United Food and Commercial Workers International Union, Local 175 v. Roadside Developments Limited, 1984 CanLII 1025

United Food and Commercial Workers International Union, Local 175 v. Roadside Developments Limited

[1984] OLRB Rep. December 1718

2210-84-R; 2211-84-U United Food and Commercial Workers International Union, Local 175, Applicant/Complainant, v. Roadside Developments Limited, carrying on business as the Flying Dutchman Hotel, Respondent, v. Group of Employees, Objectors

BEFORE: Harry Freedman, Vice-Chairman, and Board Members B. L. Armstrong and F. W. Murray.

APPEARANCES: Douglas J. Wray, Bruce Zufelt; John Hurley and Mark James for the applicant/complainant; Thomas A. Stefanik, James Bourke, Dan Reid, Anne Goemans, Clive Rivett and Marg Rand for the respondent; Mary Tearse, Louise Tielemans and Ian Parkes for the objectors.

DECISION OF THE BOARD; December 18, 1984

2. The Board directs that the above application and complaint be and the same are hereby consolidated.

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

4. The Board received evidence and submissions from the parties relating to the description of the appropriate bargaining units at its hearings on November 30th and December 4th, 1984. The majority of the Board (Board member F.W. Murray dissenting) delivered the following oral ruling at its hearing on December 4, 1984.

ORAL RULING

The applicant union has applied for certification to represent certain employees of the respondent. The parties have agreed that there are two units of employees appropriate for collective bargaining, a full-time unit and a part-time unit, and are agreed to the description of those units, save for the exclusion of the front desk staff.

The bargaining unit descriptions agreed to are:

all employees of the respondent in the Town of Newcastle save and except department heads, persons above the rank of department head, control clerk, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period; and

all employees of the respondent in the Town of Newcastle regularly employed for not more than 24 hours per week and students employed during the school vacation period save and except department heads, persons above the rank of department head and control clerk.

The applicant argues that the front desk staff do not share a community of interest with the other employees for whom the applicant seeks bargaining rights, and further, that the Board's normal practice in the hotel industry is to exclude front desk staff from a service unit. The representative of the objecting employees and counsel for the respondent argue that the front desk employees do share a community of interest with the other employees. Counsel for the respondent further submits that there is no definite rule or practice with respect to excluding front desk staff from a service unit in the hotel industry and also submits that on the facts before the Board in this case, the exclusion of the front desk staff would be contrary to the preamble of the Labour Relations Act since it would effectively deprive those employees of their right to engage in collective bargaining and would lead to undue fragmentation of the employer's organization.

The Board received detailed evidence from several witnesses relating to the duties of the front desk staff and their community of interest, or lack thereof, which was generally consistent on the salient facts. Aside from acting as receptionist for the respondent, and checking guests in and out, the front desk staff, (aside from the night front desk person, Stella Morrison, who is classified by the respondent as maintenance) perform other clerical and administrative duties not directly involved with being of service to the respondent's guests. They collect the employees' completed time cards and fill in new time cards by inserting the employee's name, date and classification for use by the employees on a weekly basis. They cash out or prepare the bank deposits for several of the respondent's operations, including the buffeteria. On occasion, they will initial an employee's time card where that employee has either worked through his or her break or worked overtime and has not been able to receive authorization from his or her own supervisor, although we note that higher management must approve the initialling done by the front desk staff at a later date.

In addition to relying on their clerical and administrative duties as relevant factors in assessing their community of interest, the front desk employees are physically located in the clerical or office area of the respondent's operation and their duties do not require them to work in other parts of the respondent's premises.

The process by which the Board determines an appropriate bargaining unit has been set out in Toronto Board of Education, [1970] OLRB Rep. July 430 at pages 434-436 in the following terms:

14. The Board has a wide discretion pursuant to section 6(1) of The Labour Relations Act in determining what is appropriate in the facts of each case. Also section 1(1)(a) provides:

"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 or them;".

Section 6(1) requires an appropriate bargaining unit shall consist of more than one employee. In addition section 6(2) [now 6(3)] which is concerned with craft units requires that in certain circumstances a group of employees shall be deemed to be appropriate and further section 92(1) [now 119(1)] makes special provision for determining an appropriate bargaining unit in construction industry situations.

15. It is apparent that section 1(1)(a) contemplates that an individual employer may employ persons who can be subdivided into more than one appropriate bargaining unit. It has therefore been common for a single employer to be certified for a number of appropriate bargaining units, e.g. office unit, craft unit, plant unit, sales unit, part-time unit. We emphasize the capacity for more than one appropriate bargaining unit to exist with respect to a single employer, a capacity which is statutorily confirmed by section 1(1 )(a), because from time to time persons have argued before this Board that the use of the definite article in section 6(1) i.e.

"The Board shall determine the unit of employees that is appropriate for collective bargaining"

means that there is only one appropriate bargaining unit in each case.

16. It is also helpful to review the process of determining the appropriate bargaining unit. In each particular application the applicant trade union is required to provide a "detailed description of employees of the respondent that the applicant claims to be appropriate for collective bargaining". (Form 1 — Rules of Procedure) The respondent employer is by way of reply, entitled to provide a detailed description of the unit claimed by the respondent to be appropriate for collective bargaining. (Form 9 [now From 10] — Rules of Procedure) A respondent employer is further directed (Form 4 — Rules of Procedure) "If, in your reply, you propose a bargaining unit different from the one proposed by the applicant, you shall indicate on the list of employees referred to in paragraph 7 the name and classification of any person you propose should be excluded from, as well as the name and classification of any person you propose should be added to, the bargaining unit proposed by the applicant". Accordingly, in any single application, the applicant trade union and respondent employer may make submissions that agree or disagree on all or some of the various factors concerning the appropriate bargaining unit. Where the parties disagree it is the function of the Board to decide which, if any, or part of the contending positions is proper. For example the Board in an individual application may exclude certain persons as being managerial while including others; again groups of employees may be included or excluded from bargaining units depending upon whether they share a community of interest with other employees. See e.g. Wakefield Lighting Limited [1965] OLRB Rep. May 143 (plant clerical staff); Sherman Mine, Cliffs of Canada Limit -ed July 3, 1969 Board File No. 15604-68-R (laboratory employees); Affiliated Medical Products Limited January 9, 1969 (quality control laboratory technicians). In other situations the Board may be required to exclude persons because of a statutory prohibition. See e.g. The Corporation of the City of Cornwall June 3, 1969 Board File No. 16166-69-R (police employees). The Board's process is a fact finding one resulting in inclusions, exclusions, accretions and deletions to the proposed bargaining units.

17. After sifting the various facts the Board must determine "the unit of employees" that is appropriate having regard to the particular situation then before the Board. The only fetters on the Board's discretion to make a determination are the requirements contained in section 6(1) that the "unit shall consist of more than one employee", Albert Fuel Limited, 1969 October 3, Board File No. 16685-69-R, and that the unit of employees is appropriate for collective bargaining — there are no other requirements. The unit that is appropriate is the unit that emerges after all the facts have been considered.

18. The fact finding process is at all times directed toward and governed by the concept of appropriateness and the essence of appropriateness in the context of labour relations is that the unit of employees be able to carry on a viable and meaningful collective bargaining relationship with their employer. It is the Board's experience that employees may in some cases subdivide themselves into small groups which may result in an unnecessary fragmentation or atomization of the employees. Thus an employer faced with the possibility of lengthy, protracted and expensive bargaining and the further possibility of jurisdictional disputes among multiple bargaining groups represented by one or more trade unions may find it impossible to carry on a viable and meaningful collective bargaining relationship. The Board therefore is adverse to certifying employee groups where the result is undue fragmentation and in those circumstances the Board will find the unit proposed inappropriate on the basis that a meaningful and viable collective bargaining relationship will not result. See e.g. Waterloo County Health Unit, [1969] OLRB Rep. January 1016.

19. In finding appropriate bargaining units the Board must also be cautious that its determination as to what is appropriate will not impede the right of self-organization guaranteed in section 3 of The Labour Relations Act. The National Labour Relations Board in the United States had recognized in certain cases that its determination of appropriate bargaining units had "operated to impede the exercise by employees. . . of their rights of self-organization.. .". Say-on-Drugs, Inc. (1961), 138 NLRB 1032; see also Quaker City Life Ins. Co., (1961), 134 NLRB 960. While great weight must be given to prior cases dealing with similar situations, those cases are not dispositive of the issue in any given case. Bargaining unit determination requires a case by case review of the facts and this is compelled by the working [sic] of section

6(1) which provides that the Board "Upon an application ... shall determine the unit of employees that is appropriate for collective bargaining, . .

21. The Board's process therefore in determining appropriate bargaining units is not directed to certifying the more or the most appropriate bargaining unit — The Labour Relations Act only requires that the unit of employees be appropriate; the Act does not require labour organizations to seek representations in the most comprehensive or optimum groupings unless such grouping constitutes the only appropriate unit. Cf Federal Electric Corp., (1966), 157 NLRB 89; Bagdad Copper Company (1963), 144 NLRB 1496.

22. In conclusion we hold that where section 6(1) refers to "the unit of employees that is appropriate" it does not impose any requirement that the Board choose the more or most comprehensive unit — it only requires the Board to determine the unit of employees that is appropriate for collective bargaining having particular regard to the facts of the immediate application.

While the Board does often rely on Board practice or rules established by the Board in previous cases to guide it in determining an appropriate bargaining unit, the Board must, as counsel for the respondent advised us, decide what the appropriate unit is based on the facts before us. We are not persuaded that there is an established Board practice of excluding front desk staff from the service unit in the hotel industry. However, based on the authorities to which the Board has been referred by counsel, we are satisfied on the facts in this case that a bargaining unit of the service employees of the respondent excluding front desk staff is an appropriate unit. We are satisfied, based on the front desk employees' overall clerical and administrative duties, taken in conjunction with their physical location within the respondent's premises, that they do not share a community of interest with the other employees of the respondent for whom the union seeks bargaining rights. While their exclusion from these bargaining units may make it more difficult for those excluded employees to engage in collective bargaining, (and we have not considered whether the front desk employees wish to be represented by this applicant in collective bargaining at this time) we are not satisfied that the possibility that the excluded employees may not be able to engage in viable collective bargaining should override the community of interest factor.

Therefore, the Board is satisfied that the two bargaining units appropriate for collective bargaining in this case exclude the front desk staff.

The Board also notes that the applicant sought the exclusion of Stella Morrison on the same basis as the other front desk employees. We are all of the view that Ms. Morrison's duties and responsibilities place her in a community of interest with the employees for whom the applicant seeks bargaining rights and not the other front desk employees.

Therefore, having regard to the foregoing, the Board finds the following two units of employees:

(a) all employees of the respondent in the Town of Newcastle save and except department heads, persons above the rank of department head, front desk staff, control clerk, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period; and

(b) all employees of the respondent in the Town of Newcastle regularly employed for not more than 24 hours per week and students employed during the school vacation period, save and except department heads, persons above the rank of department head, front desk staff and control clerk,

constitute two units of employees appropriate for collective bargaining.

For purposes of clarity, the Board notes that the term "department head" refers to the head receptionist, head housekeeper, and head chef. The Board additionally notes that term "front desk staff' does not include night maintenance employees.

5. This matter is referred to the Registrar to be relisted for hearing before this panel of the Board to deal with the issues remaining in this consolidated proceeding on January 21, 1985 and February 4 and 14, 1985.

DECISION OF BOARD MEMBER, F. W. MURRAY;

1. I dissented from the Board's oral ruling in this matter, and my reasons for dissenting are set out below.

2. While I agree that the Board need only determine an appropriate bargaining unit and not the appropriate bargaining unit, I believe in this case that the exclusion of the front desk employees will unduly fragment the labour relations of the employer, and at the same time leave a group of employees, that is, three front desk employees (two full-time and one part-time) who, for all practical purposes would not constitute a viable bargaining unit. In my opinion, the Board should carefully consider in assessing whether a unit of employees is appropriate for collective bargaining both the group of employees that are included in the bargaining unit and at the same time assess the practicality of the excluded employees forming their own viable bargaining unit.

3. For these reasons I would have included the front desk employees in the bargaining units even though their community of interest with the other employees in those units may be marginal.