United Food & Commercial Workers, Local 206 v. Lionhead Golf & Country Club, 1996 CanLII 11210

[1996] OLRB REP. MARCH/APRIL 271

2768-95-R United Food & Commercial Workers, Local 206 Chartered by the United Food and Commercial Workers International Union, CLC, AFL-CIO, Applicant v. Lionhead Golf & Country Club, Division of Kaneff Properties Lim­ited, Responding Party

BEFORE: Gail Misra, Vice-Chair, and Board Members R. M. Sloan and H. Peacock.

APPEARANCES: Pierre Sadik, Frank Kelly, Diana Garvie, Michelle Wisjman and Kim Paterson for the applicant; G. F. Luborsky, H. W. Tseung, K. J. Soden, C. N. Turner and H. L. Fernandes for the responding party.

DECISION OF VICE-CHAIR GAIL MISRA AND BOARD MEMBER R. M. SLOAN; April 10, 1996

1On March 5, 1996 the Board issued a "bottom-li e" decision for Board File No. 2768-

95-R, an application for certification. These are the reasons for that decision.

2The applicant (the "union") is seeking a bargaining unit comprised of the food and bev­erage staff of the golf club, and described as follows:

All employees at the Lionhead Golf and Country Club, Mississauga Road, Brampton, Ontario, working as Waiters/Waitresses, Kitchen Help, Dishwashers, Bartenders and Maintenance Help, save and except Sous Chef, Assistant Dining/Beverage Managers, and persons above the rank of Assistant Dining/Beverage Manager, Sales Staff, Office and Clerical Staff.

3The responding party (the "employer" or "Lionhead") suggests the union's proposed bargaining unit is not an appropriate one, and suggests as appropriate an "all employee" unit of the following bargaining unit description and comprised of the food and beverage staff, the pro shop staff and the grounds maintenance employees:

All employees of the respondent employed at the Lionhead Golf & Country Club in the City of Brampton, save and except Supervisors and persons above the rank of Supervisor, Sous Chefs, Executive Sous Chef and Executive Chef, Sales Staff, and Office and Clerical Staff.

Clarity Note:: Supervisors and persons above the rank of Supervisor includes all Managers, Assistant Managers, Assistant Head Pro and Golf Pro Superintendent.

4In support of its position the employer called three witnesses to give evidence. The union called one witness. In addition to the testimony, the Board has before it one exhibit entered during the course of the proceeding. In making the findings and reaching the conclusions set forth in this decision, the Board has duly considered all of that oral and documentary evidence, the sub­missions of counsel, and the usual factors germane to assessing evidentiary credibility and reliabil­ity, including the firmness and clarity of the witnesses' respective memories, their ability to recall matters and to resist the influence of self-interest when giving their evidence, the internal and external consistency of their evidence, and their demeanour while testifying. The Board has also assessed what is most probable in the circumstances of the case, and considered the inferences which may reasonably be drawn from the totality of the evidence.

5In reaching our decision, we have considered all of the evidence~ the submissions, and the jurisprudence relied upon by the parties. For the reasons set out below, the majority concluded that the bargaining unit proposed by the applicant is not appropriate for collective bargaining pur­poses.

THE FACTS

6Lionhead Golf and Country Club is a public golf and country club. It is one of three golf clubs owned by Kaneff Properties Limited ("Kane ff'), which together form a Golf Course Divi­sion of that company. As a public club, in contrast to a private club which is membership sup­ported, Lionhead takes reservations from the public who wish to play golf. It also markets its facili­ties for golf tournaments, parties, and weddings. The club provides valet parking for all golfers, and there are two skill levels of eighteen-hole golf courses available. The only membership compo­nent of the operation is that range memberships are available for use of the driving range. The golf course is operational from around March to December, weather permitting.

7Mr. Henry Tseung is the General Manager and Comptroller of the Golf Course Divi­sion of Kaneff Properties Limited. He was hired during the last golf season and began to work on July 21, 1995. He oversees the operation of the Lionhead Golf and Country Club, the Streetsville Glen Golf Club, and the Carlysle Golf and Country Club.

8Lionhead is the headquarters for the Golf Club Division, and Mr. Tseung is based there. All of the departments of Lionhead are answerable to Mr. Tseung in his capacity as General Manager. While there has been some movement of management employees between the golf courses, no non-management employees have moved to any of the other golf courses from their home golf course. It was in August and September that Mr. Tseung began to plan for the restructu­ring of Lionhead. After some consultation with various managers, Mr. Tseung has changed the chain of command and is in the process of putting in place a new management structure for Lion-head. In the 1995 season the following positions were responsible to the General Manager: The superintendent (in charge of the greens operations), the food and beverage manager, the director of golf, and the accounting manager. Following his taking over as the General Manager in July, 1995, the food and beverage manager, the host golf pro and the director of golf left their employ­ment at Lionhead. For the 1996 season Mr. Tseung has changed the management structure so that the director of golf position is eliminated, and instead, in addition to the others already reporting to him, a new director of sales, a head pro, and a director of operations will be reporting to him. Lionhead is in the process of filling these latter new positions.

9Within the various departments there appear to have been a number of changes made in reporting structures. The superintendent, responsible for the greens operations, had an assis­tant, and maintenance and greens staff reporting to him. For the 1996 season the superintendent will also have responsibility for the marshals (people who are out on the golf course ensuring that the golfers are moving at a measured pace through the course and that back-ups are not forming). The marshals used to be the responsibility of the director of golf.

10The food and beverage manager, in 1995, was responsible for the chef (to whom the sous chef and kitchen staff reported), the night manager, and two assistant food and beverage managers. In the 1996 season the food and beverage manager will also be responsible for the direc­tor of catering (who in turn will be responsible for the organization of tournaments, other catering, reservations, and card memberships). The night manager position appears to have been discontin­ued.

11In 1995 the director of golf was responsible for the host pro, the assistant pros, the mar­shals, the pro shop, the cart maintenance person, valet services, lockers, servicing tournaments, and teaching. In 1996 a director of operations will be responsible for an operations manager (who will have control over valet services and the driving range), a pro shop manager (responsible also for the gift shop), and a maintenance manager (responsible for the carts and cleaning).

12The accounting manager's responsibilities have remained unchanged. She is responsible for accounts receivable, accounts payable, and purchasing.

13The head pro, with the assistance of assistant pros, will be responsible in 1996 for golf lessons, servicing tournaments, and public relations.

14The director of sales will be responsible for marketing the services of Lionhead and the other two golf clubs owned by Kaneff.

15Mr. Tseung's rationale for the sweeping changes is economic. The golf course division of Kaneff was not breaking even before Mr. Tseung's hiring. He was hired to turn the operations around and to attempt, at the least, to make the division break even. To that end Mr. Tseung's plans are geared to better marketing the three golf courses to ensure they increase their market share, to creating greater efficiencies within the golf clubs themselves, and to maximizing each department's income potential.

16As general manager Mr. Tseung created the 1996 budget himself. He allocated to each department what he believes its revenues and expenditures should be, and he cut budgets quite substantially. It appears these cuts were made without consultation with the department managers.

A copy of the budget was given to each department manager, and each manager is responsible for

implementing his/her own department budget.

17The hiring and termination of employees is delegated to the department managers, however, Mr. Tseung approves all such decisions. Without his authorization, no employee can be put on the payroll or taken off it. Mr. Tseung also authorizes any salary or hourly wage increases for employees. All management staff are on salaries, while the rest of the employees are paid hourly, as most are seasonal employees. Kaneff provides the golf clubs with a centralized payroll service as they do not have individual human resources departments. All employee records are maintained at the Kaneff head office. Department managers collect and total the hourly employ­ees' time cards, initial each one, and submit the total of the hours worked to the receptionist. Mr. Tseung signs all payroll sheets before they go to the Kaneff head office for processing. Pay cheques are returned to Lionhead where they are put into envelopes and bundled by department. The department manager is given his/her respective cheques to distribute to the employees.

18The hourly employees are paid at various rates of pay. They all receive any benefits required by statute, and are entitled to play golf in the off hours. There is no form of seniority for any purpose at Lionhead. If employees were acceptable the season before, they are recalled if they are interested in returning.

19Invoices for the Lionhead operation are paid from the Lionhead accounting depart­ment. Department managers must authorize each expenditure, get a purchase order from the accounting depai-tment, check and initial the bill of lading or invoice when the purchase arrives, attach the purchase order, and then each invoice is authorized by Mr. Tseung for payment. Mr. Tseung has exclusive signing authority for the operation, so he signs all cheques for goods and ser­vices rendered to Lionhead. Since he draws up the budget, he also authorizes any capital expendi­tures and any significant purchase of a service or equipment for the golf club. Department manag­ers cannot, of their own accord, make any major expenditure commitments.

20Mr. Paul Dodson gave evidence for the employer. He has been the superintendent of the grounds operation of Lionhead since March 1, 1995. As such, he is responsible for the golf course, the landscaping outside all of the buildings, and the parking lots. At the height of the 1995 season there were 43 employees in his department, but in the off season only Mr. Dodson and his department mechanic remain working. At the beginning of the 1995 season Mr. Dodson hired all his own staff. That hiring was done before Mr. Tseung began as the general manager in July, 1995, and there is no evidence to suggest Mr. Dodson would be able to hire employees on his own voli­tion in the coming season, without first clearing the matter with Mr. Tseung. He has not had occa­sion to terminate any person's employment, but layoffs occurred at the end of the season from his department. Mr. Dodson did discipline his department employees with verbal reprimands. While Mr. Dodson indicated he could not hire or terminate the employment of persons from other departments, he did give an example of having verbally reprimanded two food and beverage cart workers for loitering and chatting on the golf course.

21The greens employees generally work from 5:30 a.m. to 2:30 p.m., with a skeleton staff on duty between 2 and 8 p.m., from the middle of May to August. Mr. Dodson schedules his department employees on a monthly calendar. He does so in consultation with the head pro so that he can arrange the schedule around tournament dates. His assistant also does a daily schedule to indicate the tasks to be completed. If the food and beverage department has a wedding booked, the greens department is informed so that flowers may be arranged and so that watering of the plants is done in order not to disrupt the wedding arrangements. Due to the seasonal nature of the work there is very little vacation scheduling to be done. Nonetheless, all time off must be autho­rized by Mr. Dodson or his assistant. In the event of illness or other emergencies, Mr. Dodson may accommodate the absence or ask another of his employees who has a day off to fill in.

22In addition to maintaining the golf course, the greens staff maintain the planters on the terrace portion of the dining area. After tournaments they bring in chairs and tables which would have been set up by food and beverage staff on the greens. There are golf ball washers at various locations from which the greens staff collect dirty towels and deliver them to food and beverage staff for laundering. During the winter, the remaining greens staff do snow removal and assist food and beverage staff in putting up lights and Christmas decorations.

23In September 1995, after the departure of the director of golf and when some of the restructuring began, Mr. Dodson became responsible for the eight marshals who maintain the flow of golfers on the course. The marshals, using walkie-talkies, also direct the four food and beverage cart operators to locations where golfers may want snacks or beverages.

24In the course of his duties Mr. Dodson must coordinate with the manager of food and beverage services and the pro-shop. The coordination arises in particular when there are tourna­ments or weddings since the greens department is responsible for fertilizing and watering the golf course, ensuring that the golf course looks its best, and that a gazebo area and the terrace of the clubhouse have a good show of flowers. The management team, comprised of the general man­ager, the director of golf, the food and beverage manager, the chef, the head golf pro, the superin­tendent, and the accounting manager met for a weekly meeting at the start of the 1995 season. However, once the season was in full swing, meetings were only held on an "as needed" basis to coordinate the arrangements for a particular golf tournament or wedding.

25There were some examples of shared resources between the departments. The food and beverage department buys soap and other cleaning supplies for itself and for the greens depart­ment. As needed, the greens department asks for such supplies. There is no allocation of these costs to the greens department budget from the food and beverage budget. If necessary, the greens department uses the ice machine in the food and beverage department to fill water coolers on the golf course. The food and beverage carts use the ice machine in the greens building to fill their carts with ice to keep the snacks and beverages cold. In 1995 the greens department gardener was asked to get quotes for the removal of all silk plants inside the clubhouse and their replacement with live plants.

26The maintenance person, Mr. Joe Da Silva, who falls within the food and beverage manager's area of responsibility, also works for Mr. Dodson when he repairs irrigation pumps, turf maintenance equipment, and does some machining for the greens department using the greens department machine tools. Mr. Da Silva also repairs and maintains the golf carts, which are a responsibility of the head pro and are part of the pro shop operation. He works full-time year round.

27The pro shop is the area to which golfers are brought by the valet service when they arrive at the club. Golfers register and pay here, and are then directed to the lockers where they can change. The locker area is cleaned, stocked, and staffed by two housepersons who are food and beverage department employees. Golfers who arrive very early in the morning are provided with a complimentary breakfast buffet. Hence, the pro shop informs the food and beverage depart­ment, the day before, how many persons may be expected for breakfast. Golfers are then assigned a golf cart in which they proceed out for their rounds of golf. The pro shop ensures that golfers are scheduled so that the maximum number of golfers may be out at any desired time. In the event of a tournament, the pro shop also needs to coordinate with the food and beverage department to ensure that the golfers arrive back at the clubhouse in a timely fashion so that they can attend at a planned luncheon or banquet. Returning golfers may use the locker room facilities where there are showers and towels provided, before proceeding to the lounge/bar area on the upper level. The head pro and the five assistant pros give golf lessons which are arranged through the pro shop. For tournaments, the pro shop staff or the housepersons set up registration tables outside the pro shop so that a group can organize its own registration. After rain storms pro shop staff may be required to assist greens employees in draining water off the greens so that golfers can resume golfing as soon as possible.

28The pro shop staff start work at between 5 and 6 a.m. normally, and earlier when there is a tournament. They work until the last golfer has finished playing. Some of the food and bever­age staff, in particular the kitchen and serving staff, also begin to work early as golfers may be scheduled to arrive for breakfast. The food and beverage employees work until after dinner and banquets are over, usually until 10 or 11 p.m. Bartenders work until 1 a.m.

29The food and beverage operation of Lionhead is managed by Mr. Louis Fernandes, who has been the food and beverage manager since October 13, 1995. Mr. Fernandes began employment at Lionhead as an assistant food and beverage manager one month earlier. He is responsible for the kitchen in the clubhouse, the Lion's Den (a small kitchen and snack bar at the ninth hole), the food and beverage carts which roam the golf course serving golfers while they are out on the course, the dining room and terrace, the bar, and the banquet rooms. In addition, he is responsible for the director of catering. Mr. Fernandes indicated the ballroom at the clubhouse can hold 400 persons, and there can be 288 persons golfing at any one time, so his staff can cater to the needs of all persons in the dining room and/or in the banquet facilities. The chef is allocated his own budget out of the food and beverage budget. Mr. Fernandes has hired staff, but only with the authorization of Mr. Tseung, the general manager. He has not had to terminate any person's employment, but would have to get authority to do so from Mr. Tseung. Mr. Fernandes has ver­bally disciplined employees for their performance. Scheduling is a responsibility of the food and beverage manager. He receives written requests for time off, and calls in persons to work if there are unforeseen absences of employees. The number of employees Mr. Fernandes schedules is premised on the number of golfers who will be at the Lionhead in any given week of the season, or in the off season, on the number of events to be held in the clubhouse.

30While no evidence was led of the number of employees in the food and beverage department during the height of the golf season, in the middle of October 1995 there were approximately 55 persons still employed. It appears that during the height of the season students and oth­ers are hired to augment the more regular complement of food and beverage staff.

31The housepersons, under the authority of the food and beverage manager, do mainte­nance in the clubhouse and at the Lion's Den, serve at the Lion's Den, do the set up of tables and chairs on the greens during tournaments, clean all areas including the locker areas and all bath­rooms, work in the receiving area taking in liquor, beer, linens, and all supplies, pick up flowers at the florist, and do the laundering of towels, tea towels, and table skirts. Housepersons, sometimes with the assistance of the pro shop staff, prepare signage for functions at the golf course. During the winter one or two of the housepersons work doing the cleaning and maintenance. They also clear snow off the front clubhouse steps and decorate the clubhouse with lights and Christmas dec­orations.

32A food and beverage department employee books special events and tournaments. She works out with the client what time the tee off should be and when the banquet or luncheon should be arranged. The tee off times and the number of golfers is then turned over to the pro shop to log onto their scheduling computer. The tee off times are later passed on to the greens department so that its staff can be scheduled accordingly. During the winter the schedule of upcoming events is given to the greens department weekly so that Mr. Dodson can ensure snow clearing is done in advance of any function. Of the food and beverage revenues, 85 per cent is derived from the golf tournaments and general golfing. The rest of the revenue comes from catering weddings, other special events, and Christmas parties. It appears that the revenues of the golf club are dependent on a coordination of the various services provided by the club.

33The pro shop staff and the food and beverage staff work together to coordinate lun­cheon and banquet times. The pro shop informs the food and beverage department of whether the golfers are going to be on time or not, so that the kitchen knows whether to speed up or slow down its food preparation. The pro shop also keeps them informed of how many golfers are still out on the course so that the food and beverage department can determine how many of its staff may be sent home. If the Lion's Den is busy, the pro shop staff inform the kitchen so that more staff or food may be sent down to the Lion's Den. Food and beverage carts are hosed down and cleaned every day by the pro shop staff.

34All hourly employees working in the clubhouse or the Lion's Den punch in at the one employee entrance to the clubhouse. Their time cards are kept on one wall, although they are arranged by department. There are male and female staff locker rooms for the clubhouse employ­ees. The greens department employees work out of a separate building where another punch clock is located for their exclusive use. There are a few examples of employees having transferred between departments. In April 1995 one food and beverage server asked, and was permitted, to work in the greens department. In the Fall of 1995 two pro shop staff asked to work in the food and beverage department and were permitted to do so.

35Although all of the employer's witnesses gave evidence about the uniforms worn by the staff, we have preferred the evidence of Mr. Dodson as he appeared to have the most clear recol­lection of any of the three witnesses. The greens staff wear a blue grey t-shirt or sweatshirt, dark blue pants, and helmets. Their shirts bear an emblem of a lion and a weed eater. The food and beverage servers wear white shirts, black skirts or pants, and ties or bow ties. Those who work on the food and beverage carts, the housepersons, those who stage the golf carts and the Lion's Den staff wear dark blue pants tucked into red socks, and blue grey t-shirts and sweatshirts. Their shirts also bear an emblem, however no one could recall what it was. The pro shop employees wear golf shirts and sweatshirts of beige and blue grey colours, and pants tucked into socks, as do the other employees. The emblem on their shirts is a lion and a golf club. The kitchen staff wear white hats, white jackets, and chequered pants. All employees wear name identification badges.

36Mr. Tseung's concern about the applicant's proposed bargaining unit comprised of only the food and beverage workers is that it would divide what is a functionally integrated operation. If the food and beverage workers are granted a separate bargaining unit, the employer is concerned that the pro shop and the greens department could also end up being two additional separate bar­gaining units with a different union representing each. The resulting differing collective agreements and different terms and conditions of employment would be difficult for the employer to manage. In addition, since Mr. Tseung is presently implementing changes in the operation, there was con­cern expressed about how the employer would be able to make the changes it sees as necessary to become profitable if there are various groups of employees each covered by a separate collective agreement.

37Diana Garvie, a food and beverage server, gave evidence on behalf of the union. She has worked at Lionhead since it opened five seasons ago. She indicated she had spoken to two per­sons from the pro shop when the union organizing drive was going on to ascertain whether there was any interest among pro shop employees in joining the union. One of the pro shop employees said he would check with the others, and he later told Ms. Garvie that there was no interest in organizing. The greens staff also showed no inclination to participate in the organizing drive.

38While Ms. Garvie gave evidence about what she perceived as the differences between the food and beverage staff and the pro shop and greens employees, her evidence was premised solely on her impressions. There was no basis established for her impressions, and we decline to rely on that portion of her testimony.

ARGUMENTS

39The employer argued that the union is seeking a bargaining unit comprised of one department of an enterprise made up of between four and six departments. Relying on the evi­dence of how integrated some of the areas of work are at Lionhead, the employer argued it would be extremely difficult to both manage and restructure the golf club if one department was frozen into a bargaining unit while the rest of the operation was not. The food and beverage operation is not an island unto itself, having defined skills, its own clientele, and being operationally separate from the rest of Lionhead, but rather is only one part of the golf service provided by the club. The employer suggested there was no evidence before the Board of a separate and distinct community of interest between the food and beverage workers which set them apart from the other employees of the golf club. It was posited that there was nothing exceptional about this department for the Board to find a departmental bargaining unit to be appropriate in the circumstances of this case.

40The employer suggested that the resulting fragmentation would cause serious labour relations problems for the employer, who may be faced with the prospect of having three or more bargaining agents to bargain with if each department could organize separately, could face more than one work stoppage if agreements cannot be reached, and may have to address jurisdictional disputes because of the mixed nature of some of the work performed by employees of different departments. There would be a reduction in flexibility, an immediate concern since restructuring is presently going on. The viability of a departmental bargaining unit was questioned since the food and beverage employees may be easily replaced during a strike, and since no other employees would be on strike, the golf club could continue to function. The employer argued there are com­pelling labour relations realities in this case which militate against the bargaining unit the union is seeking.

41The union argued that the Board should find that the food and beverage staff have a sufficient community of interest, that their bargaining together would not cause undue fragmenta­tion in the employer's labour relations, and that these workers would not otherwise be able to bar­gain collectively. The union stressed the Board does not need to consider whether the union is seeking the appropriate bargaining unit, but only whether it is seeking an appropriate bargaining unit which can be viable, and which will not result in serious labour relations problems for the employer. An added consideration is whether, if the Board does not find the bargaining unit appropriate, it would be denying that group of employees access to collective bargaining.

42It was suggested by the applicant that fragmentation need not occur since the food and beverage employees could form one bargaining unit and the pro shop and greens employees could form another viable bargaining unit.

DECISION

43In Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, the Board had occasion to decide an issue regarding an appropriate bargaining unit in the hospital sector. Following a review of some of the pertinent jurisprudence, the Board stated as follows in paragraph 17:

17. ... While the requisites for effective collective bargaining cannot always be defined with cer­tainty, may necessitate a balance of competing collective bargaining values, and may, in any event, turn on factors beyond the Board's control, the discretion to frame the "appropriate" bargaining unit during the initial organizing phase provides the Board with an opportunity (al­beit perhaps a limited one) to avoid subsequent labour relations problems. Now, of course, this is not necessarily the same thing as minimizing administrative problems for the employer or organizing problems for the union. The structures and policies that promote a maximization of the employer's business interests are not those that will necessarily describe a viable bargaining unit, or the only viable bargaining unit - particularly since those interests may include a desire to avoid collective bargaining altogether, or limit its effectiveness. The employer's administrative structures are relevant in determining the bargaining unit, but they are not necessarily to be taken as the conclusive blue print in deciding what is appropriate. Nor is it a matter of simply giving an applicant union what it wants. It is, as we have noted, a matter of balancing competing considerations, including such factors as: whether the employees have a community of interest having regard to the nature of the work performed, the conditions of employment, and their skills; the employer's administrative structures; the geographic circumstances; the employees' functional coherence, or interdependence or interchange with other employees; the centraliza­tion of management authority; the economic advantages to the employer of one unit versus another; the source of work; the right of employees to a measure of self-determination; the degree of employee organization and whether a proposed unit would impede such organization; any likely adverse effects to the parties and the public that might flow from a proposed unit, or from fragmentation of employees into several units, and so on.

44The Board went on to discuss the potential problems resulting from an unduly frag­mented bargaining structure. At paragraph 20 the Board stated:

20. In Kidd Creek (and Stratford General Hospital, to a lesser extent), it was suggested that an inappropriate or unduly fragmented bargaining structure could contribute to subsequent labour-management problems, tension within and between bargaining units, and an escalation of indus­trial conflict. Such outcomes are undesirable. If these problems can be avoided by more careful attention to the determination of the bargaining unit "at the front end", without prejudicing other collective bargaining or statutory objectives, then that attention is obviously warranted. On the other hand, if the potential for collective bargaining difficulties is less obvious or serious, or if the possible problems are less certainly connected with one bargaining unit definition as opposed to another, or if similar problems are likely to arise wherever the line is drawn, then the precise perimeter of the bargaining unit may be less important from a policy point of view.

45In paragraph 23 the Board expressed the question to be answered as being a relatively simple one:

[D]oes 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.

46Nine years after the above-noted case, The Governing Council of the Salvation Army in Canada and Bermuda, [1994] OLRB Rep. Jan. 85, issued. In that certification application the union was seeking one unit comprised of less than twenty four employees who worked at various locations of the employer. The employer argued it would be appropriate to have four separate bar­gaining units for these individuals. The Board found it made no collective bargaining or labour relations sense to subdivide the employees so as to create separate little islands of collective bar­gaining, each with its own collective agreement, seniority system, ability to strike, and so on. The tension between allowing bargaining structures which facilitate organizing, and bargaining struc­tures which are more likely to be stable and effective in the long term, was recognized. The Board stated that there is no single "appropriate" bargaining unit, but rather degrees of appropriateness, and a trade union is not required to seek to represent the most comprehensive or appropriate unit, so long as the unit it seeks does not generate serious labour relations difficulties for the employer.

Notwithstanding the Board's apparent flexibility on this matter, the following comments were made with respect to the Board's concern about fragmentation:

21. 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.

47Our review of the cases provided to us by the union indicates that in all except two of those cases the Board was addressing a certification application for one or more locations of a multi-location employer. In the case before us it is not a question of the employer having more than one location, but rather whether it is appropriate to carve out one department of an enter­prise where all of the employees of that enterprise work at one location. The union relied on Board of Governors of Ryerson Polytechnical Institute, [1984] OLRB Rep. Feb. 371, to argue that the Board has recognized there must be a balance struck between allowing workers access to collective bargaining, and an interest in more comprehensive bargaining units which may be more viable in the long term.

48In the Board of Governors of Ryerson case the union had applied to represent a bar­gaining unit composed of employees engaged in office, clerical and technical work~ and those working in food services. The employer argued these employees should be separated into three bargaining units. The Board accepted the union's proposed bargaining unit as an appropriate one and declined to create a separate unit for a department. It reiterated the policy considerations which favour reducing fragmentation, and in particular noted that a proliferation of bargaining units increases the risk of work stoppages, creates enclaves which impede the mobility of employ­ees, and spawns jurisdictional disputes. A fragmented bargaining structure requires an employer to expend time and trouble negotiating and administering several collective agreements, an unneces­sary duplication of effort. At paragraph 20 the Board noted that "bargaining units consisting of employees in one particular classification or department are not generally considered by the Board to be appropriate because such small units entail excessive fragmentation".

49The responding party relied on a number of cases to support the proposition that the Board should not carve out one department and find it to be an appropriate bargaining unit. In Westeel-Rosco Company Limited, [1979] OLRB Rep. Nov. 1125, the union was seeking to repre­sent the employees of the Printing and Advertising department of a location which housed 14 departments of that employer. The Board did not find the applicant's proposed bargaining unit to be appropriate, and in the course of the decision noted that it was only in exceptional circum­stances that the Board had found a separate department to be an appropriate bargaining unit. In those cases the Board had been satisfied that the department in question was a separate and dis­tinct group, functioning as an independent entity. The factors the Board considered were the func­tional independence of the entity, its geographic separation, employees' authority to deal directly with the customers, differences in working hours, absence of evidence of interchange, preparation and administration of a separate budget, and ultimate authority to hire, promote, transfer, and dis­charge employees within that entity. (See also Ex-Cello-O -Corporation of Canada Limited, [1974] OLRB Rep. Aug. 543, and The Governors of the University of Toronto, [1969] OLRB Rep. Feb. 1149).

50Even in the retail sector, where the Board has found single location units to be appropriate, the Board has reiterated its view that dividing an enterprise into departmental bargaining units would not be conducive to orderly collective bargaining, notwithstanding that the department may be a specialized one (see T. Eaton's Company Limited, [1984] OLRB Rep. May 755 and Simpson's Limited, [1984] OLRB Rep. Sept. 1255).

51More recently, in Sifton Properties Limited, [1993] OLRB Rep. Oct. 1010, the Board accepted that the consequences of fragmentation are not "idle speculation", but are a problem which has been recognized in Ontario as well as in other Canadian jurisdictions. The Board noted that it may not have the power to later consolidate or rationalize the bargaining structure, so it should be particularly careful in fashioning the bargaining unit in the first place. At paragraph 29 of that decision the Board went on to state:

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.

52Sifton Properties Limited was cited with approval in Pepsi Cola Canada Ltd., [1995] OLRB Rep. Aug. 1131. In that case the union was seeking to represent drivers and drivers' help­ers, but wished to have warehouse personnel excluded. The employer objected, and the Board ultimately found that the union's proposed bargaining unit was not appropriate. The Board noted that:

54. It 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 [is] 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.

53The parties drew the Board's attention to some Board decisions relating to certification applications for bargaining units at golf courses. In Beach Grove Golf and Country Club Limited, [1967] OLRB Rep. July 357, a trade union was seeking to represent those workers employed in the maintenance of a golf course. The employer proposed an all employee unit. The Board found it would not be appropriate to have an inside and an outside unit in the absence of any evidence of a history establishing that the two groups had been divided in such a way by the employer, and in the absence of evidence of craft status for either group. While the Board recognized that maintenance staff performed different duties under different working conditions from those who worked inside the golf club, it did not accept that these differences alone constituted separate communities of interest.

54The union relied heavily on Fort William Golf & Country Club Limited, [1995] OLRB Rep. Aug. 1070, a recent decision in which a panel of the Board found that a bargaining unit com­prised of grounds staff at a golf club was an appropriate bargaining unit. In that case the effect of pro shop was not a factor required to be considered by the Board, however, the clubhouse staff were relevant to the Board's consideration. The union was seeking to represent only the grounds staff and the employer contended that an "all employee" unit comprised of the grounds and clubhouse staff would be more appropriate. The Board found the golf course operation and the club­house operation to have two distinct lines of managerial authority within the club, reporting to the Board of Directors; the grounds staff had little to do with the clubhouse; the grounds employees wore different uniforms; the grounds operation had its own budget, set its own wage rates, and had different work hours from the clubhouse staff; there had been no transfer of employees between the grounds and clubhouse staff in the past decade; and, although the Board found there was coop­eration between the pro shop, the clubhouse and the grounds staff, it was found that the grounds staff worked separately. The Board found there was a community of interest between the grounds employees and that they had signified their wish to bargain collectively as a distinctive group. No concern for fragmentation was expressed because the Board held the grounds staff were already treated as a separate and distinct working unit.

55The facts in Fort William Golf & County Club are distinguishable from the facts of the case before us. In Fort William the Board concluded that the differences between the two groups of employees went to the root of the organization and that there was a de facto division between the grounds and hospitality staff. On the evidence before us, we are satisfied that Lionhead is an integrated enterprise. Part of its services is the provision of food and beverages both on and off the golf course. The food and beverage operation is dependent on the golfers and tournaments, which are the bulk of the business of the club. It is not only financially that the services are interdepen­dent, it is also functionally integrated. Hence, there is the coordination of golfing schedules, food preparation and greens maintenance schedules to ensure a smooth operation.

56The food and beverage operation is akin to a department of the Lionhead Golf and Country Club. The budget for the food and beverage operation is set by the general manager of the club, who also appears to decide all significant financial matters for every aspect of the golf club and who maintains ultimate control over hiring and termination of employees. In the last year there were three examples of employees of one department requesting to transfer to another, and those transfers were effected, suggesting there have been no barriers erected between the various departments of the golf club. As the facts outlined above indicate, there is regular contact between a number of the food and beverage employees and the grounds and pro shop staff. The lines divid­ing work of the various groups are blurred: for example, pro shop staff, greens employees, and the housepersons all move tables and chairs in and out of the clubhouse; the greens employees and housepersons put up Christmas decorations and lights together; the pro shop staff and houseper­sons both do laundry and make signs; the food and beverage cart operators take direction from the marshals; and the maintenance person works for the greens department, the pro shop, and the food and beverage department.

57Our review of the Board's jurisprudence indicates a generally circumspect attitude towards departmental carve-out units, and a deep concern for the fragmentation which may result if departmental units are found to be appropriate. The majority is of the view that there is poten­tial here for at least three bargaining units, which could be represented by three or more different bargaining agents, just the type of proliferation of units which would cause serious labour relations problems for the employer.

58The union asked the Board to consider that the employees of its proposed bargaining unit would not have access to collective bargaining if the bargaining unit the union seeks is not accepted. The union's evidence indicated employees of the pro shop and the greens department had shown no interest in the organizing drive. While access to bargaining is an important consider­ation for the Board in light of its mandate under the Act, the Board has historically also weighed other factors along with this consideration. Where there is apparent difficulty in organizing a par­ticular sector, the Board has accepted as appropriate bargaining units which would not otherwise be found so. The Board has indicated it is concerned about access to bargaining in the banking and retail sectors, and has found single location units to be appropriate because of the recognition that it may be difficult for a union to organize all retail outlets or bank branches in a particular locale. However, as the T. Eaton's and Simpson's cases (cited above) indicate, even in the retail sector the Board has declined to grant carved out units for some departments and not others. In the case before us, there is no evidence or history of organizing difficulties in this type of workplace, nor can we draw an inference to that effect.

59Having regard to the considerations outlined above, and after reviewing the facts of this case, the majority was of the view that the union's proposed bargaining unit is not appropriate.

60Following the release of our decision of March 5, 1996, the applicant advised the Board that it wished to withdraw this application for certification. Pursuant to section 7(10) of the Act, this application is hereby withdrawn with leave of the Board. The Board will not consider another application for certification by the applicant as the bargaining agent of the employees in the bar­gaining unit until one year elapses from the date of this decision.

DECISION OF BOARD MEMBER H. PEACOCK; April 10, 1996

1. I dissent.

2. In the hospitality and retail industries in particular, with their multi-location, multi-de­partmental structures, the Board is frequently confronted with the difficult task of balancing employees' interest and access to collective bargaining against the need to avoid the perils of frag­mentation. The viability of the bargaining unit applied for must rest on a degree of cohesion, sta­bility and negotiating capacity displayed both by the employee group and its bargaining agent.

3. In this case, looking at all the circumstances of the work and structures at Lionhead considered by my colleagues, I would give more weight to the predictive factors of success of the proposed unit over the labour relations difficulties posed by such a unit. The food and beverage operation of Lionhead Golf and Country Club is the largest and most cohesive group of employees of any of the club operations. It is also the group with the largest core of employees who return year after year, and who are employed for a longer season compared with those at work outside the club house.

4. If there is one group of employees which on its own is likely to sustain a new regime of collective bargaining, it is the food and beverage operation. Moreover, the Board's historical con­cerns over the inability of "stand alone" units to achieve a first collective agreement must be tem­pered by the experience of the first contract arbitration provisions of the Act which in essence sur­vived the Bill 7 amendments of 1995. These provisions have enhanced the likelihood of a second and subsequent collective agreements and demonstrates to as yet unorganized groups with the same employer the benefits of collective bargaining.

5. For these reasons, I find the bargaining unit proposed by the applicant trade union to be appropriate and would grant the certificate.