[1980] OLRB Rep. February 293
1501-79-R International Association of Bridge, Structural and Ornamental Ironworkers, Local 834, Applicant, v. York Steel Construction Limited, Respondent.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members E. C. Went and W. F. Rutherford.
APPEARANCES: Maurice A. Green for the applicant; D. L. Brisbin for the respondent.
DECISION OF THE BOARD; February 25, 1980
This is the continuation of an application for certification.
The respondent, York Steel Construction Limited, operates two plants in Metropolitan Toronto, the Fabrication & Erection Division located at 75 Ingram Drive in Toronto and the Wire Mesh Division located at 949 Wilson Avenue in Toronto. These plants are located approximately two miles apart. The Ingram Drive plant employs approximately 157 production employees, and the Wilson Avenue plant approximately 15.
In its application the union sought bargaining rights only for the employees at the Ingram Drive plant (the larger plant). The company, however, took the position that the single plant was inappropriate as a bargaining unit, and that a unit encompassing both plants in Metropolitan Toronto was the only appropriate one. As the applicant had requested a pre-hearing representation vote, the issue was not determined by the Board at that time, but rather, the Board directed that the representation vote proceed, with the ballots from the Wilson Avenue employees being segregated and sealed.
The vote did proceed on November 30, 1979. The ballots were counted for the Ingram Drive employees, and the applicant union was successful by a sufficiently wide majority (23) that it was assured of obtaining bargaining rights for both plants no matter how the employees at Wilson Avenue had voted.
The parties then returned to the Board and reversed their positions. The union now takes the position that the appropriate bargaining unit is undoubtedly the one encompassing both plants in Metropolitan Toronto, while the employer is just as certain that the Ingram Drive plant alone constitutes the proper unit. Both parties rely on the Board's decision in Usarco Limited, [1967] OLRB Rep. Sept. 526, and the cases following, in support of their position. They have produced an agreed Statement of Facts, on the basis of which the Board is requested to make its ruling. That agreed Statement is as follows:
"1. ... 'The General Manager, Mr. Harry Shephard, is in charge of the Wire Mesh Division, and reports directly to Mr. Joe Tanenbaum, President of York Steel Construction Limited.
The Wire Mesh Division manufactures wire mesh for various purposes. The Fabrication & Erection Division manufactures structural steel, steel grading, siding, boilers and tanks, and reinforcing rods.
The Wire Mesh Division uses no skilled labour but rather labourers and machine operators who are hired and trained exclusively at the Wilson Avenue location by Mr. Harry Shephard. The Fabrication & Erection Division also uses labourers but in addition, approximately 50% of the work force is comprised of skilled workers including welders and fitters.
There is no common hiring practice. Employees seeking employment at the Wire Mesh Division would apply there and be interviewed and hired there by Mr. Harry Shephard. Persons seeking employment with the Fabricating & Erection Division would apply for employment at that Plant and be interviewed and hired exclusively by the Personnel Department there.
There is no interchange of employees or supervisory staff between the Wire Mesh Division and the Fabrication & Erection Division. The supervisory staff at each location have no authority at the other location.
The Wire Mesh Division purchases its own raw materials from the supplier of its choice and that raw material comprises wire rod. The Fabrication & Erection Division buys its own raw material from the supplier of its choice and that raw material comprises structural steel.
The competitors of the Wire Mesh Division are almost exclusively located outside of the Toronto-Hamilton Region in smaller centres throughout Ontario. The competitors for the Fabrication & Erection Division are almost exclusively located in the Toronto-Hamilton Region.
The Wire Mesh Division handles its own sales function separately and exclusively, selling to distributors, manufacturers and also direct to construction companies. The Fabrication & Erection Division does not sell wire mesh. It is in the business of selling the products listed in paragraph 2. For this purpose, it has an Order Desk Clerk to handle off-the-street business and an estimating Department consisting of 8 to 10 employees to put together quotations for larger projects.
The Wire Mesh Division handles its own vacation scheduling. For the last 4 or 5 years it has shut down over the Christmas period for approximately 10 days. The Fabrication & Erection Division handles its vacation scheduling separately and has not had this Christmas shut down.
The Wire Mesh Division has complete discretion with respect to the pricing of its product. It also has complete discretion in the ordering of raw materials and other supplies needed for that business.
The office staff of the Fabrication & Erection Division handles the following administrative functions for the Wire Mesh Division: payroll, credit checks, accounts receivable and accounts payable."
The Board in Wix Corp. Ltd., [1975] OLRB Rep. Aug. 637 canvassed in some detail the Board's practice with respect to defining geographic limitations in the appropriate bargaining unit. Apart from the construction and perhaps certain service industries, the Board's policy, where the employer has employees at only one location within a municipal area, is to describe the bargaining unit in terms of the municipality itself (Perimeter Industries Limited, [1973] OLRB Rep. March 174). On occasion the Board will expand its definition of the bargaining unit to encompass an area greater than a single municipality (see The Board of Health of the York-Oshawa District Health Unit, [1969] OLRB Rep. Feb. 1178; The Adams Furniture Company Limited, [1975] OLRB Rep. June 491; and note as well the Board's normal unit of "the Municipality of Metropolitan Toronto"), but is reluctant to do so in the absence of compelling reasons (Wittich's Bread Limited, [1969] OLRB Rep. Jan. 1019; Del Zotto, [1972] OLRB Rep. June 637 and Canada Safeway Limited, (1972] OLRB Rep. Mar. 262). The primary reason for this policy of municipality-wide bargaing units is the Board's concern for stability of bargaining rights; i.e., the union's bargaining rights will not be affected by a subsequent move of the employer's operation to some other location within the same municipality. On the other hand, actual accretions to the employer's operations within the municipality, such as a second or third plant, will automatically be covered by the union's certificate. To this latter extent, the right of self-determination of a bargaining agent by the employees at these new locations is compromised, in favour of the over-riding concern for stability of bargaining rights.
Where, however, the employer at the time of an application for certification already has employees at more than one location within the municipality, the competing principles, apart from stability of bargaining rights, become the right of the various groups of employees to self-determination versus the importance of establishing a bargaining constituency that will lead to a viable bargaining relationship. In The Adams Furniture Company Limited case, supra , the Board examined this problem in the context of a proposed bargaining unit comprised of all of the constituent municipalities of the Regional Municipality of Niagara and Dunnville, and had this to say:
"8. There is the possibility that regional bargaining units may interfere with the right of self-organization by sweeping into the bargaining units employees who either do not wish to be organized or wish to be organized by some other bargaining agent. It should be recognized, however, that this threat to the right of self-organization may be no greater than that posed by the industrial unit at a single plant or a multi-location unit within a muncipality. Whenever the Board makes a determination as to appropriateness, there is always the possibility that groups of employees who do not support the applicant will be swept into the unit. Although it can be argued that such a determination interferes with the right to self-organization, it is justified by the requirement that the Board determine a bargaining constituency that will lead to a viable bargaining relationship....
- In determining whether a bargaining unit is viable, the primary consideration is the community of interest among the employees. Where a community of interest is lacking, there is the distinct possibility that the bargaining agent will not be able to reconcile the disparate interest groups within the unit. If the bargaining agent is not able to represent effectively all groups within the unit, there is a good chance that this will affect the availability of the collective bargaining relationship itself. Community of interest is determined by the consideratione of a number of factors and undue significance should not be attached to any on of them. Geographic separation of employees is one of these factors, but as the Board has indicated in the Usarco case, [1967] OL1RB Rep. Sept. 526 there are a number of other factors of equal importance. These are: 1) nature of work performed; 2) conditions of employment; 3) skills of employees; 4) administration; 5) functional coherence and interdependence. When the Board is determining the appropriateness of a regional bargaining unit, all of these factors must be considered."
Besides the "community of interest" test, the Usarco case also mentioned as possible factors: centralization of managerial authority, economic impact (i.e. the impact which the carving out of separate bargaining units is likely to have on the employer's normal manner of carrying on business), and source of work. Other cases, in addition, have mentioned the history of bargaining units in a particular type of operation, as well as the desire of the parties as further factors. See The Gypsum Company Limited, [1967] OLRB Rep. July 345, and, especially on the latter point, Ponderosa Steak House, [1975] OLRB Rep. Jan. 7 and McDonald's Restaurants, [1974] OLRB Rep. Oct. 755. As was stated in the Usarco case (p. 530), "the factors considered ... are not of equal importance and no single factor is necessarily crucial to the disposition of the case." In each case which comes before it the Board must weigh the various competing factors and interests involved. There are exceptions to this approach as well, but these have been limited by the Board to cases of variety chain stores, brewers' warehousing stores, and food market and other retail service stores, where the Board, rather than embark on the Usarco-type inquiry, as a matter of policy adopts the entire municipality as the appropriate bargaining unit. The rationale for this narrow group of exceptions has been stated by the Board in, inter alia, The Goodyear Service Stores case, 65 CLLC ¶16,018:
"In our opinion, where an employer conducts essentially similar retail or service store operations at a number of locations in a given geographical area it would not, generally speaking, be conducive to sound collective bargaining for a series of bargaining units to be established in respect of groups of employees performing similar tasks and having similar bargaining interests."
See also Fotomat Canada Limited, [1979] OLRB Rep. April 306.
As both parties agreed, the present case falls to be decided on the basis of the Usarco line of inquiry. The respondent appears to operate two independent, non-integrated divisions, one at each location. The smaller division, the Wire Mesh Division, has its own general manager. Each plant hires and trains its own employees. There is no interchange of employees or supervisory staff, and the supervisory staff at each location have no authority at the other location. The two divisions manufacture entirely different products, albeit within the construction industry itself. The two divisions do not draw on common sources of raw materials and the sales staff are separate. There is no evidence that the customers are the same. The complete lack of functional interdependence is illustrated by the fact that the Wire Mesh Division observes a general Christmas shutdown for vacation purposes, while the Fabrication & Erection Division does not. The only real commonality is in the area of administration, covering such matters as payroll, credit checks, accounts receivable and accounts payable.
With regard to the element of common administration, the Board found a similar situation to exist in the Commonwealth Holiday Inns case, [1970] OLRB Rep. Oct. 749, but notwithstanding this, plus evidence of some limited transfer activity between locations, found a single inn to be an appropriate unit. In that case, it was the single inn for which the union applied for bargaining rights. The same was true, initially, in this case, but the applicant now requests the Board to define its bargaining rights so as to encompass both plants. The applicant did not, however, attempt to organize on the latter basis; or, if it did, there is no evidence before the Board in the present application to indicate any membership support whatsoever amongst the employees at Wilson Avenue. Having regard to this fact, together with the Board's own appraisal of the facts as they exist with respect to the criteria set out in the Usarco and other cases mentioned, (and notwithstanding the respondent's own reversal in this matter), the Board is of the view that there is no sound reason to sweep the Wilson Avenue employees into the bargaining unit on the strength of the applicant's support at the larger plant. Accordingly, the Board finds that all employees of the respondent working at its plant at 75 Ingram Drive, Toronto, save and except foreman, persons above the rank of foreman, office employees, and persons covered by a subsisting collective agreement between the respondent and the International Association of Bridge, Structural and Ornamental Ironworkers, Local 721 (Field Erection), constitute a unit of employees of the respondent appropriate for collective bargaining.
A formal certificate will issue to the applicant.