Energy and Chemical Workers Union v. Mobil Chemical Canada, Ltd., 1987 CanLII 3249

Ontario Labour Relations Board

[1987] OLRB Rep. April 559

2386-86-R Energy and Chemical Workers Union, Applicant v. Mobil Chemical Canada, Ltd., Respondent

BEFORE: Robert D. Howe, Vice-Chair, and Board Members R. J. Gallivan and Janis Sarra.

APPEARANCES: Eric Batten and William Sinclair for the applicant; W. Jason, M. Hanson, Jack Smalley and D. E. Valcamp for the respondent.

DECISION OF ROBERT D. HOWE, VICE-CHAIR, AND BOARD MEMBER R. J. GALLIVAN; March 31, 1987

1. This is an application for certification in which the applicant requested that a pre-hear­ing representation vote be taken pursuant to section 9 of the Labour Relations Act.

2. In an unreported decision dated December 10, 1986 in this matter, another panel of the Board wrote, in part, as follows, in directing that a pre-hearing representation vote be taken:

3. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

4. The parties disagree about the appropriate bargaining unit description. The applicant pro­poses the following unit: "all employees of the respondent in its Plastic Division at 321 Univer­sity Avenue, Belleville, Ontario save and except forepersons, persons above the rank of fore-person, office and sales staff and students employed during the school vacation period". The respondent proposes the following description: "all employees of the respondent in Belleville, Ontario, save and except forepersons, persons above the rank of forepersons, office and sales staff, and students employed during the school vacation period". The respondent's proposed unit would include its employees in the Film Division located at 323 University Avenue, as well as its employees at 321 University. The issue of the appropriate bargaining unit can be addressed by the parties at a hearing held after the pre-hearing representation vote has been held.

5. The Board must then determine the appropriate bargaining unit. If the Board determines that the employees at both locations are included in the unit appropriate for collective bargaining, the applicant would not have been entitled to a pre-hearing representation vote because it does not appear to have the support of not less than thirty-five per cent of those employees. The Board determines that the voting constituency will be:

All employees of the respondent in its Plastic Division at 321 University Avenue, Belleville, Ontario, save and except forepersons, persons above the rank of foreper­son, office and sales staff and students employed during the school vacation period.

It appears to the Board on an examination of the records of the applicant and of the respondent that the applicant satisfies the requirement that not less than thirty-five per cent of the employ­ees of the respondent in the voting constituency were members of the applicant at the time the application was made....

5. The Board hereby directs the taking of a pre-hearing representation vote of the employees in the voting constituency described in paragraph 4 above.

6. The Board further directs that the ballot box be sealed and the votes not counted until further order of the Board.

7. This matter is referred to the Registrar to schedule a date for hearing the parties' submissions on the appropriate bargaining unit.

8. Pursuant to that direction, a pre-hearing representation vote was taken on December 21 and 22, 1986.

9. The matter was subsequently scheduled for hearing before this panel of the Board on January 29, 1987 for the purpose of hearing the parties' submissions on the appropriate bargaining unit. At that hearing, counsel for the respondent stipulated the facts on which his client relies. After considering the matter during a recess granted for that purpose, Eric Batten, the applicant's representative, advised the Board that the applicant did not disagree with any of the facts stipu­lated by counsel for the respondent, but wished to call William Sinclair as a witness to add to those facts and clarify them. He further indicated that he was prepared to have the Board treat as undis­puted facts the facts stipulated by counsel for the respondent, subject to additions and clarifications by Mr. Sinclair, an electrical mechanic who has been in the employ of the respondent for over fif­teen years. (Following Mr. Sinclair's testimony, the respondent was given an opportunity to call reply evidence but declined to do so.) Accordingly, the facts set forth below are based upon the aforementioned stipulated facts, as amplified and clarified by the testimony of Mr. Sinclair.

10. As indicated above, the respondent currently operates two plants in Belleville: its Plastics Division Plant (the "Plastics plant") located at 321 University Avenue, and its Films Division Plant (the "Films plant") located at 323 University Avenue. The Plastics plant has been in opera­tion for over fifteen years. As of the date of the application, there were 53 employees working at that plant, within the ambit of the bargaining unit proposed by the applicant. In addition to that plant, the respondent's Plastics Division has an off-site warehouse facility in Belleville. Two hourly rated employees rotate to that warehouse from the Plastics plant at two-week intervals.

11. When the respondent decided to expand its Belleville operations to include films, it acquired from a competitor a "mothballed" plant at 323 University Avenue, a few hundred metres away from its existing plant. A number of employees from the Plastics plant were transferred to the Films plant when the latter commenced operation in that location about seven years ago. As of the date of this application for certification, there were approximately 76 persons employed at the films plant who would fall within the bargaining unit if it were to include that plant, as proposed l y the respondent.

12. Both plants convert plastic resin pellets into plastic packaging material by means of a process which involves placing the pellets and other additives in a hopper from which they are fed into an extruder. After being melted, the material is forced through a die from which it emerges as a thin plastic film. In the Plastics plant, polyethylene pellets (and other additives) are used prima­rily to produce plastic bags for consumer use, although they are also used to produce industrial stretch film for use in wrapping pallets in industrial settings. In the Films plant, polypropylene pel­1 ~ts (and other additives) are used to produce plastic packaging films for use by other manufactur­ers in packaging their own products.

13. Employees at the two plants perform similar tasks and use similar skills. An identical wage structure applies to employees at both plants, and they all receive the same benefits. Each plant has a mix of seven-day rotating operations and five-day rotating operations.

14. Each plant has its own manager, supervisors, sales force, and shipping and receiving department. However, there is a single personnel department (located at 323 University Avenue) which services both plants. This department includes the personnel manager for both plants, another individual who is the safety and training manager for both plants, and a third person who the wages and benefits clerk for both plants. The personnel department approves all hires, discharges, disciplinary actions, promotions, demotions, and appraisals. Job applicants are screened by the personnel department and successful applicants are placed on a waiting list from which they are assigned to the first available job in either plant. There is one employee handbook for both plants, and the same personnel policies are applied to both of them. The same merit review cycle is used at both plants, and the same forms are used at each plant to administer the respondent's merit review programme, which is also common to both plants.

15. Job openings in each of the two plants are posted in both plants. Where two applicants are equally qualified, company-wide seniority becomes the governing factor in determining who will be promoted. In the last year there have been about four employee transfers between the two plants. The aforementioned initial transfer of employees from the Plastics plant to the Films plant and subsequent transfers through job postings have resulted in a situation in which approximately 30% of the Film plant employees have previously worked in the Plastics plant, and approximately 15% of the Plastics plant employees have previously worked in the Films plant. Maintenance employees from the Plastics plant occasionally go to the Films plant to use various equipment at that plant, including electronics equipment and the larger, better-equipped lathe which is located there. The respondent also has a group of temporary employees who are called in to work from time to time on specific tasks or for specific periods of time. Those employees may be assigned to work in one plant for a specific term or task, and subsequently be assigned to work in the other plant for another specific term or task.

16. Each plant has a driveway and a parking lot. However, there is also a private drive which runs parallel to University Avenue and connects the two driveways. Since each plant has its own lunch room, employees from the two plants do not tend to socialize with one another on a daily basis. However, the two plants have a number of joint social and recreational activities, such as golf and hockey outings, Christmas parties, and summer picnics. The applicant has confined its organizational activities to employees in the Plastics plant, and has not attempted to organize the Films plant.

17. Where an employer carries on business at more than one plant within a municipality, the Board's general practice is to describe separate bargaining units for employees at each plant. However, the Board will depart from that general practice if the operations are integrated and the employees share a sufficient community of interest: Faber-Castell Canada Limited, [1986] OLRB Rep. Apr. 449. In Magna International Inc., [1981] OLRB Rep. Sept. 1260, the then Chairman of the Board wrote, in part, as follows concerning the approach which the Board has generally adopted in such cases:

18. Section 6(1) of The Labour Relations Act charges the Board with the responsibility of deter­mining "the unit of employees that is appropriate for collective bargaining." The Act, however, does not furnish precise criteria of "appropriateness." Consequently, the Board has developed certain broad policy guidelines which attempt to balance the right of self-organization guaran­teed in section 3 of the Act with the requirements of a viable collective bargaining relationship. There is no lack of cases where the Board has had to choose between single plant or location bargaining units and multiplant or location bargaining units in trying to strike this balance. Gen­erally, unions will advocate the former (since, although they may be more difficult to service, they are generally easier to organize) while employers will generally advocate the latter (since they are generally more difficult to organize but also because larger bargaining units present the employer with a more easily administered and potentially less disruptive collective bargaining relationship)....

19. In determining the appropriateness of bargaining units which include employees at more than one location the Board has outlined certain fundamental criteria as in Usarco Ltd., [1967] OLRB Rep. Sept. 526. (For an excellent and recent review of this see K-Mart Canada Ltd., [1981] OLRB Rep. Sept. 1250). The criteria are: (1) community of interest of the employees; (2) centralization of managerial authority; (3) economic factors; and (4) source of work. The first criterion has been subdivided further to include: the nature of work performed, the condi­tions of employment, the skills of employees, administration, geographic circumstances, and functional coherence and interdependence. It has been pointed out on numerous occasions that the factors are obviously interdependent and that all factors do not take on the same weight in any given case. Moreover, they must be considered in light of the purpose of the Act which is to facilitate employee access to collective bargaining. The Board has been careful to avoid an overly technical or rational process to collective bargaining structures in order not to frustrate employee wishes....

See also Murray G. Bulger & Associates Limited, [1985] OLRB Rep. March 458, and F. W. Wool­worth Co. Limited, [1981] OLRB Rep. June 653.

13. The Board has recently summarized its jurisprudence concerning bargaining unit configuration in Harlequin Enterprises Ltd., [1987] OLRB Rep. Feb. 226. In that decision the Board wrote, in part, as follows:

14. 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, [1970] OLRB Rep. July 430; Parnell Foods Limited, [1969] OLRB Rep. Apr. 38; The Hospital for Sick Children, [1985] OLRB Rep. Feb. 266; National Trust, 119861 OLRB Rep. Feb. 250. 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, [1979] OLRB Rep. May 445; Canada Trustco, [1977] OLRB Rep. June 330. 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, [1981] OLRB Rep. Sept. 1250; see also Canada Trustco, supra.

15. 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, [1984] OLRB Rep. Feb. 371; The Globe and Mail Limited, [1976] OLRB Rep. Nov. 662. 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, [1974] 1 Can. LRBR 403; Ontario Hydro, [1980] OLRB Rep. June 882. 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, [1976] OLRB Rep. Sept. 459. 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, [1984] OLRB Rep. May 759.

16. The concept of community of interest was a common sense acknowledgment that it generally made no labour relations sense to "lump together" groups of employees 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 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, [1975] OLRB Rep. Apr. 376; Bestview Holdings, [1983] OLRB Rep. Aug. 1250; Ponderosa Steak House, [1974] OLRB Rep. Nov. 7. 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, [1976] OLRB Rep. Dec. 861.

17. Having regard to the criteria and labour relations policy considerations set forth in that jurisprudence, we have concluded that there is a substantial community of interest among the employees at the aforementioned two plants, and that to separate the employees at the Plastics plant from the employees at the Films plant, as requested by the applicant, would result in undue fragmentation of the respondent's work force, thereby creating a situation which would not be con­ducive to viable collective bargaining. In reaching that conclusion, we have taken into consideration a number of factors. As indicated above, employees at both plants use similar skills to perform similar work in plants only a few hundred metres apart, which both convert plastic resin pellets into plastic packaging material. An identical wage structure applies to employees at both plants and they all receive the same benefits. Other conditions of employment, such as the afore­mentioned mix of seven-day rotating operations and five-day rotating operations, are also common to both plants. Although each plant has its own manager and supervisors, there is a single person­nel department which approves all hires, discharges, disciplinary actions, promotions, demotions, and appraisals. The fact that job openings in each of the two plants are posted in both plants fur­ther evidences their functional coherence and interdependence. The granting of a bargaining unit confined to employees at the Plastics plant, with the obvious potential for a further (production) bargaining unit at the Films plant, could hinder transfers, postings, and promotions between the two locations. It might also give rise to industrial relations problems in the event that the respon­dent wished to continue to permit maintenance employees from the Plastics plant to go to the Films plant to use various equipment at that plant. The use of the aforementioned group of tempo­rary employees to perform specific tasks at the two plants from time to time might also be ham­pered by such a bargaining unit configuration. As indicated above, in exercising its power under section 6(1) of the Act to determine the unit of employees that is appropriate for collective bar­gaining, the Board considers the effect of a broader based unit upon employee access to collective bargaining in the industry to which the application pertains: see, for example, K-Mart Canada Limited, [1981] OLRB Rep. Sept. 1250. In the instant case, the applicant has confined its organiza­tional activities to employees in the Plastics plant, and has not attempted to organize the Films plant. However, having regard to all of the circumstances, including the extent to which the chemi­cal industry has already been organized in Ontario, the Board does not consider that the larger unit proposed by the respondent in the circumstances of this case would significantly impede employee access to collective bargaining. In reaching this conclusion, we have balanced the inter­ests of those employees who have signified their desire to bargain collectively and be represented by the applicant, the substantial community of interest shared by those employees and the employ­ees of the respondent at its Films plant, and the potential for undue fragmentation which would be created by confining the bargaining unit to the Plastics plant. Our balancing of all of those interests in the circumstances of the present case has led us to conclude that the Plastics plant should not comprise a bargaining unit separate from the Films plant.

18. Having had the benefit of reading the carefully reasoned dissent of our colleague, Board Member Sarra, we respectfully disagree with her conclusion that a single-plant bargaining unit is appropriate in the circumstances of this case. Although the employees at the Plastics plant undoubtedly share a community of interest, there is also a substantial community of interest among the employees at the two plants. Moreover, the Board's longstanding aversion to fragmentation reinforces the appropriateness of a broader-based, municipal-wide bargaining unit in the circum­stances of this case. The unit sought by the applicant could give rise to labour relations difficulties not only for the employer (which, as noted in Harlequin, supra, is a relevant consideration), but also for the employees whom the applicant seeks to represent, in that it might well hinder trans­fers, postings, and promotions between the two plants, and give rise to the other potential labour relations problems described above. We would also note that there is no evidence or factual agree­ment before us with respect to the applicant's "organizing pattern"; the parties merely agreed that the applicant has confined its organizational activities to employees in the Plastics plant, and has not attempted to organize the Films plant. As noted above, we have duly considered the potential effect of a broader based unit upon employee access to collective bargaining and have concluded that there is nothing to suggest that the larger unit proposed by the respondent in the circum­stances of this case would significantly impede employee access to collective bargaining.

19. For the foregoing reasons, the Board, in the exercise of its discretion under section 6(1) of the Act, finds that all employees of the respondent in Belleville, Ontario, save and except fore-persons, persons above the rank of foreperson, office and sales staff, and students employed dur­ing the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

20. The Board further finds that less than thirty-five percent of the employees of the res­pondent in the bargaining unit were members of the applicant at the time the application was made. The application is therefore dismissed.

21. The Registrar will destroy the ballots cast in the pre-hearing representation vote taken in this matter following the expiration of thirty days from the date of this decision unless a state­ment requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such thirty-day period.

DECISION OF BOARD MEMBER JANIS SARRA;

1. I do not substantially disagree with the facts as articulated in the majority decision. However, there were additional agreed upon facts to which I would have given greater weight, and based upon the tests developed by the Board in determining bargaining unit description, I would have found in favour of the applicant's proposed bargaining unit.

2. As has often been said by the Board, the description of bargaining units is a discretion­ary decision by the Board and is one that requires an evaluation of the facts and a balancing of interests to ensure the Board arrives at a decision that makes labour relations sense. In K-Mart Canada Limited, [1981] OLRB Rep. Sept. 1250 the Board wrote:

The objectives of the statute relate not only to the promotion of collective bargaining as a means of determining terms and conditions of employment, but also to a recognition of the principle of individual freedom of choice, and to the creation and maintenance of sound and viable bargain­ing structures. In determining the appropriate bargaining unit the Board does not give effect to one of these aims to the exclusion of the others. Rather, the task which falls to the Board in the exercise of its discretion under section 6(1) of the Act requires a balancing of these statutory objectives in the circumstances of each case.

3. In assessing and balancing these objectives, the Board has looked to the criteria articu­lated in Usarco Limited, [1967] OLRB Rep. Sept. 526. This test included assessing:

(1) centralization of managerial authority;

(2) economic factors;

(3) source of work; and

(4) community of interest, determined by the nature of work performed, skills of employees, conditions of employment, administration, geo­graphic circumstances and functional coherence and interdepen­dence.

4. The second "test" that has been developed by the Board is the assessment of the organ­izing pattern of the union in a particular campaign, and acceptance of that pattern where more than one bargaining unit may be appropriate. To quote the Board in K-Mart Canada, supra:

However, the Board recognizes that there may be more than one appropriate unit in any given case. Where there is more than one appropriate unit the Board will attempt to accommodate the desire of the employees on whose behalf the application has been filed to bargain collectively. It follows that in doing so the Board takes into account the pattern of organization.

[emphasis added]

5. Similarly in Alltour Marketing Support Services Ltd., [1982] OLRB Rep. Oct. 1383, the Board in granting a bargaining unit of employees in one branch of an operation at the same loca­tion, adopted and clarified this test. The Board wrote:

On all the facts, there simply is no compelling reason for the Board to depart from the pattern of organizing adopted by the applicant and its supporters in this campaign.

6. The final test developed by the Board over time has been the question of viability of collective bargaining in determining appropriate bargaining units. In Harlequin Enterprises Ltd., [1987] OLRB Rep. Feb. 226, decision dated February 3, 1987, as yet unreported, the Board pro­vided a synthesis of Board jurisprudence and thinking on this question. The Board wrote:

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 more than one unit may well be "appropriate" in respect of a single employer (cases cited). 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 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.

In Harlequin, the Board was faced with a multiplicity of possible bargaining unit descriptions. It chose the applicant's bargaining unit not necessarily because it was the most appropriate or only appropriate bargaining unit but because it met the test, there was a sufficient community of interest amongst those employees for whom certification was sought that the resulting unit was viable for collective bargaining purposes.

7. All of these tests have their application in this case. Turning first to the test articulated in Usarco Limited, supra:

Centralization of Managerial Authority

The respondent submitted that there were separate plant managers at each plant, with separate lines of supervision at each plant. Operating levels of authority did not come together until two levels above, and that was with an individual in the United States. This supports the applicant's submission that the managerial authority, within Canada, is clearly separated.

It was agreed by both parties that the day-to-day operations were separately managed. The employees report to their separate operations and receive day-to-day instruction from their respec­tive supervisors. Although the plant managers occasionally confer, there was no evidence to indi­cate that it was with respect to managerial authority or any centralized form of operation. Employ­ees never report to managers in the other plant, with the exception of a few temporary workers used from time to time. There is no intermingling of supervisors.

Each operation has its own maintenance and production operations, and reporting and accounta­bility for those operations is under the authority of each plant manager respectively. Although there is a common personnel department, the parties agreed that hiring, firing, promotion and discipline were done by personnel in conjunction with the separate managerial staff in each operation. This was reinforced by the evidence given by Mr. William Sinclair, a mechanical/electrical employee of 16 years who testified that employees are disciplined by their own supervisor within he plant.

Vacations and leave are scheduled separately by supervisors within the two plants, and such sched­uling has no impact beyond the individual operation.

8. Economic Factors

The Board has said that economic implications from both the perspective of employee and employer must be taken into consideration. In this case, the economic factors speak to more than one bargaining unit configuration. The parties agreed that the raw materials were different, polyethelene and polypropylene, but that they were both plastic pellets. No evidence was submitted with respect to common or different source for the raw materials.

It was agreed that the two plants had separate markets. The plastics plant produces plastic bags for consumer use. The films plant produces packaging for industrial use. The markets are consumer and industrial respectively. There are separate sales people with separate sales approaches and marketing strategies. There are also separate shipping and receiving operations.

The parties agreed on the earning situation, that the two plants generate separate profit and loss statements and separate production statements to assess production and economic viability, but also agreed that taxes are based upon consolidated earnings.

Jobs are posted simultaneously in both plants, but the policy is to promote internally within each plant first. However, company-wide hiring is relevant if qualifications are equal, and preference is given company-wide over outside applications. The respondent submitted that separation of the plastics plant as a bargaining unit might inhibit employee access to jobs in the other plant, but did not table evidence to explain how it reached that conclusion given that hiring now is done by quali­fication and seniority within each plant first, and company wide second as an existing company practice. The Board has addressed this particular issue in QE Inc., Board File No. 1903-86-R, deci­sion dated August 28, 1986, in which it wrote:

The respondent also argued that warehouse personnel would no longer have the opportunity for promotion to technician, we do not believe that such promotions would automatically or neces­sarily be foreclosed by certifying the proposed unit.

From the perspective of economic implications for employees, there were no submissions on possi­ble downside economic benefits for employees if the Board were to grant the applicant's bargain­ing unit. The applicant in making submissions regarding the democratic right of these employees to union representation did make brief submissions on the possible positive economic benefits to employees.

9. Source of Work

The parties did not make submissions specifically on source of work, but separate markets would seem to indicate a separate demand for and source of production work.

10. Community of Interest

The nature of work, as the majority decision describes, is very similar, as are for the most part the skills required and the conditions of employment. In terms of administration the two operations are separately administered, but with a common personnel department and a common health and safety manager. Prior to 1979 the Belleville operation was restricted to plastics and when Mobil decided to move into films production it purchased the separate, but proximate plant, further evi­dence of administrative viability and independence. Geographically, the plants are separate street addresses, but only "two football fields" apart.

Functionally, the two plants are not interdependent. The permanent regular workforce do not ever report to work at the other plant. The work although similar in nature, is not work that is at all interrelated or interdependent. The products are made for different uses and markets. Mr. Sinclair testified that on occasion, up to four times a year, a maintenance worker will go from the plastics plant to the films plant to use a lathe that the plastics plant does not have, but no work done there by these maintenance workers is related to the films work. There was no evidence that use of such equipment on occasion would be inhibited by the recognition of the plastics plant as a separate bar­gaining unit. There is no interchange or rotation of employees or work.

The workers at each plant have separate lunchrooms and thus do not talk or associate during breaks or lunchtime. There are four joint social events each year, but on a day-to-day and week-to-week basis, there is no intermingling of employees. This is reinforced by the fact that they arrive at, park and leave from their separate plants. Mr. Sinclair testified as an employee of long stand­ing, that the employees while feeling a strong community of interest within the plant, feel that community of interest separate from the film workers.

Counsel for the respondent argued that by allowing the applicant's bargaining unit there would be undue fragmentation, but the company made no specific comment on how this might happen, aside from the promotion issue addressed above.

Based upon these agreed upon facts and applying the principles outlined in Usarco, supra, and other cases it is clear that the applicant can meet this test. There is sufficient separation of manage­rial authority, separate economic factors relating to production and marketing, and functional independence. The employees at the plastics plant do not have a clear community of interest with workers at the films plant as evidenced by infrequent contact and no related work. Further, the employees do have a strong community of interest within the plastics plant, with the same work place, intermingling at lunch and breaks, the interrelationship of plastics production work and common lines of managerial authority under the plastics plant manager. It is clear that the bargain­ing unit applied for meets the tests articulated in Harlequin Enterprises Ltd., supra, and other Board decisions that there is a sufficient community of interest nexus amongst those employees in the plastics plant for which certification is sought to develop and sustain collective bargaining.

11. The Board has recognized bargaining units at one location in a municipality and I would respectfully disagree with the majority at paragraph 14 of their decision, these have been in highly organized sectors as well as the more recent, special recognition the Board has given to the unor­ganized sector. For example in Canadian Hanson and Van Winkle Company, Limited, [1967] OLRB Rep. Nov. 756 the Board wrote:

In the light of the virtual absence of any interchange of production personnel, the lack of a com­munity of interest by reason of the type of work performed by the employees of the plant and the foundry, and the separate and independent nature of the production operations at the two locations, despite common administration, the Board is of the opinion that a unit comprised of the employees of the respondent at its plant alone is appropriate for collective bargaining.

The Board has also recognized single location bargaining units within a municipality where there is a much more extensive degree of integration than in the present application. For example, in F. W. Woolworth Co. Ltd., [1981] OLRB Rep. June 653 the Board decided:

However, we are satisfied that notwithstanding the fact that the respondent's warehouses show a high degree of integration insofar as the handling of merchandise is concerned, the employees at Humberline do constitute a discrete group of employees quite separate and apart from the other warehouse employees, and that the degree of staff interchange involving Humberline is not sufficient to detract from this fact. Further, although the employees at Humberline perform basically the same work as the employees in other warehouses, because of their being grouped together away from the other employees, and working under local supervision, we are of the opinion that the employees at Humberline have a community of interest of their own quite separate and apart from the employees at the other warehouses. In the circumstances then, we are of the view that the employees at Humberline, with the appropriate exclusions, by themselves constitute a unit of employees appropriate for collective bargaining.

[emphasis added]

In that case the Board found the employees at one warehouse constituted a unit of employees appropriate for collective bargaining even though the work in all the warehouses was the same, the merchandise was integrated and the company had one managerial structure. In the case now before the Board, production is not integrated, there are separate processes, separate markets and separate lines of management within the company within Canada. Although each case must be decided on its merits, it is clear that if F. W. Woolworth Co. Ltd. were even the low watermark in terms of a unit appropriate for collective bargaining, that the applicant in the case before us is well above that watermark, applying the tests articulated in Usarco, supra, and Harlequin, supra.

That case and others have application to the present case where there are a number of factors to weigh, but on balance, using the Board's criteria, the unit proposed by the applicant is appro­priate.

12. This leads inevitably to the third test adopted by the Board in decisions such as K-Mart, supra, and Alltour Marketing Support Services Ltd., supra, that given more than one appropriate unit, the Board will recognize the organizing pattern of the applicant.

13. The respondent admitted that it was "an agreed fact that the union attempted to organ­ize only the plastics plant not the films plant." The union only sought to organize the plastics plant, it was a bargaining pattern of choice. As the Board articulated in QE Inc. , sup ra:

We find these principles attractive and adopt the test in Alltour Marketing Support Services Limited of whether there is a compelling reason to depart from the pattern of organizing adopted by the applicant and its supporters. As long as the unit proposed by the applicant is appropriate, on the basis of the principles enunciated in the Board's jurisprudence, the Board is prepared to accept the applicant's proposed unit.

14. The Board in that case goes on to distinguish a situation where the union wants a bar­gaining unit configuration because that is where its support lies from the situation where union sup­port has not yet been determined and where the Board recognizes the organizing pattern of the union and its supporters within a plant. In QE Inc., supra, the Board dealt with two groups of employees all working out of one building, the different areas connected by a large doorway. Giv­ing recognition to the bargaining pattern of the union, the Board decided upon the bargaining unit proposed by the applicant.

15. In Board decisions such as OE Inc., supra, and Alltour Marketing Support Services Ltd., supra, specific reference is made to the pattern of organizing of the applicant and "its supporters in this campaign." These references are clearly to the organizing pattern of the specific applications for certification, not to the general organizing pattern of the union. This makes sense as the test, because a union may have different organizing patterns given the nature of a local com­munity, the geographic region, the nature of production, office or service work etc. and the makeup of the work force. Any organizing campaign must be sensitive to the wishes of the employ­ees seeking certification and the campaign of organizing should reflect those needs and wishes. The tests cited above reflect that sensitivity and recognition of organizing patterns in a particular cam­paign.

Thus, I agree with the majority decision that we received no evidence with respect to the union's organizing pattern in general, but we received specific and agreed to facts that in this campaign the union's organizing pattern (with the support of long-time employees such as Mr. Sinclair who gave evidence) was to organize the plastics plant only. In my opinion the applicant has met the test artic­ulated by the Board in OE Inc., supra, that where there is no compelling reason to depart from the pattern of organizing adopted by the applicant and its supporters, "As long as the unit proposed by the applicant is appropriate on the basis of the principles enunciated in the Board's jurisprudence, the Board is prepared to accept the applicant's proposed unit." [emphasis added]

16. The applicant union, the Energy and Chemical workers, has met the tests required by the Board in determining whether the bargaining unit sought is appropriate for collective bargain­ing. The applicant has met the principles established in the Board's long-standing jurisprudence, has established that it is a unit with a sufficient community of interest nexus to collectively bargain, that it is an appropriate unit for collective bargaining and that its organizing pattern, specifically to organize the plastics plant only, has been recognized as an agreed upon fact.

17. For all these reasons I would have found the bargaining unit to be that requested by the applicant and I would have directed the ballots be counted.