[1988] OLRB Rep. November 1143
1621-88-R Canadian Union of Postal Workers, Applicant v. Best Cleaners and Contractors Limited, Respondent
BEFORE: Patricia Hughes, Vice-Chair, and Board Members J. Rundle and K. Davies.
APPEARANCES: James Hayes, Kim Bernhardt, Andre Kolompar and Gary Whitehouse for the applicant; James D. Henderson and Ulf Von Dehn for the respondent.
DECISION OF THE BOARD; November 21, 1988
1The Board issued a certificate to the applicant in a decision dated November 14, 1988, indicating that reasons would follow.
2This is an application for certification brought by the Canadian Union of Postal Workers ("CUPW" or "the union") with respect to certain employees of Best Cleaners and Contractors Limited ("Best Cleaners" or "the employer").
3Although its counsel was present, no one else had appeared for the respondent by 10:00 a.m. when we began the hearing scheduled for 9:30 a.m.; the owner of Best Cleaners, Ulf Von Dehn, arrived at 10:10 a.m.
4The parties had agreed to a bargaining unit description which limited the union's bargaining rights to a street location. In response to questioning by the Board, we were advised, however, that Best Cleaners has no other contracts in Metropolitan Toronto (or in Ontario, for that matter). Under those circumstances, the Board's usual practice is to certify on a municipal-wide basis. The applicant then took the position that the Board should follow its usual practice and describe the unit in terms of the municipality; the respondent maintained its position that the geographic scope of the unit should be limited to the specific location.
5Best Cleaners is a cleaning service which until now has performed work on a contract basis outside the province of Ontario. The contract which has given rise to this application is with the South Central postal plant in Toronto, but it could also contract with other types of institutions or businesses, such as a hospital or airport, for example. In light of the fact that the respondent is in the service or contract industry, the Board directed the attention of the parties to VS Services Ltd., a decision of the Board concerning another contract industry, reported at [1987] OLRB Rep. June 931, and asked for their submissions on the applicability of that case to the facts before us.
6According to the Agreed Statement of Fact in that case, the respondent in VS Services Ltd., supra, was 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". One segment or "group" of one division of VS Services Ltd. (Versa Food Services), the Industrial Dining group, had a contract to supply cafeteria services to Eaton Yale at a specific street address in Chatham. Subsequent to the date of application, but prior to the hearing, VS Services Ltd. commenced a second contract to supply cafeteria services in Chatham. The Agreed Statement of Fact indicated that the terms and conditions of the employment at the two locations differed. VS Services Ltd. had collective agreements with "a variety of unions", the scope clauses of which were limited to specific locations or clients, "with the exception of the Company's vending operations which have scope clauses on a municipal basis". There was also a contract covering the municipality of Oshawa which was not limited to the vending operation, although in practice VS Services Ltd. only operated a vending operation under the (apparently) single Oshawa contract. There was evidence of the manner in which VS Services Ltd. had actually developed specific plans to respond to the needs of the client. The Board found that "there has developed in the Ontario non-vending food service industry a widespread practice of parties agreeing to bargaining units which are confined to an employer's operations in respect of a particular client" (and, indeed, that "client-specific bargaining units have become the norm in this industry") and that "the Board has accepted such agreements in determining bargaining unit configurations in that industry". VS Services Ltd. itself was party to 41 collective agreements with such a scope clause.
7On the basis of the pattern of scope clauses in the non-vending food service industry in Ontario, the evidence of the community of interest between employees at the two locations at which VS Services Ltd. had contracts in Chatham, and the evidence of the distinct response to client needs in the contracts entered into by VS Services Ltd. in Ontario (resulting, it is important to note, in different terms and conditions of employment for employees engaged to perform those contracts), the Board in VS Services Ltd., supra, certified the applicant union for the employees at Eaton Yale, rather than for the City of Chatham.
8We considered the parties' submissions with respect to the VS Services Ltd. case, along with their more general submissions on the scope of the bargaining unit, and in particular the nature of the evidence which counsel for the respondent said he would adduce in support of a limited scope clause, and ruled orally that we would describe the bargaining unit in terms of the municipality of Metropolitan Toronto. The brief reasons we gave at the hearing for that decision are included in our comments on this issue which follow.
9We recognize, as we told the parties, that the "contract industry" raises certain distinct issues which affect employers, unions, and employees. For example, employers stress that they must successfully bid on contracts and therefore are dependent on other entities for work; furthermore, those entities may be diverse and the contracts may differ accordingly. Unions, for their part, are concerned that the Act's sale of a business provisions have not been interpreted to encompass a situation in which a contractor, having contracted with unionized employer "A" does not renew that contract but instead contracts with non-unionized employer "B" (who may employ the same employees as employed by "A"). Employees may choose to join a union but then may find themselves performing the same work at the same location but without the union; or employees at location D may find they are covered by the terms and conditions of employment appropriate for the previously established contract at location C, with C and D being very different workplaces (the parties can, of course, negotiate accommodation of those differences). Another issue which may arise is the identity of the employer (see York Condominium, [1977] OLRB Rep. Oct. 645, for example); the contractor may be the actual employer, rather than the entity which performs the service. We emphasize that there was no suggestion that that was the case here. The expansion of the service industry in recent years has given rise to these and other issues before this Board and in other fora.
10The Board in VS Services Ltd., supra, referred to T.R.S. Food Services Limited, [1980] OLRB Rep. Apr. 542, in which the applicant had requested a municipal-wide unit and the respondent wanted the unit to refer to its client, General Motors. The Board in T.R.S. set out the interests which the geographic scope attempts to balance, including the freedom of employees to choose their bargaining agent and the stability of the bargaining rights acquired by the union. The respondent in the case before us submits that since it is dependent on the contractor for the contract which gives work to the employees for whom the union seeks certification, the rationale of the municipal-wide unit is not applicable: the employer cannot simply move its establishment to a new location to avoid the certification. Against that view, the Board in T.R.S. articulated the following concern with respect to a unit limited to the client (rather than a street address, but the comments are equally relevant to that geographic description):
- ... The permanent relationship of the employees involved in this application is with the respondent, T.R.S. Food Services Limited, and not with the respondent's client, General Motors. While some clients in the food service industry may develop a relatively permanent relationship with a particular company engaged in the food service business, neither the length of the contract for food service nor its continual renewal may be taken for granted. To tie the continuation of the applicant's bargaining rights to the client being serviced by the respondent would mean that the bargaining rights would be placed in a position of complete dependence on the continuation of the food service contract which existed between the employer and the particular client being serviced at the time of the application for certification. Given the fluctuations of the market place and the competition for such contracts, the Board concludes, on balance, 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 respondent is located. We note 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.
(The Board in VS Services Ltd., supra, pointed out that the parties in T.R.S. subsequently negotiated an agreement with a client specific scope clause.)
11We note that certification in the cleaning industry has been limited to a street address in several cases before the Board, but it appears that these have been on the agreement of the parties. For example, in certification applications with respect to cleaners in apartment buildings, the Board has certified for a municipal address, on agreement of the parties (see, for example, Wickford Holdings Ltd., [1982] OLRB Rep. Oct. 1578 and Marchant Property Development, [1981] OLRB Rep. Oct. 1433; in both cases, the only bargaining unit issue before the Board was whether the spouses of superintendents of the apartment buildings were employees and there was no consideration of the geographic scope of the unit which was limited to the address of the building on agreement of the parties). The Board also certified for the street address of a building in Kaneff Properties Ltd., [1981] OLRB Rep. June 730; however, although the parties had agreed on that description, the Board did not grant that unit until it was satisfied on the basis of evidence that it was appropriate (the Board also considered whether the unit should be limited to employees "engaged in cleaning", as agreed to by the parties, but found that on community of interest principles, a unit limited to cleaners was appropriate). The Board in Kaneff Properties Ltd., supra, had evidence of certificates being granted to these same parties at municipal addresses, on the agreement of the parties, and was satisfied they had led to viable bargaining relationships. But the Board also noted that "in the absence of ... agreement, if cleaners and maintenance employees divide their time among several buildings in the municipality, the Board may conclude the cleaning staff based at only one or two of those buildings do not constitute an appropriate bargaining unit" and referred to Zolty Holdings Limited (Board File No. 0030-81-R, June 24, 1981) in which the Board found that "all employees of the employer engaged in cleaning and maintenance at the employer's buildings in Metropolitan Toronto" should be included in an appropriate unit. In Modem Budding Cleaning a Division of Dustbane Enterprises Limited (Board File No. 2360-80-R, April 14, 1981), referred to in Kaneff Properties Ltd., supra, the Board certified the applicant union for a named hospital, on agreement of the parties (but raised a concern about fragmentation resulting from a limitation to employees "engaged in cleaning services"). On the other hand, in Non Profit Housing Corp. of the City of Toronto, [1981] OLRB Rep. Aug. 1112, the Board granted a municipal-wide unit on agreement (possibly taking into consideration the specific respondent in that case, although there was no discussion of the geographic scope issue at all, but only of the community of interest between the buildings' maintenance crews and the resident supervisors).
12Although there appears to be a pattern of bargaining limited to specific locations developing in the cleaning industry, the Board has not yet developed approaches to either the cleaning industry particularly or to the contract or service industry generally which can be considered unique to that industry or distinct from its approach to the industrial sector generally. A case such as VS Services Ltd., supra, does not purport to establish a distinct approach or any general policy with respect to "the service industry", broadly defined, or even for the more specific non-vending food service industry with which it deals. Counsel for Best Cleaners conceded that a bargaining unit described in terms of one location or one client, where there is only one location, or contract, extant, would constitute an exception to the Board's usual practice of certifying on a municipal-wide basis where the employer is established at only one location. Since where the circumstances warrant, the Board will depart from that practice, as it did in VS Services Ltd., supra (where, in any case, VS Services had two contracts at different locations in Chatham), the question before us is whether the circumstances in this case, warrant a departure.
13We asked counsel for the respondent what evidence he would adduce to justify our departing from the Board's usual practice. He advised he would call contractors from out-of-province with which the respondent has cleaning contracts, as well as have Mr. Von Dehn testify about the way in which he would have to tailor bids to obtain other contracts in Ontario; he would further adduce evidence of the practice in the industry. We are of the view that evidence of what has occurred between the respondent and contractors outside Ontario and evidence of hypothetical contracts the respondent might negotiate in Ontario would not assist us in determining the issue before us. As for the practice in the industry, we are already aware that there has been some practice of bargaining units limited to a location or client. That might well be of assistance in satisfying us we should depart from the usual practice where there is agreement of the parties, but not where there is disagreement between them, as here. This does not mean that a cleaning subcontractor could not satisfy the Board that it would be appropriate to certify for a single location or client where it has only one location in the particular city, should it bring appropriate evidence of, for example, actual diverse contracts elsewhere in Ontario, or a history of bargaining with the applicant union, or other evidence similar to that adduced in VS Services Ltd., supra, or in Kaneff Properties Ltd., supra; it does mean, however, that in this case we are not persuaded we should depart from the Board's usual practice and therefore we ruled orally and stated in our November 14th decision that
all employees of the respondent in the Municipality of Metropolitan Toronto, save and except supervisors and persons above the rank of supervisor,
constitute a unit of employees of the respondent appropriate for collective bargaining.
14As we further indicated in our decision of November 14th, the applicant had filed sufficient membership evidence that the Board would normally issue a certificate to the applicant under subsection 7(2) of the Act, without further ascertaining the employees' wishes through a representation vote. In this case, however, Best Cleaners alleged that the union had contravened section 70 of the Act by misrepresenting to the employees that they would not have jobs when Best Cleaners began the contract to clean the postal plant. These employees had previously cleaned the postal plant's premises as employees of a different subcontractor. Canada Post then awarded the cleaning contract to the respondent, resulting in a well-publicized conflict between the union and Canada Post over the latter's tendering policy and practice. Some of this conflict was reflected in material placed by the union in the Toronto Star and on newspaper reports of a "demonstration" at the postal plant. In fact, it is common ground that the respondent offered the employees jobs, although whether on September 27 or on September 28, 1988, is not clear; in any case, they appear to have begun work on October 1, 1988.
15The employer alleged that the union intimidated and coerced employees "by conducting a demonstration" on September 29, 1988 at 3:30 p.m. on the property of the postal plant, the events of which are purportedly described in a Toronto Star article of September 30, 1988, "indicating that Mr. J.C. Parrott, Mr. Bob Rae, Mr. A. Kolompar and Carol Henry did participate in the demonstration" ("J.C. Parrott" is the national President of C.U.P.W.; "Bob Rae" is the leader of the Ontario New Democrats; "A. Kolompar" is the president of the Toronto local of C.U.P.W.; and "Carol Henry" is a cleaner at the postal plant). Best Cleaner further alleged that membership evidence was obtained through misrepresentation when "the C.U.P.W., A. Kolompar, Carol Henry and J.C. Parrott did, through advertisements in the Toronto Star (September 28, 1988) and the Globe & Mail (September 29, 1988), a bulletin and the demonstration on September 29, 1988, misrepresent to the employees that they had no job security and would be thrown out of work". (The "bulletin" is a notice of meeting called by the union.) The employer stated that "the majority of the membership cards were signed on September 30, 1988 prior to the employees commencing work with Best Cleaners and Contractors. Further, Mr. A. Kolompar used his position as the president of the local of the individuals to call meetings at 1:00 and 4:00 p.m. on September 30, 1988. These meetings were used to sign membership cards". (In fact, the cards were signed on October 1, 1988, or subsequently, after the employees had been offered jobs by Best Cleaners and on the day at least some of them began work.) Best Cleaners also named certain employees, alleging that their English language skills "are so poor that they were unable to distinguish between already being a member of CUPW and the option of having to become a new member". This last allegation or particular was withdrawn by counsel for the employer at the outset of the hearing and therefore was not considered further by the Board.
16Counsel for the union contended that the allegations filed by the respondent in its reply and more fully particularized in a subsequent letter dated October 24, 1988, were untimely and did not establish a prima facie case. For the purpose of dealing with counsel's objections, we examined all the material (except one item referred to below) upon which counsel for the respondent intended to rely. We assumed that all this material would be admissible without so deciding. In that regard, we simply note the hearsay nature of much of the material filed by the respondent.
17We examined the advertisement placed by the union in the Toronto Star on September 28 (and on September 29), 1988 (we were not given a copy of the advertisement alleged to have been placed in the Globe & Mail); the article appearing in the Toronto Star on September 30, 1988, entitled "Postal cleaners fear for jobs as non-union contractor hired"; the notice of meeting to be held by the union on September 30, 1988; and a Globe & Mail article dated October 1, 1988 entitled "Firm agrees to hire 25 post office cleaners". Counsel for the respondent also wished us to view a tape of a television newscast about the "demonstration" that had occurred at the postal plant. We ruled that the tape would be inadmissible as being only a portion of the event; however, we did examine a transcript alleged to be comments made by Bob Rae at the "demonstration".
18After recessing to consider the material filed by the respondent, we reconvened and issued the following oral ruling:
We note that counsel for the respondent agreed that he had filed all particulars available to the respondent and, further, that the particulars do not allege that there has been any actual intimidation of any particular employees. There is only a general allegation that employees were intimidated and confused.
We are of the view that none of the material filed on its face establishes a prima facie case of intimidation.
At most this material reflects the union's position that the tendering process engaged in by Canada Post may result in problems of job security and that the union can help the employees with that problem. We are not satisfied that this would constitute a misrepresentation within the meaning of section 70 of the Act, that is, that it would constitute intimidation or coercion to compel any of these persons to join the union if the persons stated to have made certain statements as reported in the newspaper reports or at the "demonstration" said them. Nor does the Toronto Star advertisement constitute such intimidation, even taking into consideration that shortly before or at the same time as its publication, the employees had been offered jobs on terms of which we were not given evidence.
In light of our dismissal of the respondent's allegations for these reasons, we do not need to decide whether they were filed in an untimely manner and we do not do so.
19As a result of the above rulings and reasons therefore, the Board issued a certificate to the applicant in its November 14, 1988 decision.