Canadian Union of Operating Engineers and General Workers v. Blue Line Taxi Co. Limited, 1982 CanLII 1074

[1982] OLRB Rep. January 1

2007-81-R Canadian Union of Operating Engineers and General Workers, Applicant, v. Blue Line Taxi Co. Limited, Respondent

BEFORE: R. D. Howe, Vice-Chairman and Board Members J. D. Bell and O. Hodges.

DECISION OF THE BOARD; January 13, 1982

1. This is an application for certification.

2. The applicant has requested that a pre-hearing representation vote be taken.

3. With respect to the voting constituency and bargaining unit description, the applicant, which initially requested a unit consisting of all bus drivers employed by the respondent in Ottawa, Ontario, modified its request at the pre-hearing vote meeting so as to propose the following voting constituencies and bargaining units:

"All bus drivers of the respondent in the City of Ottawa, save and except supervisors persons above the rank of supervisor, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period;

All bus drivers of the respondent regularly employed for not more than 24 hours per week and students employed during the school vacation period in the City of Ottawa, save and except supervisors and persons above the rank of supervisor.

The respondent, which had requested the exclusion of part-time employees and students, agreed that if there were to be two bargaining units, the above descriptions would be appropriate. In accordance with its normal policy, the Board will place persons regularly employed for not more than 24 hours per week and students employed during the school vacation period, in a unit separate from other employees. However, the Board is somewhat concerned about the restrictive bargaining unit descriptions, confined to "bus drivers", to which the parties have agreed. As stated by the Board in Kaneff Properties Limited, [1981] OLRB Rep. June 730, at para. 4:

"The Board does not generally consider bargaining units consisting of particular classifications or departments to be appropriate. The rationale for this approach is set forth as follows in The Corporation of the City of Barrie, [1974] OLRB Rep. Nov. 813, at paragraph 8:

.... 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 Harvester 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. Information provided to the Board Officer at the pre-hearing vote meeting indicates that the remaining groups of employees employed by the respondent are office, clerical and technical staff; dispatchers, telephone operators and shift supervisors; single-plate owners and single-plate lessees; taxi and limousine drivers; and garage, gas bar and car wash employees. It appears that the respondent voluntarily recognized the applicant on December 10, 1981 as bargaining agent for its "single-plate owners and single-plate lessees". By decision dated January II, 1982 in File No. 1864-81 -R, the Board certified the applicant as bargaining agent for the following bargaining unit:

"All employees of the respondent [Blue Line Taxi Co. Limited] in Ottawa, Ontario, employed as dispatchers, telephone operators and shift supervisors, save and except operations manager and persons above the rank of operations manager, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period".

In that application, by which the present applicant displaced the Ontario Taxi Association Local 1688 C.L.C. ("Local 1688") the Board, in accordance with its normal practice in dis­placement applications, accepted the agreement of the parties with respect to the (revised) bargaining unit description upon being assured by the three parties to that application that the same employees were covered by that revised description as were covered by the bargaining unit description contained in the collective agreement (that expired on December 31, 1981) between the respondent and Local 1688 (namely, "all dispatchers and dispatch office telephone operators of Blue Line Taxi Company Limited within the meaning of the Labour Relations Act as presently in force in the province of Ontario"); see the Board's decision dated December 14, 1981 in that matter (File No. 1864-81 -R). The Board also noted in that decision (dated December 14, 1981) that the (revised) bargaining unit description to which the parties had agreed was identical to the bargaining unit found to be appropriate by the Board in its decision dated August II, 1980 in File No. 061 1-80-R. In that decision concerning an application for certification by Local 1688, the Board stated:

"4. In view of the disagreement between the parties as to the appropriate bargaining unit, the Board appointed a Labour Relations Officer to meet with the parties. At that meeting the parties reached the following Agreement:

Agreement of the Parties

In the above matters the parties hereby agree to resolve their differences regarding the bargaining unit descriptions in the following manner:

1. All employees of the Respondent in Ottawa, Ontario employed as dispatchers, telephone operators, and shift supervisors, save and except operations manager and persons above the rank of operations manager, persons regularly employed for not more than 24 hours/week, and students employed during the school vacation period. (Clarity Note: It is agreed that the classification of airport dispatcher! supervisor is an exclusion from the bargaining unit by reason of managerial function (section 1 (3)(b)).

2. All office, clerical and technical employees of the Respondent in Ottawa Ontario, save and except department heads and persons above the rank of department head, persons regularly employed for not more than 24 hours/week, and students employed during the school vacation period.

3. All employees of the Respondent in Ottawa, Ontario employed as bus drivers, maintenance and mechanical staff, gas bar attendants, save and except the garage manager and those above the rank of garage manager, persons regularly employed for not more than 24 hours/week, and students employed during the school vacation period.

4. By agreement of the parties, the schedules for Board File

061 1-80-R have been amended as follows:

B. McKay (#7 on B) has been deleted from Schedule B and added to Schedule A.

5. By further agreement of the parties, the Applicant hereby requests leave of the Board to withdraw its application for certification (Board File 0659-80-R) without prejudice or penalty.

6. The parties further agree to request the Board to determine the membership evidence in support of the application for certification in Board File 061 l-80-R and make a decision in this matter. The bargaining unit in this application is given in item I above.

7. In view of the above understanding, the parties hereby waive formal examination and report by a Labour Relations Officer.

Dated at Ottawa, this 29th day of July, 1980.

"Jack McDowell"

"Tom Christou" "Wayne French"

For the Applicant For the Respondent

5. Having regard to the agreement of the parties the Board finds that all employees of the respondent in Ottawa, Ontario employed as dispatchers, telephone operators, and shift supervisors, save and except operations managers and persons above the rank of operations manager, persons regularly employed for not more than 24 hours/week, and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining."

The Board's acceptance of the bargaining unit agreed upon by Local 1688 and the respondent in that case reflects a recognition by the Board that in some circumstances the parties to applications that involve complex issues pertaining to bargaining unit descriptions may be in the best position to fashion practicable bargaining unit descriptions suited to the unique operations of a particular employer. Although the bargaining unit descriptions to which the parties have agreed in the present case are somewhat more restrictive than the description accepted by the Board in File No. 061 1-80-R, having regard to all of the circumstances, including the respondent's voluntary recognition of the applicant as bargaining agent for its "single-plate owners and single-plate lessees" and the reliance factor that may have been created by the Board's acceptance of the agreement of the parties in File No. 061 l-80-R, the Board will accept the agreement of the parties with respect to the voting constituency and bargaining unit descriptions in the circumstances of the present case.

6. It appears to the Board on an examination of the records of the applicant and the records of the respondent that not less than thirty-five per cent of the employees of the respondent in each of the voting constituencies hereinafter described were members of the applicant at the time the application was made.

7. Having regard to the agreement of the parties, the Board directs that pre-hearing representation votes be taken of the employees of the respondent in each of the following voting constituencies:

"Voting Constituency #1

All bus drivers of the respondent in the City of Ottawa, save and except supervisors and persons above the rank of supervisor, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period.

Voting Constituency 42

All bus drivers of the respondent regularly employed for not more than 24 hours per week and students employed during the school vacation period in the City of Ottawa, save and except supervisors and persons above the rank of supervisor.

8. All employees of the respondent in the voting constituencies on the 29th day of December, 1981, who have not voluntarily terminated their employment or who have not been discharged for cause between the 29th day of December, 1981, and the date the vote is taken will be eligible to vote.

9. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.

10. The matter is referred to the Registrar.