[1981] OLRB Rep. November 1574
01219-81-R Canadian Union of Operating Engineers & General Workers, Applicant, v. Cryovac Division W.R. Grace & Co. of Canada Limited, Respondent, v. Group of Employees, Objectors.
BEFORE: D. E. Franks, Vice-Chairman, and Board Members J. Wilson and H. Kobryn.
APPEARANCES: Michael D. O'Malley and Robert Sleva for the applicant; Martin Aldario, D. G. Napier and W. A. Moir for the respondent; Monika Pless and Paul Harwood for the group of employees.
DECISION OF THE BOARD; November 12, 1981
By decision dated September 28, 1981, the Board appointed a Labour Relations Officer to "inquire into and report to the Board on the list of employees within the meaning of the Labour Relations Act not covered by a subsisting collective agreement". The Labour Relations Officer has met with the parties and the parties are in agreement with respect to the number of employees not covered by a collective agreement. The parties, however, are not agreed on the description of the appropriate bargaining unit in the present case. The applicant trade union requests a bargaining unit consisting of "all employees in the Quality Control Department of Cryovac Division W. R. Grace & Co. of Canada Limited in Mississauga, save and except supervisors and those above the rank of supervisor, and those employees covered by subsisting collective agreements". The position of the respondent is that the appropriate bargaining unit in the present case should be the normal tag end unit which the Board would find appropriate in the present circumstances.
The applicant trade union is party to a collective agreement with the respondent which contains the following recognition clause:
"all employees of the company, save and except stationary engineers, foremen, persons above the rank of foreman, engineers, research and development, and quality control personnel, office staff and sales staff"
The predecessor trade union (the Printing Specialties and Paper Products Union, Local 466) had a collective agreement with the following recognition clause:
"all employees of the company, save and except stationary engineers, foremen, persons above the rank of foreman, engineers, office staff and sales staff"
The question we are faced with in the present case is whether or not the applicant trade union should be entitled to carve out from the normal tag unit the Quality Control Department as a separate unit. Based on the agreement of the parties, there are 21 such employees who would be involved in the Board's normal tag end unit, whereas the list of employees in the Quality Control Department only sets out 9 employees. In the case of an industrial establishment the bargaining unit which the Board normally finds to be appropriate is a unit of all plant or production employees. In the event that there are employees outside that unit, on a subsequent application for certification, the Board will normally require the trade union to bargain on behalf of all of the remaining plant employees in order to prevent the undue fragmentation of bargaining. This of course is referred to as a "tag end unit" and it would follow that there is only one tag end unit to a production unit. It would thus appear that subsequently the recognition provisions changed to remove from the bargaining unit, research and development and quality control personnel.
In view of the background of this case, particularly the increased exclusions to the bargaining unit, we are of the view that it is not appropriate in the present case to depart from our policy with respect to tag end units. Therefore, the applicant trade union is not entitled to a bargaining unit consisting solely of the quality control unit employees.
The Board is satisfied on the basis of all the evidence before it that less than forty-five per cent of the employees of the respondent in any bargaining unit that the Board might find to be appropriate, at the time the application was made were members of the applicant on September 11, 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.
Accordingly, this application is dismissed.