[1992] OLRB Rep. June 744
2721-90-R Canadian Brotherhood of Railway, Transport and General Workers, Applicant v. Motor Coach Industries Limited c.o.b. as M.C.I. Service Parts Company, Respondent v. Group of Employees, Objectors
BEFORE: Owen V. Gray, Vice-Chair, and Board Members J. A. Ronson and K. Davies.
APPEARANCES: Marilynne Pitcher and Michael Mathews for the applicant; Scott G. Thompson, Tim English, George Normandin, and Laurie Brown for the respondent; Darlene Hawes and Donald Lawrence for the objectors.
DECISION OF THE BOARD; June 30, 1992
- In this proceeding, the applicant sought a bargaining unit consisting of
all employees of the respondent in Newcastle, save and except supervisors, persons above the rank of supervisor, and students employed during the school vacation period.
The respondent and objecting employees took the position that the respondent's "office and clerical staff' should be treated as a separate bargaining unit.
On June 26, 1991 we released our decision that the unit applied for was appropriate. As the applicant had the requisite membership support among those employed in that unit on the application date, we certified the applicant. We indicated that the reasons for our bargaining unit determination would be released at a later date. These are the promised reasons.
When this application was filed, there were twenty-two employees affected by it. Those employees worked in a facility which has, among other things, an office area and a warehouse area. A "shipper", two employees classified as "receiver" and nine employees classified as "picker/packer" worked in the warehouse area. Four clerical employees worked in the office area and six customer service employees worked primarily in the office area.
The facility in question receives and ships parts for buses. The employees who work in the warehouse area are involved in the physical handling of these parts. They also supply information to the office area with respect to what has been received and where it has been put. Data entry clerks enter that information into a computerized database. Customer service employees receive and handle customers' orders and requests for information with respect to parts. In order to answer customer inquiries they often need to get information which can only be obtained by physically examining the parts. At one time the customer service employees were all free to enter the warehouse for that purpose. More recently, the job of gathering information with respect to parts in the warehouse had been allocated to one of the customer service employees, so that the telephones are not left inadequately staffed.
When a customer service employee has firmed up an order for parts, employees in the office area generate an order document which the warehouse employees use to pick and pack the order. This document indicates what items are needed and where they can be found (thus retrieving for the warehouse employees the information they originally supplied). The warehouse employees also have access to the computer database maintained by the office employees, so that they can determine the number and location of parts in inventory. Employees in the warehouse area are expected to use towmotors to move quantities of parts which cannot be carried by hand. Employees in the warehouse area wear safety shoes and a smock. Employees in the office area do not.
One first line manager supervises the employees in the warehouse area, another supervises the customer service employees and a third supervises the four clerical employees. These three first line managers report to a single individual who manages the entire facility.
All of the employees have the same hours of work. They receive the same fringe benefits. The same methods of determining wage rates apply with respect to all positions in the workplace.
When there is a vacancy to be filled in any position in the workplace it is posted and any employee may apply for the position. In the eighteen months prior to the filing of the application, there were four occasions on which an employee moved from an office job to a warehouse job or vice versa. Glen Mason accounted for two of those moves: he started in a warehouse position, spent a year in a customer service position and then returned to the warehouse. He has since been called upon to fill in for a temporarily absent customer service employee. Randy Riopelle went from a receiver position in the warehouse to a customer service position in the office. A woman named Tony went from a customer service position to a warehouse position. The evidence also discloses that there have been moves within the office area between customer service positions and typist or data entry clerical positions.
There is one health and safety committee for the entire facility. The employees had a common smoking committee which met to determine how to deal with that issue; they now have a common smoking area. They share a lunchroom. They have a common Christmas party. They are all involved in functions arising out of the departure of an employee. They are all called upon to share the common goal of seeing that parts are shipped on time and customers are properly serviced. If the facility has a "good month", all of the employees are rewarded with an extra half hour off for lunch on the last Friday of the month.
In argument, reference was made to the considerations outlined in Usarco Limited, [1967] OLRB Rep. Sept. 526 and K Mart Canada Limited, [1981] OLRB Rep. Sept. 1250. The applicant argued that there was a sufficient community of interest among all of the employees affected by this application to warrant including all of them in a single unit for purposes of collect bargaining. Counsel for the employer relied on the statement in H. Gray Limited (1955), 55 CLLC ¶18,011 that it was the Board's "long established policy that in certification proceedings ... the Board ought to place office workers in a bargaining unit separate and apart from other employees, save in the most exceptional circumstances." Counsel for the employer argued that the circumstances before us were not exceptional, and relied on the Board's decision in Leons Furniture Limited, [1976] OLRB Rep. May 232, as a case in which the Board rejected a similar claim that office and warehouse employees should be included in a single unit.
The Board's decision in Leons Furniture Limited, supra, did indeed reject a request that warehouse and office workers be placed in a single bargaining unit. There are both similarities in and differences between the circumstances described in that decision and the circumstances before us. The Board there determined that five different sorts of workers (commission sales people, office clerks, office cleaners, warehouse workers and truck drivers) constituted two appropriate bargaining units. The principles on which the Board determined that there should be two units rather than one are not elaborated in the decision in sufficient detail to be of compelling assistance with the different fact situation we have before us.
In H. Gray Limited, supra, the Board made these observations:
The Board, since its inception, has held the view that the interests of office employees and plant employees are divergent. In the early days of the Board's history, the Board's policy was that "the two groups should be included in the same bargaining unit only if they clearly express a preference for organization along those lines (see Corbin Lock Case, (1944) D.L.S. 7-1109 CCH CANADIAN LABOUR LAW REPORTER Transfer Binder, ¶16,406). Subsequently, in 1946, in the Northern Electric Case (unreported), the Board reconsidered its policy relating to office workers and came to the conclusion, based on the wider experience it had gained by that time, that, in the interests of all parties, office workers should be placed in a bargaining unit separate and apart from other employees, even though, as was the fact in that case, there was evidence that the office employees clearly expressed a preference for inclusion in the same bargaining unit with other employees. In 1947, the Board, differently constituted, held, in the Electric Auto-Lite Case, (1947) D.L.S. 7-1343, CCH CANADIAN LABOUR LAW REPORTER, Transfer Binder, ¶16,499, that a trade union which represented the plant employees of an employer could not be certified as bargaining agent on behalf of his office workers....
Whatever the situation may have been under the legislation in force in 1947, we are unable to find anything in the present Act which confers upon the Board, either expressly or impliedly, authority so to limit the choice of the employees in the present context. ... I am of the opinion that the principle of the Electric Auto-Lite Case (supra) has no application under the present legislation except where a case comes within the terms of section 8 mow section 12] of the Act and that the same trade union, whether it be an "international" or a "local" of an "international", may be certified as bargaining agent for a bargaining unit of office employees as well as for a bargaining unit consisting of other employees. However, nothing I have said here is to be taken as indicating an intention to depart from the long established policy that in certification proceedings - and I am not concerned here with what parties may do in voluntary recognition situations or in collective bargaining following certification - the Board ought to place office workers in a bargaining unit separate and apart from other employees, save in the most exceptional circumstances.
The decision in H. Gray Limited, supra, does not say what sort of "office" and "plant" were contemplated by the long established policy to which it refers, nor does it indicate what circumstances had led the Board to conclude as a general matter that the interests of office employees and plant employees were so divergent as to warrant a "policy" of almost invariable separation. The observation in H. Gray Limited, supra, that the Board had held this view "since its inception" suggests that those circumstances, whatever they may have been, were circumstances prevailing in the mid-1940's when the Board was first established. Reference to the Corbin Lock Case is of no assistance in pursuing these issues, as that decision does no more than recite that "in the opinion of the Board, the interest of employees in a plant and those in an office are so divergent that the two groups should be included in the same bargaining unit only if they clearly express a preference for organization along these lines." Again, there is no description of the characteristics of "plant" and "office" employment or other matters which are said to warrant this opinion. The Electric Auto-Life Case is equally silent on these points, and the unreported Northern Electric Case decision referred to in H. Gray Limited, supra, is not available to us.
The "policy" in question is one which had fully matured more than forty-five years ago. In the state of the reported jurisprudence, we can only speculate on the facts and circumstances which might then have led the Board to articulate a "policy" that office workers would be excluded from a plant unit "except in the most exceptional circumstances." On the face of it, the basis of these pronouncements was its assessment of community of interest. We have no difficulty imagining that circumstances in which plant and office employees shared an adequate community of interest were "exceptional" in the workplaces being organized in the 1940's. It would have made sense for the Board to make it very clear that arguments for inclusion of office workers in the units sought by trade unions were unlikely to succeed, if that was its experience. We do not think that the Board's statements about the conditions of the 40's and 50's can be taken as an undertaking that the Board would continue to apply an "exceptional circumstances" test into the 90's despite changes in the nature of the workplaces being organized.
The nature and kinds of employment and the ways in which jobs are created, staffed and valued have all changed considerably in the last forty-five years. The fact that one person's work area is described as an "office" and another's is not does not always carry with it the same implications as it did forty-five years ago. We imagine that a workplace like this one, where the same pay scheme applies equally to office and "plant" employees and where office employees can apply for and are transferred to "plant" jobs and vice versa, would have been "most exceptional" in the 40's and 50’s. We are not confident that that is so today. In any event, section 6 of the Act requires us to determine what is "appropriate". As the Board observed in Hospital For Sick Children, [1985] OLRB Rep. Feb. 266, at paragraph 23, that involves answering this 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?
The question the Board has to address does not change because office and clerical employees are involved. The question is still whether the unit proposed by the applicant is appropriate, not whether the circumstances can be described as "most exceptional."
The separation of "office and clerical employees" from others in composing a bargaining unit is sufficiently conventional that the Board will act without further inquiry on an otherwise unchallenged agreement by affected parties that such a course of action is appropriate. Equally, given the diversity of modern jobs and of the workplaces in which they are performed, it is also possible today to imagine workplaces in which an "all employee" unit from which "office and clerical employees" are not excluded would be entirely appropriate. The agreement of the parties does not relieve the Board of its obligation to make a finding under section 6 of the Act that a unit agreed to is appropriate. The appropriateness of an inclusive unit is sufficiently plausible, however, that the Board has acted and will act on an unchallenged agreement that it is appropriate without further inquiry and, in particular, without requiring that "most exceptional circumstances" be pleaded or proven.
In this case, the respondent's own treatment of the affected employees as a single unit for purposes of employee relations and the history of employee transfer between the groups which the respondent sought to have us separate demonstrated that the employees in the unit sought in this case shared a sufficiently coherent community of interest that they should be able to bargain together on a viable basis. The employer did not argue that this would cause it any labour relations problems, serious or otherwise. It simply argued that we had been shown no particular reason to "depart" from the "policy" pronounced in H. Gray Limited. For the reasons we have already set out, we did not find that argument compelling. The test propounded in Hospital For Sick Children, supra, having been satisfied, we found that the unit sought by the applicant was appropriate.