Communications, Energy and Paperworkers Union, Local 87-M, Southern Ontario Newspaper Guild v. The Spectator, A Division of Southam Inc., 1995 CanLII 10070

Ontario Labour Relations Board

Citation: [1995] OLRB Rep. April 559 File No.: 1378-94-R Date: April 4, 1995

Between: Communications, Energy and Paperworkers Union, Local 87-M, Southern Ontario Newspaper Guild, Applicant v. The Spectator, A Division of Southam Inc., Responding Party

Before: Russell G. Goodfellow, Vice-Chair, and Board Members R. W. Pirrie and R. R. Montague.

Appearances: Kathleen Martin, Peter Murdoch, Shaun Herron, Josie Jenkins and Kathy Aitken for the applicant Harvey Beresford and Jack Nelson for the responding party

Decision of the Board

1. The name of the applicant in the title of proceedings is amended to read: "Communications, Energy and Paperworkers Union, Local 87-M, Southern Ontario Newspaper Guild".

2. This is an application for a combination of bargaining units. The applicant, or its predecessor, has represented a bargaining unit consisting of the respondent's editorial employees since 1983, and a bargaining unit consisting of the respondent's part-time mailroom employees since 1984. The applicant asks the Board to combine these units pursuant to section 7 of the Labour Relations Act, which states in part:

7.-(l) On application by the employer or trade union, the Board may combine two or more bargaining units consisting of employees of an employer into a single bargaining unit if the employees in each of the bargaining units are represented by the same trade union.

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.

3. The applicant submits that combining these units will facilitate viable and stable collective bargaining, reduce fragmentation of bargaining units and cause no serious labour relations problems. The applicant relies on the Board's decision in The North Bay Nugget, [1994] OLRB Rep. Aug. 1137, and a number of other cases in which combination orders have been granted.

4. The respondent submits that a combination order would not further the purposes set out in section 7(3) and would cause serious labour relations problems. The respondent asserts that the many cases in which combination orders have been granted are either distinguishable on their facts or fail to accord sufficient weight to bargaining power and community of interest concerns. On the facts of this case, the respondent submits, the two bargaining units share little or no community of interest and the predominant purpose for bringing the application, along with its predictable outcome, is to shift the balance of power in this bargaining relationship to the trade union. According to the respondent, this will mean an increased likelihood of strikes and the consequent application of the replacement worker provisions across a broader spectrum of employees. The respondent sees this latter concern as particularly troubling because its ability to carry on business will be severely restricted during a strike and, in the newspaper industry, one must either "publish or perish". The respondent asks the Board to dismiss the application.

5. Having considered the submissions of the parties and the evidence before us, we are satisfied that the two units should be combined.

6. We begin our analysis with an assessment of the concerns raised by the employer. As the employer points out, the two bargaining units in this case do not share a substantial "community of interest", as that phrase has been understood in the Board's case law (see e.g. Usarco Ltd., [1967] OLRB Rep. Sept. 526). The full-time editorial employees and the part-time "mailers" perform different work in different parts of the employer's operations during different hours and with different qualifications. In effect, they work at opposite ends of the production process and have no contact in the course of their working time and only minimal contact in their off-work time. While it is true to say, as the union points out, that the employees are engaged in a common enterprise, for the most part in the same premises, with some common terms and conditions of employment, if it were required to satisfy us that the two groups share any substantial "community of interest", our view of this case might well be different. However, there is no such requirement.

7. In recent years, and at least since the decision in The Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, the Board has placed a decreasing emphasis on the concept of "community of interest" when determining appropriate bargaining units. Some of the reasons for this approach were articulated in The Hospital for Sick Children, as follows:

14. ... Collective bargaining has extended beyond its traditional "blue collar" industrial base, into the public sector and to increasingly sophisticated and diverse job hierarchies. Real life collective bargaining experience has outstripped some of the conventional wisdom and has shown that the collective bargaining system can exhibit quite a variety of structures, which, at one time, parties might have considered unconventional or inappropriate. Ontario Hydro, for example, has a province-wide bargaining unit, encompassing a broad range of employee classifications, and thousands of employees, ranging from unskilled workers to highly trained technicians. A typical municipal "inside workers" (white collar) bargaining unit may include occupations ranging from filing clerks, to computer programmers, economists and planners with a considerable amount of post-secondary or even graduate training [see the Board's decision in The Regional Municipality of Durham, Board File 1818-84-R, decision released November 20, 1984]. The Ontario Civil Service bargaining unit contains thousands of employees ranging from clerks and typists to sophisticated scientific and technical personnel - and, incidentally, the staff of a number of provincial psychiatric hospitals (see: Owen Sound General and Marine Hospital, [1978] OLRB Rep. May 445, where the Board noted that in the government sector nurses, paramedicals, service employees, and clericals are all in the same unit, even though under the Labour Relations Act, they have typically been segregated into separate units). While at one time common opinion and industrial relations practice might have supported fairly rigid (almost "class") divisions between employee groups, modern collective bargaining seems to be able to thrive quite well in many contexts without such rigid distinctions. It is no longer as easy as it once was to say that it is "inappropriate" to group together for collective bargaining purposes, employees with quite diverse skills, education, training, position in the job hierarchy or probable aspirations.

8. The Board's current approach to the concept of "community of interest" is, perhaps, best summarized by the following passage from Active Mold Plastic Products Ltd., [1994] OLRB Rep. June 617:

29. Most recently, in Burns International Security Services Limited [[1994] OLRB Rep. Apr. 347], the Board addressed the utility of the concept of "community of interest". In this decision, it was noted that the term "community of interest" does not usually provide the Board with much assistance in determining whether an applied for bargaining unit is appropriate. It was observed in this decision that the focus before the Board in bargaining unit determination cases should be upon "concrete problems rather than the sometimes nebulous concept of 'community of interest"'. After citing a passage from Homewood Health Centre [1992] OLRB Rep. Feb. 181, in which Hospital for Sick Children is once again referred to, the Board observes as follows at paragraph 30:

These passages suggest a more flexible approach, focusing on the problems caused or averted by particular bargaining unit configurations, rather than so-called Board policies that may or may not reflect current labour relations realities. This is not to say that history or existing practices are irrelevant. History can be a useful guideline to what is appropriate because established practice may reveal what works and what does not. And, of course, there is some virtue in certainty and simplicity - hence the Board's inclination to define bargaining units with respect to the geographic municipality in which the employer operates. But as the practice in the security industry amply illustrates: multiple locations, or even multiple municipalities may also be appropriate bargaining units.

30. This panel of the Board agrees with the approach to the concept of "community of interest" which is reflected by the decision of Burns International Security Services Limited, described above. In the case before us, we found the numerous references to "community of interest" to be unhelpful. As noted by the Board in Burns International Security Services Limited, all employees share a "community of interest" by virtue of working for the same employer. In point of fact, there are numerous “communities of interest" that can be identified in any particular workplace. It is not necessary nor is it desirable for the Board to assess the relative strengths of the varied "communities of interest" in the workplace, just as it is unnecessary for the Board to consider alternative bargaining unit descriptions in the absence of serious labour relations problems. At the end of the day, the Board's focus should be upon the concrete, demonstrable problems which will result from the applicant's proposed bargaining unit should it be granted by the Board. In the absence of such concrete, demonstrable problems, the applicant's proposed bargaining unit will be acceptable to the Board.

9. The Board's experience in certification cases has been carried forward to combination applications, where it has been unwilling to burden its approach with historical notions of "community of interest". Instead, the focus has been on the existence of concrete, serious labour relations problems. Thus, combination orders have been granted in respect of geographically disparate bargaining units (see e.g. Premark Canada Inc., [1993] OLRB Rep. June 540 and Famous Players Inc., [1994] OLRB Nov. 1527) and "inside" and "outside" units (see e.g. Mississauga Hydro-Electric Commission [1993] OLRB Rep. June 523 and The Hydro-Electric Commission of the City of Ottawa, [1994] OLRB Rep. Apr. 516). In Mississauga Hydro Electric Commission, supra, the Board dealt with the community of interest issue this way:

17. The fact that community of interest is not an explicit criterion in section 7(3) appears to reflect, to some degree, both an increasing recognition in the Board's jurisprudence that considerable diversity can be accommodated within one bargaining unit, and the Board's willingness to question what may be obsolete assumptions with respect to shared bargaining interests. It is also true that in a combination case where there are one or more bargaining units which have existed for some time, it may be more difficult to determine whether there are any inherent conflicts in bargaining interests and objectives. This is because the Board's initial structuring of the bargaining unit or units at certification may have had an impact which obscures any intrinsic compatibility or conflict. As the Board noted in Ryerson, supra inclusive bargaining units tend to erode differentials between employees. Similarly, separate bargaining units may encourage a divergence of interests and working conditions. In other words, an attempt to measure any natural community of interest in a combination application may be distorted by the Board's original determination.

18. On the other hand, we also note that the criteria set out in section 7(3) are inclusive, rather than exhaustive, and that community of interest has been considered an aspect of viability in the Board's jurisprudence. While we think it consistent with both the language of section 7(3) and the development of the Board's jurisprudence and experience to give less weight to the community of interest factor than previously, there may also be cases where the interests of employees are so strongly discordant that this may have a significant impact on viability or stability, or may create serious labour relations problems. To the extent, then, that a lack of community of interest is so fundamental that it affects the criteria explicitly 7 set out in section 7(3), it may still be part of the Board's consideration.

10. In this case, there was no evidence, nor did the employer seriously suggest, that the interests of the two groups were so "strongly discordant" that it "might have a significant impact on viability or stability, or ... create serious labour relations problems". It did argue, however, that a combination order would serve to entrench fragmentation, rather than reduce it, because the employees with whom the part-time mailers share the strongest community of interest (i.e. full-time mailroom employees) are represented by another bargaining agent under a different collective agreement.

11. As to the origins of this situation we can only speculate, but it may have something to do with the Board's former approach to the determination of bargaining unit appropriateness which recent amendments to the Act have gone some way to redress (see e.g. section 6(2.1) and (2.2)). It would not be in keeping with the spirit of the current legislation, however, if the Board were to rely on this historical split between two employee groupings to deny a combination order as between two other groups represented by the same bargaining agent. Unless and until such time as the Labour Relations Act is amended to permit the Board to refashion bargaining units represented by different trade unions, or either of the existing trade unions representing the respondent's mailroom employees abandons its bargaining rights or is successfully "raided" by the other, the part-time/full-time division will remain. Accordingly, it is not a factor to which we are prepared to accord substantial weight in this application.

12. With respect to the second issue raised by the respondent, the Board has repeatedly stated that it will not embark upon an inquiry into the parties' respective bargaining strengths or speculate on the impact of a combination order on their ability to negotiate terms and conditions of employment. In Mississauga Hydro-Electric Commission, supra, the Board commented on this issue as follows:

29. We cannot leave this more general discussion of section 7(3) without commenting on the issue of bargaining power. There is no doubt that the contours of a bargaining unit have a significant impact in this regard, as the Board noted in Kidd Creek Mines, sup ra. And just as the parties' positions in certification bargaining unit disputes are often influenced by tactical issues relating to increasing or decreasing the chances of certification, it would not surprise us if combination applications are brought and resisted against a backdrop of strategic considerations relating to bargaining power. We do not rule out the relevance of some of these issues, particularly as they may relate to organizational difficulties in a sector. For example, a bargaining unit may be so small and weak that it cannot negotiate in any meaningful way, and the economic sanctions contemplated by the Act remain a theoretical option only. In that case, a larger unit might well facilitate viability. At the same time, we think that considering bargaining power as a factor in isolation is somewhat unlikely to be a fruitful line of inquiry in this context.

The reasons it is unlikely to be fruitful are at least three-fold.

13. First, inviting the Board to consider the impact of its combination orders on the parties' respective bargaining strengths assumes that bargaining power is somehow measurable or definable. In reality, bargaining power has an inherently elusive, almost ephemeral, quality to it that is incapable of precise measurement and which may be influenced by a variety of factors, both economic and social, quite apart from Board proceedings.

14. Second, the employer's argument appears to assume that a change in the existing power dynamic will have predictable, and predictably negative, consequences for the parties' collective bargaining relationship. While it may not be unreasonable to assume that a bigger bargaining unit will provide an applicant with greater bargaining strength, it does not necessarily follow that the outcome will be power that is exercised in a manner prejudicial to the coincident interests of management and labour. In this particular case, Peter Murdoch, the applicant's National Representative, frankly acknowledged that one of the reasons for bringing the application was to enhance the union's bargaining power. At the same time, however, Mr. Murdoch could see no necessary correlation between that possibility and an increased likelihood of work disruptions or any other "serious labour relations problem". According to Mr. Murdoch, "along with increased power comes increased responsibility" to exercise that power in a way that will not threaten the parties' shared interest in the continued viability of the business. In our view, the fact that the union's bargaining power may be enhanced by a combination order does not, in itself, point to an increased likelihood of instability in bargaining, except to the extent that any change in the status quo may have this effect.

15. This brings us to the third point. The employer's argument also appears to assume that the currently prevailing "balance of power" is somehow pre-ordained, resting on influences entirely apart from the language of the Labour Relations Act as amended from time to time over the last 50 years. However, that is manifestly not the case, as every statutory amendment, and every change in Board decision-making (including its approach to the determination of appropriate bargaining units), necessarily brings about some alteration to the collective bargaining status quo. Viewed in that context, the combination provision, and the Board's approach to it, must be seen as a change of degree, and is unlikely to pose the threat to viable and stable collective bargaining, or give rise to the serious labour relations problems, envisaged by the employer.

16. Having dealt with these issues, there are only a limited number of facts that are relevant to our decision. As the Board has pointed out on another occasion:

7. The reality is that at least since the most recent amendments to the Labour Relations Act, the statute and the Board favour broader based bargaining units whether at the in tial certification stage or, subsequently, on a combination application. Exceptions are made where a more comprehensive unit would frustrate another important statutory objective - the ability to organize -and no serious labour relations problems would be caused by granting a smaller unit; where the broader unit would itself cause serious labour relations problems; and in the case of certain craft units. The reasons for this legislative and Board preference have been articulated in such cases as The Governing Council of the Salvation Army in Canada and Bermuda, [1994] OLRB Rep. Jan. 85 and Mississauga Hydro, supra.

(See The Hydro-Electric Commission of the City of Ottawa, [1994] OLRB Rep. April 516.)

17. This "reality" was also expressed in Mississauga Hydro-Electric Commission, supra and The North Bay Nugget, supra, where the Board noted that the factors enumerated in section 7(3) establish a "low threshold" for a combination applicant to cross. Indeed, given the direction in which the factors identified in paragraphs 7(3)(a) and (b) are normally thought to point, the focus in a combination application will generally be on the possibility of "serious labour relations problems" (section 7(3)(c)). Moreover, given the flexibility which characterizes the institution of collective bargaining, and its ready ability to accommodate change, the circumstances in which a combination application will be denied may well be unusual.

18. Thus, the Board's experience is that broader based bargaining units tend to contribute to more viable and stable collective bargaining (see e.g. National Trust, [1986] OLRB Rep. Feb. 250), while fewer bargaining units tend not only to reduce fragmentation, but the problems associated with fragmentation. This case is no different. In the last round of bargaining, the two employee groupings negotiated through one union bargaining committee, and developed a common bargaining strategy and certain joint proposals. Nevertheless, bargaining proceeded separately, resulting in separate collective agreements with different expiry dates. In these circumstances, and despite the employer's protestations to the contrary, it is difficult to imagine that one set of negotiations, resulting in only one collective agreement, would not produce the efficiencies traditionally associated with broader based bargaining. Indeed, Ian McLeod, the employer's business manager, acknowledged that bargaining was more efficient in the last round than previously, but attributed this entirely to the fact that there was no need to resort to mediation and there was no strike.

19. Likewise, although the parties have already achieved some degree of harmony in terms and conditions of employment, this too will likely be enhanced by a combination order. In this regard, we are not persuaded by the employer's suggestion that any efficiencies that may be gained through one round of bargaining with only one bargaining unit will be offset by the need to analyze the impact of any given proposal on employees in the two departments. To some extent, those kinds of assessments must already occur within departments and a combination order, at least beyond this round of bargaining, is unlikely to create more work for the parties.

20. Further, combining the two units will assist in eliminating certain tensions which have arisen between the two groups, apparently as a product of the bifurcated bargaining structure. The Board heard evidence that in 1989 the part-time "mailers" struck and the entire operation was affected. The union called for a subscription boycott and hundreds of subscriptions were cancelled.

Combining the two units will ensure that employees represented by the same union in the same workplace will not be split on this fundamental labour relations issue solely along structural and, for our purposes, largely artificial lines.

21. Finally, and bearing in mind our comments with respect to the bargaining power and community of interest concerns raised by the employer, there is nothing to suggest that combining the two units will create "serious labour relations problems".

22. Accordingly, we direct that the two bargaining units be combined. We will remain seized under section 7(5) to deal with any issues of implementation.