Canadian Union of Public Employees, Local 79 v. The Municipality of Metropolitan Toronto, 1994 CanLII 9953

[1994] OLRB Rep. June 795

3730-93-R; 3731-93-R Canadian Union of Public Employees, Local 79, Applicant v. The Municipality of Metropolitan Toronto, Responding Party

BEFORE: Brain Herlich, Vice-Chair, and Board Members S. C. Laing and P. V. Grasso.

APPEARANCES: David McKee and Rudy Draxl for the applicant; Darrel Smith, Harold Ball, Kalli Chapman and Vince Quattrociocchi for the responding party.

DECISION OF THE BOARD; June 15, 1994

1. The name of the responding party in these matters is hereby amended to read: "The Municipality of Metropolitan Toronto" (hereinafter referred to as "Metro" or the "employer").

2. In Board File 3730-93-R the applicant Canadian Union of Public Employees, Local 79 (also referred to as the "union") seeks to be certified to represent a bargaining unit described as ''all security guards . . . '' (the parties having agreed on the bargaining unit description) which is composed of 17 Metro employees in the classification of security officer (hereinafter referred to as "SO"s). Pursuant to section 7 of the Labour Relations Act, the union has also applied, in Board File 3731-93-R, to combine the bargaining unit it seeks with an existing bargaining unit which cur­rently comprises some 6,000 Metro employees and which for the sake of clarity, if not absolute precision, will be referred to as the "full-time unit".

3. The parties met with a Labour Relations Officer prior to the hearing in these matters. Apart from issues related to the union's combination application, the parties were able to resolve all matters in the certification application and there is no dispute that the union is in a certifiable position in respect of the unit of SOs. Metro, however, resists the union's application to combine the 17 SOs into the full-time unit. Metro argues that although this application is brought under sec­tion 7 of the Labour Relations Act, the case will be determined by the application of section 6(6) of the Act. Section 7(3) outlines the factors the Board is to consider in determining a combination application and provides:

7.-...

(3) The Board may take into account such factors as it considers appropriate and shall consider the extent to which combining the bargaining units,

(a) would facilitate viable and stable collective bargaining;

(b) would reduce fragmentation of bargaining units; or

(c) would cause serious labour relations problems.

Section 6(6) relates to the appropriateness of a bargaining unit consisting solely of security guards

and provides:

6.-...

(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.

4. Metro asserts that the monitoring performed by SOs of other employees would give rise to a conflict of interest if the SOs were included in the bargaining unit with the employees they monitor. The union disputes this claim. Metro further asserts that the determination of this ques­tion will be determinative of the union's combination application. While the union disagrees that determination of this issue will necessarily be dispositive of its combination application, it did not dispute that an assessment of the conflict of interest, if any, resulting from the inclusion of the SOs in the full-time unit is a central issue in the case. As a result, the parties agreed to jointly request that, prior to finally disposing of the matters before it, the Board hear evidence relevant to the duties and responsibilities of SOs and determine whether, to adapt the words of section 6(6), it is satisfied that the monitoring of other employees by SOs would give rise to a conflict of interest if the SOs were included in the bargaining unit with the employees they monitor. Having regard to the parties agreement and the Board's view that proceeding in this fashion was sensible and pro­vided some potential economy, the Board proceeded on this basis. We note that the union's agree­ment to this manner of proceeding was without prejudice to its position that the Board's initial determination would not necessarily dispose of the matter or to its right to call further relevant evi­dence not directly related to the duties and responsibilities of SOs.

5. The evidence placed before the Board consisted primarily of the testimony of Vince Quattrociocchi, the supervisor of security and reception at Metro Hall. His evidence was aug­mented by certain further facts and exhibits the parties agreed to put before us. Although the par­ties disagreed about certain characterizations and conclusions which should flow, the evidence before us was, in very large measure, undisputed. What follows is a brief summary of that evi­dence.

6. Metro Hall is the recently constructed corporate headquarters of the employer. Occu­pancy of the premises by Metro staff commenced in March of 1992 and was substantially com­pleted by September of 1992 when the Metro councillors and Chair moved their offices into the facility. It is a twenty-seven story office tower. The first three floors, which include Metro Council Chambers and various meeting areas, were described as areas open to the public; the remaining 24 floors are occupied by Metro staff. There are some 2,200 Metro staff, approximately 1000 of whom are included in the full-time bargaining unit, who work at Metro Hall.

7. Mr. Quattrociocchi oversees the security and life safety services provided at Metro Hall. This includes monitoring staff and visitors, insuring corporate property is properly secured and providing appropriate responses in cases involving medical, fire or other emergencies as well as instances of security breaches. Mr. Quattrociocchi has 2 security forepersons who report to him. Below them in the reporting chain are the 17 full-time SOs who are the subject of the instant certi­fication application; 7 casual SOs neither party sought to include in either the SO or full-time bar­gaining units; as well as 16 persons classified as secretary/receptionists who are included in the full-time bargaining unit.

8. The SOs' principal duties can be described as including monitoring Metro Hall and its surrounding grounds to insure security and life safety as well as conducting investigations and pre­paring reports of unusual or other circumstances warranting attention. For those purposes the SOs have access to a number of different security systems, some of which are extremely sophisticated and technologically advanced. For example, a card access system controls entry to the non-public areas of Metro Hall. Staff members are provided with personalized cards which are encoded with information permitting access to areas appropriate for the individual card holder. In this fashion not only is access to various areas controlled, but the movement and whereabouts of staff members is monitored and recorded. The computer system continuously generates a current record of uses of card access throughout the system. In addition SOs can enter queries on the system which will identify the last three card access uses by any selected staff member. Metro managers may make and have made requests to track the location of particular employees. The system can also gener­ate a historical record of any particular employee's movement or the access of all staff to any par­ticular location within any given time period, although SOs do not have direct access to these latter functions which will be performed at the request of SOs by their supervisors.

9. Also in place is a video surveillance system consisting of 47 cameras located throughout the facility. SOs can monitor these areas on the video monitors located at two central security posi­tions. These cameras also provide recording functions generating archive tapes which may be con­sulted and used as evidence in the context of investigations by SOs. The SOs also have access to and will use, as necessary, a number of other monitoring and communication systems, including paging systems and radio transmissions; a system of 120 voice communication stations which pro­vide voice access to two central security positions; the fire alarm control room and a communica­tion system linked to elevators in the facility. SOs are also responsible for maintaining a registry recording the use and return by staff of keys to certain restricted areas and tool supplies.

10. SOs are generally assigned to perform one of a number of patrols during the course of

their shifts. These various patrols are, over time, rotated and shared equally among the SOs. Briefly, these patrols include foot patrols (SOs are required to monitor Metro Hall by checking in through the use of computer bar code stations located at some 100 positions throughout the facil­ity) and assignment to the central control room or to the rotunda area (both of these areas, the rotunda area to a lesser degree, have access to various of the centralized monitoring and communi­cation systems previously described). These three patrols are performed 24 hours a day and seven days a week. In addition SOs may be assigned to the security desk at the John Street entrance. From this post, which has no direct access to the camera or computer systems described, SOs mon­itor the entrance to the facility and are also responsible for co-ordinating all communication in the event of a fire; the facility's fire panel control room is adjacent to this desk. There is a further secu­rity post located on the 12th floor of Metro Hall which houses Metro's community services depart­ment and services welfare recipients. Finally, SOs can spend a small proportion of their time on duty at the staff parking booth insuring proper access and use of staff computer cards for the pur­pose of access to parking areas. There are other important functions SOs can perform but these are mar­ginal both in terms of the relative amount of time involved and in respect of their relevance for our purposes. The vast majority of the SOs time (up to 95 percent) is spent performing the duties just briefly outlined.

11. SOs will be expected to fully report and document incidents which they discover or are reported to them. This may well include or follow the conduct of an investigation. For example, a staff member's complaint of an incident of theft may come to an SO's attention. The SO would take the complainant's information. Part of the SO's investigation might include determining, through use of the card access computer and/or review of archived video tape recordings, what employees had access to or were in the vicinity of the theft at the relevant times. Should such per­sons be identified, the SO could continue the investigation by seeking further information from those persons. An SO's investigation typically culminates in a special occurrence report ("SOR") which is shared with other SOs and forwarded to management for any appropriate further action. A sampling of the approximately 500 SORs prepared since the opening of the facility was filed as part of the evidence in this case. Those documents and the evidence of Mr. Quattrociocchi make it clear that SOs are not continuously occupied with detecting and investigating the suspected wrong-doings of Metro staff. On the other hand, over a period of roughly 14 months SOs have been involved in investigations or other handling of 21 reported thefts, 6 instances of unauthorized access, 14 occasions where individuals had to be escorted from the building, 9 reported cases of vandalism to property and a handful of other miscellaneous occurrences. Many of these instances did and any of them or other similar ones might require the investigation by SOs of Metro staff, including members of the full-time unit. Although SOs have yet to actually testify at an arbitration hearing involving the discipline of a full-time bargaining unit employee, there has been at least one occasion where such evidence was anticipated but ultimately rendered unnecessary when the par­ties settled the matter.

12. Prior to recent amendments to the Act, section 12 provided:

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 a 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.

13. As a result of recent amendments to the Act (S.0. 1992 c. 21), the former section 12 was repealed and section 6(6) was added. For ease of reference we set that section out again:

6.-

(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.

14. Both parties referred extensively to decisions of the Board, including Geo. A. Cram & Sons Ltd., 63 CLLC paragraph 16,291; Imperial Leaf Tobacco Company of Canada Limited, [1969] OLRB Rep. Feb. 1168; Wells Fargo Armoured Express, Ltd., [1972] OLRB Rep. Jan. 22; Corby Distilleries Limited, [1980] OLRB Rep. Feb. 194; Metropol Security Limited, [1980] OLRB Rep. Dec. 1755; Wells Fargo Arincar, Inc., [1981] OLRB Rep. July 1046, application for judicial review dismissed (1982), 1982 CanLII 1786 (ON HCJ), 36 O.R. (2d) 361 (Div. Ct.); United Security Limited, [1982] OLRB Rep. Apr. 644; Maplegrove Building Specialties Limited, [1984] OLRB Rep. Apr. 635; and Citicom Inc., [1985] OLRB Rep. Jan. 57. These cases dealt with the interpretation of the former section 12 and its predecessors. We were also referred to a number of decisions from other jurisdictions dealing with similar or related issues.

15. Although the previous Board decisions referred to concern consideration of a statutory provision since repealed, a review of those cases as well as the course of legislative change points to their utility in the instant matter. It is not necessary to review this jurisprudence in detail. Under the former section 12 there was an absolute prohibition on the inclusion of "a person employed as a guard to protect the property of an employer" in a bargaining unit with other employees. The legislation also placed restrictions on the ability of certain trade unions to represent guards. The term "guard", however, was not defined in the legislation and it fell to the Board in a series of cases to interpret the meaning of the word. It was in this context that the Board developed and articulated what has been referred to as a conflict of interest test. In the Corby case (cited above) the Board offered the following at paragraph 2:

…..While the section [then section 11] simply refers to "a person employed as a guard to protect the property of an employer", this Board long ago determined that the term "guard" in the con­text of that section must be given a more restrictive meaning than might otherwise appear, being con­fined essentially to persons whose duties raise the real possibility of a conflict of interest with respect to fellow employees in a bargaining unit. It appears that the meaning of this provision was first considered by the Board in the case of Geo. A. Cram & Sons Ltd., 63 CLLC para. 16,241. In finding the rationale for the provision in a decision which in fact pre-dated its enact­ment, the Board commented (at page 1208) that in that earlier case "... the character and degree of monitorial and admonitory authority exercised by the guards over the production workers were such that the Board was compelled to conclude that if both groups of employees were merged in a single bargaining unit the guards would be confronted with a serious conflict between their special responsibilities to their employer on the one hand, and their loyalty to fel­low bargaining unit employees on the other." The Board went on to add: "As it is only the spe­cial nature of a guard's actual or potential relationship to other employees which can render him vulnerable to a conflict of loyalties, the principal characteristics which determine his status as a guard' within the meaning of the legislation, must somehow be connected with this relation­ship".

16. This approach typifies the Board's practice under the former section 12 (previously sec­tion 11). In the Wells Fargo Armcar case (cited above), the Board the Board articulated its test as follows (at para. 16 and following):

17. Since the section fails to define the word "guard", it falls to the Board to do so. It is pre­cisely for this purpose that the Board has used its conflict of interest test before deciding whether to apply the provisions of section 11. Since the effect of section 11 is to place limits on what constitutes an appropriate bargaining unit and on an employee's free choice of what trade union will represent him in collective bargaining, this test is a reasonable balancing of those restrictions with the need to protect an employer from the conflict posed by a guard's duty to protect that employer's property and any loyalty that the guard might feel towards other employees of the employer.

18. The test is whether duties of the persons who are claimed to be guards for purposes of sec­tion 11 raise the real possibility of a conflict of interest with respect to other employees of their employer....

19. There has, of course, been some alteration to the statutory scheme with the repeal of section 12 and the introduction of section 6(6). 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, the previous limits on an employee's free choice of what trade union will represent him in collective bargaining have been removed. This change could be seen to materially alter the balancing the Board previously performed between restrictions on collective bargaining and the conflict of interest which might obtain in respect of guards included in a bargaining unit with other employees. Absent any other change to the legislation, the Board might not feel com­pelled to give the same restrictive meaning to the word "guard" as it has in the jurisprudence just reviewed. The legislature has, however, made it unnecessary to determine this question. Section 6(6) has specifically adopted and codified the Board's conflict of interest test, making it clear that whatever restrictions remain in respect of guards and collective bargaining will apply only to guards whose monitoring of other employees would give rise to a conflict of interest. In this respect although the restrictions have been significantly altered, they would appear to apply to the same class of persons.

20. So as to be clear, the evidence before us does not suggest that improper, quasi-criminal or criminal conduct is rampant among full-time bargaining unit or other Metro employees. On the contrary. Consequently, it is clear that SOs do not spend the vast majority of their time investigat­ing or otherwise dealing with such alleged conduct. On the other hand, and as is the case in any enterprise or in society at large, such conduct and incidents do occur from time to time and may require investigations culminating in the imposition of discipline on employees. It is clear that SOs can and do play a significant role in any such investigations. And while their responsibilities do not include the imposition of discipline, the results of their investigations may well have that effect and they may well be called upon, as a contemplated part of their duties, to provide evidence on behalf of the employer to justify the imposition of discipline. Having reviewed the evidence in the context of the Board's jurisprudence, we are satisfied that this is the kind of conflict of interest contem­plated by the Board in its previous decisions and by the legislature in its recent amendments to the Act. In other words, we are satisfied that the monitoring of other employees by SOs raises the real possibility of a conflict of interest if the SOs were included in the full-time bargaining unit.

21. This, however, brings us to a consideration of a secondary argument advanced by the union which contended that section 6(6) cannot apply and neither can we respond affirmatively to the question posed by the parties unless we are satisfied that the conflict of interest would result from the inclusion of the SOs in the full-time bargaining unit. The parties did not dispute that, what­ever result obtains in the combination application, the union, whether via a combined or separate bargaining unit, will be the bargaining agent representing the SOs for collective bargaining pur­poses. The union argues that there is no evidence suggesting any conflict of interest arises as a result of the combined bargaining unit as opposed to arising merely because the SOs will be repre­sented by the same union. Whatever conflict the statute may seem to attempt to eliminate, reduce or modify will continue to exist by virtue of the SOs being represented by the same union repre­senting employees in the full-time bargaining unit.

22. While as a matter of statutory construction, there is an initial attraction to this argu­ment, we are not persuaded that it ought to succeed. It is also true that there was little concrete evidence detailing any conflict of interest which might arise if the SOs are included in the full-time bargaining unit but would not arise if they were included in a separate bargaining unit and repre­sented by the same union. None of this, however, detracts from the fact that we have concluded that there is real possibility of conflict of interest if the SOs were included in the full-time bargain­ing unit. The fact that the same conflict may exist even in the face of a different bargaining unit configuration does not alter that finding. We accept the employer's argument that a resulting com­plete elimination of any conflict of interest is not a prerequisite to the application of section 6(6). Rather, 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.

23. Having regard to our findings and the agreement of the parties, these matters are remit­ted back to the parties for their further consideration. The parties are directed to advise the Regis­trar, within 30 days of the date hereof, as to how they wish to proceed in these matters.