United Steelworkers of America v. Pepsi-Cola Canada Ltd., 1995 CanLII 9942

[1995] OLRB Rep. August 1131

0122-95-R United Steelworkers of America, Applicant v. Pepsi-Cola Canada Ltd., Responding Party

BEFORE: Pamela Chapman, Vice-Chair, and Board Members W. H. Wightman and Pauline R. Seville.

APPEARANCES: P. Turtle, G. Gibson and Alex Milne for the applicant; James B. Noonan and Kurt E. Twining and Bruce Allen for the responding party.

DECISION OF THE BOARD; August 8, 1995

1This is an application for certification.

2In response to the application, the responding party ("the employer") takes the position that the Board has no jurisdiction to hear and determine this matter, as the labour relations of the employer falls within the scope of federal, rather than provincial, jurisdiction. The applicant ("the union") disputes this assertion, taking the position that the application is within the jurisdiction of the Board.

3In addition to the jurisdictional issue, the parties disagree as to the appropriate bargaining unit. The union seeks the exclusion of warehouse personnel; the employer takes the position that these employees should be included and that the unit proposed by the union is not appropriate for collective bargaining purposes.

4At the hearing of this matter on May 10, 1995, the Board heard the submissions of the parties on the issue of constitutional jurisdiction, and on the bargaining unit dispute, and reserved our decision.

5As the two issues are quite distinct, we have dealt with them separately below.

CONSTITUTIONAL JURISDICTION

The Facts

6The parties entered into an agreed statement of fact, which was filed with the Board. As it is quite lengthy, it is not reproduced here. Instead, we will set out a brief summary of the key facts relating to the issue of constitutional jurisdiction.

7The parties are agreed that the correct name of the legal entity which is the employer in the present application is Pepsi-Cola Canada Ltd. ("Pepsi Canada"), as reflected in the title of proceedings. They agree further, however, that the application relates only to certain employees of Pepsi Canada at its PFS Division in the City of Mississauga ("PFS Canada"). Both Pepsi Canada and PFS Canada are related to Pepsico Inc. ("Pepsico"), a larger corporate entity based in the United States.

8The parties filed an organizational chart which shows the basic corporate structure of Pepsico. In essence, it reveals that Pepsico is made up of a number of divisions, including Pepsi-Cola North America, Frito-Lay, Pizza Hut International, KFC ("Kentucky Fried Chicken") International, Taco Bell International, and PFS.

9Pepsi Canada, like Pepsico, is involved, among other things, with developing, operating and franchising Pizza Hut, Taco Bell and Kentucky Fried Chicken restaurants. PFS is a division of the companies which warehouses and distributes product to these restaurants, both those directly operated by the companies and those run by franchisees. While PFS Canada is legally a part of the corporate entity Pepsi Canada, the head of operations for PFS Canada reports to PFS in the United States, which as noted above forms a part of Pepsico.

10PFS Canada operates a warehouse in Mississauga, out of which all of its employees in Canada work. These employees include truck drivers, driver helpers, warehouse personnel, office and clerical personnel, sales staff, and management personnel.

11Product to be supplied to the restaurants by PFS Canada includes a wide variety of fresh and frozen foods, dry goods, and paper products. This product is delivered to the warehouse in Mississauga by local and international suppliers, or by drivers employed by PFS, in the case of some products like flour. Some products are delivered to the warehouse by PFS drivers on "backhauls": they pick up items such as pepperoni and cheese on the way back from trips into Quebec to deliver product and return them to the warehouse for distribution to other restaurants.

12Product is then delivered to the various restaurants throughout Canada. Drivers employed by PFS Canada make truck deliveries to Pizza Hut and Taco Bell stores in Ontario and Quebec; PFS contracts with independent trucking companies to deliver product to Atlantic and western Canada.

13Approximately 20 to 25% of the regular trips made by PFS Canada drivers are extra provincial into the province of Quebec.

14PFS Canada has held a common carrier license since 1989, which it keeps current. All of its drivers hold AZ commercial tractor trailer licenses which authorize them to truck product anywhere in Canada.

15There is only one example, however, of PFS Canada operating as a common carrier and as such making use of its license. Between the middle of 1992 and the end of 1993, PFS drivers delivered salads prepared by a Quebec supplier to the Quebec warehouse of a distributor, for delivery by the distributor to Kentucky Fried Chicken restaurants in Quebec.

Decision

16Having carefully considered the facts summarized above, the submissions of the parties made at the hearing, and the authorities filed with the Board, we have concluded that the labour relations of the responding party falls within provincial jurisdiction, and that as a result this application is within the jurisdiction of the Board. Our reasons for this conclusion are set out below.

17The parties agreed upon the constitutional framework within which the jurisdiction of the Board must be considered. The labour relations of companies employing persons within the province of Ontario are presumptively within the legislative competence of the province as falling within "property and civil rights" under section 92(13) of The Constitution Act. The labour relations of any federal work or undertaking, however, are within federal jurisdiction, including those which fall within the ambit of section 92(10)(a):

92(10)(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province.

18In the present case, the responding party relies upon section 92(10)(a) of the Constitution, arguing that PFS Canada is engaged in inter-provincial transportation and as such falls within federal jurisdiction with respect to labour relations.

19This Board and the Canada Labour Relations Board have considered the constitutional jurisdiction of employers engaged in the trucking of product over provincial boundaries in numerous previous cases, and certain principles have emerged from this jurisprudence.

20First, it is clear that an employer whose primary business is that of a common carrier, regularly and continuously carrying goods or persons over provincial boundaries, will be considered to fall within federal jurisdiction (Re Tank Transport Ltd., 1960 CanLII 120 (ON HCJ), 25 D.L.R. (2d) 161 (Ont. H. C.)).

21Where, however, an employer in the business of producing, distributing or selling goods transports those same goods, rather than persons or goods belonging to others, the transportation enterprise has generally been found to be provincial in nature, unless that aspect of the business is severable from the rest of its operations (Catalano Produce Ltd., [1975] OLRB Rep. Oct. 743; Westburne Industrial Enterprises Ltd., [1984] OLRB Rep. Oct. 1525).

22The responding party asserts that PFS Canada falls within the former category, as it holds a common carrier license, and has on at least one previous occasion carried goods for another company. The employer also emphasizes the independence of PFS Canada from the rest of Pepsi Canada, noting the reporting structures which result in a closer relationship with PFS headquarters in the U.S. than with the Canadian parent company.

23We have considered these arguments carefully, but having regard to the facts in this case, must reject them. First, it cannot be said that PFS Canada is engaged in the business of a common carrier, despite its possession of a license permitting it to do so. The evidence clearly discloses that PFS Canada carries goods to Taco Bell and Pizza Hut restaurants, which are either owned or franchised by the employer. While the responding party emphasized the one period during 1992 and 1993 when goods were delivered to another company, this transaction cannot even be considered to be truly arms length in nature, given that the company in question was a distributor which in turn delivered the goods to KFC restaurants owned or franchised by Pepsi Canada. In any event, a single episode of such common carrier activity does not change the essential nature of PFS Canada.

24For many of the same reasons, it is clear that PFS Canada cannot be severed from the business of Pepsi Canada. As it only services the restaurants owned or franchised by the parent company, and has no independent business as a common carrier, PFS Canada would have no existence without the business of Pepsi Canada. Indeed, the integration of the enterprises is clear from a reading of the policy manual, which states in the introduction for new employees that the goal of PFS Canada is to enhance the efficiency and profitability of Taco Bell and Pizza Hut restaurants, which is achieved by tailoring the products and services provided by PFS to meet the specific needs of each restaurant. As union counsel submitted, PFS Canada operates as an indivisible supply arm to that part of Pepsi Canada which operates the restaurants, despite the organizational structure which links it to PFS in the U.S.

25It is also significant, although not determinative, that PFS Canada is a part of the corporate entity which it services, Pepsi Canada (see for example Fleetwide, [1986] OLRB Rep. Sept. 1216, where the Board found that a separate numbered company engaged in deliveries out of province was nonetheless integral to the operations of a provincial manufacturing company and thus within provincial jurisdiction).

26Similar considerations were central to the decision of the Board in Westburne Industrial Enterprises Ltd., supra, as summarized at paragraphs 12 and 13 of that decision:

This Board is of the opinion that this case more closely resembles Dominion Dairies, supra, than Ottor Freightways, supra. To be sure, Distribution Services is a separate Division of Westburne Industrial Enterprises Ltd. However, this is a function of the size of Westburne, or perhaps its corporate organizational philosophy, rather than evincing a different relationship between the transportation “arm” and the enterprise itself. The fact that Westburne is engaged in buying and selling goods. rather than their manufacture, is not sufficient to distinguish the Dominion Dairies approach to the constitutional issue in view of the decision in Humpty Dumpty Foods, supra, where the operation was a distribution centre and was found to be under provincial jurisdiction. Distribution Services is not only not a separate corporate entity, it is not a common carrier. This is a crucial factor, in the Board's view. It is the status as common carrier which is determinative to the characterization of the operations in Ottor Freightways, Winner and Tank Truck, supra, as interprovincial “undertaking". Distribution Services is merely the "in-house" freight-forwarding arm of Westburne. Distribution Services derives all of its business from Westburne and is completely dependent on Westburne for its continued operation. That Distribution Services must compete with common carriers to provide transportation services for their Divisions of Westburne is merely a means of ensuring that the other Divisions in no way subsidize the operation of Distribution Services. It does not change the characterization of those operations with respect to the constitutional issue.

Further, although the individuals in the proposed bargaining unit work directly for Distribution Services Division, the only "legal entity" which could be the "employer" is Westburne Industrial Enterprises Ltd. Thus, the Board rejects the respondent's argument that Distribution Services is the “employer" and the "business" of the employer is an interprovincial undertaking within the meaning of section 92(10)(a) of The Constitution Act. Moreover, Distribution Services Division, at least while it remains an in-house delivery arm of the corporation, cannot be said to operate a transportation business as did the firms in Winner, supra, Tank Truck, supra, etc. In this regard, it is interesting to note that, although the total number of persons in the bargaining unit has not been resolved, there is a maximum of fourteen (14) individuals in the respondent's view and seven (7) in the applicant's view. In Dominion Dairies, supra, there were nineteen (19) individuals in the proposed bargaining unit. This Board does not believe that the reasoning in Dominion Dairies is not applicable to this case simply because the proposed bargaining unit members here are formally within a "Division" of a corporation whereas in Dominion Dairies there was not an identical organization structure. This would be placing form over substance. And the substance is that, in both instances, the individuals perform the same function, i.e., providing the in-house delivery service for the company. In neither instance, were the 'business" those of common carriers so that the regular, ongoing nature of that business would properly result in characterization as "interprovincial undertakings" and, hence, under federal jurisdiction.

27In the cases relied upon by the employer, however, where trucking operations were found to fall within federal jurisdiction, significant common carrier activity had been established. Thus, for example, the Canada Labour Relations Board ("C.L.R.B.") found in Burns Foods (Transport) Ltd. (1990), 81 di 114, at page 115, that "the regular and continuous interprovincial transportation of goods for other companies, the majority of which are back-haul trips", was a distinct feature of the operations of the employer which brought it within federal jurisdiction. The C.L.R.B. noted that the employer held itself out as a common carrier and had developed a practice of carrying general freight for others on return journeys, on a daily and weekly basis, resulting in additional revenues for the company. Similarly, in J.C. Fibers Inc., (1994), 94 dii, the C.L.R.B. characterized the trucking aspect of the employer's business as "general transportation for third parties", which was carried out on a regular and continuous basis across provincial borders, accounting for between 27% and 46% of total transportation activity.

28For these reasons, we have concluded that PFS Canada, despite the license it holds, cannot be characterized as operating the business of a common carrier. Rather, it is an integrated part of Pepsi Canada, which is a company within provincial jurisdiction. In these circumstances, we find that PFS Canada is not a federal work or undertaking, and that its labour relations fall within provincial jurisdiction.

APPROPRIATE BARGAINING UNIT

The Facts

29The union proposes a unit made up of drivers and driver helpers; the employer asserts that this unit is not appropriate and that it should include warehouse personnel.

30As noted above, the statement of facts filed by the parties was quite lengthy, so we have reproduced only a summary of the main facts relating to the bargaining unit issue.

31The only employees who are permitted to drive trucks are the drivers, who as noted above are required to hold commercial licenses, as well as a clean record. Both drivers and warehouse employees, however, occasionally do redeliveries of small amounts of product after a regular run has been made, although it is not clear from the agreed statement of facts what kind of vehicle would be used in the event that a warehouse employee made such a delivery.

32Warehouse employees load the trucks prior to deliveries being made by the drivers. When drivers arrive at their destinations, they unload product from their trucks into the restaurants. Neither drivers nor driver helpers generally load the trucks, except during the course of training. When a new driver is hired, he may assist in loading a vehicle and will spend a few days in the warehouse in order to familiarize himself with the product. New drivers are then assigned to work as driver helpers as training, and the driver helper who is displaced then works in the warehouse for the training period, which normally lasts one month. Driver helpers may also assist in the warehouse when road hours are reduced, which is usually 4 to 6 hours per week.

33Driver helpers assist drivers to make deliveries, mostly on specific downtown routes. Warehouse employees do not usually go out on the delivery routes, although approximately 8 to 10 times per year a warehouse employee may be assigned to act as a driver helper on other than an overnight run.

34The unloading of backhauled product is normally done by either warehouse employees or a driver assigned to work as a "shunt driver". Each day, one driver is assigned to work as the shunt driver, to do unloading, move trucks, clean trailers, fuel trucks and deliver trucks for maintenance.

35Routine maintenance in the warehouse is done by warehouse employees, and occasionally by driver helpers or the shunt driver.

36When drivers are put on light duty, they normally work in the warehouse doing jobs which do not require lifting or sitting for extended periods.

37Prior to loading trucks, warehouse employees pre-cool reefer equipment; this is done by the drivers on return trips where they are backhauling product.

38Warehouse employees use itemized lists of product called "pick sheets", which are generated by the office, to load trucks for each delivery. After loading, this sheet is provided to the driver who uses it to check off items as product is delivered. Drivers also fill out additional paperwork, and input information on an ongoing basis into a computer terminal mounted in their trucks, which is then printed back at the office.

39Warehouse employees generally work eight hours a day, five days a week, on a rotating schedule of morning and afternoon shifts which provides for seven day a week coverage. Drivers spend very little time at the warehouse, as they typically arrive late at night to pick up their loaded trucks and begin their routes. They may return to the warehouse at any time during the day. Drivers work thirteen to fifteen hour shifts three or four days in a seven day period, often overnight, clocking in and out on the tripmaster.

40Warehouse employees and most of the drivers are paid an hourly wage; the drivers' wage is on average $1.50 per hour higher. Four drivers are paid a weekly salary to do the twice-weekly Quebec City runs. Drivers are provided with a calling card, gas card, and a cash float to cover expenses while travelling. Warehouse employees and drivers have the same pay period.

41Many other terms and conditions of employment are the same for drivers and warehouse employees, including:

(a) a benefit plan including medical, dental, vision and hearing coverage and life insurance;

(b) an employee stock option program;

(d) a uniform allowance which provides for company uniforms and safety boots;

(e) a single Christmas party and company picnic;

(f) an award system which identifies excellent employees;

(g) a pre-employment physical examination; and,

(h) a 90 day probation period.

42Warehouse employees and drivers bid for positions and vacation preference based on "departmental" seniority, and vacations are separately scheduled in each department. While no warehouse employee has ever become a driver, two warehouse employees have become drivers helpers. On three occasions in the last five years drivers have been transferred to work in the warehouse for medical reasons, because of personal choice, or as a form of discipline, and have subsequently returned to the driver job.

43There is a single Joint Health and Safety Committee at the workplace. In addition, both drivers and warehouse employees sit on "load committees" which last met in November, 1994.

44All employees are covered by the same employee handbook, which sets out a code of conduct and a grievance procedure for all employees. For drivers, there is a further handbook called the "PFS Driver Specialist Information Manual" which details some of their job functions and establishes additional rules of conduct.

45There are three operations supervisors, who all report to the same operations manager. Drivers report to one of these supervisors on matters relating to the tripmaster system, to another for schedule problems, and to whichever one of the three is "on-call" in the event of problems on the road.

Decision

46Having carefully considered the facts, the submissions of the parties, and the cases upon which they relied, we have concluded that the unit proposed by the applicant is not an appropriate bargaining unit for collective bargaining purposes. Our reasons are set out below.

47The parties agreed that the test to be applied by the Board in determining whether or not the unit proposed by the applicant is appropriate for collective bargaining unit purposes is the one set out in 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.

48The normal practice of the Board, even before the Hospital for Sick Children decision, was to include drivers within a "production" unit, with exceptions in the dairy, bakery, and laundry industries (see for example the discussion in Creeds Storage Ltd., [1985] OLRB Rep. Feb. 238). This approach is consistent with the Board's general aversion to classification based bargaining in other than craft settings.

49The Board has said numerous times since the release of the Hospital for Sick Children decision that the approach to appropriate bargaining unit determinations will be as discussed in that case, rather than the more inflexible reliance on Board "policies" which was the former practice. In particular, the Board has noted that the concept of "community of interest" which was the focus of many earlier decisions is not particularly helpful in determining whether a proposed unit is appropriate, given that employees will have many different levels of community of interest depending on what aspect of their employment is considered (see for example Active Mold Plastics Ltd., [1994] OLRB Rep. June 617 at paragraph 30).

50At the same time, however, as the Board said in Burns International Security Services Limited, [1994] OLRB Rep. Apr. 347, at paragraph 30:

…..This is not to say that history or existing practices are irrelevant. History can be a useful guideline to what is appropriate because established practices may reveal what works and what does not.

51This comment seems particularly apt with respect to the Board's traditional resistance to classification based units. This preference for "all-employee" units is based not so much on the notion of community of interest, which in fact might favour classification based groupings, but on concerns about fragmentation, which is a concept which has certainly survived the shift in the Board's analytical approach since Hospital for Sick Children.

52Indeed, a number of decisions issued in recent years seem to demonstrate the same resistance to classification based units as the Board has previously articulated. In Ottawa Board of Education, [1994] OLRB Rep. Dec. 1690, the Board rejected a proposed bargaining unit made up of continuing education instructors teaching Adult Basic Education and Adult English as a Second Language courses, stating at paragraph 11 that:

It is the Board's traditional concern about undue fragmentation as well as its general aversion to or at least caution in respect of classification based bargaining (in a non craft setting) which has been and continues to be problematic in relation to the bargaining unit currently sought by the applicant.

53Similarly, the Board said the following in Sifton Properties Limited, [1993] OLRB Rep. Oct. 1010 at paragraph 29:

In many cases, the Board has underlined its reluctance to define bargaining units on the basis of employee classifications or employer departments because of the high potential for fragmentation in bargaining which that creates, as expressed in the following passage from Kidd Creek Mines Ltd., [1986] OLRB Rep. July 736:

For many years the Board has been exceedingly reluctant to define bargaining units on the basis of employee classifications or employer departments, because of the high potential for fragmented bargaining which that creates (see, for example: Cryovac Division, W. R. Grace & Co. of Canada Limited, [1981] OLRB Rep. Nov. 1574; Toronto East General and Orthopaedic Hospital, [1981] OLRB Rep. Nov. 1672; University of Ottawa, [1981] OLRB Rep. Feb. 232; and Westeel-Roscoe Company Limited, [1979] OLRB Rep. Nov. 1125). Even in the newspaper industry where departmental unionization has existed in the extreme (based initially upon craft distinctions which predated the current legislative framework), the Board has indicated that it might be less receptive to a continuation of these entrenched organizing patterns of the past, because computerized technology had revolutionized the structure and content of work in the newspaper business. (See Hamilton Spectator, [1981] OLRB Rep. Aug. 1177). Most recently, in T. Eaton's Company Limited, [1984] OLRB Rep. May 755 and Simpson's Limited, [1984] OLRB Rep. Sept. 1255, the Board reiterated its view that dividing an employer's business into bargaining units based upon departments would not be conducive to orderly collective bargaining. In Eaton's, for example, the Board refused to exclude a specialized department of computer salesmen from a broader "sales" bargaining unit, even though their skills, method of payment, and likely career opportunities were somewhat different from those of the other salesmen.

Concerns about the consequences of fragmentation are not idle speculation, nor have they escaped attention in other jurisdictions. Because of the problems associated with the proliferation of bargaining units in industrial enterprises, the policy in a number of provinces has now shifted away from the recognition of craft units or other similar subdivisions of employees. Following the recommendations of the Woods Task Force in 1968, Parliament amended the Canada Labour Code to delete the provisions (similar to section 6(3)) protecting craft bargaining units, and the circumstances in which an existing unit can be splintered are now closely confined (see Feed-Wright Limited, [1979] 1 Can. LRBR 296; Atomic Energy of Canada Ltd. (1978), 1 Can. LRBR 92; and Cablevision Nationale Ltde (1979), 3 Can. LRBR 267 and cases referred to therein). In British Columbia, craft units can be certified only if they are "otherwise appropriate" for collective bargaining, and the British Columbia Labour Relations Board has shown a marked disinclination to endorse craft bargaining units in a manufacturing context. Even in the construction industry where craft unionism reigns supreme, the Ontario Legislature has intruded. In 1978, the Legislature imposed a system of province-wide bargaining by trade in place of the fragmented system of employer by employer bargaining which existed before. There is now a developing consensus that orderly collective bargaining is not enhanced by fragmenting an employer's work force into a number of competing bargaining units (for a thoughtful analysis of the issues see Paul C. Weiler: Reconcilable Differences: New Directions in Canadian Labour Law, Carswell's 1980 at pp. 151-178). Finally, since this Board may not have the power to later consolidate or rationalize the bargaining structure (as the Federal and B.C. labour boards can do), we should be particularly careful in fashioning the bargaining unit in the first place.

The Board has departed from that approach on the agreement of the parties and in particular situations of historical anomaly, or in light of the history of a particular sector, acceding to requests for classification-specific bargaining units in some cases. As well, where the applicant has been able to show difficulties with access to bargaining, particularly in situations where the respondent was in effect asking the union to organize more than one work site, the Board has balanced the interests of the parties, given particular weight to the organizing interests of the employees and certified unusual bargaining units. However, it has never done so lightly, or without a particular reason to do so.

(See also the comments of the Board, citing these two cases, in Public Service Alliance of Canada, unreported decision dated July 12, 1995, Board file 0793-95-R) [now reported at [1995] OLRB Rep. July 1010].

54It also seems clear that the issues respecting fragmentation will be different where the bargaining unit proposed carves out a portion of the employees at a single workplace, than where there are a number of locations operated by a single employer. Indeed, many of the Board's recent decisions on bargaining unit configuration, including some of those cited by the parties, have been concerned with the organization of single locations of multiple location retailers. In these circumstances, where the locations are reasonably autonomous of each other, and having regard to the issues around impediments to organizing where there are more than one workplace, and in the retail sector generally, the Board has been more inclined to tolerate a certain degree of fragmentation in order to facilitate access to collective bargaining.

55It seems logical, however, that the Board would be more cautious with respect to the potential for fragmentation where there is a single workplace This approach was accepted by the Board in Canadian Tire Petroleum, [1994] OLRB Rep. April 360, at paragraphs 16, 17 and 18, and is referenced in the quote above from Sifton Properties Limited, supra.

56Applying these considerations to the present case, it seems clear that the unit proposed by the applicant is not appropriate.

57While the bargaining unit description sought by the applicant is framed in "all-employee" language, when the exclusions are considered it becomes in fact a unit made up of employees in only two classifications, drivers and driver helpers. Indeed, most of the employees in the applicant's proposed unit, 29 out of 31, are drivers. For this reason, the unit proposed by the applicant runs afoul of the Board's normal aversion to classification or departmental units.

58To the extent that community of interest is considered, it is not particularly helpful to either party. A review of the facts summarized above shows that, while the drivers and driver helpers clearly share a community of interest, they also share one with the warehouse staff. These employees have much more in common than not, and the differences highlighted by the union could easily be accommodated in the process of collective bargaining. Indeed, as the central distinction between the employees in the two units proposed is in the fact of driving being performed, and all that goes with that in terms of skills, job duties, remuneration and benefits, scheduling, etc., it is arguable that the driver helpers and the warehouse staff have a greater community of interest than either share with the drivers.

59It is also helpful to consider the combination of drivers and warehouse employees that is proposed by the responding party in the context of the Board's usual approach to including drivers in production units. Here, the whole focus of the operations of PFS Canada is on the distribution of goods, rather than on production, so all the employees are engaged in the same endeavour to a much greater degree than drivers would generally be connected to the production of goods.

60While drivers and driver helpers spend much of their time out of the workplace, they are assigned out of and report back to a single location, so the factors relating to multiple location employers do not apply here. In addition, PFS Canada employs a relatively small workforce, which may exacerbate the effects of fragmentation.

61As well, there is no claim in the present case, and neither would it be plausible to assert, that there were or are impediments to organizing the warehouse employees at PFS Canada.

62Finally, we are satisfied that the classic problems caused by fragmentation in a single workplace are potentially serious problems here, and not mere inconvenience. These problems include the increased likelihood of strikes and other difficulties relating to work stoppages including the identification of bargaining unit work, the creation of seniority enclaves, the triggering of jurisdictional disputes, and the expense of administering several collective agreements.

63For all of these reasons, we have concluded that the bargaining unit proposed by the applicant is not appropriate for collective bargaining purposes.

64The unit proposed by the responding party would be an appropriate one. Having regard to our comments above concerning community of interest, we reject the argument of the applicant that the larger group of drivers, driver helpers, and warehouse employees would not be viable.

65It appears that the applicant had at the time of the application for certification sufficient support in the larger unit to merit the ordering of a vote pursuant to section 8(2) of the Act.

66Given that the larger unit was not the unit applied for, however, we will not direct the ordering of a vote in that unit unless we are advised by the applicant that that is its wish within 30 days of the date of this decision.

67If no such request is forthcoming, the application will be dismissed.