Retail, Wholesale and Department Store Union AFL-CIO-CLC and its Local 1000 v. The Hudson's Bay Company, 1993 CanLII 7901

[1993] OLRB REP. OCTOBER 1042

3116-92-R Retail, Wholesale and Department Store Union AFL-CIO-CLC and its Local 1000, Applicant v. The Hudson's Bay Company, Responding Party

BEFORE: Judith McCormack, Chair, and Board Members G. 0. Shamanski and E. G. Theobald.

APPEARANCES: James K. A. Hayes, Thomas E. Collins and Robert McKay for the applicant; Wallace M. Kenny, David Crisp and Andre Joron for the responding party.

DECISION OF JUDITH McCORMACK, CHAIR, AND BOARD MEMBER E. G. THEOBALD; October 13, 1993

1. This is an application under section 7 of the Labour Relations Act in which the applicant seeks to combine seven store bargaining units in Southern Ontario.

2. The bargaining units in question include four stores in Windsor, Kitchener, Kingston and Brampton, and three in Metropolitan Toronto. For the most part, they were organized in 1984 and 1985, and at the time they were organized, there were a total of 26 bargaining units certified in nine stores. Since that time, two of the stores have been sold to another company, where the union continues to represent employees.

3. Both parties in this matter referred us to their collective bargaining history, and as a result, we heard considerable evidence in this regard. In the first round of bargaining in 1985, negotiations were conducted on a store by store basis. The effect was that there was one set of negotiations for each store, and bargaining commenced at different times. The negotiating commit­tees from both sides differed in composition from store to store, and there were separate union staff representatives involved. The union tabled a group of generic proposals for each set of negoti­ations, to which specific concerns on the part of employees at a particular store were added. Although the negotiations were conducted on a store by store basis, the agreements reached were incorporated into contracts for each bargaining unit.

4. In the 1987 round of negotiations, the parties initially agreed to hold store by store negotiations as well, but decided they would pick three representative or lead stores. As a result, they set up a schedule of approximately twenty negotiating meetings for Kingston and Windsor and one of the Toronto stores. Again, the union submitted one set of proposals for all locations. While the company had separate packages of proposals for each store, they were virtually identical.

5. The lead store arrangement proved problematic for both sides. From the company's point of view, the effect was that negotiations were repetitive and frustrating. As a result, the bar­gaining turned into a sort of running discussion where according to David Crisp, the company's Vice-President of Human Resources, the parties were essentially treating them as one set of nego­tiations. Thus where the parties had discussed certain proposals at one of the lead store sessions, they would naturally continue on where they had left off when they started the next lead store meeting, rather than discussing the same proposals over again.

6. However, this evolution raised problems from the union's point of view, as the negotiat­ing committees had been set up for store by store negotiations. This meant that there were differ­ent negotiating committees elected from each store, with the effect that as discussions evolved into one set of negotiations at three different locations, each committee would miss out on parts. After three meetings, one in each lead store, the parties agreed to one set of negotiations for all stores, and they altered the composition of their respective bargaining teams to this end. This resulted in one memorandum of agreement for all stores, which was then again turned into collective agree­ments for each bargaining unit. While the union had proposed to formally combine the bargaining units, this proposal was rejected by the company. In this round, the parties also struck subcommit­tees in negotiations to address the questions of commissions and clerical classifications, which were issues specific to certain stores. The purpose of the clerical subcommittee was to try and standard­ize clerical classifications between stores.

7. For the 1989 round of negotiations, the parties again agreed to one set of negotiations for all stores. As in the previous round, the union and the company's initial proposals were the same for all stores. Bargaining was centralized again and all stores were dealt with simultaneously at one bargaining table. One memorandum of settlement was signed for all stores, which was then turned into one collective agreement for each store. The parties also agreed to consolidate the bar­gaining units within each store.

8. In December of 1992, the union gave notice to bargain for the next round of negotia­tions. The following week, Tom Collins, at that time the Canadian director of the union, had a conversation with Andre Joron, Director of Employee Relations for the company, in which they agreed upon some dates for bargaining sessions. Because of the way the last two rounds had pro­ceeded, Mr. Collins assumed that there would be one set of negotiations again. Indeed, the union had drafted its proposals and elected its negotiating committee on this basis. Mr. Joron told Mr. Collins that he was not sure about the process, and Mr. Collins then replied that the union would make an application for consolidation. Mr. Joron responded that he would have to talk to some of his people and get back to Mr. Collins. On January 20th, the company sent the union a letter, pro­posing to negotiate only the Brampton store and the three Toronto stores (Sherway Gardens, Cedarbrae and Warden Woods) at a central table. The union then brought this application on Jan­uary29, 1993.

9. Not surprisingly in light of this history, the contents of the seven collective agreements are now almost identical; there are some minor variations for specific employees and specific classi­fications or circumstances which may not apply to all stores. There are also some differences in wage rates, based on factors such as local labour markets. The union produces one collective agreement booklet for all stores, which the company's staff use as well from time to time.

10. The stores themselves are essentially the same in the sense that they are all branches of a major department store chain. There is some variation in size, and some differences in merchan­dise, services offered and store hours, geared to the area, the clientele and the market niche. This is not necessarily related to geographic location. For example, according to Mr. Collins, the store in Sherway Gardens is more like the Windsor store than Cedarbrae and Warden Woods, the other two Toronto stores, which have a smaller, less up-market clientele. This is true as well for some of the common marketing issues. For example, a question with respect to selling men's clothing may arise both in Windsor and Kingston.

11. Staff at each location perform basically the same functions including sales, clerical and so forth. Some stores might have certain areas contracted out, such as restaurants or hair salons, and there may be fewer supervisors or visual presentation staff at smaller stores. In addition, the mix of full-time and part-time employees varies to some extent.

12. The reporting structure of the Bay is divided into three regions: Eastern, Western and Ontario. In June of 1991, the Kingston store was assigned to the Eastern region. All other stores are in the Ontario region. The six Ontario region store managers in this case report to two geo­graphic regional managers, who then report to one general sales manager. The general sales man­ager for each region reports to the Vice-President of Stores. All stores in this case but the Kingston store have the same general sales manager.

13. In terms of labour relations, the company has a central human resources department which draws up the company's policies and procedures, conducts negotiations, participates from time to time in third step grievance meetings and provides advice to other human resource staff. These include a human resource manager in each store and one for the region, occasionally with an assistant. Mr. Crisp and the central office human resources people have conducted the negotia­tions, although regional managers have been included in the bargaining committees. Benefits and pension plans are the same across Ontario, as are policies and procedures relating to such issues as missing return sales bills, and in-store marketing.

14. Before 1984-85, there were seven regions within the Bay with seven independent buying offices. According to Mr. Crisp, this was a serious problem, especially where they were buying from centralized resources. As a result, the buying operation is centralized. This was accompanied by a centralization generally of the company's operation. Now, the company is having second thoughts about centralization, and more emphasis is being placed on some degree of local flexibil­ity. This is in the service of a philosophy of motivating employees by empowering them, which involves pushing decision-making downwards. Mr. Crisp was of the view that if the company had the money, it would probably expand the number of regions again to five or six. He would also like to see regional managers handling negotiations, although he felt this goal was fast fading into the sunset.

15. On the union side, there is one composite local which represents employees at all stores. The bargaining process is commenced by amendment meetings at each store to generate proposals and to elect members of the negotiating committee - Sometimes several stores are com­bined for this purpose. Then one elected policy committee reviews the proposals and whittles them down from approximately 200 to 60, and one bargaining committee with elected representatives from each store conducts negotiations. Ratification by employees was done by unit in 1985, by store in 1987, and across certain stores in 1989. In both the 1987 and the 1989 rounds, employees were told that the union would not ratify the central memorandum of agreement unless all stores agreed; since they did, it was not an issue.

16. In the 1989 negotiations, a strike vote was conducted by the union. The union tabulated the votes at each of the stores, and then tallied a provincial total, with the idea that they would only strike if 50% of the employees across the province voted to do so. As it turned out, a settle­ment was reached.

17. The parties settled their pay equity plans for all stores at one set of negotiations. Sample questionnaires were developed and all jobs were evaluated together. The results were also evalu­ated with reference to the company as a whole and by job comparisons between companies. (The union also represents some Zellers stores which along with these stores and others are part of the Hudson Bay Retail Group.) At a certain point the parties were unable to agree on comparators and applied to the Pay Equity Commission for assistance. Eventually the parties agreed to find comparators for the two most common jobs in all the stores, sales employee and department head. They then agreed to a scale of corrections for these positions amortized over a period of time. Emerging from this settlement were three plans, one for the three Toronto area stores and Bramp­ton, one for Kingston, and one for Windsor. Although they were essentially the same, there were three plans because of the difference in wage rates in those locations. The Kitchener pay equity plan had already been settled before the union became certified.

18. It appears that grievances are generally handled at the store level for the first and sec­ond stage. At the third level, the union has usually dealt with Mr. Crisp, Mr. Joron, and the regional managers. Most of the grievances filed are resolved at the third stage, or beyond the store level. Despite the fact that the Kingston store is in the Eastern region where the regional office is in Montreal, Mr. Crisp agreed that no one from Montreal has ever dealt with a grievance from the store. However, he believed that the Kingston store had never had a grievance.

19. In expressing his views on the viability of a combined unit, Mr. Collins referred the Board to the provincial bargaining units the union represents in the grocery industry for Dominion stores, A&P and New Dominion stores, Mr. Grocer stores, and No Frills stores. He testified, for example, that the collective agreement for the A&P-New Dominion stores covers one bargaining unit for 100 stores and 5,500 employees. In his view, such an arrangement did not prevent the par­ties from addressing and being responsive to local conditions in terms of profits, sales, size of stores and financial conditions. In this regard, he pointed out that the parties to that collective agreement have included appendices for fifteen financially troubled stores with different classifica­tions, work weeks, hours of work and wage progressions, in response to the deteriorating financial conditions in those stores. Similarly, for Mr. Grocer stores, there are 35 stores, and 1600 employ­ees in one bargaining unit. Again, there are also a number of specific issues with respect to people and wages for specific locations, and the union has on a number of occasions agreed on different terms relating to variations in marketing approaches and local conditions. Mr. Collins also referred to the United States where the union represents department stores such as Macy's from New York to Florida in one bargaining unit, and to United Food and Commercial Workers Union master agreements with Loblaws, A&P and Steinbergs which cover multiple stores.

20. Mr. Crisp did not feel Mr. Collins' comparisons with grocery stores were apt because in his view, grocery stores did not have such individual and distinct markets and cultures as depart­ment stores. He acknowledged, however, that there were differences in terms of market niche between flagship Loblaws, upmarket Ziggy's and No Frills stores, for the same sorts of reasons in terms of local clientele and ethnic markets as the variations in department stores. In addition, he agreed that there were differences between grocery stores in terms of merchandise, and variations in things like whether there were deli counters, bakeries, fish counters, and flowers. As well, he agreed that grocery stores contract out such items as wine, hardware, ticketron, shoes, pharmacies and bank machines. When asked by his counsel about his previous experience as a union side negotiator with the North York secondary school system, where, for example, fifty schools were in one bargaining unit, he said he felt that the schools and teachers were interchangeable, and thus could not be compared to the instant case.

21. Section 7 provides as follows:

7.-(i) On application by the employer or trade union, the Board may combine two or more bar­gaining units consisting of employees of an employer into a single bargaining unit if the employ­ees in each of the bargaining units are represented by the same trade union.

(2) On an application under subsection (ti) that is considered together with an application for certification, the Board may do the following:

1. Combine the bargaining unit to which the certification application relates with one or more existing bargaining units if the certification application is made by the trade union that represents the employees in those existing bargaining units.

2. Combine the bargaining unit to which the certification application relates with other proposed bargaining units if the certification application is made by the trade union applying for certification for the other proposed bargain­ing units.

3. Combine the bargaining unit to which the certification application relates with both existing and proposed bargaining units if the certification application is made by the trade union that represents the employees in those existing bargaining units and that has applied for certification for the other proposed bargaining units.

(3) The Board may take into account such factors as it considers appropriate and shall consider the extent to which combining the bargaining units,

(a) would facilitate viable and stable collective bargaining;

(b) would reduce fragmentation of bargaining units; or

(c) would cause serious labour relations problems.

(4) In the case of manufacturing operations, the Board shall not combine bargaining units of employees at two or more geographically separate places of operations if the Board considers that a combined bargaining unit is inappropriate because the employer has established that com­bining the units will interfere unduly with,

(a) the employer's ability to continue significantly different methods of opera­tion or production at each of those places; or

(b) the employer's ability to continue to operate those places as viable and independent businesses.

(5) In combining bargaining units, the Board may amend any certificate or any provision of a collective agreement and may make such other orders as it considers appropriate in the circum­stances.

(6) This section does not apply with respect to bargaining units in the construction industry.

22. Since it was not suggested that this case involved either a manufacturing operation or the construction industry, we find it useful to set out the Board's discussion of section 7(3) in the recent case of Mississauga Hydro-Electric Commission, [1993] OLRB Rep. June 523:

23. The task of facilitating viable and stable collective bargaining in connection with bargaining units is familiar territory for the Board, which has explored this theme extensively in the context of determining appropriate bargaining units at the point of certification. This is true as well for the proposition of reducing fragmentation, since the Board has sought to avoid undue fragmen­tation in shaping units. Much of the Board's jurisprudence reflects a relatively sophisticated approach to these issues, which has evolved over a number of years of considerable experience. Accordingly, we find it useful to review some of that jurisprudence under section 6 in consider­ing these criteria in the context of combining bargaining units as well.

24. We observe firstly that viability, stability and fragmentation have been interwoven in the Board's determination of bargaining units. A review of the cases indicates that the Board has considered more comprehensive bargaining units and minimizing fragmentation to be key ele­ments in facilitating viable and stable collective bargaining. For example, in The Board of Edu­cation for the City of Toronto, [19701 OLRB Rep. July 430, the Board expressed the view that fragmentation may make it impossible to have a viable and meaningful collective bargaining relationship:

25. The fact-finding process is at all times directed toward and governed by the con­cept of appropriateness and the essence of appropriateness in the context of labour relations is that the unit of employees be able to carry on a viable and meaningful col­lective bargaining relationship with their employer. It is the Board's experience that employees may in some cases subdivide themselves into small groups which may result in an unnecessary fragmentation or atomization of the employees. Thus an employer faced with the possibility of lengthy, protracted and expensive bargaining and the further possibility of jurisdictional disputes among multiple bargaining groups represented by one or more trade unions may find it impossible to carry on a viable and meaningful collective bargaining relationship. The Board therefore is adverse to certifying employee groups where the result is undue fragmentation and in those cir­cumstances the Board will find the unit proposed inappropriate on the basis that a meaningful and viable collective bargaining relationship will not result. See e.g. Waterloo County Health Unit, [19691 January OLRB Mthly. Rep. 1016.

26. The British Columbia Labour Relations Board set out the same kind of factors favouring broader bargaining units in the Insurance Company of British Columbia, [19741 1 Can LRBR 403 (adopted by this Board in National Trust, [1986] OLRB Rep. Feb. 250) where it said at p. 259 as follows:

The simplest reason favouring one overall unit is administrative efficiency and convenience in bargaining. All other things being equal, it is preferable to have only one set of negotiations going on, rather than spreading management efforts among two or three or even more units.

A second administrative factor, this one clearly in the interest of both employer and employees, is the matter of lateral mobility. The presence of several bargaining units, each with their seniority lists and different contract benefits, is an obstacle in the way of an employee's transfer or promotion out of the original unit into which he was hired. This limits the mobility of the employee whose place of residence may have changed and who thus needs a different job or the employee who wants to improve his job position through promotion to a position which has come open in another divi­sion. It also restricts management's range of selection among qualified persons to fill a job.

The existence of a single bargaining unit facilitates the achievement of a common framework of employment conditions - vacations, statutory holidays, overtime, insur­ance scheme, pension plan, and so on. ICBC has developed a wage structure whereby all the positions across every division have been evaluated and placed in some coher­ent relationship one to the other. It is unlikely that this pattern would continue if there were two units represented by different unions. Indeed, if we did not expect dif­ferent terms of employment to emerge, there is no reason to allow separate represen­tation for groups of employees.

Another factor favouring a single large unit is the objective of industrial stability. If there is one union and one set of negotiations, then the risk of strikes has to be less than if there are several unions negotiating separately.

9. In Board of Governors of Ryerson Polytechnical Institute, [1984] OLRB Rep. Feb. 371, the Board noted that in striving to create a viable structure for collective bargaining, a broadly based bargaining unit offers several advantages over a fragmented structure, and went on to elaborate on the undesirable effects of fragmentation, including the increased risk of work stop­pages:

10. Organizational concerns are not the only forces that shape bargaining units. The Board must also strive to create a viable structure for ongoing collective bargaining. See Usarco Limited, [19671 OLRB Rep. Sept. 526; K Mart Canada Limited, [1981] OLRB Rep. Sept. 1250; and Insurance Corporation of British Columbia, 11974] 1 CLRBR 403 (B.C.). From this perspective, a broadly based bargaining unit offers several advantages over a fragmented structure.

11. A proliferation of bargaining units increases the risk of unnecessary work stop­pages. The likelihood of a strike occurring grows with the number of rounds of nego­tiations and may be further increased by competitive bargaining between two trade unions. The potential for mischief is greatest when the work performed in two or more units is integrated. In these circumstances, whenever one group strikes, other employees who are functionally dependent upon struck work are deprived of employ­ment, though they may stand to gain nothing from the strike because their agreement has just been renewed. Even in the absence of functional integration, strikers may erect picket lines that keep other employees away from work, although a concerted refusal to cross a picket line, by employees who are not entitled to strike, is an illegal work stoppage.

12. There are other drawbacks to a multiplicity of bargaining units. Each unit is likely to become an enclave surrounded by legal barriers - designed to enhance the job opportunities of employees within the walls - that impede the mobility of employees. Restrictions on mobility may entail significant costs for an employer whose practice is to frequently transfer employees between jobs that fall in different units. In some cases, these barriers may close natural lines of job progression to the detriment of all concerned. A fragmented bargaining structure also inevitable [sic] spawns jurisdic­tional contests over the allocation of work among units, disputes which in the long run benefit no one. And a proliferation of bargaining units entails the time and trouble of negotiating and administering several collective agreements. From the perspective of an employer with centralized control over labour relations, there is an unnecessary duplication of effort. All of these concerns - work stoppages, restricted employee mobility, jurisdictional disputes and administrative costs - favour consolidated bargain­ing structures, although the force of each vector varies from case to case.

13. Similarly, in Kidd Creek Mines Ltd., [1984] OLRB Rep. Mar. 481, the Board suggested that fragmentation could contribute to labour management problems, tension within and between bargaining units, and an escalation of industrial conflict, and described fragmentation as "a rec­ipe for industrial unrest - if only because in an integrated enterprise it takes only one collective bargaining breakdown to start the whole system unraveling". And in Ponderosa Steak House, [1975] OLRB Rep. Jan. 7, the Board noted that fragmentation could result in a weak employee presence at the bargaining table.

14. Much of this discussion is useful in the context of section 7 as well. Indeed, in Olympia & York Developments Limited, April 8, 1993 (unreported) the Board reiterated some of these views in the context of an uncontested combination application:

15. This bargaining unit description consolidates the above-mentioned employee groupings into a single unit for collective bargaining purposes. It avoids fragmenting a group of building service workers into two legally distinct units, each of which would encompass only a handful of employees. And, of course, if there were two separate units, that could mean: separate bargaining, separate collective agreements, separate seniority regimes, a strike of one or other of these employee groupings at different times, and potentially two trades unions, should one or other of these employee groups choose to displace the Transit Union (as has happened before in this organiza­tion). This is not a recipe for stable or effective collective bargaining, nor (as noted) did the employer appear at the hearing to substantiate any concerns it might have about the proposed consolidated bargaining structure.

In Premark Canada Inc., [1993] OLRB Rep. June 540 the Board also noted the similarity of some of the criteria in section 7(3) to those applied by the Board in section 6:

26. Section 7(3) of the Act outlines three factors that the Board shall consider in an application to combine bargaining units. Section 7(3) directs the Board to look at the extent to which com­bining bargaining units would facilitate viable and stable collective bargaining, would reduce fragmentation of bargaining units, or would cause serious labour relations problems. The parties focused on these three factors. There was no dispute that section 7(4) of the Act did not apply, based on the facts in this case.

27. The factors set out in section 7(3) have long been utilized by the Board pursuant to the exer­cise of its discretion, contained in section 6(1) of the Act, to determine the unit of employees that is appropriate for collective bargaining in an application for certification. An adjudication on the issue of whether or not it is appropriate to combine bargaining units is in some ways simi­lar to a hearing before the Board to determine the appropriateness of a bargaining unit descrip­tion in an application for certification.

Of course, the criteria are also different in some respects from those applied in certifications as the Board observed further in Mississauga Hydro-Electric Commission, sup ra:

At the same time, it is also evident that the Board's approach to combining bargaining units must be somewhat different than the method the Board uses to structure those units at the point of certification. Although the criteria in section 7(3) echo some of the themes addressed by the Board under section 6, there are some notable absences. Section 7(3) does not employ the lan­guage of appropriateness set out in section 6, and there are obvious differences in the kinds of factors relevant even to viability. For example, the Board may not have the same concern that larger bargaining units might impede the right of employees to organize themselves in a combi­nation application, when access to collective bargaining is not an issue. This brings the problems associated with fragmentation and its impact on viable and stable collective bargaining into sharper focus. Indeed, in the absence of this concern, the Board's views on the undesirable impact of fragmentation may suggest a more marked preference for larger units. Likewise, the Board's approach to displacement applications for certification is shaped to some extent by spe­cific considerations with respect to gerrymandering, which may take a different form in the con­text of combination applications.

23. In this case, the company argued that the parties had a viable and stable relationship, that there had been no strikes or lockouts in its eight-year history, and that the Board should not fix what was not broken. In counsel's view, an applicant should have to demonstrate some signifi­cant problem with the existing arrangement, or a compelling reason for combination. The Board addressed a similar argument in Mississauga Hydro-Electric Commission, supra:

24. The employer in this case urged the Board to adopt an approach to section 7 in which bar­gaining units would not be combined unless the applicant could point to serious labour relations problems in the existing bargaining framework. Implicit in this proposition is the idea that since the Board will have initially determined that one or more of the units was appropriate, there should be some significant threshold for an applicant to overcome in terms of subsequent combi­nation. Although at first glance this approach is not without some advantages, further examina­tion reveals a number of flaws.

25. At the outset, it is important to note that the Board has acknowledged the elasticity of the concept of the appropriate bargaining unit. Rather than seeking to ascertain the one perfect bar­gaining unit in each situation, it has recognized that there may be more than one equally appro­priate bargaining unit in a particular case. In The Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, the Board noted as follows:

26. None of this is new of course. The Board has long recognized that the structure and appropriateness of a bargaining unit cannot be determined with scientific preci­sion. 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.

If there can be more than one appropriate unit, the Board's determination at the certification stage may not carry as much weight in a subsequent combination application.

21. In addition, certifications for existing units have taken place over a span of almost fifty years. A number of them were based on assumptions, for example with respect to the part-time employees, which have come under increasing scrutiny in the wake of changing social and eco­nomic conditions. Moreover, as we noted above, some bargaining units may have been shaped to a very significant degree by factors more relevant to certification than combination, such as the concern that larger bargaining units may impede organization. It is also true that bargaining unit determinations in certification applications take place in a context in which the issues are often framed by the parties with reference to the impact it will have on the chances of certifica­tion. The parameters established by the parties in this regard may affect the ultimate decisions. Similarly, many bargaining unit determinations are also based on agreement by the parties, and the Board has often been content to found its decisions in this area on such agreements, even to the point of accepting units it would not normally establish itself. Finally, many existing bargain­ing units are based on historical anomalies. For example, at one time, meat cutters in the retail sector had their own union and a quasi-craft status. When that union amalgamated with another, the pattern of separate organization continued to some extent, so that it is not uncom­mon to see units consisting of meat department employees only, a somewhat unlikely unit to be determined by the Board in the absence of this history. These kinds of historical anomalies can also be found in the printing industry, the health care sector, and so forth.

22. As a result, the current bargaining unit landscape represents a veritable hodgepodge of rational and sound structures, outdated assumptions, specific organizing patterns, historical ano­malies, individual agreements by parties, and Board determinations in a context where the parameters of litigation may have been distorted by strategic concerns. To this extent, it may be difficult to marshal the status quo in aid of an approach to combination orders which requires the applicant to meet a significant threshold.

23. We find it instructive as well that the language of section 7(3) does not suggest that the com­bination of units is to be resorted to only as a remedy for a problem of some kind. A comparison with the phrasing of other provisions such as section 41(2) highlights this difference. That sec­tion sets out criteria which must be met for the Board (as opposed to the Minister) to direct the arbitration of a first contract. Included is a stipulation that the collective bargaining process has been unsuccessful for a number of reasons, including several identified problematic situations. This somewhat more remedial focus is absent from section 7.

24. In addition, section 7(3) uses words like "the extent to which", "facilitate" and "reduce". "Facilitate" is defined in The Shorter Oxford English Dictionary (Oxford: Clarendon Press 1978) as "to render easier; to promote, help forward". This language suggests that it is not nec­essary to establish an existing problem to succeed in an application, but only that the combined unit might make viable and stable bargaining easier, for example. We note as well that section 7(3)(b) refers only to fragmentation, and not undue fragmentation. This also implies a fairly low threshold for an applicant.

25. Counsel for the applicant referred us to cases from British Columbia, including B. C. Ice and Cold Storage Ltd., [1978] 2 Can LRBR 545, where the British Columbia Labour Relations Board established two preconditions for an application for consolidation to succeed: one of the units must no longer be appropriate, and there must be some resulting jeopardy to the employer, potential or present. However, as counsel pointed out, the jurisdiction employed by the British Columbia Board to combine units derives from a general reconsideration power, rather than a specific statutory mandate which sets out criteria. In addition, the British Colum­bia power is used to consolidate units where there are different bargaining agents. Since the effect of combination in these circumstances is to extinguish the bargaining rights of one of the unions, it is not surprising that the British Columbia Board would be inclined to a narrow view of this exercise.

26. We were also referred to two cases from Saskatchewan, including Canada Safeway Limited, (1992) First Quarter, Sask. Labour Report, p. 47 in which the Saskatchewan Labour Relations Board found the B. C. Ice test to be too restrictive. It indicated that the central issue was whether the consolidated unit applied for would be appropriate~ not whether one of the existing units was inappropriate. It then adopted the approach set out in SJBRWDSU v. OK Economy Stores Limited, [1990] 7 Can LRBR 286, where the same Board listed a number of factors in its consideration of whether a consolidated bargaining unit would be appropriate, including viabil­ity, community of interest, organizational difficulties, industrial stability, wishes or agreement of the parties, the organizational structure of the employer and the effect on its operations, and the historical patterns of organization in the industry. The Board went on to suggest that two of those factors would receive particular emphasis in combination applications: firstly, whether the employees in the proposed unit share a sufficient community of interest to warrant consolida­tion, and secondly, whether the consolidated unit will promote industrial stability. At the same time, because the bargaining unit is being considered in the context of consolidation rather than certification, the Board will begin with the premise that an existing unit is appropriate and will look to whether the historical bargaining practices of the parties indicate a community of inter­est in a larger unit which is appropriate, given the considerations referred to above.

27. We find this approach somewhat unsatisfactory in the context of section 7(3) as well. For one thing, if the premise that an existing unit is appropriate simply reflects the fact that this was the configuration determined at the time of certification, this is of limited value for the reasons we set out earlier. Similarly, although we do not discount that some of the factors listed by the Saskatchewan Board may turn out to be useful in the Ontario context to the extent they affect viability and stability, there are a number of caveats worth noting at this time. Like the British Columbia provision, the Saskatchewan section is a more generalized power of reconsideration rather than a specific mandate, and there are significant differences in wording. In this regard, we have already commented on the issue of community of interest in terms of this Board's expe­rience and the language of section 7(3). In addition, while we think that this is some obvious merit in considering on the employer's organizational structure and the effect on its operations under section 7(3), in considering the weight of this we cannot ignore the fact that section 7(4) focuses explicitly on the employer's operations in manufacturing in a way the Legislature did not see fit to apply more generally in section 7(3). Similarly, while we agree that the parties' histori­cal bargaining practices may be of some value, it must be remembered that in Ontario, a party may propose changing the shape of the bargaining unit in negotiations, but cannot press the issue to an impasse without running afoul of the duty to bargain in good faith. Thus where the parties have agreed on a bargaining pattern different from that determined at certification, it may well be very instructive; where the parties have been unable to reach agreement, this fact may be of somewhat limited value.

28. Having carefully reviewed these cases, we are of the view that it is not appropriate to set up a particular onus in the face of the specific criteria set out in section 7(3). The test in the Ontario provision has already been provided by the Legislature. While that test is not exhaustive, and while our understanding of that test may be enriched by the Board's extensive experience in shaping bargaining units to date, the central issue before us is still whether an application meets that test. Accordingly, we find that we must consider whether the consolidated unit sought would, at least to some extent, facilitate viable and stable collective bargaining, reduce fragmen­tation, or cause serious labour relations problems.

We find these comments equally pertinent to the case before us. Moreover, the proposition that an applicant should have to establish some problem with the existing situation before the Board will combine units is even less persuasive in a context where the parties have themselves initiated a sig­nificant degree of combination in practical terms.

24. The company acknowledged that combining the bargaining units in this case would reduce fragmentation. In counsel's view however, it was not undue fragmentation. The issue of what constitutes "undue" fragmentation, as opposed to simply fragmentation, strikes us as a thorny problem, not amenable to either definitive or easy answers. Fortunately, it is not necessary for us to decide this matter, since, as the Board noted in Mississauga Hydro-Electric Commission, supra, section 7(3)(b) refers only to fragmentation.

25. Counsel for the company also referred us to a number of cases where the Board had determined smaller, one location or one department bargaining units were appropriate in the con­text of certification applications, or where the Board referred to a policy discouraging cross-munic­ipality certifications where, among other things, there was no interchange of employees between the different locations. However, as the Board observed in Mississauga Hydro-Electric Commission, supra, determinations of bargaining units in certification cases may involve different considerations:

26. In other words, it is well established in the Board's jurisprudence that facilitating viable and stable collective bargaining in the context of bargaining unit determinations is strongly con­nected to minimizing fragmentation. In certification cases, however, this is tempered by an opposing concern that bargaining units not be described so broadly that they impede access to collective bargaining. In Ryerson, supra, the Board noted that assisting employees to join together for collective bargaining was a fundamental objective of the Labour Relations Act, and that as a result, the Board has been reluctant to establish units that are so broadly based that they defy organization:

27. A trade union may experience insurmountable difficulties in trying to organize employees in a unit that is broadly defined to embrace employees who are geographi­cally dispersed or perform substantially different jobs. As one of the fundamental objectives of the Labour Relations Act is to assist employees to join together for col­lective bargaining, this Board has been reluctant to establish units which are so broadly based that they defy organization. See Ponderosa Steak House, 11975] OLRB Rep. Jan. 7. The public policy of facilitating organization is a two-edged sword. A trade union may propose a unit defined so as to leave unrepresented a group so small that they have no real chance of entering the world of collective bargaining alone. In these circumstances, the Board expands the proposed unit to include the employees in question, even though the result may be to dilute support for the union to the point that the application is dismissed. See Board of Education for the City of North York, [19821 OLRB Rep. June 918 at paragraph 7.

28. The design of bargaining units becomes even more complex when the focus of attention is expanded to include not only ongoing collective bargaining but also organizational concerns. The optimal unit for long-term bargaining may be larger than the grouping within which a trade union can be reasonably expected to obtain the level of employee support necessary for certification in the short-run. In other words, there is an inherent stress lurking within the concept of an appropriate bar­gaining unit because it performs two very distinct functions. How has the Board responded to this industrial relations conundrum? The decision in K Mart Canada Limited, supra, at paragraphs 18 to 20, provides an apt illustration. The employer operated four stores in one municipality, the union had organized one at which 127 employees worked, and a certificate was granted for this unit. A broader-based struc­ture was rejected, because it might significantly impede access to collective bargain­ing. However, the Board suggested it would have been "hard pressed" not to certify a municipal unit if the union had organized all four stores, suggesting a consolidated structure would lead to more effective collective bargaining than several smaller units. In other words, the viability of ongoing collective bargaining was compromised to this extent in order to foster self-determination.

29. In the same vein, the Board said in Canada Trustco Mortgage Company, [19771 OLRB Rep. June 330:

In determining the appropriate bargaining unit the Board cannot disregard the labour relations realities before it. When a group of employees signify that they wish to exer­cise their right to bargain collectively, and that grouping is seen by the Board as suffi­ciently conforming to the Board's criteria of appropriateness as a bargaining unit, this Board should not require bargaining in a more comprehensive unit if to do so would effectively impede the access of that group of employees to any collective bargaining at all.

13. Indeed, in K Mart Canada Limited, [19811 OLRB Rep. Sept. 1250, the Board expressed the view that "[wihere, as in the department store sector, collective bargaining has not taken a foot­hold, the Board will lean towards the bargaining structure which best facilitates organization".

14. In other words, the Board may consider factors in fashioning bargaining units at the time of certification which may be less relevant in combination applications where employees are already organized. For example, in Ponderosa Steak House (A Division of Foodex Systems Limited), [1975] OLRB Rep. Jan. 7, the Board noted that in determining appropriateness the Board had developed two general themes of fundamental importance, the right of self-organization and the need for a viable collective bargaining relationship:

Two themes of fundamental importance appear to emerge from these sources, the right of self­organization and the need for a viable collective bargaining relationship.

A primary theme set out in the Labour Relations Act, and affirmed by the Board, is the princi­ple of freedom of association. The preamble to the Act makes it clear that it is the intention of the Legislature to encourage collective bargaining "between employers and trade unions as the freely designated representatives of employees." More specifically, s. 6(1) of the Act expressly provides that the wishes of the employees as to the appropriateness of the unit are to be consid­ered by the Board. In other words, the Act recognizes that it is desirable that employees be able to organize in a form that corresponds with their own wishes. Given this legislative policy favounng the nght of self-organization, the Board must be careful that its determination as to the appropriateness of the bargaining unit has given proper weight to the wishes of the employ­ees. An earlier decision of the Board, The Board of Education for the City of Toronto, July OLRB Monthly Report 430, clearly endorses such an approach. In giving due consideration to the wishes of the employees, the Board, in the absence of contrary evidence must assume that their wishes are expressed by the applicant union as the representative of the employees. This point was made by the Board in Board of Health of the York-Oshawa District Health Unit, (1969) OLRB MR. 340.

The right of self-organization, however, must at times compete with the need for viable and har­monious collective bargaining. Section 6 of the Act specifically requires the Board to determine, not just a unit of employees, but "the unit of employees that is appropriate for collective bar­gaining." In other words, the Board has a responsibility under the Act to create a rational and viable collective bargaining structure, even though the exercise of this responsibility may some­times conflict with the right of self-organization. This responsibility was recognized by the Board in the McMaster University case, (1973), OLRB M.R. 102, and in the Board of Education for the City of Toronto case, supra.

27. More specifically in Coca-Cola Ltd., [1989] OLRB Rep. Jan. 1, the Board referred to Bruce Peninsula & District Memorial Hospital, [1982] OLRB Rep. May 656 in setting out the rea­sons for the one location practice in certification which included, among other things, the right to self-organize, and providing a measure of predictability for organizing purposes. In the latter case, the Board included these quotes from Adams Furniture Co. Limited, [1975] OLRB Rep. June 491 in discussing the one location practice and awarding a multi-location bargaining unit:

28. This does not mean, however, that a regional bargaining unit will never be appropriate. Rather it simply means that such a unit must be consistent with two basic considerations - 1) the right of self-organization; 2) the requirement that collective bargaining relationships be viable.

29. In this case, the applicant has organized all but one of the stores falling within its proposed bargaining unit description, virtually eliminating any interference with the right of self-organiza­tion. This means that in this case considerations of viability assume greater importance.

30. Again in Tip Top Tailors, [1979] OLRB Rep. May 445, the Board also ties in its policy on bargaining unit certifications to the right of employees to obtain union representation, among other things:

31. Having reviewed all of the foregoing and in particular the evidence with respect to transfers, the Board finds that the extended area bargaining unit argued for by the respondent raises an insurmountable obstacle to the rights of any of the employees to obtain union representation. That right is the foundation and base upon which the whole structure of the Act is built. To require the employees of the respondent to organize the whole area which includes so many municipalities would be to defeat the paramount purpose of the Act.

32. Initially the Board determined that a municipality wide unit was appropriate for stores (The Goodyear Service Stores (1964), 65 CLLC ¶16,018). However, in Canada Trustco Mortgage Company, [1977] OLRB Rep. June 330, the Board found that either a one branch unit or a unit consisting of all branches in Southwestern Ontario shared a community of interest. In deciding to certify a one branch unit, the Board again referred to its concerns about access in the passage cited in Mississauga Hydro-Electric Commission, supra, and adopted the views of the British Columbia Labour Board to this effect:

33. As was said by the British Columbia Labour Relations Board in Woodward Stores Vancou­ver Limited, [19751 1 C.L.R.B.R. 114, quoting the earlier lnsurance Corporation of British Columbia, (No. 2) decision of the same Board:

"However, clearly one can't have collective bargaining at all unless there is a unit in which a majority of employees will select a trade union's representative. There are certain types of employees who are traditionally difficult to organize an there are some employers who are willing to exploit that fact and stipulate opposition to a rep­resentation campaign. If notwithstanding these obstacles, a group of employees within a viable unit wishes to have a union represent them, the Board will exercise its discretion in order to get collective bargaining under way. In that kind of situation, it makes no sense to stick rigidly to a conception of the best bargaining unit in the long term, when the effect of that attitude is to abort the representation effort from the outset."

30. In K Mart Canada Limited, [1981] OLRB Rep. Sept. 1250, the Board identified three statutory objectives which must be balanced in determining the appropriate unit in certification applications:

31. Although the Board must be sensitive to the impact of its bargaining unit determinations upon the ability of trade union to organize, there are other factors which must also be taken into account. The objectives of the statute relate not only to the promotion of collective bargaining as a means of determining terms and conditions of employment, but also to a recognition of the principle of individual freedom of choice, and to the creation and maintenance of sound and via­ble bargaining structures. In determining the appropriate bargaining unit the Board does not give effect to one of these aims to the exclusion of the others. Rather, the task which falls to the Board in the exercise of its discretion under section 6(1) of the Act requires a balancing of these statutory objectives in the circumstances of each case.

32. The Board also noted that the concern about fragmentation was weightier where the Board was unable to restructure bargaining units at a future date, as was the case at that time:

33. There are other important considerations which enter the picture as well where the employer operates from two or more locations within the same municipality. Where it is raised as an issue the Board must consider the effect of a broader based unit upon employee access to collective bargaining within the industry. In addition, the Board must recognize the wishes of the employees affected by the particular application to bargain collectively. This latter consider­ation requires the Board to take into account the pattern or organization in the case before it and to balance the pattern of organization against the disruptive effects of excessive fragmenta­tion. The potential for fragmentation takes on an added weight where the Tribunal lacks the authority to restructure existing bargaining units at some future date.

34. Many of the single branch determinations in this sector can be explained by the follow­ing passage in K Mart, supra:

35. As noted earlier the Board must balance a number of statutory objectives in the exercise of its discretion under section 6(1) of the Act to determine which is the appropriate bargaining unit in any given case. It is clear from a review of the authorities that the blanket policy enunciated in the Goodyear decision, supra , with respect to the geographic scope of bargaining units, where an employer conducts essentially similar retail or service store operations at a number of loca­tions in a given geographical area, has given way to a series of considerations which must be made in each case. Viability for purposes of collective bargaining, on an application of commu­nity of interest principles and a consideration of the effect of fragmentation, remains a prerequi­site for a finding of appropriateness. However, the Board recognizes that there may be more than one appropriate unit in any given case. Where there is more than one appropriate unit the Board will attempt to accommodate the desire of the employees on whose behalf the application has been filed to bargain collectively. It follows that in doing so the Board takes into account the pattern of organization. Furthermore, in making its determination, the Board will be mindful of the precedential impact of its decision. Where, as in the department store sector, collective bar­gaining has not taken a foothold, the Board will lean towards the bargaining structure which best facilitates organization.

36. The Board noted in K Mart that in the earlier cases of Goodyear, supra, and Cybermedix Limited, [1979] OLRB Rep Aug. 743, the union had organized all employees in the municipality and was requesting a municipality wide unit, as had the union in Fotomat Canada Limited, [19791 OLRB Rep April 306 and in Tip Top Tailors, [1979] OLRB Rep. May 445. In that sense, these cases were not inconsistent with K Mart decision, the Board said, the latter two because the Board gave favourable consideration to the pattern of union organizing, and took into account the adverse effect upon access to bargaining:

37. The Board has reviewed both Fotomat, supra, and Tip Top Tailors, supra, relied upon by the respondent. The primary issue in both cases is different than that raised in the instant case. In both cases the Board was asked to depart from its standard practice of circumscribing bar­gaining rights by reference to the municipal boundary and to certify on a broader basis. While the Board refused, and certified for all stores within single municipalities, in both cases, its rea­sons for doing so lend support to the position of the applicant in this case. In both these cases the Board gave favourable consideration to the pattern of union organizing, as the applicant asks us to do in this case. In both cases, as in the Goodyear and Cybermedix cases the union organized on a municipal-wide basis. Furthermore, in both cases the Board took into account, as the applicant asks us to take into account in this case, the adverse effect upon employee access to collective bargaining of unit descriptions extending beyond a single municipality. The Board commented in its Fotomat decision that any drawbacks associated with the possibility of the respondent having to deal with a multiplicity of bargaining units "are more than outweighed by the restrictive effect that a single bargaining unit would have on the right of the respondent's employees to decide whether or not they wish to be represented for collective bargaining pur­poses '. Similarly in its Tip Top Tailors decision the Board found that 'the extended bargaining area argued for by the respondent raises an insurmountable obstacle to the rights of any of the employees to obtain union representation."

38. In National Trust, [1986] OLRB Rep. Feb. 250, the Board reviewed the jurisprudence in the service sector at great length. Among other things, the Board was prepared to grant a multilocation bargaining unit even at the point of certification as an option available to an applicant, without signalling a rejection of single branch units:

39. The preamble to the Labour Relations Act discloses a clear legislative predilection toward the fostering of collective bargaining, and nowhere has that predilection been reflected more than in the determination of the "appropriate" bargaining unit under section 6(1). Each time the Board is persuaded to move to a further stage in bargaining-unit determinations, the history of the jurisprudence shows that the effect of that movement generally is to increase the options available to unions for organizing in the province. Exactly as applicant counsel has argued, in other words, the finding, if the Board were to make it, that a grouping of seven certifiable branches within Metro is the appropriate bargaining unit in the facts and circumstances of this case, would not in any way signal a rejection of the basis on which single-branch units have in the past been, or in the future would be, found to be appropriate (or the basis upon which they have been agreed to be appropriate in the present case).

(emphasis original)

This was adopted by the Board in both Harlequin Enterprises Limited, [1987] OLRB Rep. Feb. 226 and in Famous Players, [1990] OLRB Rep. May 509, and the case is cited in other respects in VS Services Ltd., [1987] OLRB Rep. June 931 and The Board of Education for the City of Scarborough, [1987] OLRB Rep. Jan. 119. The Board went on to quote from Canada Trustco, Woodward Stores, Insurance Corporation and K Mart, supra, in this regard, and noted the Bnttsh Columbia Labour Board's practice of certifying single branch store units and combining them sub­sequently. However, the Board also observed that neither the practice of this Board to certify sin­gle store or branch units or the B.C. Board's practice in this regard vitiated the overall principle that "bigger is better" in terms of issues such as fragmentation. Rather, they reflected the Board's concerns about access to collective bargaining.

35. National Trust, supra, was quoted at length in Famous Players where the Board found a single theatre to be an appropriate unit. Again, the Board's decision is based in part on the obsta­cles to organizing a municipal-wide unit would create:

Although fragmentation and a potential multiplicity of bargaining units could result if a single theatre is found to be appropriate, as the jurisprudence recited indicates, those legitimate and significant concerns must be weighed against the obstacles to organizing that would be created by finding a multi-branch bargaining unit to be the only appropriate bargaining unit.

9. It may well be that the employer's prediction will prove to be accurate and the bargaining unit sought by the applicant will not provide it with sufficient bargaining strength to secure any sig­nificant gains for the employees. But this potential bargaining strength problem does not war­rant the conclusion that bargaining would not be viable in what is otherwise an appropriate unit, a unit where employees share a sufficiently coherent community of interest.

10. In summary then, in certification applications the Board has considered a number of factors relating to facilitating organization and fostering self-determination which may not be rele­vant to combination applications, or which may have different implications in this context. As a result, these cases do not suggest to us that the units before us should not be combined.

11. We turn next to three cases which the company suggested pointed away from the com­bination of these units. The case of Bank of Montreal, [1982] 2 CLRBR 380 suffers from some of the same distinctions the Board noted in Mississauga Hydro-Electric Commission, supra, with respect to the jurisprudence of other provinces. As in British Columbia, the Canada Labour Board was operating under a general power of reconsideration, rather than a specific statutory mandate which sets out criteria, which is the case in Ontario. In addition, the Canada Board power is used to consolidate units where there are different bargaining agents. Since the effect of combination in these circumstances is to extinguish the bargaining rights of one of the unions, it is not surprising that the Canada Board, like the B.C. Board might be inclined to a narrower view of this exerctse. In any event, in this case the reason identified by the union for consolidation was bargaining strength, and the Board found that the company had not used the imbalance in power to dilute the union's bargaining strength or render it impotent at the bargaining table. It is not necessary for us to make such a finding in this case, because we are using the criteria set out in section 7(3) rather than bargaining power in considering this application.

12. Similarly, the Alberta cases of Home and Pitfield Foods Limited, [1990] Alta LRBR 244 and Burnco Rock Products Ltd., [1989] Alta LRBR 203 are not particularly relevant. In the former certification application, the Board found that there was no community of interest between the three units applied for, and in the latter, the Board dismissed a reconsideration application on the basis that it was really an untimely and already withdrawn certification application filed under the wrong section of the Code. In any event, the Board was not convinced that it was appropriate to combine when, among other things, the applicant was only seeking to combine a portion of its existing units.

13. Finally, we have examined the printing industry cases submitted to us without finding much assistance. It is clear that the Board will sometimes find smaller, more fragmented units appropriate based on the history of this industry (The Globe and Mail Limited (1963), 63 CLLC ¶16,290; Peterborough Examiner, [1982] OLRB Rep. March 432; The Sault Star, [1983] OLRB Rep. June 980; The Ottawa Citizen, [1987] OLRB Rep. Aug. 1098). On the other hand, even in the same industry the Board will also decide on larger units depending on the circumstances of the case (see TV Guide Inc.,[1986] OLRB Rep. Oct. 1451 and Harlequin Enterprises, sup ra).

14. In the matter before us, the evidence indicates that the company is a relatively central­ized operation, and its approach to labour relations is no exception. Although Mr. Crisp indicated that the company was having second thoughts about the degree of centralization, those reserva­tions do not seem to have been translated into any concrete plans. To say, for example, that if the company had the money, it would probably expand the number of its regions to five or six is a very tentative proposition.

15. The distinctions between stores are relatively minor in the overall picture of the facts of this case. In essence, the stores are all branches of a major department store company, and the functions performed by employees are basically the same, regardless of where they are located. Indeed, it was apparent from the limited differences between stores which the company attempted to highlight that there was in fact a significant degree of standardization. Of those distinctions, many were at best marginal, if not irrelevant to the kinds of labour relations issues involved here. For example, whether a store contacts the central buying office by electronic mail, or as in the case of the Toronto stores, by personal visit, has no bearing on the criteria under section 7(3).

16. In addition, those distinctions were not necessarily geographically based, as noted ear­lier. It was clear that the Toronto stores, which the company was prepared to combine as an alter­native submission, were in some cases more dissimilar than those separated by geography, suggest­ing that those differences were not particularly momentous, even from the company's point of view. In fact, some of the differences dwelt on by the company in these proceedings involved employees such as commissioned and non-commissioned salespeople, who are already in the same bargaining unit.

17. In any event, it was apparent from the evidence before us that local autonomy and mar­ket flexibility were not inconsistent with a combined structure. In their centralized bargaining to date, the parties have from time to time agreed upon specific provisions for particular stores, clas­sifications, or individuals in one set of negotiations leading to one memorandum of agreement. We accept that there is a need to maintain a balance between the convenience and strength of stan­dardization and the need to be responsive to local conditions. However, as the evidence in this case demonstrates, there are a number of ways to do this, including letters of understanding and collective agreement provisions addressing particular problems. There are also other options in terms of bargaining arrangements with respect to the mix of local and central issues, although in this case, it was apparent that the parties had not adopted those options because the number of local issues was relatively minor in contrast to those which the stores held in common.

18. The evidence also indicates that the tension between central and local issues is an important matter for the union as well, which must be responsive to its local members if it is to remain viable. The parties' mutual interest in being alert to this issue means that combining these units does not leave the company particularly vulnerable in this regard.

19. Some of Mr. Crisp's concerns had more to do with maintaining a degree of spontaneity and flexibility in a relationship regulated by collective bargaining than with the size of the bargain­ing unit. For example, he was concerned that the existence of a meal allowance provision in the collective agreement would mean that a store manager would not be able to send out for pizza for employees during inventory. However, this is an issue which is not dependent on whether there is one bargaining unit or seven, as demonstrated by the fact that there are already meal allowance provisions in the collective agreements for these stores. His other examples with respect to poten­tial restrictions in hiring or in conversations between managers and employees seemed unlikely. It is certainly not obvious that a combined bargaining unit would interfere with the promotion and maintenance of individual relationships between employees and their store managers, and there was no cogent evidence that the parties' own centralized bargaining experience had led to any such difficulties.

20. The fact that the company took the position in January of 1993 that only four of the stores should be negotiated at a central table does not strike us as particularly telling, coming as it did shortly after section 7 was added to the Act and in the shadow of this application. While the company suggested that the reason for this change of heart was that the parties had not been able to address individual issues in bargaining, there was no material evidence of this. In fact, the evi­dence suggested the contrary, that the parties had generally been able to successfully accommodate and address local issues where necessary. In any event, this reason was not altogether consistent with the company's willingness to continue to deal with four stores together in bargaining.

21. It was apparent from the company's evidence that the option to return to store by store negotiations was a bargaining chip for the company which it was reluctant to lose. We accept that combining these units may result in some type of shift in bargaining power in this regard. How­ever, this does not appear to be the kind of serious labour relations problem contemplated by sec­tion 7(3) which would persuade us to dismiss this application.

22. Finally, it was evident that Mr. Crisp took a very thoughtful and sophisticated approach to labour relations, contributing to a professional and productive labour relationship between these parties which is in marked contrast to the difficulties experienced by other parties in this sector. However, we do not think that the philosophy of empowering employees is in conflict with com­bining these units, particularly since, as Mr. Crisp acknowledged, any such approach must be inte­grated with a collective bargaining regime. Nor do we find the company's arguments dtstingutshtng the Mississauga Hydro and Premark cases to be very persuasive. There is no question that the facts in this case are different in some respects from each of those cases, and we have considered those differences very carefully. They do not suggest to us that the result should be different for the rea­sons we have set out above.

23. Taking the evidence as a whole, and having regard to the Board's jurisprudence referred to above, we conclude that combining these units would reduce fragmentation, and would facilitate viable and stable collective bargaining without causing serious labour relations problems. As a result, we direct that the seven bargaining units before us be combined. We remain seized with regard to any further remedial relief.

DECISION OF BOARD MEMBER G. 0. SHAMANSKI; October 13, 1993

1. I dissent.

2. Consolidation of existing bargaining units would not serve to facilitate collective bar­gaining in this instance. Indeed, a sufficient community of interest between units is clearly lacking. There are variations in the size of the stores, the merchandise offered, store hours and services available at each of the locations. In addition, some stores have certain areas such as restaurants or hair salons contracted out, while other stores do not. Attempts to bargain collectively in the absence of a clear community of interest will undoubtedly lead to a strain on labour relations.

3. A lack of community of interest is further amplified by the geographical diversity of the stores. The location of the seven units span from Windsor to Kingston. The stores have different markets and they structure their operations accordingly. Combining bargaining units would not ensure the flexibility necessary to continue efficient operations at the individual stores and would ultimately cause serious labour relations harm. At best, I would have combined the three stores in Metropolitan Toronto as one unit while leaving the stores in Windsor, Kitchener, Kingston and Brampton as single units for the purposes of collective bargaining.

4. Furthermore, I find that the cases of Premark Canada Inc., [1993] OLRB Rep. June 540 and Mississauga Hydro-Electric Commission, [1993] OLRB Rep. June 523 are distinguishable from this case. In Premark, supra, one of the two units combined was comprised of three employ­ees. Geographically they were separate, but the community of interest between units was found to be similar and administratively, it made sense to combine the units avoiding unnecessary fragmen­tation. At Hudson's Bay, however, each of the units are comprised of several hundred employees. Leaving them as individual bargaining units, does not constitute fragmentation. In Mississauga Hydro, supra, the consolidation of bargaining units consisted of combining a unit that worked inside the facility with one that worked outside. Clearly, in that case there is not the same geo­graphical concem as in Hudson's Bay because both Hydro units operate out of the same facility.

5. Finally, it seems to me that my colleagues have failed to recognize what the parties to the proceeding have achieved over the past number of years. There is little doubt that the existing bargaining units and the employer have acquired substantial stability and balance through past col­lective bargaining efforts. Surely this harmonious relationship is something that is encouraged rather than denied by the Ontario Labour Relations Act. Disruption by the Board of this equitable relationship between parties is plainly tantamount to tipping the scales of balance.