[1985] OLRB Rep. January 57
1158-84-R International Union of Operating Engineers, Local 796, Applicant, v. Citicom Inc., Respondent, v. The Canadian Guards Association, Intervener.
BEFORE: Harry Freedman, Vice-Chairman, and Board Members I. M. Stamp and L. C. Collins.
APPEARANCES: Susan Ursel and J. Sullivan for the applicant; Brian Burkett, David Wiseman, David Howard and Lyall Thompson for the respondent; R. C. Butler for the intervener.
DECISION OF THE BOARD; January 22, 1985
- The Board delivered the following oral decision at its hearing on January 17, 1985 which was scheduled to hear the representations of the parties as to the conclusions the Board should reach in view of the Labour Relations Officer report that was issued on October 23, 1984:
ORAL DECISION
The issue before the Board is whether the four employees of the respondent classified as control room operators are guards, as contemplated by section 12 of the Labour Relations Act. Section 12 of the Act states in part:
The Board shall not include in a bargaining unit with other employees a person employed as a guard to protect the property of an employer,
We adopt the test that the Board applied in Wells Fargo Armcar, Inc., [1981] OLRB Rep. July 1046 at paragraph 18, page 1051 to determine whether employees are guards within the meaning of the Labour Relations Act. That test was stated as follows:
The test is whether [the] duties of the persons who are claimed to be guards for purposes of section 11 [now section 12] raise the real possibility of a conflict of interest with respect to other employees of their employer. …
[emphasis added]
The report of the Labour Relations Officer was in the form of an agreed statement of fact. One of the facts agreed to was that the control room operators had all acted as security guards in previous jobs but that such experience was not a requirement of the present job. Counsel for the applicant submitted that this fact was irrelevant to the issue and we agree. We do not see how the previous employment history of a person has any significance in assessing the duties and responsibilities of that person's present job where that previous experience is neither mentioned as condition or requirement of the job in question or is it even stated to be a factor that was taken into consideration in the hiring for that job.
A portion of the agreed statement of fact provided:
C. Security Screens:
If a Control Room Operator detected other employees vandalizing, stealing, fighting etc. they [sic] would contact the security guards by radio and instruct them to investigate the incident.
The Control Room Operators have the authority to grant or refuse admission of employees to the truck dock area.
The Control Room Operators have the authority to detain vehicles or employees in the truck dock area (ie. access to and from the truck dock area is controlled by opening and closing of doors).
Counsel for the applicant submits that the monitoring and reporting functions of the control room operators are no different than the common law duty of fidelity owed by all employees to their employers, and relies on this Board's decision in Pal-O-Pak Manufacturing Company Limited, [1978] OLRB Rep. Jan. 95 at paragraph 5 for that proposition.
We disagree. We do not read that decision of the Board as broadly as counsel does. If the common law duty of fidelity is as broad as counsel for the applicant submits, it would render both section 12 of the Act and the conflict of interest test used by the Board in applying that section superfluous.
In our view, the functions of the control room operators as set out in the Labour Relations Officer report clearly indicate to us that they are an integral part of the security functions of the respondent. Additionally, both the security guards and control room operators report to the chief of security. We are satisfied that their job responsibilities which require them to monitor areas where other employees of the respondent are working, (see paragraph 3, section C of the Labour Relations Officer report) and to report on the activity as set out in paragraph 4 of section C of the report, referred to above, create a "real possibility of a conflict of interest". (See Wells Fargo Armcar, Inc., supra.)
We are therefore satisfied that the control room operators are guards within the meaning of the Act and are thus excluded from the applicant's bargaining unit and, by agreement of the parties, are part of the intervener s bargaining unit.
Following the delivery of the Board's decision, the parties agreed that the Board should issue a final certificate to the applicant in respect of the bargaining unit as described in paragraph 6 of the Board's decision of August 21, 1984.
Therefore, having regard to the agreement of the parties, the Board finds that all employees of the respondent at the Rideau Centre, Ottawa, save and except supervisors, persons above the rank of supervisor, security guards, office and clerical staff, janitorial personnel, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
For purposes of clarity, the Board notes that the term "guards" includes the control room operators.
Having regard to the findings made by the Board in paragraph S of its August 21,
1984 decision, a certificate will issue to the applicant.