Ontario Labour Relations Board
[1985] OLRB Rep. May 693
0044-85-R; 0045-85-R United Steelworkers of America, Applicant, v. Kuehne & Nagel International Limited, and 3M Canada Inc., Respondents, v. Group of Employees, Objectors
BEFORE: S. A. Ta con , Vice-Chairman, and Board Members J. A. Ronson and B. L. Armstrong.
DECISION OF THE BOARD; May 8, 1985
The name: Kuehne & Nagel Distribution Services appearing in the style of cause of this application as the name of a respondent is amended to read: Kuehne & Nagel International Limited. It is understood that the certification application is in respect of Kuehne & Nagel International Limited in its Distribution Services Division.
This is an application for certification. The applicant also sought a declaration of a related employer pursuant to section 1(4) of the Labour Relations Act.
The Board hereby directs that the above applications be and the same are hereby consolidated.
With respect to the certification application, the applicant sought a bargaining unit description which covered two municipalities, namely, the City of Brampton and the City of Mississauga. The applicant asserted that this was an appropriate case for the Board to depart from its general policy with respect to bargaining unit descriptions, i.e., municipal-wide bargaining units. The applicant then proceeded to relate a number of facts to the Board. It was agreed that the Board would assume that the facts as presented were true and then determine whether those facts were sufficient to raise a serious question as to whether it would be appropriate for the Board to depart from its usual practice in defining bargaining units. If the Board found in favour of the applicant on this preliminary assessment, the Board would then proceed to hear the evidence in detail.
The Board does not intend to set out the facts asserted by the applicant at great length. Examples were given of various terms and conditions of employment common to all employees regardless of their work location. The applicant submitted documentary evidence in the form of a common policy manual and two memos to employees which indicated that employees could readily be assigned work at various locations of the company in the Cities of Brampton and Mississauga. For convenience, the manual, the memo dated December 28, 1984 and the memo dated March 5, 1985 are marked as exhibits 1, 2 and 3 respectively. The work histories of two employees were reviewed; both revealed a not infrequent transfer between various locations and reassignment of work. Counsel stated that employees were moved back and forth between locations and, as well, goods could be warehoused initially in one location but subsequently transferred to other locations. It was recounted that seniority was divided along municipal boundaries but employees carried their seniority with them when reassigned and, further, could request to displace another employee in the other municipality who had less seniority. By way of argument, counsel for the applicant asserted that the factors with respect to community of interest as set out in Usarco, [1967] OLRB Rep. Sept. 526 were satisfied on the instant facts and that, in particular, there was a functional coherence and interdependence between the operations in the two municipalities. Counsel referred to Sack and Mitchell, Ontario Labour Relations Board Practice and Procedure (Butterworths, 1985) at Ch. 3:3140 wherein the Board policy and the exceptions thereto are discussed. Moreover, counsel referred to Adams Furniture Company, [19751 OLRB Rep. June 491 and Wix Corporation, [1975] OLRB Rep. Aug. 637. It was contended that the facts as outlined raised a serious argument that the general Board policy should not be followed in this case.
Counsel for the respondent Kuehne & Nagel added a few additional facts, including that there is a separate management at the local level at each location although above that level there is common senior management. Further, the size of the warehousing facilities at the Brampton location is roughly equal to that in the three Mississauga locations combined. Counsel did not dispute the assertion that there were exceptions to the Board's general policy of certifying on the basis of municipal-wide units and that the test for such exceptions was whether there could be demonstrated a regular and substantial interchange amongst employees at the various locations, in the context of the usual community of interest factors. Counsel referred to Wittich 's Bread Limited, [19691 OLRB Rep. Jan. 1019; Perimeter Industries, [1973] OLRB Rep. Mar. 174; Bruce Peninsula, [1982] OLRB Rep. May 656; and F. W. Woolworth Co. Limited, [19811 OLRB Rep. June 653. Essentially, counsel contended that the facts asserted by the union did not satisfy the relevant test.
In reply counsel for the applicant distinguished the cases cited by counsel for the respondent Kuehne & Nagel and stressed that the considerations may well be different where the employer was asserting a larger unit was appropriate. That is, in those cases, it was argued that the caselaw indicated a concern with self-determination and the viability of the collective bargaining units sought. In the instant case, counsel stressed that the circumstances related were not isolated incidents but revealed a pattern in which the employer dealt with the employees as a single integrated work force regardless of location.
At the hearing, the Board made the following oral ruling:
The Board has considered the parties' submissions and reviewed the cases cited where copies were provided. The Board considers that the cases indicate that there are exceptions to the general policy of municipal-wide bargaining units, although such exceptions are relatively rare or, to state the matter conversely, the general policy may be described as being relatively firm. The test or standard for departure from municipal-wide units is usually expressed as regular and significant interchange in the context of the other community of interest criteria, as established in the Usarco case, and whether there is sufficient membership support for the applicant to respond to the Board's concerns regarding employees being swept in or denied self-determination. In this case, the applicant asserts, through the stated facts, that there is at least enough of an indication of regular and significant interchange and community of interest and widespread union support that it should be permitted the opportunity to present detailed evidence to satisfy the test. With this assertion, the Board agrees. What the Board has heard thus far by way of stated facts assumed true is enough to raise a serious issue as to whether the Board should depart from its usual policy in defining bargaining units by reference to municipality. Accordingly, the Board appoints a Board Officer to inquire into this matter.
Further, however, the Board directs the Board Officer to inquire into the community of interest, alleged by counsel for the employee objectors, between only the employees at the 3M warehouse in Mississauga (excluding the purely Kuehne & Nagel and purely 3M employees). It is clear that counsel's position in this regard is that such a unit is appropriate on a community of interest basis regardless of whether the Board ultimately would depart from a municipal-wide description in respect of the applicant's claim. It is expeditious and appropriate, therefore, to combine both community of interest inquiries.
With respect to proceeding further, the Board is not persuaded that it would be appropriate to commence hearing evidence today on any of the other issues (e.g., the 1(4), allegations of union misconduct in soliciting membership, the petitions, the counter-petitions). Firstly, the determination of the bargaining unit is critical to assessing the remaining issues and, more importantly, the hour is now relatively late to commence viva voce evidence.
Therefore the Board appoints a Board Officer to inquire into and report back to the Board on the community of interest: (1) between employees of Kuehne & Nagel at the various locations in Brampton and Mississauga; (2) amongst employees of Kuehne & Nagel at the 3M warehouse in Mississauga (excluding those described by the parties as purely Kuehne & Nagel or purely 3M employees), that is, amongst this former group separate from the other employees at the various locations of the respondent in Brampton and Mississauga.
The Board, finally, appoints a Board Officer to inquire into whether there is a history of part-time employees at the various locations of the respondent in Mississauga and Brampton, given the position of counsel for the respondent Kuehne & Nagel that there were no such part-time employees at the application date but there is a history of employing such persons.
Finally, the Board will direct the Board Officer to proceed with the inquiries as expeditiously as possible and, particularly, will stress the need to provide the transcripts subsequent to the conclusion of the examinations without extended delay.
The Board hereby confirms the above oral ruling. It should be noted that the Board rendered a further oral ruling rejecting a submission by counsel for the applicant that the Board should give specific dates for completion of the examinations by the Board Officer and the production of transcripts. The Board does not consider it necessary to set out the submissions and the Board ruling in detail on this matter.
Accordingly, this matter is hereby referred to the Registrar. This panel is not seized in respect of the issue remaining in dispute between these parties.