3275-99-R Ontario Public Service Employees Union, Applicant v. Complex Services Inc. c.o.b. as Casino Niagara, Responding Party.
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Richard Blair, Pat Honsberger, Ken McLean and Tim Vanderberg for the applicant; Simon Mortimer, Bruce Caughill and Ron Piers for the responding party.
DECISION OF THE BOARD; August 2, 2001
This is an application for certification.
The applicant (the “union” or “OPSEU”) applies to represent a bargaining unit of security guards of the responding party (the “Casino”). The Casino operates Casino Niagara in Niagara Falls.
The Board has conducted a representation vote among the appropriate employees. A majority of those employees voted in favour of representation by the union.
Special legislation, the Gaming Control Act, applies to the responding party and its employees to ensure the integrity of gaming in the Casino. Under this legislation, the applicant must be licensed by the Alcohol and Gaming Commission of Ontario (the “AGCO”) before it can represent any of the Casino’s employees, assuming that the applicant is otherwise in a certifiable position under the Labour Relations Act (the “Act”). As of the date of this application for certification the applicant had not yet been registered. However, by decision dated April 28, 2000, the Board determined that this application ought to proceed pending the AGCO’s decision. To that end, the parties appeared before the Board to present evidence and argument with respect to the one remaining issue in dispute. That issue is whether the Board ought to certify the union (leaving aside the AGCO registration issues) to represent the Casino security associates, despite the fact that the Casino has given the Board notice under section 14(2) of the Act that it objects to the certification of the applicant, as OPSEU is a “trade union that admits to membership persons who are not guards”. In order to resolve the issue the Board must determine whether no conflict of interest would result from OPSEU becoming the bargaining agent of security associates employed by the Casino.
To highlight the issue, section 14 is reproduced here:
(1) This section applies with respect to guards who monitor other employees or who protect the property of an employer.
(2) Unless the employer notifies the Board that it objects, a trade union that admits to membership persons who are not guards or that is chartered by or affiliated with an organization that does so may be certified as the bargaining agent for a bargaining unit composed solely of guards.
(3) Unless the employer notifies the Board that it objects, a bargaining unit may include guards and persons who are not guards.
(4) If the employer objects, the trade union must satisfy the Board that no conflict of interest would result from the trade union becoming the bargaining agent or from including persons other than guards in the bargaining unit.
(5) The Board shall consider the following factors in determining whether a conflict of interest would result:
The extent of the guards' duties monitoring other employees of their employer or protecting their employer's property.
Any other duties or responsibilities of the guards that might give rise to a conflict of interest.
Such other factors as the Board considers relevant.
(6) If the Board is satisfied that no conflict of interest would result, the Board may certify the trade union to represent the bargaining unit.
- The Casino called Ronald Piers, the Casino’s director of security and the trade union called a security associate, Ken McLean and Pat Honsberger, an organizer for OPSEU. Each of the witnesses testified honestly and candidly and I have no difficulty accepting their evidence. On the whole there are essentially no facts in dispute, although the parties may place a different emphasis on some of the evidence which will be described where necessary.
The Facts
The Casino employs approximately 3600 employees. Four groups of those employees are relevant to this application: the security associates, surveillance associates, gaming associates, and food and beverage associates. Security associates are the Casino’s visible security. Surveillance associates are unseen and monitor the entire Casino through video and other equipment. Gaming and food and beverage associates are categories which include employees like dealers, slot technicians (employees who repair slot machines), bartending employees and servers, bus persons etc. In this decision, the gaming and food beverage associates will be collectively referred to as the “gaming associates” although this group encompasses more employees than just employees who work with the Casino’s gaming operation.
The Casino employs 187 people in its security department including the 176 security associates who are the subject of this application.
There is no dispute that the casino is extremely security conscious. There are two reasons for this. One is to protect its patrons and the Casino’s assets, including the vast sums of money and gaming chips that are located in the Casino every day. The second reason is that the gaming industry is highly regulated and those regulations require high levels of security. If the Casino does not strictly comply with the Gaming Control Act and its extensive regulations it risks losing its gaming license. There are two main arms to the security function: the security associates and the surveillance associates. AGCO also employs inspectors who attend at the Casino property from time to time to ensure that the Casino is in compliance with the applicable regulations. These inspectors are represented in their employment relations with the government by OPSEU.
In the Spring of 2000, the applicant attempted to organize the gaming associates. However, after substantial effort the applicant was unable to obtain the support it required to file an application for certification for that group of employees. Accordingly, in June, 2000 OPSEU terminated its organizing efforts. There is no dispute that some gaming associates unit signed OPSEU membership cards or applications for membership and may still be carrying such cards.
On each shift there are approximately 50 security associates on duty. These associates have different responsibilities depending, primarily, on which area of the Casino they are assigned. There are 5 security associates located at the main (Rotunda) entrance to the Casino, and a combined 5 additional officers to cover 3 minor entrances. The main function of these security associates is to ensure that no minors enter the Casino and to ensure no alcoholic beverages and/or weapons are brought in. Their only duties that practically may involve gaming associates is to ensure that they do not enter the Casino through an entrance other than the employee entrance and to ensure that associates who do enter through the employee entrance wear proper identification. They may also have to check bags for casino property.
There are approximately 40 security associates whose duties do not, on any given night, involve watching the Casino’s entrances. A number of security associates occupy “podiums” on each of the floors of the Casino. The podium is a fixed and central area on the casino floor where security associates operate a base radio, deal with lost and found items, and safeguard the Casino’s hundreds of keys (one key for each slot machine, for example) by logging their use. If a key is unaccounted for the Casino will change all of its locks. Security associates assigned to the podium also assign security associates to perform other tasks which are more fully described below.
Other security associates are on general patrol and three to four security associates who deal with contractors by signing them in and escorting them wherever they go in the Casino. Two other security officers deliver cards and dice to tables and ensuring that old cards and dice are appropriately disposed of. One security associate is designated to secure any area where a jackpot is made and another security associate is assigned to be with a slot technician whenever a slot machine is opened.
The Casino also requires that security associates provide escorts for or actually deliver sums of money or chips from one area of the casino to another. Money transfers under a particular amount require no escort, while other transfers require one or two security associates depending on the sum of money involved. Similarly, security associates will be assigned to escort or deliver chips depending on the number of chips involved.
Finally, one security associate on each shift is designated an investigator who participates in investigations of all incidents at the casino, about which more will be said later. Although all security associates are capable of performing the investigator’s role, as a practical matter the duty is generally assigned to the same persons.
The employer led a substantial amount of evidence, through written security reports and oral testimony to demonstrate that security associates actually identified gaming associates who were breaking casino policy and reported those employees to management. The security incident reports suggested that there were a variety of situations in which security officers become involved in the identification of rules breaches which may result in discipline for other employees. For example, a security officer might report that a slot machine door was open. The result of that report would almost certainly be an investigation which may result in the discipline of a slot technician who is a gaming associate. Other examples of the kinds of reports made by security officers include employees in places where they were not supposed to be, the transfer of money by employees before a security associate is present in accordance with Casino rules, and the identification of an underage person in the Casino. All of these incidents may result in an investigation, which may be conducted in whole or in part by a security associate and which under the appropriate circumstances may result in discipline for a gaming associate.
Mr. Piers, the Casino’s director of security, testified that the Casino depends on security associates to ensure that all policies are complied with, in part because while the Casino’s surveillance system is far reaching (this was made clear by the types of procedural violations which were identified by surveillance) the Casino could not live monitor everything in the Casino at all times. The main purpose of the surveillance system is to prevent patrons from cheating.
The main thrust of the union’s cross-examination of Mr. Piers was to identify the systemic safeguards which protect the Casino from lapses by security associates. In this regard Mr. Piers acknowledged that many of the security issues which resulted in reports being filed which could have a negative impact on gaming associates actually were identified by surveillance. In addition, all employees have an obligation to report breaches of policy, not just guards. Similarly all departments are required to generate reports which are sent to the AGCO by the Casino on each occasion where there was a violation of policy.
The Casino led evidence about the role of the AGCO in the Casino. As noted, in order to ensure that the regulations and provisions of the Gaming Control Act are complied with, the AGCO employs inspectors, who are represented by OPSEU. AGCO inspectors visit the Casino once or twice every week and have the right to enter virtually every area of the casino and make demands of casino employees, including security associates. Demands that are frequently made of security associates include the examination of keys logs and money transfers. It is possible that were the inspector to find violations of regulations by security associates, the security associate could be disciplined.
Ms Honsberger testified about OPSEU’s efforts to organize the Casino’s gaming associates. OPSEU’s efforts lasted six months and were discontinued in June 2000 when the union gave up the hotel room it had used as headquarters for its drive. Ms Honsberger indicated that the union had given up on its efforts to organize the Casino’s gaming associates although she acknowledged that if 60% of employees at the Casino came to OPSEU and asked the union to represent them OPSEU would do so. Ms Honsberger acknowledged that there were gaming associates who had signed applications for membership in OPSEU and who still held such cards. She also testified that some gaming associates had asked to see OPSEU’s constitution. The parties agreed that OPSEU’s constitution governs the operations of the union and affects the relationship between members. The constitution has a provision which states:
29.9.3 Every new Member shall, as part of his/her application for membership in the Union, be required to sign a declaration containing the following words:
“I,______, solemnly promise to uphold and obey the Constitution and By-laws of this Union, to assist my fellow members to improve their economic, political, and social conditions, to uphold the principles of democracy and fair play, and to do no deliberate wrong or harm to any other member of this Union.”
Every such declaration must be witnessed by a person who may be a member of the Local, an employee of the Union, or any other representative of the Union duly authorized by it.
29.9.4 It shall be the duty of all Officers and Members to uphold their respective oaths and failure to act in accordance with them shall be deemed to be contrary to the Constitution.
The oath is printed on the application for membership which OPSEU was using at the time of its organizing drive of the main bargaining unit.
Decision
The trade union acknowledges that the effect of section 14(4) of the Act is that it bears the onus to satisfy the Board that no conflict of interest would result from OPSEU becoming the bargaining agent of the security associates. Both parties also agree that the criteria set out in section 14(5) are those that the Board must consider in determining whether any conflict of interest would result. There is very little disagreement about the facts. The parties differ on the extent of the security officers’ monitoring of other employees and the employer’s property and the other factors the Board should consider relevant. The parties also disagree about where section 14(4) applies only to any current conflicts of interest, or whether future possible conflicts of interest might also be considered.
The Board in Old Oak Properties Inc., [1996] OLRB Rep. July/August 648, a decision referred to by both parties, analyzed section 14 in its historical context. That analysis is useful for the purposes of this case and therefore is reproduced in its entirety:
Under the old Act (or Bill 40), there were no restrictions on the type of trade union that could represent guards. However, there were rules regarding the appropriateness of bargaining units that contained guards. Section 6 of the old Act directed the Board to determine the appropriateness of the bargaining unit in an application for certification and contained the following specific provisions in respect of guards:
(6) A bargaining unit consisting solely of guards who monitor other employees shall be deemed by the Board to be a unit of employees appropriate for collective bargaining,
(a) if the applicant trade union or the employer requests that the Board do so; and
(b) if the Board is satisfied that the monitoring of other employees would give rise to a conflict of interest if the guards were included in a bargaining unit with the employees they monitor.
(7) The Board may include other guards in the bargaining unit described in subsection (6).
Prior to Bill 40, the Act permitted only guards-only unions to represent guards, and prohibited the mixture of guards and non-guards in the same bargaining unit. Section 12 of the pre-Bill 40 Act read as follows:
The Board shall not include in a bargaining unit with other employees a person employed as a guard to protect the property of an employer, and no trade union shall be certified as bargaining agent for a bargaining unit of such guards, and no employer or employers' organization shall be required to bargain with a trade union on behalf of any person who is a guard if, in either case, the trade union admits to membership or is chartered by, or affiliated, directly or indirectly with an organization that admits to membership persons other than guards.
The provision is framed in the form of prohibitions that apply with respect to representation of guards.
What is a "guard"? The term has not been legislatively defined in any of the statutory treatments of guards. Under the long-standing provisions of the pre-Bill 40 law with respect to guards (which existed essentially unchanged from 1950 until 1993), the Board's case law was limited to consideration of whether employees were "guards" for the purposes of section 12, i.e., "employed as a guard to protect the property of an employer". This meant analysis of guards' duties to determine "the character and degree of monitorial and admonitory authority" in respect of their employer's other employees. This approach was based on the presumption of a legislative intent to prevent any alliance between guards and other employees that might compromise guards' loyalty to their employer or the special duty to protect the employer's property.
The impermissible conflict of interest was rooted in the conflict of loyalties that would face unionized guards. The Board tailored its interpretation of the meaning of "guard" to fit its view of the purposes of section 12:
... to be considered guards as contemplated by the legislation their duties must be of such a nature that inclusion in a bargaining unit with non-guard employees would confront them with a real and serious conflict between their special duties to their employer to protect his property and their expected loyalty to fellow bargaining unit employees. (See Geo. A. Crain & Sons Ltd. et al., (1963) 63 CALL 1205).
In assessing the evidence of particular guards' duties, the Board was prepared to consider both actual or potential conflict of interest. In at least one case, the Board found that conflict of interest existed where guards' monitorial authority permitted them the power to search the belongings of other employees, even if such power had not been exercised. See Imperial Leaf Tobacco Company of Canada Limited, (1969) ORB Rep. Feb. 1168.
- In considering cases under former section 12, the Board expounded upon its responsibility to take a balanced view in assessing the potential for conflict of interest:
... Since the effect of section 11 (later section 12) is to place limits on what constitutes an appropriate bargaining unit and on an employee's free choice of what trade union will represent him in collective bargaining, this test is a reasonable balancing of those restrictions with the need to protect an employer from the conflict posed by a guard's duty to protect that employer's property and any loyalty that the guard might feel towards other employees of the employer.
See Wells Fargo, Armcar Inc. (1981) OLRB Rep. July 1046, upheld Wells Fargo Armcar Inc. (1982), 1982 CanLII 1786 (ON HCJ), 36 O.R. (2d) 361 (Div. Ct.).
- The Legislature fundamentally altered the rules governing guards in the enactment of the amendments in Bill 40. It removed the absolute prohibition on the inclusion of guards in a bargaining unit with other employees. It also removed the restriction on the ability of trade unions to represent guards, opening the right to unions that were not guards-only unions. Section 6(6) directed the Board to consider only whether a conflict of interest would arise if guards were included in a unit with employees whom they monitored. As the Board commented, the choice of statutory language indicated that the Act had
... specifically adopted and codified the Board's conflict of interest test, making it clear that whatever restrictions remain in respect of guards and collective bargaining will apply only to guards whose monitoring of other employees would give rise to a conflict of interest. In this respect although the restrictions have been significantly altered, they would appear to apply to the same class of persons.
See The Municipality of Metropolitan Toronto, [1994] OLRB Rep. June 795. In a later decision in the same proceedings, the Board commented that "section 6(6) generally requires separate bargaining units for guards" (see the unreported decision dated February 13, 1995 in The Municipality of Metropolitan Toronto, Board File Nos. 3730-93-R; 373l-93-R.)
Before interpreting the language of the Act as it now reads, I should highlight some distinctions between the pre-Bill 40 guards provision and those which followed in the Act as amended by Bill 40. As the Board commented in the variety of cases under section 12 of the pre-Bill 40 Act, the statute did not define the term "guard". However, old section 12 did modify the term to some extent by referring to persons employed as guards “to protect the property of an employer". It was the Board that added through its jurisprudence the notion that the provision affected only guards that "monitored" other employees. Only from this monitorial authority did the Board envision that a conflict of interest might arise.
Bill 40's section 6(6) clearly took heed of the oft-repeated language of the Board's case law. In deeming the appropriateness of a guards-only unit, section 6(6) adopted some of the Board's parlance. The statutory reference was to "guards who monitor other employees". The Act directed the Board to find as appropriate a unit of only guards if "the monitoring of other employees would give rise to a conflict of interest". Reflecting the experience of the Board, the statute envisioned that a certain degree of monitorial authority would give rise to a conflict of interest. If the conflict of interest existed, the statute required that guards be kept in a unit apart from any other employees. As the Board commented in the June, 1994 decision in The Municipality of Metropolitan Toronto, supra, the Act made no rules in respect of the selection of bargaining agents even in the event that the Board found that a conflict of interest existed between guards and employees who were fellow union members. As that panel of the Board put it, at para. 20:
... We accept the employer's argument that a resulting complete elimination of any conflict of interest is not a prerequisite to the application of section 6(6). Rather, the legislature, in its wisdom, has determined that where a conflict of interest exists the appropriate response is not to limit a guard's selection of bargaining agent, but rather to simply deem a bargaining unit consisting solely of guards to be appropriate for collective bargaining. It is not for the Board to determine in any particular case whether the resulting “guards only" unit will eliminate or seriously reduce the potential for conflict of interest.
Taking into account the perceived codification of Board jurisprudence, the Board essentially found that the "guards-only" deemed unit rule must apply wherever the Board found the degree of monitorial authority that raised a conflict of interest of the sort described by the Board under former section 12.
The "deeming language" used in section 6(6) was similar to pre-existing language from section 6 of the pre-Bill 40 Act. As with those older provisions concerning appropriate bargaining units for members of a craft, engineers and dependent contractors, the Bill 40 provisions used particular language that the Board had long construed as constituting a legislative direction to find certain bargaining unit configurations appropriate. For guards, the statute indicated that guards-only units "shall be deemed by the Board to be a unit of employees appropriate for collective bargaining". In this way, the statute indicated that the Legislature started with the proposition that certain guards must be kept in units distinct from other employees.
I should also note that Bill 40's section 6(6) contained no reference to a guard's duty "to protect the property of an employer". That modifying phrase from the old section 12 had been dropped.
Bill 7 fundamentally alters yet again the statutory treatment of guards and brings a new arrangement of some of the old statutory phrases. The new Act approaches the guards issue differently than either Bill 40 or old section 12 of the pre-Bill 40 Act.
Although the instant case is an application pursuant to section 8 of the transitional provisions of Bill 7, section 8 directs the Board to consider the factors set out in subsection 14(5) when determining whether a conflict of interest would result. Before turning to the specific effect of the transitional provisions, I will consider the meaning of section 14 of the new Act.
In defining the term "guard", section 14 borrows from both of its predecessor provisions. Instead of modifying the term "guards" as old section 12 did ("a guard to protect the property of an employer") or as Bill 40's section 6(6) did ("guards who monitor other employees"), it combines the two approaches. Subsection 14(l), which sets the context within which the new rules apply, provides that the new section applies to "guards who monitor other employees or who monitor the property of an employer".
To put the new provisions in statutory context, I should note that the new Act continues some of the long-standing provisions regarding appropriate bargaining units. The sections regarding units of craft members, engineers and dependent contractors are now found in subsections 9(3)-(5) of the new Act and the format of 'deemed appropriate bargaining units' remains. Guards, in contrast, are now removed from that context. The statutory location of the new provisions is more similar to that of old section 12 of the pre-Bill 40 Act. Like old section 12, new section 14 is a free-standing provision placed in that part of the Act that deals with certification. And like old section 12 it deals not only with permissible bargaining unit structure but also with restrictions on the right of certain trade unions to be certified to represent guards.
Yet it is not a return to the formula of old section 12. Old section 12 was a strict prohibition. Section 14 prohibits nothing. It is permissive in its provision that certain configurations of guards bargaining units and bargaining agents "may" exist. A union "may" be certified to represent guards even if the union is not a guards-only union. Guards "may" be included in units with other employees. Although the new provisions are permissive, the severe strictures apply as soon as an employer registers an objection. If the proposed bargaining agent or bargaining unit is to survive, the union must satisfy the Board that no conflict of interest would result from its proposal. If a conflict of interest would result, the trade union that represents persons who are not guards simply cannot represent the guards whom it proposes to represent.
The 'permissive' as opposed to 'mandatory' structure also distinguishes the new law from the Bill 40 provision. Subsection 6(6) of the old Act mandated a guards-only bargaining unit in certain circumstances, i.e., where (a) the employer or union so requested, and (b) the inclusion of guards with employees whom they monitored would give rise to a "conflict of interest".
The manner in which the new law uses the phrase "conflict of interest" also distinguishes it from its predecessor provisions. The crux of section 14 is a code of guidelines that the Board must consider when assessing whether a "conflict of interest" exists.
Under Bill 40, the Board assessed whether "the monitoring of employees would give rise to a conflict of interest". Without statutory definition or restriction on the meaning of those phrases, the Board resorted to its earlier case law and noted its view that the Legislature had in essence codified that case law. The focus was the monitorial authority of the guards, just as it had been under the Board's interpretation of old section 12. Under the new Act, the focus shifts slightly. Now, the monitorial authority of the guards is just one of a number of factors that the Board must assess in judging whether a conflict of interest exists.
By mandating that the Board consider certain factors in determining whether a conflict of interest would result, the Act suggests that there are a variety of things other than guards' monitorial authority that might affect the determination. The list of factors in subsection 14(5) encompasses: (i) guards' duties monitoring other employees; (ii) guards' duties protecting their employer's property, (iii) other duties and responsibilities; (iv) other factors the Board considers relevant. The last item on the list indicates the generality of the inquiry, i.e., that assessment of conflict of interest is no longer rooted merely in consideration of "the monitoring of other employees".
In practical terms, this means that the determination of the existence of a conflict of interest may now rest upon something other than a simple finding such as the guards' authority to search the belongings of other employees. No such simple line is drawn in the statutory guidelines for determination of whether conflict of interest would result. Indeed, it is at least conceivable that the Board might find that other factors outweigh the effect of monitorial authority.
Even on that one factor, i.e., the guard's monitorial authority, the new Act has significantly altered the assessment. In case law under old section 12 and under the language of Bill 40's section 6(6), the Board simply looked for the existence of "monitorial" authority. Bill 7's language requires the Board to assess "the extent of the guard's duties monitoring other employees of their employer". It suggests a gradation in monitorial duties, and that some degree of monitorial duties may give rise to a conflict of interest while some may not. Counsel for the Labourers argued that "monitoring" duties must include, at a minimum, a role in admonishment or warning of those monitored. While this may reflect one of the 'degrees' of monitorial authority contemplated by paragraph 14(5)1, I am not convinced that it is the only sort contemplated in the new scheme. Without doubt, a role in admonishing those whom one guards amounts to a greater degree of monitorial authority.
The notion of a scale of degrees of monitorial responsibility is not new. It reflects the reality of a wide range of guarded properties, from low security to high security. For example, in Windsor Casino Limited, [1995] OLRB Rep. Feb. 206, the Board distinguished between the duties of security guards and surveillance officers in a casino. While security guards had a merely incidental duty to monitor surveillance officers (e.g., while entering or exiting the building), a fundamental duty of the surveillance officers was to monitor other employees (including security guards). Although there had been no dispute between the parties in that case regarding the separation of the security staff unit from the unit of other casino employees, the employer sought a separate unit for surveillance staff. The Board highlighted the "unique responsibility" of surveillance officers to their employer. Since the monitoring of security guards was an essential part of the security officers' work, a conflict of interest was inevitable.
In determining whether a "conflict of interest would result" in the new statutory context, the Board's original analysis in Geo. A. Crain & Sons Ltd. remains helpful. Unacceptable conflict arises where there is a "real and serious" conflict of loyalties. Though the new provisions point to a broader range of factors to be considered and to differing results across the spectrum of guarding authority, the Board ultimately must still decide whether it sees "conflict of interest". And the determination of "conflict of interest" remains rooted in the unique labour relations context of an Act which governs the often competing interests of employers and unions. Where an employer contends that a "conflict of interest" would result from the representation of its guard employees by a trade union that admits to membership persons who are not guards, the essential question is this: does the guards' relationship to such a union undermine the employer's reliance on the guards?
Section 14 of the Act requires the Board to determine whether a conflict of interest would result by the Board certifying OPSEU, a union which admits to membership employees who are not guards, to represent the Casino’s security associates. In my view conflict of interest is a concept concerned with ethics, regardless of the situation or context within which a conflict of interest arises. However, the definition of “conflict of interest” depends in part on the dynamics of the particular occupation or calling in question. In the context under review in this case, a conflict of interest means a situation in which a security guard has a private, personal or professional interest (that is created by being in an OPSEU certified bargaining unit) sufficient to influence, or to appear to influence, the exercise of his/her duties and responsibilities. Under section 14 a conflict of interest may exist where these are competing loyalties to the employer and to other employees or the union.
Under section 14(5) of the Act, the first factor that the Board must consider in determining whether a conflict of interest would result from the trade union becoming the bargaining agent of the security associates is the extent of the guards’ duties in monitoring other employees of their employer or protecting their employer’s property.
The employer asserted that the security associates monitored other employees and the Casino’s property to a significant extent. The security associates are the Casino’s “eyes and ears” who ensure that the Casino’s policies are followed and that the Casino’s property is protected. Among a variety of other duties security associates ensure that slot technicians behave appropriately when repairing a slot machine, they ensure that keys are properly controlled, that there is no unauthorized access to the “pits” and that cards, dice and money are handled properly. Above all, the security associates are on constant lookout to ensure that Casino employees are following the rules. The security associate is the Casino’s check and balance and that is their only job.
The union argues that none of the evidence introduced by the employer demonstrates the degree of monitoring of employees that could result in a “real and serious” conflict of interest as is required by the Board’s jurisprudence (see Old Oak, supra). The overwhelming array of security associate duties do not involve the monitoring of gaming associates. In addition there is a web of overlapping reporting obligations which reduce the power and ability of security associates to avoid reporting violations or giving gaming associates a special deal. Even investigators are usually part of a team investigating an incident which significantly reduces the likelihood of a security associate acting improperly.
On balance the Board finds that the Casino’s security associates’ monitoring of other employees and protection of the casino’s property is a significant aspect of the duties of security associates which could, under appropriate circumstances, contribute to a finding that the security associates ought not to be represented by OPSEU. The main reason the Casino has security associates is for the protection of the Casino’s property both indirectly and directly. In fact virtually everything security associates do involve to some degree the protection of property. Security officers safeguard and supervise the release of keys, they escort persons carrying cash, they carry chips and dice and they ensure that patrons do not carry weapons into the casino. Only duties such as ensuring that minors do not access the Casino protect the ability of the casino to retain its licence and carry on business and therefore protect the Casino’s property. One of the ways the security associates protect the Casino’s property is to monitor other Casino employees. In addition security associates constantly monitor other employees to ensure that Casino policies are followed. Of course in a workplace like the Casino where employees know they are under the Casino’s watchful eyes at all times, there will be few situations where the security associate monitoring activity will have results. Nevertheless, there are sufficient examples of the security associate actually reported breaches to cause potential concern.
I am not persuaded that the fact that the employer operates an extensive surveillance operation should be considered by the Board in assessing whether there is a conflict of interest. While the surveillance system may or may not protect the Casino from conflict of interest it cannot eliminate it entirely because it is impossible for surveillance to have a live view (as opposed to taped) of all of the Casino all of the time. More importantly, in my view, the Casino is entitled to the undivided loyalty of its security associates. In my view, it is not appropriate to suggest that conflict of interest is acceptable so long as the employer can reduce its effects through other means. To do so would diminish the role of the security associates.
The second criterion that must be considered by the Board under section 14(5) is the guard’s other duties or responsibilities that might give rise to a conflict of interest. The employer relies on the fact that one security associate is assigned to be an investigator on each shift. The duties of the investigator can and in the past have involved the investigation of other employees. This, the Casino says, is an inherent conflict of interest.
The Union asserts that the investigator seldom if ever conducts investigations on his/her own. In fact there are often several persons involved in an investigation each of whom must prepare a report and submit it to Casino counsel and ultimately to the AGCO. These safeguards significantly limit the effects of any conflict of interest.
Again I accept that a factor the Board ought to consider is the fact that guards may have to investigate main bargaining unit employees. This is the type of “other duty” that might, under the right set of facts, give rise to a conflict of interest which is contemplated by the Act. I am not persuaded that the fact that there is substantial oversight of the security associates through surveillance and other means should have any bearing. The employer is entitled under the Act to have security guards free of any conflict of interest when they conduct their investigations regardless of the other safeguards that are in place. I am satisfied that a biased investigation and/or report may have an influence on the course of action taken by the Casino in a particular instance despite the fact that there may be other investigations conducted by unbiased persons.
The final factor which must be considered under section 14 (5) is “such other factors as the Board considers relevant”. The parties invited the Board to consider two other factors. The first, advanced by the Casino, is the fact that AGCO employees are already represented by OPSEU. The second factor which was put forward by the union, is the fact that the union does not represent the Casino’s non-guard employees.
The Casino asks the Board to consider the fact that AGCO employees are represented by OPSEU in determining whether a conflict of interest would result by certifying the union to represent the Casino’s security associates. The Union argues that this is not an appropriate factor for consideration since the security associates do not monitor the AGCO employees, that there is almost no contact between the two groups of employees and the AGCO employees are essentially free to go anywhere they want in the Casino without security associate supervision.
There may be instances where the union affiliation of persons not employed by the employer is relevant to a conflict of interest determination. For example, if in this case the employees of contractors were represented by OPSEU, that might well cause the Board concern because security associates are required to escort and monitor such persons while they are on Casino property. However, in my view that does not apply to the inspectors since the security associates have no monitoring function over the AGCO employees. In fact it would be more accurate to say that the AGCO inspectors monitor the activities of the Casino’s security associates. Therefore, any conflict of interest that could result from OPSEU being certified to represent the Casino’s security associates would be the AGCO’s employees’ conflict of interest It is also relevant that the AGCO employees are employed by a different employer. In my view the conflict of interest contemplated by section 14 is a conflict between the guards’ dedication to their employment duties and to their union responsibilities. Therefore, in my view this factor is not a relevant consideration.
The final factor before the Board is the fact that none of the gaming associates, particularly those whom the guards monitor, are represented by OPSEU. The Casino’s employer argues that is irrelevant because it is quite possible that OPSEU may be certified to represent those employees in the future and if that happens the Casino will have no right to resolve the conflict of interest, there being no provision in the Act for doing so. Moreover, the Casino asserts it is apparent that although OPSEU has not been certified there may be many Casino’s gaming associates who remain card carrying OPSEU members following the abandoned organizing drive. It is also possible that security associates may feel bound by the provision in the OPSEU constitution that may be interpreted as prohibiting one OPSEU member from doing anything (such as reporting a policy violation) to harm another OPSEU member.
The union argues that the Board is restricted by section 14(4), (5) and (6) to considering only conflicts of interest that arise immediately and as a result of the union being certified to represent the guards. The union’s argument arises out of the presence of the words “would result” in those sections. The words “would result” are connected to the fact that the union is certified by the Board and therefore the Board must determine if there is a conflict of interest at that time. The application must be allowed because a conflict of interest could only arise if OPSEU represents the employees in the main bargaining unit in the future.
The Casino counters by arguing that the words “would result” allows for the possibility of a future conflict of interest. The word “would” is prospective. Had the legislature intended the result advanced by the union it could have used language like “presently”. Moreover, this is the Casino’s only opportunity to protect itself from conflicts of interest since there is no provision in the Act for the Casino to come back to the Board if OPSEU is ever certified to represent the Casino’s by gaming associates.
I do not accept the employer’s argument. In my view under section 14 of the Act any conflict of interest must arise at the time of and because the Board certifies a trade union to represent the security guards. This conclusion is reached by a plain reading of the words of section 14. The words “would result” are prospective because at the time of the Board’s inquiry under section 14, the Board has not certified the union, but is deciding whether a conflict of interest would result from doing so. Naturally, therefore, any conflict of interest (if it was present) would arise in the future. In addition, the result of the employer’s argument would be that a union, other than a guards duty which, could almost never be certified to represent guards because it would be impossible to predict what future events could result in a conflict of interest. For example, even if the Casino’s non-guards employees were represented by another union a conflict of interest could result if that union was ever displaced by the union which represents the guards. The consequence of the employer’s argument is that only “guards” unions could be certified, which is not what the statute provides.
Taking into consideration all of the factors which are mandated for consideration by section 14(5) of the Act I am satisfied that no conflict of interest would result from OPSEU becoming the bargaining agent of the Casino’s security associates. The extent of the guards’ duties monitoring other Casino employees and protecting the Casino’s property is significant. Despite this, there is simply no conflict of interest. OPSEU does not represent the main bargaining unit employees. As a result, the security associates do not have any reason, contemplated by the Act, to act contrary to the Casino’s best interests. There can be no conflict of interest because the security associates and the gaming associates do not have formal allegiance to the same union.
The Casino’s position was that, despite the fact that OPSEU is not certified to represent the Casino’s gaming associates, a conflict could arise because employees in the main bargaining unit had signed union cards during OPSEU’s organizing drive and that such employees may still be OPSEU members. However, there was no evidence that security associates even knew which gaming associates had signed union cards at the time of the union’s organizing drive in early 2000. There was also no evidence that security associates could know who among the Casino’s employees still had a desire to be represented by OPSEU. Without this knowledge security associates cannot be in a position to assist other employees or turn a blind eye to policy breaches by employees as a result of their union affiliation. More importantly, this is not the type of inquiry that the Board should be engaged in as the affiliation of the employees in the main bargaining unit is too remote to generate the type of conflict of interest contemplated by section 14.
In this case the most important factor in determining whether a conflict of interest would result from the trade union becoming the bargaining agent of the security associates is the fact that the employees whom the guards are monitoring are not represented by OPSEU. The answer might be different if OPSEU was still pursuing the gaming associates, but I am satisfied that it is not. I find that no conflict of interest would result by the certification of OPSEU to represent the Casino’s security associates.
The Board is also cognizant however, of the Casino’s concern that the legislation appears to prevent it from resolving any conflict of interest in the future should OPSEU, despite their current intentions, come to represent the Casino’s non-guard associates. The Board notes that section 8(2) of the transitional provisions of the Labour Relations Act specifically permitted the Board to revisit certificates that had been issued under the provisions of the previous Act. It appears that no such provisions exist to cure conflicts of interest which arise after a unit of security guards has been certified. (However, the Board is not predetermining any application which may be brought should OPSEU apply to be certified as the bargaining agent for the gaming associates). It appears that the legislature did not contemplate the kinds of facts which arise in the case before the Board. This is not surprising since the issue has not been before the Board on a previous occasion and it is clear that non-guards trade unions normally have an interest in representing non-guards employees in a workplace where those employees are unorganized.
The Board therefore dismisses the Casino’s objection under section 14 of the Act. The AGCO has now registered OPSEU as a supplier under the Gaming Control Act. Accordingly there is no impediment to OPSEU’s certification as the bargaining agent for the Casino’s security associates.
Having regard to the agreement of the parties, the Board finds that:
all security associates employed by Complex Services Inc. c.o.b. as Casino Niagara in the City of Niagara Falls, save and except security shift supervisors and persons above the rank of security shift supervisor,
Clarity Note #1: For purposes of clarity the parties agree that surveillance staff are not security associates and are not included in the bargaining unit.
Clarity Note #2: For purposes of clarity, the parties agree that security associates include security officers.
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.
The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this 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.
“Brian McLean”
for the Board