United Food & Commercial Workers International Union v. Murray G. Bulger and Associates Limited, 1985 CanLII 927

[1985] OLRB Rep. March 458

1228-84-R United Food & Commercial Workers International Union, Applicant, v. Murray G. Bulger and Associates Limited, Respondent

BEFORE: S. A. Tacon, Vice-Chairman, and Board Members I. M. Stamp and N. Wilson.

DECISION OF THE BOARD; March 26, 1985

By decision dated September 5, 1984, the Board (differently constituted) appointed a Board Officer to inquire into and report back to the Board: on the community of interest between the employees of the respondent at the Dupont Street location and at the Yonge Street location; on all related matters concerning the definition of the bargaining unit, including the use of the term "office manager" or "department manager" and the scope of the unit as "all employees" or "office and clerical employees".
Board Officer B. McLean met with the parties on September 26, October 3 and October 11, 1984 at the respondent's premises on Yonge Street. Representing the applicant were Jim Thomas, Mike Fraser and Penny McBride. Representing the respondent were Raimo Heikkila and Chris Bulger.
The applicant applied for a unit described as:

all employees of the respondent employed at 1132 Dupont Street, Toronto, save and except office manager and persons above the rank of office manager.

The respondent replied with the following description:

all office and clerical employees of the respondent in Metropolitan Toronto, save and except department managers, persons above the rank of department manager, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.

During discussions with the Board Officer, the parties agreed on the description of the bargaining unit subject to the geographic scope of the unit. That is, if, on the community of interest dispute, the Board found the Dupont location alone to be appropriate, the parties agreed on the applicant's description. Conversely, if the Board found the larger unit appropriate, the parties agreed on the respondent's description.
Witnesses called included: Chris Bulger for the Board; Noreen Reilly and Penny McBride for the applicant. A number of documents were entered as exhibits by the respondent. The Board Officer afforded the parties full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence.
Both parties requested a hearing before the Board to make submissions with respect to the Board Officer's report. At that hearing, the respondent introduced, on consent, two additional exhibits concerning an organizing attempt by another union of the respondent's employees. The parties agreed the exhibits were sent to all the employees at both locations. The parties also agreed that the applicant had restricted its organizing efforts to the Dupont location.
The applicant submitted there was no community of interest between the Yonge and Dupont locations, relying on the criteria enunciated in Usarco Limited, [1967] OLRB Rep. Sept. 526. The applicant reviewed the evidence with reference to those criteria. Counsel also relied on the Board's reasoning in K Mart Canada Limited, [1981] OLRB Rep. Sept. 1250, particularly paragraphs 6, 10 and 11. In reply, counsel distinguished the cases cited by the respondent wherein the "department" was not found to be an appropriate bargaining unit (see paragraph 9 below). Counsel argued that the evidence supported a conclusion that Dupont was more like a "branch office" than a "department of the respondent's operations". Essentially, the applicant asserted that K Mart Canada Limited upheld the appropriateness of single location bargaining units, where, as here, the union had only organized that location and where, in the applicant's view, the respondent had not demonstrated that the smaller unit would result in undue fragmentation. Finally, the applicant urged the Board, in balancing the competing interests, to give weight to the wishes of the employees at Dupont for union representation.
The respondent also reviewed the evidence in the context of the Usarco, supra, criteria. Counsel distinguished K Mart Canada Limited, supra, on the ground that the Dupont location did not function independently, as did the different retail locations in K Mart Canada Limited, and plants in Magna International Inc., [1981] OLRB Rep. Sept. 1260. Counsel referred to Bennett Foods Limited, [1979] OLRB Rep. Dec. 1134 as an example of an integrated operation. Counsel asserted that, on the evidence, Dupont more closely resembled a "department" of the respondent and department-wide unit had been considered inappropriate by the Board. Counsel referred to: The Regional Municipality of Halton, [1983] OLRB Rep. Sept. 1462; St. Joseph Hospital at Sarnia, Ontario, [1983] OLRB Rep. June 984. The respondent contended that the Dupont and Yonge locations shared a community of interest and the larger unit would not impede employee access to collective bargaining. The Dupont location standing alone, it was argued, would result in undue fragmentation; counsel gave examples of potential difficulties and referred to Best view Holdings Limited, [1983] OLRB Rep. Feb. 185 atparagraph II.
The Board has reviewed the evidence and carefully considered the submissions of counsel. The Board does not intend to reiterate in detail the evidence contained in the Board Officer's report. Rather, having weighed that evidence including the relative credibility of the witnesses and what seems reasonably probable in the circumstances, the Board makes the following findings of fact in the context of the community of interest criteria enunciated in Usarco, supra.
Those Usarco criteria are summarized at this point:

(a) community of interest

nature of work performed
conditions of employment
skills of employees
administration
geographic circumstances
functional coherence and interdependence

(b) centralization of managerial authority

(d) source of work

The respondent administers benefit plans and provides consulting services of various types (actuarial, benefit, administrative system and, latterly, information system). There are several branches across Canada; in Toronto, there are two locations at present, Yonge Street and Dupont. Over the years (since the respondent commenced operating in 1958), the Toronto office has changed location a number of times, including periods where aspects of the business have been carried on in several locations within Toronto.
At Dupont, the work performed comprises claims payments and welfare administration; the classifications consist of claims payers, administrators and typists. In the main office at Yonge, employees similarly classified perform the same functions. However, at Yonge there are also a number of other functions as well, including account management, benefit consulting and marketing, pension administration, financial services, information systems, personnel and accounting. Additional classifications consist of programmers, data entry, mailroom and computer operations. It is important to note that the additional functions at Yonge are also provided in respect of Dupont as needed to service the Dupont location. The nature of work performed, then, differs only in that Yonge performs a number of additional functions.
The conditions of employment are also virtually identical. Dupont employees do have to work one Saturday morning per month each in order to provide service from 9:00 a.m. to 12:30 p.m. Not surprisingly, with respect to the common classifications, the skills of employees are identical except that, at Dupont, language skills (Italian and Portuguese) are needed by some to deal effectively with members of the various benefit plans.
It is appropriate to comment at this point that the Dupont location handles several trust funds for the labourers' local 183 and the labourers' multi-local benefit trust fund. The office is located in the local's building for the convenience of the members; this is also the reason for the Saturday hours and language qualification. The Yonge location handles other trust funds and provides a range of consulting services as well. There is no doubt that "Yonge" is the main operation of the respondent in Toronto. Administrative functions such as, personnel, payroll, budgets, purchasing, invoicing are centralized at Yonge and are not duplicated at Dupont. For example, Dupont employees are paid through the payroll at Yonge, the Dupont budget is set at Yonge, etc.
The respondent's "clients" are formally the boards of trustees of the various trust funds. The respondent designates an account manager for each of the trust funds. These account managers deal directly with the board of trustees, responding to problems in administering the trusts, "marketing" new services, and such like.
The administrative functions at Yonge also reveal the considerable centralization of managerial authority at that location. In addition to the functions already noted, planning and operational changes (with respect to the clients through the account managers and the straight operation of the respondent through the management group) are carried on at Yonge for both Yonge and Dupont.
There is an office manager at Dupont, J. Murray, who provides the on-site day-to-day supervision. She sets staffing schedules, including the vacation schedules, directs the workforce at Dupont, etc. However, she reports to the vice-president, operations, C. Bulger, at Yonge. Decisions regarding hiring, firing, discipline and employee evaluations are not taken without consultation with or approval of her supervisor. Considerable evidence was led with respect to the extent of Murray's authority. The applicant, in particular, extensively reviewed Murray's authority in the context of his argument that she had the day-to-day autonomy analogous to the managers of retail stores noted in K Mart, supra. In the Board's view, the evidence falls short of the standard in K Mart. At present, Murray is not independent of Bulger with respect to a broad range of decision-making, especially in the "personnel" area (discipline, evaluations, etc.) affecting Dupont employees. While admittedly the frequency of such contact may decrease as Murray gains experience, the Board considers that the respondent's administrative structure and centralization of managerial authority are such as to preclude the kind of autonomy enjoyed by managers of individual retail locations. Dupont is and will remain an "extension of' Yonge. Both these factors in Usarco, then, lead to the finding that a single bargaining unit is appropriate.
In terms of geographic circumstances, the two locations are some three miles apart. What is critical, though, is that Dupont is linked to Yonge via computer. The computerization of the operations is further discussed infra at paragraph 22. There is also a daily courier service between both locations, delivering various reports, data, misaddressed mail, etc. "Bargaining unit" staff at both locations have relatively little day-to-day contact. There is a joint party at Christmas and golf tournament, on the social side. The applicant stressed this lack of regular daily contact between employees at both locations (who should be in the same bargaining unit, in the respondent's submission) as a factor supporting a separate unit for Dupont. However, the Board notes that the "daily contact" approach would not lead to even the claims payers and administrators at Dupont being in the same unit. Employee interaction, in the present circumstances, is not especially helpful in determining the issue before the Board. The other "community of interest" factors favour the larger unit.
It is evident from the findings thus far, that the Board considers the larger unit to be appropriate. The remaining factors enunciated in Usarco (functional coherence and interdependence, economic factor, source of work) overwhelmingly support that conclusion. Both locations function together to provide service in respect of the labourers' local 1 83 funds and the labourers' multi-local fund. Some aspects are performed at Dupont: over the counter dealings with members, claims payment, welfare administration. Others are carried out at Yonge: account managers, marketing, consulting, financial services, etc. New work in respect of those accounts is solicited at Yonge, primarily by account managers.
There is some evidence of permanent and temporary transfers between locations, especially with respect to the advancement of employees. Given the restricted scope of operations at Dupont, "career" development lies through Yonge Street. There is also evidence of relatively frequent transfers of work, including reports to and from Yonge for processing, work overloads, vacation and illness back-up, special projects.
What decisively establishes the functional coherence and interdependence of Dupont and Yonge, though, is the computerization project. This programme, adopted in early spring 1984, is well underway. The computer is located at Yonge; four terminals are slated for Dupont. In order to service the members coming in to Dupont, the employees will have to access the computer at Yonge. Moreover, work currently being performed at Dupont by administrators, such as data entry, will be transferred to Yonge, resulting in the planned loss of a number of jobs at Dupont. The intimate relationship may be simply expressed: if the computer is "down" at Yonge, Dupont will not be able to service the members of labourers' local 183 and labourers' multi-local.
In the Board's view, two bargaining units would hinder transfers, postings and promotions between locations. The Board considers this aspect quite serious in view of the planned reduction of the Dupont workforce as a result of the computer project. Again, the Board stresses that the project was adopted months before this certification application and is in midstream.
In this connection, it is also critical to note that the contract with the labourers which is the raison d'etre of Dupont may be terminated in several ways: contract expiry; termination without cause on ninety (90) days notice or with payment in lieu of notice~ termination without notice with cause; termination if one O'Hara (account manager of the labourers' accounts and senior vice-president) is no longer employed by the respondent. Termination of the labourers' contracts is not improbable: the contract was only transferred to the respondent from another administrator in 1979. Placing the Dupont employees in a separate bargaining unit would be exposing them to far greater risks than if they were in the larger bargaining unit.
Thus, the Board finds that the criteria in Usarco lead inexorably to the conclusion that there is a community of interest between the employees at Yonge and Dupont. To separate the Dupont location would result in undue fragmentation, not conducive to collective bargaining.
The Board, however, has also considered the decision in K Mart but regards that case as distinguishable. In particular, the Board reviewed the criteria in paragraph 14 of K Mart in the context of the present case. The absence of the necessary autonomy in the office manager s position has already been noted. The respondent does not operate from a number of "repeating" units within the municipality; Dupont is merely an extension of the Yonge operation. The Board need not decide whether Dupont is a "branch office" or a "department". Its relationship to Yonge is clearly not analogous to the several retail locations in K Mart. More importantly, although the applicant organized the employees solely at the Dupont location, the Board does not consider that the larger unit, in the circumstances, would "significantly impede employee access to collective bargaining" (K Mart, supra, para. 14, item (5)). The Board has balanced the interests of those employees who have signified they wished to exercise their right to bargain collectively and be represented by the applicant and the community of interest of those employees and the employees at Yonge. The Board, as noted, has also considered the factor of undue fragmentation, if Dupont were a separate bargaining unit. Balancing all those interests in the present circumstances, the Board finds that the Dupont location should not comprise a bargaining unit separate from Yonge.
Thus, having regard to the foregoing, including the agreement of the parties, the Board finds that:

constitute a unit of employees of the appropriate for collective bargaining.

This matter is hereby referred to the Registrar.