United Steelworkers of America v. Burns International Security Services Limited, 1994 CanLII 9898

Ontario Labour Relations Board

[1994] OLRB Rep. April 347

3340-93-R United Steelworkers of America, Applicant v. Burns International Security Services Limited, Responding Party v. Group of Employees, Objectors

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members J. A. Ronson and K. Davies.

APPEARANCES: Robert Healey and Brando Paris for the applicant; Monique Smith and Murray J. Borowski for the responding party; no one appearing on behalf of the objectors.

DECISION OF THE BOARD; April 7,1994

1This is an application for certification.

2The parties are agreed that the application is timely.

3The parties are further agreed (and the Board finds) that the applicant is a trade union within the meaning of the Labour Relations Act.

4However, the parties are not agreed on the description of the unit of employees appro­priate for collective bargaining.

5The parties' disagreement crystallized during discussions with a Board Gfficer, who was attempting to resolve the dispute without a formal hearing. During the course of that discussion, the employer revised its proposed bargaining unit description after realizing that the local geo­graphic boundaries were not what it believed them to be, but before there was any disclosure of the union's membership count. Accordingly, this is not a case like Santa Maria Foods, [1981] GLRB Rep. Nov. 1618 where the Board ruled that, in order to discourage "gerrymandering", it would refuse to permit an amendment to the bargaining unit description after the count was disclosed.

6Initially, the parties were at odds about a number of aspects of the bargaining unit description. By the time the matter came on for hearing, however, there remained only two ele­ments of disagreement:

(a) whether the bargaining unit description should refer to "all employ­ees" of the employer in a geographic area, or should be limited to "security guards" in that area, and

(b) whether the geographic scope of the bargaining unit should refer to the Regional Municipality of Sudbury, or the District of Sudbury.

7It will be convenient to deal with each of these issues, in turn.

8The facts are not really in dispute.

II

9The employer (as its name indicates) provides security services to a wide variety of custom­e s across Gntario. In each case, the services are tailored to the needs of the particular custom­e s. We were told that, to a large extent, the employees' terms and conditions of employment are determined by the terms of Burns' contract with its commercial clients.

10The company hopes to attract clients in the Sudbury area (variously defined), as well as in Kirkland Lake and North Bay. At the present time, though, there is only one client in Kirkland Lake - a district hospital - and no clients in North Bay at all. We were told that the company has a call-in list for the north, but there is no indication of how often the company resorts to that list.

11Employees across the north are paid in roughly the same fashion, and receive the same benefits - although, as noted, their particular wages, terms, and conditions of employment are largely linked to the particular service contracts which Burns has with its customers. Vacation scheduling has to be co-ordinated for all of these northern areas, where employees have a common call-in number. However, there is no evidence of any significant employee interchange from one customer/site to another; and, in particular, no regular interchange between the employee group working at the E.B. Eddy plant in "Nairn Centre", and employee groups working elsewhere.

12In order to understand the parties "geographic" dispute, it is necessary to say some­thing about the municipal boundary lines in the Sudbury area.

13The Regional Municipality of Sudbury is a separate municipal entity that is located within the District of Sudbury. The Town of Nairn Centre is also in the District of Sudbury, and is adjacent to the Regional Municipality of Sudbury. The E.B. Eddy mill mentioned above, is in or near the Town of Nairn Centre, within the District of Sudhury, and just outside the Regional Municipality of Sudbury.

14As a practical matter, what divides the parties is whether the group of employees at the EB. Eddy mill should be included or excluded from the bargaining unit. The union proposes that the bargaining unit description should be confined to the Regional Municipality of Sudbury -thereby excluding the cluster of Burns employees working at the site of the E.B. Eddy mill. The employer asserts that the bargaining unit should encompass all employees within the District of Sudbury - which would include both the Regional Municipality~ and the Town of Nairn Centre where the E.B. Eddy mill is located.

15With this background, we return to the particular items in dispute.

All "security g.uards" or "all employees"

16The employer proposes that the bargaining unit be confined to "security guards" and points to quite a number of Board certificates which have been so limited. The union proposes that the bargaining unit encompass all Burns employees working in the debated geographic area. The union points out that "all employee" units are the norm, and that "security guard units" are an anomaly which need not be perpetuated.

17We are inclined to accept the union's position.

18It is true that, at one time, the Board's practice was to fashion homogeneous bargaining units, consisting solely of security guards. But that practice was rooted in to a legislative regime which, until 1993, prevented "guards" from being mixed with other employees, and even limited the ability of guards to join unions which admitted other kinds of employees to membership. Since January 1993, however, those restrictions have been substantially relaxed; and, in consequence, the previous Board practice is much less persuasive than it otherwise might have been.

19As things now stand, all of the employees affected by this application are "guards", and there is no indication that the company intends to hire anyone else. There was initially some dis­pute about whether there should be a specific exclusion of office staff, clerical staff, sales staff, and students employed during the school vacation period; but we were advised by counsel at the hear­ing that the parties had resolved that dispute and that the employer was no longer pressing for this specific exclusion. Accordingly, the practical effect of the employer's proposal to limit the unit to a particular classification is the exclusion of any other classifications that might be added in the future - presumably on the assumption that if the company were to employ such workers, they would not have a community of interest with "guards".

20But the Board does not normally exclude non-existent classifications unless it can be said, with considerable certainty, that the possible "add-ons" constitute a generic group with a manifestly-separate community of interest; moreover, in recent years, the Board has been much less moved than it once might have been by white collar/blue collar distinctions or position on some notional job hierarchy. Indeed, in the Board's experience, quite diverse groupings have been able to function together without any serious labour relations problems; and it is not obvious to us that if other workers were added to the employer's complement, their inclusion in a bargaining unit would generate any serious labour relations problems.

21It must be remembered that in a typical industrial setting, the Board regularly certifies "all employee" units without regard to the particular classifications, skill mix, or work the employ­ees do. Employees do not leave the bargaining unit when they change duties, nor will new employ­ees find themselves outside the bargaining unit simply because they do work which is different from other employees. Ordinarily ("craft" units aside) bargaining units are not defined with refer­ence to work.

22In the instant case, we see no reason to depart from the Board's usual practice of refus­ing to exclude non-existent classifications; or, to put the matter another way, we see no reason to reject the union's proposed "all-employee unit".

Renional Municipality of Sudbury vs. District of Sudbur'v

23The "geographic dispute" centres on whether the bargaining unit should be limited to the Regional Municipality of Sudbury (the union's position) or should encompass the entire Dis­trict of Sudbury (the employer's position). As noted, the practical consequence of the employer's (broader) unit is to sweep in a group of employees at the E.B. Eddy plant whom the union has not sought to organize.

24The union asserts that the Board has a well-established practice of linking bargaining rights to municipal descriptions. That is what the union urges the Board to do here. The union also points out that bargaining unit need not be the most appropriate one, but only an appropriate unit in the circumstances of the particular case.

25The employer asserts that the employees in the "Sudbury area" all have a "community of interest", and that it would be artificial to subdivide those employees working in Nairn Centre from fellow employees working nearby in the Regional Municipality of Sudbury. To avoid that artificial subdivision, the employer proposes that the bargaining unit refer to the District of Sud­bury.

26It is not disputed that, in the security guard business, the Board has found quite a vari­ety of bargaining unit descriptions to be appropriate. Those units have been as narrow as a single client site (the client's address) and as broad as the Regional Municipality of Gttawa-Carleton. In between, the Board has found to be appropriate municipal units of various sizes, and even combi­nations of municipalities. There is no evidence before us of any particular labour relations prob­lems flowing from one or other of these configurations - although one might hypothesize that broader units are more stable, while narrower units more closely reflect particular employee terms and conditions of employment, which, as noted above, are linked to the client's service contract.

27Several years ago, in Hospital for Sick Children, [1985] GLRB Rep. Feb. 266, the Board undertook a review of its traditional approach to bargaining unit determination. The Board noted at paragraph 14:

14. It will be seen that the statutory language has remained basically unchanged for more than four decades, and in the early years it provided the basis for making broad distinctions for bar­gaining unit purposes between such groups as: "white collar" office and technical employees, and "blue collar" production employees; skilled tradesmen (electricians, plumbers, sheet metal workers, etc.), and unskilled or semi-skilled workers; part-time employees and full-time employees; employees working for an employer in one plant or municipality and employees in another plant or municipality; and so on. However, these fairly simple, and then unexceptional distinctions, do not apply so easily today. Collective bargaining has extended beyond its tradi­tional "blue collar" industrial base, into the public sector and to increasingly sophisticated and diverse job hierarchies. Real life collective bargaining experience has outstripped some of the conventional wisdom and has shown that the collective bargaining system can exhibit quite a variety of structures, which, at one time, parties might have considered unconventional or inap­propriate. Ontario Hydro, for example, has a province-wide bargaining unit, encompassing a broad range of employee classifications, and thousands of employees, ranging from unskilled workers to highly trained technicians. A typical municipal "inside workers" (white collar) bar­gaining unit may include occupations ranging from filing clerks, to computer programmers, economists and planners with a considerable amount of post-secondary or even graduate train­ing [see the Board's decision in The Regional Municipality of Durham, Board File 1818-84-R, decision released November 20, 1984]. The Ontario Civil Service bargaining unit contains thou­sands of employees ranging from clerks and typists to sophisticated scientific and technical per­sonnel - and, incidentally, the staff of a number of provincial psychiatric hospitals (see: Owen Sound General and Marine Hospital, [1978] OLRB Rep. May 445, where the Board noted that in the government sector nurses, paramedicals, service employees, and clericals are all in the same unit, even though under the Labour Relations Act, they have typically been segregated into separate units). While at one time common opinion and industrial relations practice might have supported fairly rigid (almost "class") divisions between employee groups, modern collec­tive bargaining seems to be able to thrive quite well in many contexts without such rigid distinc­tions. It is no longer as easy as it once was to say that it is "inappropriate" to group together for collective bargaining purposes, employees with quite diverse skills, education, training, position in the job hierarchy or probable aspirations.

The Board signalled its intention to be more flexible and forensic about bargaining unit structure, then went on to say:

We are troubled by the fact that a largely administrative and policy-laden determination has mushroomed in some cases into an elaborate, expensive, and time-consuming process for deciding a relatively simple question: does the unit which the union seeks to represent encompass a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer.

(emphasis added)

If the unit applied for meets that simple test, it serves no purpose to litigate alternative bargaining unit configurations, nor does the term "community of interest" usually provide much guidance to what is an appropriate bargaining unit. All employees share a "community of interest" by virtue of working for the same employer, and "real life collective bargaining" seems to be able to accommo­date groups with quite different duties and conditions, who one might still argue had a separate ''community of interest''.

28Both 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.

29These goals must be harmonized within a framework that now recognizes (as early Board "policies" might not) 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, theunion has a degree of flexibility in deciding what unit to organize. As long as the unit it seeks does not generate serious labour relations difficulties for the employer, it will be granted the unit that it applies for. The focus is on concrete problems rather than the sometimes nebulous concept of "community of interest". Thus, in Homewood Health Centre, [1992] GLRB Rep. Feb. 181, the Board observed:

4. These historical distinctions (full-time/ part-time, white collar/blue collar, single location/multiple location) are useful guidelines for discerning what is an appropriate bargaining unit in any particular case, however, in Hospital for Sick Children, the Board acknowledged that there may be some considerable variability without in any way compromising the policy objec­tives which the concept of "appropriateness" was designed to achieve. In the Board's experi­ence, a single department or location or employee grouping was often appropriate in the partic­ular context, but by the same token, some broader grouping encompassing several departments, locations or groupings could be equally appropriate or more appropriate without compromising the policy objectives underlying section 6(1). Indeed, broader groupings are generally more desirable than narrower ones, because they avoid the labour relations problems associated with fragmented bargaining structures (see, for example, the concerns raised in cases such as:

Bestview Holdings Ltd., [1983] OLRB Rep. Aug. 1250, Ryerson Polytechnical Institute, [1984] OLRB Rep. Feb. 371, or Board of Education for the City of Toronto, [1986] OLRB Rep. June 900). But these general considerations should not be elevated to the level of legal rules or become the focus of litigation. If a union applies for certification for a unit which is appropriate, it is entitled to that unit even though there is a plausible alternative description which would also be appropriate. That is why the Board in Hospital for Sick Children preferred this formulation of its task under section 6(1):

Does the unit which the union seeks to represent encompass a group of employees with a sufficiently-coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer.

And that is why the Board considered it necessary to express the concerns emphasized at para­graph 23 of the decision in Hospital for Sick Children.

30These passages suggest a more flexible approach, focusing on the problems caused or averted by particular bargaining unit configurations, rather than so-called Board policies that may or may not reflect current labour relations realities. This is not to say that history or existing prac­tices are irrelevant. History can be a useful guideline to what is appropriate because established practice may reveal what works and what does not. And, of course, there is some virtue in cer­tainty and simplicity - hence the Board's inclination to define bargaining units with respect to the geographic municipality in which the employer operates. But as the practice in the security indus­try amply illustrates: multiple locations, or even multiple municipalities may also be appropriate bargaining units.

31In the instant case, the union seeks to represent a definable grouping of employees in a defined geographic area. There is no evidence to suggest that defining the bargaining unit in this way (thereby excluding the E.B. Eddy group) will generate serious labour relations problems -although, no doubt, the broader employee grouping might also be appropriate. This is not a case like MDS Health Group, (1993] GLRB Rep. Sept. 849, or Hornco Plastics Inc., [1993] GLRB Rep. May 411, where the union's proposed unit would not encompass a stable employee grouping or a stable body of work. Here there is no interchange of employees between Nairn Centre and the Regional Municipality of Sudbury such that the geographic perimeter would be artificial or would not encompass a fixed group of employees or their work. And as we have already mentioned, this industry displays a wide variety of bargaining unit configurations without apparent difficulty (per­haps because, in practice, conditions must also be site-specific). In any event, we are satisfied that a bargaining unit defined with reference to the Regional Municipality of Sudbury is an appropriate one.

32Having regard to the foregoing, the Board finds the following unit to be appropriate for collective bargaining:

all employees of Burns International Security Services Limited in the Regional Municipality of Sudbury, save and except Field Supervisor, persons above the rank of Field Supervisor, and Timekeeper/Secretary.

Clarity Note

The Board notes the parties' agreement that the timekeeper/secretary position must be excluded from the bargaining unit because the current incumbent in that position exercises functions men­tioned in section 1(3) of the Act.

33The Board is satisfied, on the basis of all the evidence before it, that more than fifty-five per cent of the employees of the responding party in the bargaining unit on December 21,1993, the certification application date, had applied to become members of the applicant on or before that date.

34A certificate will issue to the applicant.