United Brotherhood of Carpenters and Joiners of America, Local 3054 v. Horizon Poultry Products Inc.

[1998] OLRB REP. MARCH/APRIL 208

2907-97-R United Brotherhood of Carpenters and Joiners of America, Local 3054, Applicant v. Horizon Poultry Products Inc•, Responding Party

BEFORE: Russell G. Goodfellow, Vice-Chair.

APPEARANCES: Mike McCreary Ken Fenwick, Jim Switzer for the applicant; Ted J. Kovacs, Cheryl Smith, Joe Helm, Jack Nolan for the responding party.

DECISION OF THE BOARD; April 6, 1998

1. This is an application for certification.

2. The employer operates a poultry slaughtering and processing facility employing approxi­mately 280 people at one location. The union has applied for a bargaining unit consisting of 15 employees working in one department. The bargaining unit is described as:

all Maintenance and Power Services Department employees of Horizon Poultry Products Inc. in the Township of Blanchard, save and except persons regularly employed for not more than 24 hours per week, casual employees, foremen and persons above the rank of foreman.

3. In response to the application, the employer took the position that, "there is no appropriate bargaining unit that isolates the group of 15 employees for which the Carpenters' Union has applied". Accordingly, a vote was held in the applicant's proposed unit on November 13, 1997. Fifteen employees cast ballots. Twelve employees voted in favour of the applicant and three voted against it. Following the vote, the Board held a hearing to deal with the employer's objection to the applicant's proposed bargaining unit. The hearing took three days to complete. At the conclusion of the hearing, I reserved my decision. I now provide that decision.

4. In closing argument, counsel for the union took the position that the union would have an uphill battle in convincing me as to the appropriateness of its proposed bargaining unit if I were to approach the case with either of two pre-conceived notions: (1) that "bigger is better" even outside of the hospital industry; and (2) labour relations harm can be the subject matter of "speculation". It was counsel's submission that there is no presumption in favour of larger bargaining units outside of the hospital industry and that concrete evidence of serious labour relations problems is required before the Board will reject a proposed bargaining unit.

5. In my view, both of these assertions fall slightly wide of the mark. The real issue in this case is not a generalized presumption in favour of broader-based bargaining units (whether in the hospital sector or elsewhere), or whether the Board should engage in "speculation" about labour relations harm, but the Board's long-standing and well understood practice of not certifying "classification-based" or "departmental" bargaining units. This is a practice that is not restricted to the hospital sector where, it was suggested, there tends to be a multiplicity of employee groupings, but applies more generally (see e.g. Pepsi-Cola Canada Ltd., [1995] OLRB Rep. Aug. 1131 at para. 51; Sifton Properties Limited, [1993] OLRB Rep. Oct. 1010 at para 29; Kidd Creek Mines Ltd., [1986] OLRB Rep. June 736; T Eaton Company Limited, [1984] OLRB Rep. May 755; and Lionhead Golf and Country Club, [1996] OLRB Rep. Mar./Apr. 271). The decision in Fort William Golf and Country Club Limited, [1995] OLRB Rep. August 1070, upon which counsel placed much reliance, must be seen as something of an exception to this rule, resting on its own very unique set of facts.

6. In Fort William the department in question functioned almost entirely autonomously from the rest of the employer's operation. The employees worked out of an entirely separate facility on the employer's premises, at completely different hours of the day from other employees, with little or no interdependence of functions and with no interchange of personnel or activity. None of these things can be said here. Although we are obviously dealing with a question of degree, the level of distinctiveness between this proposed unit and the rest of the workforce is much less. The employees here work out of and throughout the same facility as employees in other departments, there is a substantial overlap in their hours of work, there is some interdependence of functions and there is some shared activity. While it is true that the persons included in the proposed bargaining unit all report to the same manager and that the manager is responsible for a departmental budget, even this seems quite different from the Fort William case. Here, there are not "two distinct lines of managerial authority" functioning essentially autonomously all the way to the top but several department or area managers all of whom report to the same plant manager. The manager of this department also appears to enjoy nothing like the kind of independent authority to hire, set wages and establish working conditions as was present in Fort William.

7. Having said all of that, there can be no doubt that there is a substantial "community of interest" between most of the employees working in this department. Indeed, among the majority of those employees the level of distinctiveness or "community of interest" may be greater than it is among employees in other departments. However, and for two reasons, that does not determine the matter. The first reason is theoretical. The second is factual. First, the Board has said repeatedly in recent years that the concept of "community of interest" is of little utility in resolving these issues. The level of "community of interest" necessary to demonstrate viability in the context of the Sick Kids test is truly minimal. It is a threshold which most proposed bargaining unit structures can clear. The real focus of the test is on the concept of "serious labour relations problems". (On this question, more will be said below.) Secondly, and even working within that concept, as a factual matter it is clear that there are communities of interest in this case that extend beyond the group in question. As alluded to earlier, there are employees in other departments who perform work within this department under the guidance of these employees. While it is true that such work is not in substantial quantity, it reveals another difficulty in segregating this employee complement from others for collective bargaining purposes. Moreover, some of the employees in this department (e.g. the stockroom person, the data entry clerk, the waste water treatment operator, and the knife sharpener) lack the qualifications, wage rates and certain other definable characteristics of the core group of licensed employees and, to that extent, appear somewhat anomalous.

8. I accept Mr. McCreary's suggestion that his client and the employer may well be able to resolve the issues of shared work or overlap in functions in constructive collective bargaining and that the differing "communities of interest" within this group may also be accommodated. However, that suggestion does not go far enough. There are other concerns. As noted in the case law referred to above, the Board's approach to determining bargaining unit appropriateness reveals a strong aversion to "fragmentation" or the creation of individual "islands" of employee groupings, each with their own terms and conditions of employment and potential collective bargaining agents. While it may well be the case that the remaining eight departments in this workplace do not share the same level of "community of interest" as the "Maintenance and Power Services Department" employees, such distinctions can become extremely fine. For the most part, and except in exceptional circumstances, they are not ones that the Board is prepared to make. Rather, the Board's focus is on "fragmentation" or the problems associated with carving up a single workplace into separate collective bargaining pods on the basis of varying degrees of distinctiveness. Unless there are good reasons for doing so (e.g. related to access to collective bargaining) the Board will generally not certify such groupings. On this point, and in addressing the applicant's concern about speculation, the Board can do no better than reproduce the following excerpts from Sifton Properties Limited, above, at para 29:

29. In many cases, the Board has underlined its reluctance to define bargaining units on the basis of employee classifications or employer departments because of the high potential for fragmentation in bargaining which that creates₄ as expressed in the following passage from Kidd Creek Mines Ltd., [1986] OLRB Rep. July 736:

23. For many years the Board has been exceedingly reluctant to define bargaining units on the basis of employee classifications or employer departments, because of the high potential for fragmented bargaining which that creates (see, for example: Cryovac Division, W R. Grace & Co. of Canada Limited, [1981] OLRB Rep. Nov. 1574; Toronto East General and Orthopaedic Hospital, [1981] OLRB Rep. Nov. 1672; University of Ottawa, [1981] OLRB Rep. Feb. 232; and Westeel-Roscoe Company Limited, [19791 OLRB Rep. Nov. 1125). Even in the newspaper industry where departmental unioniza­tion has existed in the extreme (based initially upon craft distinctions which predated the current legislative framework), the Board has indicated that it might be less receptive to a continuation of these entrenched organizing patterns of the past, because computerized technology had revolutionized the structure and content of work in the newspaper business. (See Hamilton Spectator, [1981] OLRB Rep. Aug. 1177). Most recently, in T Eaton's Company Limited, [1984] OLRB Rep. May 755 and Simpson's Limited, [1984] OLRB Rep. Sept. 1255, the Board reiterated its view that dividing an employer's business into bargaining units based upon departments would not be conducive to orderly collective bargaining. In Eaton's, for example, the Board refused to exclude a specialized department of computer salesmen from a broader "sales" bargaining unit, even though their skills, method of payment, and likely career opportunities were somewhat different from those of the other salesmen...

24. Concerns about the consequences of fragmentation are not idle speculation, nor have they escaped attention in other jurisdictions. Because of the problems associated with the proliferation of bargaining units in industrial enterprises, the policy in a number of provinces has now shifted away from the recognition of craft units or other similar subdivisions of employees. Following the recommendations of the Woods Task Force in 1968, Parliament amended the Canada Labour Code to delete the provisions (similar to section 6(3)) protecting craft bargaining units, and the circumstances in which an existing unit can be splintered are now closely confined (see Feed-Wright Limited, [1979] 1 Can. LRBR 296; Atomic Energy of Canada Ltd. (1978), 1 Can. LRBR 92; and Cablevision Nationale Ltee (1979), 3 Can. LRBR 267 and cases referred to therein). In British Columbia, craft units can be certified only if they are "otherwise appropriate" for collective bargaining, and the British Columbia Labour Relations Board has shown a marked disinclination to endorse craft bargaining units in a manufacturing context. Even in the construction industry where craft unionism reigns supreme, the Ontario Legislature has intruded. In 1978, the Legislature imposed a system of province-wide bargaining by trade in place of the fragmented system of employer by employer bargaining which existed before. There is now a developing consensus that orderly collective bargaining is not enhanced by fragmenting an employer's work force into a number of competing bargaining units (for a thoughtful analysis of the issues see Paul C. Weiler: Reconcilable Difference.44: New Directions in Canadian Labour Law, Carswell's 1980 at pp. 151-178). Finally, since this Board may not have the power to later consolidate or rationalize the bargaining structure (as the Federal and B.C. labour boards can do), we should be particularly careful in fashioning the bargaining unit in the first place.

The Board has departed from that approach on the agreement of the parties and in particular situations of historical anomaly, or in light of the history of a particular sector, acceding to requests for classification-specific bargaining units in some cases. As well, where the applicant has been able to show difficulties with access to bargaining, particularly in situations where the respondent was in effect asking the union to organize more than one work site, the Board has balanced the interests of the parties, giving 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.

9. The Board's practice of not granting departmental or classification-based bargaining units is grounded in its industrial relations expertise and in its superintending function. The Board is entitled to draw on its experience in fulfilling this role and in establishing such practices. That is part of the reason why the Board is a Board and not a court. In this area, the Board's practice is well known. It is found in the case law set out above. Problems of fragmentation are not restricted to those identified by Mr. McCreary but are legion in the Board's case law. The reference to the requirement of "concrete demonstrable problems which will result from the applicant's proposed bargaining unit" noted in such cases as Active Mold Plastic Products Ltd. [1994] OLRB Rep. June 617, is meant to shift the focus away from arguments concerning differing communities of interest. It is not meant to suggest that the applicant gets the unit that it applies for no matter how that unit is defined and it is certainly not meant to suggest that fragmentation and departmental bargaining units are not problematic. While the Board must always be alive to the possibility of exceptions, for the reasons already given this case is not one of them.

10. Finally, I would observe that there is a significant value to be derived from certainty in this area. Parties understand the way in which organizing must be conducted and govern their affairs accordingly. Funds are not expended, employee expectations are not raised, and scarce public resources are not drawn down in pursuit of collective bargaining structures which are unlikely to pass muster. Despite counsel's best efforts to distinguish this case from the substantial body of law in this area, it falls within the general principle outlined above.

11. Accordingly, the application is dismissed.