[1993] OLRB REP. OCTOBER 1010
1467-93-R Labourers' International Union of North America, Local 1059, Applicant v. Sifton Properties Limited, Responding Party
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members W. H. Wightman and G. McMenemy.
APPEARANCES: Carolyn Hart, Jim McKinnon and Gerry Varricchio for the applicant; Chris White, Ken Morris and Deborah Graham for the responding party.
DECISION OF K. G. O'NEIL, VICE-CHAIR, AND BOARD MEMBER W. H. WIGHTMAN:
October 27, 1993
- This is an application for certification in which the parties have been unable to agree on the description of the appropriate bargaining unit. The applicant is seeking, as its primary position, a bargaining unit made up of cleaners and maintenance workers as follows:
all maintenance and cleaning employees of Sifton Properties Limited at Westmount Shopping Centre, 785 Wonderland Road South, London, Ontario, save and except forepersons and persons above the rank of foreperson.
In the alternative, it proposes including security guards within the unit as well. By contrast, the responding party argues for an all employee unit, subject to certain exclusions which are not disputed by the applicant, as follows:
all employees of Sifton Properties Limited employed at Westmount Shopping Centre, 785 Wonderland Road South, London, Ontario, save and except supervisors and persons above the rank of supervisor, office and clerical staff, engineering and technical staff, and sales staff.
In response, the union takes the position that the customer service representatives are clerical and therefore part of the agreed on exclusions.
At the outset of the hearing the parties canvassed the list of employees who would be in the unit that the responding party is seeking and not in the applicant's proposed unit. After discussion there were no challenges to the list in either proposed unit. These lists show twenty employees in the cleaning and maintenance unit and thirty-five in the unit sought by the respondents. If the applicant's unit were to include security guards there would be twenty-seven employees in the unit.
The panel heard two days of evidence as well as argument on this matter. The pertinent evidence is summarized below. It is fair to say that there was no serious dispute about the facts although there is an important difference in characterization and emphasts.
The responding party (referred to below as "Sifton", or the employer) is in the business of property management. It has built and runs three shopping malls, the Westmount Mall in London, the subject of this application, as well as the Stone Road Mall in Guelph, and the Tilsonburg Town Centre. Sifton has its head offices for the three malls in the Westmount Mall, as well as the administrative offices for the Westmount Mall itself. Sifton leases approximately 200 stores to a variety of retail tenants at the Westmount Mall. Prior to its opening in an expanded form in 1989, the mall housed 80 stores.
Sifton employs directly both the employees in its administrative offices and the five categories of employees which are the subject of the application or would be included in the responding party's proposed unit. These classifications (with the numbers of employees on the agreed list for each) are as follows: food court staff (6), maintenance staff (17-both interior and exterior), security guards (7), customer service representatives (5), "Let's Play" employees, (3 child care workers). There are about sixty to eighty staff in the office of the Head Office, who are not the subject of this application or dispute.
The food court is an area of the mall with food counters and a seating area. Food court staff are primarily employed to clean the food court area, but also do a rotation cleaning out in the larger mall every five weeks or so. When in the food court they are responsible for keeping the tables, trays and floors clean and clearing garbage. Security employees are assigned to the food court between the hours of 11:30 and 2:00 when students from a local high school congregate for lunch. During that time period, one of food court's busiest, while patrolling, or when there is little to do, security employees pick up trays, clean up spills and do other things to assist the food court employees. Food Court employees are entitled as well to enforce behaviour norms and the policy that patrons must have purchased food and drink to use the tables, by asking people to leave, although when things get out of hand, they call security.
Inside maintenance workers do a variety of tasks related to cleaning and repairing the mall's physical plant, within a set routine. They may also be called by security or customer service to do additional tasks as needed, for example to clean up spills. They cover Sundays in Food Court and may relieve there for breaks when it is busy. Often a security guard will stay near a spill until the maintenance people can come to clean it in order to prevent patrons of the mall from slipping. Occasionally, a security guard will also clean up a spill themselves and they have access to the cleaning equipment.
Those doing outside maintenance take care of the grounds, parking lot and underground parking garage. On rainy days they change lights and clean inside around the elevator lobby. One supervisor takes care of janitorial maintenance and minor repairs, while the other is in charge of exterior and interior maintenance of other kinds.
The security guards patrol the mall and the parking garage, dealing with emergencies, helping customers in need and responding to calls from tenants and staff. They also cover customer service and Let's Play for breaks and when needed at other times. Their duties in the Food Court at lunch hour include trying to keep the students under control and making sure they have something to eat or drink. As mentioned above, security helps out in Food Court while assigned there. Security workers have the right to detain an individual if necessary and to attempt to control fights. Security may call any available staff if an incident of sufficient size occurs, such as a fight involving several people. Other employees, such as from maintenance, may assist security when it is busy. There was no evidence that the security guards had any function in monitoring other employees.
Employees classified as customer service representatives staff the customer service desk. Customers may obtain information there as well as buy tickets to local sporting events or obtain wheel chairs or baby carts. The staff also do gift wrapping and collect money for Let's Play, a child care service to shoppers. From one to four employees are assigned to the desk, depending on how busy they are. Let's Play and security employees relieve customer service representatives equally often. One person in customer service also works in marketing on occasion.
Customer service staff operate the switchboard facilities for the shopping centre in general. They answer general inquiries and transfer calls for the administrative staff. About eighty to ninety percent of the calls received in customer service are queries about the shopping centre. The budget for the customer service department desk comes from the marketing fund. Two marketing employees, the Events Co-ordinator and the Marketing Director, supervise the employees in customer service. Customer service employees sometimes work in the administrative area, building displays because of the space available in the administrative area which is down the hall from the customer service desk. They may also spend a minimal amount of time there typing memos and copying flyers. Customer service has delivered memos to tenants and done as many as several hundred photocopies in one day for the marketing department but this latter is not the norm. Customer service staff spend sixty to seventy percent of their time at the counter and the remaining time covering off Let's Play breaks. On a less frequent basis if the Food Court is busy, customer service representatives may help out in doing the trays there. It is a regular occurrence leading up to Christmas.
"Let's Play" provides short term child care to shoppers. Full-time staff are required to have an early childhood education certificate or its equivalent. There are normally two people in Let's Play. The Let's Play staff have helped out in the customer service counter (which is adjacent to Let's Play) with whatever duties are necessary, when needed. On an exceptional basis Let's Play staff help out in Food Court.
Duties that are seasonal, or arise only occasionally, like putting up Christmas decorations, are done after regular hours by inside maintenance supplemented by other employees recruited across the classifications on a volunteer basis after hours.
There are night cleaners who are employed by a sub-contractor rather than the responding party. As well, certain other services are contracted out, including elevator and escalator maintenance, pest control and certain special projects. About a year ago, when there were problems among the staff of Food Court, Mr. Powell told them that they should settle the problems among themselves or that he had three options. These options were working with them to sort out the problems, replacing everyone or contracting out the whole area. These were in reverse order of desirability and only the first one was pursued.
The employer stresses the extent to which employees are deployed in other classifications. Besides the examples set out above, the parties agreed that one employee had started in the position of security guard and moved to a customer service representative position in which category he worked for a year and a half. In the six months prior to the hearing he had been employed in outside maintenance. A security guard also cut grass on four occasions in the last six weeks outside the hours of the maintenance day shift because of a backlog. One of the Food Court employees had a six month stint in Let's Play at her request and sometimes fills in there when they are short. She has also filled in doing maintenance duties.
Food Court employees have been asked to go to Let's Play on Saturdays and cover cleaning rounds on the floor. On occasion, people might be moved around into Let's Play from Food Court to allow somebody from Let's Play to go and help out in Food Court when Food Court was busy. As well a maintenance worker has filled in at customer service, two to three times in the last seven to eight months.
If the centre is busy and the outside people need a hand for snow removal, anyone capable and available is asked to go outside and the reverse applies as well. For instance the outside maintenance workers have been required to help security at Food Court and are asked to be available for special projects such as repairing fences or working in a flower bed.
Two individuals have had part-time jobs in more than one classification. One whose part-time jobs were interior maintenance and customer service, recently gave notice that she was leaving her cleaning job in order to move full-time to customer service. She always performed cleaning when she was on the cleaning schedule during the period when she was employed in two classifications.
Although several employees work in other classifications as indicated above, other employees have never or rarely done so. The union witnesses, for example, indicated little knowledge or information about the duties of other classifications. Employees who have requested work in other classifications or who have exhibited more flexibility or comfort with moving to other classifications are more likely to be assigned such work. Interchange in general occurs more extensively during busy seasons such as Christmas and on weekends.
Around the time the expanded mall opened in 1989 and afterwards, management started to focus on a new approach to enhancing its service to its customers. This included highlighting the role of tenants as Sifton's customers and offering seminars to both tenants and staff on areas related to customer service. Day long seminars were offered to all staff. A number of witnesses had no recollection of the seminars, while they were very important to at least one. Employees were paid for customer service seminars that occurred when they were not scheduled to work. Outside personnel were brought in to cover for those who were scheduled to work during the period in which the seminar occurred. It was the evidence of Al Lebon, General Manager of the division of Sifton which manages the Westmount Mall, that an allied approach was to de-emphasize traditional departments which in his view lead to an emphasis on particular functions, like cleaning, rather than an overall goal of customer service. Some management staff were let go to facilitate this change of emphasis. A move to a single uniform for all staff went along with this, to give the public a visibly unified image of staff presence. Earlier, different classifications wore different coloured shirts. Supervisory staff also rotate through supervising the whole mall one week out of six to further the unified approach.
As part of the above thrust, the customer service desk was installed, equipped with fax and photocopying capacity, wheel chairs and baby carts. Mr. Lebon was insistent that this was not the only locus of customer service, that all staff were expected to emphasize customer service. Mr. Lebon sees the difference in the Sifton approach as being demonstrated in the fact that if someone needs help, no matter the department, everyone will help each other. It was Mr. Lebon's view that the staff would no longer be able to be customer service oriented if the bargaining unit the union had applied for was given, that they would go back to a function oriented approach which was what Sifton had moved beyond.
Tom Powell, Operations Manager, said that there was now an even salary structure across the classifications, but this was not borne out as universal in evidence, although the Board does not have a complete picture of the extent of the deviations. Increases are given by seniority once a year on the recommendation of the Operations Manager and do not necessarily coincide with changes in position. Part of the customer service idea was to try to keep the wages of various classifications balanced, so that moving from one department to another was not a promotion but a lateral move.
Decision
The parties accepted the test articulated in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266: does the unit the applicant seeks to represent encompass a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer. What the applicant seeks here is a unit of cleaners and maintenance workers as its primary position. In the alternative, it is prepared to accept the appropriateness of a unit that would also include security guards. It maintains that the employees who work in Let's Play and customer service have no community of interest with the workers it seeks to represent. Based on the similarity of skills and the type of work performed by the cleaning and maintenance people, we were urged by the applicant to find that the cleaning and maintenance workers had a sufficient community of interest to bargain together. We were urged to find that the balance of involvement with the physical plant, as opposed to people, was at one level for the maintenance workers and at the opposite extreme for customer service and Let's Play employees. This was argued as the basis of a sufficiently different community of interest to warrant separate bargaining units.
As well, we are urged by the union to find that the common elements addressed by the employer, including uniforms, a wage scale, and seminars do not give rise to a compelling comprehensive community of interest. The union emphasized in its argument that there was no evidence of cross-training or regular rotation in the different classifications and that no one is ordered to work in other classifications.
In considering the amount of cross-over that the evidence does show among the classifications, the union urged us to find that it was not very extensive and that it made no labour relations sense to lump together cleaning and maintenance workers with other employees with whom they have little contact and about whom they know little. Counsel summarizes the interchange as four specific individuals who have moved around, two having held part-time jobs in different areas.
On the issue of community of interest, the employer argues that the recent thrust of Board decisions is to find community of interest on a broader basis than earlier on in the Board's jurisprudence and we were urged to apply that concept to these facts.
Based on the concept of community of interest articulated in such cases as Canada Trustand Mortgage Company, [1977] OLRB Rep. June 330, there are levels of community of interest which range from all the employees in an enterprise to smaller groupings, depending on the circumstances. We are persuaded that the maintenance group of employees could likely bargain together on a viable basis, although the larger grouping is also viable. This idea is supported by the case relied upon by the applicant Kaneff Properties Limited, [1978] OLRB Rep. May 431.
The more difficult question in this case is the second part of the test from Hospital for Sick Children. Does the unit proposed cause serious labour relations problems for the employer? The employer says that it would, that the evidence on interchange of functions shows that the staff has effectively been totally integrated. Further, it argues that a unit of just cleaners would stand in the way of the implementation of the customer service project, sow the seeds for jurisdictional disputes and create bargaining difficulties over the work of the bargaining unit. The employer describes this as a critical issue at the bargaining table in most circumstances and that in a situation such as this where there is regular exchange, this would be ever more the case. Employer counsel stresses that the unit proposed does not create a maximum of two units but at least three, in that security could organize with customer service or Let's Play or remain separate.
In many cases, the Board has underlined its reluctance to define bargaining units on the basis of employee classifications or employer departments because of the high potential for fragmentation in bargaining which that creates, as expressed in the following passage from Kidd Creek Mines Ltd., [1986] OLRB Rep. June 736:
For many years the Board has been exceedingly reluctant to define bargaining units on the basis of employee classifications or employer departments, because of the high potential for fragmented bargaining which that creates (see, for example: Cryovac Division, W. R. Grace & Co. of Canada Limited, [1981] OLRB Rep. Nov. 1574; Toronto East General and Orthopaedic Hospital, [19811 OLRB Rep. Nov. 1672; University of Ottawa, [1981] OLRB Rep. Feb. 232; and Westeel-Roscoe Company Limited, [1979] OLRB Rep. Nov. 1125). Even in the newspaper industry where departmental unionization has existed in the extreme (based initially upon craft distinctions which predated the current legislative framework), the Board has indicated that it might be less receptive to a continuation of these entrenched organizing patterns of the past, because computerized technology had revolutionized the structure and content of work in the newspaper business. (See Hamilton Spectator, [1981] OLRB Rep. Aug. 1177). Most recently, in T. Eaton's Company Limited, [1984] OLRB Rep. May 755 and Simpson's Limited, [1984] OLRB Rep. Sept. 1255, the Board reiterated its view that dividing an employer's business into bargaining units based upon departments would not be conducive to orderly collective bargaining. In Eaton's, for example, the Board refused to exclude a specialized department of computer salesmen from a broader "sales" bargaining unit, even though their skills, method of payment, and likely career opportunities were somewhat different from those of the other salesmen:
Concerns about the consequences of fragmentation are not idle speculation, nor have they escaped attention in other jurisdictions. Because of the problems associated with the proliferation of bargaining units in industrial enterprises, the policy in a number of provinces has now shifted away from the recognition of craft units or other similar subdivisions of employees. Following the recommendations of the Woods Task Force in 1%8, Parliament amended the Canada Labour Code to delete the provisions (similar to section 6(3)) protecting craft bargaining units, and the circumstances in which an existing unit can be splintered are now closely confined (see Feed-Wright Limited, [1979] 1 Can. LRBR 296; Atomic Energy of Canada Ltd. (1978), 1 Can. LRBR 92; and Cablevision Nationale Ltde (1979), 3 Can. LRBR 267 and cases referred to therein). In British Columbia, craft units can be certified only if they are "otherwise appropriate" for collective bargaining, and the British Columbia Labour Relations Board has shown a marked disinclination to endorse craft bargaining units in a manufacturing context. Even in the construction industry where craft unionism reigns supreme, the Ontario Legislature has intruded. In 1978, the Legislature imposed a system of province-wide bargaining by trade in place of the fragmented system of employer by employer bargaining which existed before. There is now a developing consensus that orderly collective bargaining is not enhanced by fragmenting an employer's work force into a number of competing bargaining units (for a thoughtful analysis of the issues see Paul C. Weiler: Reconcilable Differences. New Directions in Canadian Labour Law, Carswell's 1980 at pp. 151-178). Finally, since this Board may not have the power to later consolidate or rationalize the bargaining structure (as the Federal and B.C. labour boards can do), we should be particularly careful in fashioning the bargaining unit in the first place.
The Board has departed from that approach on the agreement of the parties and in particular situations of historical anomaly, or in light of the history of a particular sector, acceding to requests for classification-specific bargaining units in some cases. As well, where the applicant has been able to show difficulties with access to bargaining, particularly in situations where the respondent was in effect asking the union to organize more than one work site, the Board has balanced the interests of the parties, given particular weight to the organizing interests of the employees and certified unusual bargaining units. However, it has never done so lightly, or without a particular reason to do so.
There are units of cleaners and maintenance workers which have been found to be appropriate by the Board, often on the agreement of the parties and/or in circumstances where the employees in question are employed by a cleaning contractor to work at another employer's premises. Kaneff Properties Limited, cited above, was referred to as an example of cleaning staff being given a separate unit. We note firstly that the actual bargaining unit description in that case is in terms of all employees at a certain address, subject to managerial and office and clerical exclusions. This was a situation where the cleaning staff spent all of their working time in one building with no interchange with employees working in other buildings operated by the employer in that case. We do not find this case to assist greatly in the resolution of this portion of the dispute before us, which involves five classifications at one work site. We were referred to no cases where, as here, the employer directly employs cleaners, among other classifications, at one work site.
We agree with the union's submissions that an all employee unit is not necessary to meet the employer's customer service goals. Nor do we find the extent of interchange a compelling reason for separate units, although it is significant. However, other matters raised in objection to the proposed unit are more serious.
Fragmentation, with all its deleterious effects, is the main objection of the employer to the unit proposed. Dealing with this issue, union counsel said that the community of interest between Let's Play and customer service show that the remaining employees could form their own unit and that they would not be a group too small to bargain. It was union counsel's view that the maximum number of bargaining units in this work place was two, while employer counsel referred to three. There is also the possibility of the organization of the employees of whom the exclusion is not disputed, e.g. office, clerical, sales, technical and engineering. Thus, the potential may be four or more separate bargaining units, if a pattern of certification by classification is allowed. Nor were we given reason to assume that these other groups would be organized by the same bargaining agent, allowing later combination under section 7 of the Act.
We are of the view that the classic problems caused by fragmentation which underlie the fact that the Board's most standard unit is an all-employee unit, are a serious concern in this fact situation. These problems include the increased likelihood of strikes, the triggering of jurisdictional disputes and employee "enclaves" coextensive with each bargaining unit, and the increased complexity and expense of administering several collective agreements. They are potentially serious problems, rather than mere inconvenience. Although in an unorganized context such as this there is always some element of uncertainty as to the extent to which such problems will actually develop, the Board has an obligation to attempt to avoid serious structural problems at the outset when possible. We are aware of no particular circumstances in this workplace which would cause us to find that there is a problem with access to organizing or exercise of the employees' rights to choose their own bargaining agent if we find this unit to be inappropriate. In particular, there are none of the circumstances present in K Mart Canada Limited, [1981] OLRB Rep. Sept. 1250 relied on by the union. There the Board was dealing with a choice between a unit of all employees in a single store (comprising presumably a number of classifications) or all employees in four different stores. The Board there underlined that the balancing of interests in that particular sector caused the Board to find a single location unit to be appropriate where there was little or no interchange of employees between locations and the union had organized on the basis of one location, as a broader based structure might significantly impede employee access to collective bargaining.
The union argued that the customer service staff are performing a clerical or sales function. We do not find the evidence to be sufficient to support a finding that these are clerical employees. It is not apparent that much of their time is spent doing paper or clerical work of any kind. It would appear that they are mostly doing switchboard and counter service to patrons. Although it is true that they do perform a minor number of clerical duties for the administrative office, their focus is on the public and tenants and not apparently on the internal workings of the administrative office where the employees agreed to be excluded work.
For the reasons set out above, we find that the applicant's proposed unit is not the unit of employees that is appropriate for collective bargaining. The one proposed by the responding party would be an appropriate unit.
The applicant's support as measured against the wider unit indicates that more than forty percent of the employees had applied for membership by the application date. We will order a representation vote in the wider unit if we are advised by the applicant that that is its wish within 30 days of this decision. The employer requested a bar if the application were to be dismissed as a previous application for certification related to the same employees had been filed and withdrawn. That matter may be raised in the event the applicant is unsuccessful in a representation vote.
DECISION OF BOARD MEMBER G. MCMENEMY; October 27, 1993
I. I dissent from the majority decision.
1 agree with that part of the majority decision which finds (at paragraph 27) that the bargaining unit which the trade union seeks to represent consists of a group of employees which could likely bargain together on a viable basis. Although the larger grouping which the employer proposes in it's bargaining unit description may also be viable the Act requires the Board to determine "an" appropriate unit, and not necessarily "the most" appropriate unit. Either one of the units which the applicant seeks is a viable bargaining unit which would allow the employees and their Union which they have chosen to effectively bargain with their employer.
I also agree with that part of the majority decision which finds (at paragraph 31) that an all employee unit is not necessary to meet the employer's customer service goals. The employer went on at great length about their new "customer service" program and maintained that the success of the program depended on their ability to transfer employees from classification to classification during the day to day operations of the Mall as the need arose. In my view the evidence shows however that the customer service training seminars were directed primarily at the mall tenants. There were only a few seminars of marginal relevance directed at the responding party's own employees. Some employees had never attended any of the seminars and were unaware of them.
The majority addresses the issues of fragmentation and serious labour relations problems. It is with this portion of the decision that I disagree with the views of my colleagues in the majority. Although I agree that serious labour relations problems are a concern which this Board must be aware of in all cases before it, I do not believe that serious labour relations problems will result if the Board certified the trade union for either of the bargaining units agreed to by the trade union.
As the majority notes, the extent of interchange amongst employees, although significant, is not in this case a compelling reason for separate units. In my opinion the issue of transferring employees from one position to another position during Mall operations is not the serious labour relations problem which the responding party would have the Board believe it is. The majority of the cases shown to the Board involve employees who are either in the bargaining unit that the applicant has applied for, or in the bargaining unit that the applicant has agreed to as an alternative. The cases illustrate the work of employees who fall mainly into the following examples, security guards cutting grass; security guards cleaning up in the food court, when it is slow; food court employees cleaning in the Mall outside their main area of work, and inside employees who clean up the occasional spill. This interaction amongst these employees shows a community of interest.
There were other examples given to the Board, that in my opinion would not cause the Employer any problems. These examples given to the Board are proposed bargaining unit employees doing jobs that are outside the bargaining unit sought.
In a very limited number of cases there are examples of what would be non bargaining unit employees doing bargaining unit work. That problem could and would be overcome by responsible parties negotiating a collective agreement to address that
In my opinion the employees of the customer service desk and "Let's Play" do not have a community of interest with the other employees of the Mall. These employees have separate community of interest amongst themselves or perhaps a community of interest with the office and clerical staff which the parties agree are excluded from this application.
I am also of. the opinion that if this application is dismissed, the employees who have chosen to deal with their employer through Union will be denied their rights today and in the future.
Just as the Board has to be aware of future labour relations problems caused by fragmentation, it also has to be aware of the possibility of denying the rights of employees by making the bargaining units too large to organize by encompassing employees who have very little in common in their work place.
It appears to me that the serious labour relations problems in this case are based on a potential dollar cost to the employer. The cost of negotiating an agreement and any other costs which may flow from having a Union speaking on behalf of the employees, is a cost of doing business and nothing more. It is not a reason to deny the rights of the employees to form a Union of their choice, with their fellow employees with whom they share a common interest at work.
I would therefore have found either of the bargaining units proposed by the trade union to be appropriate and, if the level of support was sufficient would have certified the trade union.