Service Employees Union, Local 204 v. K Mart Canada Limited

2494-80-R Service Employees Union, Local 204 Affiliated with A.F. of L., C.I.O., C.L.C., Applicant, v. K Mart Canada Limited, Respondent, v. Group of Employees, Objectors.

BEFORE: Kevin M. Burkett, Alternate Chairman, and Board Members O. Hodges and F. W. Murray.

DECISION OF THE BOARD; September 10, 1981

1. This is an application for certification.

2. In a decision dated March 25, 1981, the Board outlined the dispute between the parties with respect to the geographic scope of the bargaining unit and ruled that it was prepared to hear "whatever additional relevant evidence the respondent wishes to adduce" in support of its position. The respondent had advised the Board by letter dated March 20, 1981 of the evidence it wished to lead and a hearing had been scheduled for April 29, 1981. The hearing was subsequently rescheduled to July 2, 1981 on agreement of the parties. However, by letter dated June 1, 1981 counsel for the respondent advised the Board as follows:

“. . . I have now been instructed by my client not to call the evidence which I wished to call as set out in my letter to the Ontario Labour Relations Board of March 20, 1981. It is the position of the Respondent that the Labour Board should decide the issue of the appropriate geographical scope of the bargaining unit on the basis of the agreed to facts submitted by the parties at the original hearing held on March 13, 1981. Accordingly, we would ask the Ontario Labour Relations Board to cancel the hearing originally scheduled for July 2, 1981 and proceed to decide the matter as suggested."

3. The issue to be decided is whether or not the appropriate bargaining unit should be described by the Board in terms of all employees of the respondent in Metropolitan Toronto, or in terms of all employees of the respondent at its department store located in the Bayview Village Centre. The company operates four retail department stores in Metropolitan Toronto including the store located in the Bayview Village Centre. The union has organized the employees of the company at its Bayview Village location and seeks to be certified as bargaining agent for the employees of the company at that location. The respondent company, on the other hand, seeks to have the unit described in terms of all of its employees in Metropolitan Toronto.

4. The facts, as agreed between the parties, are as follows:

— The company operates four department stores within the boundaries of Metropolitan Toronto. These stores are located at 1530 Albion Road, Rexdale, Ontario M9N 1B5, 2901 Bayview Avenue, Willowdale, Ontario M2K 1 E6, 87 Ellesmere Road, Scarborough, Ontario MIR 4B7 and Bridlewood Mall, 2900 Warden Avenue, Scarborough, Ontario Ml W 2S8. It is a matter of record that there are a total of 127 full and part-time employees at its Bayview Village store who would fall within the bargaining unit.

— Each store has its own manager and personnel officer. The store manager reports to the district manager who in turn reports to a senior vice-president of store operations. A district comprises a number of regions. The Metro region, within which the Bayview Village store and the other three stores within Metropolitan Toronto are located, also includes stores in Oshawa, Newmarket, and Oakville.

— The company has a corporate personnel department whose responsibility it is to set standard personnel policies and practices for all of its stores. These policies and practices are administered at the local store.

— Rates of pay are determined at the Corporate level so that wages and benefits are essentially similar between store locations.

— Hiring is done on a store by store basis.

— The interchange of employees between store locations is insignificant.

5. The company argues in support of a municipal-wide bargaining unit. The company maintains that the practice of the Board in defining bargaining units in the retail service store industry as well as in retail food and Brewers' Warehouse outlets, as enunciated in Re Goodyear Services Center case 65 CLLC 9116,018, is to certify for all stores within a given municipality. The company refers to Fotomat, [1979] OLRB Rep. April 306; Tip Top Tailors, [1979] OLRB Rep. May 445 and S.S. Kresge Board file 0520-75-R, unreported, in further support of its contention that a municipal-wide unit description in the retail sector is appropriate. The company maintains that the effect of granting a certificate for an individual store would be to create a new kind of organization for the employer and, in addition, would serve to embroil the employees at the other locations in collective bargaining disputes which they may have no desire to become involved in. It has intimated as well that the result of single store certification might be a proliferation of bargaining units. The company distinguishes the instant case from both Ponderosa Steak House (A Division of Foodex Systems Limited), [1975] OLRB Rep. Jan. 7 and McDonald's Restaurants of Canada Limited, [1974] OLRB Rep. Oct. 755 on the grounds that the standardization between K Mart locations, where head office personnel actually work in the stores, is more significant than that found in "hamburger houses and steak spots". The company maintains that the Board must look to bargaining structures which will work and argues that the proven viability of all-store units should convince the Board to follow its standard practice with respect to retail outlets. The company points to the certification within the banking industry on a branch by branch basis as an example of a bargaining structure which has not worked. The company asks for an all-store unit description.

6. The union refers to the broad discretion given to the Board under section 6(1) of the Act to determine the appropriate bargaining unit and argues that where a bargaining unit description accords with the wishes of the employees, as put to the Board through the union, and encourages the practice of collective bargaining, in accord with the purpose of the statute, the unit should be found to be appropriate. The union cites both the McDonald's case, supra, and the Ponderosa case, supra as standing for the proposition that where these criteria are established the onus falls to the company to demonstrate that the proposed unit will not work. The union maintains that in this case the company has failed to establish, on the tests set out in the Usarco case, [1967] OLRB Rep. Sept. 526, that the four stores in Metropolitan are an integrated operation. The union maintains that on the evidence it must be found that the day to day control rests with the manager of the individual store who operates under standardized procedures. Furthermore, the union argues that it has not been established that the consequences of a single store certification are such as should cause the Board to deny the employees at the Bayview Village store certification. The union maintains that it doesn't make sense to apply the same rule to a department store chain as to a retail food chain and cites the Canada Trustco case, [1977] OLRB Rep. June 330, as an example of a retail service where the Board disregarded the approach followed in respect of retail food stores. In considering Goodyear Service Centre, supra, relied upon by the company, the union asks the Board to be mindful of the fact that the union had organized at all of the locations of the company in that case and was asking for the municipal-wide certificate. The union maintains that the issue before the Board in this case is not addressed in Fotomat, supra; Tip Top Tailor, supra or the S. S. Kresge case, supra, so that these cases do not assist. The union asks the Board to find that the single store unit is the appropriate unit in this case.

7. The Board is given a broad discretion under section 6(1) of the Act to determine the appropriate bargaining unit in all certification applications brought before it. The Board's determination in this regard establishes the constituency within which a trade union must demonstrate majority support in order to become certified and, in addition, sets the initial parameters within which bargaining will take place if certification is granted. The establishment of the constituency is of direct concern to the parties at the time of certification in that this decision is often determinative of whether a union has support within the bargaining unit sufficient to be certified. Trade unions generally find it easier to organize a homogeneous, centralized group of employees and, therefore, will often argue for a narrowly defined unit. Employers, recognizing that a union will have greater difficulty organizing on a wider basis, and recognizing further that it may be administratively easier to bargain on a broader basis, often take the opposite tack. (See re McDonald's Restaurants of Canada Limited, [1974] OLRB Rep. Oct 755, Ponderosa Steak House (A Division of Foodex Systems Limited), [1975] OLRB Rep. Jan. 7, Commonwealth Holiday Inns of Canada Ltd., [1970] OLRB Rep. Oct. 749 and Canada Trustco Mortgage Company, [1977] OLRB Rep. June 330). However, where the union has sufficient support to warrant certification for a broader constituency it will argue for a broader unit in the hope of augmenting the strength from which it will seek to bargain. In these circumstances employers will be predisposed to seek a narrowing of the union's bargaining rights. (See, Goodyear Service Stores 65 CLLC 9116,018, Cybermedix Ltd., [1974] OLRB Rep. Aug. 743 and Adams Furniture Co. Ltd., [1975] OLRB Rep. June 491). One case is especially illustrative of the pragmatic considerations which govern the parties in their approach to bargaining unit determinations. In York Steel Construction Limited, [1980] OLRB Rep. Feb. 293, the union, which was seeking a pre-hearing vote, asked for a single plant unit while the respondent asked for a unit encompassing both its plants within the municipality. Before entertaining submissions with respect to the bargaining unit the Board conducted the pre-hearing vote but segregated the ballots from each plant. If the union failed to win a sufficient majority in the larger plant the application would fail and so the ballots cast by employees at the larger plant were counted. When it became known that the ballots cast by these employees gave the union a sufficiently wide majority that it was assured of obtaining bargaining rights for both plants, regardless of how the employees at the smaller plant voted, the parties reversed their position's with respect to the scope of the appropriate bargaining unit.

8. Although the Board must be sensitive to the impact of its bargaining unit determinations upon the ability of trade union's to organize, there are other factors which must also be taken into account. The objectives of the statute relate not only to the promotion of collective bargaining as a means of determining terms and conditions of employment, but also to a recognition of the principle of individual freedom of choice, and to the creation and maintenance of sound and viable bargaining structures. In determining the appropriate bargaining unit the Board does not give effect to one of these aims to the exclusion of the others. Rather, the task which falls to the Board in the exercise of its discretion under section 6(1) of the Act requires a balancing of these statutory objectives in the circumstances of each case. The Board practice of circumscribing bargaining rights by reference to the municipal boundary, segregating plant and office employees and requiring the inclusion of all office or all production employees within a single bargaining unit reflects this balancing.

9. Nowhere is the balancing of the statutory objectives more evident than in the Board's normal practice of circumscribing the geographic scope of bargaining rights by reference to the municipal boundary within which the employer operates. Where there is only one location within a municipality the board will define the unit in terms of all employees within the municipality. Under a regime of municipal-wide certification bargaining rights follow an expansion or relocation of the business within the municipality; but not beyond. The freedom of choice of employees to make the initial selection of a bargaining agent at future sites within the municipality is sacrificed in favour of the stability of the bargaining rights conferred by the certificate. However, these rights do not extent beyond the municipality in deference to the right of employees at new locations outside the municipality to select a bargaining agent of their choice. The use of the municipal boundary represents an attempt by the Board to strike a rough balance between stable bargaining structures and individual freedom of choice.

10. Where the employer operates at two or more locations within a municipality at the time of certification a number of other considerations come to the fore which must be taken into account by the Board. Because the operations are in existence the Board is able to make a first hand assessment of the community of interest between the employees at the two locations. The factors to be considered in determining if a community of interest exist have been set out in the leading of Usarco case [1967] OLRB Rep. Sept. 525. In making this determination the Board looks to:

(A) NATURE OF WORK PERFORMED In the instant case, the employees at both locations perform the same type of work involving similar operations, even though different metals are processed at the two locations;

(B) CONDITIONS OF EMPLOYMENT — Similar working conditions and the same fringe benefits prevail at both locations.

(C) SKILLS OFEMPLO YEES —The skills of the employees as a group are similar at both locations;

(D) ADMINISTRATION — The company administers both phases of its operations jointly;

(E) GEOGRAPIC CIRCUMSTANCES The two plants in question are 2¼ miles apart in the same municipality;

(F) FUNCTIONAL COHERENCE AND INTERDEPENDENCE The evidence discloses about ten instances of regular temporary interchange among employees who intermingle with employees of the other plants. In addition, although of less importance, a substantial part of the production is at one plant and completed at the other.

11. Three other factors are referred to in the Usarco decision as separate and distinct from community of interest. These are, centralization of managerial authority, the economic advantages to the company of one unit versus another, and the source of work. These factors relate to the nature of the employer's organization and evidence a recognition by the Board that viable bargaining structures reflect the reality of the employer's organization. There are other important considerations which enter the picture as well where the employer operates from two or more locations within the same municipality. Where it is raised as an issue the Board must consider the effect of a broader based unit upon employee access to collective bargaining within the industry. In addition, the Board must recognize the wishes of the employees affected by the particular application to bargain collectively. This latter consideration requires the Board to take into account the pattern or organization in the case before it and to balance the pattern of organization against the disruptive effects of excessive fragmentation. The potential for fragmentation takes on an added weight where the Tribunal lacks the authority to restructure existing bargaining units at some future date. The nature of the deliberations which are undertaken by the Board in determining the appropriate bargaining unit where the employer operates from two or more locations within the municipality are summarized in the following passage from the Board's Ponderosa Steakhouse decision:

"The determination of what constitutes a viable collective bargaining structure requires the Board to consider matters of industrial relations policy, such as community of interest and fragmentation of employees. Community of interest may be a requisite for viable collective bargaining, since the representation of disparate employee groups by one bargaining agent may put impossible strains upon it as it performs its role in the bargaining process. At the other extreme, a too narrow definition of community of interest may create undue fragmentation of employees, leading to a weak employee presence at the bargaining table, or the possibility of jurisdictional disputes among competing bargaining groups. It should be observed, however, that the Act does not create any presumption in favour of the most comprehensive unit of employees, even though these employees may have a community of interest. Section 1(l)(b) of the Act states that: "'bargaining unit' means a unit of employees appropriate for collective bargaining, whether it is an employer unit or a plant unit or a subdivision of either of them".

This provision makes it quite clear that the determination of appropriateness does not always lead to the conclusion that the most comprehensive unit is also the most appropriate unit. Consideration of the wishes of employees, and of industrial relations policy, may very well dictate that a smaller bargaining unit is the appropriate unit. This point was clearly made in Board of Education for the City of Toronto case, supra.

12. The Board is called upon to shape bargaining structures over a wide segment of both the manufacturing and service industry operating within the province, including hospitals, universities, municipalities and retail establishments. Each of these sectors has presented its own special problems vis-a-vis bargaining unit determination. In dealing with retail stores the single location unit versus a municipal-wide unit, where the employer operates at more than one location within the municipality, has been the major bargaining unit issue to be addressed. The issue was first dealt with in respect of retail food stores where the Board determined as a general matter that the appropriate unit should encompass "all employees at its stores" in the municipality. (See Oshawa Wholesale, [1965] OLRB Rep. Feb. 584). The Board's practice in this regard appears to have successfully balanced the statutory objectives referred to earlier in that the retail food industry is highly organized and bargaining is conducted within structures which have proven to be effective.

13. The Board's practice of certifying for all stores within the municipality in retail food stores was applied by the Board to retail service stores in Goodyear Service Stores, supra where the Board, over the objection of the employer, certified the union as bargaining agent for eight service stores within the municipality of Metropolitan Toronto. The Board held in that case that,

“. . . 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. Such a situation where some employees might be represented by one trade union, others by another and others not at all would be invidious from the employer and trade union points of view as well as from the points of view of most individual employees.

The Board, therefore, considers that the policy it has followed in cases of retail food markets, variety chain stores and brewers' warehousing stores, and which has frequently been applied in other cases involving retail or service stores, should be adopted as its general policy in cases of retail or service stores where the interests of employees throughout a group of stores can be said to be essentially similar as in the present case.

The Board found that all employees at all the respondent's service stores within the municipality with certain named exclusions, to be a unit appropriate for collective bargaining. For purposes of our analysis it is important to note that the unit determination in the Goodyear case recognized the pattern of bargaining and did not in anyway impede the access to collective bargaining of the employees in any one store. Although commenting that "this is not a relevant factor in determining the bargaining unit" the Board noted that "the applicant has members in each store and in each case but one, this membership constitutes a majority of the employees in the store". Furthermore, no mention is made of the interchange, or lack of interchange, of employees between stores in the Goodyear decision; a factor of major significance in determining if a community of interest exists between employees at separate locations. The Goodyear decision, supra, is cited with approval in Cybermedix Limited, [1979] OLRB Rep. Aug. 743 where the Board certified the union as bargaining agent for the employees of the company at all seventeen of its locations within Metropolitan Toronto. The employer in that case operated a medical testing laboratory service. In the Cybermedix case, as in Goodyear, the union had organized at all locations and notwithstanding the fact that "there may be no substantial interchange of employees between locations and the functions of hiring and supervision are confined within the locations", the municipal-wide unit was found to be appropriate.

14. In a number of recent retail cases the Board has made it clear that there is no presumption in favour of the most comprehensive unit and has declined to follow the policy enunciated in the Goodyear case, supra. The circumstances under which the Board has done so illustrate the delicate balancing which must be done by the Board under section 6(1) of the Act. In these cases the Board found a single location unit to be appropriate where

(1) the company operated from a number of retail locations within the municipality,

(2) local management had control over day to day employment relations,

(3) there was little or no interchange of employees between locations,

(4) the union (in contrast to Goodyear, supra, and Cybermedix, supra) had organized on a one location basis, and

(5) a broader based structure might significantly impede employee access to collective bargaining.

(See Canada Trustco Mortgage Company, [1977] OLRB Rep. June 330; McDonald's Restaurant of Canada Limited, [1974] OLRB Rep. Oct. 755; Ponderosa Steak House, [1974] OLRB Rep. Nov. 7 and Commonwealth Holiday Inns of Canada Limited, [1970] OLRB Rep. Oct. 749). The balance which has been struck by the Board in the circumstances of these cases has been aptly described in the following passage from the Canada Trustco decision, supra,

"In determining the appropriate bargaining unit the Board cannot disregard the labour relations realities before it. When a group of employees signify that they wish to exercise their right to bargain collectively, and that grouping is seen by the Board as sufficiently conforming to the Board's criteria of appropriateness as a bargaining unit, this Board should not require bargaining in a more comprehensive

unit if to do so would effectively impede the access of that group of employees to any collective bargaining at all."

15. The Canada Labour Relations Board came to essentially the same conclusion on a review of the same considerations in Service Office and Retail Workers Union of Canada and Canadian Imperial Bank of Commerce, [1977] 2 Can. LRBR 99. In that case the Canada Board reversed a longstanding practice and found that a single branch unit of bank employees was both viable and best achieved the purposes of the Code. In Woodward Stores (Vancouver) Ltd. [1975] 1 Can. LRBR 114 the British Columbia Labour Relations Board, in certifying a unit of bakery employees at three department stores, observed that "it remains a fact that if the Board were to focus on the long-range enquiry of how collective bargaining should best be carried out in the department store industry, it will likely achieve the short run result that collective bargaining will not be conducted at all". The British Columbia Board, while putting the parties on notice that it would use its powers to restructure existing bargaining units if a proliferation of small units grew up in the department store industry, opted in favour of facilitating the attainment of collective bargaining for those who chose it in the short term.

16. The National Labour Relations Board, which has had extensive experience with the certification of retail chain operations, adheres to a policy under which a single store in a retail chain is presumptively appropriate for bargaining. Absent a degree of functional integration sufficient to destroy its separate identity the Board will not deny separate groups of employees possessing a community of interest the right to express their wishes concerning collective representation. (See Haag Drug Co. 67 LRRM 1289; Big N Dept. Store 81 LRRM 1361; Dayton Hudson Corp. 94 LRRM 1207; Erickson Birron Co. 94 LRRM 1048 and Renzehis Market Inc. 99 LRRM 1189).

17. The Board has reviewed both Fotomat, supra, and Tip Top Tailors, supra, relied upon by the respondent. The primary issue in both cases is different than that raised in the instant case. In both cases the Board was asked to depart from its standard practice of circumscribing bargaining rights by reference to the municipal boundary and to certify on a broader basis. While the Board refused, and certified for all stores within single municipalities, in both cases, its reasons for doing so lend support to the position of the applicant in this case. In both these cases the Board gave favourable consideration to the pattern of union organizing, as the applicant asks us to do in this case. In both cases, as in the Goodyear and Cybermedix cases the union organized on a municipal-wide basis. Furthermore, in both cases the Board took into account, as the applicant asks us to take into account in this case, the adverse effect upon employee access to collective bargaining of unit descriptions extending beyond a single municipality. The Board commented in its Fotomat decision that any drawbacks associated with the possibility of the respondent having to deal with a multiplicity of bargaining units "are more than outweighed by the restrictive effect that a single bargaining unit would have on the right of the respondent's employees to decide whether or not they wish to be represented for collective bargaining purposes". Similarly in its Tip Top Tailors decision the Board found that "the extended bargaining area argued for by the respondent raises an insurmountable obstacle to the rights of any of the employees to obtain union representation."

18. As noted earlier the Board must balance a number of statutory objectives in the exercise of its discretion under section 6(1) of the Act to determine which is the appropriate bargaining unit in any given case. It is clear from a review of the authorities that the blanket policy enunciated in the Goodyear decision, supra, with respect to the geographic scope of bargaining units, where an employer conducts essentially similar retail or service store operations at a number of locations in a given geographical area, has given way to a series of considerations which must be made in each case. Viability for purposes of collective bargaining, on an application of community of interest principles and a consideration of the effect of fragmentation, remains a prerequisite for a finding of appropriateness. However, the Board recognizes that there may be more than one appropriate unit in any given case. Where there is more than one appropriate unit the Board will attempt to accommodate the desire of the employees on whose behalf the application has been filed to bargain collectively. It follows that in doing so the Board takes into account the pattern or organization. Furthermore, in making its determination, the Board will be mindful of the precedential impact of its decision. Where, as in the department store sector, collective bargaining has not taken a foothold, the Board will lean towards the bargaining structure which best facilitates organization.

19. What then is the appropriate unit in this case? If the union had organized across all stores within Metropolitan Toronto and if we were dealing with a sector of the retail industry with a history of multi-store bargaining units then, given the common personnel policies and practices and the standardized terms and conditions of employment, we would have been hard pressed not to certify on a municipal-wide basis. However, in this case the union has organized on a single store basis within a sector of the retail industry which has heretofore remained essentially unorganized. In these circumstances we must determine if the single store unit is also appropriate for purposes of collective bargaining and, if it is, find it to be the appropriate unit under section 6(1) of the Act.

20. Notwithstanding the common personnel policies and the standardized terms and conditions of employment we are satisfied on the evidence before us that control over the day to day employment relationship, including the hiring, assigning, and supervising of employees, is maintained at the local level. When reference is had to this fact, to the distance between stores and to the absence of any significant interchange of employees between stores we are further satisfied that the employees at the Bayview Village store enjoy a separate community of interest. We are not satisfied that a single store unit would cause serious disruption to the employer's organization as it relates to the management of its human resources. It is to be noted that regardless of whether the Board determines one store or all stores within Metropolitan Toronto to be the appropriate unit, the structure of collective bargaining could not be made to coincide with the employer's organization. The company has grouped its Metropolitan Toronto stores as well as its stores in Oshawa, Oakville and Newmarket into a single region; its smallest organizational unit beyond that of the single store. The size of the Bayview Village store, as evidenced by the number of employees who work there, when considered in conjunction with their separate community of interest, convinces us that the single store unit would be a stable and viable unit for purposes of collective bargaining. The number of employees at the single store operation in this case is to be contrasted with the two-person kiosks in Fotomat, or for that matter, with the number of employees who normally work at a fast food outlet or at a branch of a chartered bank or trust company. We find the respondent's submission that a single store unit should be avoided because it will result in bargaining disruptions which will embroil those employed at its other stores against their wishes, to be without merit. Having regard to the foregoing we are satisfied that the single store unit is an appropriate unit within which to conduct collective bargaining.

21. Having regard to all of the foregoing we find all employees of K-Mart Canada Limited regularly employed at its Bayview Village Shopping Centre store in the Municipality of Metropolitan Toronto, save and except department managers, persons above the rank of department manager, management trainees, pharmacists, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period to be an appropriate unit for collective bargaining. This unit shall hereinafter be referred to as unit #1.

22. The Board also finds that all persons of K Mart Canada Limited regularly employed at its Bayview Village Shopping Centre store in the Municipality of Metropolitan Toronto for not more than 24 hours per week and students employed during the school vacation period to be a unit of employees appropriate for collective bargaining. This unit is hereinafter referred to as unit #2.

23. 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 bargaining unit #1 and in bargaining unit #2 at the time the application was made, were members of the applicant on March 2, 1981, the terminal date fixed for this application and the date which the Board determines, under section 92(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.

24. A statement of desire in opposition to this application was filed in this case. The statement bears the signatures of some twenty-five persons who purport to be employees of the respondent. However, only five of the signatures appearing on the statement in opposition to the application coincide with the signatures of persons who also signed membership cards. There are 55 employees in unit #1. 35 of these employees signed membership cards in support of the applicant and only two of these later signed the statement in opposition to the union. In these circumstances we are not prepared to exercise our discretion under section 7(2) of the Act and direct the taking of a representation vote. There are 72 employees in unit #2. 54 of these employees signed into membership in the applicant union. Only 3 of those who had signed into membership later signed the statement in opposition. As with unit #1, in these circumstances we are not prepared to exercise our discretion under section 7(2) of the Act and direct the taking of a representation vote among the employees in unit #2.

25. A certificate will issue to the applicant with respect to bargaining unit #1 and bargaining unit #2.