[1993] OLRB Rep. November 1154
0340-93-R; United Steelworkers of America, Applicant v. Barnes Security Services Limited c.o.b. as Metropol Security Services, Responding Party
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members F. B. Reaume and G. McMenemy.
APPEARANCES: Robert Healey, Brad James and Omero Landi for the applicant; Brett Christen, Frank Charron and Patrick Bishop for the responding party.
DECISION OF THE BOARD; November 9, 1993
1This is an application for certification filed pursuant to the provisions of the Labour Relations Act ("the Act"). By letter dated October 1,1993 the applicant requested leave of the Board to amend its application for certification such that a representation vote be taken in this matter.
2The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
3Having regard to the agreement of the parties, the Board further finds that:
all employees of Barnes Security Services Ltd. in its Metropol Security Division in the Municipality of Metropolitan Toronto, the Regional Municipality of Halton and the Regional Municipality of York, save and except Operations Manager and persons above the rank of Operations Manager, Account Executive, dispatchers, office, clerical and sales staff and persons for whom any trade union held bargaining rights as of April 30, 1993; and pending resolution of the dispute excluding as well site supervisors, shift supervisors, field supervisors, and mobile patrol supervisors,
constitute a unit of employees of the responding party appropriate for collective bargaining.
4The Board is satisfied on the basis of all the evidence before it that not less than forty per cent of the employees of the responding party in the bargaining unit on April 30, 1993, the certification application date, had applied to become members of the applicant on or before that date.
5Prior to the hearing in this matter the parties met with a Labour Relations Officer and were able to agree upon a number of matters. Having regard to the agreement of the parties the Board directs that a representation vote be taken of the employees of the responding party in the agreed upon voting constituency. At the Labour Relation Officer's meeting the parties were also able to agree upon the voters' list and were also able to agree upon the arrangements made for the actual taking of the vote. The Board hereby directs that the vote be taken in the manner agreed upon by the parties. In conducting the vote, voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
6There were only two issues upon which the parties were not able to agree. The parties reached only partial agreement with respect to the description of the bargaining unit. The parties disagreed as to whether site supervisors, shift supervisors, field supervisors and mobile patrol supervisors were included or excluded from their agreed upon bargaining unit. The respondent asserts persons in these positions exercise managerial functions and are therefore properly excluded from the bargaining unit. The applicant takes the contrary position. The Board hereby appoints a Labour Relations Officer (to be assigned by the Manager of Field Services) who is authorized to inquire into the issues in dispute and the duties and responsibilities of the employees whose status is in dispute and report to the Board.
7The only other issue upon which the parties did not agree involves the applicant's request that the responding party disclose to it the addresses of the employees on the voters' list. We heard the submissions of the parties with respect to that issue on November 8, 1993.
8It is appropriate at this point to note the unique facts and circumstances surrounding the applicant's request in this application for certification. The bargaining unit agreed upon is essentially a unit of security guards. The agreed upon bargaining unit description refers to a geographic area comprising four (4) separate municipal regions namely, the Municipality of Metropolitan Toronto, the Regional Municipality of Peel, the Regional Municipality of Halton and the Regional Municipality of York. It is not disputed that the unit includes in excess of 1100 employees working at approximately 200 different sites throughout that geographic area. The responding party indicated (and the trade union neither disputed nor was able to confirm) that approximately seventy-five per cent (75%) of its employees "owned" sites ie. work regularly at the same location(s), while the remaining twenty-five per cent (25%) of its workforce did not.
9With respect to the conduct of the vote the parties have already agreed that the trade union receive a copy of the voters' list, have agreed that individual notices of the taking of the vote be sent to each employee (with the responding party providing adhesive labels with the names and addresses of the employees for that purpose) and have agreed to a single polling location within each municipality rather than individual poils at the various sites at which the employees are employed. The parties have further agreed that those polls will remain open for approximately four hours a day for two days during the week in which the vote will take place.
10We do not purpose to outline in their entirety the very able submissions of both counsel. A brief summary of their positions is sufficient.
11Counsel for the trade union asserts that the addresses are necessary so that the trade union can communicate with the electorate. The workforce here is composed of widely dispersed individuals. The trade union is not aware of all the various locations at which the employees work. Without the addresses of the individuals on the voters' list the trade union will, in effect, be denied the opportunity to communicate with employees. The employees in turn will be denied the opportunity to make an informed choice. The right to choose a bargaining agent is a right protected by the Act and that right to choose must necessarily include the right to make an informed choice. Counsel also addressed the issues of the individual's right to privacy, the employer's interest in maintaining confidential this information, and the possibility of misuse of the addresses.
12Counsel for the responding party employer asserted that the Board did not have the jurisdiction to make the direction sought by the trade union. Counsel argued that the Act contained no provisions which obliged the responding party to provide such information to the trade union. It was counsel's position that in the absence of a specific statutory provision the Board does not have the power to make the order requested. In this regard counsel submitted that section 105(2)(f) did not apply. Counsel noted that it was significant that the Legislature had not enacted any specific provisions which provide the Board with the authority to direct the disclosure of addresses when the recent amendments (Bill 40) were passed notwithstanding the debate of the various policy considerations with respect to this issue. In addition counsel submitted that the employer had a legitimate interest in maintaining the confidentiality of this information. The guard or security services protection industry is a highly competitive one. Contracts for security or guard services are susceptible to change by the purchaser of such services. The employer therefore has an interest in protecting the confidentiality of the names and addresses of the employees in whom it has invested time and money ie. for training etc. The responding party therefore should not be required to compromise that confidentiality only in order to facilitate the applicant's campaigning prior to the taking of a representation vote.
13We have carefully considered the submissions of the parties. We have determined that the Board has the jurisdiction to make the direction which the applicant trade union seeks. In particular the Board has that jurisdiction pursuant to section 105(2)(f). The Board has in the past made similar orders in cases involving occasional teachers. York Board of Education, [1985] OLRB Rep. May 767, Scarborough Board of Education, [1986] OLRB Rep. Mar. 361, see also Queen's University at Kingston, [1987] OLRB Rep. June 925.
14The circumstances of those cases are distinguishable from those before us insofar as the decisions of the Board in each of those instances appear to be predicated on the fact that occasional teachers are dispersed and not attached on a regular or consistent basis to a particular work location. In the present circumstances the vast majority of the employees have some regular and consistent attachment to a particular work location. In this regard we note parenthetically that the difficulty of communicating with employees may in part be due to the agreement of the parties with respect to a bargaining unit which encompasses a large geographic are.
15We have determined that in this instance an appropriate balance can be struck when considering the interest of the applicant trade union, the responding party employer, and the employees. We concur with the observations of the Board in York Board of Education, supra, at part IX, that it is important that the electorate be an informed electorate and that an opportunity for both parties to communicate with employees is necessary to permit the employees to properly assess the consequences of choosing to vote for or against representation by the applicant. The interest of the trade union in communicating with the electorate is self evident. We accept however that there are other policy concerns including the right to individual privacy and the confidential nature of this information from the employer's perspective which must also be considered.
16In these circumstances we direct that the employer shall forthwith cause to be produced labels containing the names and addresses of each of the persons on the voters' list. A trade union representative may attend at the offices of the responding party with sealed envelopes containing such information as the applicant wishes to communicate to the employees on the voters' list. Representatives of the employer and the applicant shall together label the sealed envelopes and arrange for the mailing or distribution of such information. All reasonable costs associated with the mailing of such information shall be borne by the applicant trade union.
17The Board will remained seized of this matter in the event the parties encounter any difficulty with the implementation of this direction.