Canadian Union of Public Employees, Local 79 v. The Municipality of Metropolitan Toronto, 1995 CanLII 10056

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

[1995] OLRB Rep. February 182

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, Dennis Casey and Jack Kirkby for the applicant; Darrel Smith, Harold Ball, Kalli Chapman and Vince Quattrociocchi for the responding party.

DECISION OF THE BOARD; February 13, 1995

1This is a continuation of proceedings in which decisions of this panel of the Board, dated June 15, 1994 [now reported at [1994] OLRB Rep. June. 795] and August 3, 1994, have already issued. Board File 3730-93-R is an application for certification.

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

3Having further regard to the agreement of the parties, the Board further finds that:

all security guards employed by the Municipality of Metropolitan Toronto in the Municipality of Metropolitan Toronto, save and except shift forepersons, persons above the rank of shift fore-person, persons regularly employed for not more than twenty-four (24) hours per week, students employed during the school vacation period and persons for whom any trade union held bargaining rights as of February 1, 1994,

constitute a unit of employees of the responding party appropriate for collective bargaining.

Clarity Note: For the purposes of clarity, the parties agree that the persons in the bargaining unit as of the date of application were employed in a classification of security officer. The bargaining unit does not include persons employed in the classification of security guard which is a classification covered by the current collective agreement between the parties.

4The Board is satisfied on the basis of all of the evidence before it, that more than fifty-five per cent of the employees of the responding party in the bargaining unit on February 1, 1994, the certification application date, had applied to become members of the applicant on or before that date.

5A certificate will issue to the applicant.

6In Board file 3731-93-R the applicant seeks to combine the newly certified bargaining unit composed of some 17 Security Officers ("SO"s) with a previously existing bargaining unit of some 6,000 Metro employees (the latter unit has and will continue to be referred to as the "full-time unit").

7The employer has and continues to take the position that, in the circumstances of this case, section 6(6) of the Act, if not explicitly, then at least effectively, precludes the Board from granting the combination application being sought.

8Section 6(6) of the Act, upon which Metro relies, provides as follows:

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.

Section 7(3) of the Act outlines the relevant considerations in relation to combination applications:

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.

9At the hearing which resulted in our June 15, 1994 decision in this matter, the parties agreed to proceed as set in paragraph 4 of that decision:

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.

10After proceeding in the fashion agreed to by the parties, the Board concluded (at paragraph 18 of the June 15, 1994 decision) that it was "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."

11At the request of the union and over Metro's objection (see the Board's August 3, 1994 decision), this matter was listed for further hearing. The union had indicated that it wished to call evidence to establish that there are employees in the full-time unit (while not SOs and not even necessarily "guards" as that word is used in section 6 and has come to have been understood in the labour relations context) whose functions include the monitoring of other employees to the same extent as that function is performed by SOs. The union further asserted that consideration of this evidence would be relevant to the issue of whether any serious labour relations problems would be raised by the proposed combination of bargaining units.

12None of the additional evidence placed before the Board when the hearing resumed was either controversial or seriously challenged. In these circumstances, it is unnecessary for us to review it in any significant detail. What follows then is but a succinct description of that evidence.

13David Cusack is currently an employee in the full-time unit and is classified as a security/reception officer ("S/RO") at Metro Hall. Mr. Cusack gave evidence regarding the duties and functions associated with that position. Prior to the opening of Metro Hall, Metro leased five floors of space at 390 Bay St.; Mr. Cusack spent some 4 years employed as a security guard a full-time bargaining unit position, at that location. He also testified about the duties and functions associated with that position.

14Dan Gormley was also a witness for the union. He is currently employed as an SG and works at Metro's archives facility located at Spadina and Dupont. There are some 25 Metro personnel who regularly work at that location (we were not advised precisely how many of those are full-time bargaining unit employees). There are certain areas of the facility (the exhibit area, the theatre, and the research hall) to which the public has unrestricted access during regular business hours. Mr. Gormley testified as to the duties and functions associated with his position.

15The parties provided some further agreed facts regarding bargaining structures and benefits. They also agreed that SGs employed by Metro at 703 Don Mills Road (which houses police and other services) have access to the records of the use of electronic cards required to access the front and certain internal doors and that the evidence of George Hines (an SG employed at that facility) would be that he is regularly requested to obtain information from such records for his supervisors for the purposes of their investigations. The union filed a number of arbitration awards between the parties as evidence in these proceedings. Without reviewing these in any detail, which neither party did, it suffices for our purposes to note that all of these cases involved situations where bargaining unit employees testified as Metro witnesses (under summons) at arbitration hearings regarding discipline imposed on fellow bargaining unit employees. The employee witnesses in these cases came to testify in, broadly speaking, one of two ways: either their positions (such as foreman grade 1 or grade 2) involve some supervisory duties or, for other (perhaps more fortuitous and institutionally less predictable) reasons they had happened to be witnesses to events relevant to the imposition of discipline in the particular case. None of the cases filed involved SOs or S/ROs or SGs testifying for Metro as witnesses against full-time bargaining unit employees.

16Finally, insofar as the evidence we heard, Metro called Harold Ball, the director of labour relations. Although his evidence might, at times, have been mistaken for a rehearsal of the employer's argument on the point, Mr. Ball, in a frank and straightforward fashion, expounded his views regarding the possible labour relations problems which might result were the instant combination application to be granted.

17The union's argument begins with the proposition that certification and combination applications are separate and distinct proceedings and that the disposition or manner of treatment of the former need not be dispositive of the latter. And while the existence of a conflict of interest might require the Board, in the context of a certification application, to find a "guards only" unit to be appropriate by virtue of section 6(6) of the Act, that, in and of itself, should not be a bar to the subsequent or perhaps even simultaneous combination of that "guards only" unit with another bargaining unit. The determination of the combination application must rest on the factors set out in section 7(3) and, in particular, an assessment of the labour relations harm, if any, likely to flow from the combination sought. Put somewhat more dramatically, the union accepts, given our previous decision in this matter, that if this were an entirely fresh certification application in which the union sought to achieve bargaining rights for a unit that included both SOs and the other full-time employees, section 6(6) would require the creation of two separate units, one of which would be "guards only". Despite that acknowledgement the union argues that it is entitled to, at the same time or later, seek to combine those two units into one. Further, it asserts, the finding of a real possibility of conflict of interest under section 6(6) does not inexorably lead to the conclusion that serious labour relations problems will flow from the combination.

18The employer's position is relatively straightforward - the combination application sought by the union is precluded by section 6(6) and the Board's prior decision in this matter; alternatively, the Board ought not to grant the combination because serious labour relations problems would result.

19In support of their various positions the parties referred to and discussed a number of authorities including decisions of the Board in Cineplex Odeon Corporation, [1994] OLRB Rep. July 824; The Hydro-Electric Commission of the City of Ottawa, [1994] OLRB Rep. Apr. 516; The Municipality of Metropolitan Toronto, [1992] OLRB rep. Mar. 315; Lay-All Drywall Ltd., [1988] OLRB Rep. Mar. 308; B A Banknote a division of Quebecor Printing Inc., (unreported November 8, 1994, Board File 2113-94-R) [now reported at [1994] OLRB Rep. Nov. 1484]; as well as extracts from Driedger on the Construction of Statutes (3rd edition).

20We should observe first that we have not found the latest evidence advanced by the union to be particularly helpful. Certainly, to the extent it had been suggested that there are employees in the full-time bargaining unit whose functions include the monitoring of other employees to the same extent as that function is performed by SOs, the union's evidence regarding S/ROs and SGs has simply not lived up to its advance billing. There is no doubt that S/ROs and SGs may, from time to time, be called upon to perform monitoring functions which mirror those performed on a more regular basis by SOs. We should also emphasize, as we did in our June 3, 1994 decision in this matter, that SOs do not spend the vast majority of their time investigating or otherwise dealing with alleged improper conduct by full-time employees. Yet the monitoring functions they performed were significant enough for us to conclude that there is the real possibility of a conflict of interest if the SOs were included in the full-time bargaining unit. The measure of the difference between the SOs on the one hand, and the S/ROs and SGs on the other, is that it is not at all apparent to us that the latter group is one which, in a hypothetical fresh certification situation, would have to be segregated from the other full-time bargaining unit employees by virtue of section 6(6). Whatever points of comparison there may be (and there are some) between the SOs and the other two classifications, the fact that the latter have been included in the full-time bargaining unit for some time is not of great assistance in determining what labour relations problems, if any, would arise if the SOs were included as well. Similarly, neither do we find the arbitration awards between the parties filed by the union to be particularly instructive. The fact that Metro has previously faced conflict of interest situations involving other bargaining unit employees testifying against each other at arbitration hearings is, frankly, of little assistance to us in determining the likely labour relations difficulties which might be associated with the inclusion of SOs in the full-time bargaining unit.

21On the other side of the ledger, neither have we found Metro's evidence or argument regarding labour relations difficulties to be particularly persuasive. Mr. Ball was extremely candid in displaying his unhappiness at the prospect of the SOs being represented by the same bargaining agent as the full-time employees. He recognized and did not dispute that is the unavoidable result here, given the recent legislative changes and the level of support among SOs for the applicant. Having the SOs included in a separate bargaining unit was, for him, a distant second choice. The vast majority of potential problems and concerns articulated by Mr. Ball arise from the SOs being represented by the applicant, whether they are in the same or a different bargaining unit from full-time employees.

22In essence both parties, for very different reasons, are having difficulties adapting to and accepting the recent changes to the Act. Mr. Ball is clearly unhappy with the prospect of the applicant representing both SOs and other employees. The union, on the other hand, seeks to persuade us that difficulties involving conflicts of interest can be resolved by reasonable people and should not be a bar to a combined unit. The employer is having some difficulty accepting that the statute permits the same bargaining agent; the union is unhappy that section 6(6) generally requires separate bargaining units for guards.

23We have not found it necessary to plumb the depths of this conflict which may, on the facts of this case, be difficult to resolve. Section 7(3)(a) through 7(3)(c) set out three factors the Board must consider in disposing of a combination application. We are prepared to assume, without finding, that each of these factors otherwise point to the granting of the application. The preamble to the enumerated factors also permits the Board to take into account such factors as it considers appropriate. Although this is a combination application, we cannot ignore the wording of section 6(6). The applicant concedes that, given the Board's previous finding, if this were a fresh certification application, the SOs would find themselves in their own separate bargaining unit by virtue of the application of section 6(6). The union, in advancing its combination application, is asking us (in a fashion not entirely dissimilar to the employer request in the B A Banknote case, cited above) to effectively read out or ignore the clear provisions of section 6(6).

24We simply find it inconceivable that where, as here, the statutory preconditions outlined in section 6(6) are met, the Act could direct that guards be included in their own bargaining unit separate from other employees and simultaneously permit a trade union to avoid that result by the expedient of a combination application. On that basis alone and, consequently without the need to finally determine whether the combination here sought would create serious labour relations problems, we are of the view that this application ought not to be granted. Since some reference was made to other subsections of section 6, we should observe that our decision should not be taken to mean that, in every case where a bargaining unit is deemed appropriate under subsections 6(2.1) through 6(5), this will necessarily constitute a barrier to its later combination with another unit. The statutory preconditions and policy considerations upon which these various subsections are constructed are different from those evident under section 6(6).

25In summary, a certificate will issue to the applicant in respect of the bargaining unit set out in paragraph 3 above; the application for combination of bargaining units is dismissed.