[1994] OLRB Rep. April 476
3482-93-R; 3478-93-R United Food and Commercial Workers International Union, Local 175, Applicant v. San-Wal Janitorial Ltd., Responding Party
APPEARANCES: Caroline Cohen and John Fuller for the applicant; Michael D. Failes and Joe Amorim for the responding party.
BEFORE: M. A. Nairn, Vice-Chair, and Board Members W. N. Fraser and H. Peacock.
DECISION OF M. A. NAIRN, VICE-CHAIR AND BOARD MEMBER H. PEACOCK; April 13, 1994
The style of cause is hereby amended to reflect the correct name of the responding party: "San-Wal Janitorial Ltd.".
Board File No. 3482-93-R is an application for certification brought by the applicant (the "trade union") on behalf of a group of employees of the responding party (the "employer" or "San-Wal") working at George S. Henry Academy in North York in the Municipality of Metropolitan Toronto. Board File No. 3483-93-R is an application for certification in respect of employees working at Clarkson Secondary School in the Region of Peel.
The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
These applications came on for hearing in respect of two issues. The first issue concerned certain allegations that the union had engaged in improper conduct in the collection of the membership evidence filed in support of these applications. Evidence was heard by the Board, following which the allegations against the applicant were withdrawn and need not be considered further.
That left one issue to be determined. The parties are in dispute with respect to the appropriate geographic reference to be contained in the bargaining unit description. It is the position of the applicant that a "site specific" bargaining unit is an appropriate geographic reference in the circumstances. The position of the responding party was twofold. Its first position was that the bargaining unit should be described so as to include the Municipality of Metropolitan Toronto and Region of Peel, in that employees of the responding party are situate throughout those areas. It was the alternative position of the responding party that there be two bargaining units described; one referable to the Region of Peel and the second referable to the Municipality of Metropolitan Toronto. The responding party opposed describing the bargaining unit on a site specific basis.
Following discussions by the parties they were able to provide the Board with a written Statement of Fact. In addition certain viva voce evidence was called.
That agreed Statement of Fact is set out below and we have included matters clarified by the panel during the hearing. We note that the employees concerned perform cleaning services.
Board file 3482-93-R relates to a school known as George S. Henry Academy and is in the school board of North York. San Wal provides cleaning services to 15 schools in that Board.
Board file 3483-93-R relates to a school known as Clarkson Secondary school and is in the school board of Peel Region. San Wal provides cleaning services to 22 schools in that Board.
San Wal has approx. 180 employees engaged in work at these 37 schools. Most schools have about 4 cleaners in total including a lead hand. There are approximately 70 to 80 employees employed in the Peel Board, and approximately 100 to 110 employees working in the North York Board.
San Wal has two area supervisors in each board area who visit the various schools during the normal work shift. The normal work shift is 8 hours - 4 p.m. to 12 midnight.
Both schools boards have collective agreements with CUPE that encompass Board employees in the classification of caretakers, part-time cleaners & matrons (North York); and custodial staff and maintenance staff (Peel). It is not known how many of the schools serviced by San Wal have cleaning staff employed by the Boards performing similar cleaning functions during the school day. However, none of the schools have Board staff performing these functions after normal school hours.
San Wal employees perform essentially the same type of work at each of the schools.
The Clarkson contract has been held by San Wal for approx. 16 consecutive months.
The Henry Academy Contract has been held by San Wal for twelve years. In 1988 there was a 2 month hiatus to that contract.
There is a core group of employees in each school applied for comprising 4 cleaners which is basically constant for 11 months of each year.
There is coverage for absences of the core group (sick, vacation, WCB, absent days). This coverage is performed by other employees of the Company who may be from another school or may be "floaters".
II. At Henry Academy (North York) the service at that school is as follows:
1Carlos Rodrigues - 12 years - 12 years at location
Maria Rodrigues - 7 years - 7 years at location
Maria Vale - 6 years - 6 years at location
Almerinda Salvia - 3 years - 8 months at location.
- At Clarkson (Peel) the service at that schools is as follows.
J. Barbosa - 1 year - 1 year at location
F. Teixeira - 1½ years - 4 months at location
M. Vireo - 1 year - 1 year at location
R. Marquis - 4 months - 4 months at location.
At most schools (with the exception of schools that have summer classes) there is some movement in July and August between schools to facilitate heavy summer cleaning. On completion core groups return to their home location.
At Clarkson in the 30 day period prior to the Union application there was no interchange or relief of any sort. In the seven week period prior to the application there was 1 day of relief.
Similarly, at Henry Academy the corresponding numbers were 2 people within the 30 day period prior to the application and in the 7 week period prior to the application those same two people each worked 1 day.
The company classifies employees as lead hand, assistant lead hand, heavy cleaners or light cleaners. The lead hand or assistant lead hands also serve as heavy cleaners. Eighty to ninety percent of the heavy cleaners are male. All but one of the light cleaners are female. There are approximately 70 heavy cleaner employees and 120 light cleaners employed.
The company previously cleaned Clarkson, lost the tender, and did not tender for approx 4 years from 1988 to 1992.
Most employees (approx) 90 percent attend the company offices and are transported to their workplace by vehicles (i.e. company vehicle or lead hand vehicle), others are picked up along the way. A small number report directly to the school.
There is on any given day 5 or 6 absences that require vacancies to be filled by persons mentioned earlier.
The viva voce evidence provided certain additional information. The company has a head office and warehouse facility in the City of Toronto. Equipment and supplies are also dispatched out of that location and as indicated, employees generally arrive at that location in order to be transported to their work location. At the end of the shift the driver does not return employees to the head office but drives employees to their homes. As a consequence the employer tries to keep employees in an area which is convenient in that respect.
All employees, subject to their classification, receive the same terms and conditions of employment and the employer has one payroll. One supervisor is responsible for the Peel Board; the other for the North York Board. The two supervisors deal with staffing assignments on a daily basis from the head office. They also attend at the schools on a rotating basis during shifts to ensure that work is being performed appropriately. To date the supervisors have had a fair degree of flexibility available for their decisions with respect to the movement of employees. The employer agrees however that it is beneficial to both the employees and the employer to maintain employees in "home" schools. The supervisors are also generally responsible for training, although that training is not extensive.
During the year there are special cleaning projects. The largest of these is the summer clean-up. It occurs in all the schools although the scheduling of the clean-up may vary depending on whether or not a summer school program operates in that location. Similar, although not as extensive clean-ups occur over the Christmas break and during the March spring break. During these periods there is some reassignment of staff to accommodate the heavier cleaning schedule. In those schools where summer school classes operate, the School Board itself provides the cleaning services during the time that the summer school is in operation. The employer's crew from that school would be moved during that period to another school to assist with the summer clean-up there. Once completed, they would return to conduct the summer clean-up at their home location.
The employer obtains the contract for providing cleaning services through a tender and bid process. The School Board tenders the work at each school individually. The employer can bid for any, all, or a combination of schools. Similarly, the bid may be awarded on the basis of any, all, or a combination of the schools that had a bid entered. The employer can choose not to bid on a particular school as it wishes. The Peel contract is presently a two year contract. The North York contract is a five year contract with annual negotiations on cost.
The employer attempts to accommodate employees seeking to change their home location. Promotions to lead hand positions can occur between schools, although no formal selection process exists. Under the contract the School Boards have a right to require the dismissal of an individual. That right has only been exercised once in Peel Region and rather than be dismissed, the person was moved to a school in North York.
While it has held other contracts in the past, for the last few years the work of this company has been comprised of the cleaning services provided to these two School Boards. If work is lost, the employer has attempted to absorb the employees (not always successfully) into other locations rather than to be subject to lay-off. The individuals represented by CUPE are direct employees of the School Boards and generally perform the janitorial and cleaning work during the day.
In opposing the union's position on the bargaining unit description, the employer argues that it has an integrated workforce and that a site specific bargaining unit description would work to the disadvantage of both the employer and the employees. The employer asserts that there would be greater costs associated with a multiplicity of bargaining units. In addition employees would be subject to reduced mobility with potential negative consequences. The employer acknowledged that granting a multi-municipality bargaining unit would be exceptional. We agree. The employer really focused its comments on its position that two bargaining units ought to be described by reference to the Region of Peel and the Municipality of Metropolitan Toronto. The employer argued that there was a conflict with existing bargaining structures to the extent that the School Boards play a role and that their janitorial staff are represented on a School Board-wide basis. In support of its position that this is an integrated workforce, the employer relies on the operation of the head office, the single administration, the arrival of employees to that central location for transportation to their work site, and the interchange of employees between schools during the special cleaning projects and in order to cover daily absences. The employer points to the fact that employees are absorbed into the workforce in the face of losing a school.
The employer distinguishes itself from what it asserts was intended to be covered by the amendments in section 64.2 of the Act. The employer asserts that section 64.2 addresses specifically single site operations. Prior to the enactment of Bill 40, the employer argued, typically it was to an employer's advantage to obtain site specific bargaining units because if the contract was lost the employer was able to let the employees go. However that does not apply, it argues, in the context of an integrated operation such as this, particularly where the work flows from only two contracts each of which contain a number of sites.
In response, the union argues that it is only required to persuade the Board that its description is an appropriate bargaining unit, and that the bargaining unit be viable without causing serious labour relations problems. The union suggested that the only flaw they could anticipate with site specific bargaining units, and in the face of section 64.2 (which would continue the bargaining rights at a specific school location), would arise in a circumstance where the employer did not tender for the work at a school and no other contractor took that work over. In the event that the work was then performed by employees of the School Board the union suggested that a jurisdictional dispute might arise between CUPE and the applicant in respect of whose bargaining rights prevailed. (We note that what would arise is a potential successorship, not a jurisdictional dispute, although there may be issues arising from then competing bargaining rights). The union relies on the obstacles to organizing on a broader basis and argues that unless there is some serious reason the wishes of the employees should be respected. In this case that would entitle both these applications to succeed based on the documentary membership evidence filed. In reply the employer asserts that there are no unusual obstacles to organizing on a broader basis in that the employees all meet at a central location and go to unsupervised work sites.
The Board has recently again commented on its approach to the question of bargaining unit configurations. In The Governing Council of the Salvation Army in Canada and Bermuda, decision of the Board dated January 5, 1994, as yet unreported [now reported at [1994] OLRB Rep. Jan. 85], the Board comments at paragraph 18:
Several years ago, in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, the Board undertook a review of its traditional approach to bargaining unit determination...
(The Board quotes from that decision at length and continues)
- 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 serious labour relations difficulties for the employer, it will be granted the unit it applies for.
That decision then discusses the issue that is raised by this case, that is, concern over fragmentation. In that case, where the union was seeking to represent a more comprehensive unit, the Board had little difficulty in concluding that what the applicant sought was an appropriate bargaining unit. Here the union seeks a less broadly defined, site-specific unit.
We do not find the cases referred to by the employer involving manufacturing or paramedical employees to be of assistance. Best Cleaners and Contractors Limited, [1988] OLRB Rep. Nov. 1143, decided prior to the amendments and relied on by the responding party, can be compared with the decision in Burns International Security Services Limited, [1993] OLRB Rep. June 480, relied on by the applicant. In both cases the Board described a municipal-wide bargaining unit in circumstances where the employer operated out of only one location at the time of the certification application. Both decisions also recognize that site-specific bargaining units may be appropriate.
As the employer in this case argued, prior to the introduction of section 64.2, it was to an employer's advantage to have site-specific bargaining units described for certain contracted work, in that if the employer lost the contract, it could let the employees go. In fact, it appears that to the extent there has been any serious labour relations problem demonstrated by site-specific bargaining units, it was the resulting impermanent nature of the bargaining rights. Enhancing security of both employment and bargaining rights seems the clear aim of section 64.2 which appears, in large measure, to address that identified problem.
Underlying our comments is the view that this employer operates a no more highly integrated workforce than many multi-contract providers of security or cleaning services, where site-specific bargaining units are by no means uncommon. While a more comprehensive bargaining unit is probably more appropriate, that does not necessarily make a site-specific bargaining unit inappropriate. The employer agreed that its workforce is basically stable. The agreed facts that reflect a considerable length of service by some employees at particular locations and the limited amount of interchange between locations confirms this. We note that although the contract is held with each School Board for a number of schools, the tender and bid process involved, in effect, reflects a variable number of site-specific agreements combined within that larger contract. While there may be bargaining issues that arise in this context, neither historically nor in this case is there evidence of the kind of serious labour relations problems that would lead us to conclude that the site-specific bargaining units applied for are not appropriate.
On balance, we are persuaded and find that the applicant's proposed site specific bargaining units are appropriate. Although the geographic scope of the bargaining unit was the only issue raised before the panel, on a review of the Officer's report and employee lists filed in each application, it is unclear to the panel whether or not "supervisors" were intended to be included in or excluded from the bargaining units. Having regard to our decision, the parties are directed to contact a Labour Relations Officer forthwith in order that these applications may be finally dealt with.
DECISION OF BOARD MEMBER W. N. FRASER; April 13, 1994
I dissent.
I disagree with the decision of the majority that site specific bargaining units are appropriate.
I would have accepted the alternate position of the employer, and found that two separate bargaining units, one for the Region of Peel and one for the Municipality of Metropolitan Toronto are more appropriate.