Reasons for decision
National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada),
applicant,
and
Penske Logistics,
employer,
and
Direct Driver Personnel; ADS Employment Services,
interested parties.
CITED AS: Penske Logistics
Board File: 21870-C
Decision no. 146
November 30, 2001
Bargaining Unit - Appropriateness - Identity of Employer - Dependent Contractors - Community of Interest.
Board certified all employee bargaining unit, then had to determine whether certain drivers were employees of outside personnel agencies or of trucking company - Definition of employee and employer interpreted in accordance with objectives of Code found in Preamble - Question of identifying the real or true employer answered by Board on many occasions - Criteria include identification of the person who does the paying, who ultimately bears the cost, and the impact this has on the employment relationship; who controls access to employment; actual establishment of working conditions; actual performance of work; and other criteria, all in sight of the purpose of the Code, namely, to promote access to collective bargaining - Test summarized as question of fundamental control over working conditions - The application of the fundamental control test leads to an analysis of which party has control over, inter alia, the selection, hiring, remuneration, discipline and working conditions of temporary employees and to a consideration of the factor of integration into the business - Duration of employment not a bar to employee status - Agency drivers share a sufficient community of interest with the permanent company drivers.
A panel of the Canada Industrial Relations Board comprised of Mr. Gordon D. Hamilton, Vice-Chairperson, and Ms. Sonia Gaal and Ms. Laraine C. Singler, Members, has met to consider the above-cited application for certification and the parties’ submissions.
The reasons for decision were written by Ms. Laraine C. Singler, Member.
I - Application
[1] On January 9, 2001, the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada or the union) filed an application for certification pursuant to section 24 of the Canada Labour Code (Part I - Industrial Relations) (the Code) for a unit of employees of Penske Logistics (Penske or the employer). Penske opposed the union’s request to include in the bargaining unit those drivers who were referred to the employer by driver personnel agencies.
[2] In view of the Board’s findings on the appropriateness of the bargaining unit and the majority wishes of the employees affected, the Board issued an interim order (Order No. 8004-U) on April 9, 2001, pursuant to section 20(1) of the Code, certifying the union as bargaining agent for a unit comprising:
all employees of Penske Logistics working out of its Mississauga Ontario domicile, excluding supervisors, managers, dispatch and those above, owner operators and students employed for the summer.
[3] The Board considered it appropriate to issue an interim order in this case, as the representative character of the union’s application was not in question, whether the agency drivers were included in the bargaining unit or not. Furthermore, the Board was satisfied there would be no prejudice to either party’s position by issuing the interim order and reserving jurisdiction to determine whether the agency drivers in question are employees within the meaning of the Code.
[4] The Board has reviewed the parties’ written submissions together with the investigating officer’s report forwarded to the parties on March 22, 2001. Neither party made further submissions nor disputed the contents of the investigating officer’s report. The Board had also served notice and provided a copy of the union’s application to Direct Driver Personnel and ADS Employment Services, the two agencies that had provided drivers’ services to Penske on the date of the application. Neither agency filed submissions with the Board nor sought to intervene in this matter.
[5] Section 16.1 of the Code allows the Board to decide any matter before it without holding an oral hearing. Having reviewed all the material on file and notwithstanding the company’s request for a hearing, the Board is satisfied that the submissions and documentation on file are sufficient to deal with the matter without holding a hearing.
[6] The following reasons deal only with the Board’s determination with respect to the agency drivers.
II - Relevant Facts
[7] Penske is a trucking company providing logistics, inventory control, distribution and transportation of goods to a variety of companies in Canada and the United States. In Canada, most of Penske’s business involves hauling automobile parts from supply plants in various locations in Canada and the United States to assembly plants owned and operated by General Motors and Ford Motor Company in Ontario and Quebec. Penske’s only employees in Canada operate from its location in Mississauga, Ontario. Penske employs a logistics centre manager and two dispatchers at this location, all of whom are excluded from the bargaining unit. Reporting to the dispatchers are the truck drivers who perform short and long-haul routes to the United States, Quebec and Ontario, and who are the subject of this application.
[8] Penske directly employs a number of truck drivers and obtains other drivers’ services through outside personnel agencies. According to Penske, it retains the services of such agencies in order to provide it with more flexibility to cover peak work-load periods, as its needs are constantly fluctuating. In the past, Penske has obtained drivers’ services from four agencies, namely ADS Employment Services (ADS), Direct Driver Personnel (Direct), Global Driver Services and Intransit Personnel. Penske does not have a written contract with any of the driver service agencies it utilizes. Penske notifies the agency of the number of drivers it requires at any particular time. The agency performs background checks, including checking the individual’s driving abstract. Penske is not involved in the selection of drivers, nor does it interview drivers in advance.
[9] When agency drivers arrive at Penske, they are first required to produce their driver’s licence and provide Penske with their home or cellular telephone number where they can be contacted. Then they undergo a training period of usually two to three days’ duration conducted at Penske’s expense and administered by Penske staff. Once the agency drivers begin working for Penske, they report directly to Penske for each shift, and not to their respective agency. They receive their assignments directly from the Penske dispatcher with whom they directly communicate and from whom they take direction for any problems that may arise during the shift. The agency drivers are not permitted to bid on runs. Rather, they receive the runs remaining after Penske has assigned runs to its company drivers.
[10] The agency drivers work the same hours and perform similar daily duties as the company drivers. Both company and agency drivers fill out a daily log sheet and submit it to Penske’s dispatcher. The agency drivers also complete a time sheet for Penske’s verification, which is submitted to their respective agency who, in turn, pays their wages and invoices Penske for the services rendered. Penske also pays the vehicle insurance and fuel costs for agency drivers performing services on its behalf. Penske supplies uniforms to its company drivers, but not to the agency drivers. The only equipment Penske provides to agency drivers is a scanner, which they must return to the company at the end of each shift. This same rule applies to the company drivers. Penske neither provides the agency drivers with the benefit plan offered to its own drivers, nor allows them to accumulate company seniority. Penske does not discipline agency drivers; if dissatisfied with a driver’s performance, Penske advises the agency not to refer that driver in future.
[11] On January 9, 2001 (the date of the union’s application), Penske had 39 drivers in its direct employ and 11 obtained through two driver service agencies (ADS and Direct). ADS provided Penske with two of these drivers and Direct, the remaining nine.
[12] Penske reported to the Board on March 12, 2001, that the two ADS drivers in question began working at Penske on December 15, 2000, and remained working on its behalf continuously throughout this period. Additionally, seven of the nine Direct drivers were still at Penske at the time of its March 9, 2001, report to the Board and the remaining two had been engaged for three and five consecutive weeks, respectively. One of the Direct drivers still at Penske in March 2001 had five separate work periods dating from October 30, 2000, ranging from one to four weeks at a time with breaks in employment of usually around one week and no longer than three weeks.
[13] Two of the current company drivers were previous agency drivers referred to Penske. However, Penske’s policy is not to hire agency drivers as company drivers unless they first resign from their agency.
III - Position of the Company
[14] Penske does not contest the application and it agrees with the bargaining unit description proposed by the union. However, Penske objects to the inclusion of agency drivers in the bargaining unit on the grounds that the respective driver service agency, not the company, is the employer of the drivers in question. Penske submits that the agency drivers are “employees of driver service agencies under contract to [Penske] who were performing services on [its] behalf” at the time. In Penske’s view, 39 company employees, nine Direct employees and two ADS employees were performing driving services on the Penske’s behalf on the date of the union’s application for certification.
[15] Penske further contends that these individuals do not share a community of interest with the employees in the proposed bargaining unit, as they are employed by various driver service agencies and their wages are paid by those agencies on a different basis than the employees of Penske.
IV - Analysis and Decision
[16] Section 28 of the Code provides as follows:
28. Where the Board
(a) has received from a trade union an application for certification as the bargaining agent for a unit,
(b) has determined the unit that constitutes a unit appropriate for collective bargaining, and
(c) is satisfied that, as of the date of the filing of the application or of such other date as the Board considers appropriate, a majority of the employees in the unit wish to have the trade union represent them as their bargaining agent,
the Board shall, subject to this Part, certify the trade union making the application as the bargaining agent for the bargaining unit.
[17] As noted earlier in this decision, the Board has determined that an all-employee unit is appropriate for collective bargaining and is satisfied that, as of the filing date of its application, the union represented a majority of the employees in the unit. The question remaining is whether the agency drivers, who perform services on behalf of Penske, are properly included in this bargaining unit, thereby enabling them to bargain collectively on the same basis as the company drivers. To include agency drivers in the bargaining unit, the Board must find that the agency drivers are employees within the meaning of the Code, that their employer is Penske, and that their inclusion is not otherwise inappropriate.
[18] Section 3 of the Code defines the terms “employee” and “employer” as follows:
“employee” means any person employed by an employer and includes a dependent contractor and a private constable, but does not include a person who performs management functions or is employed in a confidential capacity in matters relating to industrial relations;
“employer” means
(a) any person who employs one or more employees, and
(b) in respect of a dependent contractor, such person as, in the opinion of the Board, has a relationship with the dependent contractor to such extent that the arrangement that governs the performance of services by the dependent contractor for that person can be the subject of collective bargaining; ...
[19] Under section 16(p) of the Code, the Board alone has the authority to determine whether a person is an “employee” or an “employer” as well as the composition of an appropriate bargaining unit:
16. The Board has, in relation to any proceeding before it, power
...
(p) to decide for all purposes of this Part any question that may arise in the proceeding, including, without restricting the generality of the foregoing, any question as to whether
(i) a person is an employer or an employee,
...
(v) a group of employees is a unit appropriate for collective bargaining, ...
[20] Section 21 requires the Board to exercise its powers in accordance with the objectives of the Code:
21. The Board shall exercise such powers and perform such duties as are conferred or imposed on it by this Part, or as may be incidental to the attainment of the objects of this Part, including, without restricting the generality of the foregoing, the making of orders requiring compliance with the provisions of this Part, with any regulation made under this Part or with any decision made in respect of a matter before the Board.
[21] The Preamble of the Code, which came into effect on March 1, 1973, sets out the statutory objectives as follows:
Whereas there is a long tradition in Canada of labour legislation and policy designed for the promotion of the common well-being through the encouragement of free collective bargaining and the constructive settlement of disputes;
And whereas Canadian workers, trade unions and employers recognize and support freedom of association and free collective bargaining as the bases of effective industrial relations for the determination of good working conditions and sound labour-management relations;
And whereas the Government of Canada has ratified Convention No. 87 of the International Labour Organization concerning Freedom of Association and Protection of the Right to Organize and has assumed international reporting responsibilities in this regard;
And whereas the Parliament of Canada desires to continue and extend its support to labour and management in their cooperative efforts to develop good relations and constructive collective bargaining practices, and deems the development of good industrial relations to be in the best interests of Canada in ensuring a just share of the fruits of progress to all; ...
[22] The Code broadly defines both “employee” and “employer” in general terms and by reference to the relationship each has with the other. An employee is “any person employed by an employer” and an employer, “any person who employs one or more employees.” To interpret these terms, the Board takes into account the objectives of the Code. In Cominco Ltd. (1980), 40 di 75; [1980] 3 Can LRBR 105; and 80 CLLC 16,045 (CLRB no. 240), the Board traced the history of the legislative policy expressed in the Preamble back to the time the freedom to organize for collective bargaining purposes first received national government expression in 1918. The Board stated that the fundamental purpose of the Code was “to protect the freedom of association that forms the foundation of collective employee action” (Cominco Ltd., supra, at pages 77; 107; and 718; see also generally British Columbia Telephone Company and Canadian Telephones and Supplies Ltd. (1977), 24 di 164; [1978] 1 Can LRBR 236; and 78 CLLC 16,122 (CLRB no. 108); Loomis Armored Car Service Ltd. et al. (1983), 51 di 185 (CLRB no. 408); Sedpex Inc. et al. (1985), 63 di 102 (CLRB no. 543); and Overland Express, Division of TNT Canada Inc. (1987), 70 di 79 (CLRB no. 631)).
[23] In Canadian Broadcasting Corporation (1982), 44 di 19; and 1 CLRBR (NS) 129 (CLRB no. 383), the Board studied the concept of “employee” found in section 3 of the Code, following a review of the applicable legal principles in France, Quebec, the English Canadian common law provinces and the United States. Although the Board was dealing with the status of “freelancers” hired on contract, several of its conclusions and observations are instructive in respect to the present matter. The Board reasoned that civil or common law criteria could only apply in the context of the Code to the extent they are compatible with its statutory objectives:
[Part I] of the Code is designed essentially to promote collective bargaining as a means of remedying the economic imbalance between capital and labour, and thus of ensuring social peace. ...
...
We must define the term “employee” on the basis of these objectives, and not in relation to another objective, namely, that of determining whether a work source can be held liable for damages to a third party by a person performing work on his behalf.
...
The objectives of the Labour Code involve redressing an economic imbalance between two parties which are intimately and necessarily associated with one another in the production of goods and services and “in ensuring a just share of the fruits of progress to all”. The objectives on which the civil or common law interpretation of the concept of “employee” are based were designed primarily to compensate the victim of a fault and to protect the person who is not responsible for the fault. These objectives are totally foreign to the Canada Labour Code and, given the existence of a definition within the Code which is to be interpreted in the light of its objectives and in the absence of any express reference to general law, as was the case in the American legislation of 1947, we have no reason to adopt the definition developed in general law. In fact, general law is to be applied only in the absence of statutory provisions, and this is not the case here. Instead, we must develop a definition which, as the Interpretation Act and jurisprudence indicate, will correspond to the objectives of our legislation, that is, access to collective bargaining ... The criteria adopted may correspond to those developed by general law. They may also include others which are specific to the objectives of the Code. The aim, in fact, must be to interpret the statute on the basis of what it is and not to attempt to force it to conform at any cost with other legislation directed at different objectives.
(pages 100 and 102; and 216 and 218)
[24] There is no argument or evidence suggesting that the agency drivers working at Penske are employed in either a managerial or confidential labour relations capacity, or that they are independent contractors. What is in dispute, however, is whether an employer-employee relationship exists between Penske and the agency drivers performing services on its behalf. Without the existence of such a relationship with Penske, the agency drivers cannot, by definition, be included in the bargaining unit comprising “all employees of Penske Logistics working out of its Mississauga Ontario domicile.” As noted earlier, the Code defines an “employer” in respect of an employment relationship with “one or more employees.” Again, the Board takes into account the objectives of the Code in determining whether such a relationship exists. The Board in Canadian Broadcasting Corporation, supra, noted the importance of the labour relations context in determining this relationship:
Collective bargaining is designed to redress the economic imbalance which exists between the owner of capital, the work source or employer, and those who perform work on his behalf, by allowing these individuals to group together to negotiate their terms and conditions of employment. Thus, if we are to implement the legislator’s objectives, we must promote access to collective bargaining for as many individuals as possible who, in their relationship with their employer, are in a position of economic subordination, with respect to establishing their terms and conditions of employment.
The economic subordination which concerns us here is that which exists between an employer and those individuals who perform work on his behalf, with respect to establishing their terms and conditions of employment. The focus must be the relationship which exists between those affected by an application for certification or for inclusion in an existing unit and the employer with whom they wish to bargain collectively as to their terms and conditions of employment, each person representing one element of the group. From this perspective, the relationship which a person has with other employers is not a determining factor. The important point is the dependence of the individuals making up the group in establishing their terms and conditions of employment with this employer.
...
... Taken within the context of access to collective bargaining, economic dependence affects anyone who has an interest in grouping together with other individuals working for the same employer in order to establish terms and conditions of employment with this employer, something which cannot be done to the same extent on an individual basis. The individual becomes a link in the collective chain, to the extent that he can be attached in some coherent fashion to the group as a whole. Even more important, not only is it in his interest to be part of the group, but it is also in the actual interest of the group to which he belongs. The strength of the group lies in the association or grouping of the various elements which give it its homogeneity.
If we are to ensure social peace and the continued existence of collective bargaining, the application of the law must extend to individuals performing similar functions under similar conditions of subordination to the same employer. Excluding these individuals would create tensions and unrest in labour relations, tensions which frequently boil over into open conflict. ...
(pages 103-104; and 219-221)
[25] In the present case, the Board must determine whether, for labour relations purposes, Penske is the “employer” of the agency drivers performing services on its behalf. The Board has dealt with the question of identifying the “real” or “true” employer on numerous occasions, whether in the circumstances of a sale of business (section 44 of the Code), a single employer declaration (section 35) or a certification application (section 24) (see Northern Television Systems Ltd. (1976), 14 di 136; and 76 CLLC 16,031 (CLRB no. 64); MacCosham Van Lines Limited (1979), 34 di 716; and [1979] 1 Can LRBR 498 (CLRB no. 177); Newfoundland Steamships Ltd. (1981), 45 di 156; and CLRBR (NS) 40 (CLRB no. 331); Maska Manpower Inc. (1984), 57 di 193 (CLRB no. 487); Urbain et Chartrand Inc. (1985), 55 di 257 (CLRB no. 508); Nationair (Nolisair International Inc.) (1987), 70 di 44; and 19 CLRBR (NS) 81 (CLRB no. 630); Tecksol Inc. (1988), 75 di 130 (CLRB no. 713); Transport Bélanger Lemire Inc. et al. (1990), 79 di 165 (CLRB no. 777); Northern Cruiser Limited (1990) 82 di 199 (CLRB no. 828); Economy Carriers Limited et al. (1991), 86 di 209 (CLRB no. 910); Coopérative des travailleurs routiers, Trans-Coop, et al. (1996), 101 di 159 (CLRB no. 1170); and Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory, [2000] CIRB no. 64; and 2001 CLLC 220-005). As a consequence, the Board will examine the actual situation in the workplace to identify who has ultimate control over the labour relations and the terms and conditions of employment of the employees.
[26] In Nationair (Nolisair International Inc.), supra, the Board looked at the relevant criteria to assist in the identification of the real or true employer in a tripartite context, such as we have in the present matter:
It is therefore in the light of the factual situation rather than the form of the transaction that the employment relationship must be assessed. Certainly the contracts between the agency and its client must not be ignored. However, a careful examination of the factual situation of the employees will be determinative.
As many others before us have said, the existence of an employment relationship between A and B must above all be examined in the light of what the facts reveal about the performance of the work and the establishment of such a relationship. (See Canadian Broadcasting Corporation (1982), 44 di 19; and 1 CLRBR (NS) 129 (CLRB no. 383).)
1. The Board will assess the factual situation but will not give decisive weight to agreements where they are not confirmed by the facts.
Thus, in our jurisdiction, significant weight cannot be given to the payment of wages. The Canada Labour Code speaks of an employee (employé) and makes no reference to remuneration in the definition of this term, contrary to the Quebec Labour Code, for example, which gives a salaried employee (salarié) freedom to associate. More significant will be the identification of the person who does the paying, who ultimately bears the cost, and the impact this has on the employment relationship.
2. Another indicator will surely be the person who controls access to employment: the person who hires or who gives the work to be performed. Here, regard must be had to the selection process and the criteria used. The person who in fact has the power to approve the selection and influence it decisively is more akin to an employer than a mere occasional user. The lessee who retains or exercises a veto or the equivalent over the selection of personnel is certainly not extraneous to the employment relationship.
3. A third criterion concerns the actual establishment of working conditions. Who actually establishes working conditions? An agency that is merely a disguised employment office, a kind of clearing house with a title, could hardly be termed an employer. In this situation, it would merely be an agent acting on behalf of the employer, the equivalent of the personnel department of a company of which it is an integral part and whose wishes it carries out as an employee.
4. Another criterion concerns the actual performance of work. How is the work performed on a day-to-day basis? Who assigns the work? Who in fact determines and approves the standards governing the performance of the work? In this regard, who has the last word, the final say? Is it the person who evaluates, who decides, who determines that an employee will work or be terminated because of his performance? What expertise does the agency have with respect to the work performed? What is the degree of similarity between the duties performed by regular employees and those performed by employees from outside?
5. Other criteria may also assist the Board in its determination: the employees’ perception, their identification with the company, their degree of integration into the company, the fortuitous, temporary or permanent nature of their employment with the leasing company.
Finally, it is essential that these criteria, whose significance may vary from case to case, be weighed without losing sight of the purpose of the legislation, namely, to promote access to collective bargaining:
“The Board cannot be satisfied with cosmetic solutions; the consequences of certification are far-reaching. It would be harmful and contrary to the spirit of the Code if the Board were to certify a group of employees who would never be able to create a balance of forces in their relations with their real employer. There is an old civil law maxim to the effect that one cannot give someone something and at the same time keep what one has given. The Board has trouble accepting the fact that the services of employees could be contracted out permanently to a third party and at the same time be considered to have been retained when these employees seek certification. The Board finds it even harder to accept that this could occur without creating some significant employment relationship between this third party and the contracted out employees. To accept such an argument without positive proof that no such relationship exists would, in the Board's opinion, offend against the spirit of the Code. ...”
(Maska Manpower Inc., supra, page 204; emphasis added)
(pages 74-75; and 110-111)
[27] The foregoing criteria focus on which party - the client or the agency - has the ultimate control over the day-to-day operations. In Nationair (Nolisair International Inc.), supra, the Board noted that the labour relations boards in Ontario, Quebec and British Columbia had all taken this approach and stated the following in the case of the Ontario board:
... factors such as pay and direct, formal authority over discipline and dismissal have proven to be less determinative criteria in establishing who exercises fundamental control than the criterion of day-to-day control of the work performed.
(pages 60; and 97)
[28] However, as we are reminded by the foregoing excerpt from Nationair (Nolisair International Inc.), supra, the criteria adopted by the Board, to assist it in identifying which party is the true employer, must still be assessed in light of the collective bargaining or labour relations context.
[29] The Supreme Court of Canada in Pointe-Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015 reviewed the reasonableness of a Quebec Labour Court decision to uphold a labour commissioner’s finding that the City of Pointe-Claire was the real employer of a temporary employee hired through a personnel agency for two work assignments. While acknowledging the fact that the agency recruited, assigned positions to, evaluated, disciplined and paid the temporary employees, the Labour Court had concluded the city was the real employer by focusing on the question of which party had control over the temporary employee’s working conditions and work performance. The Labour Court had also noted there was a relationship of legal subordination between the city and the employee because the city’s managers directed and supervised how the employee did her day-to-day work.
[30] Speaking for the majority of the Supreme Court in Pointe-Claire (City) v. Quebec (Labour Court), supra, Lamer, C.J. dismissed the city’s appeal of the Labour Court decision and, noting that the test applied in this instance was already in use by our Board, affirmed:
... the essential test for identifying an employer-employee relationship in a tripartite context is that of fundamental control over working conditions. The application of the fundamental control test leads to an analysis of which party has control over, inter alia, the selection, hiring, remuneration, discipline and working conditions of temporary employees and to a consideration of the factor of integration into the business. ...
(pages 1047-1048)
[31] This brings us to the question of who is the true employer in the instant case - Penske or the personnel agency. After weighing the evidence, in light of the Board’s jurisprudence and the purpose of the Code, the Board is satisfied that Penske, rather than the agency, has fundamental control over the agency drivers’ working conditions and work performance. Penske provides the work to be performed, trains the agency drivers at its own expense, assigns and supervises their daily work, bears the cost of remuneration, and has a veto over the agency’s referral in that, if dissatisfied with a driver’s performance, Penske advises the agency not to refer that driver in future. In addition, the agency drivers work the same hours, perform similar daily duties, fill out the same daily log sheets, and report to and take direction from the same supervisor as do the company drivers. Accordingly, the Board finds that Penske is the employer of the agency drivers, pursuant to the Code.
[32] Although the agency drivers may be “temporary” employees, the duration of their employment is not a bar to employee status:
The Board, unlike other labour relations courts, in Ontario for example, does not deny employee status to individuals who do not perform a minimum number of hours of work per week. We feel that, if a person meets the criteria of economic subordination to which we referred above, he is an “employee” within the meaning of the Code, no matter how many hours he works for the employer. The Board may, however, exclude him from the group for other reasons. He remains an “employee”, however, within the meaning of the Code.
The form or the duration of the contract is not important. In this connection, the Board ruled, in Radio Côte-Nord Inc. (1977), 23 di 39, at page 42:
“It should be pointed out once and for all, however, that in labour law, the existence of a written lease of personal services does not constitute in se and automatically a criterion for exclusion from a bargaining unit. This holds true even when the duration of the said contract is fixed and definite.”
(Canadian Broadcasting Corporation, supra, pages 117-118; and 235)
[33] The Board is also satisfied that the agency drivers share a sufficient community of interest to be included in the same bargaining unit as the permanent company drivers. Furthermore, it would not be in the interests of sound labour relations to exclude the agency drivers or to create a separate unit for them, in the face of the union’s application to include them in the same all-employee unit.
[34] The Board hereby upholds its interim order of April 9, 2001, and certifies the union as bargaining agent for a unit of employees comprising:
all employees including agency drivers of Penske Logistics working out of its Mississauga Ontario domicile, excluding supervisors, managers, dispatch and those above, owner operators and students employed for the summer.
[35] The above bargaining unit description shall specifically include agency drivers. This is a unanimous decision of the Board.