- May 26, 2021
- Certifications/Decertifications
This is a subsequent decision of the Ontario Labour Relations Board (the “Board”). In an earlier decision dated September 15, 2017 the Board found that the Union’s proposed site specific bargaining unit of all house crew audio/visual technicians and house crew riggers regularly employed at the Sheraton Centre hotel in Toronto was appropriate. The Board issued a number of subsequent decisions dealing with procedure for determining remaining status disputes. In this decision, the Board considered the submissions made by the parties and determined that none of the employees who worked less than 35% of their hours at the Sheraton Centre in the 6 months before the application were “regularly employed” at the Sheraton Centre.
The Board distinguished the Madeira decision relied on by the Employer for the proposition that the appropriate test is to consider whether the employees are sufficiently connected to the bargaining unit. In Madeira, the Board considered whether six casual employees had a sufficient connection to an all employee bargaining unit. The Board distinguished the threshold issue in this case was much different, which was whether the employees in dispute are “regularly employed”. The Board rejected the argument that “regularly employed” could have the same meaning as “employed”.
Turning to whether those who work less than 35% of the time at the Sheraton Centre are regularly employed at the Sheraton Centre, the Board determined that the employees could not be regularly employed at more than one location. The Board noted that this would allow employees who work at several venues to influence an organizing campaign at a single venue, and potentially lead to gerrymandering in circumstances where the Employer controls movement of employees.
The Board considered different categories of Employees and assessed evidence given by representative witnesses. The Board concluded that even frequent workers, including an employee who worked 31% of his hours at the Sheraton Centre could not support a conclusion that this group was “regularly employed” at the Sheraton Centre.
The Board considered the representative evidence given for each group of employees and did not apply a bright line test. The Board determined the status of 57 employees by determining they did not fall within the bargaining unit description of “regularly employed”. The Board also rejected the Employer’s argument that the Board should consider evidence from the 12 month period, as six months was an appropriate representative period.
The Board ordered the ballot box remain sealed pending the further resolution of the status of employees who worked more than 35% of their time at the Sheraton.