[1987] OLRB Rep. August 1098
3388-86-R Ottawa Newspaper Guild, Local 205, Applicant v. The Ottawa Citizen, A Division of Southam Inc., Respondent
BEFORE: Robert J. Herman, Vice-Chair, and Board Members J. Wilson and E. G. Theobald.
APPEARANCES: Cathy Lace, Joseph Hanafin and Steve Lundy for the applicant; Cohn Morley, J. Lynn Thomson, Ted Allen and Ken Hills for the respondent.
DECISION OF THE BOARD; August 14, 1987
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The applicant ("the Guild") is seeking certification as the bargaining agent for approximately 13 employees comprising the computer information services department of the respondent ("the Citizen"). The respondent publishes a daily newspaper in the Ottawa area, and there are currently 7 different collective agreements covering employees in various departments of the Citizen. In this application, the Guild seeks to represent a bargaining unit of employees in one of the few departments remaining unorganized at the Citizen.
The Citizen disputes the appropriateness of the bargaining unit applied for, and submits that a tag-end bargaining unit would be appropriate in the circumstances. In the alternative, the Citizen submits that the computer information services department employees do not have a distinguishable community of interest, and they ought to be included in a bargaining unit with employees in the advertising department.
At the conclusion of the hearing, the Board orally ruled that a bargaining unit consisting only of employees of the computer information services department was appropriate, with reasons to follow. We now provide those reasons.
The facts were not in substantial dispute, and were received by the Board by way of submissions from counsel. No viva voce evidence was requested by the parties or entertained by the Board. For purposes of the disposition of this matter, we have accepted as true and provable those factual submissions, and where those submissions conflicted, we have relied upon the submissions of counsel for the Citizen, as agreed between counsel.
The computer information services department services most other departments of the Citizen, through the use of 6 computers. There are 3 main computers: one utilized to service the circulation department, one utilized to perform various off-site work and serve the payroll and personnel departments, and one of which services the advertising department and the business office (credit department). There are also 3 micro-computers: one serving the newsroom for editorial and story composition purposes, one utilized for classified advertising purposes, and the third used predominantly as a backup computer and remaining dormant for the most part. The computers are connected to most areas in the two buildings of the Citizen, through approximately 175 computer terminals located in the various departments, with approximately 23 terminals in advertising, 56 in news, 26 in circulation, and 21 in composing. The remaining terminals are scattered throughout the respondent's operations. The terminals are utilized both by employees in bargaining units and those who are unorganized so their use is not reflective of the bargaining structure and pattern of the Citizen.
Employees in the computer information services department fall into two categories, computer operators and data-entry employees. Eight or nine employees are computer operators, and their duties consist of running programmes for the various departments of the Citizen, storing the information which the programmes elicit, and printing hard copy where necessary of the information retrieved. Computer operators store information on magnetic tape, and perform trouble-shooting, maintenance, and repair on the system and terminals throughout the building. If the problem with the equipment is serious, the trouble-shooting or repair may have to be performed by people expert in the computer repair field, and not by the computer operators. The operators also perform a wide variety of relatively minor functions, including the drawing up of payroll cheques and bills, the printing of bundle wrappers for the circulation department for the daily newspapers, and the deletion of copy which the Citizen no longer requires be stored. The operators perform functions for virtually all departments of the Citizen, including production of lists or information where requested by a department, trouble-shooting of terminals located in the departments, and responding to complaints from departments concerning computer services.
Approximately four people perform data entry functions, and unlike the computer operators who provide service to most departments of the Citizen, ninety percent of data entry work is performed for the advertising department. This work consists largely of typing in, or inputting, information for the advertising department, such as the content of the advertisements and the punching of advertising codes. The remaining ten percent of the work is performed for the business office, and includes data entry functions with respect to accounts payable and cheque requisitions. The business office has its own employees performing similar functions, on terminals located within the business office.
Although the bulk of data entry work is performed for the advertising department, the great majority of the work of computer operators, and therefore of the computer information services department, is to service all departments of the respondent. There is some interchange of employees between the computer information services department and other departments of the Citizen, but that interchange has occurred only for short periods of time in response to special needs, or has occurred a number of years ago, or has involved the interchange of employees with unionized departments and not with employees in advertising. Most employees work from 8:00 a.m. to 6:00 p.m. although some shift work is done by both data entry and computer operators.
The Citizen has structured the department as essentially self-contained, with its own management reporting structure. Although the manager's office is physically located in the advertising department, the manager is responsible solely for managing the computer information services department, and makes final decisions on hiring, firing, and discipline. While personnel may initially screen candidates for employment and may become involved in disciplinary matters, final decisions are taken by the department's manager.
Employees in the department share many basic benefits with other employees, whether unionized or non-unionized. The department has its own separate wage classification, and decisions with respect to the merit component of wages are made within the department. With respect to the employees' background and skills, the Citizen has not insisted on prior computer experience when hiring employees, though the manager looks for some "aptitude" for working with computers and people with prior computer operator background are preferred.
There are currently 7 separate bargaining units and collective agreements at the Citizen. The Ottawa Typographical Union represents four bargaining units, each with its own collective agreement, covering in turn employees in the composing room, mail room, part-time mail room, and inserters. The Ottawa Printing and Graphic Communications Union has one collective agreement covering pressmen, paper handlers and camera plate employees. The Guild currently has two collective agreements, one general or omnibus agreement covering a disparate number of classifications, including editorial, business office, building maintenance, circulation, printing and storage employees. Its other bargaining unit and collective agreement encompass approximately 6 employees in fleet control. The omnibus collective agreement evolved over time from a series of individually acquired collective bargaining rights and smaller bargaining units. In 1950 the Guild was certified to represent editorial employees and negotiated a collective agreement accordingly. In 1952, it was certified to represent circulation employees, and a collective agreement was signed on their behalf, and in 1953 to represent proofreaders, teletype setters and maintenance employees and a separate collective agreement was concluded on their behalf. In 1954, the Guild and the Citizen merged or folded those three separate bargaining units and agreements into one general collective agreement. In 1955, the Guild was certified to represent employees in the business office, and shortly thereafter negotiated with the Citizen a supplemental collective agreement, covering the business office employees within the main agreement. In 1957, the Guild obtained bargaining rights for scanengravers, and they in turn were folded into the omnibus collective agreement. In 1972, the Guild was certified to represent part-time drivers and, consistent with past practice, the Guild and the Citizen agreed to include these employees in the main agreement. All these individual departmental bargaining units were agreed to by the parties during the certification proceedings and the parties subsequently agreed to include the employees affected within the confines of the main collective agreement.
This practice took a decided turn in 1981. In that year, the Guild was certified to represent a group of approximately 6 employees in fleet control (i.e. maintenance of the trucks). As in the past, the parties agreed to a departmental bargaining unit description, this time encompassing only employees in fleet control. For the first time, the Citizen took the position that this small departmental bargaining unit should remain a distinct bargaining unit, and it would not agree to the Guild's request that it cover these employees and the fleet control bargaining unit under the main agreement. Accordingly, in 1982 separate collective agreements were negotiated and signed with respect to fleet control employees and all other employees represented by the Guild. This also occurred at the next round of bargaining in 1984. In the current round of negotiations, the Guild is again seeking to have the main collective agreement include fleet control employees. The Guild advised the Board, should it be successful in the instant application, that it will be seeking to include employees in the computer information services department within the ambit of the main collective agreement. It is the Citizen which in recent times has insisted on small bargaining units, and a fragmented bargaining structure.
Turning to the submissions and legal argument, we do not propose to refer specifically to all the cases cited by counsel. Until approximately 1981, organizing and the certification of bargaining units in the newspaper industry received special treatment by the Board. As the Board noted in The Spectator, a Division of Southam Inc., [1981] OLRB Rep. August 1177:
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 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, [1944] 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.
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.
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), 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.
For the most part, we agree with and adopt these comments. As paragraph 12 of that decision reflects, where the prerequisites for certification of a craft unit in the newspaper industry are not made out (and they are not suggested in the instant application) the Board will consider the question of the appropriateness of the bargaining unit "on the basis of normal considerations of community of interest". The general principles which the Board applies in the typical certification proceeding (not arising in an industry that has historically received special treatment) will be applied in the future in the newspaper industry. We will say more about those principles shortly. In paragraph 9 of The Spectator, the Board commented 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". We do not adopt this statement if interpreted to suggest that where there is agreement between the parties, the Board would not apply established general principles. In our view, the agreement of the parties in no way ousts or alters the application of community of interest and other relevant principles with respect to determining the appropriate bargaining unit. Rather, the agreement of the parties is simply an indication of the parties' joint assessment of the appropriateness of the unit and, for example, the dangers in the particular work place of fragmentation or the existence of a community of interest, and as such is to be seriously considered by the Board. The Board will not lightly discard an agreement between parties who must live with its consequences. However, as numerous decisions have noted, the Board will not be bound by the agreement of the parties where the Board is not also persuaded that the proposed bargaining unit is appropriate in the circumstances.
In a recent series of cases, the Board has at some length discussed the general principles applicable to a consideration of the appropriate bargaining unit, to enable parties to organize their affairs and conduct themselves with some expectation interest. In Board of Governors of Ryerson Polytechnical Institute, [1984] OLRB Rep. Feb. 371, the Board observed:
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, [19671 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.
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.
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 opportunity 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 on job progression to the detriment of all concerned. A fragmented bargaining structure also inevitable [sic] 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.
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.
In Hosp ital for Sick Children, [1985] OLRB Rep. Feb. 266, the Board wrote as follows:
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 so on.
. . .We might make an additional but related observation. We are troubled by the fact that a largely administrative and policy-laden determination has mushroomed in some cases into an elaborate, expensive, and time-consuming process for deciding a relatively simple question: does the unit which the union seeks to represent encompass a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer.
[emphasis added]
- The Board approach in this area was comprehensively canvassed and summarized in TV Guide Inc., [1986] OLRB Rep. Oct. 1451, a decision which also summarized the major decisions of the Board dealing with organizing in the newspaper industry. Both parties relied heavily on that decision and the excerpts from prior decisions recited therein. In T. V. Guide, the Board had to decide whether a bargaining unit consisting only of editorial employees of a magazine (not a newspaper) was appropriate in circumstances where the magazine was not yet organized, and there were no existing bargaining units. The Board ultimately concluded the unit sought was inappropriate, both because it was not satisfied that the editorial department employees had a distinct community of interest, and because of concern for undue fragmentation of the work place. A reading of that decision amply demonstrates that panel's concern for the problems fragmentation might create, and its concern that certifying the first union at TV Guide to represent only the editorial department would generate those problems. The Board wrote as follows:
66... 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....
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 is 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.
- 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, [19841 OLRB Rep. May 755 and Simpson's Limited, [19841 OLBR 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....
85.... 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.
87... .Since the Spectator there has been no general retreat from the concerns expressed in that case. In Peterborough Examiner, [19821 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.
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.
This is not to say that on the agreement of the parties, or in a newspaper, or where there 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 all employees of TV Guide Inc.
What emerges from these excerpts from TV Guide, and from the decision in its entirety, is the concern of the Board that it not find appropriate a bargaining unit which would cause fragmentation problems for the employer. But as that decision also notes, where there has been a prior history of fragmentation (and no demonstrable serious labour relations problems flowing from that fragmentation) the Board might well be prepared to find appropriate a departmental bargaining unit. As TV Guide put it:
85... Moreover, in order to overcome the deficiencies of fragmentation, union 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
87.. 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...
[emphasis added]
88... 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...
[emphasis added]
- This is not to say that on the agreement of the parties, or in a newspaper, or where there 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....
[emphasis added]
It is this situation, envisaged by the panel in TV Guide, which confronts the Board in the instant proceeding: the applicant requests that the Board find appropriate a departmental bargaining unit in circumstances where the parties have lived with a fragmented bargaining structure for over thirty years, and in the absence of any evidence that the bargaining structure has created any serious labour relations problems for the employer.
Finally, by way of sketching the general principles applicable to the determination of the appropriate bargaining unit, in a recent decision, Harlequin Enterprises Limited, [1987] OLRB Rep. Feb. 226, the Board wrote as follows:
The case law recognizes that the Board must determine the appropriate bargaining unit, in accordance with section 6(1) of the Act, in the circumstances of each application but that more than one unit may well be "appropriate" in respect of a single employer: The Board of Education for the City of Toronto, supra; Parnell Foods, supra, The Hospital for Sick Children, supra; National Trust, supra. In considering the various possible bargaining unit configurations, however, the Board must be sensitive to the impact of that determination on the access by employees to self-organization: The Board of Education for the City of Toronto, supra; Tip Top Tailors, supra; Canada Trustco, supra. This sensitivity led the Board to acknowledge the appropriateness of bargaining units consisting of single plants within a municipality to facilitate collective bargaining in the retail industry in particular: K Mart Canada, supra; see also Canada Trustco, supra.
Further, the Board recognizes that a multiplicity of bargaining units generally has adverse consequences for the future bargaining relationship of the union and employer, such as, increasing the likelihood of strikes, increased complexity in administering several collective agreements, the triggering of jurisdictional disputes and employee "enclaves" coextensive with each bargaining unit: Board of Governors of Ryerson, supra; The Globe and Mail Limited, supra. Conversely, broader based units enhance administrative efficiency, employees' lateral mobility and industrial stability and provide a common framework for employment conditions: Insurance Corporation of British Columbia, supra; Ontario Hydro, supra. Where the more comprehensive unit would not operate to seriously impede or delay employee access to collective bargaining, the Board has favoured the broader grouping: Board of Governors of Ryerson, supra; Stratford General Hospital, supra. In short, the Board prefers the most comprehensive unit that is viable for labour relations purposes in the context of a policy of facilitating employee access to collective bargaining: The Corporation of the City of Thunder Bay, supra.
The concept of community of interest was a common sense acknowledgment that it generally made no labour relations sense to "lump together" groups of employes whose interests were so disparate that a bargaining agent could not readily seek to respond to employees' concerns through collective bargaining. The notion of community of interest was itself elaborated and refined into a number of constituent elements, as set out in Usarco, supra, including the nature of the work performed, conditions of employment, skills of employees, administration, geographic circumstances and functional coherence and inter-dependence. In Usarco, the Board also looked to the centralization of managerial authority, the economic factor and source of work. It must be emphasized, though, that community of interest is not an "all or nothing" phenomenon. Rather, all employees of a single employer share a basic community of interest which increases for various sub-groups of those workers. The question is not "is there a community of interest amongst the employees for whom a union seeks certification" but "is there a sufficient community of interest amongst those employees for whom certification is sought that the resulting unit is viable for collective bargaining purposes?". The Board, in effect, assesses whether the bargaining unit sought is viable and viability reflects a sufficient community of interest nexus amongst the employees to sustain collective bargaining. Thus, community of interest is not an independent, mechanical exercise but, rather, goes to the issue of viability: Niagara Regional Health Unit, supra; Bestview Holdings, supra; Ponderosa Steak House, supra. It is the question of viability which is paramount and that may require bargaining units defined in terms of community of interest or some broader reference where sound labour relations policy reasons so require; The Children's Aid Society case, supra.
Turning to the instant facts, the Board starts with consideration of the bargaining unit sought by the applicant to assess whether that configuration is appropriate in that the employees affected have a sufficient community of interest so that collective bargaining is viable and serious labour relations problems are not thereby created for the employer....
Although the approach taken by the Board in these quoted cases has been the same, we find the language used by the Board in Hospital for Sick Children, supra, and adopted by the Board in Harlequin, to be particularly expressive and explanatory of that approach: whether the bargaining unit sought by the applicant "is appropriate in that the employees affected have a sufficient community of interest so that collective bargaining is viable and serious labour relations problems are not thereby created for the employer..."
We are satisfied that there is sufficient community of interest amongst the employees in the computer information services department such that a bargaining unit comprised of those employees would be viable for collective bargaining purposes. Although the skills exercised by computer operators would not lead us to conclude they could form a "craft unit", those skills are still unique to the computer operators. There was no suggestion other employees of the Citizen had the skills or ability to run computer programmes, troubleshoot computer terminals and printers, and so on. The employees in the department are treated as a separate administrative unit by the employer, and hiring, firing, disciplinary matters, lines of reporting, and final wage levels (insofar as the merit component is concerned) are all done on a departmental basis. Although the four data entry people perform most of their work for the advertising department, there is little else to suggest a particular affinity between that department and computer information services. Most of the work emanating from computer information services involves providing service to other departments of the Citizen, and not to the advertising department. The department is a computer servicing department, as its title suggests, servicing the entire operation with respect to its computer terminals and the need for computer services. Interchange of employees between this department and other departments of the Citizen has occurred only rarely and intermittently, and when it has occurred such interchange was not predominantly between advertising and this department.
In our view there is both a sufficient and strong community of interest on which to establish viable collective bargaining between the applicant (on behalf of the employees in this department) and the respondent. The employees in question may well have a community of interest with other groups of employees at the Citizen, and a differently described bargaining unit might in other circumstances be found to be appropriate, but we are satisfied that the employees in the bargaining unit sought exhibit the necessary community of interest.
We turn next to consider whether serious labour relations difficulties will attend a finding that the unit applied for is appropriate. As noted, there is no evidence that the Citizen has suffered labour relations difficulties in dealing with its existing bargaining structure for a period of over thirty years. The potential ills occasioned by a fragmented bargaining structure, as referred to and discussed in the cases cited above, do not appear to have occurred at the Citizen. Indeed, the Citizen itself chose, as was its undeniable right, to deal with a more fragmented bargaining structure when it declined to merge the fleet control agreement into the main agreement with the Guild. In his submissions, counsel for the respondent justifiably noted that parties cannot be automatically bound by positions they have taken in the past; more specifically, counsel submitted that the fact the Citizen had agreed to departmental bargaining units in the past ought not to cause the Board to hold it to that position. While we agree with that submission, and while the respondent is not bound by positions it has taken in the past, it is certainly bound by the reality of the bargaining structure which those positions have created. Whatever the reason for the prior agreements between the parties accepting departmental bargaining units, the fact remains that the Citizen has dealt with seven bargaining units for a significant period of time, with no evidence that any labour relations difficulties, serious or minor, have resulted from this fragmented structure. The Board's general concern with fragmentation must be assessed in light of the lack of evidence or suggestion that fragmented bargaining at the Citizen has presented any serious problems. The excerpts from TV Guide (see paragraph 20 above), are consistent with our view that where actual evidence is available of how a fragmented bargaining structure has operated over a significant period of time, the Board will look to that experience for guidance. A concern in principle with fragmented bargaining must be assessed in light of the pre-existing fragmented bargaining structure.
The Board dealt with a similar situation in The Sault Star, A Division of Southam Inc., [1983] OLRB Rep. June 980. In that certification proceeding there existed four bargaining units at the time of the application. Two groups of employees remained unrepresented, and the parties agreed that the bargaining unit applied for, representing only one of those groups, was appropriate. As the Board stated in paragraph 8 of that decision:
In the instant application, it appears that the majority of the respondent's employees are represented in collective bargaining and that to issue a certificate for the proposed bargaining unit would not cause any of the concerns expressed by the Board in The Spectator, A Division of Southam inc., supra. The alternative would be to appoint a Labour Relations Officer, with the attendant delay and expense to the parties, and with no indication that the appropriate bargaining unit would be any different from the presently proposed bargaining unit. The representations of the parties on the history of collective bargaining at the newspaper do not indicate that the present arrangement of bargaining rights is unworkable or that the addition of collective bargaining with respect to the proposed bargaining unit would change the existing situation.
In the instant case, there is nothing to suggest that further fragmentation, by the creation of eight bargaining units instead of the existing seven, will in any way engender serious labour relations difficulties, be they premised upon fragmentation or other concerns. Indeed, whatever unit the Board finds appropriate would create an eighth bargaining unit. The respondent's alternative submission, that the appropriate unit consist of the computer information services department and the advertising department, could itself lead to nine bargaining units, with the balance of unrepresented employees comprising a ninth bargaining unit (at least) when or if they desire to be represented by a union.
Finally, we do not consider that organizing has reached such a stage at the Citizen that a tag-end unit is necessary. The concept of a tag-end unit was explained by the Board in Resco Chemicals & Colours Ltd., [1986] OLRB Rep. Apr. 544:
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", as the name suggests, is ordinarily the last bargaining unit, encompassing all unrepresented employees and fashioned in terms which will ensure no further fragmentation of the bargaining structure. There is only one "tag-end unit". There is not a 'tag-end" unit corresponding to each existing bargaining unit. By its very terms, a tag-end unit may include a diverse grouping of employees with no strong community of interest with each other. The suggestion that there can be a "tag-end" to each of the generic or existing bargaining units would double the number of potential bargaining units in any enterprise and raise the very spectre of fragmentation that the notion of a "tag-end" was designed to avoid. We repeat: there can be only one tag-end unit.
Given the long history of departmental, multi-unit bargaining, and the remaining categories of unorganized employees, we are not disposed to find that the point has been reached when a tag-end unit is appropriate. The Citizen itself, albeit in its alternative submission, takes the same view.
- For the above noted reasons, we find that a bargaining unit composed solely of employees of the computer information services department of the respondent is appropriate for collective bargaining.