United Food and Commercial Workers International Union Local 175 v. Hunter Douglas Canada Limited, 1985 CanLII 942

United Food and Commercial Workers International Union Local 175 v. Hunter Douglas Canada Limited

[1985] OLRB April Rep. April 535

3323-84-R United Food and Commercial Workers International Union Local 175, Applicant, v. Hunter Douglas Canada Limited, Respondent, v. Group of Employees, Objectors

BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. Kobryn and J. Wilson.

APPEARANCES: J. James Nyman, Bruce Zufelt and Matti McKay for the applicant; Bruce Pollock, Ralph Brehn, Ken Telmer and Noel Bartholomew for the respondent; Kevin Watson, Wayne King and Chris St. John for the objectors.

DECISION OF THE BOARD; April 23, 1985

1The name of the respondent is amended to read: Hunter Douglas Canada Limited.

2The Board finds that the applicant is a trade union within the meaning of section 1(l)(p) of the Labour Relations Act.

3The parties are in agreement on the description of the bargaining unit appropriate for collective bargaining with the exception of a difference on whether the bargaining unit ought to be described with reference to in the City of Mississauga or with reference to in its Architectural and Window Covering Products Division in the City of Mississauga. It is the position of the applicant that the bargaining unit ought to be defined with reference to the City of Mississauga. It is the position of the respondent that the bargaining unit ought to be defined with reference to the named Division.

4At the present time the respondent has only one facility in Mississauga. However, the respondent stated that while it had no plans to put in a new division in Mississauga, it could put another division in Mississauga. The respondent is a large Canadian organization which has three other divisions in addition to the division which is affected by this application. Other divisions of the respondent have operations in the greater Metropolitan Toronto area.

5The Board's practice with respect to defining the geographic boundaries of appropriate bargaining units and ensuring the stability of bargaining rights was set forth in York Steel Construction Limited, [1980] OLRB Rep. Feb. 293 at page 295, where the Board stated:

6. The Board in Wix Corp Ltd., [1975] OLRB Rep. Aug. 637 canvassed in some detail the Board's practice with respect to defining geographic limitations in the appropriate bargaining unit. Apart from the construction and perhaps certain service industries, the Board's policy, where the employer has employees at only one location within a municipal area, is to describe the bargaining unit in terms of the municipality itself (Perimeter Industries Limited, [1973] OLRB Rep. March 174). On occasion the Board will expand its definition of the bargaining unit to encompass an area greater than a single municipality (see The Board of Health of the York-Oshawa District Health Unit, [1969] OLRB Rep. Feb. 1178: The Adams Furniture Company Limited, 119751 OLRB Rep. June 491: and note as well the Board's normal unit of the Municipality of Metropolitan Toronto), but is reluctant to do so in the absence of compelling reasons (Wittch 's Bread Limited, [19691 OLRB Rep. Jan. 1019; Del Zotto, [1972] OLRB Rep. June 637 and Canada Safeway Limited, [1972] OLRB Rep. Mar. 262). The primary reason for this policy of municipality-wide bargaining units is the Board's concern for stability of bargaining rights; i.e., the union's bargaining rights will not be affected by a subsequent move of the employer's operation to some other location within the same municipality. On the other hand, actual accretions to the employer's operations within the municipality, such as a second or third plant. will automatically be covered by the union's certificate. To this latter extent, the right of self-determination of a bargaining agent by the employees at these new locations is compromised, in favour of the over-riding concern for stability of bargaining rights.

6In the instant application the respondent has one facility in Mississauga and has no plans for any subsequent facilities in Mississauga. The arguments of the respondent based upon any future facilities in Mississauga are based upon hypothetical facts and are therefore purely speculative in nature. While section 3 of the Act does state that every person is free to join a trade union of his own choice and to participate in its lawful activities, it ought not to be read in isolation. Section 3 is to be applied to the facts in this application. On the one hand the interests of present employees who have indicated they wish to be represented by the applicant are to be considered and on the other hand there are the highly speculative interests of future persons who may or who may not become employees of the respondent in Mississauga. As the Board stated in K-Mart Canada Limited, [1981] OLRB Rep. Sept. 1250, nowhere is the balancing of the statutory objectives more evident than in the Board's normal practice of circumscribing the geographic scope of bargaining rights by reference to the municipal boundary within which an employer operates.

7In balancing the interests of present employees against the possible interests of unforeseen future employees, the balance is struck in favour of addressing the interests of present employees in the stability of their bargaining relationship with the respondent. With respect to the respondent's arguments that the appropriate bargaining unit be defined with respect to one of its divisions, the Board is not persuaded that its arguments have any merit. The respondent acknowledges that the bargaining unit ought to be described without reference to a municipal address in the interests of stability of bargaining rights while arguing for the reference to one of its divisions in defining the appropriate bargaining unit.

8In our view, the arguments of the respondent must fail. The inclusion of a reference to a division of the respondent in the appropriate bargaining unit is a destabilizing factor in bargaining rights. It is arguably open to the respondent to change its internal corporate structure and change and/or substitute a different division in its present premises in Mississauga. It is arguably even easier to effect a change in the internal corporate structure of the respondent than it is to relocate to a new address in Mississauga. For these reasons the appropriate bargaining unit is to be described without reference to a division of the respondent in the City of Mississauga.

9Having regard to the foregoing, the Board further finds that all employees of the respondent in the City of Mississauga, save and except lead hands, persons above the rank of lead hand, office, clerical and sales staff and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

10The Board notes the agreement of the parties and notes for the purpose of clarity that lead hands are the first line management and are therefore excluded in accordance with the provisions of section l(3)(b) of the Act.

11The Board is satisfied on the basis of all the evidence before it 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 21, 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.

12A certificate will issue to the applicant.