[1984] OLRB Rep. April 635
1270-83-R; 1112-82-R The Public Service Alliance of Canada, Applicant, v. Ralson Construction a Division of Maplegrove Building Specialties Limited, Respondent.
BEFORE: Richard M. Brown, Vice-Chairman, and Board Members J. A. Ronson and S. Cooke.
APPEARANCES: Michael Gleeson and David R. Doyle for the applicant; W J. Hanson and D. Shift for the respondent.
DECISION OF THE BOARD; April 19, 1984
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board finds the following unit to be appropriate for collective bargaining: all employees of the respondent at Moose Factory, save and except the manager, persons above the rank of manager, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period. For the purposes of clarity, the Board notes the agreement of the parties that Roy McLeod, the current superintendent for maintenance, is a manager. We also note that this application does not pertain to employees engaged in the construction industry.
The respondent contended that nine of the individuals for whom the applicant seeks bargaining rights are guards within the meaning of section 12 of the Labour Relations Act. An inquiry into the duties performed by these individuals was conducted by a Board Officer and his report is now before us. The parties agreed that the duties performed by K. Cheechoo and L. Corston, the two employees examined by the Board Officer, are representative of the duties performed by others.
The employees concerned work at the Moose Factory Hospital on three shifts around the clock. One person is on duty during the day from Monday to Friday; two employees are present at all other times. The duties performed vary from shift to shift. A single person working on weekdays spends a substantial amount of time driving the hospital ambulance which apparently does double duty as a taxi for the transportation of patients and medical personnel. Kenneth Cheechoo estimated the portion of time devoted to this task as eighty percent. (Cheechoo conceded that less time was spent driving the ambulance on other shifts. Without distinguishing between shifts, Leonard Corston estimated the proportion of time devoted to this task as 25 per cent.) The grounds and buildings are patrolled when time permits. As a receptionist is on duty during the day from Monday to Friday, the single guard working at this time is not stationed at the entrance to the hospital. At other times, when there is no receptionist present, one of the two guards on duty is stationed at the front entrance. He answers the telephone, pages staff, and ensures that visitors sign a log book. The other guard makes three rounds of the hospital, checking to ensure that the appropriate doors are locked, and responds to calls for the ambulance.
On all shifts, employees are required to enforce hospital rules requiring all visitors to leave at 9:00 p.m. and banning alcohol from the premises. According to Kenneth Cheechoo, he and his colleagues monitor visitors to be sure that they are not carrying alcohol. Leonard Corston testified that if a drunk employee tried to enter the hospital he would be stopped; this has never occurred to date. Similarly, Corston testified that he would investigate if he observed someone acting suspiciously while carrying something out of the hospital; this too has not occurred to date. According to Kenneth Cheechoo, one month before he was examined by a Board Officer, the employees were authorized to check packages carried out of the hospital by employees. (The examination was conducted on November 23, some three months after the application for certification was filed.) However, Cheechoo has never stopped anyone who was carrying something out of the hospital. He testified that he did not have the authority to physically search a person or to search vehicles. The employees in question wear uniforms and are licensed under the Private lnvestigators and Security Guards Act.
Section 12 of the Act refers to "a person employed as a guard to protect the property of an employer". To determine who falls within this description, the Board has consistently looked to the purpose underlying the statutory language. The objective is clearly not to deny the fruits of collective bargaining to persons employed to protect the property of an employer. The obvious reason for separating guards from other employees, as contemplated by section 12, is to prevent any alliance between these two groups which might impair the diligence with which guards protect the property under their care against other employees. Accordingly, a guard is someone performing duties which create a conflict between that person's loyalty to employees who pose a threat to property and his duty to the employer who owns it. A person engaged in monitoring employees, perhaps by searching their lunch pails or vehicles, is obviously a guard. Conversely, someone hired to safeguard property from vandals at large, as opposed to employees, is not a guard. See Metropol Security Limited, [1980] OLRB Rep. Dec. 1755; and Wells Fargo Armcar, Inc., [1981] OLRB Rep. July 1046 upheld sub nom Wells Fargo Armcar, Inc. v. Ontario Labour Relations Board (1982), 1982 CanLII 1786 (ON HCJ), 36 O.R. (2d) 361 (Div. Ct.). Interpreting the word guard, the Board also has recognized that many employees are under some obligation to protect their employer's property; not everyone charged with some such responsibility is a guard. The duties of a guard are of a higher order, as the Board observed in Geo. A. Cram & Sons Ltd., 63 CLLC ¶16,291.
In some cases, the employees concerned are clearly engaged in protecting an employer's property from employees. For example, in Metropol Security Limited, supra, the persons in question provided security services during labour disputes. In Corby Distilleries Limited, [19801 OLRB Rep. Feb. 194, they recorded all employee vehicles entering or leaving the plant and refused admission to anyone without a valid pass. Those found to be guards in Imperial Tobacco Company Limited, [1969] OLRB Rep. Feb. 1168 monitored employees to ensure that anyone leaving the premises with large parcels had the approval of the plant maintenance superintendent; a notice advising the workforce of this requirement was posted at the employer's entrance where the guard was stationed.
These cases may be contrasted with Geo. A. Crane & Sons Limited, supra. In that case, the hours worked by watchmen at construction sites did not coincide, for the most part, with the hours of work of the rest of the workforce. As their role in monitoring employees was negligible, the Board concluded they were not guards within the meaning of the Act.
Turning to the facts at hand, we conclude the nine employees in dispute are not guards. Some of the duties they perform have nothing to do with the protection of property - driving the ambulance and answering the telephone. To the extent that they are engaged in the protection of property, their almost exclusive concerns are visitors and intruders, not employees of either Moose Factory Hospital or Ralson Construction.
The respondent also contended that two individuals exercise managerial functions within the meaning of section l(3)(b) of the Act. Roy McLeod, the superintendent from maintenance, and William Corston, the supervisor of security services, were examined by the Board Officer. At the hearing, the applicant conceded that Roy McLeod ought to be excluded from the bargaining unit.
William Corston supervises eight people engaged in the provision of security services at the Moose Factory hospital. Like those he supervises, Corston works days, afternoons and nights on rotation. He reports directly to Mike Venasse who is stationed in North Bay. Corston prepares shift schedules and approves annual vacations on a first come first serve basis. When a scheduled employee is unable to work, Corston either calls in a spare or assigns overtime to a regular employee. He cannot grant time off for medical or dental appointments without first obtaining approval from Mike Venasse. As no one has been hired or laid off to date, Corston's role in these circumstances is unclear. According to William Corston, if he saw someone reporting to work late, he would speak to that person. However, a written warning to an employee whose job performance is deficient can be issued only upon the instructions of Mike Venasse; there has been one such incident. Although there is no formal system of job evaluation, Corston was recently asked to report in Mike Venasse about a problem employee. An employee with a question about his pay cheque speaks to the bookkeeper, not to Corston. William Corston keeps log books on a number of subjects — employee work hours, security rounds, temperatures, ambulance trips, etc. Although he attends administrative meetings at the hospital, he testified that hospital personnel would not raise with him deficiencies in the performance of the employees he supervises. He orders supplies, such as stationery and batteries, from the hospital; occasionally an order is not filled because too many supplies are requested. Corston is paid more than other employees but receives the same fringe benefits.
As the Board observed in McIntyre Porcupine Mines Limited, [1975] OLRB Rep. Apr. 261, a supervisor who relays information to management and co-ordinates the work of employees, but does not exercise "effective control or authority" over them, is not a manager. Applying this test to the facts at hand, we find that William Corston does not at present exercise managerial functions within the meaning of section l(3)(b) of the Act.
The Board is satisifed that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on September 30, 1983, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the Act.
A certificate will issue to the applicant.