United Food & Commercial Workers International Union, Local 175 v. Price Club St. Laurent Inc. c.o.b. as Price Club Westminster

[1992] OLRB Rep. October 1098

1535-92-R; 1602-92-R United Food & Commercial Workers International Union, Local 175, Applicant V. Price Club St. Laurent Inc. c.o.b. as Price Club Westmin­ster, Respondent V. Group of Employees, Objectors

BEFORE: Robert D. Howe, Vice-Chair, and Board Members R. M. Sloan and B. L. Armstrong.

APPEARANCES: Douglas J. Wray, Vincent Gentile and Rick Wauhkonen for the applicant; E. L. Stringer, Q. C., J. Third and Brian Loewen for the respondent; A. Paul Davis for the objectors.

DECISION OF THE BOARD; October 15, 1992

1. The name of the respondent is amended to read: "Price Club St. Laurent Inc. c.o.b. as Price Club Westminster". (For ease of reference, the respondent is also referred to as the "Company" in this decision).

2. These are two applications for certification. File No. 1535-92-R pertains to full-time employees, while File No. 1602-92-R pertains to part-time employees and students. In view of the issues that were identified as being in dispute when the parties' representatives met with a Board Officer, another panel of the Board appointed a Labour Relations Officer to inquire into and report to the Board concerning the lists and composition of the bargaining units, and the commu­nity of interest between "office and sales staff' and the employees in the bargaining units proposed by the applicant (also referred to as the "Union" in this decision).

3. On October 9, 1992, prior to hearing the parties' submissions based upon the contents of the Labour Relations Officer's Report (and the exhibits entered during the course of his inquiry), the Board unanimously ruled that the geographic scope of the bargaining units should be "the Township of Westminster", after hearing submissions on that matter. In that oral ruling, the Board noted that it would be open to the applicant to apply for reconsideration if either or both of these applications succeed and the portion of the Township in which the Company's premises are situated is subsequently annexed by the City of London, as the Union anticipates may occur.

4. The parts of the bargaining unit descriptions which are not in dispute, combined with the above ruling, yield the following:

Bargaining Unit #1

all employees of the respondent in the Township of Westminster, save and except supervisors, persons above the rank of supervisor, security guards, persons regularly employed for not more than twenty-four hours per week, and students employed during the school vacation period.

Bargaining Unit #2

all employees of the respondent in the Township of Westminster regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, save and except supervisors, persons above the rank of supervisor, and security guards.

Each of the units applied for by the Union also excludes "office and sales staff". It is the respon­dent's position that office and sales staff share a community of interest with the employees in the bargaining units proposed by the Union, and that their exclusion would cause serious labour rela­tions problems for the Company. There is also a dispute between the applicant and the respondent with respect to which classifications fall within the ambit of "office and sales staff". Both agree that office and sales staff includes N.S.F. clerks, E.D.P. operators, sales auditors, and receptionist. The Union contends that the only other classifications included in office and sales staff are membership clerks, vault clerks, and receiving secretary, while the respondent contends that the only other clas­sifications included are inventory auditors, electronic sales, and tire sales.

5. As submitted by Union counsel and acknowledged by Company counsel, the Board's task in cases of this type is not to define the more or the most appropriate bargaining unit; the Act only requires that the unit determined by the Board be appropriate. (See, for example, Board of Education for the City of Toronto, [1970] OLRB Rep. July 430, at paragraphs 20-22.) Although the Board is generally averse to certifying employee groups where the result is undue fragmentation, the Board must also be cautious that its determination of what is appropriate does not unduly impede the freedoms guaranteed by section 3 of the Act. (See, for example, Flying Dutchman Hotel, [1984] OLRB Rep. Dec. 1718.) In recent years, the approach which the Board has generally applied in making such determinations has come to be framed in the form of the following 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? See The Hospital for Sick Children, [1985] OLRB Feb. 266, at paragraph 21. In that leading case, the Board also expressly recognized that in some situations there may be more than one unit that is appropriate:

…..In any given situation there may not be only one uniquely appropriate bargaining unit. Quite the contrary. As we have already noted, the institution of collective bargaining has shown itself capable of accommodating a variety of bargaining structures, even in broadly similar circum­stances, and in particular situations there may be several alternative and equally appropriate ways of framing the bargaining unit description. There may be varying degrees of "appropriate­ness", with one or more unit descriptions being appropriate, even though some other (usually more comprehensive) bargaining unit might also be appropriate. For example, a single plant unit may be appropriate but so may a multi- plant unit. Full time and part time employees can be segregated, but there are many situations where they have not been....

6. The present case is an instance of exactly that situation. While the bargaining units pro­posed by the respondent might well be appropriate for collective bargaining (by analogy to the approach adopted by the Board in Motor Coach Industries Limited, [1992] OLRB Rep. June 744), so too are the bargaining units proposed by the applicant. Although the exclusion of office and sales staff could possibly result in some limitations on the respondent's current practices in respect of job posting and temporary transfers, the extent of such limitations, if any, can appropriately be determined through the process of collective bargaining if the applicant is successful in obtaining bargaining rights. Moreover, we are satisfied that any labour relations problems which might result from our acceptance of the units sought by the Union would not be sufficiently serious to warrant the rejection of those units. Thus, in the circumstances of this case, we are satisfied that each of the bargaining units proposed by the Union encompasses 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 Company.

7. Although we have accepted the Union's position regarding the exclusion of office and sales staff from the bargaining units, we do not accept in totality its position concerning the scope of that exclusion. Given the nature of their duties and responsibilities and the type of work areas in which they perform them, we agree that the respondent's vault clerks and receiving secretary fall within the scope of "office staff', along with the N.S.F. clerks, E.D.P. operators, sales auditors, and receptionist. Inventory auditors have desks in the respondent's mezzanine level office, but spend the majority of their time counting merchandise on the warehouse floor, where they interact with fork-lift drivers (who help them to access some of the merchandise to be counted), stockers, and a number of other employees who (for the reasons set forth below) we are satisfied should also be included in the bargaining unit, namely, tire sales, electronic sales, and membership clerks (who assist them in locating merchandise). Thus, although inventory auditors spend some of their time in the office, the functions which they perform on the warehouse floor and the extent of their inter­action with other classifications included in the bargaining units lead the Board to accept the Union's contention that they are not "office and sales staff', and should not be excluded from the bargaining units. However, we do not find merit in the Union's contention that membership clerks should be excluded from the bargaining units. With the exception of the two membership clerks (Paul Davis and Jane Whiting) who spend the majority of their time away from the respondent's premises visiting various businesses to solicit new members, and who are conceded by the Com­pany to be "sales staff', we have concluded that membership clerks do not fall within the purview of the "office and sales staff' exclusion. Although their duties and responsibilities include provid­ing information about the respondent's operations to interested visitors, and signing up people who attend at the respondent's premises to become members, they also operate a cash register, provide information to members, handle their complaints and merchandise returns, give them refunds where appropriate, handle merchandise pickup on security items, and perform "door auditing" functions (by standing at the entrance to the warehouse to ensure that the people entering are members and that no mistakes have been made on the sales receipts of members leaving the ware­house with purchases). They are also called upon from time to time to "work on the front end" when additional personnel are needed to assist on the cash registers to accommodate a large num­ber of members waiting in line to pay for their purchases. Thus, on the totality of the evidence, we have concluded that membership clerks (other than those who spend the majority of their time away from the respondent's premises) are neither sales nor office staff, and that they share a greater community of interest with employees in the bargaining units than with the persons who fall within the scope of that exclusion. (In view of our conclusion in that regard, it is unnecessary for the Board to deal with the issue of whether the employees referred to on the respondent's lists as "door auditors" had been reclassified as membership clerks prior to the date of the application, as they are included in the bargaining units either way.)

8. As noted above, the respondent contends that the persons classified as "electronic sales" and "tire sales" should also be excluded from the bargaining unit. The employees classified as "electronic sales" work in the front area of the warehouse floor where the computers, sound systems, televisions, radios, and various other electronic items available for purchase from the respondent are kept. They stock items in the electronic sales area and provide members with prod­uct knowledge concerning those products. Employees classified as "tire sales" perform similar functions in their area in the back of the centre section of the warehouse. Although the product knowledge provided by persons in these two classifications undoubtedly assists members in select­ing electronic equipment and tires, the duties and responsibilities of those positions are very similar to those of the stockers who are undisputedly included in the bargaining units. Thus, despite their job titles, the evidence does not indicate that those jobs involve a sufficient sales component to warrant their exclusion from the bargaining unit as "sales staff".

9. For the foregoing reasons, the Board finds that the following constitute units of employ­ees of the respondent appropriate for collective bargaining:

Bargaining Unit #1

all employees of the respondent in the Township of Westminster, save and except supervisors, persons above the rank of supervisor, security guards, office and sales staff, persons regularly employed for not more than twenty-four hours per week, and students employed during the school vacation period.

Bargaining Unit #2

all employees of the respondent in the Township of Westminster regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, save and except supervisors, persons above the rank of supervisor, security guards, and office and sales staff.

10. For purposes of clarity, the Board notes that "office and sales staff" includes N.S.F. clerks, E.D.P. operators, sales auditors, vault clerks, receptionist, receiving secretary, and mem­bership clerks who spend the majority of their time away from the respondent's premises soliciting new members, but does not include inventory auditors, electronic sales, tire sales, and the respon­dent's other membership clerks. Having regard to the agreement of the parties, the Board further notes for purposes of clarity that the respondent's personnel clerk and payroll clerk are excluded from the bargaining units on the basis that they are either office and sales staff or are employed in a confidential capacity in matters relating to labour relations (within the meaning of section 1(3)(b) of the Labour Relations Act).

11. There is also a dispute between the applicant and the respondent concerning how the part-time or full-time status of the employees affected by these applications should be determined. Union counsel contends that the Board's usual "4/7" test is not appropriate as the applications were preceded by summer weeks in which counsel suggests that some employees were working extra hours to cover for others who were away on vacation. It is the Union's position that the Board should either consider as full-time those persons whom the Company classifies as full-time, or find to be full-time only those employees who worked in excess of twenty-four hours per week in each of the four weeks preceding the certification applications.

12. The Company classifies as full-time employees only those who are consistently sched­uled to work thirty-seven and a half hours per week. As contended by counsel for the respondent, having applied for and agreed to bargaining unit descriptions which incorporate the Board's usual phraseology of "persons regularly employed for not more than twenty-four hours per week" to describe part-time employees, it is not open to the Union to resile from that part of the agreed upon bargaining unit descriptions by requesting the Board to substitute a different cut-off point. (See, generally, Fort Erie Duty Free Shoppe Inc., [1991] OLRB Rep. Nov. 1268, at paragraph 11, and Cor Jesu Re-education Centre of Timmins Inc., [1992] OLRB Rep. March 298, at paragraph 7.)

13. In describing the approach which the Board has generally adopted in distinguishing between full-time and part-time employees, the Board wrote as follows in Trenton Memorial Hospital, [1980] OLRB Rep. Jan. 116:

14. The applicant submits that in the special circumstances of this case the Board should depart from its normal practice in determining which employees are full-time. Generally the Board looks to the period of seven weeks immediately prior to the date of application as a representa­tive period in which to assess the number of hours worked by employees. If during four or more of the seven weeks examined a person works for more than 24 hours per week the employee falls within a bargaining unit of full-time employees. The seven weeks guideline is, of course, a procedural construct, arising from the Board's experience, adopted in certification proceedings to facilitate and give some predictability to resolving the list of employees in the full-time and part-time bargaining units. By adopting this practice the Board has sought to make it easier for the parties appearing before it to reach their own agreement on the status of employees as full­time and part-time, and for employees and their unions to gear their organizing campaigns accordingly. As the Board put it in Sydenham District Hospitat, [1967] OLRB Rep. May 135 at 137:

"The fixing of a reasonable firm period to be considered by the Board in making such a determination has the advantage of consistency which would permit the parties to know in advance what persons are to be considered."

7. The seven week guideline cannot, of course, be applied in an arbitrary way without regard to the case before the Board. But with certification applications now numbering over a thousand each year there is an obvious need for procedural certainty and predictability to serve the expec­tations of the labour relations community. There is, therefore, a substantial onus on any party requesting that the Board depart from procedures like the seven week guideline that are known, accepted and relied on by unions and employers alike.

8. Having regard to the merits of this case the Board is satisfied that it should not depart from its standard method of computing the lists of full-time and part-time employees. Vacation and holi­day periods can influence the composition of a bargaining unit in many applications for certifica­tion. The hiring of employees on short term as replacements and the transfer of employees within an employer's operation are common devices to maintain or adjust production during these periods. Coming as they do at regular and predictable times, these are the kinds of factors which trade unions can and do take in consideration in the planning of their organizing cam­paigns. The Board therefore declines to depart from the application of the seven weeks guide­line in the circumstances of this case.

Similarly, nothing in the circumstances of the applications currently before us (which the Union chose to file on August 26 and September 4, 1992) warrants a departure from the Board's usual approach, as described in that decision. (See also Elizabeth Frey Society of Ottawa, [1985] OLRB Rep. July 1026, at paragraph 26.)

14. The respondent has requested that D. Racinskas be added to its list in respect of File No. 1535-92-R on the grounds that this person's name was inadvertently omitted from the list. Having regard to the fact that the respondent filed a sample signature for Ms. Racinskas by the ter­minal date, and to the fact that the record check conducted by the Labour Relations Officer con­firmed that she should be included in the full-time bargaining unit for purposes of the count, we are prepared to grant that request in the circumstances of this case.

15. Having regard to the agreement of the parties, B. Telfer and D. Freitas are hereby added to Schedule "A" of the employer's list in respect of File No. 1535-92-R. As regards the applicant's requested addition of Ken Darnell, who was discharged by the respondent prior to the filing of that application, it is common ground among the parties that if the Union's section 91 complaint (File No. 1467-92-U) regarding Mr. Darnell's discharge results in his reinstatement, his name would be added to the list. Thus, the resolution of that requested addition must await the disposition of that complaint. (The applicant's request that F. Carrado, C. Thompson, M. Vergi­ho, J. Stenabourgh, and S. Morgan be added to the (full-time) list was abandoned at the hearing of this matter, as was the objectors' request for the addition of Terry Axford.) Since M. Jons' return to work on September 21, 1992 places him within the ambit of the Board's "30/30 rule", he is included in the full-time bargaining unit for purposes of the count.

16. In respect of bargaining unit #1, the applicant has filed membership evidence for 55 of the 101 employees currently included on the respondent's list for purposes of the count (i.e., not more than 55%). Thus, unless the Union's application for certification under section 8 of the Act is granted, the Union will be in a vote position regardless of the disposition of its section 91 com­plaint in respect of Mr. Darnell's discharge, and regardless of whether the petitions filed by the objectors are voluntary or involuntary.

17. In respect of bargaining unit #2, the Union has filed membership evidence for less than forty-five percent of the employees in the bargaining unit. Thus, the application in respect of that unit will be dismissed unless the Union's application for certification under section 8 is granted.

18. As previously scheduled, the hearing of these matters will continue before this panel of the Board on October 21, 1992, at which time the Board will hear submissions concerning the pro­cedure to be adopted in hearing the balance of these applications, and the Union's two section 91 complaints (File Nos. 1467-92-U and 1615-92-U) which the parties have agreed should be heard together with the certification applications.