[1993] OLRB Rep. December 1346
2454-93-R Labourers' International Union of North America, Local 1059, Applicant v. Ogden Allied Building Services Inc., Responding Party
BEFORE: Russell G. Goodfellow, Vice-Chair.
APPEARANCES: John Moszynski and Jim McKinnon for the applicant; Lorenzo Lisi and Nick Paulozza for the responding party.
DECISION OF THE BOARD; December 16, 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 issue in this case is whether the applicant should be certified to represent a unit of the respondent's employees described by reference to the "City of London" or to the specific street address where the respondent currently performs services. The applicant is seeking the former, the respondent requests the latter.
At the outset of the hearing, the Board asked the respondent why the Board ought to depart from its normal practice of certifying by reference to the municipality where the employer has operations at only one location in the municipality, and directed the respondent's attention to the Board's recent decision in Burns International Security Services Limited, [1993] OLRB Rep. June 480. The respondent replied that building services, unlike security services, may support an exception to the Board's practice and that it was not satisfied that the Burns case adequately addressed the arguments it wished to make concerning section 64.2 of the Act. The respondent also suggested that it was unclear from the Burns decision whether the employer had been seeking a site specific certificate or one described by reference not just to the site but to the particular client serviced at the site.
On that basis, the Board determined that it would hear the parties' submissions on the following facts agreed upon at the hearing.
I
The employer provides cleaning and maintenance services to building owners and operators. Its cleaning activities are of two types, hard and soft. Hard cleaning involves operating machinery such as a buffing machine. Soft cleaning involves, for example, collecting garbage, dusting, and washroom maintenance. Hard cleaning tends to require more full-time people than soft cleaning.
Maintenance work includes everything arising from the operation of the contract on the property, such as the operation and repair of boilers or air exchange systems in the building. Maintenance work tends to be performed in the day time and may require the services of a fourth class engineer. It may also involve more day to day interaction with the building manager than cleaning services.
The employer acquires its contracts by tender on a site specific basis. The type and extent of services provided may vary from site to site. Under the present contract at the Royal Bank Building in London, the employer provides cleaning services in the evenings from Monday to Friday. The employer has no other contracts at present in the city of London.
In cities where the employer has more than one contract, there is typically little interdependence between sites. Exchanges of personnel may be limited to emergencies. Depending upon the size of the contract, there may or may not be an on-site manager. Ultimately, all sites report to a central administration in Toronto. At times, management of the company may come to the various sites to deal with common problems or issues. Although separate payroll records are kept for each site, all payrolls are administered centrally at head office.
Industry practice on the geographic scope of the bargaining unit is variable. The employer offered a number of examples of site specific certificates in the city of London, all of which were the product of agreement rather than litigation. The applicant provided examples of municipal-wide collective agreements covering between two and twenty-five sites. In one such agreement, seniority is site specific but recall rights are city-wide.
II
The employer submits that its evidence with respect to industry practice does two things. First, it should relieve any concern the Board may have about any "prejudice" to the union flowing from a site specific certificate. Second, the examples of site specific certificates illustrate that there is a "different type of world" for cleaning services that municipal-wide certificates do not reflect.
The employer also submits that the policy concerns giving rise to the Board's preference for municipal-wide certificates have been alleviated in the building services industry by section 64.2 of the Act, which states in part:
64.2-(1) 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.
(2) This section does not apply with respect to the following services:
Construction.
Maintenance other than maintenance activities related to cleaning the premises.
The production of goods other than goods related to the provision of food services at the premises for consumption on the premises.
(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.
- The employer submits that section 64.2 overcomes the concern that a site specific certificate would permit an employer to move its operations "across the street" at the cost of a trade union's bargaining rights. According to the employer, the union's bargaining rights are now protected no matter what the employer might do. Any successor to an Ogden contract would inherit the union's bargaining rights and collective agreement by operation of law. On that basis, the employer submits, municipal-wide certificates are no longer necessary in this industry and, in this case, the Board should place greater weight on the evidence that employees at a future Ogden site may not share a community of interest with those at the existing site.
III
The Board is not persuaded by the employer's arguments. Taking each in turn, it is not at all clear that section 64.2 was intended to address, or has the effect of addressing, all of the concerns underlying the Board's preference for municipal-wide certificates.
As pointed out by the employer, the concerns that gave rise to municipal-wide certificates in circumstances where the employer operates at only one location in the municipality were outlined in T.R.S. Food Services Limited, [1980] OLRB Rep. Apr. 542 at 543:
Where an employer has only one location within a municipality, the Board's consistent practice, apart from the construction industry, has been to describe the geographic scope of the bargaining unit by reference to the municipality rather than the respondent's particular location. This practice results from a balancing of two competing interests: the individual's interest preserved by section 3 of the Act to be free to join a trade union of his own choice on the one hand, and, on the other, the concern of the Board as well as the union and employees involved in any particular case that sufficient stability adhere to the bargaining rights conferred
While limiting a bargaining unit to the respondent's particular location would give considerable latitude to an individual's freedom to join a trade union of his own choice, it could, at the same time, jeopardize the stability of the bargaining rights conferred upon the union. If an employer moves the location of its operation in a situation where the bargaining unit has been defined by reference to the employer's street address, the union's bargaining rights may be extinguished by the move. The Board's general policy of describing the geographic scope of a bargaining unit by reference to the municipality in which the employer's operation is situated instead of the particular location inhibits bargaining rights from being disturbed in this manner.
In T.R.S. the Board was asked to depart from its normal municipal-wide practice in favour of a bargaining unit defined by reference to the particular client serviced in the municipality. The employer argued that "because such a description would ensure that bargaining rights would follow the client anywhere it might move in St. Catharines, the stability of the bargaining rights [was] not at risk". The Board rejected this argument on the following grounds:
The Board is of the view, however, that notwithstanding the absence of the street address, the respondent's proposed geographic description would unnecessarily strain the stability of the bargaining rights. The permanent relationship of the employees involved in this application is with the respondent, T. R. S. Food Services Limited, and not with the respondent's client, General Motors. While some clients in the food service industry may develop a relatively permanent relationship with the particular company engaged in the food service business, neither the length of the contract for food service nor its continual renewal may be taken for granted. To tie the continuation of the applicant's bargaining rights to the client serviced by the respondent would mean that the bargaining rights would be placed in a position of complete dependence on the continuation of the food service contract which existed between the employer and the particular client being serviced at the time of the application for certification. Given the fluctuations of the market place and the competition for such contracts, the Board concludes, on balance, that where the employer has but one location in the municipality, the geographic scope of the bargaining unit should be defined by reference to the municipality in which the respondent is located. We note that in circumstances where an employer has two or more locations in a municipality, additional considerations relating to the actual community of interest shared between the particular locations may become relevant.
(emphasis added)
The highlighted passage in the Board's reasoning reveals at least one flaw in the employer's argument in this case: the permanent relationship of a contractor's employees is not with the particular client serviced, whether or not at a specific site or even within a municipality, but with the contractor itself. By selecting a trade union to bargain on their behalf, employees are expressing a preference for a particular kind of relationship with their employer. It is a preference which the Board, in the exercise of its discretion under various sections of the Act, seeks to protect from a variety of corporate and business changes, including changes in the geographic location of the employer's operations. The assignment of municipal-wide rights to bargain on behalf of employees is intended to ensure that a relocation of operations will not frustrate this expression of employee wishes. It recognizes, as the Board noted in T.R.S., a relationship of permanence with the certified employer, not with the successor or with the particular client serviced.
While clearly intended to protect certain kinds of employee and trade union interests from changes inherent in the building services industry, section 64.2 approaches the problem from a somewhat different and more limited angle. In those industries that depend upon tendering to acquire and keep their business and where the services are carried out at the premises of the customer, section 64.2 is designed to overcome the disruption to the employees' preference for a bargaining agent and, to some extent, their attachment to a particular workplace, by preserving aspects of the status quo in the event the contract is lost. The new and successful tenderer will be bound to recognize the trade union's bargaining rights at the site and to apply the contractually agreed terms and conditions of employment.
By addressing one particular and recurring problem in this industry, however, section 64.2 ought not to be taken as answering all of the concerns that municipal-wide certificates are intended to address. For example, section 64.2 would seem to do nothing for employees who would prefer to continue their relationship with their employer under the established terms and conditions of employment should their employer be replaced at the first site but acquire another contract next door. Under the arrangement proposed by the employer in this case, the employees' preference for a collective bargaining relationship with their employer would be nullified. Employees who wished to remain with their employer at the adjacent location would be forced to surrender the benefits of union representation and any collective agreement. Alternatively, if the new and successful contractor is also unionized, employees may find themselves not only in the employ of a different company but, potentially, represented by a different trade union under different terms and conditions of employment. The approach advocated by the employer ignores this aspect of municipal-wide certificates.
Section 64.2 is of relatively recent origin. The extent of its protections has yet to be determined or its limitations established. At this stage, and in light of the foregoing, the Board is not disposed to find that it answers all of the concerns that municipal-wide certificates were intended to address.
As to the employer's second point, the Board is satisfied that any future Ogden employees would share a sufficient community of interest with the respondent's existing employees to bargain together in a viable way without causing serious labour relations problems. As the Board noted in the Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, collective bargaining has proved itself capable of accommodating a variety of interests within the framework of a single collective agreement. There is nothing in the employer's evidence with respect to the different types or times of work performed at its sites in other cities, or as to the infrequency of interchange of personnel, that could not be addressed in a single collective agreement.
Accordingly, the Board finds that all employees of Ogden Allied Building Services Inc. employed in the City of London, save and except non-working forepersons and persons above the rank of non-working forepersons, constitute a unit of employees of the responding party appropriate for collective bargaining.
In accordance with the Rules of Procedure, the employer has filed a list of employees in the bargaining unit together with sample signatures for the employees on that list. In support of its application for certification, the union has filed documentary evidence of membership in the form of cards. The cards are signed by each employee concerned and indicate a date within the six-month period immediately preceding the application date. The membership evidence is supported by a duly completed Declaration Verifying Membership Evidence.
The Board is satisfied on the basis of all of the evidence before it that more than fifty-five per cent of the employees of the responding party in the bargaining unit on October 13, 1993, the certification application date, had applied to become members of the applicant on or before that date.
A certificate will issue to the applicant.