Southern Ontario Newspaper Guild v. TV Guide Inc., 1986 CanLII 1451

[1986] OLRB Rep. October 1451

3310-84-R Southern Ontario Newspaper Guild, Applicant, v. TV Guide Inc., Respondent, v. Group of Employees, Objectors

BEFORE: R. 0. MacDowell, Vice-Chairman and Board Members W. H. Wightman and B. L. Armstrong.

APPEARANCES: Naomi Duguid, C. M. Mitchell, John Bryant, Paul Pellettier and Brad Cundiff for e applicant; R. C. Filion Q.C., Andrea E. Esson, Keith Drake, Richard Dubuc, Jeffrey W. hearer and Kenneth J. Larone for the respondent; Michael G. Horan and Rod Jamer for the bjectors.

DECISION OF R. 0. MACDOWELL, VICE-CHAIRMAN, AND BOARD MEMBER W. H. RIGHTMAN; October 3, 1986

I

1. This is an application for certification.

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

3. For ease of exposition the applicant may sometimes be referred to as "the union" or "the Guild" and the respondent, TV Guide Inc., may be referred to simply as "the company".

II

4. In this application the Guild is seeking certification as the bargaining agent for approxi­mately forty-two employees working in the editorial department of TV Guide Magazine. The maga­zine is one of the publications produced by TV Guide Inc. at its premises on Holly Street in Toron­to. The Guild claims that this "departmental bargaining unit" is appropriate for collective bargaining. The Guild does not seek to represent any of the employees in other departments of TV Guide Magazine, nor does the Guild seek to represent any of the employees who work on the other company publications produced at the same location. This application is restricted solely to the editorial department of TV Guide Magazine.

5. The company disagrees with the union's proposed bargaining unit. The company argues that it is far too narrow, because the editorial department employees do not have a community of interest which is separate and distinct from that of other company employees in other departments. The company asserts that the "appropriate" unit should encompass the employees of both TV Guide and "Canadian Living", another publication produced at the same business location. In the alternative, the company argues that the bargaining unit should, at the very least, encompass all employees of TV Guide Magazine. Counsel for the company referred us to the decision in The Spectator, A Division of Southam lnc., [1981] OLRB Rep. Aug. 1177, where the Board reviewed the anomalous pattern of bargaining units in the newspaper industry and clearly indicated that it would no longer be receptive to the creation of fragmented departmental bargaining units, unless the employee grouping met the requirements for a "craft unit" under what is now section 6(3) of the Act, or the proposed departmental unit was otherwise demonstrably "appropriate". The perti­nent paragraphs are as follows:

6. As a general practice the Board does not grant certification on a departmental basis. For historical reasons exceptions were made in the newspaper and printing industry. Those industries were traditionally organized by craft unions at a time, long pre-dating the existence of this Board, when the printing trades were distinguished by specialized skills that gave rise to clear distinctions along craft lines. (See, Zerber The Development of Collective Bargaining in the Toronto Printing Industry in the 19th Century (1975) 30 IR/RI 83. From its earliest days the Board granted certificates in the newspaper industries reflecting the traditional craft designa­tions. (See, e.g. The Ottawa Citizen, 11944] OLRB Rep. Aug.; The Star Publishing Company of Windsor, Limited, (1945) CLLC 10,424. The traditional preponderance of craft units in the newspaper industry tended to produce more fragmented bargaining structures than would be encountered in other industrial settings. That may explain why, over the years, the Board often acceded to the agreement of the parties to departmental units of employees who did not possess craft skills. Generally in an industrial setting the Board would, apart from any special craft units, contemplate a breakdown of employees for collective bargaining purposes into office and clerical employees on the one hand and production employees on the other. When a plant is substantially organized along those lines any union seeking to obtain certification for a departmental unit is normally required to take a tag end unit of all unorganized employees. The obvi­ous reason is to avoid undue fragmentation in collective bargaining.

7. In the instant case the parties were unable to refer the Board to any precedent decisions in which the practice of permitting departmental bargaining units in the newspaper industry was fully explained. A review of the Board's prior decisions suggests that the practice has evolved more as a matter of deferring to the agreement of the parties in the industry, an obviously critical consideration, rather than by the application of normative collective bargaining principles in disputed cases. If in the past the Board has acceded to agreements establishing the non-craft departmental units in the newspaper industry, it has not done so without some guarded concern. In the St. Catharines Standard Limited, [1975] OLRB Rep. July 601, the Board granted certifi­cation for all employees in the classified advertising department of the employer newspaper. In so doing it commented, at page 603, as follows:

8. The foregoing passage indicates the Board's concern for the excessive fragmentation of bar­gaining units while recognizing the countervailing value of giving the greatest weight to the agreement of the parties in the structuring of bargaining units. Implicit in that statement, however, is an indication that where there is no agreement between the parties on the structure of a bargaining unit in the newspaper industry the Board will not hesitate to apply established general principles respecting community of interest in fashioning appropriate bargaining units. This is the first application in the newspaper industry which we are aware in which the parties have not been agreed on the designation of the bargaining unit. To that extent the Board is compelled to address the question of whether non-craft departmental units should be the presumed rule in the newspaper and printing industry or whether collective bargaining could be appropriately grounded on a more comprehensive basis.

9. In the past twenty years the newspaper industry has seen some fast moving and dramatic technological change in its methods of production. (See, generally Baker, Printers and Technology (1957, Columbia University Press, New York); Kelber and Schlesinger Union Print­ers and Controlled Automation (The Free Press 1967, New York); Rogers and Friedman Printers Face Automation (Lexington Books, 1980, Lexington Mass.).) The movement of newspaper printing processes from hot lead to cold metal and to still more modern computerized word processing and photo-printing equipment has already spawned complex jurisdictional dis­putes at a number of Canadian newspapers (including LaPresse, The Pacific Press and The Toronto Star; see, the Toronto Star Newspapers Limited, [1979] OLRB Rep. May 451; Toronto Star Newspapers Limited, 119801 Rep. Apr. 565 at 566). Labour boards have been forced to become increasingly cognizant of the collective bargaining ramifications of these developments in the newspaper and printing industry and have been required to fashion decisions responsive to the emerging reality.

10. In a recent decision the National Labour Relations Board had occasion to consider the bar­gaining unit appropriate in a newspaper transformed by recent technological change. (Leaf-C/ironical Company, (1979) 244 NLRB 1104; 102 LRRM 1306). In that case the employer maintained that the Board's traditional practice of granting departmental units should be fol­lowed and that the composing room, camera room, press room and mailing room should be sep­arated into individual bargaining units. It also requested a separate multi-location editorial or news department bargaining unit. After closely examining the facts the NLRB noted that there had been a substantial blurring of craft lines in the newspaper's operations. It noted that the only skill required in the composing room was typing and that there were no skill or experience prerequisites for employment in any other of the production departments. The Board also remarked that the merger of the Mailer's Union with the Typographers (I.T.U.) further blurred traditional craft lines. Applying normal considerations of community of interest the Board con­cluded that two bargaining units were appropriate, one being a comprehensive unit including all mechanical department employees of the newspaper and the second being composed of all newsroom and editorial employees.

11. We see no reason why, in a similar case, this Board should arrive at any different conclusion. When the employees of a newspaper or printing shop perform discernable craft skills and an established craft union applies to represent them in collective bargaining the overriding policy of the Act, expressed in section 6(2), [now section 6(3)] is that the value of special representation overrides the disutility of fragmentation. On the other hand, where employees do not exercise technical skills or perform craft work which meaningfully distinguishes them from other employees there should be no presumption in favour of fragmentation. In future applications in the newspaper and printing industry, therefore, where it does not appear on the evidence that the preconditions to the certification of a craft unit are made out the Board will be open to submis­sions for the structuring of bargaining units on the basis of normal considerations of community of interest. There should no longer be any presumption that non-craft bargaining units will be structured by department; without limiting the direction in which the Board may wish to take in any given case we see no reason why in the newspaper and printing industry, apart from the estab­lishment of legitimate craft units, the representation of employees for collective bargaining purposes should be any less comprehensive than in other

industries. Where the evidence discloses a separate community of interest among all office and clerical employees, all mechanical prod­uction employees and all editorial or newsroom employees bargaining units should be fashioned accordingly.

[emphasis added]

6. The respondent urges the Board to follow the approach enunciated in The Spectator, and suggests that here there is an even stronger case for an "all employee" unit. Counsel points out that, at the Spectator, there were already departmental bargaining units to which the employer had previously agreed, and the union could assert a "reliance interest" based upon an apparent Board policy of accepting such units as being appropriate. Here there is no pre-existing acquiesence in, or pattern of, departmental bargaining; and, the Spectator decision was a signal of the Board's inten­tion to review its approach. Finally, counsel notes that this is a magazine, not a newspaper or print­ing shop, and there is no established pattern of departmental bargaining in magazines. Counsel argues that the anomaly of departmental bargaining units should not be extended to this largely unorganized sector of the publishing industry.

7. The company's position is supported by a number of editorial department employees

who intervened and urged the Board not to adopt the departmental bargaining unit proposed by the Guild. These employees expressed their concern about any bargaining structure which, they said, would "artificially" divide them from other TV Guide employees with whom they were com­monly associated in their work. They did not see the utility of a collective bargaining process con­fined to only one department, and they worried that a bargaining unit so narrowly defined might unnecessarily restrict their own job opportunities. Like the company, they argued in favour of a broader bargaining unit encompassing all employees of the respondent employer.

8. The hearing on this bargaining unit question consumed a number of days, and both the company and the Guild took the opportunity to put before the Board a good deal of evidence about the company's organization, the particular circumstances of its employees, and the pattern of collective bargaining in the newspaper industry. It is neither necessary nor practical to repro­duce all of the details of that testimony. It is sufficient to say that we have tried to sketch in an overview of the facts, taking into account such factors as: the clarity, consistency, and overall plau­sibility of the testimony when subjected to the test of cross-examination and compared with the evidence of other witnesses; the ability of the various witnesses to resist the tug of self-interest when giving their evidence; and what seems to be most probable in all the circumstances. Some of the evidence reflected the personal experience, or interest of the witnesses, and we have tried to take that into account. In the case of the evidence of the historical development of collective bar­gaining in the newspaper industry and its current problems, we must necessarily piece together the existing pattern from the sometimes subjective and impressionistic testimony of the participants in that collective bargaining process.

III

9. TV Guide Inc. is the publishing arm of the Montreal-based media conglomerates Tel­emedia Inc. and Telemedia Enterprises. Telemedia is also involved in radio and TV broadcasting. For our purposes, the only relevant portion of its business is on Holly Street in North Toronto where it has broadcasting facilities and its subsidiary, TV Guide Inc., produces three English lan­guage magazines: TV Guide, Canadian Living, and Canadian Living Specials. TV Guide is a weekly magazine; Canadian Living is published monthly (thirteen times a year) and Canadian Liv­ing Specials appear occasionally throughout the year.

10. The three magazines have a different editorial and commercial focus. The Canadian Living magazines are primarily concerned with food, "homemaking" and "family life" items, and are typically displayed and sold in supermarkets. TV Guide is also sold in supermarkets and has occasional recipes and other food features but, as its name suggests, TV Guide is primarily con­cerned with material pertaining to television viewing and the entertainment industry. Much of the book consists of daily television listings (by date, hour and channel) interspersed with related advertising, or general consumer advertising unrelated to television.

11. TV Guide is produced in accordance with a licence or franchise agreement with the American publisher of the U.S. magazine of the same name; and, in fact, TV Guide receives both feature items and a variety of services from its American counterpart. These services include use of the American company's main frame computer in Radnor, Pennsylvania which can generate thou­sands of what the witnesses described as "blurbs"--very short items describing in a few words or lines the content of various television shows (especially reruns of movies or popular programmes such as MAS*H). The volume of reruns may vary from season to season, but, obviously, any particular issue of TV Guide may contain quite a bit of this pre-written material. The Radnor com­puter is also used to assist in the layout of the Canadian magazine.

12. There are twelve different editions of the Canadian TV Guide Magazine, corresponding

the different regions of the country. Seven of these magazines are produced at the Holly Street location in Toronto, and the other five are produced in Vancouver. The content of each book depends upon the number of network and private stations in each area, and the particular progamme schedule of those stations. Each book is different, but there will necessarily be many simi­larities because of national advertising, syndicated or network programming, or the rerun of the same shows at different times.

13 . Telemedia operations occupy most of the first and all of the second and third floors of t e Holly Street building. At the centre of the building, on each floor, are common elevators, washrooms and staircases. On the ground floor there is a common reception area and two large areas occupied by "The Sports Network" and "Telemedia Broadcasting Systems". There is also a common mailroom, a typesetting area and an area used for Canadian Living Specials. On the second floor one finds the TV Guide editorial department, TV Guide sales, TV Guide advertising, a public relations department, the transportation department, the production services department, and the marketing services department. The TV Guide editorial department occupies one end of the building and the other departments are arranged, sequentially, around the perimeter of the building. On the third floor are the executive offices, accounting department, lunchrooms, promo­tion department, Canadian Living Editorial department, Canadian Living sales department and the Human Resources department. These various departments are physically contiguous and the 'open area concept" office design reduces the number of physical barriers between departments and work areas. The editorial department has its own work area but it is not geographically isolated from the work or employees of other departments.

14. From a functional point of view there are several departments which provide services to II three magazines produced at Holly Street. These include the Human Resources group (person­nel department - payroll, staffing, salary administration), finance, accounting, marketing services circulation and customer response), promotion, public relations, transportation shipping/distribution), and production services (including typesetting). All departments and employees use (in various degrees) the same elevators, stairs, lunchrooms, halls, water fountains, washrooms, meeting rooms, telephone switchboard system, Xerox machines and computer system. they all make use of the same mail room, mail delivery system, reception area, and central purchasing of office supplies.

15. The evidence does not disclose the precise breakdown of the number of employees in ach department, although the respondent indicates that there are approximately 187 employees in ts proposed "all-employee bargaining unit", and the schedules filed with the Board indicate that here are approximately forty-two employees in the editorial department. Mr. Richard Dubuc, Manager of Human Resources estimated that there are approximately fifty-one employees (includ­ing management) in the editorial department, thirty-one in advertising, twenty-two in the type­setting group and, in total, about thirty-five in the production services department. The Canadian Living editorial department has about twenty-two employees and the Canadian Living sales department has about eight.

16. Despite the many shared services mentioned above, TV Guide and Canadian Living have their own managerial structure and separate editorial departments. There is no co-ordination of editorial content, although some of the contributors are the same - particularly in the case of food writers, stylists, and photographers. Canadian Living obtains a considerable amount of its material from freelancers and persons it employs, while TV Guide obtains a high percentage of its material, in the form of listings, from the Radnor computer or directly from the stations or net­works. According to Brad Cundiff, the "copy chief" and a union witness, the journalistic and edi­torial skills of the contributors to Canadian Living (employees or freelancers) are probably higher than those at TV Guide because the Canadian Living feature articles tend to be much longer. The persons who do editing at Canadian Living tend to be more senior and are more highly paid. Nev­ertheless, although the Canadian Living "product" is different, much of its target market is the same (the newsstand or supermarket shopper rather than subscriber), and, in a general sense, many of the journalistic, editorial, technical or business skills necessary for its publication are the same as those necessary to produce TV Guide. That is why the two magazines can comfortably share the services of the several departments common to both of them. Without wishing to over­simplify, the situation is somewhat like that of two related product lines produced in a single facto­ry.

17. The employees of all the departments of both magazines work in relatively close prox­imity to one another and have access to common areas such as lunchrooms or washrooms. Employ­ees from both publications or any department (as necessary) can use the TV Guide screening room or library. There is a standard employment application for all prospective employees in all depart­ments of all English publications. The terms and conditions of employment and benefit programme are the same for all employees (i.e., pension plan, medical insurance, life insurance, dental insur­ance, vacation, hours of work, time off, summer hours, benefit administration, statutory holidays, employee counselling, social club, Christmas party, tuition fund). Overtime opportunities and hours vary somewhat depending upon the demand in a particular department, but are administered in the same way. There is a common job posting policy applicable to all employees in the publication and broadcast group, although, in practice, there are more vacancies and opportunities for mobility within the publishing area.

18. There is no difference in the way that salaries are set and administered - as might be expected where, as here, there is a single "Human Resources" department performing the person­nel functions for all employees of the company's English publications. While there is no standard­ized grid or wage classification system, the basis for setting all wage rates is the same: a periodic wage survey covering twenty-six other magazines. An effort to update and standardize the job clas­sification system, beginning with the editorial department, was interrupted by this certification application.

19. For corporate accounting purposes, the wage bill of TV Guide and Canadian Living are separate, however, all employees of both magazines are paid on cheques issued by TV Guide Inc. which include an attached, standardized statement of earnings and deductions. In keeping with the company's common employment practices, benefit policies, and job posting procedures, the com­pany periodically circulates its "intouch bulletin", which is an internal information document directed to all employees of TV Guide Inc. to advise them of current business or personnel developments, such as promotions or transfers between departments. In none of these aspects of the employment relationship is there anything unique about the employees in the TV Guide editorial department.

20. The employee movement between departments and publications is rather interesting in view of the union's assertion that the employees in the editorial department have a unique community of interest, separate and distinct from that of all other departments of TV Guide or Cana­dian Living. If that were the case, and if the TV Guide employees were an island of particular self ­interest, one would not expect much movement between departments or publications. But such transfers do occur, both between departments and between publications. The evidence suggests that the editorial employees do not occupy the kind of insular, watertight compartment that the union describes in its submissions.

21. In October 1980, Mr. F. Baldock was hired as a features editor for Canadian Living. Eight months later, he became a features editor in the TV Guide editorial department. Thereafter he became an assistant managerial editor and executive editor in TV Guide editorial. Barbara Borne was first hired on a part-time basis as an editorial secretary in Canadian Living. She was then transferred (in 1982 and 1983) to two clerical positions in TV Guide editorial. In 1984 she was transferred again to the promotion department, which, as we have already noted, provides services for both TV Guide and Canadian Living. Ms. B. Bruner was an editorial secretary for Canadian living, a promotion assistant in the promotion department, a secretary in TV Guide editorial and, later, assistant photo editor, then editorial business manager for TV Guide editorial. Keith Crossing was a field representative in the TV Guide circulation department, a promotions representative in the circulation department and, in 1979, became French editor in TV Guide editorial. Ms. W. George was an administrative secretary (general) and administrative assistant for Canadian Living then became the librarian for TV Guide editorial. Ms. C. Hau, hired as a telex operator for TV Guide editorial, then was transferred to accounts payable clerk in the finance department and, lat­er, to the position of data entry clerk in the circulation department. J. MacCrea was a secretary in 1 he finance department and marketing departments before being transferred to the payroll clerk position in the payroll department and, finally, the secretary to the editor (excluded from the bar­gaining unit) in the TV Guide editorial department. Lisa Sandor was hired as an art assistant in TV Guide editorial before being transferred ten months later to a similar position in the promotion department. L. Speziale was hired in June 1976 as a subscription clerk in the circulation depart­ment and, later, was transferred or promoted to the positions of station editor, production editor, and assistant regional editor in TV Guide editorial. J. Sumbler, hired in 1983, was first employed is a bilingual station editor for TV Guide editorial before being transferred to the promotion department. D. Paris was hired in 1984 as a station editor for TV Guide editorial but, four and a half months later, was transferred to the position of copy editor with Canadian Living. N. Dobro­wolsky, first hired as a secretary in the (shared) administration group was transferred thirteen months later to the position of assistant editions manager for TV Guide editorial. Ms. S. Price, Aired in 1977 as a subscription clerk in the subscription department, later became a receptionist in administration, a secretary in the marketing department, a secretary in TV Guide editorial, the business co-ordinator in TV Guide editor and, finally, the French co-ordinator in Canadian Living.

22. We recognize that some of these "transfers" took the form of a quit and immediate "re­hire" and that a number of them involved secretarial or administrative staff rather than "editors" r "journalists", but, as we shall see, those terms may be a bit misleading, and the fact remains hat there is a degree of employee mobility between departments and magazines. Moreover, the nix of employee skills within the editorial department is not as unique as some of the union wit­nesses suggested.

23. At the time of the application there were forty-four employees in the editorial department: forty-two on Schedule "A" and two on Schedule "D". Of these forty-four employees, eight are classified as "station editor" - the largest single classification. The primary function of a "sta­tion editor" is to maintain contact with local stations in order to obtain programme listing informa­tion which is checked for accuracy and entered into the Radnor computer. Each station editor maintains contact with six to nine stations to gather such information. Much of the U.S. network information will already be in the computer, as will information on any programme reruns. The employees working on the Toronto book will have a higher proportion of listings which are not on the computer because of the larger number of local independent stations.

24. The station editor's "editorial" task is primarily one of checking the accuracy of the written material. They might, occasionally, write last minute "blurbs" or make a late correction or, very occasionally, an individual might "try his hand" at an even longer piece; but, in practice, writ­ing is only a small part of their duties. It is both infrequent and not a requirement of the job.

25. Keith Larone, the editor of TV Guide, identified twenty-two jobs (or fifty per cent of the proposed bargaining unit) which do not involve any significant writing component. Accordingly (leaving aside, for the moment, the actual level of journalistic skill required for these "writing jobs"), it is difficult to describe the proposed unit as one composed primarily of writers or journal­ists. Nor should allusions to the writer's "craft" or "artistic sensibility" obscure the fact that the proposed editorial bargaining unit contains quite a number of employees who are not "writers" or "editors" at all.

26. A summary of the educational background of the employees in the editorial department indicates that there are about thirteen employees with specific training in journalism, and several others with degrees in English or other arts degrees in which they have taken creative writing courses. However, that summary, when matched with the witnesses' evidence also indicates that there are a number of employees doing "journalistic-type" jobs who do not have any formal training in journalism, and others who have a journalistic background but are working in areas where there is little writing or journalistic content. By way of comparison, we might note that there are also a number of employees in the promotion department who have post-secondary training in journalism, art or English, and that some of these employees are involved in writing advertising or promotional material. Their jobs also involve a writing, design or artistic component. The promo­tion department is much smaller, but the mix of educational backgrounds is not significantly differ­ent from that of the employees in the editorial department. The parties also agree that some good writers or popular journalists do not have any formal training at all.

27. We mention these factors because implicit in some of the testimony (see infra) was the suggestion that, by reason of job function, training or inclination, the employees in the editorial department of TV Guide form a distinct and cohesive group like the mechanical tradesmen who are often represented by craft unions in separate bargaining units specific to their trade. That is simply not the case.

28. The witnesses reviewed, in some detail, the job functions of the various members of the editorial department. We do not think that it is necessary to do so here. The evidence was not entirely consistent and, according to some of the witnesses, the written job descriptions were not entirely accurate. What is clear is that within the restrictions imposed by the specialized and some­what limited format of the magazine, there is, among the writers, a hierarchy of employee skills ranging from those sufficient to prepare the "blurbs" or other short, descriptive pieces of less than one hundred words which appear throughout the magazine, to those of columnists or feature writ­ers whose work is more substantial, sophisticated or analytical. A review of the issue of the maga­zine filed with the Board reveals that most of its local content is in the former category and is based upon material often supplied by the networks or TV stations. There are not very many long items, nor very many TV Guide employees who regularly produce them.

29. To put all of this in perspective, it seems to be common ground that neither TV Guide itself nor the makeup of its editorial department are comparable to a daily newspaper. Unlike a newspaper, TV Guide buys a lot of its services. It does not have its own truck fleet, presses or printing plant. It buys its photographs and many of its feature articles from freelancers or syndicates. Food photographs are also purchased, along with the services of a food tester and food styl­ist. TV Guide is not "news driven" nor predominantly dependent upon subscription sales. It is not performing the same function as a newspaper, nor is it organized in the same way. Those differ­ences are reflected in the makeup of the "editorial department".

30. According to Mr. Larone (who has twenty-eight years' experience in the publishing industry and has worked for a variety of newspapers, including the Toronto Star), TV Guide has a number of employees with the title "editor" who simply would not be hired in the editorial department of a newspaper. The title does not involve the same degree of skill, training or understanding of such things as investigative reporting, interviewing techniques, makeup and design. Mr. Larone testified that the editorial department of the Star would have a much higher proportion of employees involved in writing, and such writing would involve a much more sophisticated journalistic component. A newspaper such as the Toronto Star would only hire journalism graduates who would then work their way up the journalistic ladder. The journalistic standards are much higher than those required of, or possessed by, most TV Guide employees. Even the entertainment sec-ion of the Star involves much more sophisticated writing than that found in TV Guide - an impres­sion readily confirmed by a perusal of items which fill most of the space in TV Guide. In Mr. Lar­one's view, ready access to banks of computer-stored reviews will mean that, in the future, the ability to manipulate existing files of written material will be as important as new writing.

31. This is not to depreciate the value of the work performed by employees in the editorial department. It is simply that their job titles are a little misleading and neither their skills nor functions are necessarily the same as those of persons working for a newspaper and having the same job title. If journalism were regarded as a "profession", then many TV Guide editorial employees would not be included, or, in a few cases, would be ranked in the lower echelons. As we have already mentioned, a substantial number of the employees in the editorial department are not really "writers" or "editors" at all.

32. This general impression was not seriously contradicted by the union and, indeed, was confirmed by Professor Bob Rupert, a union witness. Mr. Rupert has held a variety of union offices and has had experience on both sides of the bargaining table. He is now a professor of jour­nalism at Carleton University. He testified that the essence of professional journalism (apart from the ability to write) is self-assignment and direction, sound research and the exercise of independent judgement in gathering information. Very few of the editorial department employees require those journalistic abilities. Professor Rupert said that TV Guide was not the kind of publication for which Carleton graduates would want to work for very long, although it might be acceptable as a first job. He agreed with company counsel's suggestion that, in comparison with a daily newspaper, he journalism and editorial content of TV Guide was decidedly "down-scale".

33. Professor Rupert further testified that in his experience on "newspapers", the journalists and editors in the editorial department have skills and interests which are quite different from hose of other employees at the newspaper. He said that the editorial department tends to view itself as a separate entity, dealing directly with the publisher and the public. There is a certain pro­fessional self-image which makes it more likely that journalists will know and associate with other journalists whom they see at the press club rather than other employees in their own newspaper. This ethos of independence is reinforced by the fact that newspapers are "news driven", and there s real competition with other journalists to get or develop good "stories" within sometimes rigid deadlines. Professor Rupert said that editorial departments tend to be insular, much like the departments of a university. Editorial department employees have their own interests and objec­tives and there is little functional relationship with other departments of the newspaper.

34. Is this an accurate picture of the editorial department of TV Guide? The union suggests that it is. In the union's submission, the editorial department employees have a distinctive community of interest and there is little functional interrelationship or interaction with employees in other departments. Brad Cundiff, a union witness, even testified, in direct examination, that the editorial department was isolated at the end of the second floor and that the only point of contact with other employees in other departments would be in the coffee room or washrooms. On further examination, however, he admitted that editorial department employees do, and must, interact with employees in other departments and, on cross-examination, he said that "my department is the cross-roads for the whole magazine". That comment is both candid and revealing.

35. No doubt a number of editorial department employees do perform certain functions which, in some respects, are different from those performed by employees in other departments, and the editorial department is an established subdivision of the employer's organization. But the suggestion that the editorial department employees work entirely independently from employees in other departments, is simply not borne out by the evidence.

36. Obviously, the employees in the editorial department do not spend significant amounts of their working day chatting with employees in other departments about work-related problems. They do their own work. However, the production of the magazine, on time, requires the co-ordinated efforts of employees in all departments. Without specific evidence to put Professor Rupert's general comments in perspective, it is difficult to say whether the degree of interaction is greater or less than that which one would find in a daily newspaper, but, in this Board's experience, it does not seem to be much different from that of departments in other commercial or industrial estab­lishments. Superficially, at least, the professors in a university department (mentioned by Profes­sor Rupert in his testimony), or the technical employees in a specialized hospital department would have a stronger claim to an independent identity than the editorial department employees here. (In this regard see the general comments of the Board in the Hospital for Sick Children, [1985] OLRB Rep. Feb. 266; Kidd Creek Mines Limited, [1984] OLRB Rep. March 481 and [1986] OLRB Rep. June 736, and more recently, The Board of Education for the City of Toronto, [1986] OLRB Rep. June 900).

37. At its most basic level, interaction between the advertising, editorial and production services departments is absolutely essential because the former two departments both fill space in the magazine and the production personnel are concerned with getting the material in the appropriate form for transmission to the printer on time. Unlike a daily newspaper, TV Guide is much less finely tuned or dependent upon local advertising. TV Guide ads are often sold far ahead so that there are pre-established space requirements, and sometimes the advertising sales efforts and the editorial content are specifically linked. As an example, Mr. Larone indicated that the magazine might plan a food story with the "backdrop" of the Dallas cast having fun at a barbecue. The salesman would then use this proposed story as part of their "pitch" to persuade a company such as Kraft or General Foods to buy space. Similarly, the promotion department may develop contests (such as giving readers the opportunity to "win a Fierro this week") which have to be appro­priately announced and displayed on the cover or pages of the magazine.

38. It is not simply a matter of editorial employees writing around blocks of space filled by advertising. The advertising material must be properly juxtaposed with the text - particularly the programme listings, times, and TV stations - or adjusted so as not to create a clash (for example, a liquor ad adjacent to a listing of a documentary on alcohol addiction or an ad such as the one appearing at page 107 of Exhibit 2 entitled "Don't let a friend drink and die"). Juxtaposition is particularly important for the so-called "contra" advertising which appears throughout the book. Contra advertising is a "trade-off' or "exchange in kind" between the magazine and various radio or TV stations. Those stations display their programmes or commentators and the station logo beside particular time slots, and, in return, they provide broadcast time to the magazine to adver­tise its product. Such ads are sprinkled throughout the book and are an important component, but they are the ones most likely to be "killed" because of paging limits. Such decision, of course, nec­essarily involves both editorial and advertising personnel.

39. Rod Jamer is the assistant features editor and one of the more highly skilled employees in the editorial department (the features editor is excluded from the proposed bargaining unit). Jamer has contact on an ongoing basis with the advertising personnel and with production services, the employees who are co-ordinating printing schedules and are on the same floor as the editorial department. There is ongoing discussion of when certain pages or books will close. The promotion employees may also come to Jamer to ask for his upcoming line-ups so they can do specific press releases knowing the articles to which they will relate. The various "co-ordinators" have an ongo­ing relationship with employees outside the department since they are working towards deadlines and they must be aware of press schedules and the activities of the production services employees. Similarly, the art employees in the editorial department have contact with typesetting and production services.

40. The editions co-ordinator is also concerned with budgets and book size which brings her into contact with the advertising department, the production services department and the promo­tion department. She is involved with estimating and planning ad content, promotion content etc., and this involves cost estimation (depending upon book size) and "book modelling" with the prod­uction services department to see if changes in design will have cost implications. There may even be some contact with circulation because station penetrations vary geographically and so must the weighting of programme information. Barbara Bruner, the "editorial business manager" interacts with the finance department and also works during the planning period with the advertising depart­ment to develop sales estimates which, in turn, influence page and book sizes. The screening room in the editorial department is used by text writers, columnists and assistant editors, as well as "out­siders" from the promotion department who review advertising videos which they prepare for dis­tribution to TV stations. The magazine's public relations director appears on television to talk out television and regularly obtains his information from the editorial department. And at the managerial level, of course, there must be close co-ordination between the various departments since the amount and balance of editorial and advertising content influences book size, cost and profitability.

41. We need not multiply the examples. Some of the employees in the editorial department have skills or perform work which is different from that performed by some employees in other departments (but not so different from that performed by the editorial department of Canadian living). But the same could be said for almost any employees in almost any department in almost any public or private enterprise. Moreover, although some of the functions of some of the editorial department employees may be different from the functions performed by other employees in other departments, those functions are not performed in a vacuum. The editorial department is and must be functionally integrated with the rest of the magazine. The impact of technology is always diffi­cult to predict, but we do not think that the introduction of the more sophisticated computer equipment and video display terminals planned by the company is likely to reduce the degree of integration or interaction between employees in the various departments of the magazine.

42. It became apparent at the outset of these proceedings that the union's final argument would turn, at least in part, upon its existing organizing practices, and the established bargaining structure in the newspaper industry. Several of the witnesses addressed those matters.

IV

43. Since the nineteenth century, the newspaper industry has been the preserve of "craft" unions - employees such as pressmen, lithographers, typographers, stereotypers, or photo engravers who formed unions on the basis of their particular trade skills and claimed exclusive jurisdiction over the work which they customarily performed. Because these employees were usually found in particular departments, their craft bargaining units came to be associated with those departments. Collective bargaining preceded collective bargaining legislation, and when regulatory legislation was eventually passed, labour relations boards, when fashioning bargaining units, tended to hon­our the established practice. Indeed, in Ontario, section 6(3) of the Act requires the Board to do so.

44. The result was a collective bargaining pattern characterized by multi-unionism, frag­mentation, and occasional inter-union rivalry as technological change and the exigencies of the market place assaulted the trade barriers which the craft unions had erected to protect their work jurisdictions. In recent years, such assaults have accelerated. Advances in technology have signifi­cantly undermined the position of workers who were formerly among the "aristocrats of labour". Today, a highspeed photo composition device can produce up to one thousand lines per minute as compared to seven lines per minute on an old linotype machine, and the "cold-type" technology of computers and video display terminals permits the editorial staff to do much of the work formerly done by craftsmen in other departments. With the demise of these traditional crafts and the blur­ring of craft lines has come a wave of union mergers. (See, for example, Exhibit 34 which traces the history and "family tree" of what is now the Graphic Communications International Union.)

45. The Guild is a newspaper union, but it is not a craft union. It was founded in the 1930's on an industrial model, and has, as one of its objects, the promotion of industrial unionism in the newspaper industry. While its constitution does not specifically say so, it is agreed that the Guild's ideal would be one "industrial" trade union representing all employees in newspapers. Since 1973, the International Typographical Union ("ITU") has also advocated an industrial form of union organization although, in the case of the ITU, this position results from the gradual disappearance of its original craft base.

46. Despite the broader parameters of its ideal, the Guild's organizing has typically focused on employees in departments other than those of the mechanical tradesman already or ordinarily represented by traditional craft unions. Guild members are found in such departments as: editorial, mailroom, circulation, advertising, business office, promotion department, and can include cleaners, cafeteria employees, district sales representatives, etc. The Guild includes journalists, but also large numbers of unskilled or semi-skilled workers. Since 1973 the ITU has sought to expand in the same organizing territory and, to a lesser extent, so has the Teamsters' Union.

47. In the late 1970's and early 1980's there were a series of merger discussions between the guild and the ITU. The ITU is a much larger union. The Guild has only forty five hundred mem­bers in Canada while the ITU has about nine thousand. According to Bill McClemen, a Guild offi­cial, the ITU has a presence in five hundred and six locations, while the Guild is present in only one hundred. The ITU has forty-six field representatives to the the Guild's twelve. The servicing cost per Guild member is much higher, and for that, and other reasons, there was some interest in merging with the ITU in order to bolster the union's organizing efforts and take advantage of the economies of scale. According to Mr. McClemen, the ITU is the Guild's main competitor, repre­senting employees in the editorial departments of several east coast newspapers, at least one circu­lation department, editorial and advertising departments in the west, and groups of employees at daily newspapers in Welland, Peterborough, St. Catharines and Sault Ste. Marie. The ITU also represents editorial employees at the Kingston Whig Standard.

48. The Guild's position on bargaining structure is, to say the least, somewhat schizophrenic - perhaps reflecting its recognition of the difference between the unit of employees which is most easily organized and the unit which makes the most collective bargaining sense in the longer term. Bill McClemen testified that it was his preference and that of the union to organize on an all-employee basis. If departments are separately certified, the objective is to combine them. If the union cannot combine departments, it tries to achieve common expiry dates for their collective agreements and interlocking negotiating committees. The Guild constitution sets out a detailed set of collective bargaining objectives which all local unions are required to advance as part of their local negotiating proposals. One of those objectives is a single collective agreement with standard provisions for all departments.

49. Professor Rupert (who also has considerable organizing experience) confirmed that, in h s view, an industrial bargaining unit is the ideal because collective bargaining has a better chance c succeeding but, he said, the Guild has not been able to organize on a broader basis as many other industrial unions have done. He testified that "although we knew that the industrial unit would be more effective, a wall-to-wall unit was not in the cards". Because multi-unionism was an accomplished fact in the newspaper industry, the Guild found it easier to organize "bit by bit" on a departmental basis; and employers, perhaps familiar with departmental bargaining, did not resist. The employers had learned to live with fragmentation, or decided that a divide and conquer strat­egy served their collective bargaining interests.

50. The thrust of Professor Rupert's evidence is also confirmed by John Bryant, a local union official. He, too, indicated that the employees' collective bargaining interests are better served by a broader bargaining unit, and that even when there are multiple units, the Guild tries to bargain in a consolidated way with the assistance of a single conciliation officer. He said that it is much easier to bargain for several agreements at one time because the union does not need such a large committee and can resolve a number of common issues. It is much more efficient, and com­mon terms and standards enhance the ability of employees to move from one bargaining unit to another. Mr. Bryant admitted that separate units and collective agreements can restrict employee nobility and limit their job horizons. Obviously there may also be difficulties if one pocket of employees decides to go on strike and others are unwilling or not legally entitled to do so.

51. It must be noted, however, that some employers, such as the Toronto Globe & Mail, are apparently prepared to live with whatever benefits or detriments flow from fragmented bar­gaining. At the Globe, the single multi-department bargaining unit sought by the Guild has been resisted by the employer. In contrast, at the Toronto Star, the Guild unit encompasses some four­teen hundred workers in a number of departments, originally organized separately, which were eventually combined for collective bargaining purposes and covered by one collective agreement. The Guild agreement with the Toronto Star includes such diverse groups as the finance and administration department, the circulation department, the advertising department, the editorial department, the wire photo service and library, the delivery and garage department, the public relations and promotion department, and porters, building cleaners, elevator operators and paint­ers. This is one of the largest Guild units in Canada and, according to Chris Davies, the Toronto tar industrial relations director, the fact that the agreement covers a number of departments makes it much easier to deal with employee concerns, benefits, and such common occurrences as promotions or transfers. However, the Star still has to deal with a number of trade unions and over the years, bargaining patterns have shifted from negotiations with one joint counsel, to separate bargaining with the Guild and a joint counsel, to individual negotiations with each union which nay have separate "observers" from sister unions. The current Guild contract expires six or seven months after that of the craft unions and there is currently no joint bargaining with the Guild. According to Mr. Davies, the union mergers in recent years have eased but not resolved the prob­lems of fragmented bargaining. Even for the craft unions which have now merged there remain separate bargaining units and consequent problems with respect to interdepartmental mobility, retraining, job progressions, and the need to accommodate technological change.

52. The evidence of Claude Vaillancourt was concerned primarily with the effect of "computerization" on the newspaper business in general, and the company's publications in particular. Mr. Vaillancourt is the company's director of management information systems. He has had exten­sive computer experience and has worked, inter alia, for the Ottawa Citizen. It was his opinion and experience that the introduction of computerized techniques (which the company is in the process of doing) makes departments work together more closely because they are all "on-line" and become dependent on the same technology and tools - although this does not necessarily mean more face to face contact. As an example, he cited the potential interaction of station editors and the art, promotion and advertising department using the computer and their own video display ter­minals ("vdts") to compose a page and properly juxtapose editorial and advertising items.

53. As we have already mentioned, it is rather difficult to forecast the impact of technology on the company's organization and work distribution, when that technology has yet to be introduced. However, Mr. Vaillancourt's evidence also included a "vignette" from his experience at the Ottawa Citizen, which illustrates the potential friction between employees in separately organized departments.

54. At the Ottawa Citizen, in accordance with Guild work rules, only an editorial department employee could make changes in the text - even if such changes involved no more than minor corrections. Yet it was efficient to make such last minute typographical changes in the composing room, and, in fact, the composing room had its own vdt, linked to the same data base as the one(s) in editorial. The terminal in the composing room was quite capable of doing the necessary correc­tions, but the composing department employees were not permitted to make them, and the Guild member from the editorial department was not permitted to use the composing room's equipment. The solution? Install a second, identical "editorial" vdt beside the one already in the composing room, so that neither employee group could complain about the other trespassing on its work juris­diction.

55. The evidence concerning the union's organizing problems deserves separate mention. Messrs. Rupert, Bryant, and McClemen all testified that if the Guild had to organize on a broader basis (as every other industrial union does) it would not be very successful. Mr. Rupert testified that he agonized about it but never came up with a better approach. Mr. Bryant testified that he did not think that the Guild could organize on an all-employee basis because of the lack of interac­tion between departments and the resistance of employers. Mr. McClemen said the same thing: the requirement to organize on a broader basis would make it difficult for the Guild to organize at all. Many years ago, large newspapers (such as the Vancouver Sun and Province or the Victorial Times-Colonist) had been organized that way, but it is no longer possible to do so.

56. It is not obvious to this Board why this should be so. There is no evidence to establish that employers in the newspaper industry are more opposed to trade unions than other private sector employers; moreover, as we have already noted, a number of trade unions have had a foothold in that industry for more than a hundred years. Whatever the attitudes of the "press barons" may be, this is not an unorganized industry, nor one which exhibits unique barriers to the establishment of collective bargaining (except, of course, for the barriers imposed by trade unions upon them­selves by their internal jurisdictional divisions and disinclination to trespass upon one another's ter­ritory). Indeed, in cross-examination, Mr. Bryant quite candidly indicated that the Guild's organiz­ing stance tends to be passive (as in the instant case), waiting for employees to approach the union rather than organizing in an active way. Its proposed unit is shaped by who expresses an immediate interest. As he put it, you "go with what you've got…you can't organize people who don't want to be organized". In the case of TV Guide, there was very little effort to extend the ambit of organiz­ing beyond the confines of the editorial department. When asked why the Guild could not organize on a broader basis in the same way as the steelworkers, auto workers, service employees, or public employees do, Mr. Bryant replied that these other unions can send in a lot more personnel than the Guild. Thus, it may be that the barriers to organizing envisaged by these union officials are related more to the size and meager resources of the Guild, than the intransigence of employers in the publishing industry or the appetite of employees for collective bargaining.

57. There is no doubt that, over the years, the Guild has often organized on a piecemeal, department by department basis, nor is there any doubt that employers have been prepared to a agree to these proposed bargaining units and until The Spectator, supra, so has the Labour Relations Board. Perhaps, as Professor Rupert suggested, that was because publishers were already accustomed to dealing with a number of unions and one more would not make much difference. Perhaps, as John Bryant suggested, some publishers may see an advantage in a "divide and con­quer" strategy or in confining new union organization to the smallest unit possible. Perhaps, as in the case of the Toronto Star, the publishers regard each new Guild unit as manageable because it cm, for practical purposes, be effectively plugged into the existing structure. We need not speculate. What is clear is that a fragmented bargaining unit structure is not a recipe for collective bargaining efficiency or stability.

58. What has been the result of this willingness to accept bargaining unit descriptions which, in other contexts, would not be considered appropriate? The result is mixed - as is evident from Exhibit 39 which lists the Guild's organizing activities in Ontario and other provinces. Exhibit 39 suggests that although it may be easier to organize small groups of employees on a departmental basis, it is not so easy to establish a lasting collective bargaining relationship and that, in the process, there may be considerable turmoil and uncertainty for employer and employees alike. When the maintenance of collective bargaining turns on the wishes of small groups of employees whose composition changes from time to time, then the legal structure supporting those rights will exist, or not, depending upon the wishes of this shifting majority.

59. Let us look at some examples. At the Brantford Expositor the editorial, mailing and circulation, advertising and business departments were certified in 1957. Two years later, the adver­tising and business departments were "decertified". In 1978, a new certificate was issued for the circulation department, so presumably bargaining rights for the circulation department had earlier been abandoned. In 1980, only 2 years later those same bargaining rights were terminated. In 1983, there was another circulation department certificate.

60. In 1953, the Guild was certified to represent the employees of the Ottawa Journal work-Pig in the circulation and editorial departments. In 1955, an application to the Board resulted in termination of those bargaining rights. In 1959 and 1961 there were new certificates for the circula­tion and editorial departments. Then, between 1961 and 1966 there was a further editorial "decer­tification" as well as a "decertification" in the maintenance department. And then, in 1972 there was a new certification in the circulation department (inter alia) for part-time workers.

61. At the Sudbury Star in 1973, the union was certified to represent full-time employees in 1 he business, circulation and editorial departments. The circulation department was "decertified" in 1974 and "recertified" in 1977.

62. At the Toronto Globe & Mail there were a series of certificates issued in the 1950's. In .959, the advertising department was certified. In 1962, those bargaining rights were terminated. In 1963, the cafeteria was certified but, subsequently, the tasks were "contracted out" and the unit disappeared. In 1963, there was a new certification for the circulation department which had been certified several years earlier but, apparently, had not achieved a collective agreement. In 1977, district sales representatives were certified. In 1979, the bargaining rights were terminated. In 1982, there was a new certificate for district sales representatives. In 1985, there was a new certifi­cate for advertising employees.

63. In the case of certificates granted for the Burlington Gazette (advertising, business, editorial), CCH Limited (editorial), Oshawa This Week (editorial), Peterborough Examiner (editori­al), Toronto - Burlington Post (editorial), Toronto Citizen (advertising, business, circulation, edi­torial), and Toronto Bargain Hunter Press (all office, clerical and technical employees) no collective bargaining relationship was ever established. In the case of the Regina - Saskatchewan Leader Post, the circulation department was certified in 1981 and decertified a year later. In the case of the Saskatoon Star - Phoenix, the editorial department was certified in July of 1975 and decertified in February 1978. The advertising and editorial departments of the Winnipeg Free Press were certified but never got a collective agreement. The advertising and editorial depart­ments of the Winnipeg Tribune were successful in achieving an agreement but the publication fold­ed. The Toronto Star, on the other hand, is a success story, as is the Ottawa Citizen and the Toronto Telegram before it folded.

64. What is evident from Exhibit 39 is that, however easy it may be to organize a newspaper department, it is much more difficult to establish a lasting collective bargaining relationship. It would appear that, in many cases, these small pockets of employees may not be a significant pres­ence at the bargaining table, and where bargaining rights are rooted in the shifting loyalties of small groups of employees, the union's success may be ephemeral. One must always be careful about generalizing from the experience of one, relatively small union, in one industry, however, the number of collective bargaining failures certainly raises a question about the stability and via­bility of departmental bargaining units even in an industry where there is some precedent for them.

65. Both parties put their own gloss on the evidence and urged the Board to take into account labour relations principles and policy considerations, which, they said, had been established in earlier cases to which we were referred. Accordingly, it may be useful to briefly review some of these cases and the Board's general approach to bargaining unit questions. While none of the cases is precisely "on all fours" with the present one, they do establish the context in which this case should be decided.

The Appropriate Bargaining Unit - General Considerations

66. In Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, the applicant union proposed a bargaining unit consisting of hospital "service workers" (cleaning, housekeeping, laundry, maintenance employees, etc.) who are typically grouped together and distinguished from "techni­cal" or "paramedical" employees who are either unorganized or form their own bargaining unit. The issue was where to draw the line between these "service" and "technical" bargaining units; and, to this extent, it was quite different from the one we face. In Hospital for Sick Children there was no problem of potential fragmentation because the disputed employee group would be assigned to one "generic" bargaining unit or the other; whereas in the instant case, the respon­dent's principal concern is the possibility of future fragmentation if departmental bargaining units are accepted as the norm. No one in Hosp ital for Sick Children was suggesting that a departmental bargaining unit would be appropriate, even though the Board recognized that the employees in dif­ferent departments (social workers, pharmacists, physiotherapists, etc.) might have distinct work interests because of their different training, outside professional associations or participation in a specialized department. (See the comments at paragraphs 26-28). Nevertheless, although the issue was different in Hospital for Sick Children, the Board (which included 2 members of the present panel) took the opportunity to make certain general comments about bargaining unit determina­tion which are equally apposite here:

67. Prior to the passage of collective bargaining legislation in the early 1940's, there was no pre­scribed mechanism for the acquisition of bargaining rights. If a group of employees sought to form or join a trade union, and if they had sufficient bargaining power, they were able to com­pel their employer to meet and bargain. However, the only means of achieving recognition was to threaten a strike. A union had no statutory right to bargain on behalf of its members, and no statutory obligation to represent anyone else. Even if a bargain was struck, the agreement was not, in itself, a binding and enforceable contract. Its enforceability depended upon the parties' economic strength.

68. In 1943, borrowing from American experience, the Legislature passed the Ontario Collective Bargaining Act (SO. 1943, c.4). The new legislation provided a process whereby a trade union could become the exclusive bargaining agent for the employees in a "unit of employ­ees. . .appropriate for the purposes of collective bargaining" which could be an "employer unit, craft unit, plant unit, or a subdivision thereof' (see section 13(5a)). Over the years, that lan­guage has not changed very much. Sections 1 and 6 of the present Labour Relations Act read (in part) as follows:

6.-(1) 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.

1.-(1) In this Act,

(b) "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.

14. It will be seen that the statutory language has remained basically unchanged for more than four decades, and in the early years it provided the basis for making broad distinctions for bar­gaining unit purposes between such groups as: "white collar" office and technical employees, and "blue collar" production employees; skilled tradesmen (electricians, plumbers, sheet metal workers, etc.), and unskilled or semi-skilled workers; pan-time employees and full-time employees; employees working for an employer in one plant or municipality and employees in another plant or municipality; and so on. However, these fairly simple, and then unexceptional distinctions, do not apply so easily today. Collective bargaining has extended beyond its tradi­tional "blue collar" industrial base, into the public sector and to increasingly sophisticated and diverse job hierarchies. 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. Ontario Hydro, for example, has a province-wide bargaining unit, encompassing a broad range of employee classifications, and thousands of employees, ranging from unskilled workers to highly trained technicians. A typical municipal "inside workers" (white collar) bar­gaining unit may include occupations ranging from filing clerks, to computer programmers, economists and planners with a considerable amount of post-secondary or even graduate train­ing [see the Board's decision in The Regional Municipality of Durham, Board File 1818-84-R, decision released November 20, 1984]. The Ontario Civil Service bargaining unit contains thou­sands of employees ranging from clerks and typists to sophisticated scientific and technical per­sonnel - and, incidentally, the staff of a number of provincial psychiatric hospitals (see: Owen Sound General and Marine Hospital, [1978] OLRB Rep. May 445, where the Board noted that in the government sector nurses, paramedicals, service employees, and clericals are all in the same unit, even though under the Labour Relations Act, they have typically been segregated into separate units). While at one time common opinion and industrial relations practice might have supported fairly rigid (almost "class") divisions between employee groups, modern collec­tive bargaining seems to be able to thrive quite well in many contexts without such rigid distinc­tions. It is no longer as easy as it once was to say that it is "inappropriate" to group together for collective bargaining purposes, employees with quite diverse skills, education, training, position in the job hierarchy or probable aspirations.

15. Now obviously, the determination of the appropriate bargaining unit has immense practical and tactical significance. The unit determines the constituency within which the union must establish majority support if there is to be any collective bargaining at all. To put it another way, the unit determines the group of employees whose support must be solicited by their fellows if the objective of collective bargaining is to be achieved. A union cannot seek certification solely for those who have opted to join it. It is required by law to establish majority support in what this Board determines is an appropriate unit, and that may not be so easy to predict - as the present case indicates. Moreover, to the extent that the contours of the bargaining unit are unclear, there will be uncertainty about precisely how employees should go about organizing themselves in order to conform with what the law may require. There will also be the prospect of litigation, cost, and delay which may prejudice both the applicant union and the employees it seeks to represent (see the remarks of Laskin, J.A. in Nick Masney Hotels Limited, (1970) 1970 CanLII 478 (ON CA), 13 D.L.R. (3d) 289; 70 CLLC 14,010; and those of Estey J.A. (as he then was) in Re Journal Publishing Co. of Ottawa et al., and Ottawa Newspaper Guild et al. [19771 1 ACWS 817). Cost and delay will also be of concern to the employer, and to employees whose wages may be tem­porarily "frozen" by section 79 of the Act even if they are ultimately excluded from the bargain­ing unit. The situation is exacerbated in the instant case where the bargaining unit is large, and both parties have experienced some difficulty determining the precise perimeter of the unit, and how (if at all) it can be meaningfully and consistently distinguished from the lower levels of employees working nominally (in the employer's terms) in "technical" job classifications.

16. Given that the definition of the bargaining unit can materially affect the ability of employees to organize, and that uncertainties concerning its contours can provoke costly litigation and potentially prejudicial delay, what then is the purpose of the concept of the "appropriate bar­gaining unit"? Quite simply, it is an effort to inject a public policy component into the initial shaping of the collective bargaining structure, so as to encourage the practice and procedure of collective bargaining and enhance the likelihood of a more viable and harmonious collective bargaining relationship. That objective is spelled out clearly in the Preamble to the Act. While the requisites for effective collective bargaining cannot always be defined with certainty, may necessitate a balance of competing collective bargaining values, and may, in any event, turn on factors beyond the Board's control, the discretion to frame the "appropriate" bargaining unit during the initial organizing phase provides the Board with an opportunity (albeit perhaps a lim­ited one) to avoid subsequent labour relations problems. Now, of course, this is not necessarily the same thing as minimizing administrative problems for the employer or organizing problems for the union. The structures and policies that promote a maximization of the employer's busi­ness interests are not those that will necessarily describe a viable bargaining unit, or the only viable bargaining unit - particularly since those interests may include a desire to avoid collective bargaining altogether, or limit its effectiveness. The employer's administrative structures are rel­evant in determining the bargaining unit, but they are not necessarily to be taken as the conclu­sive blue print in deciding what is appropriate. Nor is it a matter of simply giving an applicant union what it wants. It is, as we have noted, a matter of balancing competing considerations, including such factors as: whether the employees have a community of interest having regard to the nature of the work performed, the conditions of employment, and their skills; the employ­er's administrative structures; the geographic circumstances; the employees' functional coher­ence, or interdependence or interchange with other employees; the centralization of manage­ment authority; the economic advantages to the employer of one unit versus another; the source of work; the right of employees to a measure of self-determination; the degree of employee organization and whether a proposed unit would impede such organization; any likely adverse effects to the parties and the public that might flow from a proposed unit, or from fragmentation of employees into several units, and soon.

Similar views were expressed ten years before in Ponderosa Steak House (A Division of Foodex Systems Limited), [1975] OLRB Rep. Jan. 7:

10. 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. Given this legislative policy favouring the right of self-organization, the Board must be careful that its determination as to the appropriateness of the bargaining unit has given proper weight to the wishes of the employees. An earlier decision of the Board, The Board of Education for the City of Toronto, July OLRB Monthly Report 430, clearly endorses such an approach. In giving due consideration to the wishes of the employees, the Board, in the absence of contrary evidence must assume that their wishes are expressed by the applicant union as the representative of the employees. This point was made by the Board in Board of Health of the York-Oshawa District Health Unit, 1969 June OLRB Monthly Report 340.

11. 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. This responsibility was recognized by the Board in the McMaster University case, 1973, February OLRB Monthly Report 103, and in the Board of Education for the City of Toronto case, supra.

12. The determination of what constitutes a viable collective bargaining structure requires the Board to consider matters of industrial relations policy, such as community of interest and frag­mentation of employees. Community of interest may be a requisite for viable collective bargain­ing, since the representation of disparate employee groups by one bargaining agent may put impossible strains upon it as it performs its role in the bargaining process. At the other extreme, a too narrow definition of community of interest may create undue fragmentation of employees, leading to a weak employee presence at the bargaining table, or the possibility of jurisdictional disputes among competing bargaining groups. 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 1(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. This point was clearly made in Board of Education for the City of Toronto case, supra.

These comments illustrate a recurring theme in the Board's jurisprudence: how to reconcile the employees' right of self-organization (which may suggest a narrowly-defined bargaining unit which s relatively easy to organize), with the need for a rational and viable collective bargaining struc­ture which will minimize labour relations problems in the long run.

67. In Kidd Creek Mines Ltd.. [1984] OLRB Rep. March 481 and [1986] OLRB Rep. June 736, the Board reviewed the potential collective bargaining consequences of a bargaining unit defined too broadly or too narrowly. In that case, the applicant union was seeking to represent a unit composed of approximately 100 certified electricians who were part of an industrial work force 2,800, all of whom were unorganized. The Board said this:

68. 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. 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. The more disparate are the interests enclosed within the unit, the more difficult it may be for the union to effectively represent the collectivity. Insufficient attention to these special interests generates internal strife, while too much attention to minorities may make it more difficult for a union to formulate a coherent package of proposals or make necessary concessions. On the other hand, there are dangers at the other extreme, as the Board noted in Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250:

69. 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.

A patchwork quilt of bargaining units is a recipe for industrial unrest - if only because in an inte­grated enterprise it takes only one collective bargaining breakdown to start the whole system unravelling.

Again, the Board was saying nothing new. Precisely a year before in Board of Governors of Ryerson Polytechnical Institute, [1984] OLRB Rep. Feb. 371, a panel of the Board observed:

13. The concept of a bargaining unit performs two quite distinct functions in labour relations law. In order to be certified, a trade union must enjoy the support of a majority of employees in a bargaining unit. The unit serves as an electoral district in this setting. After a union is certi­fied, the bargaining unit found by the Board to be appropriate strongly influences the conduct of collective bargaining. Although the parties sometimes vary this unit description, it is frequently simply reproduced in the recognition clause in a collective agreement.

14. A trade union may experience insurmountable difficulties in trying to organize employees in a unit that is broadly defined to embrace employees who are geographically dispersed or per­form substantially different jobs. As one of the fundamental objectives of the Labour Relations Act is to assist employees to join together for collective bargaining, this Board has been reluc­tant to establish units which are so broadly based that they defy organization. See Ponderosa Steak House, [1975] OLRB Rep. Jan. 7. The public policy of facilitating organization is a two-edged sword. A trade union may propose a unit defined so as to leave unrepresented a group so small that they have no real chance of entering the world of collective bargaining alone. In these circumstances, the Board expands the proposed unit to include the employees in question, even though the result may be to dilute support for the union to the point that the application is dis­missed. See Board of Education for the City of North York, [1982] OLRB Rep. June 918 at paragraph 7.

15. Organizational concerns are not the only forces that shape bargaining units. The Board must also strive to create a viable structure for ongoing collective bargaining. See Usarco Limited, [1967] OLRB Rep. Sept. 526; K Mart Canada Limited, [1981] OLRB Rep. Sept. 1250; and Insurance Corporation of British Columbia, [1974] 1 CLRBR 403 (B.C.). From this perspective, a broadly based bargaining unit offers several advantages over a fragmented structure.

16. A proliferation of bargaining units increases the risk of unnecessary work stoppages. The likelihood of a strike occurring grows with the number of rounds of negotiations and may be fur­ther increased by competitive bargaining between two trade unions. The potential for mischief is greatest when the work performed in two or more units is integrated. In these circumstances, whenever one group strikes, other employees who are functionally dependent upon struck work are deprived of employment, though they may stand to gain nothing from the strike because their agreement has just been renewed. Even in the absence of functional integration, strikers may erect picket lines that keep other employees away from work, although a concerted refusal to cross a picket line, by employees who are not entitled to strike, is an illegal work stoppage.

17. There are other drawbacks to a multiplicity of bargaining units. Each unit is likely to become an enclave surrounded by legal barriers - designed to enhance the job opportunities of employ­ees within the walls - that impede the mobility of employees. Restrictions on mobility may entail significant costs for an employer whose practice is to frequently transfer employees between jobs that fall in different units. In some cases, these barriers may close natural lines of job pro­gression to the detriment of all concerned. A fragmented bargaining structure also inevitably spawns jurisdictional contests over the allocation of work among units, disputes which in the long run benefit no one. And a proliferation of bargaining units entails the time and trouble of negotiating and administering several collective agreements. From the perspective of an employer with centralized control over labour relations, there is an unnecessary duplication of effort. All of these concerns - work stoppages, restricted employee mobility, jurisdictional dis­putes and administrative costs - favour consolidated bargaining structures, although the force of each vector varies from case to case.

18. But the community of interest among employees may point towards either a broadly based structure or separate bargaining units. In this context, the word interest, in the phrase com­munity of interest, refers to the bargaining objectives of the employees in question. The most important determinate of those objectives is the work performed. Skills and terms and condi­tions of employment are also relevant, but these factors are largely derived from the nature of work. In deciding whether to include a population of employees in one bargaining unit or to divide them into separate units, the Board has recognized that within a single unit there is a tendency to compress existing differentials in wages, benefits and other work rules. People who perform the same, or substantially similar, work are likely to have similar aspirations concerning terms and conditions of employment. And a strong argument can be made that they ought to be treated in the same way. Equal treatment is fostered by including all such employees in one bar­gaining unit. Conversely, employees whose jobs differ radically from the work of their fellow employees have a legitimate claim to different terms and conditions of employment. If they are pressed into one large unit, the logic of collective bargaining is bound to erode existing differen­tials. Those on the short end of the stick not only have a compelling grievance but also may cause disruption. And an employer may experience difficulty in recruiting for jobs in which the terms and conditions of employment are less attractive than elsewhere. Separate bargaining units may alleviate these problems. However, not all differences between jobs are this funda­mental. As a single collective agreement permits of some variation in terms and conditions of employment, it can embrace employees whose jobs differ to some degree, without generating undue dissatisfaction. When entertaining an application by a special interest group for a sepa­rate bargaining unit, the Board must also bear in mind that these employees would not achieve complete autonomy by winning a separate unit, because it could not be insulated from the forces of pattern bargaining exerted by neighbouring units. The challenge is to decide what differences between jobs are of sufficient magnitude to justify the creation of separate bargaining units, with their attendant disadvantages. In other words, a balance must be struck between the com­peting considerations that bear upon the creation of a viable bargaining structure.

19. The design of bargaining units becomes even more complex when the focus of attention is expanded to include not only ongoing collective bargaining but also organizational concerns. The optimal unit for long-term bargaining may be larger than the grouping within which a trade union can be reasonably expected to obtain the level of employee support necessary for certifi­cation in the short-run. In other words, there is an inherent stress lurking within the concept of an appropriate bargaining unit because it performs two very distinct functions. How has the Board responded to this industrial relations conundrum? The decision in K Mart Canada Limited, supra, at paragraphs 18 to 20, provides an apt illustration. The employer operated four stores in one municipality, the union had organized one at which 127 employees worked, and a certificate was granted for this unit. A broader-based structure was rejected, because it might significantly impede access to collective bargaining. However, the Board suggested it would have been "hard pressed" not to certify a municipal unit if the union had organized all four stores, suggesting a consolidated structure would lead to more effective collective bargaining than several smaller units. In other words, the viability of ongoing collective bargaining was compromised to this extent in order to foster self-determination. But the Board declared that self-determination would not always come out on top. One example used to make this point involved an employer operating fast food outlets at several locations in a municipality and employing at each a substantially smaller number of employees than worked at one K Mart store. The Board strongly hinted that an application for a bargaining unit comprised of one out­let would be rejected.

20. Finally, at the risk of repetition, we must emphasize again, the Board's traditional and continued reluctance to define bargaining units on the basis of employee classifications or employer departments because of the high potential for fragmented bargaining which that creates (see, for example: Cryovac Division, W.R. Grace & Co. of Canada Limited, [1981] OLRB Rep. Nov. 1574: Toronto East General and Orthopaedic Hospital Inc., [1981] OLRB Rep. Nov. 1672; University of Ottawa, [1981] OLRB Rep. Feb. 232; and Westeel-Rosco Company Limited, [1979] OLRB Rep. Nov. 1125). Even in the newspaper industry, where departmental unionization has existed in the extreme, the Board indicated in 1981 in The Spectator that it would no longer routinely accept departmental bargaining units which were not demonstrably appropriate. Most recently, in T. Eaton Company Limited, [1984] OLRB Rep. May 755 and Simpson's Limited, [1984] OLRB Rep. Sept. 1255, the Board repeated that it would not be conducive to orderly col­lective bargaining to divide up an employer's business into bargaining units based on departments. In the former case, for example, the Board refused to exclude a specialized department from a broader "sales" bargaining unit even though the employees' skills, method of payment and likely career opportunities were somewhat different from those of many of the other salesmen:

21. In the present case, some differences do exist between the sales staff of the Business Centre and those of other departments. But these are differences essentially in degree, and the most distinctive of the Business Centre's working conditions are not without parallels, as discussed above, in some or other of the sales departments already encompassed within the agreed-upon units for this store. Nor does an apparent lack of interest in lateral transfers form a compelling basis for compartmentalized bargaining: the same could be said for many of the technically-skilled and higher-paid departments within an industrial production facility, yet the Board has not viewed as appropriate a proliferation of self-contained skilled-trade or similarly specialized units within a plant. While the question before us in the present application is whether to accede to the request of the employer to allow this one small group to remain outside the broader-based sales unit, viewing the matter from the point of view of its corollary better illustrates the problem. If the 5-man sales unit of the Business Centre is appropriate for exclusion from the broader sales unit now before us, it presumably would also be found appropriate as a self-con­tained bargaining unit at another store, where no other union organizing may yet have taken place. That is not the kind of piecemeal organizing or collective bargaining which the Board would be anxious to foster in this industry. While the needs of the Centre may require certain accommodations, we are not persuaded on the facts that those accommodations cannot be made within the broader context of the varyingly specialized and commissioned/ non-commissioned sales unit.

(See also Corporation of the City of Barrie, [1974] OLRB Rep. Nov. 813, at paragraph 8; Christie, Brown and Company Limited, [1975] OLRB Rep. March 144 at paragraphs 5-6; Niagara Regional Health Unit, [1975] OLRB Rep. April 376 at paragraph 9; Canadian General Electric, [1979] OLRB Rep. March 169 at paragraphs 8-9, and cases referred to therein; and Westeel-Roscoe Com­pany Limited, [1978] OLRB Rep. Nov. 1125.)

69. These collective bargaining concerns and approaches to bargaining unit determination are not unique to the Ontario jurisdiction. The British Columbia Labour Relations Board has also expressed a decided preference for extended area bargaining and a disinclination to accept, as “appropriate", bargaining units that are narrowly defined. The leading case is Insurance Corporation of British Columbia, [1974] 1 Can LRBR 403. There, after noting, as this Board has done, the inherent tension between the unit which is most easily organized and the unit which makes the most "collective bargaining sense" in the long run, the Board went on to enumerate the following factors in favour of a broader "all-employee" bargaining unit:

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 interests of both employer and employee, is the matter of lateral mobility. The presence of several bargaining units, each with their own seniority lists arid 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.. 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.. another factor favouring a single large unit is the objective of industrial stability. It 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. If there are two or more units representing employees in an operation which is functionally integrated, then if one unit goes on strike, it will put the employees in the other unit out of work as well (and even if they have nothing to gain from a strike because they have already signed their agreement).. These virtues of the employer-wide unit are significant, especially when considered cumulatively. However, they are not absolutely compelling. It is common to find certifications granted by this Board where narrower unit boundaries are drawn. The usual reason for that description of the appro­priate bargaining unit is the Board's judgement about the community of interest of the employ­ees. There is a simple explanation for the importance of this factor. The point of certification under the Code is to secure collective bargaining for the employees. Accordingly, the group on whose behalf this bargaining is to be carried on should include only those categories of employ­ees whose interests can reasonably be reflected in one set of negotiations and whose working conditions can be incorporated into one document. If some groups differ greatly in background, skills, nature of work, method of payment, and so on, it may prove difficult to accommodate their interests in one bargaining unit... In each case, then, the Board must decide whether the distinctive needs of special groupings of employees are strong enough to outweigh the practical arguments in favour of one all-employee bargaining unit...

We agree with this analysis.

70. There are two other cases which are worthy of brief mention: Canada Trustco Mortgage Company, [1977] OLRB Rep. June 330, and K-Mart Canada Limited, [1981] OLRB Rep. Sept. 250. In each case, the union sought to represent a bargaining unit of employees working in a par­ticular branch of an employer's multi-branch operation, and, as in the instant case, the employer argued that the appropriate bargaining unit should encompass a much larger group. Neither case involved a departmental subdivision of the enterprise; but, for our purposes, they are significant because they reiterate that in given circumstances, there may be more than one appropriate unit, and that when faced with that situation the Board should not adopt an interpretation of "appro­priateness" which, in practical terms, impedes access to collective bargaining altogether. In Canada Trustco, the Board put it this way: 27. 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] 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."

71. We do not think it would serve any useful purpose to further clutter these reasons with extensive quotes from earlier Board decisions. We have included these references only to underline the considerations which have consistently influenced the Board over the years, in many indus­trial contexts, and to emphasize the fact that the departmental bargaining units in the newspaper/publishing industry represent a departure from the norm. Having reviewed this general background, we return to the particular circumstances under review.

Decision

72. Do the circumstances of the editorial department employees demonstrate a unique community of interest warranting a separate bargaining unit? In our view, the answer is no. There is no significant difference in their terms and conditions of employment (hours of work, wages, benefits, etc.) which are similar to those of other TV Guide employees, are established in the same way, and are administered by the same personnel department in accordance with common employer policies. Nor is there anything particularly significant about the employees' skills or the nature of their work. Some editorial department employees obviously perform functions that are different from those performed by workers in other departments, but that is true of almost any employee in any classification or department in any commercial enterprise, and does not necessar­ily imply that the target group should comprise a separate collective bargaining unit. Even if "writ­ing" is considered a specialized skill or function, many (and perhaps the majority) of the employ­ees in the editorial department are not "writers", much of the writing that is done is not particularly sophisticated, and writers may also be found working for Canadian Living and to a lesser extent in the promotion department of TV Guide where the production of promotional material requires a degree of writing and creative ability. There is no significant difference in the employees' work environment and no reason to infer any differences in their job horizons or collective bargaining aspirations. From a labour relations point of view, they are not an insular group­ing within the company's organization. The fact that there are a number of transfers (or promo­tions) from one department or magazine to another, merely underlines the artificiality of the distinction that the union urges upon us.

73. The managerial personnel in the editorial department do not operate independently, but rather in consultation with the human resources department and in accordance with established company-wide policies. Far from being an isolated department functioning independently from the others, the editorial department is an integrated part of the respondent's operation and its employ­ees have regular and necessary contact with employees in other departments in order to meet the magazine's publishing objectives. Such contact is facilitated by the physical layout of the building and the geographic proximity of one department to another. There is no obvious functional or labour relations basis for creating a bargaining unit confined to a part of a floor, so that crossing an aisle or opening a door would take one into a different legal and collective bargaining regime. There is, of course, no history of collective bargaining at TV Guide and no precedent for dividing it; employees into collective bargaining units along departmental lines. Neither is there an estab­lished pattern of departmental bargaining in other magazines.

74. Not only does the evidence fail to establish a unique community of interest for the editorial department employees, but there is nothing to suggest that such departmental bargaining unit would be immune from the kinds of employment relations problems adverted to in the Board's jurisprudence. Chris Davies indicated that even at the Toronto Star, where the Guild has been entrenched for many years and the employer has been content to agree to departmental units, there have been problems of inter-departmental mobility. The evidence of Claude Vaillanc­ourt indicates the kind of problem which can arise when change prompts a redistribution of work or the way that it is performed. It does not take much foresight to envisage the possibility of fric­tion when moving from one department to another (even on the same floor) would entail crossing a boundary separating quite different legal regimes - especially since, at the present time, there is n such potential barrier because the company has common wage, benefit, job posting and other ernployment policies. The concerns expressed by Mr. Jamer on behalf of the objectors are not aca­demic.

75. Even if those concerns could be accommodated in the long run, one can readily foresee the immediate problems at the bargaining table if a group of employees who do not have unique employment interests demand terms and conditions of employment that are much different from their fellow employees working in other parts of the employer's business. Negotiating a first agree­ment is difficult enough without this added burden. And quite apart from whether this departmen­t bargaining unit would be able to conduct a successful strike, one of the reasons why the Board; reluctant to establish departmental bargaining units is the potential for disruption to the

employer and other employees when a single department which is part of an integrated operation, c pts to engage in industrial conflict. The Board has always held that the "spill over effects" are indesirable and should be avoided, where possible, by drafting a more comprehensive bargaining unit in the first instance (see, for example, the comments in Ryerson Polytechnical Institute, supra, at paragraph 16 of that decision and Insurance Corporation of British Columbia, sup ra).

76. The organizing concerns pressed upon us so eloquently by counsel for the union are important ones, and for this reason deserve more specific consideration. Put simply, the proposition is that if collective bargaining is to be extended beyond newspapers to the unorganized parts of the publishing industry, then the Board must be prepared to accept the kind of departmental bargaining units which, in practice, have been the building blocks upon which the Guild has histor­ically relied. It is said that if the Guild had to organize on a broader basis as other unions do, groups of employees interested in collective bargaining would be denied that opportunity. If the "appropriate" unit is defined too broadly, it may be so difficult to organize that, in practice, no collective bargaining unit would be established at all - a result inconsistent with the Preamble to the Labour Relations Act.

77. We accept the proposition that the Board should not impose its own notions of the optimum bargaining structure if the concrete result is no collective bargaining at all. But the union's position and the cases it relies on, both require further scrutiny. None of those cases elevate "ease of organizing" to a pre-eminent position. In K-Mart, for example, the Board said:

Although the Board must be sensitive to the impact of its bargaining unit determinations upon the ability of trade unions to organize, there are other factors which must also be taken into account. The objectives of the statute relate not only to the promotion of collective bargaining as a means of determining terms and conditions of employment, but also to a recognition of the principle of individual freedom of choice, and to the creation and maintenance of sound and viable bargaining structures. In determining the appropriate bargaining unit, the Board does not give effect to one of these aims to the exclusion of the other. Rather, the task which falls to the Board in the exercise of its discretion under section 6(1) of the Act, requires a balancing of these statutory objectives in the circumstances of each case.

In the same vein, the Board in Canada Trusico Mortgage Company, supra, the Board acknowledged the union's organizing concerns, but added:

The amenability of the employee grouping for purposes of organization is but one factor among many to be weighed by the Board in the overall determination of appropriateness. Other indus­trial relations considerations, such as community of interest, fragmentation and ongoing admin­istrative manageability may conflict and ultimately override.

Similarly, the Board in Ryerson Polytechnical Institute commented that "organizational concerns are not the only forces that shape bargaining units" and, ten years earlier in Ponderosa Steak House indicated that "the right of self-organization, however, must at times compete with the need for viable and harmonious 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."

78. Let us also consider, for a moment, the facts before the Board in Canada Trustco and K-Mart.

79. As we have already mentioned, in Canada Trustco, the union sought certification for a bargaining unit encompassing only one of many branches of the financial institution. But the particular branch in question was twelve miles from the nearest one. There was no significant interchange of employees from one branch to another. Each branch was operated autonomously, by a separate manager, with local hiring, promotion, and disciplinary decisions. There was no func­tional coherence or interdependence. In the Board's view, each branch was a:

distinct employment entity not unlike a separate plant in the industrial sphere. All of the employees in that location could be included in a single unit so that the risks of patchwork bar­gaining by department would not be present.

[emphasis added]

That is a far cry from the situation here.

80. K-Mart involved an effort to organize one of four retail stores in the Metropolitan Toronto area, and after examining the factors which pointed towards a single store bargaining unit or some broader grouping, the Board did indeed observe that: "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". In that case, however, the stores were geographically separate. Each had its own manager and personnel officer. Hiring was done locally. There was no interchange of employees between stores. Personnel administration was done on a store-by-store basis. Again, the situation here is very different.

81. We do not quarrel with the principles enunciated by the Board in Canada Trustco or K-Mart, but neither of those cases is similar to the present one, which involves one department of an integrated multi-department enterprise, common terms and conditions of employment, geo­graphic proximity, and employee interchange within the same building. These cases do not support the establishment of departmental bargaining units, and the Board in Canada Trustco is quite explicit in saying that its preferred bargaining unit does not involve this particular "mischief”.

82. Nor does the evidence before us demonstrate that departmental bargaining units are the key to establishing stable collective bargaining relationships. Quite the contrary. There are a signifi­cant number of collective bargaining failures: the inability to achieve a first collective agreement, or a successful "decertification" application following shortly after the establishment of bargaining tights. Indeed, the frequency of such collective bargaining failures and the number of instances where departmental bargaining units, once certified, cease to exist (but may later be certified once gain) suggests to us that recognition on a departmental basis frequently leads to a weak presence t the bargaining table, recurring challenges to the union's position and a generally unstable collec­t ye bargaining climate from the point of view of both the employer and the employees. Piecemeal organizing (however easy) leads to piecemeal bargaining which is often unproductive and unsuccessful.

83. Despite the difficulties enumerated by the union (including its own limited resources in comparison with other unions), it is not obvious that broader organizational efforts would be unsuccessful, or that to facilitate employee access to collective bargaining it is necessary to define he bargaining unit in departmental terms. Nor, according to exhibit 39, and the evidence of Mr. 3ryant, has the Guild itself done so. It has adopted a "go with what you've got" approach, encom­passing one or more departments, depending upon the extent of employee interest generated by its campaign. The fact that the Guild may have limited resources to conduct such campaigns is not something that, in our view, we can properly consider in determining the bargaining unit (even though it could possibly explain some of the collective bargaining performance evidenced by exhi­bit 39). In any case, although parts of the publishing industry remain unorganized, newspapers have been organized in whole or in part for decades. This is not a situation like that addressed by he Board in K-Mart or Canada Trustco where employer resistance or the inherent difficulties of organizing a number of separate locations meant that if only a broader-based bargaining unit was found to be appropriate, there would be no collective bargaining at all. We agree with the union that self-determination and ease of organization are factors to be considered in determining what bargaining unit is appropriate, however, they are not factors which, in our view, should be given predominant weight in the instant case.

84. What about history? What about the Board's routine acceptance (prior to the Spectator) of the parties' agreement on departmental bargaining units? What about the established pattern of collective bargaining in the newspaper industry which often continues to exhibit departmental bar­gaining even for employees who would not be members of a recognized craft? Counsel for the union argues that the Board's longstanding acceptance of such units and their continuing existence at newspapers such as the Globe & Mail establish a pattern from which we should not readily depart. He asks, rhetorically, what better evidence that those units "work" than that the Board accepted them as workable for many years and that many of them do, indeed, maintain their sepa­rate identity for bargaining purposes.

85. There are several difficulties with this proposition. In the first place, the evidence indicates that many of these employee groupings do not "work" because they do not encompass a unit which is viable for collective bargaining purposes. That is the thrust of Exhibit 39 which we have already discussed at length. Moreover, in order to overcome the deficiencies of fragmentation, unions and employers have tried to amalgamate units or create broader-based bargaining (such as at the Toronto Star) - thereby approximating something that the Board would routinely establish in the first instance in virtually every other industry. One of the reasons why collective bargaining ''works'' at the Star is because the Guild represents one big bargaining unit not fifteen or twenty separate ones.

86. More important, is the fact that, in large measure, the existing pattern of departmental bargaining units (where it continues to exist) was based on the agreement of the parties, frequently given in circumstances where there was already a multiplicity of bargaining units defined along craft lines. There is no such agreement here. There is no pre-established pattern of fragmented bargaining in the employer's business or in the magazine industry. And the evidence is that craft unions and craft units are becoming increasingly obsolete. That is why there have been so many union mergers in recent years, and that is why the ITU in 1973 changed its constitution so that it could organize on a broader basis. Thus, the union is arguing that we should give effect to organiz­ing patterns which are becoming outdated and which the union itself does not accept as the most appropriate model for organizing. The union's constitution and the evidence of the Guild officials both indicate a strong preference for an industrial (multi-departmental) bargaining unit - and for good reason. Anything less than that is a decidedly "second best solution" that has caused prob­lems and has not proved to be very successful in the past.

87. Since the Spectator there has been no general retreat from the concerns expressed in that case. In Peterborough Examiner, [1982] OLRB Rep. March 432, it was the union (the ITU) which initially sought an "all-employee" unit and the employer which demanded bargaining units segregated by department. There were already in place two existing bargaining units of "pressmen" and "composing room employees". The evidence does not indicate the facts of the employ­ees' relationship, but the Board ultimately decided to reject the employer's position and certify a consolidated unit of office and clerical employees, and a separate unit of editorial department employees. In Welland Evening Tribune, [1982] OLRB Rep. March 513, the ITU again applied for a broader-based bargaining unit and the employer sought a narrower one. The Board held that it should take an "open and pragmatic attitude to the rationalizing of bargaining structures in the newspaper industry", and after canvassing the wishes of the employees found a comprehensive bargaining unit to be appropriate. In the Sault Star, a Division of Southam Inc., [1983] OLRB Rep. June 980, there were already four bargaining units in the employer's enterprise and "both parties expressed satisfaction with the viability and workability of the proposed [departmental] bar­gaining unit". There was no interchange of employees or "lines of progression" between the units and, in the Board's view (with which we agree), the key to the Spectator decision is the disagree­ment of the parties. In the result, the Board accepted the agreed upon bargaining unit. Thus, in each of these cases there was either an existing pattern of departmental units or the agreement of the parties, or both. In none of them is there any indication of the kind of evidence we have here.

88. Clearly, in any enterprise there may be several possible bargaining unit configurations or degrees of appropriateness. Where the parties have themselves selected a bargaining unit with which they are comfortable, the Board should not lightly intervene and "second-guess" their choice. The very fact of their agreement represents some evidence of a willingness to make the kind of accommodations necessary to make collective bargaining work or, at least, some tolerance for the problems or frictions associated with fragmented bargaining. In the absence of some demonstrable third party or public interest there is simply no reason to disregard the wishes of the parties and precipitate a controversy where there was none before. On the other hand, bargaining units based upon the agreement of the parties will necessarily have less precedential value - espe­cially when there is little detailed information about the context in which such agreements were reached. Here, of course, there is no agreement on the definition of the unit and there is evidence to suggest that the unit which parties often agree to in other circumstances is not "appropriate". There is no established pattern of fragmented, departmental bargaining in this enterprise, or in the magazine industry, and even if newspapers are a close analogy, the Board in the Spectator, supra, indicated that in the absence of the agreement of the parties it would be disposed to fashion the bargaining unit in accordance with the usual general principles applied to the particular circum­stances of the case. Accordingly, it can come as no surprise to the Guild that, in the absence of the agreement of the parties, departmental bargaining units are not something which the Board will automatically accept.

89. In summary, then, we do not think that the proposed editorial department bargaining unit is appropriate for collective bargaining. Having regard to such factors as the nature of the work performed, the conditions of employment, the skills of the employees, ease of administration, proximity to other departments and functional coherence and independence, we find that the editorial department employees do not have a separate community of collective bargaining interest, nor do economic factors, the structure of managerial authority, or the source of work dictate a separate bargaining unit. There is no agreement of the parties on the scope of the bargaining unit and to the extent that we have evidence of the wishes of the employees, their views are divided. 'I he established bargaining practice in newspapers may suggest a contrary result, but one must remember that this is not a newspaper and, to the extent that the bargaining pattern among ernployees typically represented by the Guild represents an extension of a preexisting framework cf multi-unionism and craft bargaining units, the precedent has no application here. We do not think a policy of granting departmental bargaining units is necessary to facilitate organizing in the magazine industry and, against any such inclination we must weigh the real labour relations problems associated with fragmentation outlined above.

90. This is not to say that on the agreement of the parties, or in a newspaper, or where Piere is a pre-existing pattern of multi-unionism or fragmented bargaining, or where, on balance, the facts clearly warrant it, the Board might not find a departmental bargaining unit to be appropriate. We prefer not to speculate. That is not the situation here. For the purposes of this case, it is sufficient to say that the departmental bargaining unit proposed by the Guild in this case is not appropriate for collective bargaining, and that the appropriate bargaining unit should encompass ill employees of TV Guide Jnc.

91. The Registrar is directed to relist the matter for further hearing to consider the remaining outstanding issues. This panel is not seized.

DECISION OF BOARD MEMBER B. L. ARMSTRONG;

I dissent from the decision of the majority.

In my view, the determination of the dispute between the union (which seeks a unit restricted to the editorial department of TV Guide Magazine) and the employer (which proposes a more comprehensive unit) must involve a reconciliation of two concerns. On the one hand, the Board is averse to fragmentation of an employer's work force into several units unless that can be rationally justified. On the other hand, the Board recognizes the employees' right to self-organize and the union's organizing pattern.

3. Although, as a general rule, the Board does not recognize departmental units, for a long time it had recognized that such units are appropriate in the publishing industry (see, for example, St. Catharines Standard Ltd., [1975] OLRB Rep. July 601). In The Spectator case, [1981] OLRB Rep. Aug. 1177, the Board indicated that it will no longer be willing to treat the publishing _industry any differently in determining appropriate bargaining units. The reasons for this proposed change of Board policy are quoted at paragraph 5 of the majority decision.

4. Nevertheless, the fact remains that since The Spectator decision, the Board has certified editorial department units, albeit, mostly on agreement of the parties. (See, MacLeans Magazine, [1983] OLRB Rep. March 401.) In Peterborough Examiner, [1982] OLRB Rep. March 432, in a disputed case, the Board found separate units appropriate for office, clerical and sales employees and editorial employees, respectively. The Board held that each group had a sufficient number of employees (the editorial department had 20 employees) to establish its own viable relationship.

5. Therefore, it is not at all clear that, despite the warning in The Spectator, the Board has decided for once and for all that departmental units in the publishing industry are inappropriate. Rather, the situation seems to be in a state of uncertainty.

6. On the other hand, the Board has clearly stated that unless there are compelling reasons, it will not depart from the pattern of organizing adopted by the applicant union and its sup­porters. (Alltour Marketing Support Services Ltd., [1982] OLRB Rep. Oct. 1383.) Moreover, the Board has held that in bargaining unit determinations, it must be sensitive to the ability of the trade union to organize. (K-Mart Canada Ltd., [1981] OLRB Rep. Sept. 1250.) The Board has rec­ognized that where a group of employees signifies a desire to exercise their right to engage in col­lective bargaining and that group sufficiently conforms to the Board's criteria of appropriateness, the Board should not require a more comprehensive unit, if to do so would impede access to any collective bargaining at all (Canada Trusico, [1977] OLRB Rep. June 330). In K-mart, supra, the Board recognized that determination of the appropriate unit requires the Board to take into account the pattern of organizing and balance that against disruptive effects of fragmentation.

7. In my view, in the case before us the recognition of employee wishes and the union's pattern of organizing clearly override any concerns the Board might have about fragmentation. Historically, in this industry, departmental units have continued to carry on viable collective bargaining relationships. The department in question consists of 42 employees, sufficient in numbers to form a viable unit. In the circumstances, I do not think it is reasonable for the Board to deny the wishes of such a large group to engage in collective bargaining.

8. I would have found the unit sought by the applicant union to be appropriate.