Ontario Labour Relations Board

[1984] OLRB Rep. May 755

0064-84-R Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Applicant, v. T. Eaton Company Limited, Respondent, v. Group of Employees, Objectors

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. W. Murray and B. L. Armstrong.

APPEARANCES: Hugh Buchanan and Carole Currie for the applicant; Cohn Morley and Ronald A. Hubert for the respondent; Greg F Bowes for the objectors.

DECISION OF THE BOARD; May 7, 1984

1. This is an application for certification.

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

3. This application, which has been split into a "full-time" and a "part-time" unit, essentially involves the sales staff of the Eaton's store located in the Scarborough Town Centre. Following the pattern established in the certifications already granted the applicant at other Eaton's locations (Board File Nos. 2620-83-R and 3015-83-R), the parties were able to reach almost full agreement on the description of the appropriate bargaining units. The one exception concerned the sales staff employed in the "Eaton's Business Centre". This Centre represents a recent innovation in the services which Eaton's makes available to its customers. While the intention is to extend the service across many of Eaton's stores, it presently is contained in only a few, and has not had to be dealt with in any of the prior applications before the Board.

4. The Business Centre at the Scarborough Town Centre store presently employs five persons, and is physically designed as a self-contained department within that store. It is conceded that this is not the only sales department in that store so designed. The focus of the Centre is on the provision of computer and other office equipment for small businesses. This involves equipment of a sophisticated nature, and the specialised technical skills required of persons hired into the department (apart from the intensive four-week training which Eaton's provides) are not the same as those required in any of the other sales departments. One consequence of this has been the inability of the respondent to staff this department from amongst any of the other personnel in the store. The other consequence, the respondent is probably correct in conjecturing, is that individuals coming into this department are not likely to do so with a view to moving into other sales areas in the store as openings arise. The salesmen in the Business Centre operate entirely on commission, and that commission is structured in a way that is distinct from any other departments in the store. The fact remains, however, that other departments in the store do have staff that operate entirely on commission. Given the time often required to ultimately consummate a sale with Business Centre customers, as well as the need to continue to advise the customer on the application of the company's equipment, the sales staff of the Centre generally spend more time away from the store (up to 30 per cent) than do the sales staff of other departments, and are comparatively flexible in their hours. Once again, however, it is conceded that a flexibility in hours generally exists as well for other sales staff at the store operating on commission. And as one reflects upon the various departments in an Eaton's store, one sees parallels as well, for example, with the home consultation process of the Interior Design departments.

5. While the respondent's desire to maintain flexibility within this new and sophisticated sales area is understandable, the ramifications for collective bargaining of the submissions it puts forward are a concern. The Board in recent years has embarked on a deliberate course of steering away from classification or departmental bargaining units, because of the high potential for fragmented bargaining which that creates. See, for example, Cryovac Division W R. Grace & Co. of Canada Limited, [1981] OLRB Rep. Nov. 1574; Toronto East General and Orthopoedic Hospital Inc., [1981] OLRB Rep. Nov. 1672; University of Ottawa, [1981] OLRB Rep. Feb. 232; Westeel-Rosco Company Limited, [1979] OLRB Rep. Nov. 1125. Even in the newspaper industry, where departmental unionization had existed in the ultimate, the Board in 1981 signalled its intention to reverse the entrenched organizing patterns of the past, in favour of broader-based bargaining. In the Hamilton Spectator case, [1981] OLRB Rep. Aug. 1177, the Board observed:

6. As a general practice the Board does not grant certification on a departmental basis. For historical reasons exceptions were made in the newspaper and printing industry. Those industries were traditionally organized by craft unions at a time, long pre-dating the existence of this Board, when the printing trades were distinguished by specialized skills that gave rise to clear distinctions along craft lines. (See, Zerber The Development of Collective Bargaining in the Toronto Printing Industry in the 19th Century (1975) 30 IR/RI 83. From its earliest days the Board granted certificates in the newspaper industries reflecting the traditional craft designations. (See, e.g. The Ottawa Citizen, [1944] OLRB Rep. Aug.; The Star Publishing Company of Windsor, Limited, (1945) CLLC ¶10,424. The traditional preponderance of craft units in the newspaper industry tended to produce more fragmented bargaining structures than would be encountered in other industrial settings. That may explain why, over the years, the Board often acceded to the agreement of the parties to departmental units of employees who did not possess craft skills. Generally in an industrial setting the Board would, apart from any special craft units, contemplate a breakdown of employees for collective bargaining purposes into office and clerical employees on the one hand and production employees on the other. When a plant is substantially organized along those lines any union seeking to obtain certification for a departmental unit is normally required to take a tag end unit of all unorganized employees. The obvious reason is to avoid undue fragmentation in collective bargaining.

7. In the instant case the parties were unable to refer the Board to any precedent decisions in which the practice of permitting departmental bargaining units in the newspaper industry was fully explained. A review of the Board's prior decisions suggests that the practice has evolved more as a matter of deferring to the agreement of the parties in the industry, an obviously critical consideration, rather than by the application of normative collective bargaining principles in disputed cases. If in the past the Board has acceded to agreements establishing the non-craft departmental units in the newspaper industry, it has not done so without some guarded concern.

8. In the present case, some differences do exist between the sales staff of the Business Centre and those of other departments. But these are differences essentially in degree, and the most distinctive of the Business Centre's working conditions are not without parallels, as discussed above, in some or other of the sales departments already encompassed within the agreed-upon units for this store. Nor does an apparent lack of interest in lateral transfers form a compelling basis for compartmentalized bargaining: the same could be said for many of the technically-skilled and higher-paid departments within an industrial production facility, yet the Board has not viewed as appropriate a proliferation of self-contained skilled-trade or similarly specialized units within a plant. While the question before us in the present application is whether to accede to the request of the employer to allow this one small group to remain outside the broad-based sales unit, viewing the matter from the point of view of its corollary better illustrates the problem. If the 5-man sales unit of the Business Centre is appropriate for exclusion from the broader sales unit now before us, it presumably would also be found appropriate as a self-contained bargaining unit at another store, where no other union organizing may yet have taken place. That is not the kind of piecemeal organizing or collective bargaining which the Board would be anxious to foster in this industry. While the needs of the Centre may require certain accommodations, we are not persuaded on the facts that those accommodations cannot be made within the broader context of the varyingly specialized and commissioned/non-commissioned sales unit.

9. Having regard to the foregoing, therefore, and to the agreement of the parties generally, the Board finds:

(1) All employees of the respondent at its retail store in the Scarborough Town Centre, Municipality of Metropolitan Toronto, save and except sales managers, merchandise presentation managers, food services managers, operating services managers, maintenance managers, and foremen, persons above the rank of sales manager, merchandise presentation manager, food services manager, operating services manager, maintenance manager or foreman, employees of Eaton Travel Ltd., employees of Eaton Bay Financial Services Ltd., office and clerical staff, management trainees, security staff, medical services nurse, persons regularly employed for not more than twenty-four hours per week, students employed during the school vacation period and students employed on a co-operative program with a school, college or university (unit #1); and

(2) All employees regularly employed for not more than twenty-four hours per week and students employed during the school vacation period of the respondent at its retail store in the Scarborough Town Centre, Municipality of Metropolitan Toronto, save and except sales managers, merchandise presentation managers, food services managers,

operating services managers, maintenance managers, and foremen, persons above the rank of sales manager, merchandise presentation manager, food services manager, operating services manager, maintenance manager, or foreman, employees of Eaton Travel Ltd., employees of Eaton Bay Financial Services Ltd., office and clerical staff, management trainees, security staff, medical services nurse, and students employed on a co-operative program with a school, college or university (unit #2),

constitute units of employees of the respondent appropriate for collective bargaining.

8. The Board notes by way of clarity that the applicant has agreed to the exclusion of "personnel staff" on the basis that there are two persons employed in the personnel department of this store, and that these two persons would be "office" rather than "sales" staff in any event. The issue of employment in a confidential capacity simply does not arise in the present case.

9. The Board further notes by way of clarity that employees of the respondent headquartered or working out of other locations who work in the Scarborough Town Centre are not within either bargaining unit.

10. Based on all of the material before it, the Board is satisfied that more than fifty-five per cent of the employees of the respondent in each bargaining unit at the time the application was made were members of the applicant on April 17, 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.

11. A certificate will issue to the applicant for each bargaining unit.