[1987] OLRB Rep. June 931
2701-85-R Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union No. 647, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant v. VS Services Ltd., Respondent
BEFORE: Robert D. Howe, Vice-Chair, and Board Members R. W. Pirrie and E. G. Theobald.
APPEA.RANCES: Frank Luce, Milt Aylwin and Pat Powers for the applicant; Wallace Kenny, R. Ellis and C. Kelman for the respondent.
DECISION OF THE BOARD; June 24, 1987
In a decision dated March 3, 1986 regarding this application for certification, the Board, differently constituted, wrote as follows:
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 parties were in partial agreement with respect to the bargaining unit description. The extent of that agreement is as follows:
all employees of the respondent ... save and except supervisors, persons above the rank of supervisor, clerical, office and sales staff and those employees in any bargaining unit for which a trade union held bargaining rights as of February 4, 1986.
The respondent further wished the exclusion of "persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period". The applicant indicated that, if a record check confirmed that there were such employees, the applicant had no objection to that exclusion sought by the respondent.
The parties were in dispute as to the appropriate geographic scope of the bargaining unit. That is, the applicant sought a bargaining unit described by reference to the Municipality (Chatham, Ontario) while the respondent asserted that the description should be limited to the street address (566 Riverview Drive, Chatham, Ontario).
Accordingly, the Board hereby appoints a Board Officer to inquire into and report back to the Board with respect to the appropriateness of the bargaining unit, given the applicant's and the respondent's positions and, further, on the appropriateness of the reference in the bargaining unit description sought by the respondent, to employees in its "industrial dining division", should the applicant's position with respect to the geographic scope be accepted.
The Board notes as well that the respondent reserved its right to raise an argument with respect to an asserted "build up" of the respondent's operations in and about Chatham, also should the applicant's position with respect to the geographic scope of the bargaining unit be accepted.
This matter is referred to the Registrar. This panel is not seized.
Pursuant to that appointment, Board Officer M. Zucker convened several meetings of the parties between May 9 and November 23, 1986, and subsequently prepared a Report dated February 20, 1987, which was forwarded to the parties in accordance with the Board's Rules of Procedure. Counsel for each of the parties requested that a hearing be held to afford them an opportunity to make oral representations concerning the conclusions the Board should reach in view of the Report. Accordingly, the matter was listed for hearing before this panel of the Board on April 16, 1987.
The Report contains the following information concerning agreements reached during the examination process:
As a result of discussions between the Board Officer and the parties, the Applicant agreed with the Respondent's position that both Joanne Toyne and Joyce Hall be treated as "part-timers" for purposes of this application. Accordingly, the parties agree that a full time bargaining unit description contain an exclusion for "persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period." The Applicant requests that the Board apply its usual practice to the issuance of a part-time unit.
The Applicant's position with respect to the appropriate geographic scope is that the bargaining unit be described by reference to the Municipality (Chatham, Ontario). It is the Respondent's position, however, that the unit be described by reference to the street address (566 Riverview Drive, Chatham) or, alternatively, by reference to the client's name (Eaton-Yale). In the event the Respondent's position prevails, the Applicant would prefer a reference to the client's name.
Should the Applicant's position with respect to the geographic scope succeed, the parties are agreed that the bargaining unit description include a reference to its employees in its "industrial dining division".
The Report also contains the following Agreed Statement of Fact:
The Respondent, VS Services Ltd. is a diversified service Company, providing food services, managerial expertise, health care services and housekeeping services to a widely divergent group of clientele in various sectors.
The Company has two main divisions, Versa Food Services and Versa Services. Versa Food Services (VFS) is further segmented into separate groups under the control of different persons. These groups are known as: Coffee Systems; Industrial Dining; Business Dining; Vending; and Restaurant & Leisure. Versa Services is also divided into groups to deal separately with the laundry, education, and health care areas.
In the City of Chatham, only the Vending and Industrial Dining groups of VFS have non-managerial employees. The Vending group operates out of the Company premises on Richmond Street in Chatham, where the District Supervisor of the Industrial Dining group also has her office.
The only contract in operation in Chatham held by the Industrial Dining group, at the time of the Application for Certification was a contract to supply cafeteria services at Eaton Yale, 566 Riverview Drive.
Since the date of Application, the Respondent has commenced performing another contract in Chatham to supply cafeteria services. This new contract is with Navistar International at its plant in Chatham. This contract commenced April 7 and staff were hired April 22nd. This contract was signed January 3, 1986.
An Application for Certification specific to the Navistar location was filed by the Retail, Wholesale and Department Store Union on April 29, 1986 (Board File No. 0287-86-R). The Applicant, Teamsters Local Union No. 647 intervened in the said Navistar Application. The Applicant filed a subsequent Application with respect to the Navistar location on June 6, 1986 (Board File No. 0684-86-R).
The terms and conditions of employment at Eaton Yale and at Navistar as of June 5, 1986 differ. [Examples are attached to the Agreed Statement of Fact.]
Each contract is a separate profit centre managed by a "component manager". The component managers at Eaton Yale and Navistar both report to the District Supervisor.
There is no interchange of employees between the Navistar and Eaton Yale operations.
The type of employees required to supply the service may vary from one client to the next depending on the type of service required. Some require service such as a sous chef, butcher, salad preparation, porters, dishwashers, waitress/waiters while others require only basic cafeteria operations. At Eaton Yale there are currently three classifications: General worker/cashier; general worker/cook lead hand; general worker/cook. At Navistar there are currently two classification [sic]: general worker; general worker/cook. The component manager occasionally assists with the cash and regular [sicl assists with the cooking at these two locations.
The respondent must bid new contracts in competition with companies such as T.R.S. Food Services Limited; Parnell Foods; G.B. Catering; Eastwood Food Services; Domco; Dalmar; Saga; Beaver Food Services; Rill Foods. Each bid must take into account the various service needs of the establishment in question.
VS. Services has many collective agreements in Ontario with a variety of unions. All of its collective agreements have scope clauses which are limited to the specific clients or location to which the contracts apply, with the exception of the Company's Vending operations which have scope clauses on a municipal basis. Oshawa's contract is on a municipal basis and does not specifically refer to "vending" although the company operates strictly a vending operation under that contract.
The respondent's vending operations, which provide vending machines and service to various clients, operate out of one central location in a municipality. The employees employed at that location have routes which take them to various client locations to do their work.
The employees of the clients at Navistar and Eaton Yale who use the Company's services are covered by separate collective agreements with the Canadian Auto Workers Union.
The applicant Teamsters Local Union No. 647 is the bargaining agent for the Company vending group employees in Chatham. Members of the vending bargaining unit service both the Eaton Yale and Navistar locations, in addition to the other locations. The vending operation supplies change to the Industrial dining foor [sic] services operation at Eaton-Yale. The change is delivered by a vending route person to the component manager or his designate on a daily basis. Change at Navistar is obtained by the component manager through a commercial bank. The employees at Navistar and Eaton Yale provide change to customers if required for use in the vending machines. A vending rectification employee repairs vending machinery on site at these two locations when there is a break down including the all purpose merchandisers which are vending machines stocked by the cafeteria; the profits from the all purpose merchandisers accrue to the cafeteria.
The municipality of Chatham has a population of about 40,000. The Eaton Yale and Navistar plants are located within one mile of each other.
A sheet appended to that Agreed Statement of Fact contains the following information concerning some of the differences in terms and conditions of employment of the respondent's employees at Eaton Yale and Navistar:
NAVISTAR EATON YALE
Service Requirements - maintain customer service - not done area i.e. cleaning - cafeteria & mobile cafeteria - cafeteria only (Mobile Cart)
Vacations - 2 week summer - variable shut down
Holidays - vary in two locations to reflect holidays given by client
Hours of Work - 5:30 a.m. to 3:30 p.m. - 24 hour operation employees working - Monday to Friday - 7 days a week
Hours for Customer Service - 6:00 a.m. - 6:50 a.m. - 22 hours a day - 9:00 a.m. - 9:15 a.m. - 11:55 a.m. - 12:40 p.m. - 2:15p.m. - 2:30p.m.
Shift Assignment - fixed hours daily - varying hours for staff and shifts
- Once they have completed their training period, component managers are responsible for hiring, scheduling, granting time off, requiring employees to work overtime, and disciplining employees, although they generally consult with their District Supervisor before discharging an employee. Employees receive the same benefits at each location, but the rates of pay vary from location to location depending upon the classifications of the employees and the profitability of the contract. Each industrial dining location is treated as a separate business unit, and there is no interaction between such locations. Karla Kelman, the General Manager of the respondent's Industrial Dining and Vending groups, indicated that after identifying a client's needs, the respondent develops a business plan for that particular client. In describing the varying needs of clients, she stated:
He may require anything from a very limited one meal service to a twenty-four hour service, including executive dining room facilities. Could be waitress service in his facility, could be restaurant style, could be cafeteria style, could be snack bar style, and with menus and appropriate services to meet those needs.
It was Ms. Kelman's uncontradicted evidence that the employees' conditions of employment are highly dependent upon the client's needs (because the respondent tailors its service to meet those needs). Hours of work, classifications, job responsibilities, wage rates, vacations, ratios of full-time to part-time employees, holidays, and other terms and conditions of employment can vary significantly from location to location, depending on the contract between the client and the respondent. It was also Ms. Kelman's uncontradicted evidence that if the respondent were to sign a municipal-wide collective agreement containing terms which might be appropriate for a single location, such as a guaranteed normal work week of forty hours, a guarantee of no split-shifts, specific shift premiums, a provision requiring overtime pay for all Saturday hours, or a specific list of holidays, it could have an adverse impact on the respondent's ability to bid on new business in the municipality.
It is evident from the exhibits entered during the examination process (and appended to the Report) that there has developed in the Ontario non-vending food service industry a wide-spread practice of parties agreeing to bargaining units which are confined to an employer's opera-ions in respect of a particular client (also referred to in this decision as a "client-specific" bargainng unit). It is also clear from those exhibits that the Board has accepted such agreements in determining bargaining unit configurations in that industry. Exhibit "A" indicates that the respondent I [as 41 collective agreements in its non-vending food service operations with scope clauses confined to a single client. Exhibit "D" lists numerous client-specific certificates which have been granted by he Board in respect of employees of other employers in the non-vending food service industry, including a number of the respondent's competitors.
In support of the respondent's position that the bargaining unit in the instant case should be described by reference to Eaton Yale's street address or by reference to that particular client, counsel for the respondent referred the Board to an unreported decision dated February 15, 1977 in VS Services Ltd. (Board File No. 1801-76-R). In that case, the applicant trade union sought municipal-wide bargaining unit (for the City of Guelph), where the respondent employer had only one food service operation in that municipality. After noting that in the past it had "generally defined such bargaining units with respect to where the food service [was] being performed and not with respect to a municipality", the Board denied the applicant's request because it was not persuaded that the appropriate bargaining unit ought to be defined with respect to the City of Guelph.
The only instance that has been drawn to our attention in which the Board has granted a municipal-wide certificate in the context of a non-vending food service operation is T.R.S. Food Services Limited, [1980] OLRB Rep. Apr. 542. As in the present proceedings, the applicant in that case was Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union I" o. 647, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen arid Helpers of America (also referred to in the present decision as "Local 647"). In that case, the only food service operation carried on by T.R.S. Food Services Limited ("T.R.S.") in St. Catharines was at General Motors. In rejecting the employer's request that the bargaining unit be described by reference to that particular client, the majority concluded that "where the employer has but one location in the municipality, the geographic scope of the bargaining unit should be defined by reference to the municipality in which the [employer] is located". In reaching that conclusion, the majority expressed the view that the employer's proposal would unnecessarily strain U e stability of the bargaining rights. However, they also noted that "in circumstances where an employer has two or more locations in a municipality, additional considerations relating to the actual community of interest shared between the particular locations may become relevant."
Although the respondent in the instant case did not have two (or more) locations in Chatham at the time of the application, it had signed a second contract a month before the application. Pursuant to that contract, the respondent commenced operation at a second location approximately two months after Local 647 applied for certification. There is nothing in the facts before us to suggest that the manner in which that second location was brought into operation (or operated thereafter) was in any way influenced by the fact that this application had been filed by Local 647. Indeed, a number of the details concerning the manner in which that second location was to be operated (such as the service requirements and hours for customer service set forth in paragraph 5 of this decision) are specified in the contract which, as noted above, was in existence at the time this application was filed with the Board. The evidence adduced before the Board Officer (without objection by the applicant) concerning the manner in which that location operates is confirmatory of those contractual provisions, and of the more generalised evidence of Ms. Kelman respecting the way in which the respondent's industrial dining division carries on business. It is clear from the totality of the evidence that the employees at those two locations do not share a sufficient community of interest to warrant their inclusion in a single bargaining unit. (See, generally, Usarco Limited, [1967] OLRB Rep. Sept. 526; K-Mart Canada Limited, [1981] OLRB Rep. Sept. 1250; Magna International Inc., [1981] OLRB Rep. Sept. 1260; and National Trust, [1986] OLRB Rep. Feb. 250.) Although some of the work at the two locations is similar and requires the exercise of similar skills, a number of the conditions of employment differ and there is no functional coherence or interdependence between the two locations. Each location has its own component manager who is responsible for hiring, scheduling, granting time off, requiring employees to work overtime, and disciplining employees (subject to consultation with the District Supervisor regarding discharges). Although Eaton Yale and Navistar are located within a mile of each other, there is no interchange of employees or other interaction between the two locations. Moreover, economic factors and the lack of a common source of work also favour separate bargaining units for those two locations.
It may also be noted that the evidence before us indicates that after being granted a municipal-wide bargaining unit by the Board in the T. R. S. casey Local 647 entered into a collective agreement that was confined to employees of T.R.S. working at General Motors in St. Catharines. Thus, notwithstanding the Board's decision that a municipal bargaining unit was appropriate, Local 647 subsequently agreed to conform with the prevailing pattern in the industry by entering into a collective agreement with a client-specific scope clause.
In the instant case, the evidence establishes that client-specific bargaining units have become the norm in this industry. Moreover, Ms. Kelman's evidence concerning the wide variance in the respondent's industrial dining division operations, and in the terms and conditions of employment which reflect the varied needs of individual clients (confirmed, in the instant case, by the evidence adduced before the Board Officer with respect to the respondent's Eaton Yale and Navistar locations), demonstrates that this norm reflects the labour relations and competitive realities of the industry. As submitted by counsel for the respondent, the inclusion of such disparate operations in a single bargaining unit would tend to place an undue strain on the collective bargaining process by creating a situation in which the Union would likely attempt to enshrine in a collective agreement specific terms and conditions of employment suitable to a particular location, while the employer would likely attempt to negotiate highly general provisions reflecting the "lowest common denominator" among the wide variety of potential services which it could be called upon to provide for future (and existing) clients.
Counsel for the applicant submitted that the Board should reject the client-specific unit proposed by the respondent because such units have resulted in "systemic discrimination" in the industry. However, it is unnecessary for us to comment on whether or not the existence of such discrimination would be a pertinent consideration in determining an appropriate bargaining unit as the evidence before us in these proceedings falls far short of supporting a finding of systemic discrimination.
For the foregoing reasons, the Board finds that the following constitute units of employees of the respondent appropriate for collective bargaining in the circumstances of this case:
all employees of the respondent at Eaton Yale in Chatham, Ontario, save and except supervisors, persons above the rank of supervisor, clerical, office and sales staff, persons regularly employed for not more than twenty-four hours per week, students employed during the school vacation period, and those employees in any bargaining unit for which a trade union held bargaining rights as of February 4, 1986 ("bargaining unit #1");
all employees of the respondent at Eaton Yale in Chatham, Ontario, regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, save and except supervisors, persons above the rank of supervisor, clerical, office and sales staff, and those employees in any bargaining unit for which a trade union held bargaining rights as of February 4, 1986 ("bargaining unit #2").
The Board is satisfied on the basis of all the evidence before it that more than fifty-five percent of the employees of the respondent in each of the bargaining units were members of the applicant on February 14, 1986, 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 Act.
Certificates will issue to the applicant in respect of bargaining units #1 and #2.