Union of Bank Employees (Ontario), Local 2104 v. National Trust

[1986] OLRB Rep. February 250

0414-85-R Union of Bank Employees (Ontario), Local 2104, Canadian Labour Congress, Applicant, V. National Trust, Respondent, v. Group of Employees, Objectors

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members D. H. Blair and 0.'Flynn.

APPEARANCES: Michael Mitchell, Steven Barrett, Dorothy Kent and Larry Bishop for the applicant; Brian Burkett, David Elenbaas, Sharon Scott and Clare Fitzgerald for the respondent; Lillian Byrne, Dorothy P. Montague, Michele Whittaker, Cindy Karlene Dobbin, Jenny Kokkas and Cindy Medeiros for the objectors.

DECISION OF THE BOARD; February 28, 1986

1. This is an application for certification involving various of the branch-offices of the respondent National Trust in Metropolitan Toronto.

2. The respondent operates 37 branch offices across Metropolitan Toronto. In addition,Metropolitan Toronto is the location of the company's head office for its 143 branches across Canada, and two of its seven regional offices for the province of Ontario. The 37 branches across Metro in fact fall into 3 of the respondent's regional areas within the province: the Central Region, the Metro East Region, and the Metro West Region.

3. The present application affects 7 of the respondent's 37 branch operations across Metro. The Metro East Region itself is composed of 14 branches, of which 6 are affected by this application. The Metro West Region has 17 branches, of which 1 is affected by this application. A portion of the Central Region's branches fall within Metro, but are not affected by this application.

4. The position of the applicant is that single branches of the respondent would each constitute an appropriate bargaining unit in this case, but it asks the Board, rather than issuing 7 separate certificates, to consider issuing one certificate for the 7 branches combined. The respondent, for its part, also acknowledges that each single branch would form an appropriate unit in this case, but submits that the only other unit appropriate for collective bargaining would be a unit composed of the employees of all of the respondent's (37) branches in Metropolitan Toronto.

5. The respondent has a three-tiered management structure featuring a Branch, Region, and Head Office level. The agreed statement of facts presented by the parties to the Board notes that:

The terms and conditions of employment for the employees are established by Head Office at National Trust and implemented at the branch level by the Branch Manager with the approval of the appropriate Regional Office.

The full-time employees at National Thist in Toronto have common terms and conditions of employment in terms of hours of work, salary levels, fringe benefits, vacation schedules, paid holidays, overtime, leaves of absence, absenteeism, hirings, terminations, discipline, transfers, promotions and demotions.

Branch Managers are responsible for the financial administrative and personnel functions at the branch. Branch Managers are required, as a matter of written policy, to either involve or obtain the approval of Regional Office and/or Head Office with respect to a wide range of employment matters including hours of work, salary levels, fringe benefits, vacation schedules, paid holidays, overtime, leaves of absence, absenteeism, hirings, terminations, discipline, transfers, promotions and demotions. In many instances, Branch Managers make effective recommendations to Regional or Head Office with respect to most of the employment matters listed above.

Performance evaluations of employees at National Trust are undertaken at the branch level by the Branch Manager. In many instances, Branch Managers make effective recommendations to Regional Office with respect to the performance rating of employees in their Branch. Performance evaluations are reviewed at Regional Office and Head Office where responsibility resides for the final performance rating of each employee.

Six of the branches in question here perform National Trust's normal savings and loan function, while the seventh performs a savings function only.

The skills, training and nature of the work of the employees who perform a savings function at National Trust is similar from one location to another.

The skills, training and nature of the work of the employees who perform a loans function at National Trust is similar from one location to another...

6. The Regional Office acts as an intermediary between Head Office and each branch of National Trust in its region. The Regional Office has a two-fold function. First, the Regional Office ensures that each branch implements the policies and procedures and maintains the standards established by Head Office and, in connection therewith, it is responsible for:

(i) familiarizing itself with the current policies, procedures and standards of the company;

(ii) training new and existing employees at all levels of the branch operation;

(iii) conducting monthly meetings at the Regional Office with various groups of employees to review current policies, procedures and standards;

(iv) attending at the branches, on a regular basis, to ensure the branch is operating in conformity with current policies, procedures and standards;

(v) approving a variety of financial transactions, within the Regional Office's own prescribed limits of authority, that are conducted at the branch level but which exceed the Branch Manager's limits of authority (i.e., approval limits or rates with respect to consumer loans, GIC' s, GTD' s, branch cash levels and the waiver of service charges);

(vi) approving a variety of operating expenses at the branch level within the Regional Officer's own prescribed limits of authority (i.e., office and equipment supplies, repairs and maintenance expenses and business development expenses);

(vii) approving a variety of personnel-related matters within the Regional Officer's own prescribed limits of authority hiring, absenteeism, leaves of absence, overtime, transfers, promotions, performance evaluations, salary increases, terminations]; and

(viii) remaining available, at all times, to discuss and explain Company policies and procedures with branch personnel.

Second, the Regional Office keeps Head Office informed of the financial, administrative and personnel performance of each branch in its region. Although employees receive on-the-job -training at the branch level, responsibility for proper and complete training is the responsibility of the appropriate Regional Office.

7. Each branch of National Trust is an autonomous profit centre operating under guidelines established by Head Office. Branches are expected to compete for business and Regional Office fosters competition through a wide variety of on-going campaigns designed to expand the client base and to develop new business (i.e. campaigns involving the number or amount of deposits, mortgage loans, consumer loans, commercial loans, tax-sheltered products (RRSP, DPSP), safety deposit boxes, travellers cheques, money orders, etc.). Branches are ranked according to product growth, profitability and administrative performance and the most successful branches are recognized at the annual shareholders meetings. The overall performance of each branch is measured through an audit system which features an annual examination of all aspects of the branch operation by a team of auditors.

8. Interbranch activity at National Trust in Metro is as follows:

(i) each Regional Office employs up to 3 tellers who relieve regular staff who are temporarily absent from work, for whatever reason;

(ii) there are meetings at Regional Office which are attended by employees working at the various branches in that particular region, for the purpose of communicating and explaining current policies and practices at National Trust; and

(iii) there is a movement of employees in all classifications among the branches of national Trust by way of transfer and/or promotion. Each transfer or promotion is approved by Region and Head Office.

9. In support of its position, the applicant submits that the Board has long acknowledged that there may be more than one "appropriate" unit with respect to a given set of facts, and that this is one of those cases. The applicant submits that the Board's cases show an attempt to wrestle on the facts of each case with the competing considerations of allowing collective bargaining to get started, on the one hand, and the greater viability which board-based bargaining units give on the other. At the same time the Board is concerned about a proliferation of bargaining units, and what excessive fragmentation will mean to the employer's organization. Without suggesting that the finding of a single branch as appropriate would in any way be wrong in this or any future case, the applicant argues that the Board in this particular case is not required to focus on the smallest unit available for the purposes of organizing, because the applicant has already accomplished that; but rather, particularly in light of the high degree of standardization in the operations in question here, is in a position to go the next step and take into account what would be a more viable bargaining structure. The applicant points out that this accommodation by the Board would in fact reduce the problems of fragmentation and proliferation of bargaining units for the employer, and argues that the employer, having failed to defeat the Union at the level of initial organizing, is now simply seeking to maximize its chances of defeating the Union at the bargaining table. The applicant emphasizes that the employer's position, as the applicant sees it, is a matter of pure ''gerrymandering'', and points out that the alternative bargaining unit proposed by the respondent (all branch employees in Metropolitan Toronto) conforms neither with the Board's normal "all-employee" policy, nor the respondent's own Regional administrative organization. For its part, on the other hand, the applicant acknowledges the danger of a Union seeking to gerrymander by selecting only certain branches and arbitrarily sweeping unorganized branches into a broader-based unit, but emphasizes that in this case it has organized each of the branches it now asks the Board to group for the purpose of collective bargaining. The applicant, it might be noted finally, also asks for the inclusion of full-time and part-time employees in a single bargaining unit, in line with the policy of the Canada Labour Relations Board in dealing with what the applicant submits are comparable circumstances in the banking industry.

10. The respondent points out that the Board in its jurisprudence has required any proposed bargaining unit to meet the threshold test of exhibiting a community of interest, and submits that the random grouping of branches in the bargaining unit proposed by the applicant fails to meet that test. The respondent, counsel points out, is a centralized company with 3 levels of management, and activity between its parts flows clearly in a vertical rather than a horizontal (branch to branch) direction. The Regional Office, as indicated in the agreed statement of facts, plays a significant role in the labour relations administration of the branch offices, and the applicant's proposed unit embraces branches which fall across regional lines. The respondent questions the efficacy of a manner of grouping the branches which is dictated solely by where the applicant has had success in organizing, and queries the community of interest that would exist, for example, in a bargaining unit composed solely of a branch in Scarborough and a branch in Etobicoke. Apart from this geographical disparity, the respondent points out that the branches are administered as autonomous, even competing units, and have no significant functional interdependence to speak of. The respondent urges the Board not to assume that the branches are necessarily of a homogeneous and consistent nature. The respondent points out, for example, that only 6 of the 7 branches perform a savings and loan function, while the seventh performs only a savings function. The respondent stresses that administration, geographic circumstances and functional interdependence are, according to the Board in the Canada Trustco case, [1977] OLRB Rep. June 330, the most important of the Usarco tests, and that these are the very factors militating against the applicant in this case. The respondent points out the random, irrational nature of the grouping which the applicant here seeks, and urges the Board not to abandon the predictability which its "one-branch" theory of organizing has fostered in this industry. For its own part, the respondent asserts that the autonomous manner in which the respondent operates its branches makes single-branch bargaining less disruptive to it than a combination of branches, and especially a combination which cuts across regional administration lines. The respondent stresses, in that regard, that its concern is with the quality, not the quantity, of bargaining. If the Board is prepared to look beyond a single-branch bargaining unit, the respondent argues, the next rung ought at least to be all of the branches of a particular Region, in accordance with the respondent's next level of organization. In seeking to have the Board give consideration to the strength-in-bargaining question, the applicant, the respondent maintains, is seeking to secure from the Board a tactical advantage which it could and should pursue at the bargaining table. Finally the respondent argues that the applicant should not be allowed to seek from the Board the kind of bargaining unit configuration it now seeks, without being able to satisfy the Board that it, like the British Columbia Board for example, has the power to amend its certificates in the event of future applications for certification being filed. The respondent, in addition, rejects the view that the Board ought to depart from its practice regarding part-time/full-time bargaining units.

11. A number of employees opposed to this application also were in attendance at the hearing, and the Board invited their submissions as well on this point. The employee speaking on behalf of the employees present pointed out that they were opposed to certification in any event, but that if certification were to take place, a municipality-wide bargaining unit would seem to be a lot stronger than a seven-branch unit. The employee spokesperson further raised the question of where employees affected by the certification would stand with respect to promotions and transfers to non-Union branches. On the question of part-time employees, the spokesperson indicated that she felt that the part-time employees should be separate from the full-time, as they do not share the same bargaining interests.

12. The duty of the Board to determine the appropriate bargaining unit in an application for certification is set out in section 6(1) of the Labour Relations Act. That section provides:

Subject to subsection (2), upon an application for certification, the Board shall determine the unit of employees that is appropriate for collective bargaining, but in every case the unit shall consist of more than one employee and the Board may, before determining the unit, conduct a vote of any of the employees of the employer for the purpose of ascertaining the wishes of the employees as to the appropriateness of the unit.

As the Board recently emphasized in Hospital for Sick Children, [19851 OLRB Rep. Feb. 266, however, there may in any given case be any number of bargaining-unit configurations which are not "inappropriate", and the Board, in the exercise of the discretion granted to it, must decide which of those configurations is the appropriate one for that particular case. After analyzing the language of some of the Board's earlier cases in this regard, and in particular the Board of Education for the City of Toronto case, [1970] OLRB Rep. July 430, the Board in Hospital for Sick Children wrote:

21. ... In any given situation there may not be only one uniquely appropriate bargaining unit. Quite the contrary. As we have already noted, the institution of collective bargaining has shown itself capable of accommodating a variety of bargaining structures, even in broadly similar circumstances, and in particular situations there may be several alternative and equally appropriate ways of framing the bargaining unit description. There may be varying degrees of "appropriateness", with one or more unit descriptions being appropriate, even though some other (usually more comprehensive) bargaining unit might also be appropriate. For example, a single plant unit may be appropriate but so may a multi-plant unit.

To the same effect, see K-Mart Canada Limited, [1981] OLRB Rep. Sept. 1250, at paragraph 18; Parnell Foods Limited, [19691 OLRB Rep. April 38, at paragraph 17. While the "most comprehensive" bargaining unit available has obvious industrial-relations advantages, the Board has long made it clear that other considerations, such as the ability to organize at all, may cause the Board to look at lesser groupings as an appropriate bargaining unit. In Canada Trustco, [19771 OLRB Rep. June 330, for example, the applicant trade union had organized the only branch of the employer in the town of Simcoe. The employer took the position that the only appropriate bargaining unit was either one that included the branch in the neighbouring Township of Delhi, or all of the branches in the employer's administrative division of southwestern Ontario. In reviewing its options, the Board noted:

19. In the instant case, the standardization impressed on all employment relations by the flow-charts and policies of the employer does give rise to a community of interest among all employees in the branches of the south-western Ontario region. But that does not of itself dispose of the question of what is the appropriate bargaining unit. As the Board said in Ponderosa (supra at 10):

It should be observed, however, that the Act does not create any presumption in favour of the most comprehensive unit of employees, even though these employees may have a community of interest. Section l(1)(b) of the Act states that: "'bargaining unit' means a unit of employees appropriate for collective bargaining, whether it is an employer unit or a plant unit or a subdivision of either of them." This provision makes it quite clear that the determination of appropriateness does not always lead to the conclusion that the most comprehensive unit is also the most appropriate unit. Consideration of the wishes of employees and of industrial relations policy, may very well dictate that a smaller bargaining unit is the appropriate unit.

20. It is also possible, of course, that different communities of interest will exist at one and the same time among several different groupings of employees. Obviously certain common employment interests exist among all employees of the respondent in Canada; the portion of those employees who are within Ontario have a further common interest; and the group of employees working under the direction of the London regional office have employments interests in common that they do not share with their fellow employees elsewhere in Ontario or in Canada at large.

21. The Canada Trustco case ultimately decided that the single-branch bargaining unit for Simcoe was appropriate, and, as will be discussed, that decision reflected an evolving pattern of single-branch organizing in both the financial and other sectors of the economy. Flowing from that, the respondent argues that an important measure of predictability has developed for trade unions and employees organizing in the financial sector, and that the Board ought not to jeopardize that position by moving to the unusual form of grouping being put forward by the applicant in this case. The respondent notes, in that regard, the observations of the Nova Scotia Labour Relations Board in Michelin Tires (Canada) Limited, [1979] 3 Cat'. LRBR 429, at page 437:

Another set of factors which the Nova Scotia Board regards as important, and which often dictates our determinations of appropriateness, involves the legitimate expectations of the parties to the certification process. Employees who want a union, and unions organizing them, must have a fair opportunity to know before applying for certification what the appropriate bargaining unit will be held to be. The effort and expense of an organizing campaign and of the certification procedure itself should not have to be wasted because of an unpredictable Board decision that the unit applied for is not appropriate. This Board is not bound by any formal system of precedent to follow its own previous decisions but we must attempt to make sensible determinations of appropriateness which are consistent from one case to the next.

The concern there expressed by the Board, however, was that a particular bargaining unit previously found to be appropriate would, without warning, be found by the Board after organizing not to be appropriate. That is not what is at issue here. And as difficult as it may be for any employer to accept, that is not the way the process has tended to work. The preamble to the Labour Relations Act discloses a clear legislative predilection toward the fostering of collective bargaining, and nowhere has that predilection been reflected more than in the determination of the "appropriate" bargaining unit under section 6(1). Each time the Board is persuaded to move to a further stage in bargaining-unit determinations, the history of the jurisprudence shows that the effect of that movement generally is to increase the options available to unions for organizing in the province. Exactly as applicant counsel has argued, in other words, the finding, if the Board were to make it, that a grouping of seven certifiable branches within Metro is the appropriate bargaining unit in the facts and circumstances of this case, would not in any way signal a rejection of the basis on which single-branch units have in the past been, or in the future would be, found to be appropriate (or the basis upon which they have been agreed to be appropriate in the present case).

14. To recognize that reality, however, is not to say that employees or their trade union are given a free hand to determine the form which their organizing will take. See, in particular, the Hospital for Sick Children case, supra, at paragraph 17. The goal stated in the preamble itself is to further "harmonious" relations, and, there are other interests at stake, such as those of the employer in being able to efficiently manage its enterprise. The need for "appropriateness" in a bargaining unit at all times serves as a check against tipping the scales too far in the direction of accommodating the desire for self-organization. As the Board as early as the Ponderosa Steak House case, [1975] OLRB Rep. Jan. 7, put these competing considerations:

15. A primary theme set out in the Labour Relations Act, and affirmed by the Board, is the principle of freedom of association. The preamble to the Act makes it clear that it is the intention of the Legislature to encourage collective bargaining "between employers and trade unions as the freely designated representatives of employees." More specifically, section 6(1) of the Act expressly provides that the wishes of the employees as to the appropriateness of the unit are to be considered by the Board. In other words, the Act recognizes that it is desirable that employees be able to organize in a form that corresponds with their own wishes.

16. The right of self-organization, however, must at times compete with the need for viable and harmonious collective bargaining. Section 6 of the Act specifically requires the Board to determine, not just a unit of employees, but "the unit of employees that is appropriate for collective bargaining." In other words, the Board has a responsibility under the Act to create a rational and viable collective bargaining structure, even though the exercise of this responsibility may sometimes conflict with the right of self-organization.

17. In all cases the necessary balancing is made on the basis of the particular facts and interests in the specific case before the Board. As the Board described it in Canada Trustco, supra:

18. In any particular case, the determination of the unit of employees that is appropriate for collective bargaining must be grounded in the facts before the Board. The Act contemplates a process of unit determination that is not absolute and to a great extent the Board's determination must depend upon the competing alternatives presented by the parties. In the contemplation of the Act, therefore, the duty to determine the appropriate bargaining unit is a mandate to describe the unit in the light of the labour relations realities of the particular case.

The assessment of those "labour relations realities", at the same time, may be affected by historical perspectives, and form part of the continuing evolution of thought on bargaining-unit "appropriateness". To draw upon the words of the Board in Hospital for Sick Children, supra, at paragraph 14:

... Real life collective bargaining experience has outstripped some of the conventional wisdom and has shown that the collective bargaining system can exhibit quite a variety of structures, which, at one time, parties might have considered unconventional or inappropriate.

16. That process of evolution is well demonstrated in the history of this Board (and others) coming to define bargaining units in terms of single branches or outlets. The initial approach, that of all retail outlets within a municipality being considered the appropriate bargaining unit, was discussed in the early case of Goodyear Service Stores, 65 CLLC 16,018. There the union applied for a unit of all of the employer's retail stores in Metro, and the employer argued that only individual stores were appropriate. The Board wrote:

In our opinion, where an employer conducts essentially similar retail or service store operations at a number of locations in a given geographical area it would not, generally speaking, be conducive to sound collective bargaining for a series of bargaining units to be established in respect of groups of employees performing similar tasks and having similar bargaining interests. Such a situation where some employees might be represented by one trade union, others by another and others not at all would be invidious from the employer and trade union points of view as well as from the points of view of most individual employees.

The Board, therefore, considers that the policy it has followed in cases of retail food markets, variety chain stores and brewers' warehousing stores, and which has frequently been applied in other cases involving retail or service stores, should be adopted as its general policy in cases of retail or service stores where the interests of employees throughout a group of stores can be said to be essentially similar as in the present case.

17. That was indeed the pattern for some time, but then a Board tolerance for individual branches or outlets, at least where the union was the one seeking them, began to emerge, particularly in the hospitality and financial sectors. The reason for that departure was succinctly stated by the Board again in Canada Trustco, [1977] OLRB Rep. June 330, at paragraph 27:

18. In determining the appropriate bargaining unit the Board cannot disregard the labour relations realities before it. When a group of employees signify that they wish to exercise their right to bargain collectively, and that grouping is seen by the Board as sufficiently conforming to the Board's criteria of appropriateness as a bargaining unit, this Board should not require bargaining in a more comprehensive unit if to do so would effectively impede the access of that group of employees to any collective bargaining at all. As was said by the British Columbia Labour Relations Board in Woodward Stores Vancouver Limited, [1975] 1 C.L.R.B.R. 114, quoting the earlier Insurance Corporation of British Columbia, (No. 2) decision of the same Board:

"However, clearly one can't have collective bargaining at all unless there is a unit in which a majority of employees will select a trade union's representative. There are certain types of employees who are traditionally difficult to organize and there are some employers who are willing to exploit that fact and stipulate opposition to a representation campaign. If notwithstanding these obstacles, a group of employees within a viable unit wishes to have a union represent them, the Board will exercise its discretion in order to get collective bargaining under way. In that kind of situation, it makes no sense to stick rigidly to a conception of the best bargaining unit in the long term, when the effect of that attitude is to abort the representation effort from the outset."

18. In K-Mart Canada Limited, [1981] OLRB Rep. Sept. 1250, the applicant union had organized one of the four retail department stores operated by the employer in Metropolitan Toronto. The employer argued that an all-Metro unit was the appropriate one. As in Canada Trustco, the Board noted:

19. ... Where it is raised as an issue the Board must consider the effect of a broader based unit upon employee access to collective bargaining within the industry. In addition, the Board must recognize the wishes of the employees affected by the particular application to bargain collectively. This latter consideration requires the Board to take into account the pattern of organization in the case before it and to balance the pattern of organization against the disruptive effects of excessive fragmentation. The potential for fragmentation takes on an added weight where the Tribunal lacks the authority to restructure existing bargaining units at some future date.

The Board then went on to say:

18. As noted earlier the Board must balance a number of statutory objectives in the exercise of its discretion under section 6(1) of the Act to determine which is the appropriate bargaining unit in any given case. It is clear from a review of the authorities that the blanket policy enunciated in the Goodyear decision, supra, with respect to the geographic scope of bargaining units, where an employer conducts essentially similar retail or service store operations at a number of locations in a given geographical area, has given way to a series of considerations which must be made in each case. Viability for purposes of collective bargaining, on an application of community of interest principles and a consideration of the effect of fragmentation, remains a prerequisite for a finding of appropriateness. However, the Board recognizes that there may be more than one appropriate unit in any given case. Where there is more than one appropriate unit, the Board will attempt to accommodate the desire of the employees on whose behalf the application has been filed to bargain collectively. Furthermore, in making its determination, the Board will be mindful of the precedential impact of its decision. Where, as in the department store sector, collective bargaining has not taken a foothold, the Board will lean towards the bargaining structure which best facilitates organization.

And, once again in that case, to facilitate organizing, a single retail outlet within the municipality was found to be the appropriate one.

19. Yet all of these departures ran contrary to the instinctive attractiveness of broader-based bargaining units, and the Board's preference for such units, where their impact would not stifle organizing, remained evident. In Canada Trustco itself, supra, the Board noted:

20. ... There is no presumption that the smallest unit in which a material community of interest can be found will be the appropriate bargaining unit. Along with the existence of a separate community of interest within the smaller unit, the Board must weigh the risk of fragmentation and the manageability of that unit or a pattern of units like it from the standpoint of both parties. Balancing all of these factors the Board must strive to define a rational delineation of employees that will be a viable entity for collective bargaining.

And in Bestview Holdings, [1983] OLRB Rep. Aug. 1250, at paragraph 28:

28. Self-determination and community of interest often favour relatively small units, but these are not the only relevant factors in bargaining unit design. The Board must also strive to create a viable structure for ongoing collective bargaining and, to this end, undue fragmentation must be avoided. Consolidated bargaining offers several advantages over a fragmented structure. A proliferation of small units may result in unnecessary work stoppages. Each time one group goes on strike, other employees performing jobs that are functionally dependent upon the work normally done by strikers are brought to a halt. Even in the absence of functional integration, strikers may erect picket lines that keep other employees away from work. The likelihood of a strike occurring increases as the number of rounds of bargaining grows, and is further enhanced by competition among bargaining agents. Secondly, each of several units typically becomes a separate seniority district, enclosed by walls which impede the movement of employees between jobs. In addition, broader-based structures may lower the cost and thereby increase the availability of insurance schemes and benefit plans. A multiplicity of bargaining units also inevitably spawns jurisdictional disputes over the assignment of work and entails the cost of negotiating and applying several collective agreements. Finally, the existence of a single bargaining unit facilitates equitable treatment of employees doing similar jobs.

Similar concerns have of course been reflected in the comments of other Labour Relations Boards. In the Michelin Tire case, supra, for example, the Nova Scotia Board observed:

... Canadian Labour Relations Boards, including the Nova Scotia Board, have recognized that from the point of view of the employer and the public, and in some respects of the employees, there are important values to be served by certifying larger rather than smaller bargaining units. Stability in industrial relations and the viability of the bargaining units certified have been dominant concerns.

This view has also received substantial elaboration by the British Columbia Labour Relations Board, notably in the Insurance Company of British Columbia case, [1974] 1 Can LRBR 403. That case was decided at approximately the same time as the B.C. Board in Woodward Stores, [1975] 1 Can LRBR 114, was granting certification for less than the full complement of retail outlets within a municipal area. In the ICBC case, the Board had before it the applications of three different trade unions, and the risks of undue fragmentation were readily apparent. In considering its overall approach to bargaining-unit determinations, the Board wrote, commencing at page 407:

What are the standards which the Board should apply? The statute gives no specific direction for the exercise of our judgment and we must develop the guidelines on our own. That is a difficult task for several reasons, but primarily because there is a tension between the two uses of the bargaining unit. On the one hand, the scope of the unit is the key to securing trade union representation and collective bargaining rights for the employees. Since this is a fundamental purpose of the Code, the Board's definitions must be such as to facilitate organization of the employees. On the other hand, that unit sets the framework for actual bargaining for a long time into the future. A structure is needed which is conducive to voluntary settlements without strikes and will minimize the disruptive effects of the latter when they do occur. Unfortunately, the lesson of experience is that these two objectives often point in different directions. The simplest reason favouring one overall unit is administrative efficiency and convenience in bargaining. All other things being equal, it is preferable to have only one set of negotiations going on, rather than spreading management efforts among two or three or even more units.

A second administrative factor, this one clearly in the interest of both employer and employees, is the matter of lateral mobility. The presence of several bargaining units, each with their own seniority lists and different contract benefits, is an obstacle in the way of an employee's transfer or promotion out of the original unit into which he was hired. This limits the mobility of the employee whose place of residence may have changed and who thus needs a different job or the employee who wants to improve his job position through promotion to a position which has come open in another division. It also restricts management's range of selection among qualified persons to fill a job.

The existence of a single bargaining unit facilitates the achievement of a common framework of employment conditions - vacations, statutory holidays, overtime, insurance scheme, pension plan, and so on. ICBC has developed a wage structure whereby all the positions across every division have been evaluated and placed in some coherent relationship one to the other. It is unlikely that this pattern would continue if there were two units represented by different unions. Indeed, if we did not expect different terms of employment to emerge, there is no reason to allow separate representation for groups of employees.

Another factor favouring a single large unit is the objective of industrial stability. If there is one union and one set of negotiations, then the risk of strikes has to be less than if there are several unions negotiating separately.

20. In fact, the British Columbia Labour Relations Board's whole treatment of this issue is particularly noteworthy. In Woodward Stores itself, supra, the Bakers' Union had organized at three of the employer's stores in Greater Vancouver, and applied to be certified for a separate unit at each of the the stores. The employer raised the problem of fragmentation with the Board, and argued that the only viable unit for it was one composed of all nine of its stores in the province, or, alternatively, of all five of its stores in Greater Vancouver. In answer to the employer's submissions, the Board wrote at page 118, as noted in our own Canada Trustco, supra:

whatever be the reasons for it, it remains a fact that it the Board were to focus on the long-range enquiry of how collective bargaining should best be carried on in the department store industry, it will likely achieve the short-run result that collective bargaining will not be conducted at all.

In deference to the employer's concerns, however, the Board went on to state:

We should not leave this discussion of the Board's general policy under s. 42 of the Code without some further remarks about how we do view the problems of the development of bargaining units for an employer. Counsel for Woodwards accurately depicted the industrial instability which can be produced by a multiplicity of unions in a patchwork of small bargaining units - whipsawing of the employer, consecutive strikes and picket lines, jurisdictional disputes and so on. That is the risk attendant on a policy of facilitating the achievement of collective bargaining through the building blocks of small units. For the reasons stated above, we do not feel it desirable to forestall any such risks by sticking rigidly to bargaining units so large that the process of collective bargaining is aborted before its birth. However, we do intend to minimize that risk through a policy of strict control over the growth in the number of bargaining units in an operation such as Woodwards.

There is one common practice, in particular, which produces excessive fragmentation of the employees of one employer or in one industry. A union applies to represent one small group of employees and obtains certification; a second union applies for certification for another small group and also is certified; after this process has continued for a period, another union, (perhaps one of the incumbents) applies to be certified for all of the employees except those already represented by someone else. One can understand why it is in the mutual interest of trade-unions to reach that type of accommodation. However, the Board is determined not to permit that kind of practice to build in, indefinitely, a large number of small collective bargaining relationships with one employer. We will be flexible in defining appropriate bargaining units in areas such as the department store industry to afford collective bargaining some room to put down firm roots. However, after a time, rather than creating new bargaining units, we will consider that the existing units must be enlarged or merged and all of those employees represented by one "trade-union .

And concluded, at page 122:

While a single location bargaining unit must be considered appropriate in light of the history of bakery certifications in this province, we do consider this an apt case in which to apply our policy of minimizing the number of separate bargaining units at an employer such as Woodwards'. The Union has as members a majority of the bakery employees at each of the three store locations for which it has applied and has a substantial majority when all three are put together. Consequently we conclude that there should be one unit comprising of all the bakery employees at the three locations.

In addition, the Board, out of a further concern for fragmentation, went on from there to state what has come to be known as the "Amon principle", as follows:

If and when the Union organizes the employees at the other locations the Board will enlarge this existing bargaining unit to include them.

21. Amon Investments Ltd. was a decision of the B.C. Board issued July 20, 1978. The employer owned a number of apartment buildings in Vancouver, and the union had applied for certification for the maintenance and service staff of one of them. Over the objections of the employer, the Board ruled that the employees working at that one location constituted a viable, separate bargaining unit. The Board then added, at page 20:

This conclusion does not, as we have previously hinted, require that we ignore the concerns expressed by counsel for the Employer with regard to the potentially inconvenient and disruptive consequences of a fragmentation of the employees into a number of bargaining units. We return again to the Woodward decision. In granting the Bakery and Confectionery Workers International Union of America, Local 468, certification for a unit comprised of bakery employees at only three of the several stores in which the employer in that case operated a bakery, the Board added: if and when the union organizes the employees at the other locations the Board will enlarge the existing bargaining unit to include them."

We consider the same kind of qualification to be appropriately added to the certification the Board has granted the Union for the employees at the Nelson Place Apartments. The effect of this qualification is to confine the number of bargaining units to one only.

This principle was again made reference to by the B.C. Board in another case that year, The Original Dutch Pannekoek House, [197911 Can LRBR 212, in which the Board certified a union for a bargaining unit of two of six restaurants in the City of Vancouver.

22. By 1981, the B. C. Board appears to have been lumping together a selected number of branch outlets of an employer as a matter of course. In Thompson Valley Savings Credit Union, Board decision numbered 414/81 and issued September 2, 1981, the union had applied for eight of the employer's branch credit offices, and then amended it to seven. The Board wrote, in construing the language of its own statute:

The Employer argues that the bargaining unit applied for by the Union is inappropriate for collective bargaining. In respect of the initial application the Employer argued that branch-by-branch certification was the only appropriate way to have Union representation of the Credit Union's employees. With respect to the amended application the Employer argued, in addition, that the unit applied for by the Union is not appropriate even if an all-employe unit were considered appropriate by the Board.

This argument misconceives the requirement in the Labour Code for a determination by the Board, in certifying unions, to find an appropriate bargaining unit.

Section 42(1) of the Labour Code reads as follows:

5. 42(1) Where a trade union applies for certification as a bargaining agent for a unit, the Board shall determine if the unit is appropriate for collective bargaining, and may, before certification, include additional employees in or exclude employees from the unit.

The Board is not required to determine which is the most appropriate bargaining unit, but rather must determine whether the unit for which the Union applies as bargaining agent is appropriate. There is not necessarily a particular bargaining unit which is the only appropriate one for an employer. The determination which the Board must make is whether the bargaining unit for which the Union applies is an appropriate bargaining unit (cf Royal Bank v. SORWUC, 119781 1 Can LRBR 326).

In this case it may be arguable that individual branches of the Employer, or all branches of the Employer, are more appropriate bargaining units than the one applied for by the Union. However, that is not the determination which we must make. What must be decided is whether the unit applied for by the Union here is an appropriate bargaining unit. There is little doubt that the employees, while at different locations, share sufficient community of interest to be considered as within a single bargaining unit and I find that the unit applied for is an appropriate one for collective bargaining.

Given the comments of the Board in our own province with respect to not being required to determine the "most" appropriate unit, cited above and below, it is not apparent that the difference in the British Columbia language and our own section 6(1) is a material one.

23. Finally, the case of the B.C. Board in Sung Food, issued March 15, 1984, is interesting, not only because of some obvious parallels on the facts with our own, but also because it specifically addresses the question of how membership support is to be calculated. The employer operated eleven low-cost, self-service retail food outlets and a central warehouse in the Lower Mainland. The union applied for a unit consisting of four of the retail outlets. The original panel, concerned about "sweep-ins", decided that membership support should be calculated separately for each of the four store locations. The result of that was automatic certification for a bargaining unit consisting only of the two stores for which the union had better than 55 per cent, even though the union's overall percentage amongst the four stores exceeded 55 per cent. Both sides sought reconsideration of that decision.

24. On the "four stores out of eleven" issue, the review panel wrote, at page 4:

in considering an appropriate bargaining unit we must consider notonly the Employer's need for a structure minimizing industrial unrest in the long run but also the Union's request for a vehicle which will allow for the establishment of collective bargaining. This four-store unit achieves one of the goals: it permits trade union representation. Does it thwart the competing one?

First, the employees in these four stores presently share a common framework of employment conditions - a framework which can form the basis for a single collective agreement for all of those employees. Second, the employees in the four locations share a community of interest, receive the same training, work essentially the same hours for the same rate of pay and perform virtually identical duties. Third, although there are four different locations, the evidence reveals that there is some lateral mobility available to and utilized by the employees in each of those stores to transfer from one store to another. Finally, it is in the interests of the Employer to have a single bargaining unit where day-to-day decisions regarding the terms and conditions of employment of the employees, their continued employment, or their cessation of employment is administered through centralized management in a uniform and consistent manner.

The fact that there are seven other store locations which could, in the future, be varied into this bargaining unit does not detract from the existence of a rational and defensible line being drawn around the four units presently proposed.

And then, after a discussion of Woodward and Amon, at page 5:

here, an all-employee bargaining unit for all eleven stores and the central warehouse would clearly be the most appropriate bargaining unit. However, to require that would be to discourage the acquisition and exercise of collective bargaining rights which can be exercised and encompassed within the language of a single collective agreement.

The review panel then went on to decide that it had no jurisdiction to apply the 55 per cent test to any constituent part of an applied-for bargaining unit, and certified the union for a unit of all four stores, on the basis of its overall percentage. Whatever we might say about that latter aspect of the British Columbia Board's approach to the question, the foregoing review of the jurisprudence appears to produce one common theme in the inclinations of Labour Boards across the country when called upon to determine the "appropriateness" of a bargaining unit: except to the extent that it would unduly create an obstacle to the introduction of collective bargaining at all, for a variety of labour-relations considerations affecting all parties to an application for certification, as well as the public, generally "bigger is better".

25. Before turning to the facts of our own case, it is important to refer once again to the present state of the jurisprudence on bargaining-unit "appropriateness" in the province of Ontario. That state is best set out in the Board's recent decision, adverted to earlier, in Hospital for Sick Children, [19851 OLRB Rep. Feb. 266. To begin with, that case notes the following passage from Kidd Creek Mines Ltd., [19841 OLRB Rep. March 481:

26. We may begin by observing that the notion of an "appropriate" bargaining unit is a labour relations concept with no common law antecedents and in the general case, no precise statutory definition. What it means, quite simply, is the group of employees whom it makes "labour relations sense" to lump together for the purpose of collective bargaining, and section 6(1) of the Act leaves the Board's discretion to fashion bargaining units largely unfettered.

And further, at paragraph 20:

20. In Kidd Creek (and Strafford General Hospital, to a lesser extent), it was suggested that an inappropriate or unduly fragmented bargaining structure could contribute to subsequent labour-management problems, tension within and between bargaining units, and an escalation of industrial conflict. Such outcomes are undesirable. If these problems can be avoided by more careful attention to the determination of the bargalning unit "at the front end", without prejudicing other collective bargaining or statutory objectives, then that attention is obviously warranted.

And finally, at paragraph 23:

We are troubled by the fact that a largely administrative and policy-laden determination has mushroomed in some cases into an elaborate, expensive, and time-consuming process for deciding a relatively simple question: does the unit which the union seeks to represent encompass a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer.

(emphasis added)

26. In the present case, the respondent has conceded the appropriateness on a community-of-interest basis of one (or each of 37) of its branches within Metro standing alone, as well as of all 37 of its branches standing together. The only factual question for the Board is whether the 7 branches within Metro for which the applicant believes it is individually certifiable have, in the words of the Hospital for Sick Children decision, "a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer".

27. All 7 of the branches sought to be combined fall within the bounds of what the Board would normally recognize as an appropriate geographic area. The employees at each branch perform essentially the same job functions and services for the respondent, and their terms and conditions of employment are uniform and set centrally. To the extent that either the Regional or branch levels of administration have responsibility for the implementation of personnel policy, that policy is the one set centrally by Head Office. Six of the seven branches involved here fall within the same Region, and there is regular contact through meetings of all of the employees within a Region. There is also a history of movement of employees in all classifications amongst the various branches of the respondent by way of transfer and/or promotion.

28. All of these factors could, of course, be used to support the appropriateness, if disputed, of the broadest unit of branch-offices possible within Metro, being one comprised of all 37 of the branches therein. But once again the "most comprehensive" form of bargaining unit would begin to compete with the notion of allowing collective bargaining to begin at all. From our earlier review of the jurisprudence we have noted how Labour Boards in this and other jurisdictions have, in deference to that consideration, found it appropriate to impose upon an employer the burden of individual branch or outlet bargaining units, with all of the risks attendant upon such a proliferation of separate bargaining units: fragmentation of the employer's enterprise, duplication of bargaining, additional exposure to strike and picketing activity, and the potential for "leap-frogging" should different units fall to be organized by different trade unions. From that point of view, the issuance of bargaining certificates for individual branches or outlets would appear to present a "worst case" scenario for the employer, with any consolidation of branches into one bargaining unit tending to minimize the number of bargaining units which the employer may ultimately be required to deal with.

29. This is true, we note, whether or not a particular Labour Board has the power to subsequently amend or consolidate existing certificates. The British Columbia Labour Relations Board, as noted, has that power. The Ontario Labour Relations Board has effectively said that it does not (see City of Toronto Non-profit Housing Corporation, [1982] OLRB Rep. Feb. 280. But nothing in the present case turns on that. The "Amon principle" of the B.C. Board was not a response to employer concerns over the certifying of 3 out of 5 retail outlets; it was a response to employer concern over certifying anything less than all of the employer's outlets in a given municipality, and in particular over the practice of issuing certificates for individual locations. Indeed, the Amon case itself involved the issuance of a certificate for a single location in the municipality. What the "Amon" principle represented in other words, was recognition that the individual-branch approach to certification was a departure from standard notions of what would constitute for everyone a more viable form of bargaining structure, and an attempt to move back toward more comprehensive, broader-based collective bargaining. Whether, as with the B.C. Board, the result might eventually be a municipality-wide bargaining unit, or whether, as under the present Ontario case law, the Labour Board is restricted to whatever consolidation of bargaining units is available to it at the outset, the result, in moving away from the ultimate in fragmentation posed by individual branch bargaining units, would appear in any event to be an improvement administratively from the point of view of the employer.

30. In light of that, the Board in this case invited the respondent to assist it with the kinds of problems that it foresaw with respect to the 7-branch bargaining unit being asked for by the applicant. It should be noted that the two parts of the "test" set out in the Hospital for Sick Children decision, cited above, are not mutually exclusive, and the respondent's concerns fell roughly into three categories: the inappropriateness of the applicant's unit in terms of its own form of vertical administration, the inappropriateness of the applicant's unit in terms of geographic circumstance, and the inappropriateness of the applicant's unit in terms of the independent manner in which individual branches are expected to function.

31. On the first point, while the likely impact of a proposed bargaining-unit configuration on the employer's existing lines of administration is very much one of the factors the Board must take into consideration, the existence of those lines of administration is not in itself dispositive of the basis upon which employees will be required to self-organize in a given case. As the Board put it in Canada Trustco, supra, at paragraph 18:

The Board's decisions have proceeded on the general principle that while the employer's administrative structures are relevant in determining the bargaining unit they are not necessarily to be taken as the conclusive blueprint in deciding what is appropriate. The structures and policies that promote a maximization of the employer's business interests are not necessarily those that will describe a sound and viable bargaining unit within the contemplation of The Labour Relations Act.

In addition, as the Board observed was the case in K-Mart, supra, at paragraph 20, the Metro­wide unit normally considered by the Board to be appropriate and acknowledged to be so in the present case does not itself conform to the respondent's particular lines of administration: the 37 branches within Metropolitan Toronto cut across not 2 but 3 of the respondent's regional administration lines.

32. But notwithstanding that acknowledgment by the respondent, the Board has considered whether a fairer accommodation between the applicant's concern for broader-based bargaining and the respondent's own lines of administration would be a consolidation of certificates at least in accordance with the regional boundaries of the respondent which exist within Metro. That would have the effect of grouping the 6 certifiable branches falling within the Metro East region into one unit, and leaving the one branch falling within the Metro West region as a separate unit to be certified on its own. Were there evidence of a more significant degree of independence at the Regional level in the formulation of labour-relations policy, or in the actual setting of terms and conditions of employment, we might well have been inclined to adopt this view. In this particular case, however, the facts disclose that labour-relations policy and the terms and conditions of employment, although administered at the Regional and Branch levels, are set on a central and uniform basis by Head Office. It does not seem unreasonable to assume that this would continue to be the case with respect to the collective bargaining which is about to take place as well. While consultation with the Regional managers involved may well have to form part of that centrally-controlled bargaining, just as it would with the administration of collective bargaining within the conceded Metro-wide unit, the need for such consultation on the facts present here would not seem to place in the way of the respondent a hardship that is of an unreasonable degree.

33. On the question of geographic circumstance, we note first of all that all 7 of the certifiable branches sought to be combined fall within what the Board would normally consider to be an appropriate geographic area, a single municipality. As to the application of the normal community of interest or Usarco tests within that municipality, we again note that the respondent has conceded that a bargaining unit of all 37 of its branches in Metropolitan Toronto would meet the Usarco tests. That concession presumably stems from the Board's initial approach in dealing with applications of this type (Goodyear Tire, supra, etc.), and that approach itself was based on a recognition of the uniformity in employment conditions and type of work performed within "like" branches of a retail-service employer. As between a one-branch unit and a seven-branch unit within Metro, those considerations would appear to favour a grouping into a seven-branch unit as well. If, on facts like the present, geographic circumstance is not a compelling factor when considering the community of interest of a branch in Etobicoke and a branch in Scarborough as part of a 37-branch unit, it would not appear to be significantly more so only because the overall number of branches in the unit is reduced from 37 to 7.

34. The final aspect of the respondent's submission on community of interest is that relating to the independent nature of the branches, and more specifically, to the fact that branches lying within the same general neighbourhood (as a result of the recent merger with Victoria & Grey) are encouraged to "compete" with one another for business. This is a consideration which the Board has in fact given weight to in the past. See Magna International lnc., [1981] OLRB Rep. Sept. 1260. It does appear, however, that the individual plants (and profit-centres) in that case enjoyed a substantially higher degree of independence and local autonomy than can be said for the trust branches in this case, and, as a significant reflection of that, the practice was to have no movement of employees between plants in that case. We would note in the latter regard that the concern expressed by the objecting employees as to their seniority rights and the continuation of their present mobility, while obviously better answered by a 37-branch unit than a 7-branch unit, would appear nonetheless to be better answered by some form of grouping within Metro, if that is otherwise available, than by potentially 37 different individual branch bargaining units. We might also note, lest there be any doubt on this point, that the application for certification as posted in this case did call for a grouping of the 7 branches in question as its primary choice of bargaining unit.

35. The final point that the Board must consider is the respondent's submission that the Board ought not to use its power to determine bargaining units as a means of addressing the question of relative strength at the bargaining table. The respondent submits that that is a matter appropriate for the parties themselves to address in bargaining, and the respondent points in support to the decision of the Canada Labour Relations Board in Bank of Montreal, [1982] 2 Can LRBR 390.

36. That case provides a useful review of the history of "single-branch" bargaining in the financial industry. The Canada Board recalled how, beginning with the Canadian Imperial Bank of Commerce (Victory Square Branch) case, [1977] 2 Can LRBR 99, it had been led by a concern that union organizing gain a foothold in the industry to permit, with some misgivings, the establishment of single-branch bargaining units, relying upon the subsequent good will of the parties to "seek to avoid chaos in the bargaining relationship". In the particular case before it, the union over a period of 6 months had obtained certification for separate bargaining units of 9 of the 14 branches of the Bank in the City of Windsor. The union then proceeded through two amicable rounds of bargaining with the Bank, described as follows, commencing at page 384:

Collective bargaining between the employer and the union commenced in April, 1979 on behalf of the certified branches in Windsor. The union's efforts were coordinated by Mr. Raymond Murray, Area Representative. Mr. Roy Legge, who was at that time Director of Industrial and Employee Relations, represented the employer's interests. Union proposals had been formulated at a general membership meeting of all members regardless of which branch they worked at. Bargaining committees were set up for each branch comprising two members along with Mr. Murray. The format of the collective agreement proposed by the union was fashioned after an agreement recently entered into between the employer and the union affecting a branch at Bells Corners, Ottawa. That had been the first collective agreement entered into and it had taken effect on February 16, 1979. The union had proposed some twenty-five amendments to the Bells Corners agreement. Bargaining sessions began with meetings between Mr. Legge accompanied by two other employer representatives and Mr. Murray and the branch committees. Meetings were consecutive, branch by branch. That system soon bogged down. It was cumbersome and repetitive. The union changed its structure, it formed a three person committee to speak on behalf of all the branches. The employer raised no objection and bargaining resumed in a positive and amicable fashion. An agreement was reached and signed on July 11th, 1979. The union obtained ratification at a general membership meeting with a single vote of all members. Separate agreements were signed for each branch, each identical but for slight insignificant variations such as names of part-time employees affected at any given branch. The term of the agreements were for one year effective February 16th, 1979.

Negotiations in 1980 followed a similar pattern. Mr. Legge had stepped up as Vice-President, Human Resources, and was replaced at the head of the employer's bargaining team by Mr. Fred Cowell, Employee and Industrial Relations Manager. Mr. Murray again directed matters on behalf of the union. The union continued with its three person committee speaking for the nine branches. To give more direction to the negotiations, it was agreed to focus on one branch being the Windsor Main Branch. The language of any agreement arrived at would apply to all branches. This time the bargaining extended into the conciliation process. Notwithstanding that the union had filed nine distinct applications seeking conciliation assistance, the process under the guidance of the conciliation officer continued in the same consolidated fashion. An agreement was reached and ratification was conducted at a single meeting with one vote. Separate agreements were executed for each branch to be effective February 16, 1980 to December 31, 1981.

At that point it appears that the union began to address the issue of extending seniority rights beyond the individual branches, and, without even raising with the employer the question of such extension, or of consolidation of the existing collective agreements, moved before the Board for an amendment to its certificates to combine them into one.

37. The Board did not have to deal with the case on the basis of an assumed "imbalance" in bargaining power between a large national bank and individual bargaining units, noting at page 389, on the history of the negotiations to that point:

Has the "imbalance" been used to dilute the union's strength or to render it impotent at the bargaining table? It appears not!

Rather, the Board assessed the matter against its policy of restraint in interfering with substantive matters in ongoing bargaining relationships, concluding, at page 391:

In keeping with those policies of non-interference the Board sees nothing in the specific circumstances presented that places this case in the "extraordinary" category where it would invoke its powers to balance the scales. There is no evidence of employer wrongdoing. The bargaining relationship is young and maturing albeit perhaps not as fast as some would like.

A common certification order would give the union no more than it has now. With all of the collective agreements having a common termination date the union is able to exert its combined strength if it so wishes to correct or attempt to correct the ill it has chosen to identify. The Board will not intercede at this time.

The matter having arisen as it did, the Canada Board did not have to consider what it might be disposed to do with the issue of consolidation, were it at the point of structuring a bargaining relationship that was fresh.

38. We fully recognize that the designation of "the appropriate bargaining unit" by the Board may carry with it a significant impact on, amongst other things, the question of strength at the bargaining table. As the Board noted in Kidd Creek Mines Ltd., [19841 OLRB Rep. March 481, at paragraph 50:

section 6(1) of the Act leaves the Board's discretion to fashion bargaining units largely unfettered. Yet the Board's determination is obviously of immense practical importance, not only for the immediate parties, but for the structure and performance of the collective bargaining system as a whole. The definition of the unit affects the bargaining power of the union and the point of balance it creates with that of the employer. It influences the potential scope and effectiveness of collective bargaining for dealing with different matters, and to some extent, even the substantive issues covered in the collective agreement. And, perhaps most important, the shape of the bargaining unit can profoundly influence the potential for industrial peace or collective bargaining discord.

And, ironically, as was also noted in K-Mart Canada Limited, [1981] OLRB Rep. Sept. 1250, at paragraph 5:

The company maintains that the Board must look to bargaining structures which will work and argues that the proven viability of all-store units should convince the Board to follow its standard practice with respect to retail outlets. The company points to the certification within the banking industry on a branch by branch basis as an example of a bargaining structure which has not worked.

39. But whether the oft-used term "viable" bargaining unit in the case law of the various Labour Boards was meant to specifically include the "bargaining strength" question need not be decided here. Quite apart from that, for the reasons given earlier, the 7 branches in Metropolitan Toronto sought to be combined here do appear to us to have "a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer". The Board having that option, therefore, on the facts of the case before us, it is the view of the Board that the legitimate labour relations interests of all of the parties, as articulated most fully in the Insurance Company of British Columbia case, supra, are best served by the adoption of that unit.

40. That unit is also the one which, in our view, best reflects the reality of the collective bargaining that is about to take place. We ask again, as we did at the hearing, whether any experienced person really believes that either side, in the present circumstances, would allow bargaining to proceed at individual branches on a truly independent basis? The history of the negotiations set out in the Bank of Montreal case, supra, for example, is but one illustration of the kind of bargaining that is likely to take place under these circumstances. Whether individual-branch bargaining with all employers could be co-ordinated as smoothly as it was with the Bank of Montreal is not known, but giving more consideration to the question "at the front end", in the words of Hospital for Sick Children, supra, where an appropriate opportunity presents itself, would appear to be a constructive way to minimize the potential for problems, and to eliminate the need for artificial means of co-ordinating the bargaining. The existence of such a combined unit still will not, as the Bank of Montreal case notes, dictate the result of bargaining on substantive issues like mobility rights, but it will at least provide a framework within which these issues can be discussed and freely negotiated, without legal impediments being raised.

41. To summarize, it is only the bargaining framework, or structure that is at issue in this case. The reduction of the "appropriate" unit to the minimum level required for organizing to "gain a foothold", in the language of the earlier cases, is not the issue: the applicant already has had its success in organizing at a number of the respondent's branches. Nor is the appropriateness of those individual branches as units for certification in issue: at the very least, prior Board jurisprudence points to their appropriateness as individual branch-units standing alone, and the agreement of the parties on the particular facts before us confirms that certificates could issue on

that basis. The only question, in light of that, is whether those certificates would more appropriately be combined at this stage into one, and for all of the reasons set forth above, we conclude that they would.

42. It follows that only those branches for which the applicant is otherwise certifiable are affected by this decision on the part of the Board to consolidate individual branch-units into what the Board finds to be a "rational and viable" single bargaining unit. Unlike the British Columbia Board, we see nothing in our legislative mandate which prevents us from taking into account the fact that individual certificates for bargaining are about to issue in any event, when turning our mind to the question of the appropriate form of bargaining unit within which that bargaining ought best to proceed.

43. While the argument has proceeded to this point on the basis of certain assumptions, a final determination of which of the 7 branches the applicant is in fact entitled to certification for will have to await the resolution of all outstanding issues relating to the membership evidence filed in this case, together with the list of "employees" employed in the unit at each branch. Should it become material, the Board will also have to decide at that point whether it would be appropriate to issue an "interim" certificate covering all branches for which the applicant is immediately certifiable, as opposed to those which, for one reason or another, the applicant would only become certifiable following the taking of a representation vote.

44. Finally, on the issue of whether the "part-time" and "full-time" employees ought to form one bargaining unit or two, the Board is not persuaded in this case that it ought to depart from its own practice of separating the two for the purpose of collective bargaining. For a review of the considerations taken into account by the Board in this regard, see Board of Education for the Borough of Scarborough, [1980] OLRB Rep. Dec. 1713.