionl Constitution, nd pplicnts for membership shll comply with nd be subject to the requirements imposed by these By-Lws nd the Interntionl Constitution. 9

10 40. The Interntionl Constitution of the pplicnt Locl Union sttes: 2 () Any person shll be eligible to membership in this orgniztion upon complince with the requirements of this Constitution nd the rulings of the Generl Executive Bord. Ech person upon becoming member thereby pledges his honor; to fithfully observe the Constitution nd lws of the Interntionl Brotherhood of Temsters, nd the By-Lws of his Locl Union; to comply with ll rules nd regultions for the government of the Interntionl Union nd his Locl Union; to fithfully perfonn ll duties ssigned to him to the best of his bility nd skill; to conduct himself or herself t ll times in such mnner s not to bring reproch upon the Union; to tke n ffirmtive prt in the business nd ctivities of the union nd ccept ny uthorized strike or lockout; tht he will not divulge to non-members the privte business of the Union unless uthorized to revel the sme; to never knowingly hrm fellow member of the Union; to never discriminte ginst fellow worker on ccount of rce, color, religion, sex, ge, physicl disbility, sexul orienttion, or ntionl origin; to refrin from ny conduct tht would [sic] with the union s performnce of its legl or contrctul obligtions; nd t ll time to ber true nd fithful llegince to the Interntionl Brotherhood of Temsters nd his Locl Union. 41. The employer rgued tht: the covennts set out in the Interntionl Constitution nd noted bove cnnot t lw be enforced ginst minor nd even though the minor my sign n ppliction for membership, the minor s implied covennts cnnot be implied or enforced ginst the minor. As consequence, the Respondent tkes the view tht the ppliction for membership or purported membership is invlid under the Applicnt s By-Lws nd Constitution. (At pr 32 of the Reply to the ppliction) 42. The employer provided no jurisprudence or legl text in support of its rgument tht minor cnnot be member of the brgining unit. The union rgued tht this would be n issue to explore if enforcement of the by-lws nd constitution ginst members were the subject of the proceedings before the bord. However, the union rgued tht in such circumstnces, where tht issue might ctully be live issue before the bord, it would be n issue to be rised by the members of the union, not the employer. 43. In the generl sense, the union rgued tht wht the employer is rguing is tht no person under the ge of 19 yers could be considered member of ny union. This would deny ll workers under the ge of 19 the bility to join union nd to hve ny remedies under the Lbour Reltions Act. 44. The union rgued tht this ws n untenble position- s the Lbour Stndrds Act provides remedies for employees who re under the ge of mjority, why cn such 10

11 employees not be similrly considered by the Lbour Reltions Act s members of brgining unit? 45. The union noted tht section 37 of the Lbour Reltions Act sys: Where the bord is stisfied tht union hs n estblished prctice of dmitting persons to membership without regrd to the eligibility requirement of its chrcter, constitution or by-lws, the bord, in determining whether person is member of the union, shll not consider those eligibility requirements. 46. Section 2 of the Act defines employee s follows: 2.(m) employee mens person employed to do skilled or unskilled mnul, clericl or technicl work nd includes professionl employee nd dependent contrctor but does not include mnger or superintendent or other person who, in the opinion of the bord, exercises mngement functions or is employed in confidentil cpcity in mtters relting to lbour reltions; 47. Note tht there is no exclusion from the definition of employee bsed on ge. 48. The union hs lredy ccepted s members minors who re working more thn 20 hours per week. It hs greed to ccept the membership of those workers who re minors nd working fewer thn 20 hours per week. The pnel conducted review of lbour reltions jurisprudence. It showed tht severl lbour reltions bords in Cnd hve held tht they will ccept membership crds submitted on behlf of minors. The bord hs not been ble to find jurisprudence from other bords wherein those bords hve refused to ccept membership crds from minors. (See PT Svge Enterprises Ltd. v. CA W-Cnd Locl 3000 (1998) 48 CLRBR (2d) 27 (BCLRB); Emhy Holdings Inc. nd UF.C. W. Locl 1518, Re (2012) 220 CLRBR (2d) 92 (BCLRB); Construction Mngement Limited nd llied Construction Employees, Locl 1030 C.JA., Re, (2013), 235 C.L.R.B.R. (2d) 317 (Ont. LRB); M.P.M. Construction Inc. v. LIUNA Locl 900 (2009) 169 C.L.R.B.R. (2d) 136 (N.B. Lbour & Employment Bord, s cited in Adms QC Cndin Lbour Lw, 2 ed., t s ). 49. The bord grees with the nlysis provided by the BC LRB in FT Svge Enterprises Ltd., supr. There, the BC bord ws deling with n ppliction for certifiction in which some of the members of the proposed brgining unit were minors. (Some were younger thn 14 yers of ge, requiring permission for them to work under the Employment Stndrds Act of tht Province). The BC bord sid: 20 The Union rgues tht membership evidence is creture of the Code. It is the Code tht grnts the right to ll persons, without ge limit, to join union (Section 4); sets the criteri for membership in good stnding for certifiction ppliction (Regultion 3); nd provides for the 11

12 process of revoction of membership (Regultion 4). The concept of membership evidence is only of significnce for the sttutory purpose of determining whether there is sufficient support for the certifiction ppliction. The Bord, when it considers such evidence, is not enforcing the rules, by-lws or constitution of the union - reltionship t this point in time. which is the contrctul 21 I gree with the Union s rgument. The Bord by pplying the provisions of the Code is not enforcing the contrct between the Union nd its members. It is merely trying to determine, from the membership evidence, whether the Union hs the requisite support for certifiction. 22 This is the informtion which the Bord will review. Other llegtions, such s unfir lbour prctice complints, go to the vlidity nd relibility of membership evidence but in the initil stges of the ppliction for certifiction, the bove is the membership evidence the Bord wifi review. The Bord is not trying to enforce ny contrct. Rther it is trying to determine union support. 23 The Code s definition of employee hs no ge restriction for reson. The defmition for purposes of the Code is person employed by n employer with some exceptions. The Bord is not concerned with whether the Employer hs sought the necessry permission under the Employment Stndrds Act if the employees re certin ge. Nor is the Bord concerned with enforcebility of the Union s constitution nd/or contrct between the Union nd its members. 24 There hve been very few cses in the Bord s history which del with the ge fctor, lthough I tke some comfort from those which hve delt with it. Sbnt Holdings, supr, for exmple, dels with previous Infnts Act which llowed certin infnts contrcts to be enforceble. The Bord, t pge 5 of tht decision, sttes tht even if the pnel is wrong bout the type of contrct it is deling with, the minors in question hve the right to join union: In our opinion, union membership contrct does not fll within the three ctegories of contrcts specified in Section 17. (See Cheshire nd fifoot s Lw of Contrct, 9th ed., 1976, t ). However, even if we re wrong in tht conclusion, it is our opinion tht union membership contrct is uthorized by n enctment, nmely the Lbour Code. Section 2(1) of the Code provides tht every employee, without limittion s to ge, is free to be member of trde union nd to prticipte in its lwful ctivities. There cn be no doubt tht the minors under considertion in this ppliction re employees within the mening of the Code nd therefore re entitled to become members of trde union. 12

13 Even though these comments my be obiter, s ws rgued by Certin Employees, the Bord s pproch to this issue is evident. 26 Similrly, in Lordco Prts Ltd., BCLRB No. 394/95 nd 3103/95, the Bord ws gin not concerned with the ge of the employees: Fifth, the Submission relies to gret extent upon the ge of some of the employees who signed membership crds: 17 or 1$ yers of ge. The fct these employees re teengers is not per se relevnt. These employees re ll full-time drivers with the Employer. Employees with tht responsibility re cpble of deciding whether to join union. (pr. 9 from BCLRB No. 3103/95) 27 As cn be seen in these cses, the issue of ge hs only been considered relevnt by the Bord with regrd to exclusionlinclusion issues nd not, s bsis for chllenging the vlidity of membership evidence. Consequently, I find tht the ge of the employees is not fctor when the Bord is initilly determining the level of support for the Union s ppliction for certifiction. This pproch ppers to be consistent s well in other jurisdictions - most notbly Ontrio (see R.J. Rlph Automotive Limited, [1995] O.L.R.B. No. 2333), nd Ssktchewn (see Clii Chi s Resturnt Enterprises Ltd., [1986] Ssk. LRBR June p. 31; LRB File ) to nme but few jurisdictions nd cses. (emphsis dded) 50. Our Lbour Reltions Act does not restrict the ge of the employee in the definition of employee in section 2 (m). Wht constitutes membership evidence is creture of our Act. It is the Lbour Reltions Act tht grnts the right to ll persons, without ge limit, to join union. It is our Act tht sets the criteri for membership in good stnding for n ppliction for certifiction, nd is our Act tht sets out the process for revoction of membership. As ws stted in FT Svge Enterprises, supr, the concept of membership evidence is only of significnce for the sttutory purpose of determining whether there is sufficient support for the certifiction ppliction. Therefore, if the brgining unit pplied for is pproprite for brgining, the bord will consider the membership evidence of minors in tht proposed brgining unit. Conclusion 51. The bord decided tht employees who hve not ttined the ge of mjority cn be considered employees under the Lbour Reltions Act. Given tht ll employees under the Act cn become members of union the bord hs greed tht the ge of the employees is not fctor when the bord is initilly determining the level of support for the union s ppliction for certifiction. 13

14 52. The bord lso decided tht becuse the proposed brgining unit ws not vible nd it would led to incresed nd unnecessry frgmenttion of the workforce, the brgining unit proposed ws not n pproprite unit. Therefore, the bord rejected the ppliction without counting the bllots cst. 53. Becuse the issue of whether the brgining unit ws vible ws nswered in the negtive, the bord did not need to mke determintion of whether those lifegurd! instructors who worked fewer thn 20 hours per week were considered employees under the Act or whether they were csul workers. 54. The bord mde its order ccordingly. For the bord this 16th dy of December, 2016 Sheilgh M. Murphy, Q.C. / Chirperson 14