Union of Bank Employee (Ontario) Local 2104 v. National Trust, 1988 CanLII 3626

[1988] OLRB Rep. February 168

0414-85-R Union of Bank Employee (Ontario) Local 2104, Canadian Labour Con­gress, Applicant v. National Trust, Respondent v. Group of Employees, Objec­tors

BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members D. A. MacDonald and R. R. Montague.

APPEARANCES: C. M. Mitchell and D. Devine for the applicant; Brian Burkett, Mona Anis, Sharon Scott and Clare Fitzgerald for the respondent; Jenny Kokkas, Lillian Byrne, Ann Lomack, Cindy Medeiros, Cindy Dobbin and Dorothy Montague for the objectors.

DECISION OF R. O. MACDOWELL, ALTERNATE CHAIR AND BOARD MEMBER D. A. MACDONALD; February 2, 1988

I

1. This is an application for certification. In order to appreciate the question currently before the Board, it is necessary to sketch in some background. The provisions of the Act to which reference will be made are as follows:

6.-(1) Subject to subsection (2), upon an application for certification, the Board shall determine the unit of employees that is appropriate for collective bargaining, but in every case the unit shall consist of more than one employee and the Board may, before determining the unit, con­duct a vote of any of the employees of the employer for the purpose of ascertaining the wishes of the employees as to the appropriateness of the unit.

(2) Where, upon an application for certification, the Board is satisfied that any dispute as to the composition of the bargaining unit cannot affect the trade union's right to certification, the Board may certify the trade union as the bargaining agent pending the final resolution of the composition of the bargaining unit.

7.-(1) Upon an application for certifi cation, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at such time as is determined under clause 103(2)(j).

(2) If the Board is satisfied that not less than 45 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall, and if the Board is satisfied that more than 55 per cent of such employees are members of the trade union, the Board may direct that a representation vote be taken.

(3) If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade union, and in other cases, if the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit.

2. The respondent employer is a financial institution with 37 branches in Metropolitan Toronto. Fourteen branches are grouped in its "Metro East" region, 17 branches are grouped in its "Metro West" region, and 6 branches are included in its "Metro Central" region. The respondent employs several hundred employees distributed somewhat unevenly among its branches of various sizes.

3. On May 17, 1985, the union applied for certification as bargaining agent for a unit of employees working in 7 of the employer's branches: 6 within its "Metro East" region, and one in the "Metro West" region. The application in respect of an eighth branch was withdrawn. It was agreed by all parties that single-branch units of employees would be appropriate for collective bar­gaining. This has, by now, become the established pattern for organizing these financial institu­tions, and the Board has previously found single-branch units to be appropriate. It was also agreed that some broader-based bargaining unit might also be appropriate. However, the parties dis­agreed about how a more broadly-based bargaining unit should be defined.

4. The union took the position that a unit covering the employees of all 7 branches would also be appropriate and urged the Board not to distinguish between full-time and part-time work­ers as it often does. In the union's submission all of the full time and part time employees at these seven branches could be comfortably included in one large unit. The employer was content with single-branch bargaining units, but argued that if the Board were disposed to consider some broader bargaining unit configuration, such unit should include all branches within a regional sub­division, or alternatively, all 37 branches in Metropolitan Toronto. The employer also urged the Board to maintain the traditional distinction between full-time and part-time workers because, it said, part-time workers had a separate community of interest which warranted their separation into separate bargaining units either within each branch, or in a multi-branch unit.

5. The shape of the bargaining unit was only one of many issues in dispute. We shall not review those issues here. It suffices to say that among them was the union's claim that quite a num­ber of individuals in various job categories should be excluded from its proposed unit, either because they exercised managerial functions, or because they did not share a community of interest with the target group that the union sought to represent. Some of these challenges were abandoned along the way. Others were the subject of litigation and eventual determinations by the Board (dif­ferently constituted). What is clear, though, is that at the earlier stages of this proceeding, it was very difficult to discern the precise contours or composition of the bargaining unit, or the degree of membership support enjoyed by the union within any unit which might be found to be appropriate.

6. The Board considered the bargaining unit question, in general terms, in a decision released on February 28, 1986. The Board acknowledged that the employees in any proposed bar­gaining unit should have a "community of interest" because it would make no labour relations sense to "lump together" groups of employees whose interests were so disparate that they could not easily bargain together. On the other hand, the panel cited with approval the decision in Canada Trustco Mortgage Company ,[1977] OLRB Rep. June 330 which contains the following observations:

7. In the instant case, the standardization impressed on all employment relations by the flow­charts and policies of the employer does give rise to a community of interest among all employ­ees in the branches of the south-western Ontario region. But that does not of itself dispose of the question of what is the appropriate bargaining unit. As the Board said in Ponderosa [[1987] OLRB Rep. Nov. 7]:

It should be observed, however, that the Act does not create any presumption in favour of the most comprehensive unit of employees, even though these employees may have a community of interest. Section 1(1)(b) of the Act states that" "'bargain­ing unit' means a unit of employees appropriate for collective bargaining, whether it is an employer unit of a plant unit or a subdivision of either of them." This provision makes it quite clear that the determination of appropriateness does not always lead to the conclusion that the most comprehensive unit is also the most appropriate unit. Consideration of the wishes of employees and of industrial relations policy, may very well dictate that a smaller bargaining unit s the appropriate unit.

20. It is also possible, of course, that different communities of interest will exist at one and the same time among several different groupings of employees. Obviously certain common employ­ment interests exist among all employees of the respondent in Canada; the portion of those employees who are within Ontario have a further common interest; and the group of employees working under the direction of the London regional office have employment interests in com­mon that they do not share with their fellow employees elsewhere in Ontario or in Canada at large.

Community of interest was an important consideration, but it was not the only one, and had to be weighed together with other concerns such as the general desirability of broader-based bargaining units and a recognition that more comprehensive units should not be embraced where the effect would be to impede the establishment of any collective bargaining at all. The Board further recog­nized that, based on experience, collective bargaining could be viable and successful in a variety of formats and, adopted these comments from Hospital for Sick Children, [1985] OLRB Rep. Feb. 266:

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 simply 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.

7. In the result, the panel was persuaded that although single-branch units were appropri­ate, some broader bargaining unit configuration might also be appropriate and that~ in general, such extended area bargaining structures should be encouraged unless there were other counter­vailing collective bargaining considerations. The question was, where to draw the line? Even if the employees in all seven branches shared some community of interest with each other was a group of 7 branches a rational subdivision of the employer's organization for collective bargaining purposes? Was the union really just "gerrymandering"; that is, tailoring its position solely to the extent of its support? What weight, if any, should be given to the extent or success of the union's organizing efforts? What if the union had solid support in several branches but little or no support in one or two? In choosing among the possible appropriate units, should the Board be concerned about sweeping in pockets of employees who had expressed little or no interest in collective bargaining? And should the Board abandon its long established practice of grouping full-time and part-time employees into separate bargaining units?

8. The "gerrymandering" issue, we should add, was initially raised by the union itself. The union asserted that, if the Board had any concerns that the union was using its established mem­bership support in particular branches to "sweep in" branches in which its organizing efforts had been less successful, or that it was tailoring its unit proposal to the precise group that it had orga­nized, the Board should be reassured. According to the union, it was "certifiable" in each of the 7 branches which, everyone agreed, would be appropriate bargaining units by themselves. The union asked parenthetically: if single branches are appropriate, if the union is certifiable in all 7 units on a branch-by-branch basis, if extended area bargaining is desirable, and if the employees in those 7 branches have 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" (to adopt the Hospital for Sick Children formula), why not issue one certificate covering 7 branches rather than 7 individual certificates each restricted to a single branch? Why have seven separate bargaining tables (one for each generically similar branch) when bargaining could be conducted more economically and efficiently on a broader basis? There was no question of "gerrymandering" because the union was entitled, so it said, to be certified in all seven branches anyway.

9. In the result, but based on the factual assumptions set out above, the Board concluded that a 7-branch bargaining unit would be appropriate and expressed the following tentative conclu­sion found at paragraphs 4 1-44 of its decision:

10. To summarize, it is only the bargaining framework, or structure that is at issue in this case. The reduction of the "appropriate" unit to the minimum level required for organizing to "gain a foothold", in the language of the earlier cases, is not the issue: the applicant already has had its success in organizing at a number of the respondent's branches. Nor is the appropriateness of those individual branches as units for certification in issue: at the very least, prior Board juris­prudence points to their appropriateness as individual branch-units standing alone, and the agreement of the parties on the particular facts before us confirms that certificates could issue on that basis. The only question, in light of that, is whether those certificates would more appropri­ately be combined at this stage into one, and for all of the reasons set forth above, we conclude that they would.

11. It follows that only those branches for which the applicant is otherwise certifiable are affected by this decision on the part of the Board to consolidate individual branch-units into what the Board finds to be a "rational and viable" single bargaining unit. Unlike the British Columbia Board, we see nothing in our legislative mandate which prevents us from taking into account the fact that individual certificates for bargaining are about to issue in any event, when turning our mind to the question of the appropriate form of bargaining unit within which that bargaining ought best to proceed.

12. While the argument has proceeded to this point on the basis of certain assumptions, a final determination of which of the 7 branches the applicant is in fact entitled to certification for will have to await the resolution of all outstanding issues relating to the membership evidence filed in this case, together with the list of "employees" employed in the unit at each branch. Should it become material, the Board will also have to decide at that point whether it would be appropri­ate to issue an "interim" certificate covering all branches for which the applicant is immediately certifiable, as opposed to those which, for one reason or another, the applicant would only become certifiable following the taking of a representation vote.

13. Finally, on the issue of whether the "part-time" and "full-time" employees ought to form one bargaining unit or two, the Board is not persuaded in this case that it ought to depart from its own practice of separating the two for the purpose of collective bargaining. For a review of the considerations taken into account by the Board in this regard, see Board of Education for the Borough of Scarborough, [1980] OLRB Rep. Dec. 1713.

[emphasis added]

10. It will be seen from paragraphs 42 and 43 that both the union's argument and the Board's analysis are based upon certain "assumptions" - in particular that the union would be cer­tifiable in each branch if each branch were determined to be an appropriate bargaining unit. The problem is, that even accepting the union's submission that the Board should ignore the traditional distinction drawn between full-time and part-time workers, the union is not certifiable in all 7 "sin­gle-branch possible units". As it turns out, the union would be certifiable at only four branches, in a vote position in one and in a dismissal position in the remaining two. Moreover, if one maintains the distinction between full-time and part-time employees, as the panel decided to do in paragraph 44 of its decision, the situation becomes even more complicated. The union would be certifiable in five full-time, single-branch bargaining units and in a vote position in the other two. It would be certifiable in three part-time branch units, in a vote position in two and in a dismissal position in the remaining two. The union s support is, in fact, spread rather unevenly over the seven (origi­nally eight) branches applied for.

11. Quite clearly then, the case was argued before the earlier panel of the Board either on the basis of facts not foreseen, or not accurately forecast. Indeed, the entire thrust of the decision is based upon an assumption of membership support which turned out to be inaccurate. That being so, we are left to determine how best to proceed in light of the situation now before us.

12. Counsel for the union submits that we should adhere to the "spirit" of the earlier Board decision by issuing an interim certificate encompassing all those full-time or part-time branch-based employee groupingswherein the union would be immediately certifiable if branch units were indi­vidually deemed to be appropriate (as the parties agreed they would be), and direct representation votes in those other full-time or part-time "possible" branch-based units where the union would be entitled to one. If it "wins" the votes, i.e. if a majority of employees vote in favour of union repre­sentation, the union submits that the Board should then issue a final certificate consolidating the single-branches (or some of them) into one unit covered by one certificate. In effect, the union says: find "appropriate" any grouping in which, one way or another, it can establish majority employee support on a branch by branch basis. On this theory, the ultimate shape of the bargain­ing unit will depend upon the extent of the union's membership support established either by mem­bership cards filed at the time the application was made, or representation votes taken now. It will inevitably result in an irregular patchwork, and, of course, requires a rather strained reading of section 6(2) for which there is no precedent. Alternatively, the union urges the Board to issue a final certificate (or certificates) respecting any branch-based grouping in which the union is imme­diately certifiable, and, on the basis of the results of representation votes in the other "pieces issue final certificates to them as well; then, pursuant to section 106(1) of the Act, reconsider the entire affair, revoke all of the certificates already granted and issue a single new certificate covering all locations or employee groups where the union has demonstrated majority support. Counsel argues that the reconsideration power has been used in this way in other jurisdictions and submits that the Board should take the same approach here - especially since there is unlikely to be any col­lective agreement to get in the way.

13. The employer submits that the earlier panel's opinion is quite clearly premised upon certain factual assumptions which turned out to be wrong and, for that reason alone, should be reconsidered. For the purposes of its earlier opinion, the Board was content to assume, as the union submitted, that the union was certifiable in each of the 7 single branch units. The earlier panel did not specifically turn its mind either to the possibility that the union was not certifiable at one or more branches, or to the ramifications of recognizing the separate community of interest of part-time workers. Moreover, in counsel's submission, the actual state of the facts points out a jur­isdictional flaw in the earlier panel's reasoning which may not have been readily apparent at the time.

14. The employer submits that the attraction of the Board's proposed approach significantly diminishes when its application may produce bargaining units of full-time and part-time employees which are not geographically contiguous - thus creating a result very different from the Board's usual inclination which is to "mirror" full-time and part-time bargaining unit descriptions. The employer contends that the bargaining unit configuration resulting from an application of the Board's analysis to the facts as they turned out to be would look rather odd. The unit would consist of pockets of full-time and part-time employees distributed unevenly and quite randomly across 7 of the respondent's 37 branches in Metropolitan Toronto. The formula which the union urged upon the Board (and the Board tentatively accepted) only "works" if the factual assumptions upon which it is based are fully borne out by the evidence. They were not.

15. More fundamentally, though, the employer submits that the original panel's anticipated mode of procedure is inconsistent with the scheme of the Act. Sections 6 and 7 of the Act contem­plate that the Board will first determine the appropriate bargaining unit; then (and only then), con­duct a representation vote if necessary within that unit, in order to determine whether the union is entitled to certification. One does not conduct a "representation vote" under section 7 in order to find out whether a union might be certifiable in some sub-group of employees, then use that infor­mation to establish whether some broader employee configuration, is, in fact, the appropriate bar­gaining unit. To put the matter colloquially: the earlier decision "puts the cart before the horse"; for it is quite clear that what the Board had in mind was testing employee wishes with respect to representation in some segments of a possible bargaining unit as a means for ultimately determining the appropriate bargaining unit. The employer argues that the language of sections 6 and 7, as well as Board practice indicate that a vote under section 7 may be directed only after the unit is deter­mined. In this regard, these sections differ from the pre-hearing vote provisions which speak in terms of a "voting constituency" precisely because the unit has yet to be determined. Section 6(1) permits the Board to canvass employee wishes on the scope of the bargaining unit, but the earlier panel did not purport to act pursuant to section 6(1), nor does the union argue that this panel should do so now.

16. The decision also implies that support for the union (by signing membership cards) is synonymous with support for any unit which may later be applied for; but if there is less than fifty-five per cent support in some subgroup, the Board will poll those employees (but not others) about their desire for trade union representation then fashion the unit accordingly. Counsel for the employer submits that it is artificial, wrong in law, and bad policy to make the definition of the bar­gaining unit contingent upon union membership or employee preferences with respect to represen­tation. In his submission the two are quite different questions, and even if they were related (which he says they are not) would require that the Board canvass all of the employees potentially affected, not just those subgroups in which the union was not immediately "certifiable". The ear­lier decision seems to suggest (implicitly, if not explicitly) that the bargaining unit line can be drawn just about anywhere in the financial/service sector, and that the critical consideration is the extent of union support. He urges the Board to reconsider the earlier panel's decision and to return to the model of branch-by-branch bargaining units, which everyone concedes are "appropri­ate" and which are consistent with the pattern established by such cases as Canada Trustco Mort­gage Company, supra.

17. The issue before this panel of the Board, however, is not really a reconsideration of the earlier Board decision, since no final decision was made except to separate full time and part time employees into their own bargaining units. The question is how much weight should be given to the other matters considered in the decision, when the factual propositions upon which those opinions were based were not borne out by the evidence.

18. We do not attach much significance to the union's complaint that this proceeding has taken a long time to complete, and that we should therefore favour the union's formula for multi-branch bargaining units because the union could have "walked away" with single branch certifi­cates quite some time ago. This proceeding has taken a long time. But that unhappy result flows, in substantial measure, because of legitimate disputes about the status of certain individuals, and because of the union's disinclination to accept the established branch-by-branch pattern of organiz­ing heretofore prevalent in this industry. While one cannot fault the union for advancing a novel proposition, that proposition leads to both practical and legal difficulties when its factual underpin­nings cannot be established.

19. Of more significance is the fact that the earlier panel's approach is substantially based upon and shaped by a hypothetical. Once those premises are shown to be false, the union's position loses much of its allure, and becomes, mechanically, quite difficult to apply within the prescribed statutory framework. In particular, we find considerable merit in the employer's submission that the scheme of the Act requires the Board to first determine the appropriate unit before considering the depth of union membership support, and if employee wishes are to be canvassed with respect to the unit, that is done directly under section 6(1), not by means of a "representation vote". It is not at all clear that those jurisdictional concerns were canvassed before the earlier panel, and they certainly were not canvassed in light of the facts as we now know them to be. Because of the way the union put its case, the earlier panel was asked to express an opinion based upon what it clearly recognized were "assumptions", while our task, in contrast, is to make a determination based upon the facts before us (which are different), and legal arguments which appear to be matters of first impression.

20. What then is the best approach now, given the unusual and perhaps unfortunate way in which this case has unfolded? In our opinion, we should not look to employee wishes with respect to representation as a gauge for determining the description of the bargaining unit, and, in particu­lar, we should not canvass the wishes of some employees in this regard but not others. Nor, in our opinion, is it proper to direct a series of "representation votes" in what would necessarily be subdi­visions of any bargaining unit ultimately determined. That, in our view, is not consistent with the scheme of the Act. Furthermore, whatever elasticity may be found in the concept of interim certifi­cation, we do not think that it can or should be stretched to cover the novel proposition advanced by the union in this case. Indeed, the probable result of the union's proposed formula is, in itself, rather telling: a single and allegedly coherent bargaining unit which consists of a patchwork quilt of full-time and part-time employees (interspersed with other unrepresented full-time and part-time workers) distributed unevenly and asymmetrically over seven of the eight branches which were the target of the union's original organizing campaign. Had that particular unit been proposed in the first instance, it is difficult to resist the conclusion that it would have been summarily rejected as inappropriate - unless, of course, the Board were persuaded that virtually any subdivision of the respondent's employees would be appropriate - a proposition for which there is little or no juris­prudential support, and which would essentially negate the Board's role and responsibility under section 6(1) of the Act. Whatever plausibility that argument may have had at one time, it is not now supported by the Board's established jurisprudence.

21. In all the circumstances of this case, we are persuaded that we should return and adhere to the established pattern of branch-based bargaining units which all parties agree are appropriate, and which the Board has found to be appropriate in the past. It may well be that some broader unit would also be appropriate. It may also be that within the confines of an integrated closely regu­lated financial institution the Board has considerable flexibility in fashioning the appropriate bar­gaining unit which may even include clusters of generically similar but geographically disparate branches. However, we decline to speculate.

22. Having regard to the foregoing, and pursuant to section 6(1) of the Act, the Board finds the following to be units of employees appropriate for collective bargaining:

Bargaining Unit #1 (Full-time):

All employees of the respondent at 635 College Street, save and except branch managers, administration officer(s)/assistant branch manager(s) exer­cising managerial functions within the meaning of section 1(3)(b) of the Act, administration officer trainees, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period.

Bargaining Unit #2 (Full-time):

All employees of the respondent at 1882 Eglinton Avenue, save and except branch managers, administration officer(s)/assistant manager(s) exercising managerial functions, administration officer trainees, persons regularly employed for not more than 24 hours per week and students employed dur­ing the school vacation period.

Bargaining Unit #3 (Full-time):

All employees of the respondent at 2072 Danforth Avenue, save and except branch manager, administration officer(s)/assistant manager(s) exercising managerial functions, administration officer trainees, persons regularly employed for not more than 24 hours per week and students employed dur­ing the school vacation.

Bargaining Unit #4 (Full-time):

All employees of the respondent at 1547 Bayview Avenue, save and except branch managers, administration officer(s)/assistant branch manager(s) exer­cising managerial functions within the meaning of section 1(3)(b) of the Act, administration officer trainees, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period.

Bargaining Unit #5 (Full-time):

All employees of the respondent at 1520 Danforth Avenue, save and except branch managers, administration officer(s)/assistant branch manager(s) exer­cising managerial functions within the meaning of section 1(3)(b) of the Act, administration officer trainees, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period.

Bargaining Unit #6 (Full-time):

All employees of the respondent at 45 Overlea Blvd., save and except branch managers, administration officer(s)/assistant branch manager(s) exer­cising managerial functions within the meaning of section 1(3)(b) of the Act, administration officer trainees, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period.

Bargaining Unit #7 (Full-time):

All employees of the respondent at 3041 Kingston Road, save and except branch managers, administration officer(s)/assistant branch manager(s) exer­cising managerial functions within the meaning of section 1(3)(b) of the Act, administration officer trainees, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period.

Bargaining Unit #8 (Part-Time):

All employees of the respondent at 635 College Street, regularly employed for not more than 24 hours per week and students employed during the school vacation period, save and except branch manager, administration officer(s)/assistant branch manager(s) and administration officer trainees.

Bargaining Unit #9 (Part-Time):

All employees of the respondent at 1882 Eglinton Avenue, regularly employed for not more than 24 hours per week and students employed dur­ing the school vacation period, save and except branch manager, administra­tion officer(s)/assistant branch manager(s) and administration officer train­ees.

Bargaining Unit #10 (Part-Time):

All employees of the respondent at 2072 Danforth Avenue, regularly employed for not more than 24 hours per week and students employed dur­ing the school vacation period, save and except branch manager, administra­tion officer(s)/assistant branch manager(s) and administration officer train­ees.

Bargaining Unit #11 (Part-Time):

All employees of the respondent at 1547 Bayview Avenue regularly employed for not more than 24 hours per week and students employed dur­ing the school vacation period, save and except branch manager, administra­tion officer(s)/assistant branch manager(s) and administration officer train­ees.

Bargaining Unit #12 (Part-Time):

All employees of the respondent at 1520 Danforth Avenue regularly employed for not more than 24 hours per week and students employed dur­ing the school vacation period, save and except branch manager, administra­tion officer(s)/assistant branch manager(s) and administration officer train­ees.

Bargaining Unit #13 (Part-Time):

All employees of the respondent at 45 Overlea Blvd. regularly employed for not more than 24 hours per week and students employed during the school vacation period, save and except branch manager, administration officer(s)/assistant branch manager(s) and administration officer trainees.

Bargaining Unit #14 (Part-Time):

All employees of the respondent at 3041 Kingston Road regularly employed for not more than 24 hours per week and students employed during the school vacation period, save and except branch manager, administration officer(s)/assistant branch manager(s) and administration officer trainees.

23. The Board is satisfied on the basis of all of the evidence before it that more than fifty-five per cent of the employees of the respondent in bargaining units #1, 2, 3, 4, 5, 9,10, and 14, at the time the application was made, were members of the applicant on June 4, 1985, 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.

24. Certificates will issue to the applicant with respect to bargaining units #1, 2, 3, 4, 5, (full-time) and #9, 10, and 14 (part-time).

25. The Board is satisfied on the basis of all the evidence before it that not less than forty-five per cent of the employees of the respondent in bargaining units #6, 7, 12, and 13, at the time the application was made, were members of the applicant on June 4, 1985, 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.

26. A representation vote will be taken of the employees of the respondent in each of these bargaining units. All employees of the respondent in each bargaining unit on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote.

27. Voters will be asked to indicate whether or not they wish to be represented by the appli­cant in their employment relations with the respondent.

28. The Board is further satisfied on the basis of all the evidence before it that less than forty-five per cent of the employees of the respondent in bargaining units #8 and #11, at the time the application was made, were members of the applicant on June 4,1985, 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.

29. The application is dismissed with respect to bargaining units #8 and #11.

30. The matter is referred to the Registrar.

31. The Board does not consider it appropriate to comment at this time upon the possible exercise of its discretion under section 106 of the Act to consolidate the bargaining structure should the union be successful in one or more of the representation votes, and should subsequent bargain­ing difficulties arise which might be appropriately remedied by a consolidation of the bargaining structure.

DECISION OF BOARD MEMBER RENE R. MONTAGUE;

1. I do not agree with the majority decision in this matter, and it seems to me that this case is a perfect illustration of what the Board was worried about in the Hospital for Sick Children, supra, when it wrote:

We are troubled by the fact that a largely administrative and policy-latent 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.

2. In this case, the employees have been waiting since May 17, 1985 for a determination of their right to engage in collective bargaining. I am concerned that, by now, the entire exercise may have become academic. The delay in determining the composition of the bargaining unit may, from a practical point of view, have defeated the employees' right to collective bargaining alto­gether.

3. It is clear to me that the workers in the branches we are dealing with do share a substan­tial community of interest. The earlier panel of the Board thought so too - otherwise they would not have adopted the approach which they did. It seems to me that whatever the legalities of the situation, there are two equally sensible alternative solutions to the problem before us and both of them are better than the one that the majority has adopted.

4. In the first place, we could, and in my opinion should, grant the seven branch broadly based unit which the union initially sought, because I am persuaded that the employees in those seven branches do share a sufficient community of interest to justify that finding. I am not per­suaded that such unit would produce the kinds of collective bargaining problems referred to by the Board in Hospital For Sick Children. In the alternative, the spirit of the earlier panels' decision, and fairness to the parties, could best be accommodated by fashioning full-time and part-time units encompassing those branches in which the union has demonstrated more than 55 percent support so that it would otherwise be certifiable on an individual branch basis. For all other branches or employee groupings we could adopt the single branch formula urged upon us by the employer. The result would be to somewhat broader (but still in my view appropriate) units of full-time or part-time employees across several branches, and a number of other branch-based full-time or part-time units which follow the historical organizing pattern and which the parties agree are individually appropriate. This approach seems to me to be an alternative resolution of the competing consider­ations and circumstances present in this case, and one which I find preferrable to the formula which the majority has adopted.

5. Finally, I must comment briefly on the use of section 106 to consolidate bargaining units. It seems to me that this makes good sense, and if other labour relations are doing so under statutes which have the same language as ours does maybe we should be doing the same thing. Certainly it does not make sense to perpetuate a situation which multiplies the number of bargain­ing tables and the collective bargaining problems which small groups of employees may face. If we have the authority to simplify and rationalize the bargaining structure, it is my view that we should do so.