[1993] OLRB REP. MAY 411
3763-92-R Amalgamated Clothing & Textile Workers Union, Applicant v. Hornco Plastics Inc., and Horn Plastics Ltd., Responding Parties
BEFORE: Robert D. Howe, Vice-Chair, and Board Members J. A. Ronson and P. V. Grasso.
APPEARANCES: Terry Hawtin, John Wensley and Tony Pileggi for the applicant; William S. Cook, Ernest Gourley and Guido Rinks for the responding parties.
DECISION OF ROBERT D. HOWE, VICE-CHAIR, AND BOARD MEMBER J. A. RONSON; May 7, 1993
The style of cause of this application for certification is amended to add "Horn Plastics Ltd." as a responding party.
The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
The bargaining unit sought by the applicant is:
all employees of Hornco Plastics Inc. at 1130 Champlain Court in the Town of Whitby save and except supervisors, persons above the rank of supervisor, office and sales staff.
- Counsel for the responding parties seeks to have the Board treat Hornco Plastics Inc. ("Hornco") and Horn Plastics Ltd. ("Horn") as one employer, pursuant to section 1(4) of the Labour Relations Act, and to find the following unit to be appropriate for collective bargaining in the circumstances of this case:
all employees of Horn Plastics Ltd. and Hornco Plastics Inc. in the Regional Municipality of Durham, save and except supervisors, persons above the rank of supervisor, office and sales staff.
Horn and Hornco are two of a group of nine companies owned and controlled by an individual named Richard H. Hornung, and his son and daughter, through an elaborate corporate structure involving a family trust. Ernest S. Gourley, who testified on behalf of the responding parties at the hearing of this matter, is the President of all nine companies.
Horn was founded in 1979 and operates a plastic injection moulding plant in Pickering. As of the certification application date (March 25, 1993), Horn employed 25 persons who would fall within the ambit of the bargaining unit proposed by the responding parties. Hornco was founded in 1988 and operates a similar plant in Whitby. As of the certification application date there were 36 persons employed at that plant who undisputedly fall within both the bargaining unit proposed by the applicant and the bargaining unit proposed by the responding parties. (There are two other persons named on the list of employees at the Hornco plant whose inclusion has been challenged by the applicant on the grounds that they exercise managerial functions within the meaning of section 1(3) of the Act.)
The distance between the two plants is about ten kilometres. Both are situated within the Regional Municipality of Durham. Each plant has its own Plant Manager. Both Plant Managers report to a General Manager, who is also responsible for the operations of two other Horn Group companies: D & E Precision Tooling and Valro Manufacturing, which fabricate moulds used by Horn and Hornco. A fifth company (Nova Wire) is also involved in producing moulds, as part of the group's horizontally integrated corporate structure. (Two of the three remaining corporate members of the group are involved in various aspects of industrial supply, and the third is involved in real estate.)
Hornco is (in the words of Mr. Gourley) "the child" of Horn, and does not have an infrastructure of its own to support it. The engineering, quality control, purchasing, sales, customer service, and accounting departments are all located at the Horn plant, which is also the point of retention for production, quality, purchasing, and other records. Hornco draws upon the responding parties' common management structure on an "as required" basis, and is charged accordingly for those services. A single file server system services both companies. Horn and Hornco operate under a single marketing plan, using common sales brochures and supplying plastic parts to a customer base which has ninety per cent commonality between the two companies. Purchase orders are issued to Horn and the work necessary to fill them is then assigned to the plants based upon their workload and capacity. Approximately seventy per cent of the work done by the two companies is shared between them. Transportation services are provided to both plants by a single truck and driver.
Horn and Hornco use a single payroll, with all cheques being issued by Horn through the individual who is the comptroller for both companies. Hornco's payroll costs are charged back to it for accounting purposes. A pay equity review officer has ruled that Horn and Hornco are a single entity for pay equity purposes, and that they must post a single pay equity plan in both locations. The wage structure is identical at both plants, as are the job descriptions and the skills of the employees in the various classifications. Job openings and vacancies at each plant (including those for supervisory positions) are posted in both plants, and there have been nine instances in which employees at the Horn plant have applied for and obtained positions at the Hornco plant as a result of such postings. Four of the nine posted into positions covered by this application. The other five posted into supervisory positions. One of those five subsequently ceased to work as a supervisor but remained at the Hornco plant as a machine operator. Seniority is based upon the date on which the employee was first employed by either company, and remains unchanged when an employee moves from one plant to the other as a result of a job posting. There have also been approximately fifty occasions on which work and employees have been temporarily transferred between the two locations in order to maintain continuity of production. Many of those temporary transfers involved moving two or three employees from one plant to the other for a day or two, while others involved even more substantial movements of employees between the two plants.
The only difference between the equipment used at the two plants is its size. Horn has plastic injection moulding equipment which "goes up to 110 tons", while Hornco has similar equipment which "goes up to 550 tons". When Hornco's equipment is not being used to produce larger parts, it can be used to produce parts of the size produced by Horn, as moulds run on Horn's moulding machines can also be run on Hornco's larger moulding machines. Various pieces of "peripheral equipment" owned by Horn are shared by the two plants for use on an "as needed" basis. For example, when it is necessary to process plastic at a temperature lower than the norm, a "chiller" is coupled with the moulding machine.
In commenting upon the economic advantage of the single unit proposed by the responding parties, Mr. Gourley told the Board:
There is [an economic advantage]. We have a satellite facility that cannot stand on its own two feet today. It hasn't made money to date. Therefore we have centralized departments being funded by Horn.
He also told the Board that he would like to have the two plants in a single unit so that the responding parties can continue to have flexibility in moving orders, equipment, and employees between the two plants.
- Mr. Gourley wrote the following letter to Hornco employees regarding this application:
As you are no doubt aware, a union has made an application to represent you in your relations with our company.
Several employees have asked us why the company has been so quiet. The answer is that the Labour Relations Act severely limits the rights of the company to communicate with our employees.
There will be a hearing at the Ontario Labour Relations Board on Monday, April 19, 1993 in order to determine if the union will be certified to represent you. If over 55% of the employees have joined the union, the union will be automatically certified without a vote. If between 45% and 55% of the employees have joined the union there will be a secret ballot vote to determine your wishes. If under 45% of the employees have joined the union, the application for certification will be dismissed.
I would be less than honest if I did not say that we are disappointed that an application has been made. It is our feeling that a direct relationship, without the intervention of outsiders, is preferable.
One of the promises that unions often make is job security. As far as we are concerned your job security comes from manufacturing good products and marketing them aggressively. We feel we are doing this and you are an essential component in providing job security for all of us.
In conclusion, we will keep you informed of developments as they occur. While I have expressed my opinion, I want to make it clear that the decision is yours alone to make. We will respect your decision.
He also wrote the following letter to Horn employees:
You will have noticed that a "Notice to Employees" at Hornco has been posted on our bulletin board.
A union has applied to become the bargaining agent for the employees at Hornco. We have taken the position that because of the common ownerships, wages, working conditions and transfer of employees between our plants, that the only unit would be all employees at both locations in Durham.
For your information we are enclosing a letter that is being given to our Homco employees.
You may be contacted by a union representative about joining a union. We would ask you to consider your decision very carefully. It is a decision that effects all of us.
We will keep you informed of developments as they occur.
The sole witness called by the applicant was John Wensley. As an organizer for the applicant, Mr. Wensley testified that the applicant organizes on a "plant to plant system". After being informed of a plant that would like to be unionized, or targeting a plant which the applicant feels would benefit from being unionized, Mr. Wensley commences an organizing campaign in respect of that plant. If it is a multi-plant situation, upon completing the organizing campaign at the plant which has the most need to be unionized he moves on to the other plant and starts a campaign there. Mr. Wensley provided three examples of dual plant situations in which employees at one plant have been organized by the applicant and employees at the other plant have been organized by a different union.
Counsel for the responding parties submitted that the employees at the two plants included in the bargaining unit proposed by his clients have an inseparable community of interest, and that acceptance of the single plant unit proposed by the applicant would not be in the best interests of the employer, the union, or the employees, in view of the serious labour relations problems which it would cause. In support of that position, he relied upon the uncontradicted testimony of Mr. Gourley, and a number of Board decisions, including Hospital for Sick Children, [1985] OLRB Rep. Feb. 266; Kidd Creek Mines Ltd., [1986] OLRB Rep. June 736; and Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250. Thus, he requested the Board to declare the responding parties to be a single employer, and to accept the bargaining unit proposed by the responding parties. In replying to the applicant's reliance upon Toyota Canada Inc., [1991] OLRB Rep. July 922, he submitted that the case was distinguishable on the basis that there was no interchange of employees between the locations which the employer was seeking to have included in a single bargaining unit in that case. His reply to the applicant's reference to section 2.1 of the Act was that accepting the unit proposed by the applicant would not be consistent with the purposes of the Act because it would not "promote harmonious relations". In commenting upon section 7 of the Act, he submitted that if the factors set forth in section 7(3) are of relevance in determining whether or not to combine bargaining units, they are equally relevant to the Board's initial determination of bargaining unit appropriateness. He also urged the Board not to leave the parties to try to resolve potentially insoluble problems at the bargaining table.
Counsel for the applicant acknowledged that Horn and Hornco carry on associated or related activities or businesses under common control or direction, within the meaning of section 1(4) of the Act. However, he contended that the Board should not exercise its discretion to treat them as one employer for purposes of the Act because (in his submission) the Hornco single plant bargaining unit sought by the applicant is appropriate for collective bargaining, and the broader unit proposed by the responding parties would impair employee access to collective bargaining. He further submitted that it is not unusual for an employer to have a unionized plant and a non-unionized plant, or a plant at which employees are represented by one union and another plant at which employees are represented by a different union. It was his submission that the problems created by such situations can be resolved through collective bargaining. However, he also suggested that if the applicant is certified for the Hornco plant and subsequently succeeds in obtaining bargaining rights for the Horn plant, it would be appropriate for the Board to combine the two units into a single bargaining unit, pursuant to section 7 of the Act.
During the course of his able submissions on behalf of the applicant, counsel referred to several previous decisions, including Adams Furniture Company Limited, [1975] OLRB Rep. June 491; City of Toronto Non-Profit Housing Corporation, [1982] OLRB Rep. Feb. 280; Mobil Chemical Canada, Ltd., [1987] OLRB Rep. Apr. 559; Toyota Canada Inc., supra; Bruce Peninsula & District Memorial Hospital, [1982] OLRB Rep. May 656; and Alltour Marketing Support Services Limited, [1982] OLRB Rep. Oct. 1383. He also referred the Board to sections 2.1 and 7 of the Labour Relations Act, and to section 10 of the Interpretation Act, R.S.O. 1990, c. I.11.
As submitted by applicant's counsel, the Board's normal practice is to limit the geographic area of a bargaining unit to the municipality in which the employer's place of business is located: see, for example, Bruce Peninsula & District Memorial Hospital, supra. However, in appropriate circumstances the Board has been prepared to certify on the basis of a regional municipality comprising a number of individual municipal units (see, for example, Adams Furniture Company Limited, supra), or even on the basis of several regional municipalities (see, for example, Harlequin Enterprises Limited, supra). The Board's practice in this regard is accurately summarized as follows in Sack and Mitchell, Ontario Labour Relations Board Practice, at page 142:
The Board's practice is not to include employees in widely separated municipalities in the same unit, unless there are compelling reasons to do otherwise, as where the operations are integrated, there is regular interchange, the employees share a community of interest or a group of employees would be deprived of collective bargaining.
Applicant's counsel submitted that the purpose of section 1(4) is to protect established bargaining rights, and referred the Board to City of Toronto Non-Profit Housing Corporation, supra, in support of that proposition. (In that case, the Board indicated that the section "was not conceived as a provision by which the Board could effect the consolidation of established bargaining rights." Thus, the Board declined to use section 1(4) to merge an existing certificate into a larger unit and thereby augment a union's bargaining power in a way which it had been unable to do at the bargaining table.) However, the protection of established bargaining rights is not the sole purpose of section 1(4).
It is clear from the Board's jurisprudence that, in appropriate circumstances, the Board can and will issue a declaration under section 1(4) at the request of a union or an employer in the context of a certification application: see, for example, Harwill Original Limited, [1982] OLRB Rep. June 875. See, also Bright Veal Meat Packers Ltd., [1981] OLRB Rep. March 247, in which the Board wrote, in part, as follows:
As a matter of statutory interpretation, the Board cannot accept the position of the applicant that section 1(4) of the Act cannot be invoked by the employer. The section in its own terms states:
…the Board may upon the application of any person, trade union or council of trade unions concerned...
As can be seen, "trade unions" and "council of trade unions" are specifically referred to. Had the Legislature desired to stop there, it could have done so very easily. But instead it chose to include the word "person", which by virtue of the Interpretation Act, R.S.O. 1970, c. 225, s.30 can clearly include a "corporation" or similar legal entity which would act in the capacity of an employer. (For a comparable analysis of section 123 of the Act, see Dover Corporation (Canada) Ltd., [1972] OLRB Rep. May 435.)
There would appear to be no basis for the Board, therefore, to find that the section, as drafted, cannot be invoked upon the application of an employer. The Board clearly assumed this in Forest Public House, [1974] OLRB Rep. Jan 40, although in that case there was insufficient intermingling to cause the Board to exercise its discretion to grant the employer's request. Perhaps more significantly, the Board in Industrial-Mine Installations Limited, [1972] OLRB Rep. Dec. 1029, for the first time engaged in a comprehensive analysis of the purposes of the section. It should be noted that the Board first had this to say:
Section 1(4) is obviously contemplated to cure the mischief that results from being unable to properly define and tie down the employment relationship. In many situations where companies have a close relationship an employee may be shifted from one company to another so that his employment relationship, at an given period, is difficult to define in terms of one employer. So too, the number of employees employed by one of those companies at any given time may be impossible to ascertain.
This is not the problem in the present case. The Board went on, however, to comment on some of the other contexts in which the Board had come to apply section 1(4), and continued as follows:
So too, in the case where associated or related employers joined in a common enterprise and used one work force, which was shifted and transferred from time to time, the certification with respect to one employer only was, in effect, a certification of a segment of the total enterprise and could seriously impair the totality of the business operations by inhibiting the shifting of employees between union and non-union segments of the enterprise. It was also possible in situations where associated or related companies carried on a single enterprise that employees of the separate legal entities could be represented by different trade unions so as to cause the bargaining rights within the single enterprise to be unduly fragmented. An example of the type of situation where section 1(4) was applied is found in Walters Lithographing Company Limited, et al, [1971] OLRB Rep. 406.
It is in these types of situations that the interests of the parties in having the Board treat separate employers as constituting one employer for the purpose of the Act became apparent, and it is for that reason that section 1(4) was enacted.
The Board finds these latter comments from the Industrial-Mine Installations case to be pertinent to the case now before it. Needless to say, the Board must necessarily be vigilant in assessing the apparent merit of arguments which may unduly delay the processing of an [application] for certification, and a marginal degree of integration would not likely cause the Board to proceed at length with a request that section 1(4) be applied. But the Board, on the other hand, cannot shut its eyes to the creation of a situation, through piecemeal certification, which would unreasonably restrict the employer in the manner in which it has always carried on its business, as well as creating the potential for different trade unions becoming bargaining agent for essentially integrated segments of the business.
In determining whether a similar approach should be adopted in the instant case, we find it useful to consider the appropriateness of the bargaining unit sought by the applicant, which, as noted above, is confined to employees at Hornco's plant in Whitby. In recent years, the Board has tended to summarize in the form of the following question the considerations which are relevant in assessing bargaining unit appropriateness:
Does the unit which the union seeks to represent encompass a group of employees with 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?
That formulation of the issue first appeared in the Board's decision in Hospital for Sick Children, supra (at paragraph 23 of that decision). A number of the factors germane to answering that question are found in paragraph 17 of the decision:
…What then is the purpose of the concept of the "appropriate bargaining unit"? Quite simply, it is an effort to inject a public policy component into the initial shaping of the collective bargaining structure, so as to encourage the practice and procedure of collective bargaining and enhance the likelihood of a more viable and harmonious collective bargaining relationship. That objective is spelled out clearly in the Preamble to the Act. While the requisites for effective collective bargaining cannot always be defined with certainty, may necessitate a balance of competing collective bargaining values, and may, in any event turn on factors beyond the Board's control, the discretion to frame the "appropriate" bargaining unit during the initial organizing phase provides the Board with an opportunity (albeit perhaps a limited one) to avoid subsequent labour relations problems. Now, of course, this is not necessarily the same thing as minimizing administrative problems for the employer or organizing problems for the union. The structures and policies that promote a maximization of the employer's business interests are not those that will necessarily describe a viable bargaining unit, or the only viable bargaining unit -particularly since those interests may include a desire to avoid collective bargaining altogether, or limit its effectiveness. The employer's administrative structures are relevant in determining the bargaining unit, but they are not necessarily to be taken as the conclusive blue print in deciding what is appropriate. Nor is it a matter of simply giving an applicant union what it wants. It is, as we have noted, a matter of balancing competing considerations, including such factors as: whether the employees have a community of interest having regard to the nature of the work performed, the conditions of employment, and their skills; the employer's administrative structures; the geographic circumstances; the employees' functional coherence, or interdependence or interchange with other employees; the centralization of management authority; the economic advantages to the employer of one unit versus another; the source of work; the right of employees to a measure of self-determination; the degree of employee organization and whether a proposed unit would impede such organization; any likely adverse effects to the parties and the public that might flow from a proposed unit, or from fragmentation of employees into several units, and so on.
Reference may also usefully be made to the following passages from Harlequin Enterprises Ltd., supra:
The case law recognizes that the Board must determine the appropriate bargaining unit, in accordance with section 6(1) of the Act, in the circumstances of each application but that more than one unit may well be "appropriate" in respect of a single employer: The Board of Education for the City of Toronto, supra; Parnell Foods, supra; The Hospital for Sick Children, supra; National Trust, supra. In considering the various possible bargaining unit configurations, however, the Board must be sensitive to the impact of that detennination on the access by employees to self-organization: The Board of Education for the City of Toronto, supra; Tip Top Tailors, supra; Canada Trzsstco, supra. This sensitivity led the Board to acknowledge the appropriateness of bargaining units consisting of single plants within a municipality to facilitate collective bargaining in the retail industry in particular: K Mart Canada, supra; see also Canada Trustco, sup ra.
Further, the Board recognizes that a multiplicity of bargaining units generally has adverse consequences for the future bargaining relationship of the union and employer, such as, increasing the likelihood of strikes, increased complexity in administering several collective agreements, the triggering of jurisdictional disputes and employee "enclaves" coextensive with each bargaining unit: Board of Governors of Ryerson, supra; The Globe and Mail Limited, supra. Conversely, broader based units enhance administrative efficiency, employees' lateral mobility and industrial stability and provide a common framework for employment conditions: Insurance Corporation of British Columbia, supra; Ontario Hydro, supra. Where the more comprehensive unit would not operate to seriously impede or delay employee access to collective bargaining, the Board has favoured the broader grouping: Board of Governors of Ryerson, supra; Stratford General Hospital, supra. In short, the Board prefers the most comprehensive unit that is viable for labour relations purposes in the context of a policy of facilitating employee access to collective bargaining: The Corporation of the City of Thunder Bay, supra.
The concept of community of interest was a common sense acknowledgment that it generally made no labour relations sense to "lump together" groups of employees whose interests were so disparate that a bargaining agent could not readily seek to respond to employees' concerns through collective bargaining. The notion of community of interest was itself elaborated and refined into a number of constituent elements, as set out in Usarco, supra, including the nature of the work performed, conditions of employment, skills of employees, administration, geographic circumstances and functional coherence and inter-dependence. In Usarco, the Board also looked to the centralization of managerial authority, the economic factor and source of work. It must be emphasized, though, that community of interest is not an "all or nothing" phenomenon. Rather, all employees of a single employer share a basic community of interest which increases for various sub-groups of those workers. The question is not "is there a community of interest amongst the employees for whom a union seeks certification?" but "is there a sufficient community of interest amongst those employees for whom certification is sought that the resulting unit is viable for collective bargaining purposes?" The Board, in effect, assesses whether the bargaining unit sought is viable and viability reflects a sufficient community of interest nexus amongst the employees to sustain collective bargaining. Thus, community of interest is not an independent, mechanical exercise but, rather, goes to the issue of viability: Niagara Regional Health Unit, supra; Bestview Holdings, supra; Ponderosa Steak House, supra. It is the question of viability which is paramount and that may require bargaining units defined in terms of community of interest or some broader reference where sound labour relations policy reasons so require: The Children's Aid Society case, supra.
It is clear from the facts set forth above that the unit which the applicant seeks to represent encompasses a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis. However, it is also clear from those facts that there is a very substantial community of interest among the employees at the two plants covered by the broader unit proposed by the responding parties, and that to fragment those two portions of this highly integrated operation would likely cause serious labour relations problems. Employees at both plants perform similar work to produce similar products on similar machinery. The wage structure is identical at both plants, as are the job descriptions and the skills of the employees. There is a single payroll, with all cheques being issued by Horn. Job openings at each plant are posted at both plants, thereby facilitating employee advancement and mobility. There is also a substantial amount of employee interchange between the plants. As noted above, work and employees have been temporarily transferred between the two plants about fifty times in the past four years. Although each plant has its own Plant Manager, the Hornco plant is clearly a satellite facility highly dependent upon Horn for engineering, quality control, customer service, accounting, purchasing, sales, and work. Thus, the two plants are comprehensively integrated, and have a substantial amount of intermingling of employees through job postings and temporary transfers of work and employees. This distinguishes the instant case from Toyota Canada Inc., supra, in which there was no intermingling, and from Brunce Peninsula & District Memorial Hospital, supra, in which the two workplaces were twenty-five miles apart, and the interchange between them was limited to one part-time employee who was being scheduled at both locations at the employee's request.
As indicated above, Mr. Wensly provided three examples of dual plant situations in which employees at one plant have been organized by the applicant and employees at the other plant have been organized by another union. However, that evidence is of little assistance to the Board in deciding the instant case as we have no indication of whether any of those operations are as highly integrated as those of Horn and Hornco.
The granting of a bargaining unit confined to the Whitby plant, with the obvious potential for another bargaining unit and a different bargaining agent at the Pickering plant, would likely hinder postings, promotions, and transfers between the two locations. It could also give rise to a variety of other serious labour relations problems including jurisdictional disputes, problems in respect of the pay equity plan (which, as noted above, is required to be posted in and to cover both plants), and problems regarding eligibility to perform work during the course of a strike or lockout. While it might be possible for some of those potential problems to be reduced or resolved through collective bargaining, we are not sufficiently sanguine about that prospect to grant the unit requested by the applicant and thereby effectively make the responding parties' operations part of a labour relations experiment which could have very harmful results if it was unsuccessful.
In exercising its power under section 6(1) of the Act, the Board also considers the effect of a broader based unit upon employee access to collective bargaining. In the instant case, the applicant, in accordance with its usual organizing pattern, confined its organizational activities to employees at the Whitby plant, and has not yet attempted to organize employees at the other plant. However, in view of the substantial degree of integration of those two operations, Horn's issuance of all payroll cheques via a single payroll covering both plants, and the relatively large amount of employee interchange between the two plants, it may reasonably be inferred that the existence of Horn's Pickering plant, and its potential relevance to this application, could readily have been ascertained by the applicant through discussions with Hornco's Whitby plant employees. Moreover, in the absence of any attempt on the part of the applicant to organize the employees at that plant, it would be premature for the Board to conclude that adopting a bargaining unit structure which encompasses both plants will result in the wishes of employees at the Whitby plant to engage in collective bargaining being frustrated by a disinclination in that regard on the part of employees at the Pickering plant. Although this possibility is one of the factors which must be duly considered by the Board in determining an appropriate bargaining unit, in the circumstances of this case it does not outweigh the serious labour relations problems which would likely be caused by accepting the unit proposed by the applicant and thereby bifurcating a highly integrated dual plant operation.
We find no merit in counsel for the applicant's contention that, as a result of the two letters quoted above, the atmosphere at the plants is no longer conducive to the employees being able to express their two wishes regarding unionization. As submitted by counsel for the responding parties, the contents of those letters fall within the ambit of an employer's freedom to express its views, under section 65 of the Act. The Board has traditionally recognized that employees are aware that employers are generally not in favour of having to deal with employees through a union, and that employer expressions of that view, in the absence of any surrounding circumstances which would cause employees to place undue emphasis on such statements, do not constitute undue influence or otherwise contravene the Act: see, for example, Dylex Ltd.,[1977] OLRB Rep. June 357 (application for judicial review dismissed: 77 CLLC ¶14,112). There is no evidence of any such circumstances in the instant case. In his letter to Hornco employees, Mr. Gourley expresses the opinion that "a direct relationship, without the intervention of outsiders, is preferable." However, he also emphasizes that the decision is the employees' alone to make, and that their decision will be respected. The letter to Horn employees is equally innocuous, and also clearly falls within the ambit of an employer's freedom to express its views, under section 65 of the Act.
Having regard to all of the circumstances, the Board finds it appropriate to exercise its discretion under section 1(4) to declare that the responding parties constitute one employer for purposes of the Labour Relations Act. Moreover, in view of the extensive integration of the two plants, the aforementioned interchange of employees between them, the substantial community of interest which exists among employees at the two plants, and the serious labour relations problems which would likely result from fragmenting the employer's integrated operations at those two plants, the Board finds that all employees of Horn Plastics Ltd. and Hornco Plastics Inc. (as one employer under section 1(4) of the Labour Relations Act) in the Regional Municipality of Durham, save and except supervisors, persons above the rank of supervisor, and office and sales staff, constitute a unit of employees appropriate for collective bargaining. Although the more narrow unit proposed by the applicant might arguably serve the purpose identified in paragraph 1 of section 2.1 of the Act, it would not serve the other purposes set forth in that provision and, in particular, would not "promote harmonious labour relations, industrial stability and the ongoing settlement of differences between employers and trade unions.
The Board is satisfied on the basis of all the evidence before it that less than forty per cent of the employees in the bargaining unit on March 25, 1993, the certification application date, were members of the applicant on that date or had applied to become members of the applicant on or before that date.
Accordingly, the application is hereby dismissed.
DECISION OF BOARD MEMBER P. V. GRASSO; May 7,1993
With respect, I dissent from the majority decision. I would have granted the bargaining unit that was proposed by the union.
The central question is whether the unit proposed by the union is a viable one that will not cause serious labour relations problems for the employer.
The problems raised by the employer in response to the union's proposed unit are not so serious, in my view, as to create an obstacle to an otherwise appropriate bargaining unit. None of the issues raised are ones which cannot be bargained about, and the history of employee interchange is not significant enough to cause any serious labour relations problems.
Granting the smaller unit may cause the employer some administrative inconvenience, but that alone does not constitute a serious labour relations problem that should cause the Board to deny the applicant the bargaining unit it desires. The union is entitled to be granted an appropriate bargaining unit. The Act does not require it to apply for the most appropriate unit.
The majority decision also goes against the Board's well established practice of describing bargaining units outside of the construction industry in terms of the municipality in which the workplace(s) is (are) located. This practice reflects an attempt to balance considerations of viability or rationality of bargaining units against the right of employees to freely organize themselves, and it also provides a measure of predictability to the labour relations community. This practice is followed unless there are compelling reasons to do otherwise, reasons which, as I described above, I believe are absent in this case.
As a result, I would have granted the applicant's proposed bargaining unit, thereby facilitating access to collective bargaining.