[1987] OLRB Rep. November 1395
1243-87-R United Food and Commercial Workers International Union Local 633, Applicant v. H. W. Gluck Limited (carrying on business as Keswick I.G.A.), Respondent v. Group of Employees, Objectors
BEFORE: N. B. Satterfield, Vice Chair, and Board Members W. H. Wightman and J. Sarra.
DECISION OF THE BOARD; November 2, 1987
- The Board issued a decision in this application for certification on September 2, 1987, finding a unit of the respondent's employees described as follows to be a unit of employees appropriate for collective bargaining:
All meat department employees of the respondent in Keswick, save and except supervisors, persons above the rank of supervisor, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.
The Board was unable to proceed further at the time because the parties were in dispute about whether full-time employees in the deli section of the respondent's store should be included in the unit. Subsequently, on October 26, 1987, the Board issued a further decision certifying the applicant as exclusive bargaining agent for the employees in the unit and declared full-time deli section employees to be included in it. The Board's reasons for its decisions are set out herein.
When the parties came before the Board, they were agreed that the unit should be described either as set out above or in terms which would include all full-time employees of the respondent in Keswick, but they were not agreed on which unit was appropriate. The unit described above is the one which the applicant was seeking, whereas the respondent contended that the appropriate unit was one comprised of all full-time employees, including the meat department employees. Accordingly, the Board heard their representations on that issue.
Respondent counsel informed the Board that the respondent operates a supermarket in Keswick, Ontario, comprised of six or seven departments in addition to it's meat department. Some of these departments are: deli, produce, groceries, dairy and bakery. The heads of each department in the store report to Mr. H. W. Gluck, the owner of the store, or in his absence, to Betty Rowland, his assistant. The wages of all employees are centrally administered, employees have the same options with respect to employee benefits and they are subject to the same working conditions. When employees have problems respecting their working conditions, they take the problems to Gluck or Rowland for resolution.
Respondent counsel contends that, were the Board to allow the applicant to carve out a small unit of meat department employees from such an interdependent, cohesive and integrated group of employees, it would do violence to the Board's policy of avoiding undue fragmentation of bargaining units. Should the applicant be certified for a unit of full-time meat department employees, it would mean that only a few of the store employees would be unionized, with the result that they would be segregated from the remainder and the majority of the store employees. That circumstance, it is argued, would impact adversely on the setting of rates of pay and benefits as between the meat department employees and employees of other departments. If other employees eventually became unionized, the presence of several bargaining units and separate bargaining would increase the likelihood of strikes with the attendant impact on the public who patronize the stores.
While respondent counsel acknowledges that the applicant has a history of bargaining for meat department employees in supermarkets, he submits that the applicant's history should not be the sole determining factor for deciding the issue of the appropriate unit. Counsel argues that the Board has an obligation under section 6 of the Act to consider in each case what unit of employees is appropriate for collective bargaining on the facts before the Board, and to do so in accordance with its own policies and guidelines, particularly the policy of avoiding undue fragmentation, set out in such Board decisions as Harlequin Enterprises Limited, [1987] OLRB Rep. Feb. 226, Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250 and The Hospital for Sick Children, [1985] OLRB Rep. Feb. 266. Counsel submits that those policies and guidelines applied to the circumstances of the respondent's retail food store operation, particularly to the community of interest shared between employees of the various store departments, would establish a unit of all full-time employees as the appropriate unit. Counsel also relied on the Board's decision in Dollo Bros. Foodmarket Ltd., [1986] OLRB Rep. Jan. 82 as an example of the Board having found the meat department of a retail food store not to be an appropriate unit.
The United Food and Commercial Workers International Union Local 633 ("Local 633"), as long as twenty-five years ago when it was known as Local 633 of the Amalgamated Meat Cutters and Butcher Workmen of North America, had an established history before this Board of representing employees in meat departments of retail food stores. See the Board's decision in London Food City [1962] OLRB Rep. Aug. 151. The continuity of that history was recognized by the Board in its decision in Huntsville IGA, [1982] OLRB Rep. Nov. 1637, when the Board certified Local 633 for a unit of all full-time meat department employees of Huntsville IGA on the strength of its history of representing full-time meat department employees in retail food stores. At paragraph 7, before making its finding, the Board said:
It is readily apparent to the Board that Local 633 of the United Food and Commercial Workers International Union has a consistent and uninterrupted history of bargaining for full-time meat department employees and that Local 175 of the same union has a consistent and uninterrupted history of bargaining for the other employees, that is, full-time non-meat department employees, part-time employees including part-time meat department employees and students employed during the school vacation period.
The significance of that history was recognized by the Board in its decision in Dollo Bros., supra, on which the respondent herein has relied to show that the Board will not always find a unit of full-time meat department employees to be appropriate for collective bargaining. The applicant in that case was the United Food and Commercial Workers International Union ("UFCW"), the international union which holds Local 633's charter. The UFCW had applied for a unit of all of the employer's full-time employees. The employer took the position that the meat department employees should be in a separate unit. At paragraph 6 the Board said:
Meat department employees may form an appropriate bargaining unit when the conditions set forth in section 6(3) of the Act are satisfied. From time to time a local trade union of a trade union which was a predecessor of the applicant has applied for and been granted appropriate bargaining units of meat department employees. On the other hand, another local trade union which was also a predecessor of the applicant has been granted appropriate units of all employees in a retail store or stores, including meat department employees. For a general discussion of this history see Ontario Food Division (Food City) of the Oshawa Group Limited, [1978] OLRB Rep. Sept. 826 and Huntsville IGA, [1982] OLRB Rep. Nov. 1637. The provisions of section 6(3) provide that under the conditions set forth therein craft bargaining units are deemed to be appropriate for collective bargaining. The provisions of section 6(3) cut across the boundaries of community of interest with other groups of employees where the conditions set forth in section 6(3) are shown to exist. However, the converse that craft units are always appropriate bargaining units for collective bargaining is not true. The applicant clearly has an option on how to frame its application. The applicant has chosen to seek certification in terms of one bargaining unit.
[emphasis added]
The reference to "...a local trade union of a trade union which was a predecessor of the applicant..." is clearly a reference to Local 633. The reference to "..., another local trade union which was also a predecessor of the applicant..." is a reference to Local 175 of the UFCW referred to in Huntsville IGA, supra.
The representations of counsel for Local 633 are that, in retail food stores where both locals have bargaining rights, Local 175 represents employees other than full-time meat department employees. Those bargaining rights could be in respect of a unit of all employees of a retail food store, excluding full-time meat department employees, or a separate unit of all full-time employees, excluding full-time meat department employees and/or a separate unit of all part-time employees and students. Those representations find support in the Board's decisions. In this respect see Huntsville IGA, supra, and the decisions referred to therein at paragraph 6.
It may be seen from the Board's findings in the Huntsville IGA and Dollo Bros. decisions that, when Local 633 applies for a unit of all full-time meat department employees in a retail food store, the Board has found such a unit to be one which is appropriate for collective bargaining within the meaning of Section 6(3) of the Act, even though the unit is not described in typical craft union terms. In other words, the Board has found full-time meat department employees in a retail food store, when represented by Local 633, to be a group of employees who are distinguishable from other employees because they exercise technical skills or are members of a craft and, in the words of section 6(3), ". . .commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or crafts...". Where the Board finds those conditions, it is mandated by section 6(3) of the Act to deem the group of employees to be a unit appropriate for collective bargaining and, as the Board stated in Dollo Bros., supra, those provisions "... cut across the boundaries of community of interest with other groups of employees..."
In the instant application, the bargaining unit sought by Local 633 is the same unit which, on the history of the cases above referred, the Board previously has found to satisfy the conditions of section 6(3) of the Act when the employees are represented by Local 633. The unit is one deemed by section 6(3) to be appropriate for collective bargaining. It was in these circumstances and for these reasons that the Board made its finding in paragraph 5 of its September 2, 1987, decision that a unit comprised of the respondents full-time meat department employees was a unit appropriate for collective bargaining.
The parties were also in dispute about whether the meat department unit included employees of the deli section of the respondent's store. Local 633 took the position that it did and the respondent took the contrary position. The issue was unresolved when the Board adjourned the hearing and a Board officer had been authorized to inquire into and report to the Board on certain matters relating to the issue. In the interim, Local 175 has applied for certification respecting other employees of the store. There was an issue in that application whether employees of the deli section were to be included in the unit which that applicant was seeking. The Board has been advised by the solicitors for the respondent herein that the respondent was withdrawing its objection to full-time deli section employees being included in the meat department unit.
Having regard to the agreement of the parties and to all of the foregoing, for purposes of clarity, the Board declares that deli section employees regularly employed for twenty-four (24) hours per week are included in the bargaining unit described at paragraph 1 of this decision.
Having further regard to the agreement of the parties, 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 August 18, 1987, 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.
Three statements in opposition to the application were filed with the Board. Two of them, each bearing a single signature, were not filed within the time fixed in accordance with the Labour Relations Act and the Rules of Procedure under the Act. The third petition contained the signatures of two persons who were not employees in the bargaining unit described above. In these circumstances, the Board has given no weight to the three petitions in assessing the true wishes of the employees in the bargaining unit.
It was for these reasons and in these circumstances that the Board issued a certificate to the applicant.