[1986] OLRB Rep. September 1301
3039-85-R; 3179-85-R Teamsters Chemical Energy & Allied Workers Union Local 424, Applicant, v. Resco Chemicals & Colours Ltd., Respondent, v. Group of Employees, Objectors; Resco Chemicals and Colours Ltd. and Resco Distributing Company Limited, Applicants, v. Teamsters Chemical Energy and Allied Workers Union, Local 424, Respondent
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members B. L. Armstrong and W. H. Wightman.
DECISION OF THE BOARD; July 28, 1986
This is a request for reconsideration of a decision of the Board dated April 23, 1986 [[1986] OLRB Rep. Apr. 544]. In order to appreciate the context in which the present request arises, and the problems which it poses, it is necessary to sketch in some background. One might usefully begin by quoting paragraphs 3 and 4 of the earlier decision:
The respondent employer is a manufacturer of colourants and has production facilities in Mississauga, Ontario. On January 28, 1986, the applicant union applied for certification as bargaining agent for what might be described as a "standard" production employee bargaining unit. (See Board File No. 2616-85-R.) That application, as initially framed by the union, would have included the five laboratory staff in the production bargaining unit, however, the employer objected. Eventually the parties agreed that quality control personnel would be included in the production bargaining unit, but the laboratory staff would be excluded. On the basis of that agreement both parties waived their right to a formal hearing and, because the union had the requisite degree of support, the Board issued a certificate. The agreed bargaining unit is described as follows:
All employees of Resco Chemicals & Colours Ltd. in Mississauga, save and except supervisors, persons above the rank of supervisor, office, sales, clerical and laboratory staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.
Counsel for the employer advised the Board that the employer had requested the exclusion of laboratory personnel because, in its view, those employees did not have a community of interest with production workers, and for collective bargaining purposes, technical or laboratory employees are usually grouped together with office workers - as, indeed, they often are. Counsel for the union explained that the union was agreeable to excluding laboratory personnel because, in the union's experience, they had been treated as a separate bargaining unit unto themselves. It is interesting to note that on the basis of the facts disclosed in the Board's decision in the earlier case, the union would have been certified without recourse to a representation vote whether or not the laboratory personnel had been included in the production bargaining unit. In other words, there is no basis for any suspicion that the union was "tailoring" its bargaining unit description to its distribution of membership support. The union was "certifiable" whether or not the laboratory staff were included in the production bargaining unit; and, had the union pressed its original claim, the Board would have issued an interim certificate and conducted an inquiry to determine whether the laboratory personnel should also be included in the bargaining unit. As it was, the union and the employer (for different reasons) reached agreement on their exclusion, and proposed to the Board a bargaining unit description which (superficially at least) reflects the one which the Board generally considers appropriate. Since the proposed unit reflected both the agreement of the parties and the Board's established practice, there was no need to inquire further. The union was certified to represent the employees in that unit.
The earlier certification application and eventual certificate (dated February 21, 1986) established the union's bargaining rights for what might be described as a "generic" or "standard", "full-time production unit". The employees remaining unrepresented were "office, sales, clerical and laboratory staff; any individuals working on a part-time basis (i.e., regularly employed for not more than twenty-four hours per week) and any students employed during the school vacation period". These individuals, excluded from the bargaining unit, were a potential target for subsequent organization by the union. That is what happened.
On March 10, 1986, the union made a second certification application, and at the hearing on April 4, 1986, the union indicated that it was only seeking to represent the laboratory staff. Both counsel argued on that basis: the union contending that the laboratory staff were an appropriate "tag-end to the production unit" and the company asserting, in effect, that the Board should follow its usual practice of grouping together all office, clerical and technical employees into one "white-collar" bargaining unit.
But that is not precisely how the application was framed, nor the way in which the employer drafted its reply. The union's (second) certification application contains the following description of the unit which the union was seeking:
All employees of Resco Chemical & Colours Ltd. at Mississauga, save and except supervisor, those above the rank of supervisor, clerical, office and sales staff, and persons in any bargaining unit for which a trade union held bargaining rights as of March 10, 1986.
The union's estimate of the number of employees in its desired unit suggests that it had only lab staff in mind, but the proposed bargaining unit description is actually broader than that. It would exclude clerical and sales staff, but when read together with the earlier certificate it would clearly include laboratory staff, part-time production workers (if any), and students employed in other than a sales or clerical capacity. The indication of the union's real intention is not found in the description of the bargaining unit, but rather in the style of cause where the respondent employer's name is listed as "Resco Chemicals & Colours Ltd. (laboratory staff)". The bargaining unit description is rather misleading, and the Form 6 notice to employees is, at the very least, ambiguous insofar as it relates to the potential impact on some employees excluded from the production unit, not working in the lab, but not clearly excluded from the proposed bargaining unit either.
- How did the respondent reply to the application? In the first place, it proposed a different bargaining unit description, framed as follows:
All employees of the respondent in Mississauga, save and except supervisors, persons above the rank of supervisor, persons regularly employed for not more than twenty-four hours per week, students employed during the school vacation period and employees covered by the Ontario Labour Relations Board Certificate dated February 21, 1986".
The employer's proposed unit would not encompass any part-time employees or students (wherever they were working) but would cover office and clerical employees in addition to the lab staff who were the union's real target.
In addition, the respondent filed a "Schedule 'A"' which is established under the Rules is part of Form 4 and requires an employer to provide a "list of all of the full-time employees in he bargaining unit described in the application". There is a parallel requirement to provide a schedule "B" list of part-time employees working not more than twenty-four hours per week. The employer responded (correctly as it turned out) as if the application related only to lab employees even though the unit described in the application is broader than that, and read literally would include part-time production employees and students. There was no mention at the hearing of any part-time production employees and nothing in the material before the Board to indicate their existence. Perhaps the Board should have inferred that possibility from the way in which the first description was framed, but no one at the hearing mentioned it. The focus of the debate was whether the bargaining unit should be limited to laboratory staff or should, instead, encompass all P11-time, office, clerical and technical personnel. The duties of the lab employees were not seriously in dispute. The question was whether to give them their own bargaining unit or group them together with office and clerical workers.
After considering the facts, the Board determined that the laboratory staff did not share community of interest with the office and clerical workers but, on the contrary, had a community )f interest with production employees in much the same way as the quality control personnel who had earlier been included in the production unit. Indeed, the Board observed:
If the facts before us had been before the earlier panel of the Board, we are quite confident that the laboratory staff (like the quality control personnel) would most likely have been included in the "production" bargaining unit.
The Board then went on to say:
Of course, there was no intentional misrepresentation or intent to mislead the Board in the earlier case. We are satisfied that when the employer sought the exclusion of laboratory staff it was acting in good faith upon its own understanding of Board practice and their community of interest. The fact remains, however, that a group of employees who should probably be part of the "production" bargaining unit have, unintentionally, been left out. The question then becomes what should the Board do: sanction a bargaining unit which would not ordinarily be considered appropriate by itself or, alternatively, require the laboratory employees to bargain together with the office and sales staff with whom they have no strong community of interest and who, to date, have given no indication of any interest in collective bargaining. The first option leads to fragmentation of the bargaining structure, which can sometimes lead to collective bargaining problems (in this regard see Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, Kidd Creek Mines Ltd., [1984] OLRB Rep. March 481, and Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250). The second option would result in a dismissal of this application for certification because, although the laboratory employees have indicated an interest in collective bargaining, the office staff have not. (We should note, parenthetically, that there might also be a problem if the lab staff were numerous enough and the union's support strong enough that a certificate would issue even if the office employees were "swept in" to a generic office, clerical and technical bargaining unit. The unit might then include employees with divergent collective bargaining interests.)
We have considered the alternatives and the parties' representations and have concluded that the better balance is struck by our adopting the approach taken by the Board in B. F. Goodrich - although we do not adopt its terminology. A "tag-end" unit is a unit of unrepresented employees who, for one reason or another, have been excluded from the standard or generic bargaining units in place in an employer's enterprise. A "tag-end unit", as the name suggests, is ordinarily the last bargaining unit, encompassing all unrepresented employees and fashioned in terms which will ensure no further fragmentation of the bargaining structure. There is only one "tag-end unit". There is not a "tag-end" unit corresponding to each existing bargaining unit. By its very terms, a tag-end unit may include a diverse grouping of employees with no strong community of interest with each other. The suggestion that there can be a "tag-end" to each of the generic or existing bargaining units would double the number of potential bargaining units in any enterprise and raise the very spectre of fragmentation that the notion of a "tag-end" was designed to avoid. We repeat: there can be only one tag-end unit.
Having regard to the unusual circumstances of this case, we are prepared to accede to the union's request and find appropriate a unit of employees encompassing laboratory staff, but in order to avoid the potential for undue fragmentation of the bargaining structure, we think it should be framed in “tag-end terms". We are not persuaded that a bargaining unit framed in this way would create any serious collective bargaining problems for the employer and it will leave open to the office staff a coherent generic bargaining unit should they wish to engage in collective bargaining some time in the future. Finally, we should note that the union and the employer are currently engaged in collective bargaining for a collective agreement to cover the plant unit. There is no collective agreement yet in place so that any problems arising from the unfortunate (if inadvertent) exclusion of laboratory staff from the production unit can be addressed at the bargaining table.
For the foregoing reasons, the Board finds that the appropriate bargaining unit should be framed as follows:
All employees of Resco Chemicals and Colours Ltd. and Resco Distributing Company Limited in Mississauga, save and except supervisors, persons above the rank of supervisor, office, sales and clerical staff, and persons for whom any trade union held bargaining rights on the date hereof.
The Board was faced with a dilemma. On the basis of the evidence and the usual criteria for measuring community of interest, the lab employees should have been in the production unit. But they had been left out. Should the Board reconsider that earlier decision as it was entitled to do under section 106(2) of the Act? That might pose problems too. It would involve reopening a decision, made some months earlier, by another panel of the Board, based upon the agreement of the parties. Should the union be permitted to resile from what, in retrospect, was an unwise agreement? Alternatively, the Board could adopt a "second best solution" and try to draft a unit description which would accommodate the employees' interests in this unusual situation (i.e. not to be "lumped in" with employees with a different community of collective bargaining interest), minimize the potential for fragmentation (a concern usually voiced by employers) while at the same time not sending a false signal to the labour relations community that the Board was relaxing its longstanding opposition to departmental bargaining units. Over the years the Board has been exceedingly reluctant to describe or grant bargaining units based on departments because of the balkanization of collective bargaining that that would produce. Any false signal in this regard would inevitably lead to uncertainty and litigation for the fact remains that, whatever problems may have arisen in this case, the parties' understanding of the Board's usual approach to bargaining unit determinations prompted a resolution of the first certification application without the necessity of a formal hearing. Precedent has its purposes - not least of which is to avoid unnecessary disputes in an industrial relations process which is already prone to adversarial relationships.
In the result, the Board decided not to describe the unit in terms referring solely to laboratory staff. Recognizing that the lab employees should be in the production unit but were not, and should not in this case be in an "office and clerical unit", the Board tried to describe what was left over in a general way, using the terminology of the "tag-end unit" to describe a group who for one reason or another had been left out of the "generic" bargaining unit.
The effect of the Board's bargaining unit description was obvious - at least with the benefit of hindsight. In an effort to describe the unit in "tag-end terms" to avoid the possibility of future fragmentation, the Board adopted bargaining unit terminology which would include part-time production workers who, in the ordinary course, would themselves form what the Board described as a "generic production" bargaining unit. Moreover, those employees had been included either without notice to them or, at best, with the rather ambiguous notice mentioned above.
How did this problem come to light? Shortly after the release of the Board's decision, counsel for the respondent wrote to the Board to advise that there were several part-time production workers who would fall within the ambit of the Board's bargaining unit description who were not included on the schedule filed by the employer. Their presence should be considered in determining whether the union is entitled to certification. He is quite right. The problem though, is that it was not the Board's intention to include part-time production workers in the bargaining unit, and it would not have done so had it known of their existence, nor would such part-time workers ordinarily be included in the kind of "tag-end" unit the Board tried to create. They would typically be grouped in a part-time production bargaining unit, mirroring the full-time one, but encompassing workers whose part-time status would ordinarily indicate a different community of interest. In the absence of the agreement of the parties, the Board would not include (and the earlier panel did not include) part-time production workers in the full-time production bargaining unit and there is as little reason to include this cluster of part-time production workers in a unit of full-time laboratory staff. That result was inadvertent and unintentional, and the Board would not have made the decision (particularly without adequate notice to those employees) if it had been aware of the existence of part-time production workers.
How should the Board rectify this situation? There is no way that is entirely satisfactory. The present unit description is based upon inadvertence and inadequate information and to sweep the part-timers in (whatever the result) would require a new notice, a new terminal date, and a new hearing. The alternatives of reconsidering the production unit certificate or simply giving the union its proposed "laboratory" bargaining unit, pose the difficulties to which we have already referred. There is no entirely satisfactory solution. However, having considered the situation, we have come reluctantly to the opinion that we should reconsider our decision and the bargaining unit description found in paragraph 24 and should frame the bargaining unit explicitly in terms of the laboratory staff. Our only reservation concerns the possibility of a history of part-timers working in the lab and/or students employed in the lab during the school vacation period which, ordinarily, would warrant their exclusion and potential grouping in a separate part-time lab unit. The evidence was not clear on this point and given the unfortunate history of this case, the Board is reluctant to speculate. Accordingly, while indicating that we are prepared to reconsider our decision along the lines mentioned above, and, to that end, we hereby revoke the certificate issued on April 23, 1986, we are not prepared to finalize the bargaining unit until we receive the parties' submissions, in writing, as to the presence or absence of a history of part-time lab employees, and/or students.
Having regard to the foregoing, the Board hereby certifies the applicant on an interim basis for all employees of Resco Chemicals and Colours Ltd. and Resco Distributing Company Limited (being "one employer" under the Labour Relations Act) in its laboratory in Mississauga, save and except supervisors, persons above the rank of supervisor, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period. A final certificate must await the submissions of the parties on the existence of a history of part-time lab employees.
We recognize, of course, that the creation of a separate laboratory bargaining unit (or perhaps two) is somewhat anomalous and inconsistent with the Board's usual practice. But that anomaly can be traced, fundamentally, to the parties' agreement before the earlier panel of the Board to exclude laboratory employees from the production bargaining unit when, on the basis of community of interest, they really should have been included.