Ontario Labour Relations Board

[1987] OLRB Rep. October 1255

2619-86-M Kimberly Clark of Canada Ltd., Applicant v. Lumber and Sawmill Workers' Union, Local 2693, Respondent

BEFORE: R. A. Furness, Vice-Chair, and Board Members H. Kobryn and D. A. MacDonald.

DECISION OF THE BOARD; October 8, 1987

1. The applicant has requested the Board to determine, pursuant to section 106(2) of the Labour Relations Act, whether certain individuals are guards. In its letter dated December 16, 1986 the applicant did not refer to these individuals by name. In a letter dated January 20, 1987, the respondent stated that the persons alleged by the applicant to be guards had not acted as guards. The respondent adopted the position that these persons have been employed by the appli­cant in various capacities outside the bargaining unit. The respondent also stated that in a recent cutback in operations, the applicant assigned these employees to do work which was normally and incidentally work of the bargaining unit in order to avoid laying them off from work. It was the position of the respondent that the collective agreement between the applicant and the respondent had for a long period of time provided for the positions of watchman; watchman, night firing stoves; and watchman, gateman. The respondent claimed that the work done by the named per­sons, for a long period of time, was work that had been recognized by the applicant as being work of the bargaining unit. The respondent then proceeded to list the names of these persons together with accompanying comments. The list referred to by the respondent contains the following names: W. Pennock, B. Downey, B. Larocque, W. Muir, G. Kald, G. Pengally, B. McCracken, G. Selinger, P. Turcotte, S. Salerno, J. Young and A. Doi. On March 6,1987, a Labour Relations Officer was appointed "to inquire into the duties and responsibilities of the disputed individuals".

2. The Report of the Labour Relations Officer was dated August 21, 1987. The respon­dent made written representations to the Board in a letter dated August 31, 1987, and the appli­cant made written representations to the Board in letters dated September 1 and 3, 1987. Neither the applicant nor the respondent requested a hearing before the Board.

3. The Report recites that "the parties to this application agree that the evidence adduced by Mr. Joe Young shall be representative of himself and all others named in the letter to the Board by the applicant (dated January 5, 1987) [sic] described as security personnel. The parties further agree that the Board, in applying its decision, shall apply it to all the persons in dispute". At the conclusion of the examination each party was asked if it had further witnesses and/or evidence that it wished to present. Each party said that it did not. In its letter dated August 31, 1987, the respon­dent included therein an unsigned one-page document entitled "Evidence of Fred Miron". In its letter dated September 3, 1987, the applicant objected to this document as improper and irrele­vant. The unsigned one-page document has not been taken into account by the Board in reaching its decision in this matter. The Board rejects this document. Such "evidence" ought to have been raised and presented before the Labour Relations Officer during his examination. The respondent had every opportunity to endeavour to introduce such evidence and failed to do so.

4. During the months of September and October of 1986, Mr. Young's occupation was that of a warehouse receiving parts clerk. In this capacity he received all incoming goods, directing charge orders and consigning orders through the warehouse for the Woodlands Division. He also worked as a security guard during that period of time. Mr Young spent about two-thirds of this time period as a security guard and one-third of this time period as a warehouse receiving parts clerk. His main function as a security guard was to keep track of vehicles coming in and out of the applicant's property and to keep a log of these events. In this log he recorded the licence numbers of vehicles, dates and times. He also patrolled the property in order to forestall vandalism, tres­passing and fires. Mr. Young had never previously worked as a security guard and he did not receive any special training. He is not licensed, has not been designated as a special constable under the Police Act and has not received a security clearance code. He reported to Dan Koroscil while working as a security guard. Mr. Koroscil worked out of one office and apparently served in the dual capacity of warehouse supervisor and supervisor of security.

5. During the course of an eight-hour shift, Mr. Young spent the greatest amount of time at the gate monitoring the ingress and egress from the applicant's property. During the patrols the gate was left unattended. The patrols were conducted every thirty minutes and lasted between ten and fifteen minutes. He had in his possession the keys for all the buildings and the gas pumps and such keys were entrusted to the security guard on the gate. Mr. Young was not empowered to carry firearms, did not wear a uniform, distinguishable mark or insignia. He was neither asked nor empowered to investigate fraud or property damage. He was not asked to make either a written or a verbal report at the end of each shift. He received the same pay and benefits whether he worked as a warehouse receiving parts clerk or as a security guard. Mr. Young was initially hired as a clerk and stated in his evidence that he regarded the guard duty as incidental to his main function.

6. Prior to commencing work as a security guard, Mr. Young read and signed a position description for the position of security officer. The position description refers to a wide variety or duties which are clearly more detailed and complex than the duties which Mr. Young actually per­formed. For example, the position description refers to "Carry out and enforce all Company poli­cies and security procedures and/or instructions Initiate necessary disciplinary action commen­surate with Company policy when necessary". Mr. Young stated in his evidence that he did not know about initiating discipline commensurate with company policies. He also stated that it was not part of his duties to discipline employees. While the position description refers to conducting vehicle searches, he has never checked materials in and out of the applicant's property. While he is authorized to do body searches, he has neither conducted body searches, arrested, detained employees nor inspected employees' lunch pails. When he is working in the warehouse he is not a part of management and he uses the same locker when working either as a clerk or as a security guard. Even while working as a security guard, if someone wanted something from the warehouse they would come to Mr. Young and have him get it. Other security guards were obtained from other departments within the applicant. Mr. Young was not involved in the issue of pass cards to employees of the applicant.

7. The position description is cast far more widely with respect to powers and scope of a security officer than the reality of the actual functions performed by Mr. Young. The Board, of course, considers the actual duties performed by a person in dispute rather than the position description which in this application is clearly theoretical in nature.

8. Sections 106(2) and 12 of the Labour Relations Act provide:

106.-(2) If, in the course of bargaining for a collective agreement or during the period of opera­tion of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board thereon is final and conclusive for all purposes.

12. The Board shall not include in a bargaining unit with other employees a person employed as a guard to protect the property of an employer, and no trade union shall be certified as bargaining agent for a bargaining unit of such guards and no employer or employers' organization shall be required to bargain with a trade union on behalf of any person who is a guard if, in either case, the trade union admits to membership or is chartered by, or is affiliated, directly or indi­rectly, with an organization that admits to membership persons other than guards.

The underlying principle behind recognizing the duties of a guard as creating a special category of employment relationship arises from the perceived conflict in loyalties of a guard with respect to his employer and other employees in a bargaining unit. In Wells Fargo Armcar Inc., [1981] OLRB Rep. July 1046 at page 1051, the Board expressed it as follows:

The test is whether duties of the persons who are claimed to be guard for purposes of section 11 raise the real possibility of a conflict of interest with respect to other employees of their employ­er.

In George A. Cram & Sons Ltd., 63 CLLC ¶16,291, the Board recognized the distinction between guards and watchmen who are included in bargaining units.

9. A fair reading of the evidence of Mr. Young establishes that he performs a mixed job of "security guard" and clerk and that he regards his guard duty as incidental to his main function as a clerk. His actual duties have never placed him in the position of a possible conflict of interest with other employees in that his duties have been primarily those of watching, warning and reporting on activity. He has exercised virtually none of the monitorial or regulatory authority, real or potential normally associated with guards over other employees.

10. Having regard to the foregoing facts and principles, the Board finds that, in this appli­cation under section 106(2) of the Labour Relations Act, the persons in dispute were not employed by the applicant as guards.