[1994] OLRB Rep. November 1484
2113-94-R International Association of Machinists and Aerospace Workers, Applicant v. B A Banknote a division of Quebecor Printing Inc., Responding Party
BEFORE: Brain Herlich, Vice-Chair.
APPEARANCES: James Reid and Willian Pequegnat for the applicant; Daniel J. Shields, Tim Tiernay and Bob Wood for the responding party.
DECISION OF THE BOARD; November 8, 1994
This is an application for certification.
The Board is satisfied that the applicant is a trade union within the meaning of section
1(1) of the Labour Relations Act (the "Act").
The parties agreed that, subject only to the single issue raised by the responding party (also referred to as the "employer" or the "company"), the union was in a position to succeed in its application.
The applicant (also referred to as the "union") in this case already represents employees of the employer in one of some ten existing bargaining units. The instant application pertains to a proposed unit composed of security guards. While the employer does not generally dispute the propriety of having a separate bargaining unit exclusively for its security guard employees~ it asserts that a bargaining unit of such security guards is inappropriate if it is to be represented by (any of the various bargaining agents already representing other company employees, but particularly) the applicant. The employer argues that in what it characterizes as the exceptional and extreme facts of this case, the Board, essentially because of concern for serious conflict of interest problems, ought to dismiss the present application.
At the outset of the case, counsel for the employer outlined the facts upon which it relied in support of its position. After reviewing those facts and a number of documents tendered, the union agreed to the truth of the facts as outlined by the employer, a number of documents were marked as exhibits on consent of the parties and the Board proceeded to hear the parties' final submissions.
As the facts are not in dispute, it is unnecessary to set them out in elaborate detail and we offer only the most essential outline of those facts.
The instant application concerns one of the four divisions of Quebecor Printing Inc., B.A. Banknote, which is located at 975 Gladstone Ave in the city of Ottawa (and at a facility located in Montreal and not relevant to these proceedings). At the Ottawa facility the employer is engaged in two broad functions: the first relates to the printing of currency, postage stamps, and travellers' cheques-clients include Canada Post and the Canadian as well as other national governments; the second function involves the printing of passports for the appropriate Canadian Government department. All of these functions and particularly those related to the passport functions
are highly security sensitive. To the extent that the employer is involved in the production of highly valuable commodities, all of its clients demand high levels of security. In this respect, contracts the company enters into may provide for a full indemnity to the client in the event of any theft or misappropriation of goods while in the company's possession. Any inability on the part of the company to provide security satisfactory to its clients' demands could impact on its volume of business.
The 7 security guards the union seeks to represent play an important role in providing the security so important to the company's operations. The company's facility is surrounded by a fence which, like the building, is further insulated by razor and barbed wire. The security guards, who provide coverage on a 24 hour per day basis, are cleared to a security level which Supply and Services Canada describes as "SECRET" and monitor all entrances to and exits from the plant at a controlled gate and will perform searches of employees as necessary or at random. They perform internal and external video surveillance and conduct scheduled and random patrols of the facility designed, at least in part, to monitor the activities of other employees. In the event of any wrongdoing on the part of employees apprehended by the security guards, the latter will be involved in the grievance and arbitration process on behalf of the employer. The security guards are also responsible for programming the card readers used to permit employee access to various locations in the facility as appropriate and for monitoring the wearing of the related access cards which also serve as employee identification cards.
The employer is not a stranger to collective bargaining. Due apparently to the involvement of a number of different skilled tradespeople, there is a multiplicity of bargaining units and agents involved in the employer's operations. While we were not provided with comprehensive and complete bargaining unit descriptions, there was no dispute that the essential contours of the employer's collective bargaining landscape are as follows:
(a) A bargaining unit of approximately 24 employees who print bank notes are represented by what was described as a steel plate printers union, identified as Local 6 of the International Plate Printers Die Stampers and Engravers Union of North America
(b) A bargaining unit of approximately 6 employees who work as engravers are represented by what was described as a steel plate designers and engravers union, also identified as Local 6 of the International Plate Printers Die Stampers and Engravers Union of North America
(c) A bargaining unit of approximately 3 employees who do finishing work are represented by what was described as a steel plate finishers union, also identified as Local 6 of the International Plate Printers Die Stampers and Engravers Union of North America
(d) A bargaining unit currently devoid of any employees includes examiners of notes who are represented by what was described as a steel plate examiners union, identified as Local 31 of the International Plate Printers Die Stampers and Engravers Union of North America
(e) A bargaining unit of approximately 6 employees employed as cutters and represented by Graphic Communications International Union, Local 588
(f) A bargaining unit of approximately 25 employees employed as examiners and represented by Graphic Communications International Union, Local 588
(g) A bargaining unit of approximately 18 employees employed as lithographers and represented by Graphic Communications International Union, Local 588
(h) A bargaining unit of approximately 17 employees employed as porters and paperhangers and represented by Graphic Communications International Union, Local 41M
(i) A bargaining unit of approximately 2 employees employed as stationary engineers and represented by the International Union of Operating Engineers
(j) A bargaining unit of approximately 6 employees doing letterpress and represented by an employee association
(k) A bargaining unit of approximately 12 maintenance employees represented by Lodge 412 of the present applicant.
The employer rested its argument that the bargaining unit being sought was not appropriate on two broad themes: conflict of interest and fragmentation. Although, at the limit, there may not be a meaningful distinction between the two arguments in this case, we shall deal with them separately.
The number of bargaining units. already in place must be measured in double digits; there is little doubt that adding another will not reduce any existing fragmentation difficulties. In terms of crafting bargaining unit configurations, however, the only option which would minimize fragmentation is not available in this case. The union is not seeking to combine its new unit of security guards with its existing unit of maintenance employees and neither is the employer, despite its apparent concerns about undue fragmentation, seriously arguing that the application of section 6(6) of the Act should result in security guards being placed in a bargaining unit with other employees. The employer's concern over conflict of interest issues clearly outweighs any concerns it has about undue fragmentation. Indeed, and as discussed with the parties at the hearing, a cursory review of the employer's existing bargaining structure suggests that there may be more direct and effective means to deal with the employer's concerns about the proliferation of bargaining units, than by advancing the position the employer asserts in these proceedings.
Finally, in an effort to bolster its argument related to fragmentation, the employer suggested that certification of the applicant (as compared to the certification of a bargaining agent not already representing company employees) would exacerbate the deleterious effects of fragmentation. While one might normally assume that a multiplicity of bargaining agents would in fact not be the ideal way to mitigate the effects of fragmentation, it became clear that the employer's submissions in this regard were tied to the fact that the employees in question are security guards. In other words this last argument is really a restatement of the employer's primary conflict of interest argument. If the security guards are to be certified, the employer, for conflict of interest reasons, does not want them represented by a bargaining agent which also represents other of the company's employees.
This then brings us to a consideration of the company's primary argument.
Before what are generally referred to as the Bill 40 (S.O. 1992, c.21) amendments section 12 of the Act provided as follows:
The Board shall not include in a bargaining unit with other employees a person employed as a guard to protect the property of an employer, and no trade union shall be certified as bargaining agent for a bargaining unit of such guards and no employer or employers' organization shall be required to bargain with a trade union on behalf of any person who is a guard if, in either case, the trade union admits to membership or is chartered by or is affiliated, directly or indirectly, with an organization that admits to membership persons other than guards.
There is little doubt that, under the terms of this former section, the company could well succeed in its opposition to the certification of the applicant. The section, having been repealed, is, however, no longer found in the statute. In its stead we find section 6(6) which provides:
. . .
(6) A bargaining unit consisting solely of guards who monitor other employees shall be deemed by the Board to be a unit of employees appropriate for collective bargaining,
(a) if the applicant trade union or the employer requests that the Board do so; and
(b) if the Board is satisfied that the monitoring of other employees would give rise to a conflict of interest if the guards were included in a bargaining unit with the employees they monitor.
The company argues that notwithstanding the very specific wording of this section, the Board still retains, under section 6(1), a residual authority to determine the appropriate bargaining unit. It appeals to the Board, in view of the expressed concerns regarding security, conflict of interest and fragmentation, to find that the proposed bargaining unit is not appropriate and to therefore dismiss the application.
There are several reasons why the Board finds itself unable to accede to this request. First of all, although the argument purports to rely on section 6(1) of the Act, the company is really asking the Board to determine that the applicant is an inappropriate bargaining agent, not that the proposed unit is an inappropriate bargaining unit. The employer concedes that the proposed unit is appropriate so long as employees within it are represented by a trade union other than the applicant (or those other trade unions already representing company employees). There is simply no statutory authority (like the former section 12 or the existing section 13) which allows the Board, on the facts of this case, to find that the applicant is ineligible for certification in respect of the proposed bargaining unit.
Not unrelated to this concern, and perhaps more central, is the Board's view that to give effect to the employer's submissions would be to turn a deliberate blind eye to the recent amendments. The Board has commented as follows, in The Municipality of Metropolitan Toronto, [1994] OLRB Rep. June 795 at paragraph 17 et seq., on the revisions to the statutory scheme:
…..The most obvious change is that there are no longer any restrictions on the ability of trade unions to represent guards or, put in the language of the last quoted Board decision [Wells Fargo Armcar, Inc., [1981] OLRB Rep. July 1046], the previous limits on an employee's free choice of what trade union will represent him in collective bargaining have been removed ... the legislature, in its wisdom, has determined that where a conflict of interest exists the appropriate response is not to limit a guard's selection of bargaining agent, but rather to simply deem a bargaining unit consisting solely of such guards to be appropriate for collective bargaining. It is not for the Board to determine in any particular case whether the resulting "guards only" unit will eliminate or seriously reduce the potential for conflict of interest.
It was not seriously disputed that the monitoring of other employees done by the security guards who are the subject of the instant application would give rise to a conflict of interest if the guards were included in a bargaining unit with the employees they monitor. Accordingly, section 6(6) directs (through its mandatory language) the Board to find a bargaining unit consisting solely of such guards to be appropriate. And while section 6(1) of the Act does contemplate the Board's general obligation to determine appropriate bargaining units, the Board is not prepared to rely on that general section to the exclusion of the specific and mandatory language of section 6(6).
Finally, we shall briefly address another concern raised by the employer. It was suggested that since the Board has yet to consider conflict of interest as a factor militating against or preventing a successful combination application, granting the instant application might result in the applicant doing indirectly that which section 6(6) prevents it from doing directly. In other words, there would be nothing to prevent the applicant, if successful here, from subsequently applying to combine this new guards unit with an existing employee unit. It has never been the practice of the Board to provide advance rulings and in that context it is perhaps inappropriate for us to dwell on this point. It does appear to us, however, that the existence of a conflict of interest which resulted in the application of section 6(6) in a certification context would be presumptively relevant to the Board's deliberations under section 7(3) in a subsequent combination application. Indeed, the employer in The Municipality of Metropolitan Toronto case, cited above, has argued that the existence of a section 6(6) type conflict of interest ought to be dispositive and bar any combination application involving security guards. (A more recent unreported decision in that case (dated August 3, 1994) indicates that case is continuing before the Board.)
In view of all of the above and having regard to the partial agreement of the parties, the Board is satisfied that:
all Security Guards employed by B A Banknote a division of Quebecor Printing Inc. at 975 Gladstone Avenue in the City of Ottawa, save and except Security Supervisors and persons above the rank of Security Supervisor,
constitute a unit of employees of the company appropriate for collective bargaining.
Having further regard to the agreement of the parties and the evidence filed in this matter, the Board is satisfied that more than fifty-five percent of the employees of the responding party in the bargaining unit described above had applied to become members of the applicant on or before September 12, 1994, the certification application date.
A certificate shall issue to the applicant in respect of the bargaining unit described above.