Ontario Public Service Employees Union v. The Canadian Red Cross Society, 1994 CanLII 9802

[1994] OLRB Rep. December 1694

4022-93-R Ontario Public Service Employees Union, Applicant v. The Canadian Red Cross Society, Responding Party v. Canadian Red Cross Blood Transfusion Service Employees Association, Intervenor

BEFORE: Lee Shouldice, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.

APPEARANCES: David Wright for the applicant; Charles V. Hofley for the responding party; B. P. Bellmore for the intervenor.

DECISION OF LEE SHOULDICE, VICE-CHAIR, AND BOARD MEMBER R. R. MONTAGUE; December 15, 1994

I. Introduction

1. This is an application for certification, in which a pre-hearing vote was ordered by a dif­ferently constituted panel of the Board on March 21, 1994. The vote was subsequently held and the ballot boxes sealed pending the resolution of the outstanding issues between the parties. On May 17, 1994, this panel was convened to deal with those issues, in particular the inclusion of the ballots of probationary employees in each unit and whether the intervenor holds bargaining rights with respect to one or two bargaining units. A further, related issue is the appropriateness of the bar­gaining unit applied for by the applicant.

2. By way of decision dated June 27, 1994, this panel of the Board provided the parties with the following "bottom line" determination:

3. In our view, it is appropriate to provide the parties with a "bottom line" decision on these issues so as to permit for a timely determination of the application. Having heard both the evi­dence (which was agreed upon by the parties) and the argument of the parties, the majority of the Board (Board Member Ronson dissenting) hereby rules as follows:

(a) the intervenor holds bargaining rights in respect of two bargaining units; and

(b) the appropriate bargaining unit for the purposes of this application is that proposed by the applicant, and which is reflected by the application for cer­tification;

The full panel of the Board rules that the probationary employees are members of the bargain­ing units and their segregated ballots should be counted. Full reasons for this decision will issue at a later date.

These are the reasons for that "bottom line" decision.

II. Factual Background

3. The responding party, The Canadian Red Cross Society (hereinafter referred to as "Red Cross"), operates blood transfusion centres out of the cities of Toronto, Hamilton, Ottawa and London. The intervenor, Canadian Red Cross Blood Transfusion Service Employees Associa­tion (hereinafter "the Association"), represents what, for the purposes of convenience, we will describe as "support staff' working at or out of the above-noted locations~ with certain exclusions respecting staff performing managerial functions. The Association was certified by this Board as the exclusive bargaining agent for full-time support staff of Red Cross by way of certificate dated April 21, 1976; the same certification for the part-time, casual and temporary support staff of Red Cross was obtained by the Association by way of Board certificate dated December 18, 1985.

4. The following facts were agreed to by the parties and presented to the Board as the facts upon which the outstanding issues should be decided. There is one Labour/Management Committee for each blood transfusion centre and there is a specifically designated part-time and full-time employee representative on that Committee. There is no grievance committee. The usual practice regarding grievances is for grievances from full-time employees to be handled by a full-time grievance representative and a part-time grievance to be handled by a part-time grievance representative. At the Toronto Centre, there are variations on this usual practice, either because there is no part-time grievance representative or because there are circumstances when part-time issues have been dealt with by full-time grievance representatives.

5. With respect to negotiations, there is one committee which negotiates on behalf of full and part-time employees. The membership of the Association negotiating committee is comprised of part-time and full-time employees. There is one set of meetings, and there are separate part-time and full-time proposals. The parties typically negotiate full-time issues to impasse and then turn to part-time issues. When conciliation has been necessary, there have been two applications for conciliation, two Ministry of Labour file numbers, two separate appointments of the same con­ciliation officer, and one joint meeting or meetings with the officer. The result of these meetings has been one tentative agreement, with two signature sheets. The tentative agreement is voted on by employees at each of the four centres. There is one meeting and one vote at each blood transfu­sion centre, and the ballots of the part-time employees and the full time employees go into one bal­lot box.

6. The Association is governed by a single Board of Directors that has separately elected part-time and full-time representatives. There is a segregated ballot of part-time employees for the election of the part-time representatives.

7. With regards to the probationary employees, these individuals are not members of the Association, and do not pay union dues. They do not have the right to vote in Association elections, and they do not appear on the seniority list. As a general practice, probationary employees do not have the right to vote for ratification of the collective agreement. There is, however, one example (in 1988) of a probationary employee casting such a vote.

8. The Board was provided with copies of the collective agreement documentation, in effect from April 1, 1992 to March 31, 1994. There is no dispute that this application for certifica­tion is timely.

III. Issues and Decision

(a) Does the Association Hold Bargaining Rights With Respect To One Or Two Bargaining Units?

9. The applicant submits that the Association holds rights with respect to one comprehen­sive bargaining unit composed of both full-time and part-time employees, notwithstanding that the two groups were initially certified separately. In support of this conclusion, counsel for the appli­cant specifically refers to the physical structure of the collective agreement documentation and the agreed-upon facts outlined above respecting the Labour/Management Committee, the grievance practice of the parties and the procedure utilized by the Association for negotiating and ratifying the collective agreement document. It is counsel's submission that, as a practical matter, the par­ties have combined the two units into one. Furthermore, counsel states that as that same combined unit is the one applied for by the applicant, the applied for unit is an appropriate one for collective bargaining. Counsel relies upon Ontario Hydro [1980] OLRB Rep. June 882, Westburne Industrial Enterprises Ltd. [1989] OLRB Rep. June 658; and K-Mart Canada Limited [1982] OLRB Rep. Nov. 1660.

10. Red Cross and the Association dispute this result. Counsel for these parties focus on the existence of two separate Board certificates and the two separate collective agreement documents which contain separate recognition clauses, seniority lists, layoff and recall rights and other obliga­tions. Counsel submit that the "common sense" decision to bargain the two contracts together in time and place should not be considered as an admission by Red Cross and the Association that the units have been consolidated. Counsel argue that the optics of the situation should not govern the substantive result of the circumstances.

11. In our view, the Association has not, by its conduct or by the structure of its collective agreement negotiations, consolidated what were two separate units into one unit. Turning initially to the structure of the collective agreement booklet, it is apparent that the part-time collective agreement is referred to in the Table of Contents of the full-time collective agreement as "Appen­dix 'A"' to the full-time agreement, and that Article 39.01 of the full-time collective agreement makes a similar reference. In our view, though, it is clear from the document that it contains two separate collective agreements. Each agreement has its own cover page which describes the con­tent of the pages that follow as an "agreement". Each agreement has a separate signature page, with separate provisions relating in particular to the full-time or part-time employees to which the specific agreement applies. Common provisions are contained in each of the agreements, rather than in one agreement applicable to both full-time and part-time employees. The documents, in our view, evidence an overall intention by the parties to keep the bargaining units separate.

12. We agree with counsel for Red Cross and the Association that the fact that, for practical purposes, the intervenor conducts negotiations in a manner that partially obscures the distinction between the two units is insufficient to lead the Board to conclude that the Association has, in law, consolidated the two units. The evidence regarding negotiation practice, considered in its totality, is hardly so unambiguous as to permit only for the conclusion urged by the applicant. If anything the evidence regarding negotiation practice and ratification supports the position of Red Cross and the Association.

13. The most significant fact in evidence which could lead us to the conclusion that the units have been consolidated is that the Association conducts the ratification vote in the manner described above; that is, by mixing the ballots cast by the full-time and part-time employees. By allowing the votes to be mixed together, the distinction between the full-time and part-time units is clearly blurred. However, in light of the other evidence outlined above which evidences a contrary intention, we are not satisfied that in this case the mixing of the ballots should be determinative. On balance, we are of the view that the Association continues to hold bargaining rights for two separate bargaining units.

(b) Are Probationary Employees Included In The Bargaining Units?

14. One issue in dispute between the parties is whether the probationary employees are included within the units represented by the intervenor. It is the position of the applicant that they are, and that their ballots should be counted. Once again, Red Cross and the Association dispute this result and urge the Board to find that the probationary employees are not entitled to vote.

15. In our view, the position taken by Red Cross and the Association has no merit. The full-time collective agreement and the part-time collective agreement both define the term "em­ployees" to mean those persons identified in the recognition clause of the agreement as members of the bargaining unit. The respective recognition provisions contain certain exclusions, the part-time provisions excluding supervisory workers and the full-time provision excluding supervisory workers "and those employed on a casual, part-time or temporary basis". Nowhere are probation­ary employees excluded from the bargaining units. Where an "all employee" recognition clause defines the extent of the union's representation, unless a group of employees is specifically excluded from the bargaining unit the group will be included within the unit. There being no such exclusion here for probationary employees, the probationary employees clearly fall within the bar­gaining units represented by the Association.

16. Counsel for Red Cross and the Association in essence take the position that probation­ary employees, having very few, if any, rights under the collective agreements, and having very lit­tle input, if any, into the internal affairs of the Association, ought to have no input into the result of this application for certification, and suggest that the Board ought to apply what were described in argument as "equitable rules of fairness". It is not evident to us that "fairness" or "equity" dic­tates that the probationary employees be deprived of a vote in this application. In point of fact, if anything, "fairness" or "equity" would suggest that these employees not be disenfranchised. Although it is quite true that their rights under the collective agreement are circumscribed in many respects, the Association is their bargaining representative and in this application, where the Asso­ciation's continuing right to represent those same employees is under challenge by the applicant. it would seem both equitable and fair that these employees be entitled to exercise a vote in that pro­cess.

17. Accordingly, we find that the probationary employees are included in the bargaining units represented by the Association and are properly entitled to vote in this proceeding.

(c) Appropriate Bargaining Unit

18. The applicant has applied for the following bargaining unit, which it states is a unit appropriate for collective bargaining:

"All non-professional employees (support staff) of the Canadian Red Cross Society working at or out of the Toronto Blood Transfusion Centre, the Hamilton Blood Transfusion Centre, the Ottawa Blood Transfusion Centre and the London Blood Transfusion Centre, together with all employees hired to work in or out of specific locations outside the boundaries of the Toronto, London, Hamilton or Ottawa Blood Transfusion Centres, employed as Clinic Assistants, Cleri­cal Staff, Transport Staff, Laboratoty Helpers and Utility persons, save and except Transport Supervisors, Assistant Transport Supervisors, Supervisors of Administrative Services, and per­sons employed above these ranks; all as described in the Collective Agreement between the Canadian Red Cross Society Blood Transfusion Service and the Canadian Red Cross Blood Transfusion Service Employees Association dated October 1, 1992, Appendix A to the Agree­ment and the Letter of Understanding dated July 1993 and persons for whom any trade union held bargaining rights as of February 18, 1994."

In substance this is a unit consisting of the full-time and part-time units currently represented by the Association.

19. In an application for certification where the applicant desires to displace an incumbent bargaining agent, the Board's jurisprudence reflects a strong tendency to favour a bargaining unit which mirrors the bargaining unit represented by the incumbent. This approach is reflected by the case of Smith Falls Community Hospital Corporation (Board file numbers 2420-88-R and 2421-88-R, May 23, 1989, unreported) at paragraph 4:

Faced with the prospect of having employees in these two units represented by different trade unions, the respondent now argues that the appropriate bargaining unit in these applications is a single unit consisting of all stationary engineers and helpers employed by the respondent in Smiths Falls. The intervener opposes this suggestion. Had a majority of affected employees at each location voted in favour of representation by the applicant, we would have had little diffi­culty proceeding in the manner suggested by the respondent. As it is, however, all of the North Unit employees who cast ballots voted in favour of the intervener, while all of the employees in the South Unit voted in favour of the applicant. It is true, as the respondent's representative argued, that the wishes of employees are not the only consideration in determining the appro­priate bargaining unit. One of the very strong premises on which the Board operates in displace­ment situations, however, is that the collective bargaining structure which exists in the relation­ship between the employer and incumbent trade union is prima facie appropriate. All of the considerations urged upon us by the representative of the respondent are considerations on which the respondent and intervener could have acted on their own to consolidate the existing bargaining units during collective bargaining. They have not done so. That inaction speaks to the issue before us. In the circumstances, we see no reason to override the very fundamental principle that a trade union should not be deprived of its bargaining rights with respect to a par­ticular bargaining unit unless a majority of employees in that unit signify that they no longer wish it to represent them. The intervener's right to represent employees at the North Unit, and the right of those employees to be represented by the intervener, should not be brought to an end because of an expression of contrary wishes by employees at the South Unit.

In Tele-Direct (Publications) Inc. (Board file numbers 1562-92-R and 1563-92-R, March 4, 1993, unreported) the Board observed as follows, at paragraph 4 and following:

4. As indicated earlier, although the parties clearly disagree as to its application in the present case, there is no real dispute as to the Board's jurisprudence and general approach in these types of cases. As the Board observed in Milirronics Limited, [1980] OLRB Rep. Jan. 56:

On an application for certification the Board is required to determine the unit of employees which is appropriate for collective bargaining. Where one trade union is seeking to displace another, however, the established bargaining unit structure is prima facie appropriate - particularly if it has been established by the parties them­selves through collective bargaining, and continued through the years over several collective agreements. Indeed, what better evidence of "appropriateness" could there be than a pre-existing bargaining structure which the parties have developed themselves and have adapted to their own bargaining circumstances. The Board has been reluctant to fragment an existing bargaining structure or to "carve out" groups of employees from that structure.

5. Thus, in situations not entirely dissimilar to the one under consideration, the Board has declined to carve out single locations from an established multi-location or prov­ince-wide bargaining unit on a displacement application, even where the proposed bargaining unit might otherwise be one the Board might find to be appropriate (see The Canadian Red Cross Society Blood Transfusion Service, [1978] OLRB Rep. May 408; Bestview Holdings Limited, [1981] OLRB Rep. Oct. 185) [sic]. Conversely, the Board has not permitted a union to expand an existing bargaining unit in a displace­ment application even where the proposed bargaining unit is one which the Board might otherwise find appropriate (see Toronto East General and Orthopaedic Hospi­tal, Inc., [1981] OLRB Rep. Feb. 225).

6. Perhaps the most comprehensive consideration of the issue can be found in Ontario Hydro, [1980] OLRB Rep. June 882 at paragraph 22:

…..The first issue is whether the [existing unit] ... is the only appropriate unit and in support of this proposition the respondent and intervener directed our attention to a number of decisions including: Roland Lefebre Limited [1966] OLRB Rep. May 140; Toronto Star Limited [1974] OLRB Rep. July 416; Harding Carpets Limited [1975] OLRB Rep. July 566 (where the applicant successfully intervened on the basis of the doctrine); The Wellesley Hospital [1976] OLRB Rep. Feb. 46; The Canadian Red Cross Society Blood Transfusion Service [1978] OLRB Rep. May 408. This principle is not to be lightly dismissed. Where parties have established the viability of a bargain­ing unit through actual bargaining and where the history of such bargaining has been relatively satisfactory, this Board ought not to encourage fragmentation. Moreover, in these cases, the Board is not dealing with employees who are unrepresented by a trade union. Thus, more concern can be given to the most viable unit from a collec­tive bargaining viewpoint without the risk of impeding the initial organization of employees attempting to engage in bargaining. But the principle cannot be without its exceptions. Section 48 [now section 56] of the Act clearly envisages displacement applications which are less extensive than pre-existing bargaining units. While there is a strong presumption in favour of the incumbent trade union's bargaining unit, the Board is willing to entertain evidence and submissions on why the status quo ought not to be maintained. The incumbent trade union may clearly have failed to represent a distinct and cohesive group adequately, a problem that has sometimes reared its head in the relationship of skilled and unskilled employees. This problem of unsatis­factory representation may be combined with a capacity in the employer to tolerate somewhat greater fragmentation, particularly if the smaller unit sought can meet the principles of appropriateness generally applied to certification cases. In the case at hand, the applicant indicated its intent to adduce evidence on the distinctive nature of Hydro's nuclear energy facilities; on the common training and conditions of employ­ment of the affected employees; and on the manner in which they have been repre­sented by CUPE Local 1000. The unit relied upon by the intervener and the employer is not one that the Board would normally grant and the intervener, itself, never had to organize all of the affected employees. Against this background, we are not prepared to say at this time that the applicant will be unable to make out a case justifying the unit it has requested. On the other hand, the applicant's chances for success based on it answers to the Board's probing and against the background of all that we have reviewed above, cannot be characterized as substantial.

7. After considering the foregoing passage the Board in the Bestview case, supra, added the following at paragraph 15:

To these considerations, a final one may be added: the importance of certainty and predictability in the processing of representation applications. It is in the interests of all parties, including the applicant union, to know with some certainty the bargaining unit configuration which the Board will likely find to be appropriate. It is that group of employees which a raiding union must seek to organize, and within which it must establish majority support. The practical value of the rule that a raiding union must usually take the bargaining unit as it finds it, is that it clearly defines the relevant employee grouping for organizing purposes. If the Board were to readily depart from this approach, there would be no such certainty; and the prospect that temporary minority dissatisfactions could be translated into fragmentation of an established unit, would simply encourage inter union rivalry and complicate the litigation where one union is seeking to displace another. Thus, there are real practical and administrative advantages to the rule that the existing bargaining structure should generally be pre­served.

Thus, while the rule referred to is not inviolable, it is clear that there is a heavy onus on an applicant to establish clear and compelling reasons to depart from it, as the scepticism expressed by the Board regarding the applicant's chances of success in the Ontario Hydro case, supra, demonstrates. The present applicant submits that it can establish that clear and compelling case. Even accepting all of the facts alleged by the union as true, we are not persuaded.

It is in the context of the principles outlined above that we make the following determination.

20. In all applications for certification, the Board, pursuant to s.6(1) of the Labour Rela­tions Act, is required to determine the unit of employees that is appropriate for collective bargain­ing. The Board's jurisprudence referred to above identifies three separate concerns which the Board has recognized as being significant when determining the appropriate bargaining unit in an application for certification where an incumbent trade union is at risk of being displaced. In essence, the concerns can be summarized as follows:

(a) that those employees who are in the incumbent's bargaining unit be the employees who determine whether the incumbent is displaced;

(b) that there should be, as a general principle, avoidance of fragmenta­tion of an existing bargaining structure; and

(c) that there should be certainty and predictability in the processing of representation applications. Should the Board readily depart from the "general rule" this certainty (which is of significant labour rela­tions value) would be lost.

Historically, each of these concerns has been recognized and reflected by the Board by reference to a somewhat narrow range of situations where the long and well-established practice of determin­ing a 'mirror image' bargaining unit to be appropriate does not apply. That is, the Board's policy that the applicant must seek representation rights in a unit which "mirrors" that of the incumbent is described by Board jurisprudence as a "strong presumption", with the applicant bearing "a heavy onus" to establish "clear and compelling" reasons for departure. The strength of the Board's policy reflects the significance of the concerns identified above. However, the Board's practice is not, as was noted in Ontario Hydro, supra, without its exceptions. On the facts of any one case, it may well be that another bargaining unit is appropriate.

21. We commence our analysis of this case with the observation that the second concern identified above is not present in the instant case, as the unit urged upon us by the applicant as being an appropriate unit for bargaining is not smaller in either geographic scope or in terms of the employees which the applicant wishes to represent. There is no "carving out" of certain employees nor is there an "expansion" of the unit beyond what is already in place as two separate bargaining units. That is, the unit proposed by the applicant is a mirror image of the two current units combined and does not seek to include any other employees employed by Red Cross. In fact, the unit proposed by the applicant would reduce fragmentation at the work place.

22. The Board has, previously, dismissed applications for certification where the applicant has sought a bargaining unit which extends beyond that represented by the incumbent union. (See, for example, Toronto East General and Orthopaedic Hospital, Inc. [1981] OLRB Rep. Feb. 225 and Barnet-Mc Queen Co. Ltd. (1959), 59 CLLC 18,139.) In both of these decisions, the individuals who would be "swept into" the bargaining unit were unrepresented, and the Board expressed con­cern that a union not be permitted to expand its representation rights to encompass these individu­als as a result of its strength of support in the established bargaining unit. These are, of course, legitimate concerns. In the case before us, however, no such concerns are identified, in as much as the applicant's proposed "expansion" would encompass only those who are currently represented by the Association, and does not include unrepresented employees. In the circumstances before us, we do not believe that this concern is of sufficient weight to lead us to conclude that the appli­cant's proposed unit is inappropriate for collective bargaining.

23. With respect to the first concern identified above, there are, on the facts before us, somewhat particular circumstances which minimize the effect of this concern. In this case, the employees in the bargaining units, though in separate units, are, to a significant extent, treated by the employer and the Association as one group of individuals. That this is so is reflected by the interconnection of full-time and part-time employees in matters relating to the Labour Manage­ment Committee, the negotiation of collective agreements and, of course~ the ratification of the collective agreements. The fact of the matter is that all of the employees, both part-time and full-time, have regularly had the opportunity to significantly affect their colleagues in the other bargain­ing unit when voting on tentative collective agreements. In the circumstances of this case, we do not believe that this concern is of such significance to lead us to conclude that the unit applied for is not one appropriate for bargaining.

24. With respect to the third area of concern, that of certainty and predictability, such a concern deserves great weight. However, we do not believe that we are in any way qualifying the Board's general policy by our decision in this case. We are merely determining a case which we believe is an exception to the Board's general practice. In the typical application for certification in which an incumbent union may be displaced, the Board's long-standing practice would apply unless "clear and compelling" reasons are demonstrated for another result.

25. What "clear and compelling" reasons exist in this case to lead us to conclude that the Board's general practice should not be followed? In Bestview Holdings Limited, [1983] OLRB Rep. Feb. 185, the Board identified some reasons which could justify the alteration of the status quo, at para. 16:

"Such reasons might include inadequacy of representation by the incumbent union or collective bargaining difficulties generated by the established structure".

There is no evidence or suggestion in this case that the Association has not adequately represented the support staff of Red Cross.

26. Our reasons for departing from the Board's long-standing policy in this case can be fairly described as reflecting "collective bargaining difficulties generated by the established struc­ture". The two collective agreements which have been negotiated by the Association and Red Cross contain, to a great extent, terms which are interconnected. As an example, Articles 14.08 and 14.09 of the part-time collective agreement provide as follows:

14.08 A part-time or temporary employee changing her status to regular full-time, shall be cred­ited with seniority earned as a part-time or temporary employee.

14.09 A regular full-time employee who after the date of signing of this Agreement changes her status to either part-time or temporary shall be credited with seniority based on her accumulated hours worked as a regular full-time employee at the rate of 1950 hours per year for all the years she worked as a regular full-time employee. Any fraction of a year worked as a regular full-time employee shall be pro-rated by 1950 hours per year.

Similarly, Articles 2.02(a) and (b) of the part-time collective agreement provide as follows:

2.02 a) Temporary full-time employees shall be entitled to preferential consideration in filling up permanent full-time vacancies within the bargaining unit to which they are qualified, as against outside applicants. All full-time temporary employees shall upon commencement of their employment be provided with a letter setting forth the duration of their employment.

b) Temporary full-time employees on staff at the date of signing of this agreement shall have the option to continue to receive the benefits they are currently enjoy­ing under Articles 13, 14, 24.01 and 26 of the full-time agreement. It is under­stood that if an employee chooses to continue with such benefits under the full-time collective Agreement then Articles 12.01 and 21.01 a) of Appendix "A" shall not be applicable to such an employee.

27. No comparable provisions are contained in the full-time agreement. These articles illus­trate the interconnected nature of the part-time and full-time units, and the inter-relatedness of the two collective agreements negotiated by the Association and Red Cross. The parties have agreed in these collective agreements to provisions which could be altered or eliminated so as to nega­tively affect employees in the other bargaining unit should the bargaining agent in any one of the two units change. This type of situation constitutes, in our view, a "collective bargaining difficulty" justifying the appropriateness of the applicant's proposed bargaining unit. To adopt the submis­sions of the Association and Red Cross would be to significantly increase the chance that negoti­ated rights for these employees could be lost. These collective bargaining difficulties can be avoided if the full and part-time employees are considered by the Board to constitute an appropri­ate bargaining unit in the circumstances.

28. Accordingly, in the circumstances of this case we conclude that the applicant's unit is appropriate for collective bargaining.

DECISION OF BOARD MEMBER JAMES A RONSON; December 15, 1994

1. I disagree with the majority. Following long established Board practice the applicant Union must accept the situation as it presently exists; - that there are two separate and distinct bar­gaining units comprised of full-time and part-time employees respectively.

2. I take this position because:

(a) the employer has always treated its employees as if they were mem­bers of two bargaining units;

(b) the bargaining units were created by two certificates of the Board -one issued for the full-time employees in 1976 and the other for part­time employees in 1985;

(c) these have been separate collective agreements to date with separate and distinct recognition clauses;

(d) there are separate seniority lists and there are no bumping rights between the units;

(e) "temporary" full-time employees have the first right to a new open­ing in the full-time unit;

(f) there is a clear distinction concerning vacation entitlement between the two units;

(g) if required, there are two appointments of a conciliator during bar­gaining; and

(h) in K-Mart Canada Limited (supra) the Board found that there were two units and the evidence was not as cogently convincing as in this case.

3. It is manifest that the parties have written two contracts since 1985. It would be unfair, at this stage, to throw all the employees into the common pot and thus allow one group to have the ability to out-vote the other.