[1994] OLRB Rep. November 1541
2229-94-R IWA - Canada, Applicant v. Kent Trusses Limited, Responding Party
BEFORE: D. L. Gee, Vice-Chair, and Board Members W. A. Correll and P. Seville.
APPEARANCES: David Wright, Rene Brixhe and Diane Roberts for the applicant; P. Straszynski, Mike Kent and Janice Kent for the responding party.
DECISION OF THE BOARD; November 30, 1994
[1]. This is an application for certification in which the parties have been unable to agree on the description of the appropriate bargaining unit.
Preliminary Issue
[2]. The Application for Certification (Form A-i) describes the unit of employees of Kent Trusses Limited ("Kent" or the "employer") that the applicant ("IWA-Canada" or the "union") claims to be appropriate for collective bargaining as follows:
all employees of Kent Trusses Limited at its plant in the Town of Sundridge, save and except supervisors, persons above the rank of supervisor, office and sales employees, engineering and designing employees, distribution centre/highway yard employees, truck drivers, mechanics, quality control supervisor and students employed during periods of school vacation.
The employer has two locations. A plant in the Township of Strong and a yard in the Town of Sundridge.
[3]. The Notice to Employees of Application for Certification and of Hearing (the "green sheets") posted by the employer in the workplace on September 28, 1994 indicated that the above described unit was being sought by the union. On September 29, 1994 the Board received an untimely petition signed by individuals employed by Kent at its plant ("objecting employees") which indicates that they are opposed to a union in Kent's "Production Department". The petition is signed by 29 of the 31 people employed at the plant.
[4]. At the commencement of the hearing of this matter, counsel for Kent brought a preliminary motion that the application be dismissed on the basis that the plant for which the applicant seeks bargaining rights is located in the Township of Strong and not the Town of Sundridge as indicated in the application and green sheets. Counsel argued that the error may have resulted in confusion such that the application should be dismissed.
[5]. After hearing the submissions of the parties and considering the correspondence referred to in paragraph 3, the Board ruled orally that the motion was denied. In the Board~ s view, the bargaining unit description set out in the application and green sheets indicates with sufficient clarity that the union is seeking to represent employees employed at Kent's plant. We are satisfied, based on the correspondence received from the objecting employees, that the employees were not confused by the error. The error is a technical one which did not result in any prejudice. The error is not one which would cause the Board to dismiss the application.
Merits
[6]. As indicated above, the parties are in disagreement as to the description of the appropriate bargaining unit. The applicant seeks a unit comprised of employees of Kent (with specified exceptions) at Kent's plant (a "plant unit"). It is submitted on behalf of Kent that a unit restricted to the plant would result in serious labour relations problems and that the appropriate unit is a unit (with specified exceptions) comprised of employees at both the plant and the yard.
[7]. Kent is engaged in the manufacture, sale and distribution of roof trusses, wall panels and beams. Kent's manufacturing plant, located in the Township of Strong, is 1.8 kilometres away from its storage and distribution yard located in the Town of Sundridge. There are 31 employees at the plant in the bargaining unit sought by the union. There are 12 employees at the yard.
[8]. The plant is located on six acres of property. This property houses Kent's Head Office, two manufacturing buildings and one maintenance building in addition to areas designated for lumber storage, material handling and temporary truss storage. The classifications of employees at the plant include lumber graders, sawyers, assemblers, material handlers and maintenance personnel.
[9]. The yard is situated on a site comprising 25 acres. There is only one structure on this property measuring 72 x 160 feet. Half of this structure is used by the mechanics to maintain the forklifts used at both the plant and the yard as well as Kent's fleet of delivery vehicles which are housed at the yard. The other half of the structure is used for manufacturing purposes. The individuals employed at the yard are classified as handlers, drivers and vehicle maintenance persons.
[10]. All drivers employed at the yard report to the Shipping Manager. The Shipping Manager is responsible for their performance, punctuality and attendance. The vehicle mechanic employed at the yard reports to the Vehicle Maintenance Manager who, likewise, is responsible for the vehicle mechanic's performance, punctuality and attendance. There is a separate time cloc at the yard where the yard employees clock in and out. The plant employees report through their respective foremen to the Plant Manager. The Plant Manager is responsible for their performance, punctuality and attendance. The plant employees all clock in and out at the plant.
[11]. All product is sold through a central sales department. Any design of items sold by Kent is done by a central design department. There is one central engineering department and all of the administration and accounting functions are performed centrally. The company has a single payroll. All employees of Kent participate in a profit sharing plan, benefits, a production bonus, a training incentive program, an employee assistance program and a group RRSP which are administered by a central accounting department.
[12]. Kent has one post office box number for both the plant and the yard. Kent has a centralized phone system and communicates between the plant, head office and the yard by way of two way radios. The company has a centralized computer system which connects the various buildings.
[13]. The General Operations Manager is responsible for all aspects of manufacturing and distribution as well as ensuring that Kent's commitments to its customers are met. The General Operations Manager oversees and is responsible for hiring and firing personnel at both sites and sets all employee wages. Employees from both the plant and the yard serve on the company's single Health and Safety Committee.
[14]. Trusses are manufactured predominantly at the plant following which they are shuttled by a plant employee to the yard where they are either unloaded for storage or loaded onto a truck to be delivered by a driver to the customer. Wall panels are produced at both the plant and the yard. The panels are cut at the plant and then moved to the yard where they are assembled. Wall panels are always sold in combination with trusses. The beams sold by Kent are manufactured by Kent's suppliers. Kent manufactures items to accompany the beams. The modification of beams, if required, is done at the plant or the yard depending upon the type of modification required. The materials produced by Kent to accompany the beams are produced at the plant. The sale of trusses packaged with beams makes up approximately 50 percent of the company's revenues. The company manufactures specialty hangers which are produced by the maintenance staff at the plant. These hangers hold beams together. Following manufacture the hangers must be sent by the plant to the yard in order to be packaged with the beams prior to the delivery date. The majority of sales would involve two or more products in combination.
[15]. With respect to the issue of employee interchange, the maintenance foreman at the plant is primarily responsible for ensuring that equipment is in good working order and is well maintained. In addition, however, from time to time the maintenance foreman may fabricate jigging and hangers, carry out millwright duties and electrical changeovers and perform some welding at the yard. The maintenance foreman has not performed any millwright duties at the yard recently and the last electrical work performed at the yard was last spring. This individual reports to the Plant Manager and clocks in and out at the plant.
[16]. There is a mechanic who is responsible for the maintenance of vehicles used at both the plant and the yard. This mechanic works out of the yard and primarily repairs forklifts from the plant at the yard. However, if a forklift at the plant breaks down such that it cannot be transported to the yard, the mechanic would go to the plant in order to effect the repairs. Kent's sole witness, Mr. Mike Kent, could not recall the last time the mechanic did work at the plant.
[17]. One individual at the plant, Doug Dobbs, holds the position of yard and plant maintenance. Mr. Dobbs works three nights a week as a night watchman at the plant and two days a week during which he cleans all of the buildings and picks up garbage at both the plant and the yard. The amount of time he would spend at the yard varies with the amount of work to be done. It was estimated that he would spend anywhere from a few minutes to a few hours each week at the yard. Mr. Dobbs recently spent a day removing brush along the yard fence. Mr. Dobbs reports to the Plant Manager and clocks in and out at the plant.
[18]. There is one individual employed out of the plant who drives the shuttle truck and has
the job of shuttling materials between the plant and yard. The drivers employed by Kent out of the yard are primarily responsible for delivering material to customers. The drivers also move trusses from the plant to the yard if the trusses are too large to be shuttled. In addition, if the company elects not to operate the shuttle truck, the drivers move material from the plant to the yard.
[19]. The company is typically slow during the winter months and accordingly, in the past, has assigned one or more of the drivers to non-driving duties. For example, in the past, a driver has been assigned to material handling duties at both the plant and the yard during the winter months. In this capacity the driver assisted in moving trusses and helped out in the maintenance shop. The driver continued to report to the Shipping Manager at the yard and clock in and out at the yard. Drivers have also been assigned to assist with banding or operate equipment from the yard to perform snow removal at both the plant and the yard. The drivers assigned to perform these tasks remained under the responsibility of the Shipping Manager and continued to clock in and out at the yard.
[20]. At present, an individual who is employed as a forklift driver at the plant has taken up duties at the yard in order to fill in for a yard employee who is off work due to illness. The employee 's time card was transferred from the plant to the yard. An employee who had been on layoff was brought back to work in order to fill the resulting vacant position at the plant. When the employee who is presently off sick returns to work, the forklift driver will be returned to the plant and the employee who has been recalled will, presumably, be returned to layoff unless there are sufficient other duties to keep him employed.
[21]. In addition, on occasion throughout the year, plant staff disassemble old trusses and do housekeeping duties at the yard. Drivers from the yard frequently go to the plant to pick up product for delivery to a customer. The yard maintenance personnel act as back up for plant maintenance personnel depending upon the time of the year and the situation. In the past, plant staff have been called upon to assist yard staff with the assembly of wall panels.
[22]. It is argued on behalf of Kent that a bargaining unit comprised solely of employees at the plant will reduce the company's flexibility and ability to respond to the wide fluctuations in demands which it experiences throughout the year. Kent argues that it is very important that its employees be able to perform whatever duties are required by the circumstances at any particular time. Further, it is argued that the operations of the plant and the yard are interdependent such that, should there be a work stoppage at either the plant or the yard, the other facility would be unable to continue operations. Therefore, in order to avoid multiple work stoppages, a unit comprised of both plant and yard employees is sought. Kent further argues that, at present, the entire company has one focus, namely, getting the product to the customer on time and that, if the work-force is split into two units, such single focus will be lost. Finally, it is suggested that, at present, all employees are on a level playing field. If the plant employees comprise a unit separate from the yard employees, some employees will have greater strength than other employees. Accordingly, it is argued that a unit comprised solely of plant employees would cause Kent serious labour relations problems and the Board should find a unit comprised of both plant and yard employees to be an appropriate bargaining unit.
[23]. In Hospital for Sick Children, [1985] OLRB Rep. Feb. 266 at paragraph 23, the Board indicated that determining the appropriateness of a bargaining unit involves answering the following 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.
[24]. In the present case, the responding party does not contest, and we so find, that the plant employees share a sufficient community of interest that they can bargain together on a viable basis. The sole issue is whether they can do so without causing serious labour relations problems for the employer.
[25]. Kent asserts that a bargaining unit confined to the plant will restrict its ability to move employees between the plant and the yard thereby causing it serious labour relations problems. We note that much of the employee movement which presently takes place between the plant and the yard would not be restricted by the Board's certification of the applicant for a plant unit. For example, the evidence with respect to the mechanic establishes that he primarily works at the yard repairing forklifts from both the plant and the yard as well as delivery trucks housed at the yard. There is no one working at or out of the plant who performs similar job functions. Accordingly, on an infrequent basis, when a forklift breaks down at the plant, the mechanic will attend at the plant to effect the repairs. During the period of the mechanic's trips to the plant he remains under the supervision of the Vehicle Maintenance Manager and continues to clock in and out at the yard. He is not transferred to the plant and while at the plant does not perform any job functions which would normally, or otherwise, have been performed by a plant employee. Such movement does not involve an employee transfer into or out of the bargaining unit and would not appear to be restricted by the applicant's certification with respect to a unit of plant employees.
[26]. The same analysis applies to the maintenance foreman, Mr. Dobbs, the shuttle truck driver and the delivery truck drivers. Each of these individuals have specific job functions which are not duplicated (except to the limited extent that the delivery truck drivers may do some infrequent shuttle work) by employees at the other location. When these individuals move from their home location (the location where they clock in and out and are supervised of out) to the other location they do not do so for the purpose of performing job functions normally performed by employees at the other location. Rather, they continue to perform their own individual identifiable set of job functions. Such employee movement would not likely be restricted by the existence of a plant unit and thus does not support an argument that a plant unit would cause Kent labour relations problems. These are not examples of employee interchange, but of employees who perform part of their work at the location where the bargaining unit (if granted) is found.
[27]. The only evidence of employee interchange which would potentially be restricted by the Board's certification of the applicant for a plant unit consists of a single transfer of a plant employee to the yard and back-up activity performed by both plant and yard employees. Although employee interchange of this nature has been viewed by the Board as creating the potential for serious labour relations problems, it is typically only found to do so where it is significant and occurs on a regular basis. As indicated above, there has only been one employee transfer between the plant and the yard. The only evidence adduced as to the frequency, regularity or quantity of the back-up activity performed is that it occurs "depending on the time of year and the situation". In the Board's view, the evidence does not establish that the level of employee interchange which has historically existed at Kent is either significant or sufficiently regular such that its restriction would cause Kent serious labour relations problems.
[28]. Kent argues that permitting a unit confined to the plant would cause fragmentation and the potential for multiple work stoppages. We do not find the negative consequences normally associated with fragmentation to be compelling in this case. Presently, none of Kent's employees are unionized. The "fragmentation" which this employer potentially faces is a maximum of two bargaining units (excluding the possibility of clerical unit which the responding party does not contest should be excluded from the unit). Although the potential for two bargaining units may not, from Kent's perspective, be the optimal result, it certainly does not raise the spectre of seriously disruptive fragmentation.
[29]. Finally, Kent argues that a bargaining unit confined to the plant will divide the employees and give some employees greater strength than others. Thus, the employer argues that everyone in its workplace should be unionized, or no one should. Virtually, every unionized workplace employs both union and non-union employees, and this reality is no reason not to find appropriate an otherwise appropriate bargaining unit. If the employer were right, all organizing would demand that the entire employer workforce form one bargaining unit. To require this would render largely meaningless the requirement in the statute that the Board determine "an" appropriate bargaining unit, as there would only be one appropriate all encompassing unit. It would also reverse decades of jurisprudence, and practice, and create serious and unwarranted impediments to organizing. In the circumstances of this case, the fact that one group at one location will be unionized, and the group performing different functions at the other location will not be, is not a reason why we would find the applicant's proposed bargaining unit to be inappropriate.
[30]. At the conclusion of the hearing the parties advised the Board that they were in agreement as to the language of the bargaining unit description the Board should adopt if it was to find the applicant's proposed unit to be appropriate. Accordingly, the Board finds that all employees of Kent Trusses Limited in the Township of Strong, save and except foremen, persons above the rank of foreman, office, clerical and sales employees, engineering and designing employees, and students employed during periods of school vacation, constitute a unit of employees of the responding party appropriate for collective bargaining.
[31]. The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
[32]. Following the hearing the Board received a number of letters from employees of the responding party requesting that their membership card be returned to them and implying that their card should not be considered by the Board in determining the level of the applicant's membership support. These letters are either evidence of the authors' desire to revoke their membership or application for membership in the applicant or requests to make representations to the Board concerning the applicant's conduct in the course of collecting membership cards. Section 8(4) of the Act provides that the Board shall not consider evidence that an employee has revoked his or her membership in a trade union if filed after the certification application date. The Board's Rules of Procedure stipulate that any allegations of improper conduct must be made promptly after finding out about the conduct. In the present case, notwithstanding that the employees were advised of this application by way of the green sheets and informed of their right to file representations, no allegations were raised until after the hearing was concluded. In these circumstances the Board does not consider the allegations to have been made promptly and will not consider this evidence.
[33]. The Board is satisfied, on the basis of all the evidence before it, that more than 55 percent of the employees of the responding party in the bargaining unit on September 26, 1994, the certification application date, had applied to become members of the applicant on or before that date.
[34]. A certificate will issue to the applicant with respect to the bargaining unit described in paragraph 30.