Ontario Labour Relations Board

[1984] OLRB Rep. May 683

2656-83-R Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employ­ees, Local Union No. 647, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Brock Milk Transport Limited, Respondent

BEFORE: Ian C. Springate, Vice-Chairman, and Board Members J. A. Ronson and B. K. Lee.

APPEARANCES: Eric del Junco, John Malcolm and John Kerrigan for the applicant; J. C. Murray and R. M. Wood for the respondent.

DECISION OF THE BOARD; May 3, 1984

1. The name of the respondent is amended to read: "Brock Milk Transport Limited".

2. This is an application for certification.

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 parties disagree on the geographic description of the appropriate bargaining unit, and as to whether or not the Board should follow its general practice in describing bargaining units. Apart from the construction industry, the Board's general practice is to describe a bar­gaining unit by reference to the municipality in which the affected employees are employed. Further, with the exception of Metropolitan Toronto (where the Board treats the Municipality of Metropolitan Toronto as a single municipal unit) the Board generally makes reference to a local municipality, be it a city, town, village or municipal township, and not the regional municipality, county or district of which it forms a part. See: Wix Corporation Limited 119751 OLRB Rep. Aug. 638 and Fotomat Canada Limited [19791 OLRB Rep. April 306. From time to time, however, the circumstances of a particular case have caused the Board to depart from this general practice and to describe a bargaining unit so as to encompass more than just one local municipality. See, for example, Board of Health of the York-Oshawa District Health Unit [19691 OLRB Rep. June 340 and Dynamic Closures Limited [1983] OLRB Rep. April 521.

5. The respondent has a licence from the Ontario Milk Marketing Board to pick up and deliver milk. There are five employees for whom the union seeks bargaining rights, all of whom are employed by the respondent as truck drivers. Indications are that these drivers pick up milk within the Regional Municipalities of York and Durham. Both of these Regional Municipalities are comprised of a number of towns and townships, some of which are fairly extensive in area and themselves encompass a number of different communities. The milk is generally delivered to locations within Metropolitan Toronto, although deliveries have also been made within the cities of Mississauga and Brampton, both being municipalities within the Re­gional Municipality of Peel, as well as the Community of Georgetown in the Town of Halton Hills in the Regional Municipality of Halton and the City of Guelph in the County of Wellington.

6. Mr. R. M. Wood was described at the hearing as the owner of the respondent. Mr. Wood, who resides in the City of Cambridge in the Regional Municipality of Waterloo, uses his home as his office. So as to directly oversee the employees affected by this certification application, the respondent employs a manager who also works out of his home. The manager lives in the community of Stouffville, which is part of the Town of Whitchurch-Stouffville, itself one of the area municipalities comprising the Regional Municipality of York. Across the street from the manager's home is a garage owned by a certain Mr. Wilson. Mr. Wilson is not employed by the respondent. Mr. Wilson does, however, service the trucks owned by the company. Further, the respondent has an understanding with Mr. Wilson whereby milk sam­ples are left at his garage to be picked up by the Milk Marketing Board. Pay cheques for the company's drivers are also left at the garage for them to pick up.

7. Further complicating the geographic issue is the fact that each of the five drivers employed by the respondent essentially works from his home, with a company truck being kept at each of their homes. The drivers live in a number of different municipalities. Two of them reside in or close to Uxbridge, which is a community within the Municipal Township of Uxbridge. This township is in turn part of the Regional Municipality of Durham. Another driver resides in the community of Sunderland in the Municipal Township of Brock, which is also part of the Regional Municipality of Durham. The remaining two drivers reside in the Regional Municipality of York. One lives at Locust Hill, which is within the municipal bound­aries of the Town of Markham, while the other lives at Stouffville in the Town of Whit­church-Stouffville.

8. The applicant trade union originally proposed that the bargaining unit be described in terms of employees working at or out of Cambridge, which is where the respondent's owner lives. At the hearing, however, the applicant acknowledged that this was not an appropriate description and proposed that the unit be described so as to encompass all of the Regional Municipalities and the one county where the drivers pick up and deliver milk, as well as the Regional Municipality of which Cambridge forms a part. Such a unit would be described in terms of the Municipality of Metropolitan Toronto, the Regional Municipalities of Durham, York, Peel, Halton and Waterloo and the County of Wellington. The respondent, however, takes a different position. The respondent's first position is that the facts of this case are anal­ogous to those in the Fotomat case, and the Board should follow its normal policy as outlined in that case and describe the bargaining unit by reference to a local municipality. The re­spondent notes that two employees reside in the Municipal Township of Uxbridge, and submits that these two employees would constitute an appropriate bargaining unit. The respondent con­tends that the Municipal Township of Brock, the Town of Markham and the Town of Whit­church-Stouffville would, apart from the requirements of section 6(1) of the Act, likewise be the appropriate geographic limits for three additional bargaining units. Section 6(1) provides that a bargaining unit must have more than one employee. Given this requirement and the fact that only one employee lives in each of these three municipalities, the respondent contends that the three employees in question do not come within any appropriate bargaining unit. In the alternative, the respondent submits that there should be two separate units, one comprised of the two employees living in the Regional Municipality of York and the other comprised of the three employees living in the Regional Municipality of Durham.

9. Given the rather unique facts of this case, we do not believe that the employees should be divided into separate bargaining units, whether by reference to local or regional municipalities. Although the drivers live in separate municipalities, a glance at a map indicates that they all live within an area comprised of the Regional Municipality of Durham and the eastern part of the Regional Municipality of York. Presumably all or most of their milk pick­ups are made within the same general area. All of the drivers are man­aged by a single manager who works out of his home in the area, and all of them pick up their pay cheques and get their trucks serviced at Wilson's garage located across the street from the manager. It is apparent that this is not a case where the respondent is carrying on separate operations in different municipalities. Rather, it is carrying on a single operation which basically covers a number of local municipalities located in the Regional Municipalities of York and Durham. In our view, the most reasonable approach would be to include all of the employees engaged in this operation within a single bargaining unit.

10. In reaching this decision we have concluded that the facts of this case differ in many respects from those in the Fotomat case. In Fotomat the employer operated small kiosks in a number of municipalities spread throughout Ontario. In some of these municipalities, there was only one kiosk with two employees, whereas in others, most notably Metropolitan Toronto, there were a large number of kiosks and a substantial number of employees. While employees were frequently trans­ferred between kiosks in the same municipality, they were seldom transferred between municipalities. The respondent in that case contended that there should be a single bargaining unit encompassing all of its employees in its Toronto administrative area. This area encompassed a large part of Southern Ontario, and the proposed bargaining unit would have included some 230 employees working in 22 different municipalities, some as dis­tant from Toronto as Lindsay, Barrie and Belleville. The applicant, however, sought to be cer­tified on a municipal basis for several separate units, including one unit in Metropolitan Toronto. The Board accepted the applicant's proposed units. In doing so, the Board expressed its concern that if it were to accept the respondent's position, it would mean that the right of employees in a number of communities, including Metropolitan Toronto, to be represented by a union would depend on the desires of employees in a host of other cities and towns. As already noted, these other communities were spread out over a rather large area. In our view, these considerations do not apply in the instant case. Here there are only five employees in­volved. Further, although these employees live in different municipalities they all reside within the same general area, and are all part of the same operation.

II. Although we have rejected the respondent's proposals with respect to the proposed bargaining unit, we are not prepared to accept the very broad unit description proposed by the applicant. We are of the view that all of the respondent's existing operation, and any likely expansion of that operation, should come within the bargaining unit. However, we do not be­lieve the unit should be so extensive that it would include any new operations which the re­spondent might commence in an entirely separate labour market. To describe the unit as broadly as the applicant requests might well produce such a result. Accordingly, we are of the view that a more limited description would be appropriate. Given all the circumstances, we believe the most reasonable approach would be to describe the unit so as to encompass employees working in and out of the Regional Municipalities of Durham and York.

12. Having regard to the above conclusion, and to the agreement of the parties with respect to all other matters relevant to the description of the bargaining unit, the Board finds that all employees of the respondent working in and out of the Regional Municipalities of York and Durham, save and except supervisors, persons above the rank of supervisor and persons regularly employed for not more than 24 hours per week, constitute a unit of employees ap­propriate for collective bargaining.

13. The applicant filed evidence of membership on behalf of three of the five employees in the bargaining unit. The membership evidence takes the form of "cards", each of which consists of an application for membership and an attached receipt. Each of the cards is signed by an employee, and in every case the receipt indicates that the employee has paid a dollar to the union within the six month period prior to the terminal date. The evidence of mem­bership is supported by a duly completed Form 9, Declaration Concerning Membership Evidence.

14. In all the circumstances, the Board is satisfied 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 March 5, 1984, 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 said Act.

15. A certificate will issue to the applicant.