Labourers' International Union of North America, Local 183 v. Kaneff Properties Limited, 1981 CanLII 925

Labourers' International Union of North America, Local 183 v. Kaneff Properties Limited

File No.: 0479-81-R Date: July 2, 1981

Before: R. D. Howe, Vice-Chairman, and Board Members J. Wilson and C. A. Ballentine.

Appearances: L. Richmond, T. Spada and J. Phillips for the applicant; D. Jane Forbes-Roberts and Gabriella C. Favero for the respondent.

Decision of the Board

1. This is an application for certification in which the parties reached agreement with respect to all matters in dispute between them and were prepared to waive a formal hearing before the Board. However, in view of the description of the bargaining unit to which the parties had agreed, the Board held a hearing in the matter and called upon counsel to address the Board with respect to the appropriateness of the agreed upon bargaining unit.

2. The Board finds that the applicant is a trade union within the meaning of section 1(l)(n) of The Labour Relations Act.

3. Counsel advised the Board that the parties had agreed upon the following bargaining unit description:

"All employees of the respondent engaged in cleaning at 2211 Sherobee Road, Mississauga, Ontario, including resident superintendents, save and except resident managers, persons above the rank of resident manager, and office and clerical staff."

In the recent case of Modern Building Cleaning a Division of Dustbane Enterprises Limited, Board File No. 2360-80-R, dated April 14, 1981, unreported, the Board, in accepting a somewhat similar bargaining unit description on the agreement of the parties, expressed concern over the restrictive nature of the description and expressed doubt that such fragmentation would be accepted in future cases. At paragraph 3 of that decision, the Board stated:

"Having regard to the agreement of the parties, the Board further finds that all employees of the respondent at the Riverside Hospital in Ottawa engaged in cleaning services, save and except foremen and foreladies, persons above the rank of foreman and forelady, office, clerical and sales staff, constitutes a unit of employees of the respondent appropriate for collective bargaining. The Board hereby notes its concern, however, over the restrictive designation of employees 'engaged in cleaning services', and expresses its doubt that such fragmentation will be accepted, even on the agreement of the parties, in future cases.

4. The Board does not generally consider bargaining units consisting of particular classification or departments to be appropriate. The rationale for this approach is set forth as follows in The Corporation of the City of Barrie, [1 974] OLRB Rep. Nov. 813, at paragraph 8:

c'... bargaining units consisting of particular classifications or depart­ments are not generally considered by the Board to be appropriate unless, of course, they constitute the extent of the employer's work force and even then the description of the bargaining unit would not refer to the classification(s) or department(s) but would be in terms of 'all employees'; (see Board of Education for the City of Toronto [1965] OLRB Rep. 125 (May); International Harvestor Co. of Canada Ltd. [1962] OLRB Rep. 372 (Dec.); and Rainee Manufacturing Products Ltd. [1968] OLRB Rep. 259) (June). Were the Board to act otherwise, the working force of an employer might become fragmented into a number of bargaining units and this in turn could lead to jurisdictional disputes between bargaining units, more numerous negotiations and, therefore, potentially more industrial conflict. In other words, the Board believes that the undue fragmentation of bargaining units is likely to contribute to industrial [in] stability and therefore it has refused to find such isolated groups of employees as constituting units appropriate for collective bargaining; (see Corp. of The Township of Markham [1969] OLRB Rep. 592; and Tamco Limited, Board File No. 6347-74-R)."

5. In support of his contention that the Board should accept the agreement of the parties in this matter, counsel noted that there is a history of bargaining between the parties to this application. He referred the Board to Kaneff Properties Limited, [1978] OLRB Rep. May 431, in which the Board, in a case involving the same parties as the instant case, dealt with the issue of the appropriateness of the bargaining unit confined to cleaning staff at an apartment building located at 2170 Sherobee Road, Mississauga, 'just down the street" from the building at which the employees affected by the instant application perform their cleaning duties. In discussing the issue of "whether the bargaining unit should include painters and maintenance personnel, as well as cleaning staff employed in the ... apartment building", the Board stated:

"6. We turn now to the issue of the scope of the bargaining unit as it relates to the maintenance and painters employed by the respondent. In this regard it must be borne in mind that the Board is called upon to determine an appropriate unit of employees for collective bargaining, and not to enunciate what might be the ideal bargaining unit in the abstract, (The Board of Education for the City of Toronto [1970] OLRB Rep. July 430) and that, when employees in a grouping that is suitable for collective bargaining indicate their willingness to be represented by a given bargaining agent, they should not be effectively denied access to their rights under The Labour Relations Act merely because alternative and more comprehensive delineations of employees are possible (Canada Trustco Mortgage Company [1977] OLRB Rep. June 330).

7. According to the criteria enunciated in the Usarco case [1967] 0 LR B Rep. Sept. 526, the cleaning staff are an appropriate unit for collective bargaining apart from the maintenance staff. The nature of the work performed by each group is different. Different skills are employed and there is little functional interdependence between cleaners and maintenance staff. There is, moreover, no interchange of employees from one function to the other. A final and telling factor is the geographic separation of the two groupings. The cleaning staff spend all of their time in the building at 2170 Shereobee Road. The maintenance staff, on the other hand, divide their working time in varying degrees among a number of apartment buildings operated by the respondent. A rational collective bargaining structure might, therefore, contemplate their inclusion in either an all-employee unit that would include a municipality-wide area or an all-maintenance employee unit of the same geographic scope. It would not serve the interests of sound collective bargaining to have these full-time employees of the respondent treated as either full-time or part-time employees in the bargaining unit of cleaning staff at 2170 Sherobee Road, depending on their job assignments and physical movement, as suggested by the respondent.

8. The Board therefore finds that all employees of the respondent engaged in cleaning at 2170 Sherobee Road, Mississauga, including resident superintendents, save and except property managers, persons above the rank of property managers, office and clerical staff, constitute a unit of employees appropriate for collective bargaining."

9. Counsel advised the Board that the certificate granted in that decision had given rise to a viable collective bargaining relationship in that the parties had entered into a collective agreement with a recognition clause which paralleled the bargaining unit description contained in the Board's decision. Counsel also indicated that there have been seven other certificates granted to the applicant by the Board for the type of bargaining unit description to which the parties have agreed in the instant case (see, for example, Armel Management, Board File No. 1823-80-R, dated February 10, 1981, unreported; Eto Gourmet Limited, Board File No. 2158-80-R, dated February 10, 1981, unreported; Metro International Inc., Board File No. 2159-80-R, dated February 10, 1981, unreported; Allport Investments Limited, Board File No. 0408-80-R, dated July 17, 1980, unreported; and Atlantis-Dellpark Towers, Board File No. 0434-77-R, dated October 17, 1977, unreported). He further advised the Board that each of those seven certificates has resulted in a viable collective bargaining relationship. (The Board has also granted to the applicant, on the agreement of the parties, a number of certificates confined to "employees engaged in cleaning and maintenance" at specified municipal addresses: see, for example, Rank City Wall Canada Limited. Board File No. 2736-80-R, dated April14, 1981, unreported; Treal Maintenance, Board File No.2161-80-R, dated February 9, 1981, unreported; York Condominium Corporation #141, Board File No. 2065-80-R, dated January 19, 1981, unreported; and York Condominium Number 64, Board File No. 0005-77-R, dated October, 1977, unreported.)

10. It appears from the submissions of the parties that there are approximately fifty employers involved in the industry to which this case pertains, namely, private sector property management of apartment buildings and condominiums. Many of those employers have several locations covered by collective agreements. Nearly 100 locations are covered by collective agreements in the "property management" field. Approximately one half of the employers belong to an employers' association called The Property Management Services Organization ("P.M.S.O."). The applicant and P.M.S.O. entered into a collective agreement which continued in force from December 1, 1975 to November 39, 1980. Following extensive negotiations, a second collective agreement was entered into in April of 1981. Counsel advised the Board that the rates in the P. M.S.O. agreement "basically become the standard rates in the industry". However, in addition to the P.M.S.O. collective agreement, the applicant has entered into separate collective agreements with a number of employers who do not belong to P.M.S.O. Although the P.M.S.O. collective agreement serves as a model for those other collective agreements, their provisions vary to suit the disparate work practices and organizational structures of the various employers. Of the 800 people employed in the industry who are covered by collective agreements, approximately 400 are under the P.M.S.O. collective agreement.

11. Counsel stated that the applicant is the only trade union in this particular field. He stated that the organization of this industry has been in the process of developing for six years. He argued that the viability of the bargaining units for which certificates have been granted is demonstrated by the success which the applicant has achieved in negotiating collective agreements.

12. Counsel sought to distinguish the Modern Building Cleaning case, supra, on the ground that it related to cleaning staff at a hospital. It was his contention that concerns about undue fragmentation that are quite justifiable in the context of a large public institution such as a hospital with hundreds or thousands of employees who exercise a vast array of job skills and functions, are not of similar concern in private sector property management of apartment buildings and condominiums where employers, such as the respondent in the present case, generally employ only a few persons in each separate workplace.

13. Counsel for the respondent advised the Board that the only persons employed by the respondent at the building in question in addition to the three cleaners named in the list of employees filed by the respondent, are the resident manager and a person who relieves the resident manager. As in the case of the building at 2170 Sherobee Road (for which a certificate was granted by the Board in May of 1978 in the aforementioned decision), maintenance is performed by a "roving crew" who divide their working time in varying degrees among a number of buildings managed by the respondent in accordance with the varying requirements which exist from time to time. Landscaping work is contracted out and there has never been a lifeguard employed at the premises in question.

14. Having regard to all of the circumstances, the Board is of the view that it should accept the agreement of the parties with respect to the bargaining unit in the present case. The parties have placed reasonable reliance upon the Board's previous decision (Kane/f Properties Limited, supra) in which it found to be appropriate, for a workplace located nearby the workplace affected by this application and substantially similar to it in all material respects, a bargaining unit which is virtually identical to the bargaining unit to which the parties have agreed in the instant case. Moreover, unlike the hospital industry in which potential and actual fragmentation created a distinct need for bargaining unit descriptions which would avoid a multiplicity of bargaining units (see, for example, Stratford General Hospital, [1976] OLRB Rep. Sept 459), there is no evidence that any such fragmentation has occurred in the "property management" industry. The information before the Board indicates that fragmentation has not occurred and that the "cleaning" and "cleaning and maintenance" certificates which the Board has granted to the applicant have resulted in viable collective bargaining relationships. Thus, the Board is of the view that it is appropriate for it to continue to accept such agreements with respect to bargaining units in this industry. (However, in the absence of such agreement, if cleaners and maintenance employees employed by an employer divide their time among several buildings in a municipality, the Board may conclude that cleaning staff based at only one or two of those buildings do not constitute an appropriate bargaining unit; see, for example, Zolty Holdings Limited, Board File No. 0030-81-R, dated June 24, 1981, as yet unreported, in which the Board found that the appropriate unit should include all employees of the employer engaged in cleaning and maintenance at the employer's buildings in Metropolitan Toronto.)

15. For the foregoing reasons, the Board, having regard to the agreement of the parties, finds that all employees of the respondent engaged in cleaning at 2211 Sherobee Road, Mississauga, Ontario, including resident superintendents, save and except resident managers, persons above the rank of resident manager, and office and clerical staff, constitute a unit of employees of the respondent appropriate for collective bargaining.

16. A certificate will issue to the applicant.