United Steelworkers of America v. Shrader Canada Limited
[1993] OLRB Rep. March 246
3012-92-R United Steelworkers of America, Applicant v. Shrader Canada Limited, Responding Party v. Group of Employees, Objectors
BEFORE: Robert Herman, Vice-Chair, and Board Members R. M. Sloan and E. G. Theobald.
APPEARANCES: Robert Healey and Omero Landi for the applicant; Guy Giorno and Anthony M. Speciale for the responding party; Don McGinnis, Leonard M. Jones, Don Sprague, Michael Cain, John Barker, Lynda Roper, and Ron Sonke for the Objectors.
DECISION OF ROBERT HERMAN, VICE-CHAIR, AND BOARD MEMBER E. G. THEOBALD; March 29, 1993
This is an application for certification. The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
The employer, Shrader Canada Limited, filed written submissions, in which it objected to the method by which some of the memberships or applications for membership in the applicant union, the United Steelworkers of America, were obtained, alleging that some of the memberships were obtained through misrepresentation, intimidation, or coercion.
A number of employees filed written indications by the terminal date that they wish to participate in this proceeding. They appeared at the hearing and, as had the employer, raised allegations with respect to the method of collection of the memberships by the applicant. They also expressed numerous reasons for objecting to union representation. The Board orally ruled that it would not entertain the objections that were in the nature of objections to the union being certified. In this respect, section 8(4) of the Act reads as follows:
“ 8.-(4) The Board shall not consider the following evidence if it is filed or presented after the certification application date:
- Evidence that an employee is a member of a trade union, has applied to become a member or has otherwise expressed a desire to be represented by
a trade union.
Evidence that an employee who had become or had applied to become a member of a trade union has cancelled, revoked or resigned his or her membership or application for membership or has otherwise expressed a desire not to be represented by a trade union.
Evidence that an employee who had become or had applied to become a member of a trade union has done anything described in paragraph 2 but has subsequently changed his or her mind by becoming a member again, by reapplying for membership or by otherwise expressing a desire to be represented by a trade union."
Rule 47 of the Board's new Rules reads as follows:
Membership evidence, evidence of objection and evidence of re-affirmation will not be considered by the Board unless the evidence is filed by the application filing date, is in writing, signed by each employee concerned, and is accompanied by the name of the employer and the name, address, telephone number and facsimile number, if any, of a contact person.
As can be seen, evidence of objection must be filed with the Board on or before the application date in the particular proceeding. That was not done so here. Accordingly, to the extent that such objections or representations did deal with matters covered by section 8(4) of the Act, and Rule 47, they were not entertained by the Board. There is however, no requirement that allegations be filed by the application date with respect to matters that allege that memberships submitted by the union are not reliable. For this reason, the Board did entertain the allegations raised by the employer and employees at the hearing which sought to challenge the reliability of the membership evidence. In this respect, the employees were allowed a recess in order to particularize any further allegations they might have in this regard. The Board indicated to the employees prior to such recess that they would not be able to later raise matters which had not already been particularized in writing, or which were not put in writing during the recess. Again, the Board would consider only those matters which were not in the nature of objections to the union, or to becoming unionized.
With respect to the allegations alleging impropriety in the collection of the memberships, after hearing the parties' submissions, the Board provided its decision orally:
"The issue at this stage for the Board is whether the matters particularized in various documents, which are said to undercut the reliability of the membership evidence, are such or raise such matters that the Board ought to further inquire. In this respect, the Board has considered only those matters that have been particularized in writing, as any other matters have been raised too late.
There are two aspects to this issue. First, whether those matters which have been sufficiently particularized are of a nature, assuming them to be true, that the Board ought to further inquire into them or perhaps more accurately, ought to allow evidence to be led by the parties touching on these matters. Second, where the employer has failed to file sufficient particulars of certain matters, whether those allegations should nevertheless proceed.
Looking at all the particulars, the Board is not satisfied that these matters ought to proceed further, or that the Board ought to inquire further or hear evidence into any of them.
With respect to those matters that have been sufficiently particularized, they are not of a nature that would cause us concern with respect to whether the memberships collected and relied upon by the union are proper. A number of promises and statements were made during the organizing campaign; for example, with respect to raises that the union would be able to obtain after certification, and with respect to the union refusing to advise employees of the amount of dues that would be owing to the union. None of these reasons or facts however would cause us to doubt whether the memberships were reliable.
Similarly, with respect to the allegations that English is not the first language of some of the employees, and the further allegation that some of the employees did not understand perhaps what they signed in signing the membership cards, in our view this is not a reason to discount those cards. There is no specific suggestion that an employee did not realize what he or she was signing, even though it is alleged he or she was perhaps unable to read the card. And even if they had not understood everything in the card, there are no particulars suggesting that they signed unwillingly or were coerced in any manner.
Finally, we turn to the employer's argument that, if some of the allegations are insufficiently particularized, the Board ought nevertheless to hear evidence of those matters, given the difficulty of an employer investigating and particularizing fully such concerns. With respect, we do not agree with counsel's submissions in this respect. If matters are not sufficiently particularized, then they will not be allowed to be further pursued. We note that the employees who were named in the particulars filed by the employer had full opportunity to raise these matters themselves, and they were in a position to have fully particularized them, had they so chosen. They did not however do so. We are not referring here to the employees who have appeared before the Board today, but to those other employees who are named in the employer's particulars.
Further, with respect to those particulars that have been provided by the employer (for example, with respect to Gonsalez), they have not been sufficiently particularized. While we recognize that the employer has limitations on its ability to investigate when it hears of potential problems with how a union obtained its membership evidence, there is good reason for this. The Labour Relations Act in effect tells employers not to interfere in organizing campaigns. Since the employees themselves can raise any concerns they might have of this nature, there is no reason to grant to an employer additional leeway, as is requested here, to enable it to cause an inquiry to be made in the absence of sufficient particulars.
In summary therefore, we are not going to pursue these matters further, since they have not been sufficiently particularized or alternatively, since they do not raise matters of sufficient concern.
The Board turned next to the issue of the appropriate bargaining unit. The employees who had participated in the issue of the sufficiency of the memberships chose not to participate in the bargaining unit description dispute.
The bargaining unit requested by the applicant can generally be considered a plant or production bargaining unit, described more particularly as consisting of "all employees of Shrader Canada Limited in the Towns of Oakville, save and except supervisors, persons above the rank of supervisor, office, clerical, technical and sales staff'. The parties were agreed on this general description, subject to seven items in dispute.
First, the parties were in dispute over whether "production facilitators" were "supervisors", or persons above the level of "supervisor", with the applicant asserting that such people were not supervisors, and ought to be included in the bargaining unit.
Second, the parties were in dispute over whether "supervisor trainees" ought to be included in the excluded "supervisor" category, with the employer asserting that such trainees should be treated as supervisors and excluded.
The third, fourth, and fifth disputes all revolve around whether certain positions fall within the "technical" exclusion, and therefore ought to be excluded. The employer asserts that engineers, blender, and quality control people all ought to be treated as technical employees, and therefore excluded from the bargaining unit.
Sixth, the parties were in dispute over whether the "office custodian" ought to be excluded on community of interest grounds, with the applicant asserting that such positions ought to be included in the bargaining unit, and with the employer taking the contrary position.
Seventh, part of the company's business was performed under a division set up by the company and known as Shrader/Malcolm Chemical Warehousing and Distribution Division ("Shrader/Malcolm"). The company asserted that this division ought to be excluded from the bargaining unit, and the applicant asserted that employees of Shrader/Malcolm ought to be included.
In making submissions, the parties were able to agree on a significant number of facts with respect to these disputed items. After hearing the parties' submissions, and in light of certain
comments made by the Board, the parties were agreed that the Board could rule upon the disputes forthwith with respect to production facilitator, supervisor trainee, engineering, blender, and quality control. Accordingly, as ruled orally at the hearing, the Board finds that neither the production facilitator nor the supervisor trainees constitute supervisors, and accordingly both categories of positions are to be included within the bargaining unit. The Board also ruled that engineers did not fall within the technical exclusion, and accordingly engineers as well ought to be included within the bargaining unit. The Board further ruled that both the blender and quality control positions did properly fall within the category of technical employees, and that employees in those two positions were to be excluded from the bargaining unit.
This left two issues remaining in dispute, the position of the office custodian, and whether the employees of Shrader/Malcolm ought to be included or excluded from the bargaining unit. At that stage of the hearing and the application however, the union was in a position to receive an interim certificate, as it appeared that the union had sufficient number of memberships that, regardless of the outcome of the two remaining disputes, it would be automatically certified. Prior to granting the interim certificate and appointing a Board Officer to inquire into the two remaining issues, the parties both asked the Board to deal forthwith with the dispute over the inclusion or exclusion of the Shrader/Malcolm employees. The parties were able to agree on the facts for purposes of this issue, and it was apparent that the submissions on that dispute could be dealt with on that same hearing date. In contrast however, there was no agreement between the parties that the Board ought to deal with the office custodian issue dispute, and it was apparent that evidence would have to be heard to resolve the factual disputes with respect to the duties and responsibilities of the office custodian. The Board therefore ruled that an interim certificate would issue, that the Board would deal that day with the dispute with respect to the Shrader/Malcolm employees, but that a Board Officer would be appointed with respect to the dispute over the office custodian.
Before turning to the Shrader/Malcolm issue, we would comment briefly on the dispute over the office custodian. In order to decide this issue, we must determine whether the office custodian has duties and responsibilities in the plant part of the building, other than duties relating to his membership on the plant Health and Safety Committee. To the extent that the office custodian has little or no such official duties and responsibilities in the plant or production area, then it becomes less likely that the Board will include such an individual in the bargaining unit. However, the parties have not yet had full opportunity to argue this issue.
As noted, the facts relevant to the Shrader/Malcolm dispute were agreed. Since approximately 1953 or 1954, Shrader Canada Limited has been in the business of manufacturing petrochemical products for use in the automotive industry. Shrader would manufacture and blend the chemicals and Shrader's customers would arrange to pick up the chemicals from the Shrader plant. At present, Shrader has approximately fifty to sixty customers of this sort, international in scope.
The bargaining unit in question covers the plant or production employees, and as such includes employees of Shrader who operate the forklifts, who receive, move and store chemicals, and who later ship out the chemicals. The bargaining unit also includes employees who manufacture chemicals.
Sometime before September, 1992, Shrader was approached by one of its main customers, Ford Motor Company of Canada, with the inquiry as to whether Shrader was interested in being responsible for the receipt, storage, and distribution of chemicals on behalf of Ford, to be used by Ford's dealers or agencies throughout Canada. Previously, Ford had distributed chemicals to its agencies itself, but now was looking for an independent company to perform this storage and distribution service. It was agreed that Ford would ship the chemicals to Shrader, already in unit (as opposed to bulk) packaging, which Shrader would then store and subsequently distribute across Canada to the various Ford agencies, approximately six hundred in number. Shrader was not required to manufacture, blend, or package these Ford destined chemicals.
In order to provide this contractual service for Ford, Shrader caused a new department or division to be set up, and it registered the name "Shrader/Malcolm", acquiring proprietary right in that name. No new corporate entity was created, and there is no dispute that Shrader Canada Limited itself remains the only legal entity or employer. Shrader also arranged to have an existing part of the plant area cordoned off with a chain link fence, with the work of Shrader/Malcolm being almost entirely performed within the boundaries of the fenced-off area. The fenced-off area has a separate door, although Shrader/Malcolm employees are not required to use only that door. One of the pre-existing shipping bays of Shrader, also in the cordoned-off area, has been designated to be used in the future exclusively for the Shrader/Malcolm (that is, the Ford) part of the business. Shrader caused special tracks to be laid in the fenced-off area which are required for a particular tow motor. Ford's material is stored within the area, and for the most part shipped out from this area.
Shrader hired a separate workforce for its Shrader/Malcolm division, which at the time of the application consisted of three employees who would otherwise fall within the bargaining unit description. One of the three came from the pre-existing Shrader employee complement. The chemical product is received and packaged at the Shrader/Malcolm shipping bay, by Shrader/Malcolm employees, and is for the most part stored in the Shrader/Malcolm fenced-off area within the larger Shrader plant. The product is subsequently distributed to the dealers through pick-ups by third party shippers (e.g. Purolator) at the ShraderfMalcolm shipping bay.
Although most of the chemicals handled by Shrader/Malcolm have been shipped to it by Ford, approximately 18% of the Shrader/Malcolm product is produced by Shrader itself, in the non-cordoned off plant area. These chemicals are also shipped out by Shrader/Malcolm to the Ford agencies.
As indicated, the company uses the proprietary name of Shrader/Malcolm. Shrader/Malcolm has its own letterhead and phone number, although the phone is answered by the Shrader receptionist.
The Shrader/Malcolm Manager reports to the Assistant General Manager of Shrader, as do the Managers of other Shrader departments. Shrader Canada Limited remains the only legal entity or employer. Shrader/Malcolm's payroll is entered through the Shrader books, although debits and credits are noted to reflect the payment to Shrader/Malcolm employees. Pay cheques for Shrader/Malcolm employees use the Shrader/Malcolm proprietary name. Shrader/Malcolm has its own secretarial complement. Although the Boards of Directors of Shrader Canada Limited and Shrader/Malcolm are not identical, they share the same controlling director.
There are similarities between the duties and responsibilities of the three production or plant employees of Shrader/Malcolm and those of Shrader. Both groups of employees are required to drive tow motors or forklifts. Both groups are hourly rated, both use the same punch-clock system and the same punch-clock. Both groups eat in the same lunch-room, although the Board was advised that the Shrader/Malcolm employees eat in a segregated group. In terms of the actual duties and responsibilities of the two groups, both are involved in the moving and storage of petrochemicals for shipment.
When Shrader/Malcolm first began to operate, for a weekend or two it was necessary for Shrader to arrange for a Shrader employee or two to assist in the Shrader/Malcolm operation. Other than this very limited interchange of employees, at the beginning, Shrader/Malcolm has maintained a separate employee complement with no interchange.
We do not propose to recite the law with respect to the approach the Board brings to the determination of the appropriate bargaining unit. The Board has written on many occasions on this issue, and the parties are quite familiar with the approach taken by the Board. Succinctly put, we consider the appropriate approach to be that as described in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, where the Board characterized the issue as follows; 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?
Returning to the facts, although the employer asserted that the skills of the employees were different, as the forklifts and tow-motors were of a different nature for the Shrader/Malcolm work, we have no real evidence to this effect. To the contrary, the more logical inference, based upon the agreed facts, is that the skills are relatively similar for employees driving machines for either division. Similarly, we have no evidence that the working conditions of employees are meaningfully different in any respect, nor that the nature of what they do during a typical day is meaningfully different. We do not consider it significant that the goods that are being moved within the plant and subsequently shipped out are pre-packaged in units (for the most part) for the Shrader/Malcolm customer but are packaged in bulk for the Shrader customer. It appears as if the employees are engaged in essentially similar jobs under similar working conditions. The Shrader/Malcolm division reports to the same Shrader Assistant General Manager as do other departments of Shrader's. Both workforces are within the same physical plant, adjacent to each other, albeit separated by a chain link fence. There is no evidence of any different needs or interests of the two groups of employees.
In short, we are satisfied that including the Shrader/Malcolm employees in the bargaining unit would mean including a group which has a sufficiently coherent community of interest with the Shrader plant employees such that they can bargain together on a viable basis. Indeed, the two groups do not appear to be meaningfully distinguishable.
Are there any serious labour relations problems that such inclusion would cause for the employer? It was argued that since Shrader/Malcolm is a new business, it requires the flexibility that being unionized would not allow, or that being in the same bargaining unit as other employees would not allow. Even if this were a relevant factor, Shrader itself made the decision to administratively set up the Shrader/Malcolm division in a manner similar to other Shrader departments included in the bargaining unit, accountable through the Shrader reporting hierarchy, paid out of the Shrader payroll. Further, there is no evidence suggesting how flexibility might be meaningfully hampered should these three employees be included in the bargaining unit sought by the applicant. Shrader is still fully able to keep the product lines separate, to the extent that it chooses. Shrader will still be able to hire and direct employees that meet its needs and that have the requisite skills.
Both parties addressed whether problems might result if a strike should occur in the production bargaining unit. The employer was concerned that the inclusion of the Shrader/Malcolm employees, should the production unit strike, would effectively prevent the company from honouring its contract with Ford. While this may be true, it is no reason to find inappropriate a bargaining unit that appears in all other respects to be appropriate. If the bargaining unit were too small, so that it would cause undue fragmentation of the workforce, then there would be more force to the employer's argument. An unduly fragmented workplace might lead to an unending cycle of strikes, which would be of serious concern. But that is not the case here. This applicant here seeks the larger unit. Granting this unit will reduce fragmentation, albeit with the potential for greater bargaining strength to the union. But unless the unit sought is so small as to not be viable, the Board does not try to redress bargaining strengths in determining the appropriate bargaining unit. We are not disposed to find a bargaining unit inappropriate so that an employer can better withstand the potential negative impact of a strike.
In the result, the Board is not satisfied that there will be any serious labour relations problems that will occur because the bargaining unit includes the Shrader/Malcolm employees. The facts simply do not establish that Shrader/Malcolm is effectively a separate business~ with its employees having little community of interest with the other production employees. Had we been so satisfied, we might well have decided otherwise. To the contrary, what has occurred here is really an accommodation by Shrader of the needs of a special and valued customer, rather than the creation of a new business. Shrader has used a new proprietary name, and fenced off a part of its existing plant floor space, in order to serve the needs of Ford, and presumably to do so in a more efficient and effective manner. But this is not an entirely new business, distinct in some meaningful sense, from the Shrader business. It remains the same business Shrader was in before and that it continues to engage in, and one which has employees performing work similar to and under similar conditions as employees in the bargaining unit. The change of name and the new fence do not change this conclusion.
For these reasons, we are satisfied that the employees of Shrader/Malcolm fall within the applied for bargaining unit.
On the basis of all the evidence, the Board is satisfied that, regardless of the resolution of the remaining dispute over the office custodian, more than fifty-five per cent of the employees of the respondent in the bargaining unit, as of the application date, were members of the applicant. Accordingly, pursuant to section 6(2) of the Act, the Board certifies the applicant as bargaining agent for:
"all employees of Shrader Canada Limited in the town of Oakville, save and except supervisors, persons above the rank of supervisors, office, clerical, technical and sales staff."
Clarity Note No. 1
Technical stall includes laboratory and quality control staff, and blender.
Clarity Note No. 2
It is agreed that the production team leaders are supervisors.
Clarity Note No. 3
The employees of Shrader/Malcoim falling within the appropriate classifications are included in the bargaining unit.
Pending the Board's determination or the parties' agreement, the position of office custodian will remain excluded from the bargaining unit.
A Board Officer is hereby appointed to inquire into and report back to the Board with respect to the dispute of office custodian. After receipt of the Board Officer's Report, the parties are directed to make written submissions, should they so choose, with respect to the Report and the conclusions the Board ought to draw based upon it. The Board does not see any need for a further hearing to deal with the office custodian dispute, and is satisfied it could be adequately dealt with on the basis of the written submissions from the parties.
This remaining dispute over the office custodian will be dealt with by the instant panel.
A final certificate must await the final determination of the appropriate bargaining unit.
DECISION OF BOARD MEMBER R. M. SLOAN; March 29, 1993
I dissent from the majority decision with respect to the issue of the Shrader/Malcolm employees.
It is clear to me, and the reasoning in the majority decision does nothing to change this, that from the outset, the Shrader/Malcolm business initiated, was conceived and established by Shrader Canada Limited as a separate distinct entity which was fully distinguishable and independent of the functions then being performed at the Shrader Canada Manufacturing Location.
The uniqueness (and separateness) of the Shrader/Malcolm operation is obvious if we look at the following:
a) Its origin - The business was set up at the request of a customer, Ford Motor Company of Canada, to handle functions described in paragraph 19 of the majority decision.
b) Its function - the business deals almost exclusively with the prime function for which it was established and is not integrated in any significant operating way with the previous operation.
- The product line and the fact that their is no manufacturing or product is a further significantly distinguishing feature.
c) Its staff- the staff at Shrader/Malcolm is separate and distinct and operates independently from the manufacturing business.
d) Its goals - The Shrader/Malcolm business is a separate profit centre set up to deal exclusively with a business that is not, and was never intended to be, part of the manufacturing business.
I agree with the majority when they state in paragraph 32 that the name of the business and the new fence are not, in themselves, of such significance as to influence judgement in this matter.
Of determinative significance however, is the purpose for which the Shrader/Malcolm business was established and its complete operating independence from the manufacturing business. It is clear that in the absence of the manufacturing business Shrader/Malcolm could operate quite independently.
Which leads directly into significant labour relations problems - the majority decision effectively transfers any and all such problems that emanate from the manufacturing business to the separate and distinct Shrader/Malcolm business.
The effect which in my view places an undue and unfair burden upon Shrader Canada's abilities to meet its original intent to operate a separate and distinct business.
I find, without reservation, that for purposes of the Labour Relations Act Shrader/Malcolm is a separate and distinct business and should not be combined with the manufacturing business for collective bargaining purposes.