0083-81-R Teamsters Local Union No. 419, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Wells Fargo Armcar, Inc., Respondent.
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members H. J. F. Ade and C. Ballentine.
APPEARANCES: Douglas J. Wray, Harry Bodkin and Paul Ostram for the applicant; W. G. Phelps and T Bradley' for the respondent.
DECISION OF VICE-CHAIRMAN N. B. SATTERFIELD AND BOARD MEMBER C. A. BALLENTINE; July 27, 1981
The name of the respondent is amended to read: "Wells Fargo Armcar, Inc.".
This is an application for certification in which the Teamsters Local Union No. 419 ("the union") is seeking to be certified as bargaining agent for a unit of employees of Wells Fargo Armcar, Inc. ("the employer") which the union describes in the following terms:
All employees, save and except supervisors and persons above the rank of supervisor, who work as Vaultmen, Messengers, Drivers and Guards for the employer out of its Toronto areas office.
The employer contends that its employees who would be included within that description are guards within the meaning of section 11 of The Labour Relations Act which states 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."
The employer further contends that the union is not eligible to represent these employees who are guards because it is a"... trade union [which] admits to membership or is chartered by, or is affiliated, directly or indirectly, with an organization that admits to membership persons other than guards." Counsel for the union takes the position that the Board has consistently restricted the application of section II to situations where there is an actual or potential conflict of interest between the employees who are guards.
The employees affected by this application were represented in collective bargaining for nearly ten years by a union which represents guards only. These bargaining rights were terminated in March 1981 following a representation vote. Now these employees seek to be represented by the applicant herein. In 1972, Teamsters Local Union No. 91 applied to be certified for a similar group of employees at the employer's Ottawa location. The Board at first certified Local 91 to represent the employees and then, on reconsideration of its decision, found the employees to be guards within the meaning of section 11 of the Act. The Board also found Local 91 not eligible to represent guards and dismissed the application. See Wells Fargo Armoured Express, Ltd., [1972] OLRB Rep. Jan. 22. Counsel for the employer in the instant application claims that there is no essential difference between the work being performed by the employees affected by this application and that which was performed by the employees in Ottawa.
The employer's business in which the persons affected by this application are employed involves the transferring of valuables under protection. This protection is provided by persons licensed under provincial authority as security guards who carry sidearms, by the use of armoured cars which are specifically constructed as to their armouring and locking systems and by the employer's own security vaults. The employer may occasionally use an ordinary rented vehicle for the transporting of valuables, but this is done primarily in the armoured vehicles. The persons whom the employer refers to as security guards are classified as driver-guards, messenger-guards and vaultinen. Driver-guards and messenger-guards form the normal two man crew on the armoured vehicles. Occasionally a vehicle crew includes a third person. The truck crews pick up and deliver valuables from the employers' customers. Driver-guards and messenger-guards are at all times responsible for the security of their vehicles and are jointly responsible for the employer's property and that of its customers. Each crew selects the route to be used for each day's pick-ups and deliveries. The messenger-guards are responsible for the delivery or pick-up of valuables at the customers' premises. Each driver-guard is responsible for the safe operation of his vehicle at all times and for covering the messenger-guard when he is outside of the vehicle and within view of the driver-guard. The employer's customers consist of banks and other financial institutions, retail stores and other businesses which require this kind of protection for the transportation of valuables. The picking up and delivering of valuables is done in sealed bags. The messenger-guard is responsible for delivering these sealed bags to or picking them up from an authorized employee of the customer. The guard signs for the receipt of valuables being picked up and obtains the employee's signature for the valuables being delivered.
The vaultmen receive and disburse valuables at the employer's premises and are responsible for protecting these valuables while they are in the employer's vault. One or two of the vaultimen may, from time to time, go out on the armoured vehicles as part of the vehicle crew.
The Board, prior to there being any statutory provision in respect of guards, was called upon to deal with the relationship between persons whose duties included protection of an employer's property and other employees of the employer. In Canadian Westinghouse Co. Limited 47 CLLC ¶116,492 the Board dealt with an application for certification for a proposed bargaining unit consisting of watchmen. While the Board found that these watchmen were employees within the meaning of the prevailing legislation and that the proposed bargaining unit comprised only of watchmen was appropriate for the purposes of collective bargaining, the Board refused to certify the applicant. It did so because the watchmen would have been represented in collective bargaining by the local of the applicant which already represented a unit of production employees and the effect of the certification would be an enlarging of the existing bargaining unit to include the watchmen. The Board considered this to be an inappropriate result because of the special nature of the watchmen's responsibilities to their employer.
The first statutory provision was introduced in 1950 and stated that:
"The Board shall not include in a bargaining unit with other employees any person employed as a guard to protect the property of his employer and no trade union shall be certified as bargaining agent for a bargaining unit of such guards if it admits to membership or is chartered by, or is affiliated, directly or indirectly, with an organization that admits to membership persons other than such guards."
This provision was further amended in 1954 to provide that:
"The Board shall not include in a bargaining unit with other employees a person employed as a guard to protect the property of his 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 employed as 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 such guards."
That provision was amended in 1970 so that the phrase "... to protect the property of his employer " was replaced by the phrase...., to protect the property of an employer as it now appears in section 11 set out in paragraph 2 above. (emphasis added)
- The Board's approach to the statutory provision covering guards is typified in its decision in Geo. A. Cram & Sons Ltd., 63 CLLC ¶1 16,291 wherein at p. 1209 it said:
"In all events, to be considered guards as contemplated by the legislation, their duties must be of such a nature that inclusion in a bargaining unit with non-guard employees would confront them with a real and serious conflict between their special duties to their employer to protect his property and their expected loyalty to fellow bargaining unit employees."
In a subsequent decision, Knight Security Guards Limited, [1968] OLRB Rep. Sept. 580, the Board construed the statutory provision broadly to include guards protecting property of third party employers. The Ontario High Court and the Ontario Court of Appeal [(1969) 1969 CanLII 326 (ON HCJ), 4 D.L.R. (3d) 485 and (1969) 1969 CanLII 321 (ON CA), 5 D.L.R. (3d) 707, respectively] disagreed with this broad construction but refused to quash the Board's decision. The Act was subsequently amended in 1970, as referred to above in paragraph 8, by replacing the words "his employer" with the words "an employer". That amendment removed any doubt as to whether the statutory provision (now section II of the Act) applies to all guards, whether they protect the property of their own employer or that of a third party employer.
- The Board's jurisprudence since that amendment reveals that, with one clear exception, it has consistently looked to a conflict of interest, actual or potential, between the guards and employees of the employer whose property the guards had a duty to protect as the basis for applying section II and its predecessor provisions. See for example the Board's decision in Pal-O-Pak manufacturing [1978] OLRB Rep. Jan. 95, wherein the Board said at p. 96:
"5. Numbers of employees may have as some part of their responsibilities a duty to protect the property of their employer. Indeed, that is to some extent a duty normally devolving on all employees. (See, generally, Batt, Law of Master and Servant, p. 208 et seq.). Not all employees with some responsibility to protect the property of their employer will, however, fall within the definition of "guard" within the meaning of section 11 of the Act. As the Board's decisions have indicated one of the concerns of that section is the exclusion from a bargaining unit of guards whose duties and responsibilities would place them in a position of conflict between the interests of their employer and the interests of their fellow employees in the bargaining unit. (George A. Cram & Sons Ltd. 63 CLLC ¶ 16,291, Disposal Services Limited [1974] OLRB Rep. Feb. 84)."
The Board's decision in The Art Gallery' of Ontario, Board file no. 0328-78-R unreported, a decision which issued October 30, 1978 saw the issue before it as..... whether the security staff of the Art Gallery of Ontario are by virtue of their duties placed in that kind of conflict of interest." After a review of the evidence, the Board went on to state at paragraph 17, "Having regard to the evidence, this Board is satisfied that the security staff employed by the respondent would be in a sufficient conflict of interest vis-a-vis the bargaining unit employees to be "guards" within the meaning of section II of The Labour Relations Act."
The one exception in the Board's jurisprudence is Wells Fargo Armoured Express, supra. In that case, the Board, without addressing the question of whether there was an existing or potential conflict of interest, found that the persons in question were ..... primarily employed as a guard to protect the property of an employer." and, therefore, were guards within the meaning of section II of the Act. It would appear from the absence of any reference that neither party raised an issue of conflict.
A more recent decision of the Board in Metropol Security Limited, [1980] OLRB Rep. Dec. 1755 deals with three distinct categories of employees and, without direct reference to whether there was an existing or potential conflict of interest, the Board found employees in one category to be guards within the meaning of section 11 and employees in the other two categories not to be guards within the meaning of that section. While it might appear that this decision, because of its lack of reference to conflict of interest, represents a departure by the Board from its earlier reliance on the conflict of interest test, the Board does not view it that way. The various references in the Metropol, supra, decision to the significance of whether the persons were employed as guards to protect the property of an employer as employer indicate the Board's continued concern with the potential for conflict of interest between guards and other employees of an employer. For example, at paragraph 11 the Board, in referring to the category of airport security guards, states:
"…. 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."
Counsel for the employer argues that the statutory language of section 11 is clear, unambiguous and makes no mention of conflict of interest. Counsel contends that application of the conflict of interest test is an imposition of an additional condition not required by the Act. Counsel argues further that the Board's jurisdiction is simply to follow the clear wording of the statute and refuse to certify the applicant to represent the persons in question because they are employed as guards "... to protect the property of an employer.. . .". The union's counsel, on the other hand, argues that the provisions of section 11 do not apply in all cases where the application for certification relates to persons who are employed to protect the property of an employer. Counsel argues further that the provisions of section II are restricted in application to those situations where the persons who protect the property of an employer are, by so doing, placed in a position of actual or potential conflict of interest with employees of the employer of the guards. The inference of counsel's argument is that, even where there is an actual or potential conflict of interest between the guards and employees of a third party employer, the provisions of section 11 should not apply.
If there is a proper place for the conflict of interest test in interpreting the language of section 11, as union counsel contends, the Board cannot agree with counsel that the section's provisions should not be applied where the conflict exists only between the guards and employees of a third party employer. The use of the indefinite article "an" before the word "employer" precludes counsel's argument and this is reinforced by the development of the statutory language referred to above.
The essence of employer counsel's argument is that the language of section II requires no interpretation and it is simply a matter that, where guards are employed to protect the property of an employer, the Board shall not include them in a bargaining unit with other employees who are not guards and if a 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 such guards, the Board shall neither certify the union as bargaining agent for a bargaining unit of such guards nor require an employer or employers' organization to bargain with the trade union on behalf of any person employed as a guard. That position begs the question of whether section 11 defines a guard. In the Board's view it does not. The argument of counsel for the employer seems to suggest that the words".. . to protect the property of an employer . . . ." achieves that definition. In the Board's view, all that this phrase achieves is to focus the type of guarding that is being done so that the guarding includes the duty of protecting the property of an employer.
Since the section fails to define the word "guard", it falls to the Board to do so. It is precisely for this purpose that the Board has used its conflict of interest test before deciding whether to apply the provisions of section II. Since the effect of section 11 is to place limits on what constitutes an appropriate bargaining unit and on an employee's free choice of what trade union will represent him in collective bargaining, this test is a reasonable balancing of those restrictions with the need to protect an employer from the conflict posed by a guard's duty to protect that employer's property and any loyalty that the guard might feel towards other employees of the employer.
It is clear from the facts in this case that the persons whom the union seeks to represent in collective bargaining are employed as guard's to protect the property of the employer's customers who are also employers. In these circumstances and having regard for all of the foregoing, the Board sees no reason not to apply the conflict of interest test in order to determine whether the provisions of section II should prevail in this application.
The test is whether duties of the persons who are claimed to be guards for purposes of section II raise the real possibility of a conflict of interest with respect to other employees of their employer or, as in this case, a third party employer. Whether this test is satisfied is a call on the facts in each case. In the case at hand, any opportunity for conflict would arise at two contact points: between the messenger-guards and the clients' employees who are designated to be the persons to whom the guards deliver valuables and from whom they receive valuables, and between the truck crews and the vaultmen. In either of these transactions the contact involves simply the transfer of the valuables, which are in sealed containers, accompanied by the signing by the persons involved of appropriate receipts or conveyance documents.
The nature of these contacts are quite dissimilar to those found in Board decisions where section II has been applied. There is nothing in these contacts which call for the guards to exercise the kind of monitorial authority over other employees which the Board has found to raise the real possibility of a conflict of interest. The Board's decision in Imperial Leaf Tobacco Limited [1969] OLRB Feb. 1168. in finding that watchmen were guards within the meaning of section II, relied, in part, on the fact that the watchmen's authority to stop employees leaving the plant with large parcels to see if they had written authority to do so was ..... an element of monitorial authority over the employees .. .". Similarly, in its decision in Corby Distilleries Limited, [1980] OLRB Rep. Feb. 194, in which the Board followed Imperial Tobacco, supra, the Board found watchmen to be section II guards relying again, in part, on the fact that their duties included activities such as recording all employee vehicles entering or leaving the plant; denying access to the plant to off-duty employees unless they had written authorization; and recording the entry and departure of employees to and from the plant outside of regular shift change hours. The Board found that these and other duties constituted assignment to the watchmen of a monitoring function over employees of the employer and created a real potential for conflict of interest.
The facts in the instant case, in the Board's view, do not reveal a real potential for conflict of interest. Accordingly, the Board finds that the persons affected by this application are not guards within the meaning of section 11 of The Labour Relations Act.
The Board further finds that the applicant is a trade union within the meaning of section l(l)(n) of The Labour Relations Act.
As the Board noted in paragraph 2 above, the application described the bargaining unit which the applicant was seeking in the following terms:
All employees, save and except supervisors and persons above the rank of supervisor, who work as Vaultmen, Messengers, Drivers and Guards for the employer out of it's Toronto area office.
The reply filed by the employer proposed the following description of the unit which it held to be appropriate for collective bargaining purposes:
All security guards in the employ of the Respondent working in and out of Metropolitan Toronto, save and except supervisors, persons above the rank of supervisor, office and sales staff.
In the course of hearing the representations of the parties on the appropriate bargaining unit, the respondent advised the Board that the collective agreement between it and the predecessor bargaining agent described the bargaining unit as:
"All guard employees being security guards, messenger-driver guards and guards, save and except supervisors, persons above the rank of supervisor and persons regularly employed for not more than 24 hours per week.".
While the parties could not agree on how to describe the bargaining unit, they were agreed that all three of the above descriptions dealt with the same employees whom the applicant was seeking to represent. They were also agreed that, there being no part-time employees at work at any of the times material to the application, the bargaining unit should be described so as not to exclude part-time employees. Therefore, having regard to those agreements of the parties and for their representations, the Board further finds that all employees of the respondent in Metropolitan Toronto, who work at or out of its Toronto area office as vaultmen, driver-guards and messenger-guards, save and except supervisors and persons above the rank of supervisor, constitute a unit of employees of the respondent appropriate for collective bargaining.
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 April 21, 1981, the terminal date fixed for this application and the date which the Board determines, under section 92(2)0) 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.
DECISION OF BOARD MEMBER H. J. F. ADE;
Decision of Board Member H. J. F. Ade to follow.