Ontario Labour Relations Board

[1986] OLRB Rep. April 544

3039-85-R; 3179-85-R Teamsters Chemical Energy & Allied Workers Union Local 424, Applicant, v. Resco Chemicals & Colours Ltd., Respondent, v. Group of Employees, Objectors; Resco Chemicals and Colours Ltd. and Resco Distributing Company Limited, Applicants, v. Teamsters Chemical Energy and Allied Workers Union, Local 424, Respondent

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

APPEARANCES: David Watson and Bob Martin for the union; Joe Carrier, Walter Cannon and Waiter Houston for the employer; no one appearing for the objectors.

DECISION OF THE BOARD; April 23, 1986

I

1. This is an application for certification which was scheduled for hearing together with a related application under section 1(4) of the Labour Relations Act. Both came on for hearing before the Board on April 4, 1986. The parties were agreed and the Board hereby declares pursuant to section 1(4) of the Labour Relations Act, that Resco Chemicals & Colours Ltd. and Resco Distributing Company Limited are one employer for the purposes of the Act.

2. There is no dispute, and the Board finds, that Teamsters Chemical Energy and Allied Workers Union Local 424 is a trade union within the meaning of section 1(1 )(p) of the Labour Relations Act. There is a dispute about whether the bargaining unit which the applicant seeks is appropriate for collective bargaining. In order to appreciate the parties' positions, it is necessary to sketch in some background.

II

3. The respondent employer is a manufacturer of colourants and has production facilities in Mississauga, Ontario. On January 28, 1986, the applicant union applied for certification as bargaining agent for what might be described as a "standard" production employee bargaining unit. (See Board File No. 2616-85-R.) That application, as initially framed by the union, would have included the five laboratory staff in the production bargaining unit, however, the employer objected. Eventually the parties agreed that quality control personnel would be included in the production bargaining unit, but the laboratory staff would be excluded. On the basis of that agreement both parties waived their right to a formal hearing and, because the union had the requisite degree of support, the Board issued a certificate. The agreed bargaining unit is described as follows:

All employees of Resco Chemicals & Colours Ltd. in Mississauga, save and except supervisors, persons above the rank of supervisor, office, sales, clerical and laboratory staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.

4. Counsel for the employer advised the Board that the employer had requested the exclusion of laboratory personnel because, in its view, those employees did not have a community of interest with production workers, and for collective bargaining purposes, technical or laboratory employees are usually grouped together with office workers - as, indeed, they often are. Counsel for the union explained that the union was agreeable to excluding laboratory personnel because, in the union's experience, they had been treated as a separate bargaining unit unto themselves. It is interesting to note that on the basis of the facts disclosed in the Board's decision in the earlier case, the union would have been certified without recourse to a representation vote whether or not the laboratory personnel had been included in the production bargaining unit. In other words, there is no basis for any suspicion that the union was "tailoring" its bargaining unit description to its distribution of membership support. The union was "certifiable" whether or not the laboratory staff were included in the production bargaining unit; and, had the union pressed its original claim, the Board would have issued an interim certificate and conducted an inquiry to determine whether the laboratory personnel should also be included in the bargaining unit. As it was, the union and the employer (for different reasons) reached agreement on their exclusion, and proposed to the Board a bargaining unit description which (superficially at least) reflects the one which the Board generally considers appropriate. Since the proposed unit reflected both the agreement of the parties and the Board's established practice, there was no need to inquire further. The union was certified to represent the employees in that unit.

5. On March 10, 1986, the union made the present application. It relates only to employees in the lab. The union asserts that they have a separate community of interest from either the production employees or the office, clerical and sales personnel. The employer asserts that their community of interest is with the office staff.

III

6. There are, potentially, five employees in the union's proposed bargaining unit. The parties are agreed that John Sheriff, the "lab manager", and A. Bajwa, a trained chemist, both exercise managerial responsibilities and would not, therefore, be part of the unit. The employee lists filed with this application suggest that there are approximately seven office, clerical or sales staff. There are about thirty-three employees in the plant bargaining unit.

7. The lab area is located on the ground floor of the employers' building, adjacent to the quality control area which, in turn, is adjacent to the production area. The lab and its equipment are physically separate from both production and quality control. The office is on the second floor of the building and can be reached from the lab by stairs. The lab employees enter the building by a door near the main punch clock. The office employees use a different entrance.

8. The lab employees use the same washrooms and changing area as the production workers. They have access to the production workers' lunchroom on the ground floor, but usually eat by themselves in the lab. The office workers have their own lunchroom and washrooms.

9. The lab employees are hourly rated and punch the time clock. The office employees are salaried and do not punch the time clock. Plant, lab and office employees all have similar benefits. Cheques are issued to the production vvorkers by one corporate entity while paycheques to the office staff are issued in the name of the other (albeit related) company. The lab employees receive cheques in the same firm name (and thus from the same nominal employer) as the production workers. While the two companies are related for labour relations purposes, this arrangement nevertheless reflects a division in the respondents' administrative structure.

10. Lab employees have been called upon to work shifts to improve utilization of lab equipment, although currently there is only a day shift. The office employees do not work shifts. The hours of work, starting times, and break periods for the lab employees parallel those of the production workers. The hours of work for the office workers are different. Persons working in the lab wear lab smocks, as do the quality control personnel who are part of the production bargaining unit. This mode of dress is different from that of the office workers or the other employees in the production unit.

11. Although the lab personnel are described as "technicians", that title may be something of a misnomer. Sandra Cobb, a "lab technician - 3", advised the Board that she had no specific technical training, nor any post-secondary education of a technical nature. Her tasks are routine, mechanical, and do not require any specialized training. Obviously, the functions she performs are different from those performed by employees working in the plant or in the office, however, the skill content is not substantially different. She must prepare reports, complete forms, and each week spends one-half hour in the office typing a particular report (because there is no functioning typewriter in the lab). Those are not unlike the kinds of clerical functions performed by the office staff. On the other hand, the lab employees are sometimes concerned with "quality control" problems. The Board also was advised that weigh scales had been purchased for the production workers so that they could perform certain of their own tasks in the production area rather than using the scales in the lab. This suggests that some of Ms. Cobb's functions are quite similar to those performed by some production personnel.

12. Although the employer's total employee complement is relatively small, there seems to have been little employee movement from work area to another. There have been no transfers into the lab area, either from the production area or the office. No lab employee has been transferred or promoted to a position in production. Only one former lab employee has been transferred to a position in the office, where he became involved in production scheduling. When lab employees are absent or on vacation, these temporary vacancies are not filled by production or office personnel. Indeed, it is quite rare ~or either production employees or office workers to be in the lab area.

13. The source and rhythm of the lab employees' work is governed by the needs of both plant and office. Salesmen identify particular customer needs and the lab determines the pigments and formulas necessary to meet the customers' specifications. This entails liaison with the office and sales staff for the purpose of reporting, costing, and to establish priorities. On the other hand, the lab staff also work in conjunction with plant personnel (at the supervisory level) if there are production problems or difficulties achieving the desired results from the formulas established in the lab. Quality control may identify the problem initially, but, then, as a company representative put it, "it's everybody's problem". Any problems with the end product are discussed at a weekly meeting which typically includes the production supervisor, the chemist, the lab manager, and an employee formerly with quality control who now acts as a "troubleshooter". Plant, lab, and senior management work together to resolve the difficulty; and if it is identified as a problem with the formula, the matter is referred to the chemist for reworking. Occasionally, the chemist, lab manager or lab staff initiate a "test run" in the production area after the initial work in the lab has been done, or where that appears to be the best way to resolve production problems.

14. The union maintains that its experience and Board practice both recognize that the laboratory can be a separate unit for collective bargaining purposes, but the evidence of such practice is less than overwhelming. At Leaver Detergents in Toronto, there are separate bargaining units and collective agreements for the 175 office staff, 475 production workers, and 35 employees in the lab; however, it is unclear whether that particular bargaining unit configuration was the product of separate Board certificates or collective bargaining. No such certificates were produced. In a case involving the applicant trade union and General Printing Inc., the Board issued an "office and clerical" certificate, excluding laboratory staff and persons covered by a subsisting collective agreement. This created, de facto, an unrepresented group of laboratory staff (and perhaps others), but the Board decision was based upon the agreement of the parties and was issued without a formal hearing into the appropriateness of the bargaining unit. In 1980, in a case involving Witco Chemical Canada Limited, Teamsters Local Union 132 was certified to represent a bargaining unit of "all employees working at Oakville, Ontario, save and except foremen, those above the rank of foreman, chemists, chemical technicians, research staff, office and sales staff". Three years later, without a hearing and on the agreement of the parties, the Board certified another bargaining unit at Oakville consisting of "all employees of [Witco], save and except foremen, those above the rank of foreman, office, clerical, and technical staff, sales staff, and those persons covered by a subsisting collective agreement". There is nothing inherently odd about the second certificate were it not for the existence of the first, which is not specifically dealt with in the Board decision. Nor is it apparent who this second "all employee" unit would apply to. It is certainly troubling to this panel of the Board (and may not have been apparent to the earlier panel) that the general wording of the second bargaining unit is misleading and encompasses only a small pocket of employees - a bargaining unit that the Board probably would not have considered appropriate if it had been described expressly. The background of a case twenty years ago involving Falconbridge Nickel is too cryptic to be very helpful in the present case. The only Board decision which deals expressly with the present problem is B. F. Goodrich Canada Inc., [1982] OLRB Rep. Dec. 1797 to which we will refer in more detail below.

15. The employer submits that, on the evidence, the laboratory employees share a community of interest with the office staff. That was the basis for its earlier assertion that they should be excluded from the production bargaining unit (while quality control employees were included). The employer contends that apart altogether from community of interest considerations, to create a bargaining unit consisting solely of laboratory employees would unduly fragment the potential bargaining structure in a relatively small enterprise. There could be six bargaining units defined in terms of the Full-time or part-time employees in the "production", "office", and "lab" groupings. In the employer's submission, such fragmentation creates difficulties for the bargaining parties - particularly the employer - and in practice would be recognizing a bargaining unit limited to one specialized department.

16. The applicant union replies that the lab staff do not have a community of interest with the office workers and should not face the impediment of having to organize or bargain with an employee group with whom they do not have a community of interest. As things now stand, the office employees have indicated no appetite for collective bargaining~ so the employer's concerns about fragmentation are entirely hypothetical; moreover, the applicant union contends, it is not obvious that the problems sometimes associated with fragmentation would arise here. To the extent that the lab group is independent of plant and office, jurisdictional disputes would not arise; and, to the extent that there is an affinity with the production group, the parties, in bargaining, can agree to deal with production and laboratory workers together because there is currently no collective agreement in place. The applicant union is quite prepared to merge the two groups and have them covered by a single collective agreement. Finally, the applicant union contends that the employer cannot be heard to complain about fragmentation when it was the employer which initially insisted on the exclusion of laboratory staff yet argued, in the present case, that if the Board should find the lab employees to constitute an appropriate unit, it should distinguish between full-time and part-time lab employees because there is some history of hiring part-time lab employees. That history was not spelled out very clearly but would result in a further division within the employee group.

IV

17. There are two Board cases which may help to put the present application into perspective: B. F. Goodrich Canada Inc., supra; and S. Gumpert Co. of Canada Ltd., [1985] OLRB Rep. Oct. 1523. In Gumpert, the union had made an application for a "plant production" bargaining unit and the Board had to decide whether an individual described as a "technician" should be part of that unit or part of a generic grouping of "office, clerical and technical" employees. The Board ultimately decided that she should be excluded from the production unit and, in passing, had this to say:

10. On an application for certification the Board must determine whether the bargaining unit applied for is 'appropriate" for collective bargaining. There are few statutory guidelines for defining this concept, but what it means, quite simply, is the group of employees whom it makes labour relations sense" to lump together for the purposes of collective bargaining. In determining the appropriate bargaining unit, the Board considers such factors as: the community of interest of the employees; the practice or history of collective bargaining in the employer's enterprise and generally; the desirability of separating white-collar salaried and blue-collar hourly paid employees; the aversion to fragmentation of the bargaining unit; the employer's organizational structure; the nature of the work performed; the conditions of employment; the skills of employees; administrative or geographic circumstances; the functional coherence or interdependence of particular groups of employees; and so on (see generally: J. Sack, Q.C. and M. Mitchell, Ontario Labour Relations Board Law and Practice, Butterworths, Toronto, 1985 at pages 134ff and 163). In determining the appropriate bargaining unit, the Board seeks to group together employees with sufficiently coherent employment and collective bargaining interests that the collective bargaining process can be undertaken smoothly.

11. Early on in its history, the Board made certain broad generalizations which have become incorporated into collective bargaining practice and serve as guidelines for subsequent bargaining unit determinations. We need not detail those generalizations here (but again see Sack and Mitchell, supra). If suffices to say that one of those distinctions has been between "blue-collar" hourly rated, plant production personnel and "white-collar'' salaried office, clerical, sales and technical staff. This is not to say that the clerk and the chemist or the typist and technologist perform the same functions or even share the same status at work. It is simply that these white-collar salaried staff are sufficiently different from the hourly rated blue-collar production and maintenance employees, that the latter form an identifiable and independently "appropriate bargaining unit".

12. Quality control and plant clerical personnel lie somewhere in between. In some situations their terms of employment and conditions of work point to a community of interest with office, clerical and technical employees, while in other situations they are clearly associated or integrated with the blue-collar plant production employees. It is a question of the strength of their affinity, or, to put the matter another way, whether the "standard" production and maintenance unit would not he appropriate unless it included them. This, of course, turns upon the facts in each particular case.

In Gumpert the Board ultimately concluded that the "technician" had a community of interest with the office employees.

18. Gumpert illustrates the historical and practical foundations for the employee groupings which have come to be treated as "standard" or "generic" bargaining units. These groupings have been incorporated into the structure of collective bargaining, both through the actions of the Board and by parties negotiating collective agreements, and whatever their objective underpinnings, the parties continue to agree to them and they seem to work. They are familiar, acceptable and, therefore, appropriate, even though one might question whether distinctions so firmly rooted in the 1940's and 1950's should be applied to the complex job hierarchies in our emerging "post-industrial" society. Modern production methods have blurred the distinction between blue-collar manual workers and "technical" employees who at one time may have been more closely identified with the salaried staff working in the office. That was the problem faced by the Board in Gumpert.

19. B. F. Goodrich illustrates the Board's response to a situation not of its own making where the bargaining parties had created a potential anomaly. There, the respondent employer had two plants and the parties had a long history of excluding quality assurance employees from the "production" unit, thereby treating them as if they were "office" rather than "production" employees. The quality assurance employees later sought to organize, and a question arose as to whether they would by themselves, constitute an appropriate bargaining unit. The employer took the position that they were not an appropriate bargaining unit because they should be grouped together with certain other clerical or technical personnel which had likewise been excluded from the established collective bargaining framework. The union asserted that they should have their own unit because they did not share a community of interest with office workers. The Board began its analysis as follows:

As a starting point, the Board notes that the parties at both plants, as indicated, have a long history of excluding quality assurance employees from the production unit, as if they were ''office' rather than "production" employees, and this is a fact which must be considered. But the Board also recognizes that such historical developments on occasion are grounded more in chance than in fact; where, as here, the bargaining units were cast in the then-common terms of ''hourly-rated employees", quality assurance employees may have been accepted as "office" simply because they were paid by the employer on a salaried basis at the time. In these circumstances, the Board could not find the history between the parties necessarily determinative of the issue, at least where an examination of the facts demonstrates clearly that the individuals in question, in spite of the bargaining history, maintain a community of interest with the "production" rather than an "office" bargaining unit.

The Board found, on the facts, that the quality assurance personnel did not have a close affinity with the office and clerical employees and further that none of the other workers excluded from the bargaining unit "share the kind of close community of interest and integration of work function with the production workers which the quality assurance employees demonstrate". The Board concluded:

With respect to the present application, the Board finds that the applicant's organization of a separate, self-contained unit of quality assurance employees as a tag-end to the plant is consistent with the respondent's existing organizational structure, and will not create any undue hardship to the respondent in the way it has been carrying on its business. The creation of a bargaining unit does not normally interfere with job promotion out of that unit, and the existing inter-job training does not appear to be on a scale which will be significantly affected by this certification. The Board is mindful of the principles set forth in K-Mart Canada Limited, [19811 OLRB Rep. Sept. 1250, with respect to the appropriateness of a bargaining unit, and for all of the reasons given can find in this case no basis for requiring the applicant to expand beyond the quality assurance unit which it has already organized.

20. In our view, the situation in the instant case is very similar to that in B. F. Goodrich. Although the individuals whom the union seeks to represent work in an area described as a "laboratory" and have "technical" job titles, they have no formal "technical" training, they do not perform functions requiring any significant degree of skill or sophistication, and, most important, the employer has treated them more like its hourly-rated production workers rather than its salaried office and clerical staff. Their skills, payment method, hours of work, and the physical layout of the building all suggest a closer affinity with the production employees. They appear on the same payroll as those production employees, while the office staff have a different nominal employer. Even the focus and rhythm of their work seems more closely related to the production process - although no doubt in this regard there must be a continuing liaison with sales staff as well. On balance, then, we conclude that the laboratory employees have a significantly stronger community of interest with the organized production workers than the office and clerical employees. If the facts before us had been before the earlier panel of the Board, we are quite confident that the laboratory staff (like the quality control personnel) would most likely have been included in the "production" bargaining unit.

21. Of course, there was no intentional misrepresentation or intent to mislead the Board in the earlier case. We are satisfied that when the employer sought the exclusion of laboratory staff it was acting in good faith upon its own understanding of Board practice and their community of interest. The fact remains, however, that a group of employees who should probably be part of the "production" bargaining unit have, unintentionally, been left out. The question then becomes what should the Board do: sanction a bargaining unit which would not ordinarily be considered appropriate by itself or, alternatively, require the laboratory employees to bargain together with the office and sales staff with whom they have no strong community of interest and who, to date, have given no indication of any interest in collective bargaining. The first option leads to fragmentation of the bargaining structure, which can sometimes lead to collective bargaining problems (in this regard see Hospital for Sick C'hildren, [1985] OLRB Rep. Feb. 266, Kidd Creek Mines Ltd., [1984] OLRB Rep. March 481, and Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250). The second option would result in a dismissal of this application for certification because, although the laboratory employees have indicated an interest in collective bargaining, the office staff have not. (We should note, parenthetically, that there might also be a problem if the lab staff were numerous enough and the union's support strong enough that a certificate would issue even if the office employees were "swept in" to a generic office, clerical and technical bargaining unit. The unit might then include employees with divergent collective bargaining interests.)

22. We have considered the alternatives and the parties' representations and have concluded that the better balance is struck by our adopting the approach taken by the Board in B. F. Goodrich - although we do not adopt its terminology. A "tag-end" unit is a unit of unrepresented employees who, for one reason or another, have been excluded from the standard or generic bargaining units in place in an employer's enterprise. A "tag-end unit", as the name suggests, is ordinarily the last bargaining unit, encompassing all unrepresented employees and fashioned in terms which will ensure no further fragmentation of the bargaining structure. There is only one "tag-end unit". There is not a "tag-end" unit corresponding to each existing bargaining unit. By its very terms, a tag-end unit may include a diverse grouping of employees with no strong community of interest with each other. The suggestion that there can be a "tag­end" to each of the generic or existing bargaining units would double the number of potential bargaining units in any enterprise and raise the very spectre of fragmentation that the notion of a "tag-end" was designed to avoid. We repeat: there can be only one tag-end unit.

23. Having regard to the unusual circumstances of this case, we are prepared to accede to the union's request and find appropriate a unit of employees encompassing laboratory staff, but in order to avoid the potential for undue fragmentation of the bargaining structure, we think it should be framed in "tag-end terms". We are not persuaded that a bargaining unit framed in this way would create any serious collective bargaining problems for the employer and it will leave open to the office staff a coherent generic bargaining unit should they wish to engage in collective bargaining some time in the future. Finally, we should note that the union and the employer are currently engaged in collective bargaining for a collective agreement to cover the plant unit. There is no collective agreement yet in place so that any problems arising from the unfortunate (if inadvertent) exclusion of laboratory staff from the production unit can be addressed at the bargaining table.

24. For the foregoing reasons, the Board finds that the appropriate bargaining unit should be framed as follows:

All employees of Resco Chemicals and Colours Ltd. and Resco Distributing Company Limited in Mississauga, save and except supervisors, persons above the rank of supervisor, office, sales and clerical staff, and persons for whom any trade union held bargaining rights on the date hereof.

25. The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on March 21, 1986, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act. We should note that no one appeared on behalf of certain employees who filed a written statement opposing the union's certification. Since the Board was not presented with evidence of the kind contemplated by Rule 73 and paragraph 7 of Form 6, Notice to Employees, the Board is not disposed to give that employee statement any weight.