[1995] OLRB Rep. June 903

3693-94-R; 3812-94-R; 3814-94-R United Food and Commercial Workers International Local 175, Applicant v. Zellers Inc., Responding Party

BEFORE: S. Liang, Vice-Chair.

APPEARANCES: Kelvin Kucey, John Fuller and Michael Duden for the applicant; Wallace M. Kenny, Dolores M. Barbini, Neil Shalapata, Linda Adam and Rick Hibbard for the responding party.

DECISION OF THE BOARD; June 16, 1995

1. This is an application for combination for bargaining units in which the Board has issued a prior decision dated April 28, 1995. In that decision, the Board ordered the combination of the bargaining units to which the application pertained, but reserved on the issue of the effective date of its order.

2. The parties have been unable to resolve the issue of the effective date of the order, and so appeared before me on June 13th to provide their submissions on this issue.

3. It is the position of the employer that the Board ought to order the combination of bargaining units effective on the date that every unit has entered into a collective agreement, whenever that may be. The employer's position continues to be that the Board is without jurisdiction to combine a bargaining unit for which notice to bargain has been given, with another bargaining unit.

4. It is the primary position of the union that the Board ought to combine the bargaining units effective immediately. The union presented an alternative position, based on a phased-in combination of some units with others combined immediately. It is unnecessary for me to set this position out in any detail since I have in any event accepted the union's primary position.

5. Since the last hearing in this matter and my decision of April 28th, certain additional events have occurred. Certificates have been issued by the Board in relation to the Lawrence Square and High Park stores. Also, the Board has issued a certificate relating to an eleventh store located in Barrie, which the parties have agreed should form part of this combination application. Notices to bargain have been issued for these three stores although, by the time of this hearing, no meetings have been held.

6. Since the last hearing in this matter, the parties have ratified collective agreements relating to four stores, Niagara Falls, Tecumseh (Windsor), Cornwall and Dixie & Dundas. Three stores, Golden Mile, Dufferin & Dupont (Galleria) and Woodside Square reached strike/lockout positions on April 3rd, 10th and 24th respectively. The parties have met in mediation in April but have not met since the date of the Board's prior decision. There has been no strike or lockout with respect to any of these three stores, nor have there been any applications for arbitration of a first contract. In a sense, it appears that bargaining with respect to these three stores has been "on hold" since the earlier decision.

7. In sum, as of the date of this hearing, five stores are covered by a current collective agreement, three stores have reached strike/lockout position but have not bargained since April, and three stores have yet to commence bargaining for a first collective agreement.

8. As I indicated in my prior decision, it was with a view to minimizing the transitional complexities of the situation before me that I decided to reserve on the issue of the effective date of the order combining the bargaining units. To the extent that the union's application to combine the units was brought at a relatively late stage of bargaining with respect to some of the units, this was also a factor, and the deferral of the decision on the effective date of the order allowed the parties to continue their collective bargaining for these units. It also gave the parties an opportunity to put their minds to the issue of timing of the order in the context of their ongoing relations and to arrive at their own solution if possible.

9. At the prior hearing, the employer resisted the combination of these units partly on the basis that the parties ought to continue to be entitled to resort to the mechanisms of strike/lockout and first contract arbitration for resolving their outstanding collective bargaining disputes. The main difference between the present case and prior cases where the Board or the parties by agreement have combined bargaining units is the fact that some of these units had spent a considerable time at separate collective bargaining tables before the application to combine was made. Also, at the time of the earlier hearing in this matter, one unit was on strike. Today, there are no ongoing strikes or lockouts and no first contract applications have been made. Although the effect of a combination of units here will be to remove the individual ability of the three units which are otherwise in a strike or lockout position of going on strike or lockout, or of applying for first contract arbitration, no party has actually initiated any of these mechanisms for resolving their disputes despite being in a position for some time to do so.

10. Given my prior decision, whether or not the parties continue to engage in separate collective bargaining with respect to the Golden Mile, Dufferin & Dupont (Galleria) and Woodside Square stores, or begin the process of bargaining separately with respect to the newly-certified units, the conclusion of terms and conditions of employment for the employees at those stores will be reached against the framework of an eventual combined bargaining unit. In all of these circumstances, it does not appear to me that there is any reason to delay the combination of these units further. Essentially, there is no reason to think that deferring the effective date of the combination of these units will serve to eliminate any implementation complexities, nor is it obvious that deferring will be less disruptive to the parties' ongoing relationship than crystallizing the matter now. As indicated in the prior decision, there will be transitional issues virtually any time a direction to combine bargaining units is made. The parties and the Board may have to grapple with how to situate the combined unit in a common legal regime. Ideally, such a transition will occur at a time when all of the units which are sought to be combined are at a substantially similar stage of the collective bargaining process. But this will not always be the case and it would not be reasonable nor consistent with the thrust of section 7 to limit combinations of bargaining units to such a situation. I therefore order that effective forthwith, the bargaining units to which these applications relate be combined. Having regard to the agreement of the parties with respect to the description of the combined unit, the union's bargaining rights now pertain to:

all employees of Zellers Inc. employed at the following stores:

• City of Cornwall
• 3100 Dixie Road in the City of Mississauga
• 6777 Morrison Street in the Municipality of Niagara Falls
• Oshawa Centre; 419 King Street West in the Municipality of Oshawa
• 1571 Sandhurst Circle in the City of Scarborough
• 7676 Tecumseh Road in the Municipality of Windsor
• 400 Bayfield Street in the City of Baffle
• 1880 Eglinton Avenue East
• 1245 Dupont Street
• 2290 Dundas Street West
• 700 Lawrence Avenue West in the Municipality of Metropolitan Toronto,

save and except Supervisors/Group Merchandisers, persons above the rank of Supervisor/Group Merchandiser, Loss Prevention Officers, Personnel Clerks, Pharmacy Managers, Graduate and Undergraduate Pharmacists, including Pharmacy Interns and Apprentice Pharmacists and students employed in a co-operative work program.

11. The Board notes for purposes of clarity that persons employed in Lottery Booths, Club Z Travel, Photography Studios, Colortrons, Optical Departments, Hair Salons, Wine Stores, Ticket Kiosks and Pharmacies are not employed by Zellers Inc. and are therefore not included in the bargaining unit.

12. Pursuant to section 7(5) of the Act, the Board remains seized to deal with any outstanding issues arising out of the combination of these units or the implementation of this order which the parties are unable to resolve. In this respect, it is worth noting the views expressed by the Board in Olympia & York Developments Limited, [1994] OLRB Rep. May 583, with respect to the parties' obligation to negotiate once an order combining bargaining units has been made:

22. In all of the cases under section 7, the presumed starting point has been a process of bargaining. Before considering the exercise of its discretion under section 7(5), the Board has required the parties to explore their own solutions for whatever transitional difficulties might arise from the combination of bargaining units. That is the view that we expressed in the instant case, and it is consistent with the position taken in later cases.

23. It also seems to work. Since January 1993, the Board has made quite a number of consolidation orders (mostly on agreement), and not one of them has come back to the Board. We do not know the particular circumstances of these files, but experience seems to suggest that if the parties put their minds to it, they will find that the transitional problems are not as intractable as the applicant here suggests they are.

24. What is the content of the bargaining that should precede any request for an order under section 7(5)? We do not think that it is either desirable or possible to be too definitive about that. But at the very least, it should encompass the kind of reasonable efforts and full, rational discussion that have always been part of the "section 15" duty to bargain.

25. This is not a particularly novel or onerous standard. It is one that has always been applied to "bargaining" under the Act, even in contexts where interest arbitration is prescribed to resolve any resulting impasse (as in hospitals, for example). It is also worth mentioning, that it is the kind of bargaining exercise in which the parties here would have had to engage, even if the Board had not combined the two bargaining units.

26. If the Board had dismissed or deferred the combination application, the parties would have had to bargain in respect of the newly certified group under section 15, and could not have ignored the existence of the recently-negotiated collective agreement applying to employees working in the same complex. They would have had to negotiate a collective agreement that takes into account the presence of a contiguous employee grouping in the same workplace, and if they had been unable to do so on their own, they might have moved into a process of "first contract arbitration" - which likewise would have had to take into account the relationship of the newly-certified group to the existing one. In other words, if no combination order had been made, the parties would have had to explore, through bargaining, a joint resolution of their labour relations concerns - including the relationship of the new group to the existing one. And, in the Board's view, a similar bargaining process should at least be the starting point for the exercise of the Board's discretion under section 7(5).