[1985] OLRB Rep April 589
1305-84-R Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Applicant, v. Sears Canada Inc., Respondent, v. Group of Employees, Objectors
BEFORE: S. A. Tacon, Vice-Chairman, and Board Members F. C. Burnet and O’Flynn.
APPEARANCES: Hugh Buchanan, Jim McKenzie and Jim Pound for the applicant; C. G. Riggs, Nancy Eber, M. Bates, L. Ubell, K. Eady and F. Covelly for the respondent; Donald D. White and Maureen Day for the objectors.
DECISION OF S. A. TACON, VICE-CHAIRMAN, AND BOARD MEMBERS. O'FLYNN; April 16, 1985
By decision of the Board (differently constituted, in part), dated September 11, 1984, the parties were in partial agreement on the bargaining unit description (see paragraph 4 of that decision). A Board Officer was appointed to inquire into the matters remaining in dispute, namely, whether the term retail stores in the bargaining unit description includes the service centre at 823 Erskine Avenue on the basis of community of interest and whether the employees in the customer convenience centre and the merchandise control office are included in the bargaining unit or excluded as office and clerical employees.
The application was brought on again for hearing after the release of another Board decision between the same applicant and respondent, Sears Canada Inc., [1985] OLRB Rep. Jan. 111, (hereinafter referred to as the Kingston decision) which dealt with similar arguments about community of interest and the office and clerical exclusion.
The parties agreed that, in view of the Kingston decision, staff in the customer convenience centre and the merchandise control office in the retail store in Peterborough would be excluded from the bargaining unit as office and clerical. It was also no longer disputed that the service centre in Peterborough did not share a community of interest with the retail store in Peterborough. It should be noted that the applicant had separately applied for certification of the service centre (Board File No. 2259-84-R). What remained in dispute, however, was whether the bargaining unit with respect to the retail operation should be described as retail store(s) in Peterborough Ontario or retail store at Lansdowne Street.
The applicant submitted that, notwithstanding the Kingston decision which referred to a street location, the Board's practice is to describe the bargaining unit as retail store(s) within a municipality where there is (as here) a single location. The applicant referred to several cases in support: T. Eaton Company Limited, Board File No. 3015-83-R, decision dated April 13, 1984; Simpsons Limited, Board File No. 1781-84-R, decision dated November 7, 1984; Simpsons Limited, Board File No. 1878-84-R, decision dated November 15, 1984; Simpsons Limited, Board File No. 0887-84-R, decision dated July 30, 1984; Simpsons Limited, [1984] OLRB Rep. Sept. 1255.
The respondent company submitted that the Board should follow the pattern in the Kingston decision and certify the retail store at the existing street location only. In particular, since some retail functions were performed at the service centre, as found in the Kingston decision, certification on a single store location basis was needed to avoid confusion. It was conceded that the operations at the retail store and the service centre in Peterborough paralleled those at Kingston. Moreover, it was argued the fact that the respondent operated catalogue stores, albeit not in Peterborough, strengthened the need for certification of retail stores by street location to avoid confusion. In effect, the respondent asserted the applicant was being inconsistent in its submissions as between the Kingston and Peterborough certification applications. Finally, the respondent argued that the use of the plural retail stores in the agreed bargaining unit description reflected only the respondent's position that the service centre was included in the appropriate bargaining unit.
The Board also heard submissions from counsel for the employee objectors. Counsel submitted that, with respect to the instant certification application and with respect to the certification application Board File No. 2259-84-R, the period between the date the notices were posted and the terminal date was inadequate and unreasonable. While the Board heard the argument in connection with the instant certification application, the parties agreed that the ruling on this issue in this case would be determinative of the matter in the other certification application as well. It was also agreed that the notices were posted seven days before the terminal date in each application.
Counsel for the employee objectors argued that the seven days was inadequate given the time needed to obtain legal advice and to prepare and circulate a petition opposing certification, particularly where employees may be on vacation, work shifts, etc. and prior to a final determination of the size and scope of the bargaining unit. Counsel did not refer the Board to any cases in support of his argument nor to cases in which similar arguments were considered by the Board and rejected. Counsel also suggested that the Board practice possibly violated natural justice and section 6 of the Statutory Powers Procedure Act; neither of these points was elaborated further.
The applicant submitted that the Board had followed its normal procedures with respect to setting the terminal date and that terminal date was within the usual period following the application date. The applicant asserted that counsel, in effect, was quarrelling with longstanding Board practice in dealing with certification applications.
With respect to the remaining issue in dispute regarding the bargaining unit description, the Board reserved its decision. With reference to the objection raised by counsel for the employee objectors, the Board ruled orally as follows:
The Board has considered the submissions of the parties. In the Board's view, the arguments presented have been raised on numerous occasions before the Board. The Board does not intend to review those arguments in detail but would refer to one case which sets Out the Board's approach and the relevant considerations: Macdonnell Memorial Hospital, [1979] OLRB Rep. Oct. 996. The majority of the Board sees no reason to depart from the Board's usual approach, particularly where, as here, there were seven days between the posting of the notice and the terminal date. (Board Member Burnet dissented.)
The Board hereby affirms the above oral ruling and would add that the Board followed its customary practice, as set out in Rules 2 and 73 of the Rules of Procedure, in fixing the terminal date for this application. The Board's authority to so act is set out in section 103(2)(j) of the Labour Relations Act. Finally, the Board notes that the seven day period between the date of the posting of the notices and the terminal date exceeds the period which has generally been upheld by the Board as sufficient for employees wishing to oppose a certification application to signify such opposition by complying with the Board procedures.
The Board then proceeded with the certification application and reviewed the schedules of employees filed by the respondent and the membership evidence filed by the applicant in support of the application.
At the hearing, the Board indicated that statements of desire in opposition to the application were filed with the Board containing 24 names which corresponded with the employer schedules, including 6 names which coincided with the names of those who signed membership cards in the applicant. The Board ruled at the hearing that the statements of desire need not be dealt with further because, even if voluntary, they would not raise doubt concerning the continued support for certification of the applicant, by a sufficient number of employees who also signed membership cards, so that the Board would exercise its discretion under section 7(2) of the Act to direct that a representation vote be taken despite the fact that more than fifty-five percent of the employees in the bargaining unit were members of the applicant at the relevant time.
Further, at the hearing, the Board determined that the applicant's right to certification could not be affected by the Board's ultimate decision concerning the bargaining unit description issue remaining in dispute. On the basis of all the evidence before it, the Board was satisfied that more than fifty-five percent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on August 29, 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 Act.
The Board, then, subject to its usual second check and pursuant to its discretion under section 6(2) of the Act, certified the applicant as bargaining agent for the employees in the bargaining unit agreed to by the parties and, pending the final resolution of the issue remaining in dispute, describing the bargaining unit with reference to its retail stores.
The Board now turns to the issue reserved at the hearing, namely, should the bargaining unit description be municipal-wide (all retail store(s)) or by street location (retail store at Lansdowne Street). The general Board practice in the retail industry may be expressed fairly concisely. That is, where there is only one store in the municipality, the Board practice is to certify all retail store(s) in that municipality. As stated in Simpsons Limited, Board File No. 0887‑84-R, supra, The plural 'stores' is, of course, used by the Board to indicate that certification is by municipal area, and not by individual store, even though only one store is in existence at the time of the application (at paragraph 3). Where the employer operates at more than one location, the former Board practice of certifying all the stores in the municipality as a single bargaining unit (see: Goodyear Service Stores, 65 CLLC 16,018) has given way to a more flexible approach permitting certification at single locations provided certain criteria are satisfied (see: K Mart Canada Ltd., [1981] OLRB Rep. Sept. 1250). In these circumstances, the street address is included to distinguish the store being certified. This approach, however, assumes there is a community of interest between the employees at the various locations and the operations themselves are integrated: see Usarco Limited, [1967] OLRB Rep. Sept. 526.
In the Kingston case, the applicant essentially put forward two arguments: firstly, the Usarco criteria were not satisfied, i.e., there was no community of interest between the employees at the retail store and the service centre and these two operations were not integrated; in the alternative, the service centre, the only location which had been organized by the applicant, could be certified separately in accordance with the K Mart decision. Certification on the latter basis would require reference to the street address. The respondent argued, basically, that the Usarco criteria were satisfied and, secondly, K Mart was not applicable to the operations in Kingston.
With respect to Peterborough, both the applicant and respondent have changed their submissions. The applicant essentially relied on the finding that the Usarco criteria were not satisfied in the Kingston operations, has dropped the alternative argument made in Kingston, asserts there is only one retail store in Peterborough and, therefore, the certificate should refer to the municipality. The respondent has dropped its Usarco argument in Kingston but argued that the certificate should refer to street address because that would parallel the Kingston decision and because there were some retail operations at the service centre. In effect, the last argument of the respondent obliquely refers to the reasoning in K Mart, i.e., the operations were similar enough that the street location is needed to distinguish amongst the current operations.
The Board notes at this point that the parties are certainly not bound to the arguments made in other cases, at least absent an express agreement to the contrary, and are free to change their positions. The Board also noted that the Kingston decision reflects the arguments made to the Board at that time. That decision found that the Usarco criteria were not satisfied and, in the alternative, the criteria set out in K Mart were present (see paragraphs 24-28). In view of the alternative basis for the decision, the bargaining units were defined with reference to street location.
The question, then, is whether the pattern in Kingston should be followed given that the parties and the format of operations are the same, notwithstanding the arguments of the parties are different, or should the Board follow its usual practice in the industry.
At this point, the Board would note that the use of the plural retail stores in the agreed bargaining unit description (see paragraph 24 of the September 11, 1984 decision dealing with this application) is not of assistance in resolving the dispute. In the Board's view, the plural reflects the respondent's view that both the service centre and retail store should be included in the bargaining unit. The Board is not prepared to find that the use of the plural binds the respondent if the service centre is to be treated separately. Indeed, the applicant did not seriously press this.
In the Board's opinion, it is preferable to follow the Board's general practice and, where there is only a single retail store at the time of the application, to certify on a municipalwide basis. In Kingston, the Board certified the retail location by reference to street address in view of the arguments in that case and, particularly, as required under the alternate ground for decision. In the instant case, the parties are agreed the operations in Peterborough and Kingston are the same. Thus, the Board's conclusion in Kingston that there is no community of interest and no integrated operations between the retail store and the service centre, i.e., that the Usarco criteria were not satisfied, is applicable. The Board does not consider that the selling which occurs at the service centre is sufficient to generate confusion if the retail store is certified without reference to street location. The Board regards both operations as quite distinct for the reasons set out in the Kingston decision. In any event, any confusion may be resolved by the incorporation in the bargaining unit description of a clarity note specifically excluding the service centre. The nature of any future operations will determine whether such operations are properly treated as accretions to the retail stores, the service centre or neither. However, with respect to Peterborough, the Board does not consider it necessary to adopt the alternative basis for the Kingston decision. Again, as stated, it was this alternative ground which required the reference to street address in the Kingston application.
Thus, the Board does not consider that a pattern was irrevocably established in the Kingston decision with respect to the operations of the employer in other municipalities. Kingston is not determinative of the geographic scope of bargaining units at other operations; each application must be determined on the basis of its specific circumstances in the context of the arguments presented and relevant Board practices, if any. In the circumstances of the employee's operations in Peterborough, and the arguments made before this panel, the Board intends to follow the usual Board practice on this issue.
As the Board, as set out above, has resolved the only issue remaining in dispute, the Board certifies the applicant as bargaining agent for all employees of the respondent at its retail store(s) in Peterborough, Ontario, save and except assistant sales managers, supervisors, persons above the rank of assistant sales manager and supervisor, security staff, personnel department staff, management trainees, office and clerical staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period. CLARITY NOTE: For purposes of clarity, persons associated with the photographic department, American Optical, Allstate Insurance and the key shop are not employees of the respondent and are not included within the bargaining unit. Also, for purposes of clarity, the term retail store(s) does not include the service centre.
Having regard to the foregoing, a formal certificate shall issue to the applicant.
Decision of Board Member F. C. Burnet will follow.