[1993] OLRB REP. APRIL 365

3322-92-R United Steelworkers of America, Applicant v. National Protective Service Company Limited, Responding Party

BEFORE: M. A. Nairn, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.

APPEARANCES: M. Kelly, B. Jones, D. McRae and S. Deans for the applicant; B. Sevigny and T. Shearly for the responding party.

DECISION OF THE BOARD; April 30,1993

1. The style of cause is hereby amended to reflect the correct name of the responding party: "National Protective Service Company Limited".

2. This is an application for certification. Prior to the hearing scheduled in this matter the parties met with a Labour Relations Officer to review the issues in dispute. Following that meeting there remained essentially two issues. First, the responding party ("N.P.S." or "National Protective Service" or "the employer") takes the position that this Board has no jurisdiction over the employees that are subject to the application. The second issue is with respect to the bargaining unit description.

3. The hearing convened before this panel dealt with the first issue. It is the position of the responding party that this Board lacks the constitutional jurisdiction to certify its employees. It is the position of the applicant (or "the union") that constitutional jurisdiction is properly vested within the provincial jurisdiction.

4. The parties provided the panel with an Agreed Statement of Facts as follows:

5. The respondent is in the business of providing security guard services in the Regional Municipality of Ottawa-Carleton, and in Hull, Quebec. It was incorporated in Ontario and is licensed under the Private Investigators and Securities Guards Act, R.S.O. 1990, ch. P-25, as well as under similar legislation in the Province of Quebec. As of February 12, 1993, the date of the within application, the respondent had a total of approximately 300 persons on its payroll, 245 of whom were security guards employed on a full-time basis, and 45 of whom were security guards employed on a part-time basis.

6. During January of 1993, the respondent provided a total of 50,881 hours of security guard services in the Regional Municipality of Ottawa-Carleton. About 90% of those hours were provided to various departments and agencies of the Federal Government, including Revenue Canada, Transport Canada, Public Works Canada, Environment Canada and Agriculture Canada. The remaining 10% of those hours were provided to other clients such as the City of Ottawa, the Regional Municipality of Ottawa-Carleton and Ottawa Commercial Realties. The number of hours of security guard services provided by the respondent to clients other than the Federal Government in January of 1993 was significantly higher than the respondent's average monthly total for non-Federal Government clients, as the respondent provides security guard services for a number of non-Federal Government snow dumps during the winter months only. Over the entire year, the Federal Government and its departments and agencies account for between 90% and 97% of the respondent's business.

7. There is no regular rotation of security guards from location to location. However, security guards who work at Federal Government sites are occasionally offered opportunities to work overtime at non-governmental locations. Conversely, security guards who generally work at sites operated by clients other than the Federal Government are occasionally assigned to work at Federal Government sites when the need arises. Approximately 5% of security guard employees do not meet the requirements of the RMSO and cannot be assigned to Federal sites.

8. With the exception of pre-board passenger screening services provided to the Department of National Defence at its Canadian Forces Base in Ottawa, and security services provided to the National Printing Bureau in Hull, guard services at Federal Government sites in Ottawa-Carleton are provided pursuant to a detailed, written standing offer agreement for the provision of security guard services at departments and agencies of the Federal Government. That agreement is entitled the "Regional Master Standing Offer" ("RMSO"), and consists of a 94 page contract in a form prepared by the Department of Supply and Services ("DSS"). Space at a few of the locations at which the respondent provides security guard services to Public Works Canada is leased by the Federal Government to private tenants. A few of the other locations include both Federal Government offices and offices of other entities.

9. The RMSO sets forth detailed provisions relating to the duties, responsibilities and terms and conditions of employment of the company guards. The essential features of the RMSO can be summarized as follows:

10. The RMSO sets forth specific and detailed criteria with respect to health, training, appearance, licensing and identification, bonding, age, education, citizenship, language, experience, security clearances and reliability checks with which the company employees must comply. The RMSO requires that security guards are licensed in accordance with the Private Investigators and Security Guards Act of Ontario and Regulations. Job specifications are also set forth in the RMSO. They contain general statements of the duties which National Protective employees must perform and to which the company must agree. The duties are set forth in detail and grouped according to classification.

11. Common duties undertaken by National Protective employees at Federal Government sites include controlling the movement of people and material into and out of the Federal Government buildings, reporting suspicious persons, administering first aid, preventing fires, enforcing fire safety standards, searching for and identifying suspect items such as bombs or other threat situations, providing evacuation leadership in fire, bomb or other threat situations, reporting incidents to the federal authorities and arresting any person in appropriate circumstances.

12. A sample of additional responsibilities which some classifications might be requested to undertake include the following:

(a) cleaning escort - prevention of theft of classified materials from government offices (garbage or otherwise) by accompanying cleaning staff while the latter perform their duties. In some departments, waste paper may be marked "Top Secret" and the guards must ensure that such waste is not removed by the cleaners.

(b) non-public guard or patrol person - ensures that only authorized articles are removed from a building, that perimeter and restricted areas are secure and issues passes as required to control the movement of people, material and vehicles.

(c) farm patrol - carries out motorized patrol at the Central Experimental Farm.

(d) public guard - regulates the flow of public visitors into and form the federal government premises, prevents the entry into the premises of unauthorized packages, monitors and controls movement of government property, and controls movement of personnel in restricted areas.

(e) information desk, access control or receptionist - regulates the flow of materials and people into and out of federal government premises to prevent unauthorized removal of entry of material or persons.

(f) console operator and voice communicator - logs all phone calls and radio messages, maintains a list of staff entering premises after normal working hours, advises the appropriate government office of important calls, monitors building security, identifies and responds to alarms and acts with outside agencies in alarm situations.

(g) senior guard or shift supervisor - may be required to carry out guard duties in sensitive areas (i.e. the guarding of illegal drugs, employment and taxation buildings), restricted areas and high profile areas (i.e. offices of senior department officials).

9. The RMSO also sets out the details of a Basic Training Program which all of National Protective's employees engaged at Federal Government sites must take and pass to ensure that they are able to perform the above mentioned duties and functions. Similarly, the RMSO set out the details of a supervisory Training Program which National Protective's guards must successfully complete before undertaking supervisory functions. The RMSO also provides that DSS officials will administer, prior to guard assignment, a test to the proposed security guard personnel in order to evaluate their job knowledge and skill. The RMSO also requires National Protective to employ "patrol officers" to monitor the guards at the various Federal Government sites, and to report deficiencies in employee conduct.

10. In addition, the RMSO provides that the Federal Government may conduct on-the-job inspections of National Protective's employees to ensure adequate job performance. Where deficiencies in job performance are not rectified by National Protective, it may be considered grounds for default.

11. In addition to the control conferred on it by the RMSO, DSS employs a "Guard Quality Assurance Unit" ("GQA"), which inspects the quality of guard services provided by National Protective at each and every shift. That unit may advise the federal government of deficiencies in work performed by National Protective employees, by completing and filing deficiency reports, copies of which go to the contracting authority, NPS head office and to the department client. No such quality assurance units monitor NPS's non-federal government sites.

12. National Protective also provides security guard services to Public Works Canada at National Printing Bureau, a federal government complex in Hull, Quebec. That contract for services is the same as RMSO except for some additional services and requirements.

13. With regard to the contract to provide guard services to the Department of National Defence at its Canadian Forces Base in Ottawa, it is governed by a separate contract between DSS and National Protective. Under that contract, security guards must be trained to conduct pre-board security checks. The guards working at the Base are assigned to that contract on a permanent basis. Presently, the following guards are assigned to that contract: Simon Black (Schedule "A", No. 19), Sean Doucet (Schedule "B", No. 14), Andy Giraud (Schedule "A", No. 63), Sheila Hiscock (Schedule "B", No. 20), Micheline I..etch (Schedule "A", No. 98) and Lesley-Ann McLellan (Schedule "A", No. 114). These employees are agreed out of the bargaining unit.

14. The parties agree that the respondent will call Tim Shearly to give evidence regarding paragraphs 6, 8, 9 and 13 only. The applicant will then have an opportunity to call evidence on paragraphs 6, 8, 9 and 13 only. No further evidence will be called by either party.

15. That statement of fact was supplemented by the introduction of the document referred to in paragraph 4, the "RMSO", and the viva voce evidence of Mr. Tim Shearly, the Vice-President of N.P.S. In his evidence in chief Mr. Shearly reviewed the RMSO for the purpose of highlighting the specificity and the high standards required by the federal government. Many of the specific and detailed criteria required of its security guards, and the extent of overseeing by the client of the service being provided are unique to the federal government. In cross-examination Mr. Shearly acknowledged that the RMSO represented N.P.S.'s contractual obligations entered into pursuant to a request by the federal government to provide security services. The failure to meet these requirements would constitute grounds for default on the contract and the contracting federal agency or department can make deductions from National Protective Service's invoice to account for those deficiencies. Although not explicit in his testimony, it is reasonable to infer that if these deficiencies were of a magnitude so as to represent sub-standard service to the federal agency or department, it would have the opportunity to discontinue contracting with National Protective Service for the provision of security services.

16. With the exception of the contracts for guard services to the Department of National Defence (D.N.D.) and the National Printing Bureau in Hull, all of N.P.S.'s other contractual relations flow pursuant to "call-ups" which essentially constitute a tender incorporating the requirements of the RMSO. Once signed by National Protective Service, a call-up and the requirements of the RMSO constitute the contract between the federal government department or agency involved and National Protective Service.

17. While these facts are fairly straightforward the issue of their appropriate constitutional characterization and the labour relations consequences has not been. In 1987 the United Plant Guard Workers' of America brought an application for certification for employees of National Protective Service. The bargaining unit sought in that application was, in most respects, the same as that proposed before us. That earlier application however also included employees employed in the provision of pre-board passenger screening services on behalf of the Department of National Defence at its Canadian Forces Base in Ottawa. In this application the parties have specifically agreed that those employees are properly excluded from the bargaining unit. The parties here are also agreed that employees performing security services in Hull, Quebec, pursuant to the separate contract with the National Printing Bureau are also not the subject of this application.

18. In the 1987 case (cited as National Protective Service Company Limited, [1987] OLRB Rep. Feb. 245), a panel of this Board ("the OLRB") dismissed that application for certification concluding that the employees of N.P.S. were appropriately within the federal jurisdiction.

19. In June 1988, following the release of the decision of the OLRB, the Canadian Guards Association filed an application for certification before the Canada Labour Relations Board (the "CLRB") for essentially the same group of employees of N.P.S. Dealt with at the same time were applications regarding employees of Pinkertons of Canada Ltd. All the parties before the CLRB were in agreement that that Board had jurisdiction over the employees in question. However, the CLRB raised and sought the evidence and submissions of those parties on the issue of whether the employees in question were properly the subject of federal or provincial jurisdiction.

20. In the meantime, in 1989, the CLRB released its decision in Burns International Security Services Limited et. al. and Canadian Union of Postal Workers et. al., 3 CLRBR (2d) 264 (the "Burns" case). At issue was whether or not Canada Post Corporation ("CPC") had sold part if its business to Burns International Security Services Limited ("Burns") by contracting out security services at certain postal facilities in Ontario. As a preliminary issue the CLRB considered whether or not both the alleged vendor and purchaser fell within the federal jurisdiction and consequently within the jurisdiction of that Board. In concluding that the operations performed by Burns at the CPC facilities were within the provincial jurisdiction, the CLRB reviewed a number of the same cases set out in the 1987 OLRB decision, including the decision of the Supreme Court of Canada in Northern Telecom Ltd. v. Communication Workers of Canada et. al., (1979), 98 D . L. R. (3d) 1 which approved the reasoning in Arrow Transfer Company Ltd., 74 CLLC 16,130, a decision of the British Columbia Labour Relations Board. In addition the CLRB considered the decision of the Federal Court of Appeal in C.A.L.E.A. v. Wardair Canada (1975) Ltd., [1979] 2. F.C. 91, 1979 CanLII 4076 (FCA), 97 D.L.R. (3d) 38.

21. In August, 1990 the CLRB released its decision concerning the employees of N.P.S. and Pinkertons (Canadian Guards Association v. National Protective Service Company Limited Board File 555-2816, unreported decision of the CLRB, August 29, 1990). It reviewed the 1987 decision of the OLRB and while agreeing with its conclusion regarding employees involved in pre-board screening services for D.N.D it expressly disagreed with the OLRB's conclusion regarding the other employees. Following a lengthy review of a number of decisions of the Supreme Court of Canada and the Federal Court of Appeal and other CLRB jurisprudence, including the Burns decision, that Board concluded that the employees in question properly fell within the provincial jurisdiction and dismissed the applications for certification.

22. The applicant in those proceedings took that decision on review before the Federal Court of Appeal. By endorsement dated March 31, 1992 that Court dismissed the application stating:

While we are unable to agree entirely with the lengthy reasons of the Canada Labour Relations Board, we are of the opinion that it reached the correct result. It found that the employees of National Protective Services engaged in airport security functions at CFB Ottawa are engaged in a federal undertaking. That decision is not questioned in this proceeding.

Is also found that the other employees of N.P.S., and those of Pinkerton's were not engaged in a federal undertaking. We are satisfied that those employees are engaged in the undertakings of their respective employers: the provision of security services to a variety of clients. They are not engaged in the undertaking of the Government of Canada to which the services of a considerable majority of the employees in the proposed bargaining units are, in fact, provided.

13. The parties before us are agreed that the facts are essentially the same as those before both the OLRB in its earlier decision and the CLRB. While we are faced with conflicting conclusions we agree with the submission of N.P.S. to the effect that the nature of the constitutional question is fairly well settled. To use the words of the B.C. Labour Relations Board in Arrow Transfer, supra, we see the exercise as one of identifying firstly, the core federal undertaking in issue and then the particular subsidiary operation engaged in by the employees in question, in order to answer the question of whether the relationship of that subsidiary operation to the core federal undertaking can be characterized as vital, essential, or integral. The dispute in each case and before us concerns the result of the application of that approach to the facts.

14. The core federal undertaking involved in this case is identified only in paragraph 2 of the Agreed Statement of Facts, that is, various departments and agencies of the Federal Government, including Revenue Canada, Transport Canada, Public Works Canada, Environment Canada, and Agriculture Canada. The work performed by the subsidiary operation is outlined primarily in paragraph 7 of the Statement of Facts with certain additional duties set out in paragraph 8.

15. In assessing what is integral to the core federal undertaking we note that the cases agree that providing pre-board screening services at the Canadian Forces Base in Ottawa is an integral part of a federal undertaking. The CLRB concluded that it is integral to the core federal undertaking of aeronautics, being a matter subject to regulation under the Aeronautics Act. The decision of the OLRB in 1987 also makes reference to the federal power specifically given under section 91(7) of the Constitution Act over "Militia, Military and Naval Service and Defence". We reflect on the somewhat tenuous balance in these assessments, the fact that security services may be provided in accordance with prescribed regulation as opposed to a contractual standard being seemingly sufficient to render the subsidiary operation integral to the core federal undertaking. It may be that the fact of federal regulation provides some insight as to the degree to which the regulated activity is considered "essential" or "integral" to the associated federal undertaking. However, given the parties' agreement before us, employees performing those functions are not in issue in this application.

16. In reviewing the 1987 decision of this Board we note that that panel's primary concern appeared to be in relation to the group of employees performing work under contract to D.N.D. Finding that the other employees also fell with the federal sphere rendered a sensible labour relations result. The employer, employees and any bargaining agent would not be in the potentially burdensome and confusing situation of having to deal with at least two sets of rules governing their labour relations. This is particularly so where there was evidence that individual employees licensed in both Ontario and Quebec might well work in both of those jurisdictions, potentially subject to different terms and conditions of employment even while performing essentially the same work for the same employer.

17. In its submissions, the responding party accepts the principles enunciated in the cases set out in the CLRB decision but argues that its conclusion is incorrect on the facts. Counsel reviewed the decision in Construction Montcalm Inc. v. The Minimum Wage Commission, 1978 CanLII 18 (SCC), [1979] 1 S.C.R. 754, considered by the CLRB, wherein Mr. Justice Beetz discussed the characterization of the subsidiary operation by considering the nature of the business as a "going concern". In that case he concluded that the nature of the work, that being construction on an airport runway, a federal undertaking, did not change the ordinary business of the subsidiary operation, that being the business of construction.

18. In this case N.P.S argues that on the facts it must be concluded that the nature of the going concern of N.P.S is not just the provision of security guard services but the provision of security guard services to Federal Government undertakings, based on the percentage of the work performed for that client and the degree of control exercised over N.P.S in the performance of that work. N.P.S. asserts that the relationship between N.P.S and the Federal Government is both an extensive and continuing one. We note that that presupposes the successful delivery of the service to the client pursuant to the contractual obligation involved.

19. The essence of the responding party's submission is that by virtue of the substantial degree of control established by the requirements in the RMSO leads to the inevitable conclusion that the security services provided constitute an integral part of the various federal undertakings. What is lacking in this analysis in our view is an assessment of the nature of the core federal undertaking involved. While the evidence is extremely limited it would appear to us that the core federal undertaking, for example, with respect to Revenue Canada is the exercise of taxation; with respect to Transport Canada, the regulation and facilitation of transportation and so on.

20. N.P.S. acknowledged that should we uphold this Board's earlier decision, given the CLRB's decision confirmed by the Federal Court of Appeal, these employees would find themselves in some kind of "constitutional limbo" but that that ought not to be a consideration in our determination. Surely, however, some element of certainty is warranted. The result of this constitutional confusion has been to considerably delay any opportunity for these employees to exercise their lawful rights to seek representation through a bargaining agent. The effect of adopting the employer's position would be to further delay that opportunity pending further resort to the courts.

21. We note that on the evidence before us we are unable to draw the conclusion that the various federal undertakings involved exercise sufficient control over the employment relationship so as to conclude that they are the employer for labour relations purposes, nor was that suggested by either party. While the RMSO establishes vigorous standards and criteria and the federal government exercises an inspection role, it is not at all apparent to the panel who exercises day-to-day control over the employees in terms of their continued employment nor how the terms and conditions of employment are set as between the individual employee and N.P.S. At the same time as asserting that the relationship between the federal undertaking and the subsidiary operation is a lengthy and continuing one, the responding party acknowledged in submissions that it is an arm's length relationship.

22. It no doubt would have been helpful to have some greater explanation from the Federal Court of Appeal with respect to its concerns regarding the reasoning of the CLRB. Its conclusion, however, even if we were to conclude that it was not binding on this Board, is certainly of considerable persuasive authority. We refer to that same court's comments in the Wardair case supra, wherein it commented:

A particular activity may be reasonably incidental to the operation of a federal work, undertaking or business without being an essential component of such operation. For example, an inter-provincial railway may have its own laundry facilities or its own arrangement for preparing food for passengers, or, alternatively, it may send its dirty linen to an outside laundry or buy prepared food. Generally speaking, where such an activity is carried on by the operator of the federal work, undertaking or business as an integral part thereof, it is indeed a part of the operation of the federal work, undertaking or business. Where, however, the operator of the federal work, undertaking or business carries on the operation thereof by paying ordinary local businessmen for performing such services or for supplying such commodities, the business of the person performing the service or preparing the commodities does not thereby automatically become transformed into a business subject to federal regulation.

(emphasis added)

The Court recognized that while an activity may well be "reasonably incidental" to the operation of a federal work, that does not, in and of itself, render it integral to the core federal undertaking.

23. In Northern Telecom Canada Ltd. et. al. v. Communications Workers of Canada et. al. (1983), 1983 CanLII 25 (SCC), 147 D.L.R. (3d) 1 (S.C.C.) (Northern Telecom #2) then Mr. Justice Dickson remarked on the nature of the constitutional assessment at hand. He concluded that the work of the installers in question was unlike the construction of a federal undertaking in that it was not preliminary to the work of the core federal undertaking (the operation of Bell Canada's telecommunications system). Mr. Justice Estey wrote that the almost complete integration of the installers' daily work routine with the task of establishing and operating the telecommunications network made the installers work an integral part of the federal work; that the installers' work was vital in itself to the continuous operation of the network.

24. In Northern Telecom #2 the core federal undertaking could not function in the absence of the work of the installers. Can the same be said in this case? While it would no doubt create perhaps significant difficulties, could the exercise of taxation, for example, not still occur in the absence of security services? It is interesting to note that Mr. Justice Dickson at least felt that the Northern Telecom case was "very close to the boundary line" but the Court was ultimately persuaded that the installers fell under federal jurisdiction. The relationship between the core federal undertaking and the subsidiary operation in this case is, in our view, more remote.

25. While we continue to have some reservations about the labour relations consequences, we have concluded on the basis of the authorities to which we were referred (including those not available to the Board in 1987), that while it may well be reasonably incidental to these federal undertakings that security services be provided we are not persuaded that they are integral to the core federal undertaking. Given the presumption that labour relations is a matter of provincial jurisdiction, on balance, we are persuaded that we have jurisdiction to deal with this application for certification.

26. The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act (the "Act").

27. The remaining issue concerned the description of the bargaining unit. At the outset of the hearing the parties confirmed that their dispute with respect to the training officer was resolved. The parties are agreed that Training Officer is a position that is properly excluded from the bargaining unit. The parties were also in dispute as to whether Field Supervisors and Site Supervisors were properly included in or excluded from the bargaining unit. Following the hearing of the constitutional issue, we received a letter from the applicant dated March 17, 1993 enclosing a copy of Minutes of Settlement signed by the parties resolving any outstanding dispute on the bargaining unit description and the list of employees in the bargaining unit. Having regard therefore to the agreement of the parties both in writing and before the panel the Board finds that:

all security guards of National Protective Service Company Limited in the Regional Municipality of Ottawa-Carleton, save and except Director of Personnel, persons above the rank of Director of Personnel, Dispatchers, 5 Mobile Patrol Officers, 1 Site Supervisor at Statistics Canada on Holland Avenue in Tunney's Pasture, the Training Officer, office and clerical staff,

Clarity Note:

Mobile Patrol Officers generally don't provide security guard services at a specific site, but go from site to site reporting on the quality of service of the security guards and are involved in discipline of security guards.

The parties agree that employees employed in the provision of pre-board passenger screening services on behalf of the Department of National Defence at its Canadian Forces Base in Ottawa are properly excluded from the bargaining unit.

constitute a unit of employees of the responding party appropriate for collective bargaining.

28. Having further regard to the list of employees in the bargaining unit contained in the report of the Labour Relations Officer, in light of the resolution of the challenges to that list, and to the membership evidence filed by the applicant, the Board is satisfied that more than fifty-five percent of the employees of the responding party, in the bargaining unit on February 12, 1993, the certification application date, had applied to become members of the applicant on or before that date.

29. A certificate will issue to the applicant.