National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW-Canada) v. Hudsons Bay Company
3463-99-R National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW-Canada), Applicant v. Hudsons Bay Company, Responding Party.
BEFORE: Timothy W Sargeant, Vice-Chair.
APPEARANCES Bernard Hanson and Mike Armstrong for the applicant; Wallace Kenny, David Brennan, Rick Hibberd and Sharon Duff for the responding party.
DECISION OF THE BOARD; April 4, 2000
1The style of cause is hereby amended to reflect the correct name of the responding party: “Hudsons Bay Company”.
2This is an application for certification.
3Pursuant to a Board order dated March 1, 2000 a vote was held on March 3, 2000. The ballot box was sealed.
4One of the issues between the parties concerned the description of the bargaining unit. The applicant applied to be certified for the following bargaining unit:
all employees of the Hudsons Bay Company c.o.b. as Acadian Court Restaurant in the City of Kitchener, save and except Supervisor, persons above the rank of Supervisor, and employees currently covered by an existing collective agreement as of February 25, 2000.
The responding party took the position the unit applied for by the applicant was not an appropriate bargaining unit.
5At a hearing held on March 27, 2000 the parties agreed that the Board should first determine whether the bargaining unit applied for by the applicant was an appropriate bargaining unit.
6The essential facts are not in dispute. The parties agreed to a number of facts. In addition the Board heard from one witness Ms. Sharon Duff the Human Resources Manager at the Kitchener store.
7Briefly the issue involves 18 or 19 part-time employees who work at the Acadian Court Restaurant at the Hudsons Bay store in Kitchener. The union seeks to represent this group of employees. The employer submits that the restaurant is just one department from at least 14 departments located at the store. As such the employer submits the applicant is asking to carve out a group of approximately 19 part-time employees from a total number of 153 part-time employees working at the store in various departments.
8Currently the applicant represents a unit of approximately 43 full-time employees at the store. It is agreed that there are no full-time employees working at the restaurant but if there were such employees would be covered by the full-time collective agreement. It is also agreed that the applicant’s predecessor union applied for certification of a unit of part-time employees at the store, which unit would have included all part-time employees including those working at the restaurant. A vote was held and the applicant did not obtain the required majority of ballots cast necessary for certification, and as a result the application was dismissed.
9It was also agreed that the Hudsons Bay Company (the “Bay”) has four other agreements with the applicant in Ontario at Windsor, Kingston, Brampton and Sherway Mall. These have collective agreements with all inclusive units (i.e. both full-time and part-time). Employees working at the restaurants at such locations are covered by the respective collective agreements. Likewise the Bay’s “sister” company Zellers Inc. has 15 separate agreements with the UFCW union, Local 175 in Ontario. In at least 11 of these stores there is an in store restaurant which restaurant is included in the all employee unit at each individual store.
10The store in question in this matter is located in a mall in Kitchener. The restaurant itself is located on the third floor of the store. The only way to enter the restaurant is through the store; there is no separate entrance to the restaurant from either the mall or the street. The store is open Monday to Friday from 9:30 a.m to 9:00 p.m., Saturday from 8:30 a.m. to 6:00 p.m. and Sunday from noon to 5:00 p.m. The restaurant is open Monday to Friday from 10:00 a.m. to 7:30 p.m., Saturday from 9:00 a.m. to 4:30 p.m and Sunday from noon to 4:00 p.m. The restaurant during its open hours is available to both patrons and employees.
11It was evident from the testimony of Ms. Duff that there are at least 14 departments, if not more, at the store (for example Ladieswear, Shoes, Jewellery, etc.). Each department has a supervisor, though in certain cases a supervisor may be responsible for more than one department. There are currently 14 supervisors. The supervisors report to the Store Manager. The restaurant has a supervisor whose sole responsibility is for the restaurant.
12The supervisors virtually have day to day control of the department they are managing. Thus they are responsible for the scheduling of hours, for determining needs, ultimately deciding on new hires and for normal operational responsibilities.
13There are different skill sets for employees in the different departments. In regards to the restaurant itself it is clear that there is virtually no movement (only one example and this was a requested transfer made at an unknown time) of employees from the restaurant to the other departments or vice versa.
14The restaurant has its own change room and in addition has its own staff room and bulletin board. Other departments do not have a change room and share a common staff room, which employees from the restaurant may also use. There is also a common bulletin board. Restaurant employees are required to wear a uniform with the logo Acadian Court Restaurant. The restaurant has a separate budget, whereas the other departments are under a common budget. Supplies for the restaurant are delivered to the receiving dock, where all supplies for the store are received The supplies are then delivered to the restaurant from the receiving dock. Within the restaurant there are five separate classifications Food 1, Food 2, Food 3, Food 4 and Waiter. There are no such classifications in any other departments. There are separate job descriptions for each of the classifications.
15Restaurant employees are treated for administrative purposes in the same fashion as other employees in other departments. Thus the restaurant employees participate in the same benefits, attend the same social functions, are required to sign the same corporate applications and other employment documents, are represented on the health and safety committee and the social committee, serve the same probationary period, attend common orientation programs for new hires, have the same discount privileges, are paid through the same direct deposit payroll system, are subject to the same policies and regulations, and share common human resources services as all other part-time employees at the store.
16There are two categories of part-time employees. The first category is the auxiliary group who work up to 975 hours during a year with no guarantee of hours. The second category is the regular part-time employee group who are guaranteed 975 hours over a one year period, September to August. The regular part-time employees are eligible for certain health benefits that are not available for the auxiliary part-time employees. The restaurant has both categories of part-time employees, as do other departments within the store.
17In addition to the departments at the store, there are several licensed operations i.e. hair salon, Newtex Cleaners, watch and jewellery repair. The Bay agrees to give space in the store to these operators for a percentage of their sales. The Bay has no responsibility for employees of these operations, as they are employees of the operators. Supplies for such operations are delivered to the same receiving dock as supplies for all other departments of the store.
18Counsel for the employer argues that in these circumstances the unit applied for by the applicant is not appropriate. Counsel points out that the industry practice has been to include restaurant employees on a store wide basis with other employees. Though the skills of employees may be different from employees in other departments, the restaurant is obviously integrated with the store. If the store is not open, there is no access to the restaurant. The restaurant is “captive to the location” These employees enjoy the same benefits and are subject to the same corporate policies as other employees in other departments. The Board’s practice is to reject departmental units as the Board recognizes that a departmental unit would lead to serious labour relations problems. The Board’s policy in circumstances such as this is to avoid the possibility of undue fragmentation. If this unit was appropriate, then arguably a unit consisting of the jewellery department could be appropriate and so on and so forth for each department so that the employer potentially could be faced with up to 14 separate bargaining units. There just can not be any question that the restaurant employees do not have accessibility to an appropriate bargaining unit. The fact that the union failed in its attempt to certify such unit is not an argument that access for these restaurant employees is not available. Counsel for the employer therefore submits that the bargaining unit applied for is not appropriate. In such circumstances the application for certification should be dismissed.
19During the course of argument counsel referred to the following cases:
Lionhead Golf & Country Club [1996] OLRB Rep March/April 271
T. Eaton Company Limited [1984] OLRB Rep. May 755
Simpson’s Limited [1984] OLRB Rep. September 1255
Sifton Properties Limited [1993] OLRB Rep. October 1010
Horizon Poultry Products Inc. [1998] OLRB Rep March/April 208
Horizon Poultry, A Division of J.M. Schneider Inc. OLRB File No. 1385-99-R, a decision of the Board dated October 12, 1999
Sheehan’s Truck Centre Inc. [1999] O.L.R.B. No. 2852
Guelph Services for the Physically Disabled OLRB File No. 2716-99-R, a decision of the Board dated February 18, 2000; and
Humber/Northwestern/York-Finch Hospital OLRB File No. 3480-96-R, a decision of the Board dated October 16, 1997
20Counsel for the union stated that the Board should not simply determine this issue by stating Board policy and applying it. Thus the Board should not, for example, state that its policy is that it will not certify departmental units except in exceptional circumstances. Rather in this type of situation the Board is obligated to consider the facts of each situation and ask the question:
“Does the unit which the union seeks to represent encompass a group of employees with sufficient – 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” (see Hospital for Sick Children [1985] OLRB Rep. Feb. 266 at paragraph 14).
21Counsel points out that the union does not have to establish that the unit applied for is the most appropriate unit, but simply that the unit applied for is an appropriate unit. The Board is engaged in a balancing act between two competing interests:
(a) accessibility to collective bargaining on the one hand; and
(b) serious labour relations problems for the employer on the other hand.
22Counsel for the union submits that based on the independence of the restaurant, the lack of interchange of restaurant employees with other employees, the authority of the supervisor over the restaurant, and the financial independence of the restaurant, the bargaining unit sought by the applicant is an appropriate bargaining unit. Further counsel argues that there clearly is a problem of accessibility for the employees in the restaurant. In the bargaining unit that the employer says is appropriate the union was unable to achieve certification. Thus if the proposed unit in this instance is rejected by the Board, it means that the employees in the restaurant will never be able to have the benefit of collective bargaining. The applicant therefore submits that in these circumstances the Board should find that the bargaining unit applied for is an appropriate bargaining unit.
23During the course of argument counsel for the union referred to the following cases:
Fort William Golf & Country Club Limited [1995] OLRB Rep. August 1070
Burns International Security Limited [1994] OLRB Rep. April 347
Sears Canada Inc. [1985] OLRB Rep. January 111
Collegiate Sports Experts [1995] OLRB Rep February 96; and
Sears Canada Inc. OLRB File No. 4586-94-R, a decision of the Board dated October 8, 1998
DECISION
24There is no question in the Board’s view that the restaurant in question is part of the Bay’s operation at the Kitchener store. The restaurant does not open unless the store is open, and has to be entered through the store premises. The store is run in all its departments by a similar managerial operational process. Employees in the restaurant are clearly covered by similar working conditions as other employees in other departments. So as though the restaurant may have a separate budget and virtually no movement of employees to other departments, the Board is of the opinion that the restaurant is one of several departments of the Bay’s operation and as such is fully integrated with the store’s operations at Kitchener.
25As the Board stated in Horizon Poultry Products Inc. [1998] OLRB Rep. March/April 208 at paragraph 8:
… 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 save level of “community of interest” as the “Maintenance and Power Services Department” employee, 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 in 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
26The Board has also stated that generally the presumption is that a departmental unit would not be conducive to sound collective bargaining and would lead to serious labour relations problems because of the potential fragmentation problems that could result (see for example Sheehan’s Truck Centre Inc. cited above, at paragraphs 25 and 26).
27Further as the Board stated in Horizon Poultry Products Inc. at paragraph 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”.
28Having found that the restaurant is functionally integrated with the store, the Board is not persuaded that it should depart from the principles stated above. Further the Board agrees with the position of counsel for the employer concerning the submissions on the issue of accessibility. For these reasons the Board finds that the bargaining unit proposed by the applicant is not an appropriate bargaining unit.
29The parties concurred that if a finding was made that the bargaining unit applied for was not appropriate, then this application should be dismissed in accordance with section 8.1 of the Act.
30According the application is hereby dismissed.
31The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of the decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.
“Timothy W. Sargeant”
for the Board