Ontario Labour Relations Board
[1991] OLRB Rep. August 962
0746-91-R United Plant Guard Workers of America Local 1962, Applicant v. Carecor Security Service Inc., Respondent
BEFORE: M. A. Nairn, Vice-Chair, and Board Members D. 0. Wozniak and B. L. Armstrong.
APPEARANCES: Donald K. Eady and Eric MacKinnon for the applicant; Barry W. Earle, Carol Hoglund and Robert Hunter for the respondent.
DECISION OF VICE-CHAIR M. A. NAIRN AND BOARD MEMBER, B. L. ARMSTRONG; August 7, 1991
This is an application for certification. Prior to the hearing the parties met with a Labour Relations Officer and were able to resolve a number of issues in dispute.
The Board finds that the applicant is a trade union within the meaning of the Labour Relations Act (the "Act").
Except with respect to the underlined portion, the parties were agreed that all security guards employed by the respondent at the Toronto East General Hospital, in the Municipality of Metropolitan Toronto, save and except supervisors, persons above the rank of supervisor, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation constitute a unit of employees of the respondent appropriate for collective bargaining.
It is the position of the applicant that the bargaining unit description ought to include only those employees of the respondent working at a specific location, that is, at Toronto East General Hospital. It is the position of the respondent that the bargaining unit ought to encompass all its employees in the Municipality of Metropolitan Toronto. The parties convened before this panel to deal with that issue.
The relevant facts can be summarized as follows. The respondent is engaged in the business of providing security services to institutions in the health care industry. It currently holds contracts with nine hospitals within the Municipality of Metropolitan Toronto. All these contracts are essentially similar in nature and although entered into at different times, operate for a term of one year. One of these contracts is with the Toronto East General Hospital.
The employees affected by this application include persons working in the classification of Security Officer II. Although their duties will vary from hospital to hospital depending on circumstances unique to that institution, the essential duties of the Security Officer II are the same. They are responsible for patrolling the institution and ensuring the security of the staff, patients, and visitors. Security Officers I are responsible for the operation of an institution's parking facilities and are employed at only three of the nine locations. Shift supervisors are employed at three of the nine locations. This person acts as a lead hand and the parties agree that the position falls within the bargaining unit.
At each location the respondent also employs a facility supervisor. This individual works Monday to Friday on the day shift and is responsible to the respondent for the provision of the security services at that facility. It is agreed by the parties that this individual exercises managerial functions and would be excluded from the bargaining unit pursuant to section 1(3)(b) of the Act.
The respondent also employs individuals in the classification of mobile supervisor. These individuals work only the evening shift and, as suggested by their title, travel between the institutions in order to supervise and assist the staff, to conduct some evaluation and training of staff, and they perform a delivery function for reports, memos, and pay cheques. They have on occasion filled in in the event that they are unable to replace an absent employee with someone who has been trained for that facility. The parties are agreed that this position is excluded from the bargaining unit.
At the time of negotiating the contract with Toronto East General Hospital, the hospital requested that the respondent consider whether it could retain a number of the employees who had previously been employed to provide security services for that institution. After a screening process the respondent did in fact hire seventy percent of the individuals who had previously worked at Toronto East General Hospital to continue employment in that facility but for the respondent.
The respondent operates out of a head office location in the Municipality of Metropolitan Toronto. Recruitment and hiring of new employees is conducted from that office. While a facility supervisor may recommend or initiate a report with respect to discipline, the actual decision to discipline and/or terminate employment are made at the head office. Personnel records are kept at the head office. The employees in each of the facilities receive the same benefits and enjoy essentially the same terms and conditions of employment. All the employees are issued the same uniforms. There is an orientation provided for new employees at the head office. There is also an orientation conducted in the facility. Training is provided both at the head office and at the facility.
Scheduling is arranged at the head office for all facilities. The full-time employees typically work permanent shifts at the same location. The respondent employs part-time employees to work relief shifts and to replace full-time employees absent due to vacation or illness.
Scheduling and staffing is done with input from the facility supervisor. For example, if a day shift position becomes vacant it will first be offered to individuals working the evening or night shift at the facility. That initial enquiry would appear to be made by the facility supervisor and the information then passed on to head office. In addition if there are absences due to illness or vacation the facility supervisor would notify the office and again arrangements would be made to cover those shifts. The respondent anticipates that with the installation of a centralized communication system that the assignment of staff will be conducted more efficiently.
The mobile supervisors are currently on a pager system and can be contacted by either the facility or by the respondent's employees in the facility. Once a centralized communication centre has been fully installed the facilities will have access to a centralized telephone at the head office and the office will then dispatch as necessary.
While this centralized communications system is not yet fully in place, the nature of the respondent's service is such that as a result of standardized reporting systems among all the facilities, the respondent will be able to generate statistical information with respect to incidents for the benefit of all of the institutions that retain the services of the respondent. In addition, the respondent has other programs that it can offer to the various facilities as part of its specialized service.
It is apparent that a number of the individuals working as facility supervisors have had experience working in different facilities, whether as a Security Officer II, a mobile supervisor, or as facility supervisor. Vacancies for management positions have been posted in all of the facilities. The assignment of shifts and the scheduling of employees who fall within the bargaining unit have been done according to employee preference as far as the respondent has been able to accommodate everyone. The respondent will assign employees to a facility that is closer to home or to a facility in which the employee is more comfortable. The employer has accommodated requests from employees to transfer from one facility to another for various reasons, for example, to accommodate a request to work a different shift, or to provide an opportunity for the employee to work in another facility in order to help him decide whether he was interested in a promotion in that facility.
The respondent submitted a list of all its employees indicating the facilities at which those employees had worked. While the list does show that some employees have obtained experience working in different facilities it does not support the respondent's position that there is regular interchange of employees between facilities. On occasion a part-time employee working at one facility has worked a shift at another facility. If the respondent has been unable to replace a full-time employee from the available part-time staff at that facility, an employee has been brought in from another facility to cover for that shift. This occurs infrequently.
In support of its position respecting a larger bargaining unit the employer relied on a clause in the standard form contract which it signs with each facility. That clause provides a complete discretion to the facility to have the respondent remove any security personnel from that facility. Upon being so advised it is apparent that the respondent would attempt to mediate an arrangement and/or provide additional training to any extent necessary in order to accommodate both the facility and the employee involved. However failing such accommodation the respondent feels it would be obliged to remove the individual from the facility or be in breach of its contract with that facility. The respondent argued that in the face of both this provision and a grievance filed by such an employee, the respondent may well find itself in a "no-win" position; having to reinstate the employee to that facility by virtue of a decision of an arbitrator, resulting in a violation of its other contractual responsibilities. The respondent further argued that an arbitrator would have a greater number of remedial options available to it if the bargaining unit were described to include all employees. The employee could then be transferred to another facility. To date there has been no such demand made by any of the facilities. There was one instance where on the agreement of the facility, the employee involved, and the respondent, a transfer was made. The respondent recognizes that an employee is to be protected from an arbitrary decision by a facility. However, while the respondent may be seeking a balance between its potential contractual responsibilities, we are not persuaded that a larger bargaining unit resolves the dilemma. We are hesitant to place too much emphasis on this aspect of the relationship between the respondent and its customer in considering whether the bargaining unit applied for is inappropriate.
The nature of the issue at hand was summarized at paragraph 23 of the decision in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266:
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.
Referring to the more specific question of the geographic scope of the bargaining unit and the considerations which apply, the Board in K-Mart Canada Limited, [1981] OLRB Rep. Sept. 1250 said:
Although the Board must be sensitive to the impact of its bargaining unit determinations upon the ability of trade [unions] to organize, there are other factors which must also be taken into account. 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.
Nowhere is the balancing of the statutory objectives more evident than in the Board's normal practice of circumscribing the geographic scope of bargaining rights by reference to the municipal boundary within which the employer operates. Where there is only one location within a municipality the Board will define the unit in terms of all employees within the municipality. Under a regime of municipal-wide certification bargaining rights follow an expansion or relocation of the business within the municipality; but not beyond. The freedom of choice of employees to make the initial selection of a bargaining agent at future sites within the municipality is sacrificed in favour of the stability of the bargaining rights conferred by the certificate. However, these rights do not [extend] beyond the municipality in deference to the right of employees at new locations outside the municipality to select a bargaining agent of their choice. The use of the municipal boundary represents an attempt by the Board to strike a rough balance between stable bargaining structures and individual freedom of choice.
Where the employer operates at two or more locations within a municipality at the time of certification a number of other considerations come to the fore which must be taken into account by the Board. Because the operations are in existence the Board is able to make a first hand assessment of the community of interest between the employees at the two locations....
... There are other important considerations which enter the picture as well where the employer operates from two or more locations within the same municipality. Where it is raised as an issue the Board must consider the effect of a broader based unit upon employee access to collective bargaining within the industry. In addition, the Board must recognize the wishes of the employees affected by the particular application to bargain collectively. This latter consideration requires the Board to take into account the pattern or organization in the case before it and to balance the pattern of organization against the disruptive effects of excessive fragmentation. The potential for fragmentation takes on an added weight where the Tribunal lacks the authority to restructure existing bargaining units at some future date. The nature of the deliberations which are undertaken by the Board in determining the appropriate bargaining unit where the employer operates from two or more locations within the municipality are summarized in the following passage from the Board's Ponderosa Steakhouse decision:
"The determination of what constitutes a viable collective bargaining structure requires the Board to consider matters of industrial relations policy, such as community of interest and fragmentation of employees. Community of interest may be a requisite for viable collective bargaining, since the representation of disparate employee groups by one bargaining agent may put impossible strains upon it as it performs its role in the bargaining process. At the other extreme, a too narrow definition of community of interest may create undue fragmentation of employees, leading to a weak employee presence at the bargaining table, or the possibility of jurisdictional disputes among competing bargaining groups. 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 or 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 is the appropriate unit. This point was clearly made in Board of Education for the City of Toronto case, sup
14.... The balance which has been struck by the Board in the circumstances of these cases has been aptly described in the following passage from the Canada Trustco decision, supra,
"In determining the appropriate bargaining unit the Board cannot disregard the labour relations realities before it. When a group of employees signify that they wish to exercise their right to bargain collectively, and that grouping is seen by the Board as sufficiently conforming to the Board's criteria of appropriateness as a bargaining unit, this Board should not require bargaining in a more comprehensive unit if to do so would effectively impede the access of that group of employees to any collective bargaining at all."
18.... Viability for purposes of collective bargaining, on an application of community of interest principles and a consideration of the effect of fragmentation, remains a prerequisite for a finding of appropriateness. 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....
In United Security Limited, [1982] OLRB Rep. April 644, the applicant proposed a bargaining unit describing one location. The respondent sought a more comprehensive unit of all its employees in Thunder Bay. The employees at the location were engaged in providing security services, specifically, to check baggage and screen passengers at the airport prior to loading and boarding. The Board reviewed the evidence as follows and concluded:
... Thus, there are seven regular employees stationed at the airport and three others who alternate between various locations as need arises. The seven regular employees can also be scheduled elsewhere but this appears to have happened only twice since August of 1981. Thus, the vast majority of their time is spent at Thunder Bay International Airport.
Testimony was also received from Leslie Raine, Branch Manager of the respondent in Thunder Bay... He indicated that the company could assign a person working at the airport to work somewhere else. He agreed that the seven employees at the airport were principally located there but said that there was no restriction on the employer moving these people to other locations if it became necessary. Indeed, other than for the Canada Games, the seven persons had worked exclusively at the airport up until the. filing of the application for certification. A Mr. Tolmie, who works at the airport, has a dual licence to act as a private investigator and as a security guard. Accordingly, he has been assigned to investigations from time to time both at and away from the airport. Another employee, Mr. Lejeaune, was said to have been on patrol away from the airport for roughly one hundred and ninety-eight (198) hours during the month of December and Mr. Lejeaune is one of the three additional people who come to the airport on an "as needed" basis. At other times these three employees are either on patrol or providing guard duty services to the mail processing plant...
This brings us to the bargaining unit configuration problem. The Board usually gives municipal wide bargaining units and does not confine certification to a particular plant or workplace location. However, where there is more than one plant or workplace within a municipal area, the Board must determine whether a single location is appropriate. Where there is no substantial interchange between workplaces or work locations and where the location in question is not so small in terms of the number of employees as to fragment the collective bargaining process unduly and undermine the viability of a particular bargaining unit, a single location will be granted. On the fact before us we cannot conclude that there is substantial interchange or that a unit confined to Thunder Bay International Airport constitutes undue fragmentation resulting in a bargaining unit that is unlikely to be viable.
In that case the bargaining unit was comprised of four full-time and three part-time employees. In this case the applicant seeks to represent a bargaining unit of seventeen full-time employees.
In support of the more comprehensive bargaining unit the employer relies on the fact that there is a centralization of managerial and labour relations authority, the nature of the work performed at each facility is very similar, the skills of employees are similar and that therefore the employees in the more comprehensive bargaining unit share a community of interest. While that may well be true there is also no doubt that the individuals within the smaller bargaining unit also share a community of interest. As the Board has stated on many occasions, there may well be more than one appropriate bargaining unit. The issue for the panel is whether or not the bargaining unit sought by the applicant is an appropriate bargaining unit. Both parties focused on the amount of interchange between the employees, the respondent arguing that there was sufficient interchange to support the larger bargaining unit, the applicant arguing that evidence of substantial interchange was required before the Board could find that the unit applied for was inappropriate. While the evidence indicates that various employees have experience at different facilities there is limited evidence of the kind of interchange of employees that would affect a bargaining unit configuration. Employees here are not scheduled for work in each of the various facilities on any regular basis. To the contrary, they are assigned to a particular facility and are employed there subject to a transfer request. While it may be that on occasion an employee from another facility has been utilized when part-time staff have been unavailable the evidence does not support the degree of interchange that would suggest that the bargaining unit applied for was inappropriate. We recognize that there may be some administrative inconvenience created for the respondent by describing the bargaining unit by the specific location. There is also a risk to the applicant that its bargaining rights may disappear if the respondent is unsuccessful in renewing its contract with the facility.
In Famous Players Inc., [1990] OLRB Rep. May 509, while the local theatre manager was responsible for certain matters such as hiring, firing, discipline and scheduling, there existed central coordination for training, the setting of wage rates, and for the forms and methods of operation of each theatre. The evidence of the degree and nature of movement of employees between theatres would appear to have been greater than the evidence in the instant case. Having reviewed the case law at some length the Board in that case concluded that it was satisfied that the single location bargaining unit sought by the applicant was an appropriate unit. Although the respondent herein operates a more centralized personnel function we are not, on balance, persuaded that the facts of this case are so distinguishable as to suggest a different result.
Having regard to the above we therefore find that all security guards employed by the respondent at the Toronto East General Hospital, in the Municipality of Metropolitan Toronto, save and except supervisors, persons above the rank of supervisor, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation constitute a unit of employees of the respondent appropriate for collective bargaining.
Having regard to the list of employees and to the valid membership evidence filed by the applicant, the Board is satisfied that more than fifty-five percent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on June 17, 1991, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
A certificate will issue to the applicant.
DECISION OF BOARD MEMBER D. G. WOZNIAK; August 7, 1991
I dissent.