[1981] OLRB Rep. December 1817
1713-81-R Canadian Union of Operating Engineers & General Workers, Applicant, v. The Corporation of the Town of Orangeville, Respondent
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members H. J. F. Ade and W. F. Rutherford.
APPEARANCES: M. O'Malley and K. Wagstaff for the applicant; D. Jane Forbes-Roberts and Norman Keith for the respondent.
DECISION OF THE BOARD; December 9, 1981
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The applicant seeks to be certified for a bargaining unit described as follows:
All employees of the Corporation of the Town of Orangeville employed at the Orangeville Sports Complex in Orangeville, Ontario, save and except foremen and foreladies. persons above the rank of foremen and foreladies, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.
In doing so, the applicant claims "craft status" and relies upon the provisions of section 6(3) of the Act which reads:
Any group of employees who exercise technical skills or who are members of a craft by reason of which they are distinguishable from the other employees and commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or crafts shall be deemed by the Board to be a unit appropriate for collective bargaining if the application is made by a trade union pertaining to such skills or craft, and the Board may include in such unit persons who according to established trade union practice are commonly associated in their work and bargaining with such group, but the Board shall not be required to apply this subsection where the group of employees is included in a bargaining unit represented by another bargaining agent at the time the application is made.
The respondent disputes the appropriateness of that unit, and instead puts forward a unit encompassing all of its outside employees, none of whom have ever been organized. This would include employees in the Departments of Parks and Recreation and of Public Works, as well as those in the Department referred to as the Sports Complex.
There are 8 employees working full-time in the Sports Complex. Because one of the duties of the job involves monitoring the Arena's two 75-horsepower compressors, a"B" class refrigeration ticket has always been encouraged by the employer, and more recently has been included as a requirement in advertisements for new hires. Six of the present eight employees have this ticket, and the other two are preparing to take the examination next May. Besides this compressor responsibility, the regular duties of the employees in the Complex include setting up and supervising all events in the Arena, cleaning up afterwards, ice maintenance, minor repairs on equipment, and, in the summer months, care and maintenance of the Town's parks, cutting grass, clearing rivers, and assorted maintenance chores of that variety.
Within the respondent's Parks and Recreation Department are 2 full-time park employees, with whom the Complex employees work in the summer, a concession operator, two poo1 attendants (within the Complex) and 9 "labourers", who also perform assorted maintenance duties similar to many of those performed by the Complex employees. The combined number of employees in these two departments alone is twenty-two.
Apart from the question of craft status, it appears clear to the Board that the unit sought by the applicant would not be appropriate in this case. As the Board noted, for example, in Town of Meaford, [1980] OLRB Rep. Nov. 1611:
Where an employer does business at more than one location in a municipality, the Board's general practice is to describe a separate bargaining unit for each location unless the integrated nature of the operations and/or the community of interest of employees at the different locations is such as to justify grouping the employees at the various locations into a single bargaining unit. The respondent contends, apparently on the basis of this general practice, that employees of the public works department and employees at the community centre should be included in separate bargaining units. The applicant, however, submits that the employees should be included in a single bargaining unit.
In certain situations, the Board has concluded that its general practice as set out above should not be followed since to do so would result in the creation of a number of artificially small bargaining units and an unduly fragmented bargaining structure. Accordingly, in the retail food industry the Board generally does not describe a separate bargaining unit for each store location, but rather includes employees at all of an employer's stores in a municipality within a single bargaining unit (see: Oshawa Wholesale Ltd. [1965] OLRB Rep. Feb. 584). Similarly, employees working at various locations in different municipalities for the same county or regional school Board are included in the same bargaining unit. (See: The Cochrane-Iroquois Falls Board of Education [1969] OLRB Rep. June 368.) In line with this approach, when dealing with municipalities as employers, the Board generally issues certificates for separate units of office staff and non-office (or "outside") staff on a municipal wide basis notwithstanding the fact that employees may work out of different locations. See: The Corporation of the Township of Markham [1969] OLRB Rep. Aug. 529 and The Corporation of the Township of Valley East, [1970] OLRB Rep. Jan. 1213.
In our view, the facts of this case do not warrant a departure from the Board's general approach to describing units of municipal employees. To formalize the division of the respondent's employees into two bargaining units would result in two units of semi-skilled employees, one with four employees and the other with only three. In our view, this degree of fragmentation would not be conducive to stable industrial relations and is not warranted by the facts involved. We acknowledge that this determination may result in certain short-run difficulties for the respondent in terms of organizing its affairs for collective bargaining purposes. However, we are satisfied that it will be able to overcome these difficulties. In this regard, we would note that a number of other municipalities employing many more employees than does the respondent and having much more complex organizational structures have for years bargained for all of their non-office staff within a single bargaining unit notwithstanding the fact that the employees work in a number of different departments and are spread out over a number of different locations.
The applicant's claim for craft status is based on the fact that all of the Sports Complex employees are now required to have "B" class refrigeration tickets, notwithstanding the limited extent to which this particular skill requirement forms a part of the employees' overall duties. There are, however, three conditions which an applicant must meet in order to bring itself within the provisions of section 6(3). These are:
(1) whether the employees whom the applicant claims to represent are employees who exercise technical skills or who are members of a craft by reason of which they are distinguishable from other employees;
(2) whether these employees commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or craft;
(3) whether the application is made by a trade union pertaining to such skills or craft.
- On the facts before the Board, it is questionable whether the employees covered by the application can be said to meet the requirement of condition 1. More importantly, however, there was no evidence whatever put forward by the applicant to support a claim under conditions 2 or 3. The Board discussed these requirements at length in the Dupont of Canada case, [1965] OLRB Rep. Jan. 539. There the Board stated, at page 541 ff.:
In our opinion, the evidence adduced on behalf of the applicant falls far short of proving that employees in maintenance departments of manufacturing firms such as the respondent or in manufacturing, commercial or industrial firms in general, commonly (as distinguished from what is more probably a few scattered and isolated instances of bargaining in maintenance divisions of some particular employers in certain industries) bargain separately and apart from other employees.
Counsel for the applicant relies on Telfer Paper Box Co. Ltd., [1963] OLRB Rep. Nov. 45 to support his argument that it is not a condition precedent in order to prove, within the meaning of section 6(2), that the employees commonly bargain separately and apart from other employees, to establish a history of collective bargaining in the particular industry or firm concerned. He contends that in the absence of clear language to that effect it cannot be taken to have been the intention of the Legislature, in derogation of its recognition of craft rights, to restrict and circumscribe the operation of section 6(2) to those particular industries or areas in which craft bargaining had been established at the time of the enactment of the section.
While the Board in the Telfer Paper Box Case stated that previous bargaining history by an applicant's craft in the particular industry there concerned was only one factor among others to be considered in determining the application of section 6(2), the Board in that case did not say that in the absence of such a factor it would dispense with the requirement of proof of at least a bargaining history in the particular industry by a craft union closely akin to the applicant or of some history of bargaining by the applicant or craft union akin to it in allied or similar industries. Indeed, the Board in the Telfer Paper Box Case found, and from the record this appears to have been important to the decision in that case, that the paper box industry had not always been organized on an industrial basis but that a union pertaining to a craft closely akin to the applicant in that case had previously been permitted by the Board to carve out a craft unit from an industrial unit in a paper box factory. In our opinion, while the principle enunciated in the Telfer Paper Box Case which was obviously decided on a state of facts quite distinguishable from those in the instant case may to some extent assist the applicant, it plainly does not constitute any precedent for the application of section 6(2) to the facts of this case.
As has often been the case in applications of this nature, counsel has relied heavily in his argument on the trade classifications and work done by the employees in question, together with the fact, as he argues, that they have clearly indicated their democratic wishes, by signing cards, to be separately represented by the applicant as their collective bargaining agent. As has been pointed out by the Board in previous cases, (see e.g. The Canadian Foundries & Forgings Limited Case (1961) C.C.H. Canadian Labour Law Reporter, ¶1 16,203, C.L.S. 76-753, and The Cooper & Beatty Limited Case, (1957) C.C.H. Canadian Labour Law Reporter, Transfer Binder 1955-59, ¶1 16.100, C.L.S. 76-581), these are not the only considerations for the application of the first part of section 6(2); if they were, every industrial or commercial undertaking and part thereof in which tradesmen were employed would, contrary to the intent and purpose of the section, be vulnerable to indiscriminate fragmentization into separate bargaining units.
The principles and requirements of proof of a bargaining history enunciated and applied from time to time by this Board in dealing with cases affected by the section are to be found in the following, among other cases, The Cooper & Beatty Limited Case, ibid; The Firestone Tire & Rubber Company of Canada Limited Case, ibid; The Telfer Paper Box Case, ibid; Art Wire & Iron Company Case, (1954) C.C.H. Canadian Labour Law Reporter, Transfer Binder 1949-54, ¶1 17,080, C.L.S. 76-437; Brockville Genera/Hospital, (1957) C.C.H. ibid,'¶1 16,061, C.L.S. 76-543; St. Mary's General Hospital (Kitchener), O.L.R.B. Monthly Report, February, 1963, p. 496; Kent Tile & Marble Co. Case, (1961) C.C.H. Canadian Labour Law Reporter, ¶1 16,204, C.L.S. 76-756; Canadian Foundaries & Forgings Limited Case, ibid, etc.).
On the basis of the principles which this Board has applied in the past in cases of this nature, we are compelled to find on the evidence placed before us that the applicant has failed to bring itself within the provisions of the first part of section 6(2) of the Act.
The Board accordingly finds that the applicant has not established the requirements for a "craft" unit, and that the unit sought by the applicant is not appropriate in the present case. At the very least a non-office unit including both the Sports Complex and the Parks and Recreation Department would be necessary and appropriate, and more likely including the Public Works Department as well.
Based on all of the evidence before it, the Board is satisfied that less than forty-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 November 18, 1981, the terminal date fixed for this application and the date which the Board determines, under section 103(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.
The application is therefore dismissed.