International Brotherhood of Electrical Workers, Local 353 v. General Signal Limited

[1994] OLRB Rep. March 242

2555-93-R International Brotherhood of Electrical Workers, Local 353, Applicant v. General Signal Limited, Responding Party

BEFORE: Roman Stoykewych, Vice-Chair, and Board Members J. A. Ronson and K. Davies.

DECISION OF VICE-CHAIR, ROMAN STOYKEWYCH AND BOARD MEMBER, K. DAVIES; March 8, 1994

1. This is an application for certification.

2. The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.

3. The applicant seeks to represent the employees in the responding party's Barrie opera­tion, who are engaged in the installation, service, maintenance and verification of fire protection, emergency lighting and life safety systems. Although the parties had resolved the substantial majority of issues relating to this application, at the hearing of this matter on November 15, 1993 the Board received the parties' agreed statements of fact and entertained their submissions concerning the employer's request that the Board impose a bar to the present application or to order a vote in light of the filing and withdrawal of an earlier application regarding these employees, and the employer's further position that the applicant's proposed bargaining unit was inappropriate.

I

4. The responding party employer took the position that the circumstances of the trade union's filing and withdrawal of an earlier application (Board File No. 2130-93-R) with respect to the same employees were such that the Board should exercise its discretion under section 105(1O)(i) of the Act and to not consider the present application. Having been advised that the "count" in the first application was such that the trade union would not be in an automatically cer­tifiable position, it was alleged, the trade union's subsequent conduct in withdrawing, collecting further evidence and then reapplying was an attempt to "manipulate" the certification process and to thereby avoid the consequences of a representation vote. It appears that the trade union was not aware of the employee status of a certain employee at the time of the first application, and given the small number of employees in the unit, this resulted in its application not having adequate membership support. Upon being advised of the count, the trade union immediately obtained the additional membership evidence that would assure it automatic certification, sought to withdraw the earlier application, and the present application was filed. Although a differently constituted panel of the Board, in a decision dated October 21, 1993 granted the applicant leave to withdraw the earlier application, the employer has sought a reconsideration of that decision. Accordingly, for the purposes of the present application, we are prepared to assume that the earlier application was dismissed. Counsel for the employer relied upon Matthias Ouellette, 1955 CLLC par. 18,026 in support of the argument that a bar should be imposed upon the present application because the trade union was attempting to circumvent the calling of a representation vote. In the alternative, the employer requested that in light of the circumstances adverted to, the Board should exercise its discretion and order a representation vote. Counsel advanced Children's Aid Society of Owen Sound and the County of Grey, [1984] OLRB Rep. July 995 to support that proposition.

5. The Board is satisfied that the decision in Mathias Quellette, supra, has no application to the present circumstances. In this respect, the Board notes that the decision expressly limits its application "to situations in which a vote has been directed and in which the applicant union applies for leave to withdraw its application before the vote is taken." The practise of the Board has been to limit the imposition of a bar to circumstances in which a request for withdrawal of an application is made at a stage of proceedings where the applicant must be anticipating defeat upon direction of a representation vote, or when there are some special or extreme circumstances present. Otherwise, the Board has determined that there is nothing inappropriate in a trade union refihing an application for certification, provided it does not do so in a repetitive or abusive man­ner. (J. W. Crooks, [1972] OLRB Rep. Feb. 126.) Bearing this in mind, the Board sees nothing in the statement of fact agreed upon by the parties that could give rise to an inference that the appli­cant acted in a manner that constitutes a manipulation of the Board's processes nor any other spe­cial circumstances that would cause the Board to exercise its discretion either to impose a bar or to order a vote.

6. The employer also argued that the Board should exercise its discretion to order a vote in the present circumstances in light of the operation of section 8(4) of the Act, which has the effect, among other things, of restricting the receipt of membership evidence by the Board to evi­dence that has been filed by the application date. It was argued that the union's withdrawal and reapplication without notice to the concerned employees caused an unfairness to those employees who may have wished to revoke their support for the applicant but who would have been unaware of the union's intention to file a second application. The employer likened this to the creation, by the union, of a later terminal date for itself than for the objecting employees. The Board was urged to exercise its discretion to order a representation vote to remedy this unfairness.

7. As indicated above, the Board does not accept the employer's characterization of the events surrounding the withdrawal and reapplication as constituting manipulation or abuse of the Board's procedures. Furthermore, the Board sees nothing to distinguish the present circumstances from those in General Signal Limited, [1993] OLRB Rep. June 509, in which the present applicant sought to certify the employees at the responding party's Mississauga location (hereinafter referred to as the "Mississauga decision"). Faced with the same argument, the Board in the Mississauga decision noted that there was nothing inherently improper or colourable about a trade union refil­ing an application in the shadow of an earlier one, and then stated:

Moreover, although the objecting employees' ability to voice their objection to the union in these proceedings would be limited, we are of the view that this effect results from the intended operation of section 8(4) of the Act, not from the action of the trade union. Accordingly, we do not find that rights have been affected in a prejudicial manner so as to require the Board to exercise its discretion to order a vote.

8. It should be noted that, unlike in the Mississauga decision, in the present application there was no representation received by the Board either with respect to the earlier application (2130-93-R) or to the present application from an employee or employees seeking to withdraw their membership application. We are in agreement with the reasoning in the Mississauga decision and see no reason in the present circumstances for the Board to exercise its discretion to order a vote. Accordingly, the Board will not accede to the responding party's request that we do so.

II

9. The employer also took the position that the bargaining unit sought by the applicant was inappropriate. The bargaining unit sought by the applicant was:

all employees of General signal Limited working at or out of the City of Barrie, save and except supervisors and persons above the rank of supervisor, office and sales staff.

It was the responding party's position that the applicant's bargaining rights ought to be restricted both with respect to the "Edwards Unit", which is the sole Unit of the employer operating in the City of Barrie, and with respect to that Unit's "service division." The submissions of the parties proceeded on the basis of an agreed statement of fact that made the calling of oral evidence unnec­essary.

10. General Signal Limited is a corporation operating under the laws of the Province of Ontario. There are ten separate "Units" under the General Signal Limited umbrella who, although identifiable commercial entities, in themselves have no independent legal personality. Thus, consolidated statutory and tax reporting are conducted through General Signal Limited. It is agreed that the parent corporation is the sole legal entity and that it is the employer of employees engaged by each of the Units. To this effect, the party to these proceedings is identified in the response filed with the Board, and hence, appears in the style of cause, as "General Signal Limit­ed".

11. The Units are engaged in distinct service or manufacturing enterprises. A majority of the units are involved in either the manufacture, sales or service of electrical instruments or equip­ment. Nevertheless, a number of the Units are engaged in activities not directly related to that core area of operation. For example, the corporation's Lindberg Unit is primarily engaged in the manu­facture, sales and service of industrial furnaces and heat treating equipment. The Edwards Unit, whose employees are the subject-matter of the present application, is engaged in the manufacture and service of life-safety, fire alarm, and signalling devices and systems. The facility at 250 Bay-view Drive in Barrie is the sole location within the City of Barrie either for the Edwards Unit or for any other Unit operating under the General Signal Limited umbrella. There is no evidence that there is any intention on the part of any of the Units to open another facility in the Barrie area in the future.

12. It appears that the Units operate in a predominately autonomous manner and function as distinct commercial entities. The corporation is structured such that each unit is responsible for its own divisional operations. Each Unit maintains a separate set of books and operates as a "sepa­rate profit centre". Finally, labour relations matters within each unit are conducted separately from those in other Units. This is reflected in a diversity of employment practices.

13. While there are certain exceptions to the general rule of autonomous operation of the units' respective labour relations regimes, these exceptions are relatively few in number and minor in significance. For example, there was evidence that the Human Resources Manager of the Edwards Unit would occasionally receive and respond to requests for advice from other Units, especially with respect to operation in the U.S. context. In addition, in the interests of economy of scale, all Units purchase benefit plans from the same insurer, although the extent of the benefit plan offered to the employees is a matter to be determined by the particular Unit purchasing it. Each Unit then pays a pro rata share to cover the costs for the Unit. Finally, payroll services will be provided by one Unit to another on an occasional basis. However, it is agreed that this practice is rare, and is restricted to such temporary situations as where an established Unit is providing assistance to a new Unit starting up operations in Canada.

14. There was no evidence as to how many plants or facilities the corporation presently operates in Ontario, the relative sizes of the Units, or the number of Units that have a presence in the province. However, in two instances in which collective bargaining has transpired involving the Edwards Unit, the bargaining rights are limited by the Unit. Thus, the responding party employer is party to a collective agreement with the United Steelworkers of America at its Edwards Unit facility in Owen Sound, in which the bargaining rights of the trade union are restricted to "Ed­wards, a Unit of General Signal Limited." Similarly, the present applicant has been certified to represent a group of employees at the Edwards Unit in Mississauga. The bargaining unit descrip­tion, arrived at upon the consent of the parties, further restricts the trade union's bargaining rights to the "service division of its Edwards Unit." However, it appears that the further "divisional" restriction arose out of the presence in Mississauga of an "International Division" that, while oper­ating separately from the remainder of the Edwards Unit, technically remained part of that Unit. It should be noted that there was no evidence of the presence of an "International Division" in the Edwards Unit's Barrie operations.

III

15. In support of its proposed bargaining unit, in which the applicant would be granted bar­gaining rights for the employees of General Signal Limited without reference to a unit or divisional restriction, counsel for the applicant referred the Board to its long-standing policy to grant certifi­cates without such restriction when only one division of a corporate entity had operations in the municipality in which the trade union seeks bargaining rights. In particular, counsel for the appli­cant directed the Board to Hunter Douglas, [1985] OLRB Rep. April 535.

16. In Hunter Douglas, supra, the employer operated only one facility in Mississauga, although three of its other divisions were operating in the Metropolitan Toronto area (which does not include Mississauga). The Board did not accept the employer's argument that the bargaining

rights of the trade union ought to be restricted with respect to a single division when the union sought certification of employees at its Mississauga facility. The Board noted that, where an employer has only one location within a municipality, the Board's consistent practice has been to describe the geographic scope of the bargaining unit by reference to the municipality in order to prevent the erosion of the trade union's bargaining rights that would result from a change in the operation's street address. (York Steel Construction Limited, [1980] OLRB Rep. Feb. 293). The Board, at paragraph 8 of the Hunter decision, reasoned that the interests militating in favour of the protection of the trade union's bargaining rights are even more compelling when the employer operates more than one corporate division but only one such division is present in the particular municipality:

The inclusion of a reference to a division of the respondent in the appropriate bargaining unit is a destabilizing factor in bargaining rights. It is arguably open to the respondent to change its internal corporate structure and change and/or substitute a different division in its present prem­ises in Mississauga. It is arguably even easier to effect a change in the internal corporate struc­ture of the respondent than it is to relocate to a new address in Mississauga.

Although the Board appreciated that the bargaining unit description without the divisional restric­tion might have the effect of compromising the interests in self-determination of employees should any of the other divisions commence operations in Mississauga (because they would be swept into the bargaining unit of the incumbent trade union upon entry into the municipality), nonetheless, in "balancing the interests of present employees against the possible interests of unforeseen future employees, the balance is struck in favour of addressing the interests of present employees in the stability of their bargaining relationship with their employer." (Douglas Hunter, supra, at para­graph 7.) Thus, although a different result may obtain in circumstances, such as the food service industry, where site-specific bargaining units are not uncommon, (Cara Operations Limited, [1992] OLRB Rep. Feb. 131) the practise of the Board has been to certify the applicant without divisional restriction where only one division of a corporate entity is operating in the municipality in which bargaining rights are sought. (See also Belkin Inc., Decision of the Board dated August 11, 1986, unreported.)

17. It was precisely the balancing of interests effected in Hunter that counsel for the employer asserted was inherently faulty, and whose reassessment was all the more necessary in light of what he characterized as developments in the remedial authority of the Board. Although counsel for the employer recognized that the Board policy to date has been to grant the bargaining unit presently sought by the applicant, he contended that the vigilance with which the Board sought to protect bargaining rights, and the concomitant compromise of individuals' rights to a choice with respect to their trade union representation, is now unnecessary. Specifically, he argued that since the Board's decision in Metroland Printing, Publishing and Distributing, [1991] OLRB Rep. Sept. 1069, it is now open for the trade union to protect its bargaining rights by means of an application under section 1(4) notwithstanding the absence of an independent legal personality in the entities concerned. Accordingly, it was asserted, the erosion of bargaining rights resulting from internal corporate reorganizations can now be redressed by means of a common employer declara­tion rather than jeopardizing the incoming employees' statutory right to choose their bargaining representative.

18. Counsel for the employer also argued that because the structure of the corporate parent lacks functional integration, the bargaining unit sought by the applicant had the potential of creat­ing problems of viability and various difficulties in administration in the event that another Unit were to commence operations in Barrie. Counsel adverted to the possibility that employees with widely divergent backgrounds and skills would be required to bargain together, and as a result, the bargaining structure that the trade union was requesting could be unworkable due to a lack of community of interest. Similarly, counsel predicted that serious administrative problems would ensue for the employer from the operation of a single collective agreement for what would be multiple units with divergent employment relations policies.

IV

19. The Board cannot accept the employer's submission that the provisions of section 1(4) are able to redress each of the problems associated with the instability of bargaining rights were the bargaining unit to be restricted to the Edwards Unit. It is to be borne in mind that the purpose of section 1(4) is to preserve, rather than to create, the bargaining rights a trade union has been accorded either through certification or by means of subsequent collective bargaining. Thus, a restricted scope to those rights at certification may well serve to narrow the relief available to the trade union upon a subsequent common employer application. In this respect, the employer's reli­ance upon section 1(4) contains an element of circularity in that it does not address the essential question of what those bargaining rights are to be. Moreover, while the decision in Metroland has the effect of joining entities without independent legal personality in a common employer declara­tion, the Board notes that that case dealt with circumstances in which the corporate entity was not named as the employer. Therefore, to a substantial degree, the issue of whether or not corporate divisions, which were not in themselves legal entities, could be the subject-matter of a common employer declaration was litigated in that context. With that in mind, it is difficult to understand the respect in which the decision would advance the Board's remedial scope in circumstances, such as the present ones, where, consistent with the Board's practice (Beatrice Foods, [1982] OLRB Rep. June 815; Metro/and, supra), the corporate entity is named as the employer and no doubt exists as to its identity.

20. However, the Metroland decision is instructive in another, more practical respect. As is indicated in paragraph 3 of that decision, the resolution of the matter required 15 days of hearing, with an elapsed hearing time extending well over one year. The parties' experience in the Metro/and case is by no means unusual, since the litigation of issues involved in section 1(4) appli­cations frequently requires the resolution of difficult factual issues relating to the operation of a number of enterprises over the course of many years. The Board is not satisfied that a bargaining unit description that would effectively serve as an invitation to such protracted litigation would serve the overall interest of stability in collective bargaining.

21. In light of the foregoing, then, we cannot agree that the protection provided to the trade union's bargaining rights under section 1(4) of the Act is an adequate substitute for the sta­bility afforded by designating the trade union as the bargaining agent for all of the employees of the employer. Although the Board appreciates that the bargaining unit description without a Unit restriction may have the effect of sweeping in employees engaged by other Units of the corporation were those Units to locate in Barrie, we note that those are potential interests of employees, as dis­tinct from the interests of current employees in the stability of their existing bargaining relation­ship. Nothing that the employer has advanced has convinced us that the balancing of interests effected in the Board's policy as articulated in Hunter Douglas, supra, is defective and accordingly we respectfully agree with that reasoning and find the labour relations considerations described therein to be equally applicable to the present circumstances.

22. With respect to the employer's other arguments, the Board notes that they were prem­ised on the possibility that the employer would decide to begin operation of another division in the Barrie area, and, in turn, that the absence of community of interest and the possibility of labour relations problems were based on a worst-case scenario. To some extent all bargaining unit deter­mination involves a degree of speculation, based on the facts known at the time, regarding events that may occur in the future. However, the concerns expressed by the employer with respect to labour relations difficulties are doubly speculative in that they represent conjecture about matters that are premised on the possibility of yet another set of facts occurring. Moreover, these future circumstances such as potentially conflicting employment practices, are ones over which the employer presently exercises a degree of control. Accordingly, the Board is not satisfied that the employer is able to demonstrate "serious labour relations problems", as is contemplated in the test set out in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266 and therefore the Board cannot accept the employer's submission in that respect.

23. Similar considerations apply to the employer's argument as it relates to the alleged lack of community of interest. Although the concept of community of interest may be of importance with respect to disparate interests arising out of the operation of existing facilities, it is more diffi­cult to appreciate its significance when one of the two facilities has yet to be established. As the Board has recently indicated in Mississauga Hydro, [1993] OLRB Rep. June 523, whether or not there exists a community of interest between two groups of employees often results less from the pre-existing attributes of those groups than from their history of separate treatment in the context of their employment relationship. In any event, the Board over the last decade has placed consid­erably less reliance on alleged divergences in interests amongst employees in the course of bargain­ing unit determination and has frequently certified groups of employees with widely divergent edu­cation, skills and employment conditions. Its experience in this regard is that such groups can bargain together collectively in a satisfactory manner. (Hospital for Sick Children, supra.) In the present application, aside from the evidence of the "primary business activity" of each unit, there is no evidence regarding the work the employees perform, the skills that they utilize, or any of the other indicia related to community of interest. Consequently, even were the Board inclined to speculate as to possible divergences of interests that might arise from the distinct activities engaged in by the various units, we have not been provided an adequate factual basis for such conjectures.

24. Finally, as indicated, the employer also sought to restrict the applicant's bargaining unit to the "service division" of the Edwards Unit. Although that position was never formally aban­doned by the responding party employer, this aspect of its position was not argued during the course of the parties' submissions. In any event, the Board notes that, unlike in the Mississauga location of the Edwards Unit, there is no "international division" operating in the Barrie area. While our ruling with respect to the "Unit" restriction applies with even greater force to this issue, in the absence of any other division of the Edwards Unit operating in Barrie, a further restriction of the bargaining rights to the service division of the Edwards Unit would not be appropriate.

25. Having regard to the foregoing the Board finds that:

all employees of General Signal Limited working at or out of the City of Barrie, save and except supervisors, persons above the rank of supervisor and office and sales staff,

constitute an appropriate unit for collective bargaining.

IV

26. In accordance with the Rules of Procedure respecting applications for certification, the named employer has filed a list of employees in the bargaining unit, together with sample signa­tures for the employees on that list.

27. In support of the application for certification, the applicant filed documentary evidence in the form of membership application cards. The cards are signed by each employee concerned, are dated within the six-month period immediately preceding the application date, and are sup­ported by a duly completed Declaration Verifying Membership Procedure -

28. On the basis of all the evidence before it, the Board is satisfied that more than fifty-five per cent of the employees in the bargaining unit, at the time the application was made, were mem­bers of the applicant on October 21, 1993, the certification application date, or had applied to become members of the applicant on or before that date.

29. A certificate will issue to the applicant.

DECISION OF BOARD MEMBER JAMES A. RONSON; March 8, 1994

1. I agree with my colleagues that the applicant has not manipulated the processes of the Board nor are there any other special circumstances that should cause us to order a vote. In saying this, I do not agree with the reasoning found in paragraphs 7 and 8 of their decision.

2. I would describe the unit in the terms requested by the employer. In doing so, I am being consistent with my position taken in previous cases concerning the same issue (see Belkin Inc., supra). The only certain result of this decision by the Board is that the City of Barrie will not be the new location of other divisions of the employer.