[1989] OLRB Rep. October 1048
1374-89-R United Steelworkers of America, Applicant v. 445733 Ontario Ltd., c.o.b. as McLean Security, Respondent
BEFORE: R. O. MacDowell, Alternate Chair, and Board Members D. A. MacDonald and C. A. Ballentine.
DECISION OF THE BOARD; October 12, 1989
This is an application for certification. It is one of a series of similar applications in which the United Steelworkers of America seeks to represent security guards working in the Province of Ontario.
On September 21, 1989 the parties met with a Board Officer, in Ottawa, and settled all matters in dispute between them, other than what might be colloquially described as the "Charter issue". That issue concerns section 12 of the Labour Relations Act which reads as follows:
The Board shall not include in a bargaining unit with other employees a person employed as a guard to protect the property of an employer, and no trade union shall be certified as bargaining agent for a bargaining unit of such guards and no employer or employers' organization shall be required to bargain with a trade union on behalf of any person who is a guard if, in either case, the trade union admits to membership or is chartered by, or is affiliated, directly or indirectly, with an organization that admits to membership persons other than guards.
Section 12, on its face, prevents the United Steelworkers of America from representing security guards even though, as in the instant case, the majority of the employees have indicated their desire to be represented by the applicant union. The propriety of that limitation is being contested in a number of other cases currently before the Board. The union claims that this restriction on its members' freedom of association is contrary to the Canadian Charter of Rights and Freedoms. The parties in the instant case have concluded that this matter should be adjourned pending a resolution of the union's "Charter challenge" in those other cases.
This decision is not concerned with these matters of high principle or the constitutional validity of section 12 of the Labour Relations Act. We are here concerned with a more prosaic question: how do we best give notice to employees potentially effected by this certification application?
Security guards like those involved in this case, often patrol and protect the property of their employer's clients. They may not work on their employer's premises at all. Indeed, they may only occasionally visit their employer's premises for the purpose of picking up their pay cheques, receiving special instructions, or obtaining their work schedule for the next week(s). The place where they regularly perform their work is neither owned nor controlled by their employer. Accordingly, a posting on the employer's premises may not, in some cases, provide a timely notice of the union's certification application.
The union urges the Board to adopt a "policy" in all "guards" cases of requiring the employer's clients to post notices on their premises where they will come to the attention of the guards potentially effected by the union's various applications. Further, the union asserts that, in each case, the Board should appoint a Labour Relations Officer to visit the location of each client to effect and monitor such posting. The Board has the power to do this pursuant to section 103(2)(d) of the Labour Relations Act:
103.- (2) Without limiting the generality of subsection (1), the Board has power,
(d) to require persons or trade unions, whether or not they are parties to proceedings before the Board, to post and to keep posted upon their premises in a conspicuous place or places, where they are most likely to come to the attention of all persons concerned, any notices that the Board considers necessary to bring to the attention of such persons in connection with any proceedings before the Board.
We might note that the respondent employer in the instant case makes no such request, nor does it assert that its employees have not had adequate notice of this proceeding. No employee has complained about the adequacy of notice. Finally, although raising its general "concern", the union does not assert any facts concerning the work pattern of the employees in this case which would justify any departure from the Board's usual posting practice. The union merely asserts that there might be a problem, so the Board should take these extraordinary steps.
The Board has always recognized that in some employment situations special steps must be taken in order that employees will receive notice of certification proceedings. It does not follow, however, that it is necessary to authorize Labour Relations Officers to travel throughout Ontario posting notices on the premises of the employer's clients. Not only might that raise some difficult legal questions in respect of businesses not themselves covered by the Labour Relations Act (Embassies or buildings operated by the Federal Crown, for example), but it still would not insure that the guards would receive timely notice. Such approach would require a significant commitment of Board resources without a concomitant assurance that notice would be effected; moreover, as we have already pointed out, the "problem" raised by the trade union is, at this point (and despite many similar applications before the Board) entirely hypothetical.
We do agree, though, that a potential problem does exist and that where such problem is identified by either the union or a respondent employer, the Board should modify its general approach as it has done in the case of supply teachers who are called in on an irregular basis and move from school to school. There, too, employees have an irregular work pattern and no fixed place of employment so that postings may not come to their attention. In the case of occasional teachers the Board now routinely requires the employer to prepare and provide to the Board a list of addresses - usually on address labels - so that the Board can send notice, by mail, to the employees in the proposed bargaining unit. Notice by mail is also used in the construction industry where similar problems sometimes arise.
We therefore propose to adopt the following practice when dealing with applications regarding security guards. Where neither the trade union or employer raise any notice questions the Board will follow its usual practice, authorized by the Rules, requiring a posting on the employer's premises in such place or places where the notices will come to the attention of the employees affected by a certification application. Where employees regularly visit their employers office to pick up their cheques or receive instructions, that form of notice should be sufficient. However, where either the trade union or the employer identify a potential notice problem, the Board will direct the employer to supply the addresses of employees so that service can be effected by mail. This may entail an extension of the terminal date and some delay in processing the certification application, but, in all likelihood, the delay would be less than that involved in the approach suggested by the union, and the receipt of notice is more certain.
Having regard to the agreement of the parties this matter is adjourned pending a resolution of the "Charter issue" referred to above. If the union wishes to pursue its notice concern in this file, it should so indicate within twenty-one days of the release of this decision. It follows, of course, that if the union raises and the Board accepts its concerns about notice, at this stage, there would necessarily have to be an extension of the terminal date.