[1995] OLRB Rep. February 96
2357-94-R United Food and Commercial Workers International Union, Local 175, Applicant v. Sports Experts Inc. c.o.b. Mega Collegiate Sports Experts and Collegiate Sports Experts, Responding Party
BEFORE: Pamela Chapman, Vice-Chair, and Board Members J. A. Rundle and D. A. Patterson.
APPEARANCES: Kelvin Kucey and Mike Duden for the applicant; Michael G. Sherrard and Steve Bonyhadi for the responding party.
DECISION OF THE BOARD; February 8, 1995
- This is an application for certification. There are two issues in dispute between the parties. The first is the appropriate bargaining unit. The applicant ("the union") has applied to represent employees in the following unit:
all employees of Sports Experts Inc. c.o.b. Collegiate Sports Experts at the Eaton Centre, 218 Yonge Street, in the Municipality of Metropolitan Toronto, save and except supervisors and persons above the rank of supervisor.
Clarity Note: "supervisor" as used herein shall include head cashier, General Department Manager and Footwear Department Manager.
- The responding party ("Collegiate") takes the position that the unit requested by the applicant is not appropriate for collective bargaining purposes and proposes the following bargaining unit:
all employees of Sports Experts Inc. c.o.b. Mega Collegiate Sports Experts and Collegiate Sports Experts in the Municipality of Metropolitan Toronto, save and except supervisors, and persons above the rank of supervisor.
Clarity Note: "supervisor" as used herein shall include head cashiers, department managers and third key holders.
As can be seen from the proposed bargaining unit descriptions, the parties also disagree as to whether or not employees occupying certain named positions exercise managerial functions within the meaning of section 1(3) of the Act. As the applicant's right to certification in the unit it has requested cannot be affected, however, by the Board's ultimate decision as to the inclusion or exclusion of the disputed classifications, this dispute was not considered at the hearing in this matter. Instead, if the Board determines that the applicant's unit is an appropriate one, an interim certificate will issue and a Labour Relations Officer will be appointed to enquire into and report to the Board concerning the duties and responsibilities of the persons within the disputed classifications.
The facts concerning this matter were not largely in dispute. Collegiate operates six retail stores in the Municipality of Metropolitan Toronto, all of which are in the business of selling sporting goods. One of these stores is located at the Eaton Centre, and is the subject of the present application. There are 34 employees, including 18 full-time and 16 part-time employees, who fall within the applicant's proposed unit.
Employees at all of these stores exercise the same skills and perform the same kind of work under the same terms and conditions of employment. There is a uniform payroll system, insurance program and benefits plan. The six stores are a single establishment for pay equity purposes, and Collegiate has a single firm number with the Ontario Workers' Compensation Board.
Each store has a manager, who has the authority to hire and fire employees who fall within the applicant's proposed bargaining unit. District Supervisors are responsible for supervising Store Managers, and they in turn report to the Director of Operations.
Advertising for the stores is handled nationally with ads frequently tailored for the particular requirements of the Toronto area stores.
Two types of training are provided to employees at these stores: in-store training on specific products, which is delivered by suppliers, and off-site training conducted by employee coaches from Collegiate. This latter training covers salesmanship and product knowledge in general product areas, such as shoes or skates. It has been done off-site rather than in specific stores for approximately two years. Employees from a variety of stores attend these sessions to ensure consistency in their knowledge and techniques.
Some employees from the applicant's proposed bargaining unit are part of buying teams organized by product, which attend at product shows and purchase stock for all of the stores. The managers, assistant managers and salespersons who make up these teams are drawn from a cross-section of stores.
Interchange of employees between the stores in the Toronto area occurs in one of two ways: on a temporary basis to replace regular staff who are unavailable or to provide additional staff during busy periods; or by way of permanent employee transfers, either laterally or as a promotion.
Temporary reassignments occur when a manager needs additional personnel to meet customer service requirements. A manager in need of assistance will contact other stores by telephone or electronic mail to see if employees there, usually part-timers, wish to work additional shifts. (There are numerous part-time employees working at the six Toronto Area stores. Part-time employees are defined by Collegiate as those working less than 32 hours per week.) Employees who choose to work these shifts do not appear on the regular schedule posted at the receiving store at the beginning of the week. The store at which the work is performed pays the salary and benefits of that employee for the shifts worked, but the employee will receive only one paycheque in each pay period, covering shifts worked at both the home and the receiving store. For purposes such as vacation entitlement, the employer considers the total number of hours worked by employees at any of the Collegiate stores. The filling of these shifts at other stores is voluntary in the sense that employees are asked if they wish to work them, and the employer does not suggest or infer to any employees that there will be discipline if they do not accept. Indeed, employees sometimes solicit shifts at other stores on their own initiative, as there is word-of-mouth about which stores are busy.
The employer provided a summary of temporary reassignments at the six Toronto area stores for the previous year, along with timesheets to corroborate this information. These records indicate that none of the Eaton Centre store staff worked shifts at any of the other stores during that period, but that twelve different employees from other stores accepted work at the Eaton Centre store, on thirty-two different occasions in 19 of 26 pay periods. The length of these assignments varied from under two hours worked in a two week pay period, to one full-time salesperson who worked more than 60 hours in a pay period.
A few examples of these reassignments, drawn from the information provided by the employer, demonstrate a certain pattern in the usage of temporary employees. The first employee on the list of transfers into the Eaton Centre Store was Michelle Babiarz, a part-time employee who regularly works at the store at the Fairview Mall in North York. During the first week of a two week pay period in October, 1993, she worked 30.04 hours at the Fairview Mall store and 3.23 additional hours at the Eaton Centre Store on a day when she got no hours at her home store. In the second week of that period she worked 26.29 hours at the Fairview Mall store and no hours elsewhere. A number of the part-time employees who accepted shifts at the Eaton Centre store during the previous year similarly appear to have been supplementing their regular part-time hours at their home store.
Another example demonstrates a variation of this pattern. Suzanne Lilly, a part-time employee from the store at Woodside Square in Scarborough, accepted from two to four shifts per week at the Eaton Centre store each week in January and February, 1994, working from 7 to 32 hours each week. During this same period, she worked no shifts at the Woodside Square store. Several other part-time employees who obtained shifts at the Eaton Centre store during the previous year worked either no, or very few, shifts at their home store during the same period. The two employees who worked no hours at their home store, including Suzanne Lilly, transferred permanently to the Eaton Centre store at the conclusion of their temporary assignments.
There is one final example which seems to be a departure from the regular usage of part-time employees. Sam Bruno is now a "third key man" at the Fairview Mall store. In October and November, 1993, when he was a full-time salesperson, he was asked if he would go to the Eaton Centre store to help them catch up with customer and supplier returns. In the first two week pay period of this reassignment, he worked 43.12 hours the first week at the Fairview Mall store, and then 44.00 hours the second week at the Eaton Centre store. During the following two weeks, he worked 41.43 hours the first week, and then only 19.31 the next, both at the Eaton Centre store, for a total of 61.14 hours (the most hours worked in one pay period on a temporary reassignment to this store). The reduction of hours in the last week of his assignment appears to have occurred because Bruno was ill. Bruno worked one further week at the Eaton Centre Store in early December, for 32.12 hours.
A review of the information provided on temporary reassignments at the other Toronto area stores demonstrates a similar pattern. However, none of the other stores had employees transfer in to work shifts as frequently as the Eaton Centre store, and all of the other stores also had employees transfer out, often to the Eaton Centre store.
Periodically employees transfer permanently from one store to another. There were seventeen such transfers of employees in positions below that of Manager between the six Toronto area stores in the year prior to the hearing. Two of these transfers were of part-time staff to the Eaton Centre store as noted in paragraph 14 above. One further employee who had previously worked at two of the Collegiate stores was re-hired at the Eaton Centre store. No employees from the Eaton Centre store transferred to another location.
Finally, it was not disputed that merchandise moves between stores depending on customer demand. If a particular store does not have an item in stock, sales staff may contact another store to arrange an interstore transfer or the customer may travel to the other store to pick it up.
Collegiate argues that these facts, and particularly those concerning the interchange of employees between stores, demonstrate that a single store bargaining unit would be inappropriate for collective bargaining purposes. Rather, Collegiate proposes a unit including all of the six stores in Metropolitan Toronto.
Counsel for the employer acknowledged that the Board's approach in determining whether or not a proposed unit is appropriate is that set out in the Hospital for Sick Children~ [1985] OLRB Rep. Feb. 266: "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". The Board has commented on this approach more recently in The Governing Council of the Salvation Army in Canada and Bermuda, [1994] OLRB Rep. Jan. 85 at paragraphs 19 and 20:
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.
Collegiate submits that in this case a single store unit would create serious labour relations problems because of the employer's reliance upon the regular and frequent flow of employees from one store to another in order to meet customer service requirements. If bargaining unit employees in one store were represented by a trade union, Collegiate argues that this flow would be impeded, as employees would be prevented from transferring in or out of that store. The employer also suggests that this history of regular movement would create difficulties in determining what constitutes bargaining unit work in the event of a strike or lockout, as in its submission work is presently done with no distinction as to what location an employee regularly works at.
The employer's argument concerning the impact of a single store unit on the interchange of employees is premised in large part on the presumption that temporary transfers would be prevented by the unionization of the Eaton Centre store. It is not clear to the Board, however, that this would indeed be the outcome of granting a single store unit. It is true that the employer would have to negotiate with the union over the status, pay and seniority of temporary employees, rather then being able to determine these conditions of employment unilaterally, but this cannot be considered a serious labour relations problem given that a requirement to bargain is the inevitable outcome of unionization. And there would be nothing to stop the employer from continuing to include hours worked at the Eaton Centre store in its calculation of the service of employees not regularly employed in the bargaining unit.
The employer has further submitted that the frequency and regularity of these temporary transfers would make it difficult to determine what was bargaining unit work. Having due regard to the evidence submitted, largely by the employer, we cannot accept the assertion of counsel that the assignment of work has no regard to the location at which an employee regularly works. It was conceded that a regular schedule is made up in advance, which does not include temporary employee assignments. It is only when the store needs cannot be met through the scheduling of employees normally working at the Eaton Centre that others are called in. Time records confirm that a clear separation is maintained between hours worked at the home store and at the location of the temporary assignment, despite the issuance of a single cheque. And the personnel records maintained when a permanent transfer is carried out emphasize the sense that each and every employee is considered to be assigned to one home store, no matter how many hours are worked elsewhere.
The voluntary nature of these assignments also supports the conclusion that the makeup of the regular workforce at any particular location can be easily determined. While the movement of employees, at least to the Eaton Centre store, may be considered to be frequent and regular, these temporary transfers do not arise from the employer routinely reassigning employees from one location to another in order to meet customer demand; rather, the employer has been able to deal with increased work at specific locations by maintaining a large part-time workforce and offering them additional hours wherever and whenever the need arises. Thus, this is not a situation like that in Tilden Car Rental Inc. (Board File No.396-93-R, decision dated May 16, 1994), where the Board found that employees were expected to fill in at other locations as needed during their regular work week, and to move cars from location to location, as part of a centralized scheduling system covering all the locations in the Toronto area.
The employer seemed particularly concerned that these transfers would lead to disputes over bargaining unit work in the event of a strike or lockout. Practically speaking, this concern appears to have little substance, considering the ability of the employer to identify employees in the bargaining unit in the context of the present application, and also the historical data on the usage of temporary employees which they generated from regular time records. We are confident that any dispute over the work performed on temporary assignments which might arise in the future could be resolved through a similar approach, and that in any event the prospect of such a dispute is not so daunting as to constitute a serious labour relations problem.
The final aspect of the employer's argument concerning interchange arises from the practice of permitting permanent transfers from one store to another, either laterally or by way of promotion. The creation of a single store unit at the Eaton Centre does raise the spectre of a seniority enclave at that location, as employees would not automatically be able to carry their seniority at other locations into the bargaining unit, despite the employer's practice of calculating seniority based on service at all locations. Instead, the seniority of Collegiate employees transferring permanently into the bargaining unit would be a matter for negotiation between the employer and the union, which might result in either a confirmation of or a change in the employer's prior practice.
We are satisfied, however, that the prospect of bargaining over this issue does not raise the spectre of a serious labour relations problem in the circumstances of this case. At most, a bargained agreement not to permit employees to maintain seniority earned at other locations may act as a disincentive to permanent transfers. While this may be unfortunate, it was not asserted, and indeed the frequency of such transfers would not support, that this would be a serious impediment to the staffing of the Eaton Centre store. Equally, while such an outcome may be a disadvantage for employees who wish to make such a change, the evidence concerning these transfers does not support an argument that it is a common method of advancement; indeed, out of the 17 transfers referenced in paragraph 17 above, only three involved a promotion or increase in pay.
The employer relied upon the reasoning of the Board in the unreported decision of Towne Cartage Ltd. (Board File Nos. 2417-93-R, 2612-93-U, 2765-93-U, decision dated November 15, 1993) as support for its position in respect of interchange of employees. In that case, the Board concluded that the unit sought by the applicant, which would divide two related operations of a waste disposal company in Brockville and Prescott, was not appropriate, stating that:
Among other things, such a division has the potential to impede the mobility of employees between the locations (in case of work fluctuations, temporary or permanent transfers or advancement), to give rise to disputes in the event of a strike at one location, and to give rise to disputes over the transfer of work between the locations.
In that case, however, the Board found that the employer's operations at the two locations were functionally integrated to a significant degree. A review of the facts demonstrates clearly that there was much more integration than in the present case, having regard to the absence of management at one of the locations with the authority to hire, fire and transfer employees, the lack of a repair and maintenance crew or any office staff at one location, meaning that all billings, accounts receivable and accounts payable for both locations were done at one site, and a number of production and shipping functions which were fully integrated. Indeed, it appears that the evidence in that case concerning interchange of employees played only a minor role in the Board's conclusion that to divide the employees of the company between two locations for the purposes of collective bargaining had the potential to cause serious labour relations problems.
Similarly, there are important factual distinctions between this case and that of MDS Health Group Limited, [1993] OLRB Rep. Sept. 849, where the interchange of employees was only one of many factors considered by the Board in determining that a single location unit was not appropriate. Other factors present in the MDS case included a large number of locations (26) in a relatively small geographic area, small numbers of employees at many of those sites, including 9 single employee locations, an absence of on-site management in many of the locations so that even work assignment often occurred from off-site, such extensive movement of work that the company employed 32 couriers, and significant division of functions between different locations. The Board also considered an earlier decision involving a competitor which had established an industry precedent for multiple-location certification.
The union cited several cases where interchange had been considered by the Board and found not to preclude the granting of a location specific unit. Of particular note is the decision in Canadian Tire Petroleum, [1994] OLRB Rep. April 360, which involved an application to certify one of two gas bar locations run by that company in Thunder Bay. Many of the facts in that case were similar to those agreed to here: the employees at the two locations had the same terms and conditions of employment and performed the same work; there was joint training of employees from both gas bars; advertising and the contracting for snowplowing and provision of flags were done centrally; and, non-gasoline products were routinely moved from one location to another in case of a shortage. In addition, there was further evidence of integration between the two facilities: there was only one manager in charge of both sites, who held joint staff meetings and social events.
The evidence of interchange of employees in Canadian Tire Petroleum, supra, established that when employees were hired by the manager they were assigned to one of the two gas bars, but were told that hours might be available at either location. Employees maintained time cards at their home location, and separate schedules were made up for each of the two locations. Employees would be contacted and offered hours at the other location, however, if the staff regularly assigned there were unable to cover all of the available shifts. The evidence disclosed four such temporary reassignments in the four month period prior to the application date, in a bargaining unit of eight employees, which is reasonably comparable in frequency to the evidence about Collegiate, taking into account the relative sizes of the two units.
After considering the argument of the responding party in Canadian Tire Petroleum, supra, that a single location unit would be inappropriate in light of these facts, the Board granted the unit requested, noting that the labour relations problems canvassed by the employer were matters which can dealt with in collective bargaining and are in any event purely speculative". This decision is interesting given that the facts in that case suggest a greater degree of integration than has been established in the present case.
Collegiate also submits that the practice of conducting centralized training and having employees from various stores sit together on buying teams would pose serious labour relations problems for a single store unit. In particular, counsel for the employer argued that employee participation on these centralized teams would pose a further difficulty in defining bargaining unit work.
We cannot accept that these practices are likely to create serious labour relations problems in the event that the Eaton Centre store becomes unionized. The employer clearly has a legitimate interest in ensuring a standard level of competence and product knowledge amongst all its staff, but there is nothing about having some employees work in a unionized environment which should preclude that. Equally, the presence of a bargaining agent should not prevent the employer from involving employees from various stores in the buying process. We also fail to see how the performance of training and buying functions by some employees will create confusion about the ambit of bargaining unit work.
In addition to its arguments about serious labour relations problems, Collegiate submits that the Board should prefer the larger unit even where two appropriate units have been proposed, rather than permitting fragmentation by granting the smaller unit simply because that is what the union has proposed. In support of this argument, the employer relies upon section 7 and the Board's interpretation of that section in recent cases, such as Cineplex Odeon Corporation, [1994] OLRB Rep. July 824 and The Hudson's Bay Company, [1993] OLRB Rep. Oct. 1042, where numbers of smaller single location units have been combined. The employer asserts that the Board should be expressing the preference for larger units which is clear from these decisions at the front end of the process, by taking the same approach in certification applications.
This argument ignores a point which has been made in virtually every Board decision considering an application for combination: that the considerations under section 7 are different from those in a certification application, in large part because we are not required to consider issues around impediments to organizing and employee choice (see for example the comments in Cineplex Odeon Corporation, supra, at paragraph 8). In the context of combination applications, therefore, the Board may more freely express its concern for fragmentation and its corresponding preference for larger units, without regard for the countervailing concern that not permitting the organization of small units might prevent employee access to collective bargaining.
As the Board noted in Salvation Army, supra, there is a general preference for more comprehensive units even at the point of certification, as discussed in paragraph 21 of that case:
If there is one theme that has been constant in the Board's concerns, both before and after Hospital for Sick Children, it is the aversion to fragmentation: the sub-division of an employer's enterprise into a number of separate collective bargaining components - which become separate seniority districts, which can lead to jurisdiction or inter-employee rivalries, which can generate organizational problems if one or other fragment goes on strike, which can make work-sharing or technological change more difficult to accommodate, and so on. Accordingly, while smaller sub-divisions may be appropriate in the context of a particular case~ and may be necessary to facilitate organizing (despite the collective bargaining "downside" described above), a broader, more comprehensive unit will also generally be appropriate. In other words, if a trade union seeks a more comprehensive bargaining unit, this larger unit will usually be appropriate, and will very likely be accepted on the Hospital for Sick Children test, unless there are serious labour relations problems with it which demonstrably overwhelm the difficulties associated with fragmentation, or unless the larger unit applied for seems idiosyncratic or perverse. Indeed, unless the labour relations context is quite unusual, one would expect the more comprehensive bargaining unit to be presumptively appropriate, if that is what the union has organized and applied for; and it serves no purpose to engage in the exercise mentioned in the emphasized portion of the Hospital for Sick Children case reproduced at paragraph 18.
Where a union has not applied for the more comprehensive unit, however, and it is the employer who wishes to expand the scope of certification, the Board must consider carefully the test articulated in Hospital for Sick Children, supra, and in particular whether or not the unit applied for, which may not be the most comprehensive nor the most appropriate, will create serious labour relations problems for the employer. This is the approach discussed by the Board at paragraphs 19 and 20 in the Salvation Army decision, which are reproduced at paragraph 20 above, and is an approach which is necessary to ensure that our aversion to fragmentation does not create unreasonable impediments to employees' access to collective bargaining.
Counsel for the employer argued that the introduction of the combination power into the Act ought to reduce the Board's concern about reducing impediments to organizing, even at the level of certification, as it demonstrates a clear preference for larger bargaining units. Instead, it seems clear that the creation of the power to combine units demonstrates a recognition on the part of the Legislature that the concern to ensure employee access to collective bargaining will inevitably create some fragmentation, which until Bill 40 could not be remedied by the Board if a union was later more successful in organizing within the larger potential unit. This pattern seems clear in the combination decisions cited by the employer, and is certainly not inconsistent with the granting of a single location unit in the present case.
To summarize our conclusions in this matter, we have determined that the operations of the employer at the six stores in Metropolitan Toronto are not integrated to any significant degree, and that the interchange of employees between locations, while it may be considered to be frequent and regular, is not of such a nature that it would create any serious labour relations problems. For these reasons, we are satisfied that the single location unit proposed by the applicant is a unit of employees which is appropriate for collective bargaining purposes.
The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
As noted in paragraph 3 above, there is an outstanding dispute between the parties as to the composition of the bargaining unit. The Board has determined, however, that the applicant's right to certification cannot be affected by the Board's ultimate decision as to the inclusion or exclusion of the disputed classifications. On the basis of all the evidence before it, the Board is satisfied that more than fifty-five per cent of the employees of the responding party in the bargaining unit on October 4, 1994, the certification application date, had applied to become members of the applicant on or before that date.
Accordingly, the Board, pursuant to its discretion under section 6(2) of the Act, having regard to the agreement of the parties and pending the final resolution of the composition of the bargaining unit, certifies the applicant as the bargaining agent for,
all employees of Sports Experts Inc. c.o.b. Collegiate Sports Experts at the Eaton Centre, 218 Yonge Street in the Municipality of Metropolitan Toronto, save and except supervisors and persons above the rank of supervisor.
Clarity note: "supervisor" as used herein shall include, pending the resolution of the status of these categories, head cashiers, department managers and third key holders.
A Labour Relations Officer is hereby appointed to inquire into and report to the Board concerning the duties and responsibilities of the persons within the disputed classifications.
A final certificate must await the final determination of the appropriate bargaining unit.
CONCURRING OPINION OF BOARD MEMBER J. A. RUNDLE; February 8, 1995
Given the current state of the Board's jurisprudence in cases such as the present one, I must concur with the majority decision.
While my concurrence is based on the current state of the law, I still agree with the labour relations concerns expressed by my colleague Mr. Correll in Canadian Tire Petroleum, [1994] OLRB Rep. Apr. 360, which flow from such a result as the present case.