[1985] OLRB Rep. December 1744
2776-84-R United Food and Commercial Workers Union, Local 409, Applicant, v. Hudson's Bay Company, Respondent
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members J. A. Ronson and W F. Rutherford.
APPEARANCES: Ian F. Reilly for the applicant; Barry Brown and Tom Oleson for the respondent.
DECISION OF N. B. SATTERFIELD, VICE-CHAIRMAN, AND BOARD MEMBER J. A. RONSON; December 20, 1985
- The Board, differently constituted, issued a decision in this application for certification February 5, 1985. Paragraph 4 of that decision sets out a description of a bargaining unit which represents the partial agreement of the parties as to what constitutes an appropriate unit of employees for purposes of collective bargaining. The description reads as follows:
All employees of the respondent in its Hudson's Bay Wholesale Division in the City of Thunder Bay, Ontario, save and except supervisors, persons above the rank of supervisor, office staff.
The parties were disagreed as to whether three different categories of employees should be included in or excluded from the bargaining unit. These categories are: part-time employees and students employed during the school vacation period; persons classified as salesman (including one described as office coffee salesman); and, persons classified as fillers. There were no part-time employees or students employed at the time the application was made, but the respondent claims that there is a history of employing such persons and, therefore, these categories should be excluded from the bargaining unit. There were four salesmen, including the office coffee salesman, and three fillers employed at the time of the application. The respondent claims that those two categories should be included in the bargaining unit on the grounds that they share a community of interest with the employees whom the parties agree should be included in the unit. The applicant contends that there is no history of employing part-time employees and students during the school vacation period, so they should not be excluded from the bargaining unit. With respect to salesmen and fillers, the applicant takes the position that they do not share a community of interest with the other employees who would be included in the bargaining unit and, therefore, should be excluded from it. As a result of the parties' disagreement, a Board Officer was authorized to conduct a record check of the respondent's employment records and to inquire into the community of interest, if any, between the persons classified as salesmen and fillers and the other employees whom the parties agree would be included in the bargaining unit, and report to the Board thereon. The report of the Board Officer was issued to the parties and the respondent requested a hearing before the Board in order to make its submissions with respect to the conclusions it wishes the Board to make on the evidence contained in the report. Both parties were given the opportunity at the hearing to make full submissions on the report. The applicant's representative elected to rely on its written submissions previously filed with the Board. Consequently, the Board heard the oral submissions of respondent counsel. The conclusions set out in this decision have been reached having regard to the evidence in the report of the Board Officer, the written submissions of the applicant, and the oral submissions of respondent counsel.
The effect of the parties' limited agreement respecting the description and composition of the bargaining unit is that the term "all employees" would include two categories of employees: warehousemen, including shipping/receiving, and delivery. Their disagreement insofar as the community of interest issue is concerned is whether the categories of filler and salesman, including the office coffee salesman, are to be included as part of the term "all employees" in the description, or specifically excluded along with supervisors and office staff.
It is useful to examine briefly the kind of business which the respondent conducts from its Thunder Bay branch. It operates a wholesaling business from a single office and warehouse. Its customers consist primarily of retail stores and vending machines. The office coffee sales is an adjunct of the vending operations and involves the sales of coffee and related supplies to business offices which want an in-house coffee making service. The evidence reveals that the four categories of employees comprised of: warehousemen, including shipping/ receiving; delivery; vending (fillers and outside coffee salesman); and salesmen, perform their principal functions with a substantial degree of integration in order to fulfill the respondent's wholesaling operation. There is regular and significant overlap in the way in which they perform their duties.
Normally when the Board is confronted with wholesaling or industrial types of operations which include sales staff, the sales staff are recognized as having a community of interest distinct from plant and warehouse employees and much more closely aligned with office staff. Recognition of this alignment of interest has caused the Board to exclude sales staff along with office staff when defining appropriate bargaining units which include production and maintenance employees. Conversely, when the Board is dealing with white collar bargaining units, it generally keeps sales staff together with office staff. The report of the Board Officer in the instant case includes detailed evidence respecting how the employees in the disputed categories perform their duties and of the relationship between the duties of a particular category of employees and all of the others, their terms and conditions of employment and the administration of the operations. The Board does not intend to set out that evidence in detail, it is sufficient to say that it points overwhelmingly in the opposite direction to the Board's usual policy. Salesmen in the instant case are clearly more closely aligned in their functions with the warehouse and delivery people on a regular basis than with the office staff. The same is true for the fillers and the office coffee salesman.
The evidence reveals extensive interchange amongst the four categories of employees and that the warehousemen and deliverymen are the primary source of candidates for filling salesmen and fillers jobs. The evidence also reveals two notable distinctions in terms of employment and working conditions of salesmen compared with the other three categories in that salesmen are paid by commission and have personal use of the car provided by the respondent for their jobs. Differences in conditions amongst the other three categories are minimal, particularly as between deliverymen and fillers. In the Board's view, these differences fall significantly short of bringing this case within the Board's normal policy respecting exclusion of salesmen from an industrial type" of bargaining unit.
On that evidence, the Board finds that the employees classified by the respondent as warehousemen, shipping/receiving, delivery, fillers, outside coffee salesmen and salesmen share a community of interest distinct from that of the office staff. Moreover, the evidence as a whole identifies this case as one where collective bargaining policy would be better served by not fragmenting the bargaining unit. The Board finds, therefore, that together they comprise a unit of employees appropriate for collective bargaining.
The evidence in the Officer's report with respect to part-time employees and students employed during the summer vacation reveals a history of students, but there is no evidence of any history of part-time employees. The parties are in dispute as to whether students and part-time employees should be excluded from the bargaining unit. The respondent submits that the Board should exclude not just the student category but the non-existent part-time category as well. The Board is not convinced that circumstances exist in this case which should cause the Board to depart from its normal policy for dealing with the exclusion of students and part-time employees. The result of applying to this case the Board's normal policy respecting students, would be to exclude them because the employer does have a history of employing them, even though none were employed at the time this application was made. With respect to part-time employees, there is neither a history of the employer having employed them nor were there any employed at the time the application was made. Therefore, the Board's normal policy as applied to these circumstances would result in part-time employees not being excluded from the unit. For a statement of the Board's policy and its underlying rationale, see the Board's decision in Inter-City Bandag (Ontario) Limited, [1980] OLRB Rep. Mar. 324.
Having regard to all of the foregoing, the Board finds that all employees of the respondent in its Hudson's Bay Wholesale Division in the City of Thunder Bay, Ontario, save and except supervisors, persons above the rank of supervisor, office staff and students employed during the school vacation period, constitute a unit of employees appropriate for collective bargaining.
The Board is satisfied on the basis of all the evidence before it that less than forty-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 January 24, 1985, 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.
In the result, this application for certification is dismissed.
DECISION OF BOARD MEMBER W. F. RUTHERFORD;
In certification it has been usual board policy to exclude salesmen from an all employee unit, thereby placing salesmen with office group.
It is my opinion that salesmen in the instant case do not have a community of interest with the warehousemen and vending machine fillers for the following reasons.
The salesmen's work in the warehouse is minor, mainly that it entails picking their own customer shortages and some stock taking with all other employees.
The salesmen work on commission.
The salesmen can use the company vehicles for personal business.
For all the above reasons I would have excluded the four salesmen from the unit applied for.