United Steelworkers of America v. Hawk Security Systems Ltd.
[1993] OLRB Rep. August 751
1091-93-R United Steelworkers of America, Applicant v. Hawk Security Systems Ltd., Responding Part v. Wackenhut of Canada Limited, Intervenor
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. H. Wightinan and B. L. Armstrong.
APPEARANCES: Paula Turtle, Mike Piche and Syed Ali for the applicant; M. Catherine Osborne for the responding party; Brian P. Smeenk and Jack Houle for the intervenor.
DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR, AND BOARD MEMBER B. L. ARMSTRONG; August 5, 1993
1This application for certification came on for hearing on July 26, 1993.
2The applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act. As a preliminary matter, the applicant objected to the intervention by Wakenhut of Canada Limited ("Wakenhut") and submitted that Wakenhut should not be permitted to participate in the proceeding.
3Upon the hearing of the representations of the parties, the Board unanimously ruled, orally, that both the Labour Relations Act and rules of natural justice contemplate that a party in the circumstances of Wakenhut herein is entitled to participate in a certification proceeding if it chooses to do so.
4This application was filed on June 25, 1993. While Hawk Security Systems Ltd. ("Hawk") still employed the employees who are the subject of this application at that time, it had already been announced that Hawk's contract to provide security services to Allied Systems was not being renewed, and that Wakenhut would be providing those security services effective July 16, 1993. This did in fact occur.
5Sections 64(2.1), 64(3), 64.2(1), 64.2(3) and 64.2(4) of the Labour Relations Act provide that
(2.1) If the predecessor employer is a party to any of the following proceedings, the successor employer is a party to the proceeding as if the successor employer were the predecessor employer, until the Board declares otherwise:
A proceeding before the Board under any Act.
A proceeding before another person or body under this Act or the Hospital Labour Disputes Arbitration Act.
A proceeding before the Board or another person or body relating to the collective agreement.
(3) If, when the predecessor employer sells the business, a trade union is the bargaining agent for any employees of the predecessor employer, has applied to become their bargaining agent or is attempting to persuade the employees to join the trade union, the trade union continues in the same position in respect of the business as if the successor employer were the predecessor employer.
64.2-(l) This section applies with respect to services provided directly or indirectly by or to a building owner or manager that are related to servicing the premises, including building cleaning services, food services and security services.
(3) For the purposes of section 64, the sale of a business is deemed to have occurred,
(a) if employees perform services at premises that are their principal place of work;
(b) if their employer ceases, in whole or in part, to provide the services at those premises; and
(c) if substantially similar services are subsequently provided at the premises under the direction of another employer.
(4) For the purposes of section 64, the employer referred to in clause (3)(b) is considered to be the predecessor employer and the employer referred to in clause (3)(c) is considered to be the successor employer.
6The applicant did not dispute Wakenhut's assertion that it is a successor employer within the meaning of section 64.2 of the Act. Accordingly, pursuant to section 64(2.1), Wakenhut is a party unless the Board otherwise declares. The Board's discretion in that respect should be exercised only if there is a good reason to exclude a successor employer in the position of Wakenhut from the proceeding.
7In this case, it was conceded that Wakenhut stands in the shoes of Hawk for labour relations purposes, and that if this application was successful Wakenhut would be the employer with respect to which the applicant would have bargaining rights. As such, Wakenhut has a direct and substantial interest in these proceedings. Further, the Board was unable to discern any reason why Wakenhut should not be allowed to participate. The Board therefor ruled as aforesaid; that is, that Wakenhut was entitled to participate in this proceeding.
8The Board then asked the parties to address the "build-up" issue raised by Hawk and Wakenhut. Hawk and Wakenhut took the position that the Board should not dispose of this application without testing the wishes of the current employees of Wakenhut through a representation vote. Hawk and Wakenhut submitted that the employees of Hawk on the certification application date herein were not representative of the work force employed at the same locations by Wakenhut since July 16, 1993. Hawk and Wakenhut submitted that the wishes of the Hawk employees with respect to this application were not necessarily the same as the wishes of the Wakenhut employees, that the latter group is the one actually effected by this application, and that the Board should therefor exercise its discretion under section 8 of the Labour Relations Act to order a representation vote of the Wakenhut employees in that respect.
9All parties agreed that Hawk had employed 11 persons (9 security guards and 2 others who the two employers assert are "clerical" employees and should not be included in the bargaining unit - see below) at the location to which this application pertains. Wakenhut now employs 13 persons at those same locations, 7 of whom were security guards previously employed there by Hawk.
10Although the applicant did not dispute these facts, counsel said she had information that Wakenhut had not acted properly in offering employment to the incumbent Hawk employees pursuant to the Employment Standards Act, and that Wakenhut had employed the incumbent Hawk employees who accepted its offer of employment on different terms and conditions in breach of the "freeze" provisions (section 81) of the Labour Relations Act. The applicant requested an adjournment to permit it to investigate the situation further and to make the appropriate application to the Board if necessary, and also sought to reserve the right to a quickly scheduled hearing in that respect. Hawk and Wakenhut both opposed the adjournment.
11It has long been accepted that the effect of delay in labour relations matter is generally a negative one; that is, that labour relations delayed are labour relations defeated and denied (Journal Publishing Co. of Ottawa Ltd. v. Ottawa Newspaper Guild, Local 205, OLRB et al, [1977] 1 ACWS 817 (Ontario Court of Appeal)), and that delay in labour relations matters often works unfairness and hardship (Re United Headware and Builtmore - Stetson (Canada) Inc., 1983 CanLII 1618 (ON HCJ), 40 OR. (2d) 287). Delay in the disposition of any labour relations matter is likely to result in some prejudice. This is particularly true in representation proceedings. Consequently, the Board and the Courts have long recognized that it is both in the public interest and in the interests of those directly involved to deal with labour relations matters expeditiously. The recent amendments to the Labour Relations Act and the changes in the Board's procedures underline both the Legislature's and the Board's sensitivity to the need to deal with labour relations matters quickly.
12Subject to the rules of natural justice and fairness, the Board enjoys a broad discretion to determine whether and in what circumstances proceedings before it should be adjourned (Re Flamboro Downs Holdings Ltd. and Teamsters Local 1879, 1979 CanLII 1669 (ON HCJ), 24 O.R. (2d) 400 (Ontario Div. Court)). In recognition of the need to proceed with labour relations matters expeditiously, the Board's well established practice is not to grant an adjournments except on consent of all parties, or where the Board is satisfied that there are extenuating circumstances such that an adjournment is appropriate. No party is entitled to an adjournment as a matter of right or convenience.
13In this case, the parties opposite would not consent to the applicant's request for an adjournment. Nor, in the Board's unanimous view, was an adjournment appropriate in the circumstances.
14By letter dated July 2, 1993, addressed to both Hawk and Wakenhut, the applicant indicated that it understood that Wakenhut was going to take over the contract for security services from Hawk as aforesaid, and took the position that Wakenhut is a successor employer to Hawk. The applicant also alleged that Wakenhut had offered employment to the incumbent Hawk employees on terms and conditions which were in breach of the provisions of the Labour Relations Act and the Employment Standards Act, and, further, that the applicant did not consent thereto. That is, as early as July 2,1993, the applicant had sufficient "information" to prompt it to raise the very allegations it made in the same general way at the July 26, 1993 hearing, but had apparently made little or no further inquiry or investigation in that respect prior to the hearing. The applicant offered no explanation for its failure to pursue the matter prior to the July 26, 1993 hearing.
15It was apparent that the applicant could have and should have conducted the investigation it sought the adjournment to permit it to perform prior to the July 26, 1993 hearing. The Board was not satisfied that an adjournment was appropriate in the circumstances and denied the applicant's request for one in an oral ruling.
16The applicant then submitted that the Board should not determine the "build-up" issue on the basis of the facts then before it because of the information the applicant had that some of the former Hawk employees would now be Wakenhut employees but for Wakenhut's improper conduct, and that this could impact on the Board's considerations.
17The applicant did not dispute the facts asserted. Nor could it specify any other material facts or "information". Again, the applicant had been aware of the "build-up" issue for several weeks prior to the July 26, 1993 hearing, and, as we have already indicated, had concerns regarding Wakenhut's hiring of Hawk employees since at least July 2, 1993. The applicant had had ample opportunity to investigate and prepare to deal with the "build-up" issue. The Board therefor found it appropriate to deal with the issue on the basis of the undisputed facts and so ruled unanimously, again orally.
18Upon considering the representations of Hawk and Wakenhut in that respect, the Board determined that this was not an appropriate case to apply the "build-up" principle developed in the Board's jurisprudence and that it was appropriate to determine the applicant's right to certification on the basis of an assessment of the wishes of the employees in the bargaining unit on the certification application date. Notwithstanding the concurring opinion of Board Member Wightman, the Board held in a unanimous oral ruling, that this was not an appropriate case to order a representation vote pursuant to the Board's discretion under section 8 of the Labour Relations Act, and dismissed the request by Hawk and Wakenhut in that respect.
19The Board may defer consideration of a non-construction application for certification, or order a representation vote in such an application, where it appears that the employees in the bargaining unit at the time the application was made are not a substantial and representative part of the work force which is expected to be employed within a reasonable time. In doing so, the Board seeks to balance the right of current employees to seek to bargain collectively with the right of predictable (in number) future employees to exercise that same choice. As the Board explained in GSW Inc., [1990] OLRB Rep. May 535, at paragraphs 2 and 3:
When the Board grants certification without a vote under section 7, the representation question is determined by the wishes of those employed in the subject bargaining unit on the application date. When the Board directs that a representation vote be conducted, the outcome is determined by the wishes of those employed in the unit on a later date or dates determined by the Board. Over the years, the Board has said it will exercise its discretion under subsection 7(2) of the Act in favour of directing a representation vote so as to enfranchise subsequently hired employees when it is persuaded that, as of the application date, the employer had a firm plan for an imminent 'build-up" of the work force in the bargaining unit to such an extent that those employed in the unit on the application date are not truly representative of those expected to be employed in that unit in the long term. In that event, the Board will also defer both the conduct of the vote and the date as of which voter eligibility is determined until a representative number are so employed.
Before it will direct a deferred vote by reason of planned "build-up", the Board must be persuaded that the plan is "firm", in that its actualization is not dependent on factors beyond the control of the employer, and that the planned build-up will take place within a reasonable period of time. It must also be persuaded that the existing group is insufficiently representative of the expected total. That normally turns on whether the employees employed at the time of the application constitute less than fifty per cent of the level employment will reach as a result of the build-up. In assessing "build-up" situations, the Board generally does not take into account normal fluctuations in the respondent's work force arising out of the cyclical or seasonal nature of the particular business in which it is engaged; (see generally F. Lepper & Ltd., [1977] OLRB Rep. Dec. 846; United Parcel Service Canada Ltd., [1978] OLRB Rep. Feb. 172; Gabriel of Canada Limited, [1981] OLRB Rep. July 876; and Marley Roof Tiles Limited, [1984] OLRB Rep. Mar. 511). For a build up to warrant a deferred vote, then, the number of employees who will be added to the unit during the "build-up" must normally exceed the number employed on the date the application is made.
(See also, Champlain Force Products Ltd., [1972] OLRB Rep. May 399; Inco, [1973] OLRB Rep. March 172; Valdi Inc., [1979] OLRB Rep. June 588; Domco Foodservices Limited [1980] OLRB Rep. Jan. 33; Atlantic Packaging Products Ltd., [1980] OLRB Rep. Feb. 158; Queen's University of Kingston, [1982] OLRB Rep. May 753; University of Windsor, [1983] OLRB Rep. Mar. 478).
20In this case, the so called "build-up" had already occurred by the date of hearing. The number of positions had indeed increased since the certification application date, but only by 2, from 11 to 13. This is far from the kind of increase which would cause the Board to exercise its discretion to order a representation vote as requested by Hawk and Wakenhut. The Board was not satisfied that the "build-up" principle was applicable in this case.
21The real basis for the request for a representation vote was the change in the composition of the bargaining unit rather than the number of employees in it; that is, that "only" 7 of the 13 employees now in the bargaining unit were in it on the certification application date.
22A change in a composition of a bargaining unit is not normally something which the Board takes into account in a certification application. In an application for certification, both the parties and the Board must be able to ascertain the number and identity of the employees in the bargaining unit which is the subject of the application. In that respect, it has long been the Board's practice in other than "build-up" situations not to take into account changes in the number or identity of employees after the certification application date (see, for example, Belier Steel Co. Ltd., [1968] OLRB Rep. July 377; Nordic Air Hauls of Canada Ltd., [1970] OLRB Rep. Jan. 1257). In dealing with an application for certification which does not relate to the construction industry, the Board considers the wishes of employees at work in the bargaining unit on the certification application date, and of employees who though not at work on the application date worked in the unit at any time during the 30 day period immediately preceding the certification application date and worked or are expected to work in the unit at any time during the 30 day period immediately following the certification application date. This "30-30" rule serves as a bright line test for determining the employees who are both present during the trade union's organizing campaign and continue to have a connection with the workplace. Like all other practices or policies of the Board, this practice operates as a general guideline rather than as a rule which is written in stone. However, this particular practice has so proved its worth over the years that there is now a relatively heavy onus on a party which wants the Board to depart from it to satisfy the Board that it is appropriate to do so (as, for example, in a "build-up" situations). That is so now more than ever, given the even greater emphasis on the certification application date since the Act was amended effective January 1, 1993. In this case, 6 of the employees employed in the bargaining unit by Wakenhut were not employed in it by Hawk. Seven of the employees employed in the bargaining unit by Wakenhut were employed in it by Hawk. In other words, there were more employees who continue to be in the bargaining unit then there were new employees in it. The Board has always considered this to be sufficiently representative for certification purposes, even in build-up situations (see GSW Inc., supra).
23The Board was satisfied that the employees at work in the bargaining unit on the certification application date were sufficiently representative of the work force on the date of the hearing that it was appropriate to determine the application on the basis of an assessment of the wishes of those employees without a representation vote, and that there was no other cogent reason to conduct a representation vote as requested by Hawk and Wakenhut. The Board therefor dismissed the request for a representation vote as aforesaid.
24There was partial agreement between the parties with respect to the description of the bargaining unit herein as follows:
all employees of Hawk Security Systems Ltd. working as security guards, at 240 Attwell Drive, 251 Attwell Drive, 254 Attwell Drive, 255 Attwell Drive and 27 Marmac Drive in the Municipality of Metropolitan Toronto, save and except General Manager and persons above the rank of General Manager.
The applicant submits that the words "working as security guards" should not be included in the description. Hawk and Wakenhut submit they should be. As a result of that issue, there is also a dispute between the parties with respect to whether Jeanne Hiles ("security reception") and Shirley Kibyuk ("security switchboard") should be included in the bargaining unit. The applicant asserts they should be included. Hawk and Wakenhut assert that they are "clerical" employees who have no community of interest with the security guards in the bargaining unit and should therefor be excluded.
25Upon an examination of the materials filed, and the membership evidence submitted by the applicant in support of this application, it was apparent that the disposition of the bargaining unit description issue and the employee list issue between the parties could not affect the applicant's right to be certified. Whether or not the disputed words or employees are included in the bargaining unit description or on the list of employees respectively, more than 55 percent of the employees in the bargaining unit were members of the applicant on June 25, 1993, which is the certification application date and the date on which employee support for the application is ascertained under section 8(1) of the Act.
26The Board therefor found it appropriate to exercise its discretion under section 6(2) of the Labour Relations Act to certify the applicant on an interim basis, effective July 26, 1993 (the date of the hearing and the Board's oral ruling in that respect), as the bargaining agent for the bargaining unit described in paragraph 24 above, pending resolution of the matters remaining in dispute.
27We note that there is no interim certification "document" other than this decision (see, P&M Electric Limited, [1989] OLRB Rep. Oct. 1064; and for a discussion of the Board's practice in this respect and the effect of interim certification in general see Comstock Funeral Home Ltd., [1982] OLRB Rep. Oct. 1436).
28With respect to the matters remaining in issue, the Board authorizes a Labour Relations Officer, to be designated by the Board's Manager of Field Services, to inquire into and report to the Board with respect thereto.
CONCURRING OPINION OF BOARD MEMBER W. H. WIGHTMAN; August 5, 1993
The decision as written undoubtedly accords with both the law and Board practice. However, I feel obliged to reflect on the question of the exercise of our discretion under section 8 in light of the application for certification of Hawk employees resulting in the certification of the employees of a totally different employer, Wakenhut.
It seems to me that during the organizing stage employees were being asked if they wished to be represented by the union in their employment relationship with Hawk. Based on hearsay evidence, in the form of membership cards, it would appear the question was answered in the affirmative by more than 55% of Hawk's employees. Although it is agreed that Wakenhut now stands in the shoes of Hawk it strikes me the question "Do you wish to be represented by the Steelworkers in your employment relationship with Wakenhut?", has not been put to either the seven (7) former employees of Hawk, now employed by Wakenhut, or the six (6) employees hired by Wakenhut.
While I do not feel the Steelworkers, as opposed to any other union, should be required to go through a second organizing effort, I would have thought the Board might wish confirmatory evidence as to the wishes of Wakenhut employees, inherited or hired directly, and that the confirmation should come in the form of a secret ballot vote.
In other words I feel the Board, in cases such as this, should regard an application for certification as being employer-specific. Had Hawk and Wakenhut been related companies my view might have been different.