[1980] OLRB Rep. April 542
1878-79-R Teamster Local Union No. 647, Milk and Bread Drivers, Dairy Employees. Caterers and Allied Employees, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. T.R.S. Food Services Limited, Respondent, v. Hotel & Restaurant Employees' & Bartenders' International Union (affiliated with the CLC), Intervener.
BEFORE: Pamela C. Picher, Vice-Chairman and Board Members J. D. Bell and C. Ballentine.
DECISION OF VICE-CHAIRMAN PAMELA C. PICHER AND BOARD MEMBER C. BALLENTINE; April 24, 1980.
By a decision dated March 4, 1980 the Board certified the applicant, Teamsters Local Union No. 647, on an interim basis as bargaining agent for the full-time bargaining unit pending the Board's final determination of the geographic scope of the bargaining unit.
As set out in the Board's March 4th decision, the bargaining unit dispute between the applicant and respondent, a food service employer, relates to the appropriate geographic scope of the unit. The applicant requests that the unit be described solely by reference to the municipality and not the particular client serviced by the respondent's employees, in this case, General Motors of Canada. Accordingly, the description put forward by the applicant is, "all employees of the respondent, working in St. Catharines, save and except”...". The respondent, on the other hand, seeks to have the Board describe the unit by reference to the client company. The respondent's requested description, therefore, would read, all employees of the respondent working in or out of the General Motors of Canada Limited plants in St. Catharines, save and except…”.
Presently, the only food service operation carried on by the respondent in St. Catharines is at the General Motors plants. The respondent, however, is actively seeking other contracts. The significance of the geographic designation is that if the union is certified for "all employees of the respondent in St. Catharines", bargaining rights would automatically cover employees of the respondent working at additional places of business in St. Catharines for which the respondent obtains a contract to provide food service.
Where an employer has only one location within a municipality, the Board's consistent practice, apart from the construction industry, has been to describe the geographic scope of the bargaining unit by reference to the municipality rather than the respondent's particular location. This practice results from a balancing of two competing interests: the individual's interest preserved by section 3 of the Act to be free to join a trade union of his own choice, on the one hand, and, on the other, the concern of the Board as well as the union and employees involved in any particular case that sufficient stability adhere to the bargaining rights conferred. (See generally the Board's decisions in the Great Atlantic & Pacific Tea Company Limited, [1969] OLRB Rep. Jan. 1017; Perimeter Industries Limited, [1973] OLRB Rep. Mar. 174; Wix Corporation Limited, [1975] OLRB Rep. Aug. 637; Inglis 543 Limited, [1977] OLRB Rep. Mar. 128; and York Steel Construction Limited, decision dated February 25, 1980, File No. 1501-79-R, as yet unreported).
While limiting a bargaining unit to the respondent's particular location would give considerable latitude to an individual's freedom to join a trade union of his own choice, it could, at the same, jeopardize the stability of the bargaining rights conferred upon the union. If an employer moves the location of its operation in a situation where the bargaining unit has been defined by reference to the employer's street address, the union's bargaining rights may be extinguished by the move. The Board's general policy of describing the geographic scope of a bargaining unit by reference to the municipality in which the employer's operation is situated instead of the particular location inhibits bargaining rights from being disturbed in this manner.
In recognition of an individual's right to choose his own bargaining agent, the Board insures that the geographic boundary of a bargaining unit is not drawn too broadly. See, for example, the Board's decision in Canada Safeway Limited, [1972] OLRB Rep. Mar. 262 where the Board refused to extend the scope of the bargaining unit beyond the municipality because of the broad restriction that would otherwise be placed on the employees' freedom to choose their own bargaining agent. By drawing the geographic boundary of the bargaining unit at the municipal line, the Board has sought to maintain an appropriate balance. Moderate restrictions are placed on an individual's freedom to join a trade union of his own choosing in an effort to promote a very important measure of stability for the bargaining rights conferred. Admittedly, the line drawn is somewhat rough and ready. To whatever extent it is unresponsive to the needs of the parties in any particular case, adjustments may be made by agreement of the parties.
In this case the respondent has asked the Board to depart from its normal practice of describing the bargaining unit by reference to the municipality in circumstances where the respondent has only one location. In support of its position, the respondent emphasizes that the bargaining unit description it has requested refers generally to the client being serviced by the respondent's employees, rather than the client's street address. The respondent argues that because such a description would ensure that bargaining rights would follow the client anywhere it might move in St. Catharines, the stability of the bargaining rights is not at risk.
The Board is of the view, however, that notwithstanding the absence of the street address, the respondent's proposed geographic description would unnecessarily strain the stability of the bargaining rights. The permanent relationship of the employees involved in this application is with the respondent, T.R.S. Food Services Limited, and not with the respondent's client, General Motors. While some clients in the food service industry may develop a relatively permanent relationship with a particular company engaged in the food service business, neither the length of the contract for food service nor its continual renewal may be taken for granted. To tie the continuation of the applicant's bargaining rights to the client being serviced by the respondent would mean that the bargaining rights would be placed in a position of complete dependence on the continuation of the food service contract which existed between the employer and the particular client being serviced at the time of the application for certification. Given the fluctuations of the market place and the competition for such contracts, the Board concludes, on balance, that where the employer has but one location in the municipality, the geographic scope of the bargaining unit should be defined by reference to the municipality in which the respondent is located. We note that in circumstances where an employer has two or more locations in a municipality, additional considerations relating to the actual community of interest shared between the particular locations may become relevant.
For the reasons given above the Board declines to depart from its normal practice of defining the geographic scope of the bargaining unit by reference to the municipality in circumstances where the employer has only one location within the municipality. Accordingly, the Board finds that all employees of the respondent in St. Catharines, Ontario, save and except supervisors, persons above the rank of supervisor, chefs, office and clerical workers, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
A formal certificate will now issue.
DECISION OF BOARD MEMBER J. D. BELL:
I dissent from the decision of the majority.
When the factors outlined in the majority decision are applied to the food service industry in which the respondent is engaged, considerations prevail that are somewhat different from those that apply to bargaining rights in the typical retail outlet, food market chain or industrial plant. This difference was previously noted by the Board in V-S Services Ltd., (File N. 1801-76-R, decision dated February 17, 1977, unreported) where the respondent, similar to the respondent in this case, was engaged in the food service business. In V-S Services, the Board, in circumstances virtually identical to those before the Board in this case, refused the applicant's request to be certified for the municipality. Instead the Board granted the bargaining unit advanced by the respondent which was restricted to the particular location where the respondent's employees provided their food service. In departing from the practice of certifying a union for a municipal bargaining unit, the Board indicated that neither an industrial plant nor a retail outlet presented circumstances analogous to those for a food service business. The existence of the difference between retail stores and the food service business is further reflected in the many food service cases before the Board where the parties themselves have agreed that the geographic description should be restricted to the location where the employees provide the food service. There are in fact relatively few cases where a food service business has in fact been certified for a municipal bargaining unit.
If the Board in this case restricted the bargaining unit to the location of the client being serviced by the T.R.S. employees, the stability of the bargaining rights of the union would not be placed in jeopardy. Describing the geographic scope of the bargaining unit by reference to the plants of General Motors of Canada in St. Catharines, would not fix the bargaining rights to a particular street address as with a retail store operation or a manufacturing plant. Instead the rights would adhere to the respondent's client. If the client moves its location within the municipality, the bargaining rights would continue without disruption. By defining the bargaining unit municipally, according to the client being serviced, the Board is able to avoid unnecessarily reducing the scope of the principle of self-organization in section 3 of the Act without risk to the stability of the bargaining rights the Board has conferred.
Two additional factors underscore the appropriateness of this approach for certifications in the food service industry. In that industry the particular needs of the client being serviced have a strong impact on the nature of the business performed by the respondent. To properly service the client, the respondent must be responsive to the client's circumstances and tailor its services to meet those requirements. For example, the food service employees in a given location may have to adapt to conditions such as the shift work and seasonal shutdowns of the host industry. The similarity of business from client to client and the related needs of the food service employees is, therefore, less predictable or uniform than as between employees in different stores of a retail food chain. The labour relations interests of the food service employees will be variously influenced, therefore, by the nature of the operations of the client in whose environment they work.
A further consideration which supports a decision to certify food service employees municipally by client rather than on the basis of all locations of the respondent in a municipality is the strain on organizing that would be placed on a union if it had to organize all of the respondent's employees in a municipality. Unlike retail food markets or chain stores, for example, the respondent does not hold itself out to the public in a manner that would reveal the location of its various contracts. In a municipality of any size it would, therefore, be difficult for a union to find and organize all of the locations of the respondent. In that case, to insist on a bargaining unit of all employees of a food service in a municipality would tend to unduly impede the access of the employees to any collective bargaining at all (Canada Trustco Mortgage Company, [1977] OLRB Rep. June 330.)
For the reasons set out above, therefore, I conclude that the appropriate bargaining unit in this case is the one proposed by the respondent.