Retail Clerks Union, Local 409 v. Metropol Security Limited
[1980] OLRB Rep. December 1755
2252-79-R Retail Clerks Union, Local 409, Applicant, v. Metropol Security Limited, Respondent
BEFORE: D. E. Franks, Vice-Chairman, and Board Members C. G. Bourne and W. F. Rutherford.
APPEARANCES: Patrick Smith for the applicant; Wallace M. Kenny and Pat Haney for the respondent.
DECISION OF THE BOARD; December 18, 1980
The name: "Metropolitan Investigation Security (Canada) Ltd." appearing in the style of cause of this application as the name of the respondent is amended to read: "Metropol Security Limited".
This is an application for certification by the respondent trade union wherein the applicant seeks to be certified as bargaining agent for the employees of the respondent. The respondent operates a security guard company in the Thunder Bay area. It is not in dispute between the parties that the applicant Retail Clerks Union, Local 409 admits to membership of persons other than security guards. The Board has before it the report of a Labour Relations Officer and the argument by counsel on the effect to be given section 11 of The Labour Relations Act in this case.
The employees of the respondent in Thunder Bay can be divided into three groups or categories.
Category I The By-Law Enforcement Officers for the City of Thunder Bay.
Category II The Security Guards of the Thunder Bay Airport.
Category III The remaining employees of the respondent.
We will deal with each of these categories in detail.
Dealing first with the employees in Category I, the By-Law Enforcement Officers. This service is supplied under a contract to the City of Thunder Bay on behalf of its parking authority. The contract calls for a number of Enforcement Officers to write tickets for parking violations. These By-Law Enforcement Officers are uniformed and patrol given areas of the City. They are all licenced security guards. Also, supplied pursuant to that contract are services concerning parking garages, namely, the operation of the toll booths for the parking garages. On the basis of the report of the Labour Relations Officer, it is clear that the only duty of the By-Law Enforcement Officers is to complete tickets with respect to violations of parking by-laws. This does not extend to traffic laws and, indeed, if anything beyond the writing of a ticket occurs, the By-Law Enforcement Officers are clearly instructed to call the police as would any citizen.
The employees in Category II are Airport Security Guards. Their duty is to conduct a check of all passengers and their baggage before they board airplanes at the Thunder Bay Airport. All hand baggage is scanned with an X-ray device and all passengers are scanned by a walk-through metal detector, and if necessary a hand scanner is used to further examine a passenger. The report of the Labour Relations Officer indicates that in performance of this duty the Security Guards are acting on behalf of the various carriers which used the Thunder Bay Airport.
The reason for the check of both the passengers and their carry-on luggage is to detect weapons or devices which may be used in the "hijacking", i.e., pirating of aircraft. Thus, the Security Guards are trying to detect weapons or devices which may be used as weapons to prevent passengers from bringing such weapons or devices onto an airplane. The personnel at the Thunder Bay Airport are all licenced security guards. It is clear, however, that they have no power to arrest. If a passenger refuses to submit to the appropriate scan, their instructions are to refer the passenger back to the carrier. In the event that a weapon, such as a handgun is discovered, their instructions are not to arrest the person with such a weapon but rather to immediately inform the local police or the R.C.M.P.
The persons employed in Category III are Security Guards who work pursuant to certain security contracts provided by the respondent. This involves, typically, providing security services at hospitals and various commercial establishments. From the report of the Examiner it is clear that their duties involve the protection of property and, accordingly, all are licenced security guards. There is also no doubt that in the course of their duties, they are required to protect the property of the client in the client's position as employer of employees. Indeed, the Labour Relations Officer's report is clear that from time-to-time they perform such functions in the context of labour disputes.
In the course of the Labour Relations Officer's inquiry, there was discussion about the interchange of people from the various categories. Clearly, there is little or no interchange between those in Category III and those in either in the first or second Category of employees. The evidence of interchange was of employees in Category II, that is the Airport Security Officers being used from time-to-time as security guards in Category III. However, the evidence in this regard is quite clear that at the time when persons from Category I and Category II were employed in Category III, it was voluntary employment on their part. Further, this occurred on their normal days off. That is, it is clear in the report of the Labour Relations Officer that any interchange was voluntary and not an incident of employment in Category I or Category II.
The respondent in the present case argues that employees in all three categories are security guards and, therefore, the applicant trade union is not entitled to be certified as bargaining agent on their behalf. Section II of The Labour Relations Act reads as follows:
"The Board shall not include in a bargaining unit with other employees a person employed as a guard to protect the property of an employer, and no trade union shall be certified as bargaining agent for a bargaining unit of such guards and no employer or employers' organization shall be required to bargain with a trade union on behalf of any person who is a guard if, in either case, the trade union admits to membership or is chartered by, or is affiliated, directly or indirectly, with an organization that admits to membership persons other than guards."
It is clear that the first thing that must be determined is whether persons in the various categories are "employed as a guard to protect the property of an employer".
With respect to the persons in Category I and Category III, the answer to this question is quite obvious. The persons in Category I, that is the By-Law Enforcement Officers, do not in the course of their duties protect any property at all. Therefore, they are not affected by section II. Conversely, those employees in Category III, the general security guards employed by the respondent do, in the course of their regular duties, protect the property of employers. They are, therefore, guards within the meaning of section 11.
With respect to the employees in Category II, the Airport Security Guards, the matter is somewhat difficult. It can be argued that their function is to protect aircraft and passengers in aircraft from hijacking. Insofar as the airlines are employers, it might be said that they are protecting the property of an employer. However, such an interpretation would strain the plain language of section II, clearly this section reads "employed as a guard to protect the property of an employer" and does not read, for instance, "employed as a guard to protect the property of a person". The term "employer" as used in section 11 brings into play the employment relationship, that is, the guard protecting the property of an employer as employer. The security guards at the airport do not protect the property of the airlines as employers but rather they protect the property of the airlines from hijackers. Therefore, they are not guards within the meaning of section 11.
We are faced then with the situation that the employees in Categories I and II, that is the By-Law Enforcement Officers and the Airport Security Guards, are not guards within the meaning of section 11; whereas, the remaining employees of the respondent, those in Category III are security guards within the meaning of section II. This in turn raises the problem of whether there is an appropriate unit for collective bargaining and if there is, what is such an appropriate unit in the light of section 11 of the Act. The respondent argues that the only appropriate bargaining unit is an all employee unit. Consequently, the Board ought not to certify the applicant. However, on the basis of the evidence contained in the report of the Labour Relations Officer, it is clear that the relationship between Categories I and II and Category III is not one of regular interchange as part of their employment. That is, in the normal course of their duties, they are quite distinguishable groups from those employed in Category Ill.
The applicant takes the position that those who are not employed as guards within the meaning of section II are in an appropriate unit for collective bargaining unit whether this includes the employees in Category I or Category I and Category II.
The Legislative prohibition which arises from section II, does not extend so far as the respondent argues. The Board is prohibited from including in a bargaining unit with other employees, persons employed as guards to protect the property of employers. It does not prohibit the Board from certifying a unit with such guards excluded. Indeed, the opening words of section 11 indicate that a bargaining unit with guards excluded is appropriate. Indeed, if the employees in Categories I and II are not guards within the meaning of section II, then a union consisting solely of guards might loose its status under section 11 if it admitted them into membership. Accordingly, we find that the persons employed in Category I and Category II could form an appropriate bargaining unit.
Having regard to the foregoing, the Board finds that all employees of the respondent in the City of Thunder Bay other than those employe4 as guards protecting the property of employers, save and except supervisors, persons above the rank of supervisor and office staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
For the purpose of clarity, the Board further notes that the bargaining unit includes those employees employed as By-Law Enforcement Officers and those employees employed as Airport Security Guards.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made, were members of the applicant on March II, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
A certificate will issue to the applicant.