United Steelworkers of America v. Sears Canada Inc., 1998 CanLII 18397

Ontario Labour Relations Board

[1998] OLRB REP. SEPTEMBER/OCTOBER 850

4586-94-R United Steelworkers of America, Applicant v. Sears Canada Inc., Responding Party

BEFORE: Christopher Albertyn, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.

APPEARANCES: Bernard Hanson and Mike Armstrong for the applicant; C. G. Riggs, Pamela Clarke, Scott Williams, Glenn Watters, Ana Lankin, Ken Eady, Christine MacFarlane and Amanda Hunter for the respondent party.

DECISION OF CHRISTOPHER ALBERTYN, VICE-CHAIR, AND BOARD MEMBER D. A. PATTERSON; October 8, 1998

1This is a certification application. It has a long history. It was filed on March 23, 1995, under the then Labour Relations Act before its amendment by Bill 7. It must therefore be dealt with under subsection 3(4) of the Labour Relations and Employment Statute Law Amendment Act, 1995. That subsection reads:

Despite subsection (2), in a proceeding relating to an application for certification of a trade union as a bargaining agent, the presiding person or body shall apply sections 5, 8, 9 and 9.1 of the old Act and not sections 7, 8 and 10 of the new Act. This subsection applies only with respect to applications for certification made before October 4, 1995.

The 'old Act' referred to is the Labour Relations Act, 1993 ("Bill 40"). The 'new Act' is the the Labour Relations Act, 1995.

2There is a previous Board decision in the matter (by a panel differently constituted) issued on June 29, 1995 and there are previous Board endorsements of July 20 and July 24, 1995.

The Issues

3This is a certification application involving the largest retailer in Canada at its store in Windsor which has the largest volume of its retail stores.

4The application was opposed on the basis that the applicant union ("the Union")'s proposed bargaining unit was not appropriate. There were also several challenges to whether particular individuals should be included in the list of employees, or not. The application was referred to a Labour Relations Officer for investigation and inquiry and, after a time, an Officer's Report was produced. The matter was set down for hearing of argument on the issues in dispute, on the evidence contained in the Officer's Report. This decision addresses the following issues which remain in dispute between the parties:

1. whether the bargaining unit proposed by the Union is an appropriate unit;
2. whether, assuming the determination of the bargaining unit issue does not result in the dismissal of the application, a representation vote should be ordered;
3. whether the maintenance specialist, Stephen Elmer, falls within the bargaining unit;
4. whether Shandra Fazekas falls within the bargaining unit.

The Bargaining Unit

5The Company carries on business in Windsor, Ontario at its 3050 Howard Avenue site. There it buys, sells and services retail merchandise.

6The parties have been able to reach partial agreement on a bargaining unit. That unit is the following:

all employees of Sears Canada Inc. employed at 3050 Howard Avenue in the City of Windsor, save and except supervisors, persons above the rank of supervisor, loss prevention staff, personnel department staff, management trainees, persons regularly employed for not more than 24 (twenty four) hours per week, persons for whom any trade union held bargaining rights as of March 23, 1995.

7What has not been agreed between the parties is the Union's proposal that the following categories of employees be added to the list of employees excluded from the bargaining unit:

office and clerical staff, auto centre staff, warehouse staff and travel consultants.

8The Windsor operation of the Company can be viewed in different ways: geographically, organizationally and structurally (i.e. in terms of the reporting relationships). In addition, the retail store (excluding the other parts of the operation) can be viewed as containing two broad sections of several retail departments.

9Geographically, there are two locations of the Sears operation in Windsor: the store building and, about 500 metres away, an Auto Centre, consisting of a filling station and vehicle repair garage. Both the main store building and the Auto Centre building are served by the same switchboard, although the parts and service departments of the Auto Centre have their own phone line. The retail store is located on three floors: a basement floor containing the stockroom or warehouse (the shipping and receiving operation); and two floors on which the retail store is situated. The main and second floors contain a cafeteria, the mechanical rooms, the Store Administration Service Office ("SASO"), the merchandise departments and certain concession areas leased to other retail operators who employ their own retail staff. The cafeteria consists of a public section where customers may eat and take refreshments, and a separate section where employees of the Company can have lunch.

10Considered organizationally, the Company's operation consists of the retail store itself; certainly ancillary operations (a travel service and an outside installation and repair service); SASO; the warehouse; and the vehicle repair and filling station operation ("the Auto Centre"). The bargaining unit proposed by the Union is the store only, without the other operations. The responding party ("the Company") contends that that unit is not appropriate for the purposes of collective bargaining. It suggests an all-employee unit, consisting of all of the operations.

11Considered structurally, there are two reporting streams within the Company's operation in Windsor: one horizontal, the other vertical. The horizontal structure consists of the store, the stockroom (or warehouse) and the Auto Centre. Those operations report to the store manager. The vertical structure consists of operations which are located within the building in which the store is situated, but which have only a tangential organizational link with the store's operation. The vertical structure reports directly to the Company's district management, not to the store management. The vertical operation is not included in the store's retail sales and profit plan. Hence the employees who fall within the vertical structure have no intrinsic connection to those within the horizontal structure.

12The retail store (the unit proposed by the Union) consists of two broad sections, which are made up of several departments. The sections are Home and Leisure (consisting of furniture; sporting goods; toys; hardware; home improvement installation products; hostess, food preparation and lighting; sewing and floor care; ranges, microwaves and dishwashers; window coverings; home laundry; paint and wallpaper; home improvement; refrigerators and freezers; home electronics; lawn, garden and patio; bed and bath) and Apparel and Accessories (jewellery; ladies' sportswear; cosmetics and fragrances; luggage; ladies' coats and suits; body fashions; junior sportswear; ladies' Le Chateau; infants and toddlers / 4-6X; furniture and nursery equipment; men's casual wear; lingerie and loungewear; boys' wear; La Redoute; Men's dress wear; specialty sizes; women's and children's footwear; men's footwear; hosiery and personal care; girls' wear; handbag and accessories; food services; display and maintenance; alterations). The maintenance and display staff and the matron staff, who are responsible for both the technical upkeep of the Windsor premises of the Company (electrical, heating, cooling, lights) and for the cleaning and upkeep of the premises, are included in the Union's proposed bargaining unit. The food preparation staff who work in the canteen are also part of the Union's proposed bargaining unit.

13The Board's approach to the determination of bargaining units is well-established. The Board will consider whether the unit proposed by the applicant trade union is a unit which is appropriate for collective bargaining. The Board will have regard to whether that unit is likely to cause serious labour relations problems and whether the composition of that unit has sufficient coherence to be sustainable as a viable collective bargaining entity. In general, the Board will prefer an all employee unit over other units, but that is not a hard and fast rule (Pepsi-Cola Canada Ltd. [1995] OLRB Rep August 1131, especially 1138 at paragraph 51; Humber/Northwestern / York-Finch Hospital [1997] OLRB Rep September/October 872, paragraphs 33, 35 and 36). This preference is based on an aversion to fragmentation among groups of employees who can appropriately be part of the same bargaining unit. In other words, as the Company's counsel pointed out, the more comprehensive bargaining unit is presumptively appropriate unless it collides in a serious way with the employees' ability to organize themselves' (Humber, above, paragraph 33).

14The Union makes the point that the Humber case was decided in a different context from that in which we should consider this case. Humber was not a certification application; it was an application under section 69 of the new Act, arising from the merger of three hospitals. The Union submits that its strong statement in favour of larger, over smaller, bargaining units needs to be seen in that context. The Union submits that in applications under section 69 of the new Act there are not competing policy considerations as there are in certification applications. There is only one policy consideration, suggests the Union, in section 69 applications, viz, to prevent fragmentation of collective bargaining arrangements. In other words, the test in section 69 applications, is not whether the applicant union's proposed bargaining unit is an appropriate bargaining unit; instead, the test is to determine which is the more appropriate bargaining unit.

15There are structural differences between the employees who fall within the store, and those who do not. What we have referred to as the ancillary operations are the travel service and the outside installation service. The travel service consists of 6 travel consultants. Their job is to advise and make travel arrangements for customers of the Company. They are, to all intents and purposes, travel agents employed by the Company in its own travel agency. They work on a commission arrangement with the Company. They are located, though, within its store. The travel consultants report to a manager within their office, who in turn reports to a regional manager within a vertical business structure. This means that the travel consultants do not have a reporting arrangement with the management of the store. They are located with the store's employees, but they are not 'employees' of the store. The Company has separate annual sales and profit plans for the retail store (including the Auto Centre and the stockroom) and for the vertical structure (i.e. travel, installation). Hence the budget for the departments of the retail store fall under one annual sales and profit plan, and the sections within the vertical structure, e.g. travel, have their own separate plans. There is an overall store budget plan, just as their is a travel budget plan and an installation budget plan. The store is given a credit in an interdepartmental account in respect of the space within the store which is utilized by the Company's vertically structured operations - travel and installation. There is also some credit to the retail store's account in respect of turnover and profit by the vertical operations.

16The outside installation staff and assistants, like the travel consultants, report to a district manager and not to the store management. They provide a service to the Company's customers which is quite distinct from that provided by employees within the store. Some of the Home Improvement Products employees - two installation administrative assistants - also report to the district manager. Their function is to provide back-up to the installers who attend at the homes of customers who have purchased appliances from the Company. The outside installation assistants fit within the Company's vertical operation, like the travel consultants. They are housed within the store's premises, but structurally they are not part of the store's operation. They provide backup and support to the installation staff who go to the homes of customers to install appliances and other products purchased from the Company.

17The Company suggests that it makes no sense to separate the installation sales staff, whom the Union wants included in the bargaining unit, from the other installation staff, i.e. those who do the outside installing of appliances and their administrative assistants. The Union's rationale is that the sales staff are part of the sales service of the retail store - they work in the store and they sell appliances to customers. The installation staff are wholly separate. Their task is to install appliances and they have a different reporting structure from the sales staff. They, like the travel consultants, are not part of the retail store, but part of the Company's regional operation. We are satisfied that the sales staff are appropriately distinguished from the installation staff, whose function is more akin to that of the travel consultants, who serve outside customers for a special purpose, not directly related to the retail store.

18There has been virtually no mandatory interchange of employees between what we have referred to as the ancillary employees and those employed in the Company's store. There have been several interchanges, but, save in one case, those were voluntary transfers. The one exception was a transfer from a managerial to a non-managerial position. In the period since 1979, there have been no involuntary transfers. We conclude that the regular make-up of employees in the retail store is easily determined and constitutes a stable and definable group (Collegiate Sports Experts [1995] OLRB Rep. February 96, at 100, paragraph 24).

19We are satisfied that those persons employed in the vertical structure are distinct from, and distinguishable from, the employees in the horizontal structure. The Union's proposed exclusion of the ancillary categories of employees does not amount to a fragmentation. There is a lack of coherence between the vertical and horizontal structures which the exclusion recognizes.

20We now come to the exclusions the Union wishes to make within the horizontal structure. The Union wishes to have the storeroom (warehouse), the Store Administration Service Office ("SASO") and the Auto Centre excluded. Where possible, the Board will prefer to certify a larger, rather than a smaller, bargaining unit. Larger units are inherently more stable than smaller units. However, the Board's preference is not determinative of the matter. The Board must consider the specificity of an applicant union's bargaining unit proposal and determine whether that proposed unit is appropriate.

21We are satisfied that the Auto Centre can be excluded from the store and warehouse and that what would remain is an appropriate unit. There is little interchange between the store employees and those of the Auto Centre. Their work is fundamentally different. They are located separately and, in some respects, they operate as distinct entities. The Auto Centre functions as an integrated unit. It has its own customer service assistants, sales representatives, parts persons who assist in the ordering, stocking and retrieving of automobile parts, its own installers who perform installations and minor repairs and technicians who are trained to provide an expert repair service to customers. The Board has in the past certified stores, without the filling stations located nearby being treated as part of the same bargaining unit. The exclusion of the Auto Centre from the proposed bargaining unit will not, in all likelihood, result in serious labour relations problems (Sears Canada Inc. [1985] OLRB Rep January 111).

22What is left is the store, the warehouse and SASO. To address the SASO first. The office and clerical staff in the store administration office are severable from the employees in the retail store and the warehouse. The Board has frequently excluded and separated office and clerical staff from non-clerical bargaining units. (See, for example, Sears Canada Inc. [1985] OLRB Rep April 589, para. 3, in which virtually the same parties (the Union's predecessor) agreed to that separation). The Store Administrative Service Office provides assistance to customers by processing returns and exchanges and they are involved in unpacking merchandise and handling specific administrative functions. They are involved in the balancing cash register reports, doing bank deposits, receiving and dealing with telephone inquiries. In our view, the SASO can be readily separated from the retail store and therefore they are reasonably excluded from the retail store bargaining unit.

23We now turn to the relationship between the retail store and the warehouse: should the retail store stand alone as a separate bargaining unit, or should it be combined with the warehouse? In this consideration we include the Union's proposed exclusion of the MTRs (the merchandise replenishment team), whose task it is to replenish the stock on the sales floor shelves. For the purposes of this decision they are treated as akin to the stockroom or warehouse employees. Those employed in the stockroom receive merchandise which is to be sold, they receive merchandise which has been sold, they contact customers to pick up merchandise, they assist customers to load merchandise, they place security ink tape on fashion merchandise, they pull merchandise from stock, they ship merchandise out of the store and they receive merchandise which is returned.

24In our view the combination of the retail store and the warehouse (including the MTRs) would make a better unit than the retail store alone. As it happens, the Union has sufficient membership support to be certified in respect of a combined warehouse - retail store bargaining unit. Nevertheless, the Union has not changed its position and it is not seeking the inclusion of the warehouse in the bargaining unit. We therefore ask the question, is the store - sought by the Union as an appropriate bargaining unit - without the warehouse, which is located within the same premises, an appropriate unit?

25In order to answer the question we need to consider several matters, including whether the warehouse could stand alone as a separate unit or part of another unit; whether there is such interchange between the employees of the store and the warehouse that their separation would be likely to cause serious labour relations problems; whether the store on its own is a sustainable or viable bargaining unit. In considering the matter the Board will be concerned to avoid fragmentation. The Board will not want to create individual 'islands' of employee groupings, each with their own terms and conditions of employment and potential collective bargaining agents." (Horizon Poultry Products Inc. [1998] OLRB Rep. April 208, at 210 paragraph 8.) As stated in that case, the Board is disinclined to grant departmental or classification-based bargaining units because of the serious labour relations problems which they are likely to cause (T Eaton Company Limited [1984] OLRB Rep May 755, at 756 paragraph 5; Simpsons Limited [1984] OLRB Rep September 1255, at 1256 paragraph 5; Lionhead Golf & Country Club [1996] OLRB Rep April 271, at 280 paragraph 47; SIfton Properties Limited [1993] OLRB Rep 1010, 1015 paragraph 28 and on).

26Save in respect of the division between the Company's vertical and horizontal structures, the Company's internal structure does not fit well with the Union's proposed bargaining unit. The sales staff of the different merchandise departments report to sales managers, who, in turn report to the Store Manager. Some of the sales departments which fall within this structure are excluded from the Union's proposed bargaining unit (e.g. those in the Auto Centre). Non-sales staff, many of whom are excluded from the Union's proposed bargaining unit, e.g. the stockroom staff, the Store Administration Service Office (SASO) staff, report to the Assistant Store Manager who is responsible to the Store Manager. The Company's retail operation has one central personnel department within the store which records all payroll data and forwards the information to its Toronto head office. Terms and conditions of employment of staff are determined by various factors. Some terms and conditions apply to all of the Company's staff across Ontario and perhaps beyond. Some apply to all staff at the Windsor outlet and some to particular categories of employees, depending upon whether they are commissioned salespersons or paid a fixed salary. Similarly some employees whom the Union proposes should be outside of the bargaining unit have similar or the same conditions as some of those whom the Union wishes to include in the bargaining unit.

27A union is entitled to a degree of flexibility in its organizing of employees. It need not seek the most comprehensive unit, nor the most appropriate unit. It may be certified in respect of a bargaining unit which is capable of sustaining collective bargaining and which does not create concrete, demonstrable problems.

28The fact that there is not an exact match between the proposed bargaining unit and the employer's organizational structure is a factor to be considered against the recognition of the proposed bargaining unit, but it is not, on its own, a decisive or determinative consideration. It is one factor only, and it needs to be considered in the context of the various factors which need to be taken into account by the Board when deciding whether a proposed bargaining unit is appropriate for collective bargaining.

29When regard is had to the relationship between the store and the warehouse, there has not been a single example of a mandatory inter-change of employees or of an involuntary transfer between the two sections of the Company in the past decade.

30The Company makes the point that there have been a relatively large number of transfers by employees into different sections of the Company's operation. It concedes that these have not been involuntary, but it argues that the nature of the transfer is not significant. It contends that the fact of transfer is significant. It shows that employees are accustomed to transferring between different sections of the Company's operation in Windsor, and, if the Union's bargaining unit is recognized, seniority enclaves will be created. Counsel for the Company contends that seniority enclaves create barriers which prohibit employees from advancing within the Company, and they restrict them from freely choosing to move to positions which are perhaps more remunerative or which allow them to develop their skills and experience.

31In our view there have been a fair number of voluntary transfers between the office and clerical staff and those who fall within the Union's proposed bargaining unit, but the fact that none of them have been at the instance of management suggests that there will not be serious labour relations problems for the Company if seniority rights are established within the bargaining unit which the Union proposes.

32An earlier case between the same parties (or, in the Union's case, its predecessor), Sears Canada Inc. [1985] OLRB Rep. January 111, is relevant to the facts in this case. There the Union sought certification for a warehouse or service centre separate from the retail store. The Board found that the warehouse was an appropriate separate bargaining unit, just as was the retail store. The Board found that it was not necessary that the two components of the Company's business be combined. A bargaining unit consisting only of a retail store is a sustainable and conventional unit.

33The Company draws attention to what it refers to as the integration of function as between the sales staff of the store (whom the Union wishes to include in the bargaining unit) and other staff (whom the Union wishes to exclude). It suggests that there is an integration between the warehouse and sales staff. Merchandise is delivered to the main and second floors (the areas where the sales staff work - they being the principal grouping within the Union's proposed bargaining unit) by the stockroom staff, merchandise replenishment staff (MRTs) or the sales staff. The sales floors consist of the mail level which has the apparel and fashion merchandise and the upper level which has the heavier, durable products. Sales staff sell goods on the shelves and on the sales floor, and they may also sell goods which are not available at the point of sale. The sales person informs the stockroom staff of the need for the item of merchandise and the customer will then obtain the item from the stockroom or a sales person may himself or herself go to the stockroom to obtain merchandise which is not available on the shelf in the store. The Company suggests that there is also an integration of function between the SASO staff and the sales staff. SASO staff and installation administrative staff (whom the Union wants excluded from the bargaining unit) follow up on customer product and service complaints. SASO staff assist in the sales process by promoting and arranging customer credit and dealing with credit problems, promoting customer discount packages, dealing with customer queries generally and those concerning delivery delays, and assisting customers to locate the different merchandise sections of the store.

34The Company points to what it refers to as the overlapping functions of those employees whom the Union wants to include within the bargaining unit and those it wants excluded. MRTs and sales staff are jointly responsible to replenish merchandise on the selling floor. The MRTs have the initial responsibility to replenish the store, but they tend to finish their work by noon each day and so after work each day, the sales staff are responsible to ensure that their shelves are replenished. During the morning period, replenishment will be the responsibility of the MRTs. Display aisles and counters are the responsibility of the sales manager of the area concerned, and the displays will be changed and replenished during the course of the day by the MRTs, acting on the instruction of the sales manager concerned. If, for some reason, the MRTs are not available to replenish the shelves, then the sales staff will look to the stockroom staff to bring merchandise for that purpose.

35The overlap in the replenishment function, as between the MRTs and the sales staff, is the one area of potential jurisdictional dispute if the Union's proposed bargaining unit is recognized. The Company suggests that this is likely to create a labour relations problem for it. It appears that the replenishment task is the responsibility of the MRTs in the early part of the day, and it becomes the responsibility of the sales staff only at the end of their shifts. To the extent the overlap will create labour relations problems because bargaining unit work is done by non-bargaining unit employees, that is a matter which can be, and is often, addressed in collective bargaining.

36The Company points out that both sales staff and SASO staff handle customer complaints. That is so, but the nature of the complaints are generally different and deal with different matters.

37We do not anticipate any serious labour relations problems because the warehouse, the office and clerical staff and the other ancillary employees, and the Auto Centre are not treated as being part of the retail store bargaining unit.

38Counsel for the Company correctly makes the point that there is a public policy component to the determination of a bargaining unit. Reference was made to The Hospital for Sick Children [1985] OLRB Rep February 266, the seminal case for the Board's current jurisprudence on bargaining unit designation, and particularly to paragraph 17 thereof:

17. Given that the definition of the bargaining unit can materially affect the ability of employees to organize, and that uncertainties concerning its contours can provoke costly litigation and potentially prejudicial delay, what then is the purpose of the concept of the "appropriate bargaining unit"? Quite simply, it is an effort to inject a public policy component into the initial shaping of the collective bargaining structure, so as to encourage the practice and procedure of collective bargaining and enhance the likelihood of a more viable and harmonious collective bargaining relationship. That objective is spelled out clearly in the Preamble to the Act. 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.

39The Union suggests that the public policy consideration in determining appropriate bargaining units has involved the Board in balancing two competing and conflicting interests. On the one hand, the Board will seek to give employees access to collective bargaining. That is a legitimate labour relations purpose. The interest in providing such access will conduce towards the grant of smaller units. On the other hand, the Board will seek to avoid labour relations problems which might result from fragmentation (for example, a multiplicity of bargaining units; leap-frogging between trade unions; tardiness in bargaining driven by a rivalry between unions who are unwilling to commit themselves to agreements in the absence of settlements by other unions; inflexibility in work arrangements and assignments; etc.). For that reason the Board will tend to favour larger units. This tension within the Board's public policy considerations is resolved, the Union submits, on the basis of the Board determining whether the certification of a particular bargaining unit is likely to create serious labour relations problems. If the unit is viable, in the sense that there are not likely to be such problems, then the Board will be inclined to grant recognition of the union's bargaining rights in an apposite bargaining unit. See, in this regard, Burns International Security Services Limited [1994] OLRB Rep April 347, at 351-2, paragraphs 28 and 29:

28. Both in Hospital for Sick Children and in later cases, the Board has explored the tension between bargaining structures that facilitate organizing (one of the goals of the Statute), and bargaining structures that are likely to be more stable and effective in the long-run (another goal of the Act). The former objective points to smaller employee groupings which are more readily organized. The latter goal points to broader-based bargaining units that have the organizational mass and bargaining power to survive over time and in changing market conditions.

29. These goals must be harmonized within a framework that now recognizes (as early Board "policies" might not) that there is no single unique and indisputably "appropriate" unit. There are degrees of appropriateness; or to put the matter another way, sensible, alternative ways in which one can define the bargaining unit without triggering (as the Board in Hospital for Sick Children put it) "serious labour relations problems". A trade union need not seek to represent the most comprehensive or most appropriate bargaining unit; and as the applicant or moving party, the union has a degree of flexibility in deciding what unit to organize. As long as the unit it seeks does not generate serious labour relations difficulties for the employer, it will be granted the unit that it applies for. The focus is on concrete problems rather than the sometimes nebulous concept of "community of interest". Thus, in Homewood Health Centre, [1992] OLRB Rep. Feb. 181, the Board observed:

40We are satisfied that in certifying the Union in respect of the retail store only (the unit the Union seeks) we will not be certifying a departmental bargaining unit. The bargaining unit consisting of the retail store is a composite entity which can comfortably stand alone, made up, as it is, of the different components of a retail store (Collegiate Sports Experts [1995] OLRB Rep February 96).

41Seen from a slightly different perspective, as suggested in the Company's response to the application, there are four broad categories of employee at the Company's Windsor site: the sales staff; the product handling staff; the sales force support staff and the store maintenance staff. The Union's proposed bargaining unit consists of all the sales staff (except those located at the Auto Centre); none of the product handling staff (the warehouse, the product handling unit at the Auto Centre, the MRTs); all of the sales force support staff (the cooking staff in the cafeteria, the alterations staff and the display staff, except those located at the Auto Centre); and all of the store maintenance staff. This composition of the Union's bargaining unit does not suggest a departmental unit. Rather it includes the core functions of the retail store.

42The Company suggests that, if the retail store is certified as a bargaining unit, there will be employees who are left without a bargaining unit home: those in the Auto Centre, the warehouse staff, the SASO staff, the travel consultants and the installers and their assistants in the Whole Home Improvement Products section. The Company asks how these 'fragmented' groups of employees can be accommodated within a bargaining unit structure. The warehouse or stockroom is really a department of the retail store, argues the Company, and it cannot stand alone as a bargaining unit. The Board is not called upon in this application to decide what might be the appropriate unit or units which will apply in respect of employees who fall outside of the retail store bargaining unit. However, the Board has a concern not to create islands of employees, who cannot themselves constitute a viable bargaining unit. The Board has in the past certified warehouse employees as a group of employees suitable to be a separate bargaining unit. While our views are this matter are somewhat speculative, given that we are not dealing directly with the bargaining rights of the Company's employees falling outside of the retail store, we can see that the remaining employees might be suitably accommodated in separate bargaining units for the warehouse; the Auto Centre; and for all the office, clerical and administrative support staff, either including or excluding the travel consultants. Alternatively, the warehouse might be combined with the office and clerical staff. These are some among other options. We conclude that the certification of the retail store as a distinct bargaining unit will not have the effect of leaving the remaining employees (those who would fall within the Company's bargaining unit, but are not in the retail store) without a bargaining unit structure within which to exercise their collective bargaining rights. (See in this regard the comments in Riverside Brass & Aluminium Foundry Limited (OLRB decision unreported, Sept. 9, 1998, Board File No. 1389-98-R) at paragraph 13:

13. Turning to the access issue, although one could perhaps suppose (given the vigorous nature of the dispute over these three ballots) that this may be more of an issue for the employer than it is for the employees immediately affected, it is true that a small number of employees may find it more difficult to obtain collective representation than a larger one. However, the Board is unaware of a single case (and the employer did not provide one) in which the exclusion of more than one such employee (in a combined student/part-time group) has been the basis for a finding that the bargaining unit sought is inappropriate. In effect, in balancing the interests of allowing the union a measure of freedom in the unit it wishes to organize and the future organizing possibilities of other employees, the Board favours the former - provided, of course, that the unit is otherwise appropriate and that there are no legal, as opposed to practical, difficulties created for organizing in the future. This approach is supported by the principle that the union is not required to organize the most appropriate unit, but only an appropriate unit. In the result, I cannot find that the employer's access concerns are a sufficient basis for denying the union the unit sought.

43The parties provided details of the bargaining units which obtain between them in the locations where the Union is recognized as the collective bargaining agent of the Company's employees. In Willowdale (1800 Sheppard Avenue East) the Union represents an all employee unit, much like that contended for by the Company. The same is true in Oakville, although, as in the Union's proposed bargaining unit here, part-time employees are excluded. The Peterborough and Kingston agreements between the parties have similar bargaining units to that sought here by the Union. There is no evidence of labour relations problems in Peterborough or Kingston. Both are for full-time employees only, and both exclude office and clerical staff, such as SASO is excluded by the Union in their proposed bargaining unit in this case.

44In light of all of the above considerations, the Board finds the following bargaining unit to be appropriate for collective bargaining:

all employees of Sears Canada Inc. employed at 3050 Howard Avenue in the City of Windsor, save and except supervisors, persons above the rank of supervisor, loss prevention staff, personnel department staff, management trainees, persons regularly employed for not more than 24 (twenty four) hours per week, persons for whom any trade union held bargaining rights as of March 23, 1995 and excluding as well office and clerical, auto centre, warehouse and travel consultants.

A Representation Vote

45Under subsection 8(3) of Bill 40 the Board has a discretion to conduct a representation vote or automatically to certify a union if it is satisfied that the union has at least 55% membership support in the bargaining unit.

46In general, prior to the operation of Bill 7, the Board was reluctant to order a representation vote when a union had sufficient membership card support for automatic certification. It did so only for compelling reasons, usually when there is significant doubt as to employee wishes, notwithstanding the sufficiency of the membership evidence. (See Unlimited Textures Company Limited [1984] OLRB Rep Jan. 138, at 142, paragraph 15; Reynolds-Lemmerz Industries [1994] OLRB Rep September 1242, at 1246 paragraph 18).

47The Company has three principal arguments as to why a representation vote should be held: there has been a huge passage of time since the Union's certification application was filed; there has been a significant turnover of employees during the period between the filing of the application and now; there has been a major policy change in the manner in which employee trade union support is determined - a representation vote is now the standard method for determining employee support, having wholly supplanted the former method of determining support from signed membership cards. The Company emphasizes that the current method of determining membership support - by representation votes - gives substance to an important value in the new Act, viz, the recognition of employee rights as distinct and separate from those of trade unions. The Company suggests that, if a representation vote is ordered, the Union be given some right of access to the store's employees during working hours so as to enable the Union to reconnect with the employees after their long absence since the filing of the application, prior to the representation vote.

48The Company points out that from the total body of some 125 employees (including those in the Auto Centre, the warehouse, and the other areas excluded from the retail store bargaining unit described above) about 78 employees have been employed since the application date (that figure includes those who may not have remained with the Company) and 31 in all have left the Company's employment during the same period. These figures do not directly deal with the situation in the Union's bargaining unit although we accept that there is likely to be a similar turnover.

49The Board has ordered representation votes on occasion if there has been an inordinately long period of time between the date of application for certification and the date of resolution by the Board. In atypical circumstances the Board is more included to grant a representation vote to determine employee support. The Board's approach was stated in P.J. Wallbank Manufacturing Co. Ltd. [1988] OLRB Rep March 319 at 321 paragraph 8:

8. Under the Labour Relations Act, a trade union is certified when it is able to demonstrate that a majority of the employees want it to be their bargaining agent. That determination is often made after examining its documentary evidence of membership. That is the system prescribed by the Act (see also Rule 73). In this jurisdiction representation votes remain a residual mechanism resorted to only when the union is unable to establish a "clear majority" (i.e. more than fifty-five per cent), there is some reason to doubt the reliability of the membership evidence as an indicator of employee wishes, or there is some policy reason or special circumstance warranting the additional evidence of a representation vote. The statute is quite clear that where the union has established the requisite "clear majority", votes are to be the exception, not the rule.

50The applicant cannot be blamed for the lengthy delay in resolving this matter. It filed its application and then, as a result of various matters being contested, the Board had to decide whether the issues in dispute should be referred for examination by a Labour Relations Officer, after which a report was produced. The Union opposed the referral for the reason that it would delay the resolution of the matter, arguing that the Board had sufficient written material in its possession to make the determination. The Company sought the referral. The Board decided to refer the various issues in dispute to examination by a Labour Relations Officer, as was customary at the time. A considerable time elapsed before the Officer's report was produced. Thereafter submissions were made as to whether a written hearing should be held. The Union opposed the suggestion for the reason that a hearing would further delay resolution of the matter; the Company supported it. Mter a delay, this panel of the Board decided that the matter should be set down and argued. Some time has elapsed since then. Thus, at all relevant times during the Board's consideration of the matter, the Union has sought to expedite its resolution.

51The Union's application contains membership evidence which establishes support from a clear majority in the bargaining unit which we have found to be appropriate. In the result, the Union has substantially succeeded with this application and it should be entitled to the relief it would have be given soon after it filed its application in 1995. In the past the Board has been disinclined to grant a representation vote purely for the reason of delay in the resolution of a certification application. See, in this regard, the Board's comments in Baltimore Aircoil Interamerican Corporation [1982] OLRB Rep October 1387, at p. 1405 paragraph 37

37. ... we need to deal with the respondent company's position urging that the passage of time since the filing of this application justifies the directing of a representation vote. We cannot agree that a representation vote should be directed on the sole basis of the passage of time since the date of filing of this application for certification. Prior to the interim certification provisions enacted in 1975, the Board experienced many complex applications, that without the intervention of judicial review, took a very long period of time to process differences between the parties. These differences usually centered on the configuration and composition of the bargaining unit. Even today, complex applications for certification involving widespread unfair labour practices or bargaining unit problems can take more than a year to process. If the Board were to accept that the mere passage of time could so fundamentally affect the outcome of an application for certification, an unfairness would be visited on those applicants who, by no fault of their own, become involved in complex and lengthy certification matters. There may also be encouragement for some parties to seek to delay a case in order to achieve this outcome. Clearly, there are equities on both sides of this issue. The turnover in the employer's workforce since the date of application is considerable. However, as already noted, the same level of turnover is possible in a lengthy application for certification not involving judicial review. In fact, the statute, by creating the concepts of "application date" and "terminal date", has considered the effects of labour force turnover and recognized that at some point in time the composition of a bargaining unit must be considered frozen to provide a stable basis for the purposes of a certification application. See Fuller's Restaurant, [1980] OLRB Rep. Sept., 1289. Considering the submissions of the parties and the evidence before us, we are of the view that the parties are best put in the position they would have been in had the Board not erred by considering this application as if there had been no passage of time.

See also Fuller's Restaurant [1980] OLRB Rep September 1289, at 1290, paragraph 3.

3. These matters were scheduled for continuation of hearing in Ottawa on August 14 and 15, 1980. The respondent company argued at the outset that because of the passage of time and the turnover of staff, the Board should dispense with the hearing of evidence into the voluntaries of the petition and exercise its discretion under the Act to direct the taking of a representation vote. In rejecting the respondent's submissions, the Board ruled that because of the need for certainty and finality in certification matters and to guard against the prejudicial effects of delay, the terminal date is established under the Act as the date as of which employee desires are assessed for purposes of certification. The Board expressed its intent to put the parties in the position they would have been had the Board not erred in May, 1979.

52The passage of time and the change in circumstances are matters which should be taken into account, and we have, in deciding whether or not to exercise our discretion to hold a representation vote under subsection 8(3) of Bill 40, but, particularly in light of the provisions of section 3(4) of the Labour Relations and Employment Statute Law Amendment Act, 1995, we are not persuaded that those factors are of such weight as to deny the Union the usual relief to which it is entitled. That section makes clear that the Legislature did not intend the new labour relations policy on representation votes to apply to certification applications which were filed prior to October 4, 1995. We will not therefore order a representation vote.

53In the circumstances we find that, on an examination of the membership evidence filed by the Union, more than 55% of the employees in the bargaining unit described above, the Union is entitled to be certified in respect of that bargaining unit.

54A certificate will issue to the applicant.

55The Company is directed to post a copy of the certificate issued by the Registrar on employee notice boards in the retail store.

56It is not the Board's usual practice to determine the status of persons under a certification application when, as in this case, that determination will not affect the trade union's right to certification. However, this issue was dealt with before the Labour Relations Officer and argued before us and the parties are understandably desirous to bring the matter to an end. In the circumstances, we address the issue of the status of the two persons concerned.

Is Stephen Elmer an Employee

57Is Stephen Elmer an employee, or is he a member of management? The Union contends that he is not an employee; the Company that he is. The Union points to the following features of his work to suggest that he is a member of management. Prior to his appointment as supervisor for maintenance and display, there was a manager for the department, a Mr. Allan, who he had responsibilities across the store, beyond the maintenance and display department. Mr. Elmer has assumed some of the responsibilities which Mr. Allan had. There is now no manager in the department and Mr. Elmer reports to the Assistant Store Manager. His work involves the evaluation of the work of fellow employees and his evaluations may possibly have a bearing upon whether they receive merit pay, or not, and if so, how much. He schedules the work of the maintenance and display employees and he delegates that function to one of the matrons in respect of the matron staff. If an employee is absent from work, he arranges the replacement. He was consulted once in the selection for hiring of one employee and he has conducted the first interviews of potential employees, making recommendations thereafter. He was told who to interview. His role was to identify technical proficiency. He is entitled to issue verbal reprimands for disciplinary infractions, but he has no authority to issue written warnings or more severe discipline. He attends a weekly meeting of other supervisory staff, lead hands, the stock room manager and the various sales managers. At the meeting the supervisors are shown cost analysis reports. The meetings are functional, looking at co-ordination and departmental performance. Although these responsibilities are not the predominant requirements of his job, they do suggest that he is a member of management.

58The contra-indications are that Mr. Elmer does not assign overtime work. He recommends if he considers overtime to be necessary and the Assistant Store Manager, to whom Mr. Elmer reports, will make that decision. Mr. Elmer spends the bulk of his time performing maintenance work himself, like every other maintenance employee. He may not make major purchases (i.e. those in excess of $200). The former manager of the department, Mr. Allan, had the authority to appoint contractors to perform work beyond the capacity of the maintenance department - that decision is referred by Mr. Elmer to the Assistant Store Manager. Mr. Elmer has no say in the salary increases or merit increases which are given to employees. He is not aware of the actual wages paid to the employees in his department. Mr. Elmer shares an office and a desk with the other two maintenance specialists. He receives the same salary as another maintenance specialist whose status has not been challenged by the Union. When he schedules work and vacation, he does that in consultation with the other two maintenance specialists - the technical staff of the maintenance department - and the three of them work out when they will each take their vacation so that there is adequate technical coverage throughout the year. One of the other maintenance specialists has longer service with the Company than Mr. Elmer and his preferences will usually trump those of Mr. Elmer on account of his longer service.

59The amount of time which an employee spends on managerial duties is not necessarily decisive of whether or not he or she is a manager, rather than an employee. What is decisive is whether the individual concerned ever ceases to be a manager. In other words, if an individual performs non-managerial work yet is at all times suffused with managerial authority, he or she is a member of management and not an employee. If, however, an individual has a sprinkling of managerial duties, but his or her status and responsibilities remain essentially those of an employee, then he or she is likely to be an employee.

60We ask whether Mr. Elmer has independent discretionary authority - a feature of being a member of management - or whether he has an incidental reporting function, which would make him an employee with limited supervisory duties. When Mr. Elmer's work is considered as a whole, we find that he spends most of his time performing maintenance work and occasionally he does some things which show a co-ordinating or quasi-supervisory role. His participation in the employment of new employees is occasional and insufficient to constitute a hiring function. He has no effective disciplinary power and his influence over managerial decisions is extremely limited. In our view Mr. Elmer remains essentially a maintenance employee and not a manager in his employment with the Company. We find therefore that Mr. Elmer is an employee and he is included in the bargaining unit for the purposes of the count.

Is Shandra Fazikas's Position in the Bargaining Unit?

61The Union says that Shandra Fazikas is employed as an office-clerical employee. The Company says that she is employed in food services in the cafeteria, which is an integral part of the retail store and should be included in the bargaining unit. The evidence supports the Company's position.

62Ms. Fazikas is a cafeteria employee who performs work in SASO when she is not busy in the cafeteria. She is first a cafeteria employee; secondarily a clerical employee.

63In the result we find that Shandra Fazikas's position falls within the bargaining unit.

Summary

1. The bargaining unit proposed by the Union is an appropriate unit for collective bargaining. The Union is certified in respect of that unit, which is described above.
2. No representation vote will be ordered.
3. The maintenance specialist, Stephen Elmer, falls within the bargaining unit.
4. Shandra Fazekas falls within the bargaining unit.

64Notice of the Union's certification is to be posted on employee notice boards in the retail store.

DECISION OF BOARD MEMBER JAMES A. RONSON: October 8, 1998

1. This certification matter began in March, 1995. Since then the Labour Relations Act has been amended substantially. Bill 7, as enacted, was an attempt to bring the Board back to dealing with the labour relations realities in a collective bargaining relationship. It did so by trying to get this Board to focus on the wishes of employees.

2. But with the employees in this matter, the Board remains unfocussed. It ignores the long delay in bringing the matter to some finality. This delay, together with the turnover in staff and the change in emphasis of the legislation are all factors that should lead us to a more prudent conclusion. The Board should satisfy itself by listening to the employees.

3. With respect to the description of the bargaining unit: - history, experience and common sense combine to say that all-employee unit is necessary for good labour relations in the department store sector and I would so order.

4. In conclusion: the employees at the Sears store in Windsor deserve better. I would order that, 3½ years later, they tell us what THEY want by a democratic vote. Bargaining for a first contract can only be assisted by such a vote.