[1994] OLRB Rep. April 360
4044-93-R United Food & Commercial Workers International Union, Local 175, Applicant v. Canadian Tire Petroleum, Responding Party
BEFORE: Gail Misra, Vice-Chair, and Board Members W. A. Correll and K. Davies.
APPEARANCES: Caroline Cohen, Bill Kalka and John Fuller for the applicant; W. G. Phelps, Isabel Smith and Millie Garbaz for the responding party.
DECISION OF GAIL MISRA, VICE-CHAIR, AND BOARD MEMBER K. DAVIES; April 8, 1994
This is an application for certification.
The two issues between the parties are the description of the bargaining unit and thecomposition of the list of employees for the purpose of the count.
The applicant seeks to represent employees in the following bargaining unit:
All employees of Canadian Tire Petroleum at 508 W. Arthur Street, Thunder Bay, Ontario, save and except the Manager and persons above the rank of Manager.
- The responding party operates two gas bar locations, one at W. Arthur Street (hereinafter referred to as Arthur St.) and the other at Fort William Road (hereinafter referred to as Ft. William Rd.), in the city of Thunder Bay. It therefore proposes the following bargaining unit description:
All employees of Canadian Tire Petroleum at the City of Thunder Bay, Ontario, save and except the Manager and persons above the rank of Manager.
Canadian Tire Petroleum is a corporate entity which operates gas bars across Canada. Isabel Smith, the Human Resources Consultant for the responding party, and Millie Garbaz, the Manager for the two gas bars in Thunder Bay, testified on behalf of the responding party. The applicant called no evidence.
It was Ms. Smith's evidence that the two gas bars were three to four miles apart in Thunder Bay. The employees at both locations were on the same wage scale and benefit plan, and the holiday, vacation, and other policies and employment conditions were the same for both locations. Ms. Smith had conducted a joint training seminar for the employees of the gas bars. Canadian Tire Petroleum has no unionized locations in Canada. The Ft. William Rd. location is referred to by the head office as #948 and the Arthur St. location is known as #676.
The parties were agreed upon the following facts: There is joint advertising conducted for the two locations; non-gasoline products sold at the gas bars are routinely switched back and forth between locations if one location is short of a product; supplies are shared; mail for both locations is delivered to the Ft. William Rd. location and the Manager takes the Arthur St. mail to that location; sub-contracting of snowplowing and the provision of flags is done centrally for both locations; and ,the employees at each location contact employees at the other location for information.on.procedures.when.necessary
It was Ms. Garbaz' evidence that she had been the Manager of the two gas bars since the spring of 1993. Until that point each location had its own Manager and Ms. Garbaz had been the Manager at Ft. William Rd.. Following her take-over as joint Manager and until around November, 1993, she herself would fill in for any staff who were absent. It was her recollection that she worked about one extra shift per month for this purpose. The Arthur St. employees could not work hours for which they were not scheduled as those employees had other commitments. Hence, when an Arthur St. employee called in sick or was absent for any reason, Ms. Garbaz could not find a replacement worker from among the Arthur St. employees. After November, 1993, she began to offer the unscheduled hours to Ft. William Rd. employees as some of them did not have scheduling limitations.
In her capacity as Manager of the two gas bars, Ms. Garbaz spends some time daily at both locations, holds joint staff meetings for the employees of the two gas bars, and hosted a joint Christmas party in December 1993. There was evidence of a "Mystery Shopper" who visits both locations to observe and report to the responding party on the service at the gas bars. This individual's identity is unknown to any staff in Thunder Bay.
The Arthur St. location is a 24 hour a day operation. The Ft. William Rd. location is open from 6:00 a.m. to midnight, Monday to Saturday, and on Sunday from 9:00 a.m. to 9:00 p.m..
Ms. Garbaz hires all staff for the two locations, but employees are allocated to one or the other location and are told there could be work available at either site. Employees have a time card at their home location and separate schedules are prepared for each location. Gnly in emergencies are employees from another site called to fill in if they are available.
The following employees from Ft. William Rd. worked at Arthur St. between the November 1993 and the date of application, February 21, 1994: Gn November 9, 1993, and on February 21, 1994, Chris Engelmann worked at Arthur St.; Ruth Fraser worked at Arthur St. on February 5, 1993; and Lisa Clikwik worked at Arthur St. on November 20, 1993. There was no evidence of any Arthur St. employee working at Ft. William Rd. and there were no interchanges in December, 1993, or January, 1994.
We decline to consider evidence of interchange subsequent to the application date having regard to the fact that an employer has the ability to affect the very facts under litigation.
As outlined above, the applicant is seeking a bargaining unit comprised of the W. Arthur St. location only, while the responding party is seeking a municipality-wide bargaining unit.
The responding party argued that its unit was the appropriate unit for collective bargaining so as to limit labour relations problems and to avoid fragmentation. It argued that the level of interchange between the locations was significant and that the operations of the two gas bars were integrated as evidenced by the testimony of the witnesses. While there was no evidence of serious labour relations problems which may result from a finding of the applicant's unit as appropriate, in argument it was postulated that should the applicant's unit be accepted, there would be problems of misunderstandings between the gas bar personnel and friction may result; if employees transferred from one location to the other their seniority would be a question; during temporary transfers what dues would the transferees have to pay; and, in the event of a strike, would the temporary transferees be considered members of the bargaining unit.
The responding party relied on a number of decisions for the proposition that the Board should seek to minimize fragmentation in shaping units to facilitate viable and stable collective bargaining. Where the fragmentation would occur within a workplace the Board, subject to the facts of each particular case, has tended to prefer the more comprehensive bargaining unit on the basis that restrictions on mobility between bargaining units may ensue; jurisdictional disputes over work allocation between bargaining units may emerge; the employer may have to contend with differently timed work stoppages; and the administrative costs to the employer of bargaining a number of collective agreements within one workplace would cause undue labour relations problems.
However, in a retail environment and where there may be more than one location of a business operating within a municipality, the considerations may be different. In such decisions as K Mart Canada Limited, [1981] GLRB Rep. Sept. 1250, and Canada Trustco Mortgage Company, [1977] GLRB Rep. June 330, the Board has recognized that it cannot disregard the labour relations realities before it. A broader-based bargaining structure may have to be rejected if it would impede access to collective bargaining, especially in an industry which has not traditionally had access to organizing and collective bargaining. In Mississauga Hydro-Electric Commission, [1993] OLRB Rep. June 523, the Board, quoting from Board of Governors of Ryerson Polytechnical Institute, [1984] GLRB Rep. Feb. 371, endorsed the following:
The decision in K Mart Canada Limited, supra, at paragraphs 18 to 20, provides an apt illustration. The employer operated four stores in one municipality, the union had organized one at which 127 employees worked, and a certificate was granted for this unit. A broader-based structure was rejected, because it might significantly impede access to collective bargaining. However, the Board suggested it would have been "hard pressed" not to certify a municipal unit if the union had organized all four stores, suggesting a consolidated structure would lead to more effective collective bargaining than several smaller units. In other words, the viability of ongoing collective bargaining was compromised to this extent in order to foster self-determination.
- Similarly, in Canada Trustco Mortgage Company, [1977] GLRB Rep. June 330, the Board said:
In determining the appropriate bargaining unit the Board cannot disregard the labour relations realities before it. When a group of employees signify that they wish to exercise their right to bargain collectively, and that grouping is seen by the Board as sufficiently conforming to the Board's criteria of appropriateness as a bargaining unit, this Board should not require bargaining in a more comprehensive unit if to do so would effectively impede the access of that group of employees to any collective bargaining at all.
In K Mart Canada Limited, supra, the Board was of the view that in sectors like the department store sector where collective bargaining had not "taken a foothold", the Board "will lean towards the bargaining structure which best facilitates organization". The gas bar industry is one in which collective bargaining has not taken a foothold. The evidence in this case was that there are no Canadian Tire Petroleum gas bars organized anywhere in Canada and neither party drew the Board's attention to any cases of organizing of employees in this industry.
In a recent decision, Cineplex Odeon Corporation, [1994] GLRB Rep. Jan. 25, the Board was asked by the responding party to find the appropriate bargaining unit to be a unit covering the Greater Toronto area or one for the regional municipality, contrary to the applicant's proposed one cinema site unit. The evidence in that case was that the employees of the various theatres performed the same work, had the same general terms and conditions of employment, each theatre had a manager although ultimate control lay with the district manager, there was some interchange of employees between theatres but on a voluntary basis so that employees from one location may be offered additional shifts at another location. In that case, as in the one before this panel, the responding party argued that the situation was analogous to MDS Health Group Limited, [1993] GLRB Rep. Sept. 849, and that the Board should therefore find the municipalitywide unit as the appropriate unit, especially since the union had not called any evidence to show
that there had been significant impediments to organizing on a broader basis than the nion had done.
As noted by the Board in Cineplex Odeon Corporation, supra, the cinema business was very different than the business in MDS Health Group Limited, supra, and we would note that the gas bar industry is again far removed from that in MDS. In addition, in MDS there was movement of personnel and work between locations on a regular basis and some employees at locations in MDS would have been disallowed access to collective bargaining as only one person worked at a number of the branches. While there is some evidence of interchange in the case before us, it only includes employees coming from the Ft. William Rd. location to the location being organized by the applicant. Those employees who did work at Arthur St. did so voluntarily to fill in for Arthur St. employees who were absent or unavailable for work on a scheduled shift.
Since the Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, decision the Board has on numerous occasions considered whether a bargaining unit is appropriate on the basis of whether or not it encompasses a grouping of employees viable for the purposes of collective bargaining without causing serious labour relations problems for the employer. Where the grouping is considered viable, it will generally be recognized as a unit appropriate for collective bargaining even if it is not the most comprehensive unit or the most appropriate one.
On the basis of the evidence before this panel the majority finds the applicant's bargaining unit to be a viable grouping of employees for the purpose of collective bargaining. While the responding party has raised the spectre of some labour relations problems which may arise, these are matters which can be dealt with in collective bargaining and are in any event purely speculative. The two gas bar locations are separate entities, are treated by the central organization as such, and indeed, until the spring of 1993 had separate Managers. The level of interchange amounts to four examples of Ft. William Rd. employees accepting extra shifts at the Arthur St. location since the spring of 1993 and cannot be seen as substantial interchange. There is no labour relations detriment to the two locations continuing to share a Manager, supplies, service contracts, and information.
Although the majority is cognizant that fragmentation may occur as a result of a finding that one location is a unit appropriate for collective bargaining, those concerns must be weighed against the obstacles to organizing in an industry which has not heretofore been organized. If the Board were to find that a multi-location bargaining unit was the appropriate bargaining unit, it may seriously impede the ability of employees in the gas bar industry to have any access to collective bargaining. Given the language of section 2(1) of the Labour Relations Act and the purposes of the Act, it is the mandate of the Board to facilitate access to collective bargaining rather than to limit such access, especially for those employees who have not traditionally had access to collective bargaining. In The Governing Council of The Salvation Army in Canada and Bermuda, (1994] OLRB Rep. Jan. 85, Alternate Chair MacDowell articulated the Board's position as follows:
Both in Hospital for Sick Children and in later cases, the Board has explored the tension between bargaining structures that facilitate organizing (one of the goals of the Statute), and bargaining structures that are likely to be more stable and effective in the long-run (another goal of the Act). The former objective points to smaller employee groupings which are more readily organized. The latter goal points to broader-based bargaining units that have the organizational mass and bargaining power to survive over time and in changing market conditions.
These goals must be harmonized within a framework that now recognizes that there is no single unique and indisputably "appropriate" unit. There are degrees of appropriateness; or to put the matter another way, sensible, alternative ways in which one can define the bargaining unit without triggering (as the Board in Hospital for Sick Children put it) "serious labour relations problems". A trade union need not seek to represent the most comprehensive or most appropriate bargaining unit; and as the applicant or moving party, the union has a degree of flexibility in deciding what unit to organize. As long as the unit it seeks does not generate sertous labour relations difficulties for the employer, it will be granted the unit it applies for.
We find that all employees of Canadian Tire Petroleum at 508 W. Arthur Street in the City of Thunder Bay, save and except the Manager and persons above the rank of Manager, constitute a unit of employees of the responding party appropriate for collective bargaining.
The applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
The responding party took the position that there were eight employees in the bargaining unit for the purpose of the count. The applicant's position was that there were only six employees for the purpose of the count and it challenged the inclusion of Chris Engelmann and Ruth Fraser on the list. The applicant made no submissions to distinguish Mr. Engelmann and Ms. Fraser from other employees of the responding party. The majority finds that Chris Engelmann was an employee at work on the date of application for certification, working as a cashier, and he is therefore to be included in the count. Ruth Fraser worked as a cashier at Arthur St. on February 5 and February 27, 1994, and is therefore an employee within the bargaining unit governed by the 30/30 rule. There was no suggestion in the evidence of anti-union behaviour on the part of the responding party with respect to the utilization of these two employees.
We are satisfied, on the basis of all of the evidence before us, that not less than forty per cent of the employees of the responding party in the bargaining unit described in paragraph 25, on February 21, 1994, had applied to become members of the applicant on or before that date.
A representation vote will be held among the employees in the bargaining unit set out above. All those employed in the bargaining unit on the date hereof, who are so employed on the date the vote is taken, will be eligible to vote.
Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
The matter is referred to the Registrar.
DECISION OF BOARD MEMBER W. A. CORRELL; April 8,1994
I cannot agree with that part of the majority award that finds that a serious labour relations situation will not arise by allowing a portion of an otherwise appropriate bargaining unit to be the subject of an application for certification. The Board on many occasions has found that "carveouts" and "fragmentation" should be avoided and the Act has been designed in recent amendments to permit and encourage the combination of bargaining units presumably to advance and improve the chances of good labour relations.
I would find in this somewhat unique situation that the bargaining unit should include employees of both the Arthur Street and Fort William Road locations within the City of Thunder Bay. If the employees of the Arthur Street location need the services of a union, why deny the same opportunity of membership to the Fort William Road employees. After all, they work for the same employer, are managed by the same person, are paid under the same wage and benefit policies, and are administered by the same personnel policies, with working conditions of no difference except the matter of geography, and even then still close enough to be involved in some employee transfer interchange.
The splitting of such an organization into 2 groups, one union and one non-union for purposes of certification will result in friction, aggravation, and serious labour relations difficulties.
If the certification is successful, those difficulties will begin with collective bargaining. The union will demand improvements in working conditions, wages and benefits to prove its usefulness and justify the union dues it will impose on its members. Management will have to resist such demands strenuously, or in the alternative pass along any improvements to its non-unionized employees who will then enjoy such benefits without paying union dues.
In either event there will be friction and aggravation and that situation will certainly lead to labour relations difficulties from the very beginning. The other problems pointed out by company counsel and listed in paragraph 15 of the majority award will do nothing but intensify and guarantee continuing aggravation.
There is no doubt in my mind that there is a community of interest within the larger unit of employees. The union's effort to organize the smallest unit available involved also the least effort. It results in a greater benefit for the union and its staff than it does for the employees. The small amount of effort and energy involved to organize employees of the smallest unit involved will be, if this certification is successful, an immediate benefit for the union but leaves for the future an unsatisfactory fit for the long-term interests of employees.