1029-00-R Labourers’ International Union of North America, Local 1059, Applicant v. Hallcon Cleaning Ltd., Responding Party.
BEFORE: David A. McKee, Vice-Chair.
APPEARANCES: Andrea Bowker and Irene Nowicki for the applicant; Marsha Lindsay and Dan Cox for the responding party.
DECISION OF THE BOARD; August 17, 2000
This is an application for certification pursuant to the general provisions of the Labour Relations Act, 1995, S.O. 1995, ch. 1 (“the Act”). A representation vote was held on July 11, 2000. Twenty-two employees voted. Nineteen voted in favour of the applicant, two voted against being represented by the applicant. One person’s ballot was segregated as the responding party took the position that that individual was no longer employed on the application date.
The only issue before the Board is the bargaining unit description. The responding party is a cleaning contractor. It is engaged in the performance of cleaning on the premises of certain customers in the City of London and elsewhere. On the application date, it had contracts to clean eleven locations in the City of London. Each location is covered by a separate contract between the responding party and the customer.
The applicant applied for a unit of:
all employees of Hallcon Cleaning Ltd. employed in the City of London, save and except foremen, persons above the rank of foreman, office, engineering and sales staff.
It listed the ten sites of the responding party of which it was aware. In fact, the applicant has collective agreements covering all of the sites with a different employer which formerly had the contracts to clean these locations (Edcore Enterprises (1987) Ltd. c.o.b. Bee-Clean, hereinafter “Bee-Clean”). Bee-Clean lost these contracts in a tendering process. The responding party was successful in obtaining those contracts. Pursuant to the provisions of the Employment Standards Act, R.S.O. 1990, ch. E-14 (“the ESA”) it offered employment to, and continued to employ, all or most of the employees previously employed by Bee-Clean.
The responding party proposes as a bargaining unit:
all employees of Hallcon Cleaning Ltd. employed at 80 Dundas Street, 1670 Oxford Street, 353 Richmond Street, 707 Exeter Road, 659 Exeter Road, 669 Exeter Road, 667 Exeter Road, 823 Exeter Road, 900 Highbury Avenue, 55 Centre Street in the City of London, save and except foremen, persons above the rank of foreman, office, engineering, technical and sales staff.
This reflects the ten sites the union identified in its application. The responding party did not advise the Board (nor apparently did it advise its counsel) that it employed another individual on an eleventh site in London, that is, the CN Transportation office on Eggerton Street in London. The existence of this eleventh employee was discovered by counsel, who advised the applicant and the Board on July 28, 2000. It seems likely that this employee did not receive notice of the application for certification and was likely deprived of the opportunity to cast a ballot in the representation vote.
The responding party made a number of arguments as to why its proposed bargaining unit was appropriate, and the applicant’s was inappropriate. Although it referred to its proposed bargaining unit as a “site-specific” unit, it is not really. Its has a geographic scope other than the City of London at 10 specific addresses. For the purposes of this decision, it will be referred to as a “10-site unit”. The issues raised by the responding party are as follows:
(1) The applicant had bargaining rights with another employer covering the sites in a series of site-specific collective agreements. Since the union had presented no evidence that this was an unworkable bargaining structure, the Board should not disturb an existing viable relationship. The applicant in response asserted that it had previously represented employees cleaning these same sites when they were employed by two different employers who held portions of these cleaning contracts before Bee-Clean who were bound to collective agreements with city-wide bargaining units. The responding party stated that the attempt to seek certification for a city-wide unit was an attempt by the applicant to expand its bargaining rights. Further, it asserted that, in the absence of evidence to the contrary, the previous bargaining structure was one which had proved viable and should not therefore be disturbed by a decision of the Board.
(2) A city-wide unit would not be appropriate because it would lead to a situation in which the employer was bound to a collective agreement which might cover employees employed in the performance of contracts which the responding party had not yet bid. This would limit its flexibility and its ability to bid in a competitive fashion against other cleaning contractors.
(3) While the responding party recognized that the terms of a collective agreement could be varied mid-term, this would require obtaining the consent of the union. There was no guarantee, in the responding party’s submission, that the union would respond appropriately to requests to vary the collective agreement to take into account the realities of different cleaning contracts.
(4) A city-wide bargaining unit would “sweep in” unrepresented employees who had yet to be hired on contracts on which the employer was currently bidding or might bid in the future.
(5) The bargaining unit was not appropriate because it would sweep in the one employee at the CN Transportation offices.
In determining the bargaining unit in this application, the Board is faced with the same question it faces in every application: Is the unit for which the union has applied an appropriate unit and is it one which can be viable without causing serious labour relations problems? The question is not whether or not some other unit is more appropriate. The question is simply whether the unit applied for meets the aforementioned test.
The Board has issued many certificates over the fifty-two years of its existence. Its general approach to determining the appropriate bargaining unit has been developed over the course of those fifty years. The best general formulation of the Board’s approach to finding an appropriate bargaining unit is set out in The Governing Council of the Salvation Army in Canada and Bermuda, [1994] OLRB Rep. Jan. 85, as follows:
- Several years ago, in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, the Board undertook a review of its traditional approach to bargaining unit determination. The Board noted at paragraph 14:
- It will be seen that the statutory language has remained basically unchanged for more than four decades, and in the early years it provided the basis for making broad distinctions for bargaining unit purposes between such groups as: “white collar” office and technical employees, and “blue collar” production employees; skilled tradesmen (electricians, plumbers, sheet metal workers, etc.), and unskilled or semi-skilled workers; part-time employees and full-time employees; employees working for an employer in one plant or municipality and employees in another plant or municipality; and so on. However, these fairly simple, and then unexceptional distinctions, do not apply so easily today. Collective bargaining has extended beyond its traditional “blue collar” industrial base, into the public sector and to increasingly sophisticated and diverse job hierarchies. Real life collective bargaining experience has outstripped some of the conventional wisdom and has shown that the collective bargaining system can exhibit quite a variety of structures, which, at one time, parties might have considered unconventional or inappropriate. Ontario Hydro, for example, has a province-wide bargaining unit, encompassing a broad range of employee classifications, and thousands of employees, ranging from unskilled workers to highly trained technicians. A typical municipal “inside workers” (white collar) bargaining unit may include occupations ranging from filing clerks, to compute programmers, economists and planners with a considerable amount of post-secondary or even graduate training [see the Board’s decision in The Regional Municipality of Durham, Board File 1818‑84-R, decision released November 20, 1984]. The Ontario Civil Service bargaining unit contains thousands of employees ranging from clerks and typists to sophisticated scientific and technical personnel – and, incidentally, the staff of a number of provincial psychiatric hospitals (see: Owen Sound General and Marine Hospital, [1978] OLRB Rep. May 445, where the Board noted that in the government sector nurses, paramedicals, service employees, and clericals are all in the same unit, even though under the Labour Relations Act, they have typically been segregated into separate units). While at one time common opinion and industrial relations practice might have supported fairly rigid (almost “class”) divisions between employee groups, modern collective bargaining seems to be able to thrive quite well in many contexts without such rigid distinctions. It is no longer as easy as it once was to say that it is “inappropriate” to group together for collective bargaining purposes, employees with quite diverse skills, education, training, position in the job hierarchy or probable aspirations.
The Board signaled its intention to be more flexible and forensic about bargaining unit structure, then went on to say:
… We are troubled by the fact that a largely administrative and policy-laden determination has mushroomed in some cases into an elaborate, expensive, and time-consuming process for deciding a relatively simple question: does 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.
[emphasis added]
If the unit applied for meets that simple test, it serves no purpose to litigate or consider alternative bargaining unit configurations.
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.
These goals must be harmonized within a framework that now recognizes 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 it applies for.
- This reasoning has led the Board to issue hundreds, if not thousands, of certificates to trade unions describing bargaining units on a municipal-wide basis. The Board has come to the conclusion over the years that broadly-based bargaining units are preferable to narrowly-based units, in that they avoid the labour relations problems associated with fragmented bargaining units. To quote again from the Salvation Army decision:
- 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. In other words, if a trade union seeks a more comprehensive bargaining unit, this larger unit will usually be appropriate, and will very likely be accepted on the Hospital for Sick Children test, unless there are serious labour relations problems with it which demonstrably overwhelm the difficulties associated with fragmentation, or unless the larger unit applied for seems idiosyncratic or perverse. Indeed, unless the labour relations context is quite unusual, one would expect the more comprehensive bargaining unit to be presumptively appropriate, if that is what the union has organized and applied for; and it serves no purpose to engage in the exercise mentioned in the emphasized portion of the Hospital for Sick Children case reproduced at paragraph 18.
- A “site-specific” bargaining unit may or may not be appropriate. A trade union will generally apply for a site-specific bargaining unit if there is a second location of the employer in the municipality where it lacks the requisite support to be certified. The site-specific bargaining unit may be appropriate and the union may be certified for such a unit even where a municipal-wide unit may be more appropriate. The responding party relied on the Board’s decision in Sa-Wal Janitorial Limited, [1994] OLRB Rep. Apr. 476. In that decision the Board said at paragraph 21:
- Underlying our comments is the view that this employer operates a no more highly integrated workforce than many multi-contract providers of security or cleaning services, where site-specific bargaining units are by no means uncommon. While a more comprehensive bargaining unit is probably more appropriate, that does not necessarily make a site-specific bargaining unit inappropriate. The employer agreed that its workforce is basically stable. The agreed facts that reflect a considerable length of service by some employees at particular locations and the limited amount of interchange between locations confirms this. We note that although the contract is held with each School Board for a number of schools, the tender and bid process involved, in effect, reflects a variable number of site-specific agreements combined within that larger contract. While there may be bargaining issues that arise in this context, neither historically nor in this case is there evidence of the kind of serious labour relations problems that would lead us to conclude that the site-specific bargaining units applied for are not appropriate.
The Board did not say that for these reasons the site-specific unit was more appropriate. In fact, it said that the municipal unit was more appropriate. However, since the proposed bargaining unit was an appropriate bargaining unit and one which could be viable without causing serious labour relations problems, the Board issued a certificate.
That is not to say that a site-specific bargaining unit will always be appropriate. The Board has found such bargaining units to be inappropriate where there is sufficient interchange between the site applied for and another location in the same municipality. The site-specific bargaining unit would create “serious labour relations problems”. It is in that context that the integration of workforces in more than one location is an appropriate consideration. It is not a relevant consideration in dealing with the issues in this case.
The applicant has applied for a municipal unit. A municipal unit is prima facie appropriate, if not the most appropriate unit: see Sa-Wal, supra, Ogden Allied Building Services Inc., [1993] OLRB Rep. Dec. 1346, and Best Cleaners and Contractors Limited [1988] OLRB Rep. Nov. 1143. Accordingly, the onus is on the employer to demonstrate that there is some reason why the unit is inappropriate. In our view, it has not done so. The organization of its workforce as described by counsel for the responding party is very similar to that described by the Board in Ogden Allied Building Services, supra, at paragraphs 6-10. Nothing in the responding party’s submissions or the facts alleged persuade the Board that a municipal unit is not an appropriate one.
The real concern of the responding party is that it fears collective bargaining will limit its flexibility in bidding on contracts in that it may be bound to a collective agreement which prescribes terms and conditions of employment which are disadvantageous to it in bidding on a contract. The Board does not, and indeed cannot, predict all of what the parties will and will not agree to, and the extent to which they will be sensitive to each other’s needs if adjustments are sought to the collective agreement during its term. To do so would be to grant certification, or at least bargaining units, based on the Board’s perception of the “good character” of the parties who appear before it. This is not what the statute requires the Board to do and would be inappropriate in any event. The Board’s task is to set a bargaining unit description within which the parties can bargain a sensible collective agreement. The extent to which they do so and the success which they achieve to their mutual advantage will be up to them.
As well, the Board does not accept the responding party’s submission that, on a purely practical level, if such a certificate were to be issued, “the responding party would never get another cleaning contract”. In the construction industry, the statute requires the Board to issue certificates on a geographic basis wider than a municipality. In some sectors employers are automatically bound to existing collective agreements. Given the nature of the construction industry such certificates and subsequent collective agreements will inevitably apply to future projects on which the employer will bid against “non-union” competition. The Board’s experience has not been that such certificates have the drastic effect on a contractor’s business that counsel for the responding party in this case predicts.
The Board has generally, and specifically in dealing with cleaning contractors, found that a municipal unit is the most appropriate unit. As counsel for the responding party pointed out, it has also found that a site-specific unit is appropriate. However, neither counsel were able to present us with a case in the cleaning industry, or indeed in any industry, in which the Board certified a union for a unit of employees in some, but not all, of certain specific locations within a municipality. That is, the Board has never found, nor has it been asked to find, that a unit similar to that proposed by the responding party is appropriate. The Board does not exclude the possibility that, in other circumstances, it may be an appropriate unit. However, since the applicant has identified an appropriate unit, it is not the Board’s task to determine whether some other unit might be more appropriate. On the facts and argument as we have heard them, we do not conclude that a 10-site unit would be more appropriate. As discussed further below, such a unit would be inappropriate in this application.
The employer’s other arguments do not persuade the Board to come to a different conclusion. The union is not applying to “expand its bargaining rights”. The applicant has no bargaining rights with this employer and no history of collective bargaining with this employer. It has different histories and different collective bargaining relationships with other employers. Some of those other employers from time to time have held cleaning contracts on the same sites as are the subject of this application. However, the applicant has no bargaining rights for employees of this employer at these or any other locations. That is, there is no background history between these parties which is relevant to the Board’s determination.
Similarly, the Board heard some submissions by both counsel to the effect that the applicant represents some employees of other cleaning contractors in the City of London. With six of those employers it has concluded municipal-wide collective agreements. With eight other employers it has concluded site-specific collective agreements. All that those facts tell the Board is that industry practice in London does not assist the Board in its task in determining an appropriate bargaining unit. Certainly it would appear that either sort of unit is a viable unit.
The employer argues that such a bargaining unit will likely lead to a collective agreement that “sweeps in” new employees if the responding party hires new employees or if it takes on a new contract. This is true. The purpose of any certificate, and indeed any collective agreement, is to define a bargaining unit. It does not define a group of particular individuals. To the extent that new employees are added to an existing bargaining unit, at an existing or a new location, that is an accretion to that unit. They will likely be required to join a trade union or at least to pay dues to that union regardless of their wishes with respect to union membership. Like all employees represented by a union, if a majority of them no longer wish to be represented by a particular trade union or any trade union, they may apply to terminate those bargaining rights at the appropriate time.
We note the same is true for the employees who voted against union representation in the representation vote. They too will be part of the bargaining unit represented by the applicant. This however is a function of a collective agreement regardless of how the bargaining unit is crafted. It has no bearing on how to define that bargaining unit.
The Board is, however, concerned that the one employee at the CN site (Mr. Glen Fex) did not receive notice of this application. He should have. The fault is not that of the applicant, but of the responding party. The responding party should have identified that employee in its response. It was a site at which it had apparently held a contract for a previous year and a half. Had the responding party identified Mr. Fex, the Board would have ensured that he had an opportunity to cast a ballot in the representation vote. However, the bargaining unit will not be determined on the basis of the failure of the responding party to comply with its obligations in an application for certification.
The Board does note, however, that leaving aside the issue of notice to Mr. Fex, the proposed bargaining unit of the responding party is inappropriate. Whether it is made now or whether it was made, as it should have been made, in the response to the application, the bargaining unit proposed by the responding party is one which would include all but one employee. That is, the responding party would seek, by means of the bargaining unit description, to deprive one employee of his ability to bargain collectively under the statute. Such a bargaining unit is inconsistent with the Labour Relations Act, 1995 and is, in itself, inappropriate. The Board would not issue a certificate for such a bargaining unit.
However, the Board must be concerned with notice to persons affected by an application. On the basis of the facts as they were presented to the Board, even if Mr. Fex had been given notice and even if he had participated in the representation vote, his ballot would not have made a difference to the final result. However, the Board does not wish to deprive him of the opportunity to make any submissions he chooses to make. Accordingly, the matter will be dealt with in the manner set out below.
The Board therefore determines that:
all employees of Hallcon Cleaning Ltd. employed in the City of London, save and except foremen, persons above the rank of foreman, office, engineering, technical and sales staff,
constitute a unit of employees of the responding party appropriate for collective bargaining.
On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.
A certificate will issue to the applicant.
There will be no direction with respect to the ballots cast in the representation vote until after the time for submissions set out below has passed.
If Mr. Fex has any submissions to make in light of the Board’s decision, he is directed to file them in writing within 21 calendar days of the date of this decision. Any submissions should be delivered to counsel for the responding party and the applicant at the addresses indicated on the cover letter to this decision. Any replies to Mr. Fex’s submissions are to be filed with the Board within 7 calendar days of the date of his submissions. The final word goes to Mr. Fex and, if he chooses to do so, his response to any replies made must be filed with the Board within 7 calendar days of the date of the submissions by the other parties. Any submissions filed by Mr. Fex will not be subject to the usual restrictions with respect to an application for reconsideration, but will be considered as fresh submissions.
However, unless the Board does determine to vary its decision, this decision and the certificate issued is, as between the applicant and the responding party, final.
“David A. McKee”
for the Board```