Ontario Labour Relations Board
[1992] OLRB Rep. July 809
3807-91-R Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union No. 647 Affiliated with Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant v. The Hostess Frito-Lay Co., Respondent v. Group of Employees, Objectors
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members J. A. Ronson and C. McDonald.
APPEARANCES: Linda Huebscher and Don Swait for the applicant; James B. Noonan, Jan. G. Van Der Moop and Jeff Fenerty for the respondent.
DECISION OF VICE-CHAIR, K. G. O'NEIL AND BOARD MEMBER C. MCDONALD: July 7, 1992
- This is an application for certification in which the parties have been unable to agree on the description of an appropriate bargaining unit. The applicant is seeking a bargaining unit of the respondent's drivers in the two Sudbury districts of the respondent's Northern Ontario Region, while the respondent argues that the only appropriate bargaining unit would include all its drivers in the Northern Ontario region. Specifically, the applicant's proposed bargaining unit is as follows:
all employees of the respondent working in Sudbury, Sturgeon Falls, and Espanola, save and except supervisors, those above the rank of supervisor and office staff.
while the respondent's, as clarified at the hearing, is:
all employees of the respondent working in and out of Sudbury, Timmins, Sault St. Marie, North Bay and Kirkland Lake.
The applicant says that the districts other than Sudbury are simply too far flung to be in one bargaining unit, and that it chose a unit of this employer as close to the Board's normal description of a bargaining unit along municipality lines as the circumstances allowed.
The Facts
The following findings of facts were made on the largely undisputed evidence of Jeff Fenerty, the respondent's Regional Sales Manager for Northern Ontario. The applicant called no evidence.
The respondent sells snack foods, which it delivers to merchants' premises in Northern Ontario. The employees who do this delivery work are classified as salesmen, and drive trucks carrying the respondent's products along designated routes which are organized around five district centres in Northern Ontario. Two are in Sudbury with auxiliary "bins" (drop-off points) in Espanola to the west and Sturgeon Falls to the east. The other three are in Timmins, North Bay and Sault Ste. Marie. These are all administered out of Sudbury. Each of these districts has a manager who reports to Fenerty. There is a sixth district centre, Kirkland Lake, which is administered from Rouyn, Quebec, but it was not disputed that it would be part of northern Ontario for labour relations purposes. From the respondent's point of view the northern Ontario region is one cohesive unit.
In 1989, the respondent was formed by the merger of two previous competitors, Hostess and Frito-Lay. At that time routes were set up for the new entity and employees were able to pick routes on the basis of seniority across the Northern Ontario region. Seniority was dovetailed for employees of the two prior corporations. Hostess had been unionized and Frito-Lay had not.
As new stores requiring product delivery open and others close, it is constantly necessary to restructure routes. The routes are organized so that they take approximately forty hours per week to do and have balanced workload and earnings (the salesmen are all paid solely on a commission basis). Between 1989 and 1992, the northern regional structure changed somewhat with the Sudbury district being split into two and the number of routes going from 33 to 38. On January 14, 1991, when Sudbury was divided into two districts, East and West, Sturgeon Falls was taken from North Bay and added to Sudbury East while Espanola was taken from Sault Ste. Marie and added to Sudbury West. These are the locations of the two bins which the applicant seeks to include in the bargaining unit.
Product is shipped from Cambridge, Ontario where there is a unionized production facility. A large portion of the product goes into the Sudbury warehouse and is shipped to Sault St. Marie and Timmins from there but districts can phone in their own orders to Cambridge. Movement of product occurs between districts when overages and shortages occur. What goes which route is organized according to what transport is available. There are 16 receiving locations, or bins, across Northern Ontario.
The respondent has approximately 43 employees, including a Sudbury warehouseman. The drivers are classified as either relief or regional salesmen. Regional salesmen are responsible for servicing customers and increasing sales in a designated area along set routes which can be changed according to the needs of the business. Relief drivers fill in for vacations, sicknesses or temporarily vacant positions. There are three relief drivers scattered around Northern Ontario, who may be assigned anywhere in the northern region. There is a chain sales representative who splits his time half between the warehouse and half serving chain stores where the driver does not put the product on the shelf, as most of the drivers do.
District Managers ask employees if they are interested in moving or knowing about future vacancies. Vacancies are posted where relief people are stationed or where someone has shown interest in moving to a specific district. If more than one person is interested they are filled by seniority in the region.
As well as their regular route duties, salesmen are sometimes assigned special tasks which affect the whole northern region. These have included inventory control, computer and recycling projects, the formation of a health and safety committee (any of the three representatives are available to any employee in the northern region.) Delivery of racks, and the handling of shortages and overages is done according to availability, which does not always fall out along district lines. "Blitzes", of which there have been a couple in the last three years, are organized to concentrate resources on one area, for example, to boost sales. People can be transferred across districts for these events as well.
Usually meetings are held on a district level, although sometimes two districts will combine or a salesmen can go to another district's meeting. The only semiformal meeting attended by people from the whole region is the Christmas party, where everyone spends a weekend.
Payroll is centralized in Cambridge, Ontario, and personnel policies, wages and benefits, are province wide. Local administration of the northern region is done out of Sudbury, which is one cost centre. Problems concerning payroll are dealt with in Sudbury, as is preventive maintenance for the trucks.
Mr. Fenerty was asked by his counsel what the effect would be if the applicant were certified for the bargaining unit it seeks. He responded that it would mean two sets of everything to look after from an administrative point of view. As well he thought he might not be able to make good on promises he had made about opportunities in Sudbury for people from other districts. Further, he said he would not be able to restructure as he had been able to previously to run the day-to-day affairs of the business. He said he would be bound by the carved up district lines and that he could not change routes without bringing people under a new set of rules. He would have no problem with the union's having the whole northern region because that would be all one structure, with which he could work. He maintains that in 1989 he could not split the Sudbury district while the union was in.
The union's cross-examination focused on the fact that there had been a Sudbury district bargaining unit in place at the time of the merger, represented by another union. That union was decertified in October 1990, about a year and a half after the merger. The union asked about the various areas of concern expressed by Mr. Fenerty and how they had operated when the Sudbury district was unionized. The product was shipped much the same way as it is now. Transfer of relief staff was covered much the same way. Salesmen were available and could be required to go to other districts at all times. One employee came to relieve in Sudbury during the currency of the collective agreement. Posting of positions was handled differently for Sudbury. The authority of the district managers has not changed. The regional manager has always had the final say. The supervisory authority of the Sudbury district manager in 1989 is the same as that of the two district managers now in Sudbury. Sudbury was dealt with separately for some proposes, because the same information would not have applied to them at the time.
It was agreed that the Cambridge Hostess Frito-Lay plant is unionized and that the bargaining unit there covers the Municipality of London, dating from before the merger.
The Parties' Submissions
Employer counsel argued that the evidence showed that there was only one appropriate unit for the employees covered by this application. He referred to the Board's well founded aversion to fragmentation in deciding issues of appropriate bargaining units. Citing Usarco Limited, [1967] OLRB Rep. Sept. 526, counsel said that primary amongst the criteria in that case is community of interest. He stressed that the nature of work, the identical conditions of employment, the skills and the administrative structure of the employees are strong indicators of community of interest across Northern Ontario. He specifically cited the posting of positions, the interchange of personnel and the social events. In labour relations terms, the Northern Ontario region is the appropriate unit, in the respondent's view. There is functional coherence and dependence among the several districts. He argued that the only Usarco criterion that did not support the unit the respondent is seeking is geographical circumstances. On this point he stressed that the Board should not be intimidated by the distances in Northern Ontario, that everything is geographically disparate.
Employer counsel acknowledged the Board's jurisprudence to the effect that where there was more than one appropriate unit, the desires of the employees subject to the application would be accommodated if possible. His submission on this point was that given the evidence before the Board, there is not more than one appropriate unit. Rather, there is one functioning interdependent group, interrelated in every respect, doing the same business. To give the applicant's unit in this case, argues counsel, would be to say that if the union thinks there is an appropriate unit they should have it. In addressing K-Mart Canada Ltd., [1981] OLRB Rep. Sept. 1250, counsel submits that it inappropriately assumes that the wishes of the employees are those of the union. He submitted in the alternative that the employees in districts other than Sudbury have probably never been canvassed as to what they think the appropriate unit would be. He therefore suggests an alternative under section 6(1): to canvass the wishes of all the employees in the wider unit proposed by having a vote among all the employees in the northern region. If there was a majority in favour then the matter would be functionally beneficial to both the union and the management.
Respondent counsel also acknowledged that aside from fluid situations or construction units, the Board tends to certify the municipality where the employer is. He underlined that this was not a hard and fast rule and cited various cases in which more than one municipality had been included. He submitted that these cases included situations where there was an integrated operation, regular interchange of employees, a shared community of interest: all of these things should be found on the facts before us. On this point he cited The Board of Health of the York-Oshawa District Health Unit, [1969] OLRB Rep. Feb. 1178, Brantox Holdings Limited, (1969] OLRB Rep. Aug. 609, Domtar Limited, Trucking Division, (1970] OLRB Rep. July 495. He cited Wix Corporation Limited, [1975] OLRB Rep. Aug. 637 as an example of reasons to not go beyond municipality lines and said that none of those reasons exists here. He drew the Board's attention to the case of The Globe & Mail Limited, [1976] OLRB Rep. Nov. 662. The Board there found a province-wide unit to be appropriate. This was done despite the absence of any interchange, based on the employer's and union's past success in province-wide bargaining. Counsel referred to a recommendation to the Alberta Labour Relations Board by a Labour Relations Officer that the Teamsters' drivers for Hostess Frito-Lay should have an Alberta-wide unit. The union, which had proposed a unit of employees employed in Calgary and satellite depots, subsequently withdrew the application. He went on to say that far more significant was what the Teamsters and Hostess Frito-Lay had done in Quebec. On a joint application of the parties in late 1970's they were merged into one province-wide bargaining unit. He suggested that the Alberta and Quebec situation should lend some weight to what is appropriate in Ontario.
Also cited by employer counsel were Besrview Holdings Limited, [1983] OLRB Rep. Feb. 185, Ontario Hydro, [1980] OLRB Rep. June 882, B rock Milk Transport Ltd., [1984] OLRB Rep. May 683 and Coca-Cola Limited, [1989] OLRB Rep. Jan. 1. for the advantages of a broader bargaining unit and the Board's willingness to award them in appropriate circumstances. As to the old bargaining unit in the earlier situation in Sudbury, counsel argued that it should have no weight. It was a unit inherited by successor rights, which predated the current corporate structure. The fact that it was decertified shortly after the merger should be an indication that it was not a viable unit in counsel's view. Counsel argued that to split the one northern regional functional unit would be to sacrifice the interest of the employees and management for short term expediency. He urged the Board to dismiss the application or order a vote and undertook that his client would be bound by the result.
Union counsel characterized the issue as a debate between efficiency for the corporate structure as opposed to the right of employees to organize. She maintains that the unit applied for is very appropriate both in terms of the manner in which the company functions and the geographic description. It is two districts of the five in Northern Ontario. It encompasses one municipality and two smaller outlying bins in Espanola and Sturgeon Falls because of the responsibilities of the District Managers. She argues that Coca-Cola, supra, does not support the employer's proposed unit but the union's. What the union was seeking in Coca-Cola, and which the Board did not grant, is analogous to a unit of Sudbury without the outlying bins. Additionally, if one of the outlying bin areas were described on a municipal basis there would be only one employee and thus they would be denied the right to collectively bargain. Counsel stressed the fact that it has been the Board's practice to not include people in widely separate geographical occasions unless there are compelling reasons. She argues that there are no compelling reasons on the evidence before us. She maintains that the corporate organization is not integrated to the extent each district cannot form an appropriate unit. On the evidence of regional interchange, counsel maintains that it is not as weighty as employer counsel argued. Employees are not interchanged on a daily basis. It is not the kind of situation where an employee will be one day in North Bay and the next day in Sturgeon Falls. It is only where there is an opening in another district or in very specific situations which may or may not happen.
Counsel stressed that the Sudbury people wished to be represented by a union and that the Board should not deny that right. She maintains that the dismissal of the application would defeat their expressed wish to be represented and to engage in collective bargaining. She maintains that the history of what happened in the previous Sudbury bargaining unit, irrespective of the fact that it was inherited, shows that the unit is a viable bargaining unit. Seniority was dovetailed in the Sudbury area and a collective agreement negotiated subsequent to the merger. She asked the Board to infer that the employer was able to operate and that thus it can be a viable unit or at the very least, that there were not insuperable problems. The fact that the employer would prefer not to have to deal with the union in one location is not a reason to deny the Sudbury employees the right to bargain. She cited the fact that there is a bargaining unit in London and one in Cambridge and not a Southern Ontario wide unit to show that a smaller unit can be viable with this employer.
Union counsel cited McDonald's Restaurants of Canada Limited, [1974] OLRB Rep. Oct. 755 and Ponderosa Steak House, [1975] OLRB Rep. Jan. 7. In those cases the Board gave certificates for single stores despite membership in a chain of stores. She submitted that the northern Ontario region is analogous to the chain of stores. In replying to the cases cited by employer counsel, she suggested that much of the Board's jurisprudence is based on the idea that what the parties had done in the past is prima facie evidence of an appropriate unit. In Bestview Holdings Limited, supra, for example, they had a prior large unit and the Board found that that was prima facie appropriate and that is the context in which the statements of the Board about bigger being better should be viewed. Similarly, her client is looking for the same unit as was there before the merger, which should be prima facie viable and appropriate. She argues that since the parties have not developed a broader structure here it does not make sense to go in that direction. Counsel asserts that the Board should be very concerned about the distances between the municipalities involved in the employer's proposed description. She points to the fact that despite a very occasional meeting there are regional meetings. The company operates with five distinct districts under one regional manager.
Union counsel argues that a vote is not an appropriate mechanism to determine the employees' wishes here. The Sudbury employees have made their wishes known and counsel questions the usefulness of the results of such a vote.
Decision
Since the Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, the Board has made it plain that there are many cases in which there is more than one bargaining unit configuration which can be considered appropriate. It suggests a focus on the applicant's bargaining unit in the absence of serious labour relations problems to the employer.
Turning first to the applicant's request, the unit proposed is unusual because it provides more than the Board's usual description, i.e. it is more inclusive than a standard municipal wide bargaining unit. The first issue in this case is whether it is not likely viable because of its place in the administrative unit chosen by the employer, i.e. the Northern Ontario region. The municipality of Sudbury and the two outlying regions is a significant size bargaining unit and represents over a third of the respondent's thirty-eight routes in Northern Ontario. When analyzed according to the Usarco, supra, criteria, there is little to suggest that the unit is inappropriate. Although the employer argues the economic factor, that there is an economic advantage to complete flexibility within the northern region, it is to be noted that Usarco was concerned with transferability between two yards which were both in Hamilton and only 2½ miles apart. We will address this further below. None of the other criteria, source of work, centralized management authority and community of interest indicate that the two Sudbury districts would be inappropriate for collective bargaining.
Having regard to the formulation in The Hospital for Sick Children, supra, the central question is whether there are serious labour relations problems presented by the applicant's proposed unit. The problems raised by the employer are not so serious in our view as to create an obstacle to an otherwise appropriate bargaining unit. None of the issues raised are ones which cannot be bargained about. The applicant's proposed unit is not incompatible with the respondent's administrative structure, in any event, since it is modelled along lines of its own making - its two Sudbury districts. The discussions in Famous Players Inc., [1990] OLRB Rep. May 509 and in Carecor Security Service Inc., [1991] OLRB Rep. Aug. 962 demonstrate that administrative inconvenience is not necessarily a barrier to a certification for a smaller unit than the respondent wishes and that bigger is not always better in the eyes of the Board.
In MacDonald's, supra, the Board found that the extent of transfers demonstrated on the record was minimal and did not tend to create such a relationship among the several MacDonald's restaurants in Windsor to demonstrate that they should be forged into one bargaining unit, or that collective bargaining in one store would have an adverse impact on the operations of the other stores in Windsor. Similarly, we are not of the view that the effect of transfers, even of the "blitz" variety is so extensive as to warrant the fusion of the whole northern region. Canada Trustco Mortgage Company, [1977] OLRB Rep. June 330 is an example of a case in which the employer was seeking all of the branches in the employer's administrative division of south-western Ontario. In that case, in granting the applicant's request for a single branch unit, the board said as follows:
9....
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.
We believe that the situation is analogous here. There is no doubt that a community of interest is shared, as argued, by the larger grouping of the respondent's employees in the Northern Ontario region. This is not to say however that the more normal contours of a municipality (albeit with the unusual adjunct of the outlying bin) does not also describe a group of employees with a community of interest.
Although the Board is not "intimidated" by the large distances in Northern Ontario, there are significant disincentives to cohesion in a bargaining unit that is flung over a such a wide geographical area. The Board's jurisprudence is replete with examples of findings of the viability of a single unit within a municipality. We find the evidence insufficient to endorse a totally unprecedented Northern regional basis as the only appropriate bargaining unit. Nor do any of the precedents cited stand for that proposition.
In weighing the various facts in this case, the evidence about the prior existing bargaining unit is not particularly weighty. The fact that the union was decertified is equivocal. It could indicate many things, including that the structure of the bargaining unit was not appropriate, that the membership had completely changed and was not then desirous of collective bargaining at all, or that the bargaining agent was not suitable for them. However, the evidence of the previous existence of the Sudbury bargaining unit and the capacity to conclude two collective agreements is some evidence supportive of the viability of the unit proposed by the union.
As to the wishes of the employees, we have no reason to doubt that the employees affected by this application as made are represented by the applicant. We do not find there to be sufficient reason to have a referendum on the appropriateness of the bargaining unit.
For all these reasons the Board finds the applicant's proposed bargaining unit to be appropriate for collective bargaining.
The Board finds the applicant to be a trade union within the meaning of section 1(1) of the Labour Relations Act.
Having regard to the material before us, there were sixteen persons on the list of employees. The applicant submitted membership evidence for nine of them. The Board is in receipt of several statements of desire in opposition to the union s certification. However, none of them overlap with the evidence of membership in the applicant, and thus they are numerically irrelevant to the application.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on March 10, 1992, the terminal date fixed for this application and the date which the Board determines, under section 105(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.
A certificate will issue to the applicant for the following bargaining unit:
all employees of The Hostess Frito-Lay Co. working in Sudbury, Sturgeon Falls, and Espanola, save and except supervisors, those above the rank of supervisor and office staff.
DECISION OF BOARD MEMBER J. A. RONSON; July 7, 1992
The Applicant union requests a certificate for a bargaining unit that encompasses the Municipality of Sudbury and the towns of Sturgeon Falls and Espanola. If the Board were to grant this request it would deviate from its normal practice with respect to the scope of the bargaining unit.
Taking the union's lead, the Respondent employer argued that if the Board was inclined to expand the scope of the usual bargaining unit(s), then it should find that its entire Northern Ontario region is the appropriate bargaining unit.
I don't think an employer could present better evidence in support of its request for an all encompassing unit, than the evidence of control and integration that was put before the Board in this case.
In my opinion the principles enunciated in The Hospital for Sick Children case, supra. have no application to this particular case. No matter what is said this case boils down to a matter of distances.
Of primary concern, of course, is the evidence that is before us regarding the wishes of the affected employees in Sudbury, Sturgeon Falls and Espanola.
If we were to depart from the normal Board practice then the evidence before us dictates that the bargaining unit be enlarged to include all of the Northern Ontario region~ rather than being restricted only to Sudbury, Sturgeon Falls and Espanola. But I do not think that this is a situation where the Board should or need deviate from its normal practice.
The Applicant union is entitled to be certified as the bargaining agent for those employees of the Respondent employee in the Municipality of Sudbury, and I would so order.