United Steelworkers of America v. Wackenhut of Canada Limited, 1993 CanLII 8036

United Steelworkers of America v. Wackenhut of Canada Limited

Board File and Parties

[1993] OLRB REP. APRIL 393

3410-92-R United Steelworkers of America, Applicant v. Wackenhut of Canada Limited, Responding Party

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. N. Fraser and H. Peacock.

APPEARANCES: Robert Healey and Douglas Foley for the applicant; Brian P. Smeenk, Debra Coles, and Gerry Brennan for the responding party.

DECISION OF THE BOARD; April 27,1993

Decision

1. This is an application for certification which came on for hearing before the Board on April 19, 1993. The application does not relate to the construction industry.

2. The applicant sought to be certified for a bargaining unit of employees of the responding party which it describes as follows:

"all security guards of Wackenhut of Canada Limited in the Regional Municipality of Waterloo, the County of Perth and the County of Wellington, save and except patrol supervisors and persons above the rank of patrol supervisor, dispatchers, office, clerical and sales staff and, pending resolution by the Board, excluding as well site supervisors and Robert Hertzberger and Lyle Ruby, classified as patrol supervisors".

3. The responding employer's position was that the bargaining unit herein should be described as follows:

"all security guards of Wackenhut of Canada Limited in the City of Kitchener, the City of Waterloo, the City of Cambridge, the Town of Listowel and the City of Guelph, save and except patrol supervisors, persons above the rank of patrol supervisor, dispatchers, office, clerical and sales staff, and, pending resolution by the Board, excluding as well site supervisors and Robert Hertzberger and Lyle Ruby, classified as patrol supervisors".

4. There was no dispute about the facts material to this issue. The employees affected by this application all work in one of the five municipal centres specified in the responding employer's proposed bargaining unit; namely, Kitchener, Waterloo, Cambridge, Listowel or Guelph. There are a total of twelve work sites, ten in the Regional Municipality of Waterloo (that is, in either Kitchener, Waterloo or Cambridge), one in Listowel and one in Guelph. The responding employer's Operations Manager in its Kitchener office is responsible for all of these work sites. S/he is also responsible for employees at a site in Woodstock (in the County of Oxford). The same person is also the Operations Manager in the responding employer's London office. The responding employer's District Manager is responsible for both the Kitchener office and the London office. Of the twelve job sites affected by this application, six have full-time site supervisors and one has a "part-time" site supervisor. Other than the "patrol supervisors", all employees are stationed at a particular job site.

5. The applicant submitted that the unit it proposed is an appropriate bargaining unit and that the responding employer's proposed unit is not. The applicant pointed out that the Board need not determine what the best bargaining unit would be and that if the applicant's proposed bargaining unit was an appropriate one the applicant was entitled to it. The applicant observed that its proposed unit would constitute a contiguous geographic area and that the responding employer's proposed unit would not. The applicant referred to two earlier decisions in which the Board had certified an applicant trade union for a bargaining unit described in the same way as the applicant proposes herein; namely, in terms of Regional Municipalities or Counties rather than individual municipalities (Burns International Security Services Ltd., Board File No. 1681-92-R, decision dated October 8, 1992, unreported; Canadian Protection Services Ltd., Board File No. 2924-92-R, decision dated March 23, 1993, unreported). The applicant argued that its proposed unit would avoid the fragmentation which the responding party's proposed unit would result in, and, further, that the responding party's proposed unit would impede effective collective bargaining. The applicant submitted that it was entitled to the bargaining unit of employees it had sought to organize and that the nature of the security industry is such that its bargaining unit would give the employees the applicant had organized the appropriate collective bargaining protection. The applicant submitted that the responding employer's proposed bargaining unit would not. In the course of its submissions, the applicant referred to and relied on The Hospital for Sick Children, [1985] OLRB Rep. Feb. 266 and Belkin Inc., [1986] OLRB Rep. Aug. 1050.

6. The responding employer pointed out that its proposed bargaining unit covers all of the employees the applicant seeks to represent herein. It submitted that its proposed bargaining unit would not result in fragmentation or other labour relations problems, either as suggested by the applicant or otherwise. The responding employer observed that the Board has certified bargaining units of security guards described in several different ways, including by municipality as it suggests herein, and argued that the Board has consistently rejected the kind of geographic description proposed by the applicant where the parties did not agree to it. The responding employer argued that the applicant was now seeking more than it had applied for or was entitled to and that the applicant's bargaining unit was therefore not an appropriate one. The responding employer referred to and relied on Perimeter Industries Limited, [1973] OLRB Rep. March 174; York Steel Construction Limited, [1980] OLRB Rep. Feb. 293; Bruce Peninsula & District Memorial Hospital, [1982] OLRB Rep. May 656; Kuehne & Nagel International Limited, [1985] OLRB Rep. May 693 and Coca Cola Ltd., [1989] OLRB Rep. Jan. 1.

7. Upon considering the representations of the parties, the Board ruled, orally, in favour of the responding party.

8. In both Burns International Security Services Ltd., supra and Canadian Protection Services Ltd., supra, the parties had agreed on the geographic scope of the bargaining unit. These decisions demonstrate the Board's general willingness to accept agreements of the parties in that respect. They do not constitute or suggest a Board practice with respect to bargaining units of either security guards or other employees.

9. As the decisions cited by the responding employer demonstrate, it has long been the Board's general practice to describe bargaining units outside of the construction industry in terms of the municipality in which the workplace(s) is (are) located. Although, like every practice or policy of the Board, this practice is not without its exceptions, the Board will generally not describe a bargaining unit in terms of some broader or narrower geographic area unless it is satisfied that there is good reason to do so in a particular case. In the result, exceptions to the practice are rare. The Board's practice in this respect reflects an attempt to balance considerations of viability or rationality of bargaining units against the right of employees to freely organize themselves. It also provides a measure of predictability to the labour relations community.

10. In this case, the Board was not satisfied that it was appropriate for the bargaining unit to be given the broad geographic scope suggested by the applicant. Accordingly, the applicant's proposed bargaining unit is not an appropriate one in this case. On the other hand, the Board was satisfied that the responding employer's bargaining unit is an appropriate one.

11. Neither proposed unit was congruent with the responding employer's organizational structure. It did not appear necessary to extend the bargaining unit configuration to the Regional or County level in order to protect any legitimate collective bargaining interest. On the other hand, the broader geographic boundaries would extend the bargaining beyond that which the applicant had sought to organize and could impair the rights of future employees under section 3 of the Act.

12. The responding employer was not attempting to split up the employees for whom the applicant sought bargaining rights. Nor was it seeking to carve out any employees which the applicant sought to organize. On the contrary, the responding employer's proposed unit represented the unit which was the target of the applicant's organizing campaign. The responding employer's proposed unit did not raise any fragmentation issue and was consistent with the Board's long-standing practice of describing (non-construction) bargaining units with reference to municipal boundaries.

13. In the result, the Board ruled that the applicant's proposed bargaining unit was not an appropriate one in this case. The Board further ruled that the responding employer's proposed unit was an appropriate one and found that; all security guards of Wackenhut of Canada Limited in the City of Kitchener, the City of Waterloo, the City of Cambridge, the Town of Listowel and the City of Guelph, save and except patrol supervisors, persons above the rank of patrol supervisor, dispatchers, office, clerical and sales staff, and (pending resolution by the Board) excluding also site supervisors, and Robert Hertzberger and Lyle Ruby who are classified as patrol supervisors, constitute a unit of employees of the responding party appropriate for collective bargaining.

14. There remained a dispute between the parties with respect to the list of employees in the bargaining unit. the applicant asserts that Robert Hertzberger, Lyle Ruby (both classified as "patrol supervisors"), Brady James, Cecil McClory, Glen Parrest, Thomas Riggs and Ronald Sanvido (all classified as "site supervisors") are in the bargaining unit. The responding employer asserts that all of these persons exercise managerial functions and should therefore be deemed not to be "employees", pursuant to section 1(3) of the Act. The responding employer submits that they are therefore not properly included in the bargaining unit.

15. The applicant had taken the position that the Board should deal with the employee list issues directly. The responding party has suggested that the Board should follow its usual practice and authorize a Labour Relations Officer to inquire into and report to the Board in that respect. For the first time at the hearing on April 19, 1993, and without any prior notice to the responding employer, the applicant advised the Board that it had changed its mind and now agreed that the list issues could be referred to an Officer. The responding employer had come to the hearing prepared to deal with the list issues and expressed it's understandable frustration at this turn of events. Nevertheless, the responding employer agreed that the list issues should be dealt with through the Board's Labour Relations Officer process as it had originally suggested.

16. Upon reviewing the material before the Board, it was apparent that the disposition of the list issues could not affect the applicant's rights to be certified herein. Whether or not any of the persons in issue were employees in the bargaining unit for purposes of this application, more than fifty-five per cent of the employees of the responding party in the bargaining unit, at the time the application was made, were members of the applicant on February 22, 1993, which is both the application date and the date which the Board determines, under section 105(2)(j) of the Labour Relations Act, to be the time at which membership is ascertained under section 8(1) of the Act.

17. In the circumstances, the Board ruled, orally, that it found it appropriate to exercise its discretion under section 6(2) of the Labour Relations Act to certify the applicant on an interim basis as the bargaining agent for the employees in the bargaining unit described in paragraph 13, above, pending the final resolution of the matters remaining in dispute between the parties herein.

18. We note that there is no interim certification "document" which will issue other than this decision (see, P & M Electric Limited, [1989] OLRB Rep. Oct. 1064; for a discussion of the Board's practice in this respect and the effect of interim certification in general see Comstock Funeral Home Ltd., [1982] OLRB Rep. Oct. 1436).

19. With respect to the matters remaining in issue, the Board authorizes a Labour Relations Officer to be designated by the Board's Manager of Field Services, to inquire into and report to the Board with respect to the duties and responsibilities of Robert Hertzberger, Lyle Ruby, Brady James, Cecil McClory, Glen Parrest, Thomas Riggs and Ronald Sanvido.