[1987] OLRB Rep. February 245
2543-86-R United Plant Guard Workers of America, Local 1962, Applicant, v. National Protective Service Company Limited, Respondent
BEFORE: Robert D. Howe, Vice-Chairman, and Board Members L M. Stamp and B. L. Armstrong.
APPEARANCES: Ian Roland and Watson Cook for the applicant; Walter T. Langley and Gordon hearly for the respondent.
ECISION OF THE BOARD; February 4, 1987
The name of the respondent is amended to “National Protective Service Company Limited.”
This is an application for certification in which the applicant seeks to be certified as the bargaining agent for security guards employed by the respondent.
In its reply to the application, and in its submissions before the Board at the hearing of this matter on January 9, 1987, the respondent challenged the jurisdiction of the Board to deal with the application, on the basis that the activities of the respondent fall within federal jurisdiction.
The respondent is in the business of providing security guard services in the Regional Municipality of Ottawa-Carleton, and in Hull, Quebec. It was incorporated in Ontario and is licensed under the Private Investigators and Security Guards Act, R.S.O. 1980, c. 390, as well as under similar legislation in the Province of Quebec. As of December 10, 1986, the date of this application, the respondent had a total of approximately 230 persons on its payroll, 190 of whom were security guards employed on a full-time basis, and 29 of whom were security guards employed on a part-time basis.
During November of 1986, the respondent provided a total of 34,587 hours of security guard services in the Regional Municipality of Ottawa-Carleton. About 92% of those hours were provided to various departments and agencies of the Federal Government, including Revenue Canada, Transport Canada, Public Works Canada, Health and Welfare Canada, Parks Canada, C.M.H.C., C.B.C., the National Energy Board, the Atomic Energy Control Board, and the National Capital Commission. The remaining 8% of those hours were provided to other clients, such as the City of Ottawa, the Regional Municipality of Ottawa-Carleton, the Ottawa Public Library, Ashbury College, Ellis-Don, an art fair, a car dealership, and a convenience store. Gordon Shearly, the respondent's President and Chief Executive Officer, was the sole witness called to testify at the hearing of this matter. He told the Board that the number of hours of security guard services provided by the respondent to clients other than the Federal Government in December of 1986 was slightly higher than the respondent's average monthly total for such clients. He also testified that although the number of hours worked at specific locations varies somewhat from month to month, the percentage breakdown between Federal Government work and work for other clients remains fairly stable. In this regard it was his uncontradicted evidence that during the eighteen-month period prior to this application, security guard services provided to departments and agencies of the Federal Government consistently constituted between 90 and 95 percent of the respondent's work. Prior to that, it consistently amounted to at least 80 percent of the respondent's work throughout the nine-year period during which Mr. Shearly has been the owner of the respondent. There is no regular rotation of security guards from location to location. However, security guards who work at Federal Government sites are occasionally offered opportunities to work overtime at non-governmental locations. Conversely, security guards who generally work at sites operated by clients other than the Federal Government are occasionally assigned to work at Federal Government sites when the need arises.
With the exception of pre-board passenger screening services provided to the Department of National Defence at its Canadian Forces Base in Ottawa, all of the respondent's security guard services at Federal Government sites in Ottawa-Carleton were provided pursuant to a detailed, written standing offer agreement for the provision of security guard services at departments and agencies of the Federal Government. That agreement consists of an 83 page contract in a form prepared by Supply and Services Canada. Most of the Federal Government sites at which the respondent provides security guard services are owned by the Federal Government; the remainder are leased by it. Space at a few of the locations at which the respondent provides security guard services to Public Works Canada is leased by the Federal Government to private tenants. A few of the other locations include both Federal Government offices and offices of other entities.
The respondent also provides security guard services, involving between 30 and 35 security guards, to Public Works Canada at Place du Portage, a Federal Government complex in Hull, Quebec. That arrangement has been in place for about eight years. All of the respondent's security guards who work in Quebec are also licensed to work in Ontario, and some of them are called upon by the respondent to do so from time to time. Conversely, some of the respondent's security guards who work primarily in Ontario are also licensed (by the Government of Quebec) to work in Quebec, and are called upon by the respondent to do so from time to time in order to fill temporary vacancies or replace employees absent due to illness. The respondent has an office address in Quebec, as required by Quebec law, but that office is not actually occupied by the respondent, which manages all of its operations from its office in Ottawa.
During November of 1986, the respondent provided about 2,000 hours of pre-board passenger screening security services to the Department of National Defence at its Canadian Forces Base in Ottawa, pursuant to a separate contract between Supply and Services Canada and the respondent. Those services were performed by approximately a dozen specially trained security guards.
Security guards sent by the respondent to Federal Government sites generally report to local security officers employed by the Federal Government at those sites. The Federal Government has a quality assurance cell which monitors the quality of security guard services provided to ~t by the respondent (and by other companies). The Federal Government administers a formal examination to all employees whom the respondent proposes to use as security guards pursuant to the standing offer agreement or the aforementioned contract respecting security services at the Canadian Forces Base in Ottawa. The standing offer agreement also requires the respondent to provide an in-house formal classroom training programme for security personnel to be assigned to guard Federal Government sites. A detailed description of that programme occupies ten pages of the standing offer agreement. The security services contract respecting the Canadian Forces Base on Ottawa includes similar provisions. Those documents also specify a number of conditions which constitute "cause for immediate removal" of security guards by the Federal Government from work assignments on its premises. It was Mr. Shearly's evidence that the respondent's standing offer agreement with the Federal Government is "much more demanding" than the respondent's contracts with other clients. The same is true of the contract respecting security services at the Canadian Forces Base in Ottawa.
Security guards employed by the respondent provide a variety of services at Federal government sites, including enforcing fire safety standards; administering emergency first aid; searching for, identifying, and reporting suspect items during bomb threat situations; acting as traffic emergency officers during fire/bomb threat incident evacuations; carrying out phased evacuations; arresting persons found committing any criminal offences, and restraining such persons from causing further injury or damage; operating elevators; performing control room operation duties during normal periods and during emergency situations; providing surveillance of cleaning staff; ensuring that only authorized articles are removed from Federal Government buildings; controlling the movement of people, material, and vehicles; guarding sensitive areas such as taxation buildings, restricted areas, and high profile areas (such as senior departmental officials' offices); maintaining security communications; acting as members of fire emergency squads; assisting mobility impaired persons; maintaining effective public relations; and complying with "post orders" prepared by the Federal Government in respect of guard duties to be performed at particular Federal government sites. As indicated by Mr. Shearly in his testimony before the Board "some [of those duties] only occur in case of emergency, but when they are required, it's terribly important that they be performed properly."
There is no real dispute between the parties concerning the legal principles which are to b. applied in resolving the jurisdictional issue raised by the respondent in these proceedings. The regulation of contracts of employment, hours of work, minimum wages, and other aspects of employment law, including labour relations, is generally a matter of "Property and Civil Rights in the Province", within the meaning of section 92(13) of the Constitution Act and, accordingly, is generally within the jurisdiction of the provincial legislatures (see Toronto Electric Commission v. Snider, [1925] 2 D.L.R. S (J.C.P.C.); Re Northern Electric Company Limited, 63 CLLC ¶15,484; and Windsor Airline Limousine Services Limited, [1980] OLRB Rep. Feb. 272; application for judicial review dismissed in Re Windsor Airline Limousine Services Ltd. and Ontario Taxi Association 1688 et al. (1981), 1980 CanLII 1897 (ON HCJ), 30 O.R. (2d) 732 (Div. Ct.); leave to appeal denied, September 15, 1980. However, there is also a sphere of federal labour law jurisdiction in respect of employees of employers who are engaged in enterprises that are within federal jurisdiction, such as those set forth in section 91 and in parts (a), (b), and (c) of section 92(10) of the Constitution Act. Accordingly, Parliament has enacted legislation that governs labour relations in federal areas of activity. Section 108 of the Canada Labour Code, R.S.O. 1970, c.L-1, as am., provides:
This Part applies in respect of employees who are employed upon or in connection with the operation of any federal work, undertaking or business and in respect of the employers of all such employees in their relations with such employees and in respect of trade unions and employers' organizations composed of such employees or employers.
In Northern Telecom Ltd. v. Communications Workers of Canada et al. (1979), 1979 CanLII 3 (SCC), 98 D.L.R. (3d) 1 (S.C.C.), at page 13, Dickson J. (as he then was) wrote, in part, as follows in delivering the unanimous judgment of the Court:
The best and most succinct statement of the legal principles in this area of labour relations is found in Laskin's Canadian Constitutional Law, 4th ed. (1975), p. 363:
In the field of employer-employee and labour-management relations, the division of authority between Parliament and provincial legislatures is based on an initial conclusion that in so far as such relations have an independent constitutional value they are within provincial competence; and, secondly, in so far as they are merely a facet of particular industries or enterprises their regulation is within the legislative authority of that body which has power to regulate the particular industry or enterprise...
In an elaboration of the foregoing, Mr. Justice Beetz in Montcalm Construction Inc. v. Minimum Wage Com'n et al. (1978), 1978 CanLII 18 (SCC), 93 D.L.R. (3d) 641,1197911 S.C.R. 754,25 N.R. 1, set out certain principles which I venture to summarize:
(1) Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule.
(2) By way of exception, however, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject.
(3) Primary federal competence over a given subject can prevent the application of provincial law relating to labour relations and the conditions of employment but only if it is demonstrated that federal authority over these matters is an integral element of such federal competence.
(4) Thus, the regulation of wages to be paid by an undertaking, service or business, and the regulation of its labour relations, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one.
(5) The question whether an undertaking, service or business is a federal one depends on the nature of its operation.
(6) In order to determine the nature of the operation, one must look at the normal or habitual activities of the business as those of a 'going concern', without regard for exceptional or casual factors; otherwise, the Constitution could not be applied with any degree of continuity and regularity.
See also Windsor Airline Limousine Services Limited, supra, at paragraph 25, in which the Board I stated:
Regulatory control of labour relations on a federal level can be exerted only in respect of activities which fall within federal authority by specific reference, (see Eastern Canada Stevedoring Limited 1955 CanLII 1 (SCC), [1955] S.C.R. 529; [1955] 3 D.L.R. 721), by reference to the federal general or residuary power (see Pronto Uranium Mines Ltd. and Algoma Uranium Mines Limited v. Ontario Labour Relations Board, 1956 CanLII 153 (ON HCJ), 1956] O.R. 862; 5 D.L.R. (2d) 342), by the exercise of federal authority by a declaration under section 92(1O)(c) of the B.N.A. Act, or by direct relation to federal government operations and federal Crown enterprises, (see Reference re Legislative Jurisdiction Over Hours of Labour, [1925] 5.C.R. 505; 1925 CanLII 77 (SCC), [1925] 3 D.L.R. 1114).
- The approach which has generally been adopted by the Courts (and by labour relations boards) in determining constitutional issues such as those raised in the present case was aptly sum~narized by Paul C. Weiler, as Chairman of the British Columbia Labour Relations Board, in Arrow Transfer Company Ltd., 74 CLLC ¶16,130, at 1079-1080:
They [the Courts] begin with the operation which is at the core of the federal undertaking (e.g. railway, shipping, or the postal service). They then look at the particular subsidiary operation engaged in by the employees whose collective bargaining is in question and reach a judgment about the relationship of that operation to the basic federal undertaking. The judges have used a variety of terms to characterize the part the particular operation may play in the over-all enterprise. It must have a 'vital', 'essential', 'integral', 'important', or 'intimate' role in the undertaking if it is to fall within the jurisdiction of Parliament. As was said earlier, that has been the conclusion about the relationship of stevedoring to shipping and of mail pick-up to the postal service; the opposite conclusion was reached regarding the relationship of a hotel to the railroad. In each case the judgment is a functional, practical one about the factual character of the ongoing undertaking and does not turn on technical, legal niceties of the corporate structure of the employment relationship.
In the Northern Telecom case, sup ra, at page 14, the Supreme Court of Canada described that passage as "a useful statement of the method adopted by the Courts in determining constitutional jurisdiction in labour matters". See also Toronto Auto Parks (Airport) Limited, [1978] OLRB 1~ep. July 682, in which the Board found to be within provincial jurisdiction the labour relations of n employer which operated public parking facilities owned by the Federal Government at Toronto International Airport. That employer's employees were responsible for operating public parking facilities at the airport, collecting parking fees from users of those facilities, keeping the parking areas and cashier booths clean, and retrieving baggage carts from where they were left by airline passengers in order to reposition them where they would be more readily available to the travelling public. In finding that it had jurisdiction in that case, the Board concluded that although 4ie services provided "a convenience to the travelling public", they were not "sufficiently integral t aeronautics to bring them within federal legislative jurisdiction."
What is in dispute in these proceedings is the result which the application of those principles yields in the context of the present case. Counsel for the respondent submitted that all of the a aforementioned security guard services provided by the respondent to the Federal Government are integral or necessarily incidental to Federal Government works and undertakings. Counsel for the applicant, on the other hand, contended that those services are not an integral or essential part of Federal Government operations. He acknowledged that any tenant needs security services, as such services are essential to the operation of a building. However, he argued that such services are not essential or integral to any of the heads of federal jurisdiction under sections 91 and 92(10) of the Constitution Act.
In an unreported decision dated June 2, 1982 (in C.L.R.B. File No. 555-1757), the Canada Labour Relations Board found that it had constitutional jurisdiction over security employees of Burns International Security Services Limited working at the Gander International Airport in Gander, Newfoundland, and certified the International Association of Machinists and Aerospace Workers as their bargaining agent. We respectfully agree with that conclusion, and find the same to be true of the respondent's employees who provide pre-board passenger screening security services for the Department of National Defence at its Canada Forces Base in Ottawa. In this age of "sky-jacking" and terrorist activities involving airplanes, their crews, and their passengers, it cannot legitimately be said that pre-board passenger screening security services are a mere convenience. To the contrary, they clearly have a vital, essential, integral, important, and intimate role in aeronautics, which is a well established area of federal jurisdiction. This reasoning applies with even greater vigour to military aeronautical operations, such as those carried on at the Canadian Forces Base in Ottawa, in view of the federal power over "Militia, Military and Naval Service, and Defence", under section 91(7) of the Constitution Act.
Having regard to all of the evidence and the submissions of the parties, we have also concluded that constitutional jurisdiction over labour relations between employers and employees who provide security guard services of the type described above on a regular and ongoing basis to departments and agencies of the Federal Government also fall within the ambit of federal jurisdiction. The tasks performed for Federal Government departments and agencies by the respondent's employees, such as the evacuation of buildings in fire/bomb threat situations, the arrest of persons committing criminal offences, the guarding of sensitive areas such as taxation buildings, restricted areas, and high profile areas (such as senior departmental officials' offices), and the operation of control rooms in normal and emergency situations, play a vital, essential, integral, important, and intimate role in the operation of those departments and agencies, and are necessarily incidental to such operations, which fall within various heads of federal power under section 91 of the Constitution Act, such as "The Public Debt and Property", under section 91(1A); "The raising of Money by any Mode or System of Taxation", under section 91(3); and the Federal Government's "Peace, Order, and Good Government" general or residuary power.
Counsel for the applicant did not request that the Board issue a certificate confined to those security guards in the employ of the respondent who are generally, although not invariably, used by the respondent to provide security guard services for clients other than Federal Government departments and agencies, nor did he suggest that the Board would have jurisdiction to do so in the circumstances of this case, in which, as noted above, less than ten percent of the respondent's employees fall into that category. Accordingly, it is unnecessary to decide that matter in this decision.
For the foregoing reasons, this application is hereby dismissed.