[1982] OLRB Rep. April 644
2104-81-R Retail Clerks Union, Local 409, Applicant, v. United Security Limited, Respondent.
BEFORE: George W. Adams, Q. C., Chairman, and Board Members F. W. Murray and O. Hodges.
APPEARANCES: Clifford Evans for the applicant; and B. Burton, W. Bot and Suresh Bhasin for the respondent.
DECISION OF THE BOARD; April 26, 1982
This is an application for certification.
The Board is satisfied that the applicant is a trade union within the meaning of the Labour Relations Act.
The bargaining unit as proposed by the applicant is "all employees of the respondent working at Thunder Bay International Airport other than those employed as guards protecting the property of employers save and except manager, and persons above that rank". The parties are agreed that if a certificate is to be issued no distinction ought to be made between part-time and full-time employees. In other words, the unit is to be a comprehensive one.
However, the respondent takes the position that (a) all of the employees are security guards within the meaning of the Act and that therefore the applicant trade union is not entitled to be certified as bargaining unit on their behalf having regard to the requirements of section 11 of the Labour Relations Act; and (b) the unit requested is inapproriate because the employment of the employees in question is not restricted to the airport but includes other locations within the Thunder Bay area. Having regard to the respondent's objections the Board appointed a labour relations officer to inquire into and report back to the Board about the duties and responsibilities of the employees in the proposed unit and to inquire further into the appropriateness of the bargaining unit. The report of the labour relations officer has been completed and the Board now has the related representations of the parties.
The parties agree that the evidence of Ms. L. Turcotte would be representative of all the persons working in the applicant's proposed unit. This application for certification was filed on January 4th, 1982. Ms. Turcotte became employed by the respondent on August 8th, 1981. At the time of the examination she was working at the airport checking the baggage and scanning the passengers prior to loading and boarding. Her hours are from 6:00 a.m. until 2:00 p.m. She indicated that two employees come in for the 6:00 a.m. to 2:00 p.m. shift; one employee comes in and works a shift from 1:00 a.m. until 5:30 p.m.; and two other employees come in for a shift from 2:00 p.m. until 10:00 p.m. The search procedures are designed to detect weapons, bombs, and explosives. She did not believe she had the power of arrest. Pilots, co-pilots and stewardesses do not walk through the scanning area and thus the security guards have no particular function with respect to these persons. Security guards appear to be issued a licence under the Private Investigators and Security Guards Act upon application to the Ontario Provincial Police.
Ms. Turcotte indicated that she had worked both at the Canada Games and on patrol in addition to her duties at the airport between August of 1981 and Janaury of 1982. She worked for the respondent under a security contract with Canada Games for two weeks in the month of August. This contract appears to have applied to a geographic area including Confederation Park, certain other parks and recreation areas, and to the airport and Fort William Gardens. She said she was involved in crowd control for one day and, thereafter, was located at the trailer for the rest of the time. Other employees at the airport were involved in the Canada Games too. Some worked their shift at the airport and then worked at the Canada Games as extra duty. Others were scheduled at the Canada Games rather than at the airport during this two week period. The other non-airport work experience of Ms. Turcotte involved one evening of patrol in September. This was on her day off. She indicated that three other employees alternated between the airport and a Thunder Bay mail processing plant as required. Thus, there are seven regular employees statioined at the airport and three others who alternate between various locations as need arises. The seven regular employees can also be scheduled elsewhere but this appears to have happened only twice since August of 1981. Thus, the vast majority of their time is spent at Thunder Bay International Airport.
Testimony was also received from Leslie Raine, Branch Manager of the respondent in Thunder Bay. He confirmed that applications are made to the Ontario Provincial Police, Registration Branch, in Toronto to obtain a licence for the respondent's employees to act as security guards. If the employee qualifies by not having a criminal record, a licence is usually issued. He indicated that the company could assign a person working at the airport to work somewhere else. He agreed that the seven employees at the airport were principally located there but said that there was no restriction on the employer moving these people to other locations if it became necessary. Indeed, other than for the Canada Games, the seven persons had worked exclusively at the airport up until the filing of the application for certification. A Mr. Tolmie, who works at the airport, has a dual licence to act as a private investigator and as a security guard. Accordingly, he has been assigned to investigations from time to time both at and away from the airport. Another employee, Mr. Lejeaune, was said to have been on patrol away from the airport for roughly one hundred and ninety-eight (198) hours during the month of December and Mr. Lejeaune is one of the three additional people who come to the airport on an 'as needed' basis. At other times these three employees are either on patrol or providing guard duty services to the mail processing plant. He further testified that as of January 4th, the seven employees regularly stationed at the airport included four full-time workers and three part-time workers.
The Board is confronted with two principal issues. The first is whether or not the persons subject to this application are employed as security officers within the meaning of the Act. If they are not so employed, the second issue is whether or not the unit is appropriately confined to employees working at Thunder Bay International Airport having regard to the employer's allegation of regular interchange between the airport and other locations in the Thunder Bay area.
Dealing with the first issue, section 11 of the Labour Relations Act reads as follows:
The Board shall not include in a bargaining unit with other emloyees a person employed as a guard to protect the property of an employer and no trade union shall be certified as bargaining agent for a bargaining unit of such guards and no employer or employer's organization shall be required to bargain with the trade union on behalf of any person who is a guard if, in either case, the trade union admits to membership or is chartered by, or is affiliated, directly or indirectly, with an organization that admits to membership persons other than guards.
Are persons subject to this application "employed as a guard to protect the property of a employer"? It is the respondent's position that all such persons are qualified security guards who have been licenced to provide security functions and that in scanning for bombs, weapons, etc., they are protecting the property of air carriers who are employers. It is submitted that the fact that such actions also benefit the health and security of passengers does not mitigate from the fact that those actions also protect the property of the airlines. We are of the view that section 11 has no application in the instant matter. As can be seen from section 11, its purpose is to preclude a conflict of interest arising from a trade union representing both security guards and the employees subject to the monitoring authority of such guards or a conflict of interest arising out of the affiliation of a trade union representing guards with other trade unions representing the employees monitored by those guards. In the case before us, it is clear that the persons employed by the respondent at the airport have no relationship with employees of airline carriers and therefore they are not protecting the property of airline carriers in their capacity as employers. In Metrol Security Limited [1980] OLRB Rep. Dec. 1755, the Board ruled in a similar fashion when confronted with almost identical facts. At paragraph 11, the Board had the following to say:
With respect to the employees in Category II, the Airport Security Guards, the matter is somewhat difficult. It can be argued that their function is to protect aircraft and passengers in aircraft from hijacking. Insofar as the airlines are employers, it might be said that they are protecting the property of an employer. However, such an interpretation would strain the plain language of section 11, clearly this section reads "employed as a guard to protect the property of an employer" and does not read, for instance, "employed as a guard to protect the property of a person". The term "employer" as used in section 11 brings into play the employment relationship, that is, the guard protecting the property of an employer as employer. The security guards at the airport do not protect the property of the airlines as employers but rather they protect the property of the airlines from hijackers. Therefore, they are not guards within the meaning of section 11.
To rule otherwise would be to restrict the freedom of choice of employees to choose a trade union of their liking even where no possible conflict of interest could arise because of the affiliation of that trade union with other trade unions whose memberships are not restricted to security guards. See section 3 of the Labour Relations Act.
This brings us to the bargaining unit configuration problem. The Board usually gives municipal wide bargaining units and does not confine certification to a particular plant or workplace location. However, where there is more than one plant or workplace within a municipal area, the Board must determine whether a single location is appropriate. Where there is no substantial interchange between workplaces or work locations and where the location in question is not so small in terms of the number of employees as to fragment the collective bargaining process unduly and undermine the viability of a particular bargaining unit, a single location will be granted. On the fact before us we cannot conclude that there is substantial interchange or that a unit confined to Thunder Bay International Airport constitutes undue fragmentation resulting in a bargaining unit that is unlikely to be viable.
The Board finds that all of the employees of the respondent working at Thunder Bay International Airport save and except manager, and persons above that rank, constitute an appropriate unit for collective bargaining.
For the purposes of clarity, the Board acknowledges the parties agreement that Ms. L. Turcotte should be excluded from this unit in that it is agreed she is employed in a managerial capacity.
The Board finds that as of January 4th, 1982, excluding Ms. Turcotte, there were nine employees in its bargaining unit. As of the terminal date, January 15th, 1982 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 that five employees were members of the applicant. Accordingly, on the evidence before it, the Board is satisfied that more than fifty-five percent of the employees of the respondent in the bargaining unit at the time the application was made, were members of the applicant on January 15th. 1982, the terminal date fixed for this application.
A certificate will issue to the applicant.