1386-01-R Graphic Communications International Union, Local 500M, Applicant v. Quebecor World Islington, Quebecor World Inc., Responding Party.

BEFORE: Brian McLean, Vice-Chair.

APPEARANCES: Melissa Kronick, Norman Beattie, Mike Drimmie, Kevin Longo, Melissa Tuttle and Mike Marsbergen for the applicant; Daniel J. Shields, Ken Languay, Joyce Ballow and Henrik Neilsen for the responding party.

DECISION OF THE BOARD; November 30, 2001

1. This is an application for certification.

2. The style of cause is hereby amended to reflect the correct name of the employer as agreed to by the parties: “Quebecor World Islington, Quebecor World Inc.”.

3. A representation vote has been held pursuant to a decision of the Board dated August 15, 2001. 134 persons cast ballots. The right of 93 persons to cast ballots was challenged following the representation vote. Accordingly, the ballot box was sealed following the representation vote and the ballots have not been counted.

4. A hearing was held in Toronto with respect to the outstanding issues which prevent the ballots cast in the representation vote being counted. This decision deals with those issues.

The Issues

5. There are five issues in dispute:

• whether the geographic scope of the bargaining unit should be restricted to a street address or whether it should be municipal wide;

• whether a department bargaining unit or an “all employee” unit is appropriate given that the employer has other collective agreements which are limited to departments;

• whether temporary, casual and part time employees should be included in the bargaining unit;

• whether students employed for the summer period should be included in the bargaining unit;

• whether cylinder porters and painters should be included in the bargaining unit.

The Facts

6. There was substantial agreement about the facts which the Board ought to consider in determining the outstanding issues.

7. Quebecor World Inc. (“QWI”), the parent of Quebecor World Islington is a large commercial print media corporation which operates through many arms across the world. Some of QWI’s operations are run by corporations wholly owned by QWI while some are divisions that are actually part of QWI.

8. QWI has several operations in Toronto. The employer in this application, Quebecor World Islington, Quebecor World Inc. (the “Islington Division”) is a division of QWI. Another division of QWI, Quebecor World Financial has an office at 161 Bay Street. As divisions of QWI, the Islington Division and Quebecor World Financial are not corporate entities but are part of the corporation that is QWI. Finally, Quebecor World Litho Plus and Que-Net Media have operations in the plant at 2250 Islington Avenue separate from the Islington Division’s operations. These two entities are corporations, wholly owned by QWI.

9. Quebecor World Financial is not the subject of this application. Only sales and clerical employees are employed at its operation at 161 Bay Street.

10. The Islington Division’s employees are the subject of this application. The Islington Division operates a large printing plant at 2250 Islington Avenue. This is the only location where Islington Division employees work.

11. The Islington Divisions manufacturing operations are operated along the lines of 5 departments: pre-press department, press department, finishing department, bindery department and the distribution department. There are already three collective agreements in place between the Islington Division and trade unions which apply to employees of some of these departments. Graphic Communications International Union, Local 100-M represents all press employees under one such agreement and the employees in the maintenance department in another collective agreement. The applicant, Local 500-M represents the employees of the bindery department and the roto gravure preparatory department. At one time there were two separate collective agreements for each of these departments. However, the agreements are now contained in the same document and bargained at the same time. Despite this, it is apparent that this one collective agreement in reality consists of two collective agreements bound together as each department has its own provisions which apply only to that department. The only common provisions are the duration and termination clause which apply to both departments.

12. There are also several groups of employees who are not covered by collective agreements. In this application Local 500-M has applied to represent all of the unrepresented employees except office and clerical employees and security officers. This application therefore applies to permanent employees in the finishing and distribution department, permanent employees in the bindery department, cylinder porters, painters, temporary and casual employees, and summer students.

13. Both parties agree that permanent employees in the finishing and distribution department are properly included in the bargaining unit. There are two classifications: truckers and porters. Truckers deliver materials and product within the plant using tow motors. The department occasionally engages temporary employees of Prime, an employment agency. However, none of these persons are on the voters list in this application. The department does not use Quebecor temporary employees.

14. The temporary employees who are subject to this application are all employed in the bindery department. The employer employs 40 permanent journeymen who operate the binding and other equipment. The employer also employs permanent employees in the journeymen 2 classification who operate small equipment. All journeymen are covered by a collective agreement between Local 500M and the company. Finally, the company also employs 34 permanent bindery department employees who are not covered by any collective agreement and are also subject to this application. These fall into three classifications: internal truckers, strapping machine operators and general labour. General labour employees are primarily engaged in stacking books and feeding books into machines.

15. Because the employer’s business fluctuates greatly, it from time to time employs the temporary employees who are in dispute in this application. They are hired when business needs dictate and then laid off at the conclusion of a job unless there is other work for them. Temporary employees are generally engaged in the same unskilled tasks as permanent general labourers. However, they occasionally perform some of the same semi-skilled tasks as the permanent journeyman 2 employees in that department. Temporary employees may have a lengthy relationship with the company as evidenced by the fact that one such employee has been employed (off and on) by the company for more than twenty years.

16. Summer students are hired during the summer vacation period. They are usually children of other company employees. They also perform the unskilled general labour work in the bindery department. Students also did some painting work as described below.

17. As of the date of the application there were 3 cylinder porters, 2 permanent and 1 temporary. They work in the pre-press department and report to Victor Sousa, the pre press cylinder manager. Mr. Sousa has other employees who report to him who are represented by Local 500-M. However, the cylinder porters are not covered by that or any other collective agreement.

18. There were 5 painters as of the application date, 3 of whom were summers students. Prior to this year the employer has never hired employees to paint, but these employees were hired for a special project to renovate the press room under, primarily, the direction of the pressroom superintendent. Painters are not covered by the press, maintenance or any other collective agreement.

Issue 1 – Street Address v. Municipal Bargaining Unit

19. The employer’s position is that the bargaining unit should be limited to the street address at which the employees work, 2250 Islington Avenue. Its position is based on the fact that QWI has other employees in the municipality who are employed at its Quebecor World Financial division at 161 Bay Street. The employer asserts that in circumstances where an employer has more than one operation in a municipality the Board should and does limit the bargaining unit to a street address. This is the case because a division of a corporation cannot employ employees, only the corporation can. If the Board were to allow a union to be certified to represent the employees of a corporation where that corporation has more than one operation in a municipality, employees of the operation not applied for would be inadvertently and improperly covered by the certificate. The employer relies on the Board’s decisions in McDonald’s Restaurants of Canada Ltd., [1974] OLRB Rep. Oct. 755; Simpsons Limited, [1984] OLRB Rep. June 862; Fotomat Canada Ltd. [1979] OLRB Rep. Apr. 306; UAP Inc., unreported, [2000] OLRB No. 427 and Hunter Douglas, [1985] OLRB Rep. Apr. 535.

20. The union argues that there is no reason to depart from the Board’s normal practice of defining a bargaining unit by municipality in this case. It relies on two facts. First, while QWI has one other operation in Toronto, Quebecor World Financial, that operation employs only office and clerical employees. None of these employees would be affected by this application as both parties agree that office and clerical employees are to be excluded from the bargaining unit regardless of how the Board defines the unit. Second, the union argues that the entity which the parties have agreed is the employer, Quebecor World Islington, a Division of Quebecor World Inc. employs no employees in the municipality which would be affected by the bargaining unit which has been applied for.

21. The Board has a long-standing practice of preferring municipal-wide bargaining units over a narrower geographic scope. The primary reason for this practice includes protection of union bargaining rights which might otherwise be lost if the employer were to move its operation a short distance. The Board’s comments in York Steel Construction Limited [1080] OLRB Rep. Feb. 293 at page 295 are of assistance:

22. The Board in Wix Corp. Ltd., [1975] OLRB Rep. Aug. 637 canvassed in some detail the Board’s practice with respect to defining geographic limitations in the appropriate bargaining unit. Apart from the construction and perhaps certain service industries, the Board’s policy, where the employer has employees at only one location within a municipal area, is to describe the bargaining unit in terms of the municipality itself (Perimeter Industries Limited, [1973] OLRB Rep. March 174). On occasion the Board will expand its definition of the bargaining unit to encompass an area greater than a single municipality (see The Board of Health of the York-Oshawa District Health Unit, [1969] OLRB Rep. Feb. 1178; The Adams Furniture Company Limited, [1975] OLRB Rep. June 491; and note as well the Board’s normal unit of the Municipality of Metropolitan Toronto), but is reluctant to do so in the absence of compelling reasons (Wittich’s Bread Limited, [1969] OLRB Rep. Jan. 1019; Del Zotto, [1972] OLRB Rep. June 637 and Canada Safeway Limited, [1972] OLRB Rep. Mar. 262). The primary reason for this policy of municipality-wide bargaining units is the Board’s concern for stability of bargaining rights; i.e., the union’s bargaining rights will not be affected by a subsequent move of the employer’s operation to some other location within the same municipality. On the other hand, actual accretions to the employer’s operations within the municipality, such as a second or third plant, will automatically be covered by the union’s certificate. To this latter extent, the right of self-determination of a bargaining agent by the employees at these new locations is compromised, in favour of the over-riding concern for stability of bargaining rights.

23. The fundamental reason for describing a bargaining unit in a particular way is to accurately identify the group of employees who are represented by a particular union. The bargaining unit must be described in such a way so that employees who are not subject to the application for certification are not mistakenly swept into the bargaining unit.

24. This rationale underpins the Board’s reasoning in the cases relied on by the employer. In McDonald’s, Fotomat and Simpson’s the Board was faced with a situation where the employer in those cases employed employees who were not the subject of the application for certification who would have been inadvertently certified if the Board set a municipal wide bargaining unit. There was effectively no other way for the Board to ensure that employees were not swept into the application for certification other than to define the bargaining unit by street address.

25. In UAP Inc. the employer had two operations in the municipality in question. In one location the employees were employed by the corporation, UAP Inc. At another location the employees were employed under a division of UAP Inc., the Trak division. The union applied for all employees of UAP Inc. within the municipality. The Board certified the union for a bargaining unit restricted to the street address of UAP Inc. Had the Board granted a municipal-wide unit of all of U.A.P. Inc.’s employees, the employees in the Trak division would have been inadvertently swept into the bargaining unit.

26. This case is different, however, because the employer operates the branch of its operation which is the subject of this application for certification through a division, Quebecor World Islington, a Division of Quebecor World Inc. The Board agrees with the employer that the Board only certifies corporations. However, if the Board grants a municipal-wide bargaining unit for a division of the corporate employer there is no risk that employees will be inadvertently swept into the bargaining unit because the other QWI employees in the municipality are employed under a separate division. The bargaining unit description would not lead to the inadvertent “sweeping in” of employees.

27. It is also apparent that none of the Quebecor World Financial division employees would be inadvertently included in a municipal wide bargaining unit because they are all in sales and clerical positions which are excluded from the bargaining unit on the agreement of the parties. In this respect the facts before the Board in this case are different from those in the cases relied upon by the employer. In those cases the employees in the location not covered by the application for certification would clearly have come within the bargaining unit had it been described as a municipal wide unit.

28. In this case the limitation of the bargaining unit to the division serves the purposes of a bargaining unit description: it identifies the employees who are represented by the union, it provides stability in bargaining rights and it ensures that employees who are not covered by the application for certification are not inadvertently swept in. The Board has frequently certified an employer for one of its divisions in such circumstances: (see for example Omni Health Care Ltd, [1988] OLRB Rep. June 609 and Beatrice Foods Ontario Limited, [1982] OLRB Rep. June 815). Accordingly, the Board finds that a municipal-wide bargaining unit is appropriate.

Issue 2 – Department vs. All-employees unit

28. QWI asserts that the only appropriate bargaining unit in the circumstances of this case is a departmental unit. It relies on the fact that there are already bargaining relationships between it and locals of this union at the facility and they are all based on departments. The employer argues that it and the union have an expectation or a reliance interest that employees could be certified only along departmental lines and that the Board should protect that interest. It asserts that the Board should find that a unit of finishing and distribution employees to be an appropriate unit and the “all employee” unit applied for by the trade union to be not appropriate having regard to the structure which exists, and has existed for many years, in this workplace.

29. The union does not deny that a department unit could be appropriate. However, it asserts that the unit it has applied for is also appropriate. It asserts that the only question here is whether the bargaining unit applied for is appropriate without causing serious labour relations problems for the employer. It points out that two of the departments which were certified separately now, on agreement, bargain under a single collective agreement. It also notes that the union no longer organizes on a departmental basis but always seeks “all employee” units.

30. QWI replies by arguing that although there is one collective agreement which now covers two departments where there was previously two collective agreements, the fact is that the collective agreement amounts to nothing more than two collective agreements which are stapled together and bargained at the same time. The employer also asserts that the Board does not have to inquire into whether there would be serious labour relations problems because the bargaining unit applied for is not appropriate. It is not appropriate because of the partys’ practice of bargaining on departmental lines.

31. The starting point for any determination of an appropriate bargaining unit is the decision of the Board in Hospital for Sick Children [1985] OLRB Rep. Feb. 266. In that case the Board stated:

32. Given that the definition of the bargaining unit can materially affect the ability of employees to organize, and that uncertainties concerning its contours can provoke costly litigation and potentially prejudicial delay, what then is the purpose of the concept of the “appropriate bargaining unit”? Quite simply, it is an effort to inject a public policy component into the initial shaping of the collective bargaining and enhance the likelihood of a more viable and harmonious collective bargaining relationship. That objective is spelled out clearly in the Preamble to the Act. While the requisites for collective bargaining cannot always be defined with certainty, may necessitate a balance of competing collective bargaining values, and may, in any event, turn on factors beyond the Board’s control, the discretion to frame the “appropriate” bargaining unit during the initial organizing phase provides the Board with an opportunity (albeit perhaps a limited one) to avoid subsequent labour relations problems. Now, of course, this is not necessarily the same thing as minimizing administrative problems for the employer or organizing problems for the union. The structures and policies that promote a maximization of the employer’s business interests are not those that will necessarily describe a viable bargaining unit, or the only viable bargaining unit – particularly since those interests may include a desire to avoid collective bargaining altogether, or limit its effectiveness. The employer’s administrative structures are relevant in determining the bargaining unit, but they are not necessarily to be taken as the conclusive blue print in deciding what is appropriate. Nor is it a matter of simply giving an applicant union what it wants. It is, as we have noted, a matter of balancing competing considerations, including such factors as: whether the employees have a community of interest having regard to the nature of the work performed, the conditions of employment, and their skills; the employer’s administrative structures; the geographic circumstances; the employees’ functional coherence, or interdependence or interchange with other employees; the centralization of management authority; the economic advantages to the employer of one unit versus another; the source of work; the right of employees to a measure of self-determination; the degree of employee organization and whether a proposed unit would impede such organization; any likely adverse effects to the parties and the public that might flow from a proposed unit, or from fragmentation of employees into several units, and so on.

33. We might make an additional but related observation. 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. In this case, for example, the process of bargaining unit determination has already taken up more than a year and, fifteen days of hearing, with the prospect of many more. (Kidd Creek is still pending before the Board after eighteen months and about a dozen hearings days.) That delay may be seriously prejudicial to the applicant union, even if its position is ultimately accepted, and, in the instant case, it will undoubtedly be of concern to the large number of employees who support the union but whose rights remain in limbo until this Board determines the group of their fellow employees with whom, by law, they must bargain. It is also a matter of concern to that group of employees whom the union does not seek to represent, and who may not wish to be represented, but who the Hospital says must be included in the unit. They may well have some difficulty understanding why they should be swept into the ambit of collective bargaining against their wishes and despite the union’s express position that it does not seek to represent them. Having regard to the purpose of section 6(1) one might well ask whether the resolution of the issues in dispute here really justifies the cost and potential prejudice. To put the matter more concretely: are the distinctions which the parties urge upon us significant from a labour relations perspective; or are they like the distinctions among paramedical employees considered by the Board in Stratford General Hospital – real, and to them important, but not determinative when it comes to drawing a workable bargaining unit.

(emphasis added)

32. It is worth repeating the Board’s comments in Hospital for Sick Children: it is not “a matter of simply giving an application union what it wants”. There are two parts to the test set out by the Board in Hospital for Sick Children: first that the employees have a sufficient community of interest that they can bargain together on a viable basis; and second, that the bargaining unit not create serious labour relations problems for the employer.

33. As a general rule the Board has declined to certify unions for departmental bargaining units because they may not be viable and they may create serious labour relations problems for the employer. They tend to box in employees, limit flexibility and have little bargaining power. However, there have been exceptions to this general rule. In particular, and of particular interest to the parties in this case, the Board has permitted departmental bargaining in the newspaper and printing industry. See for example St. Catharines Standard Limited, [1975] OLRB Rep. July 601.

34. Even in the newspaper and printing sector the Board has advised the community that departmental units are less acceptable than they once were and may well be unacceptable for all of the reasons described above. In The Spectator, A Division of Southam Inc., [1981] OLRB Aug. 1177 the Board stated:

35. As a general practice the Board does not grant certification on a departmental basis. For historical reasons exceptions were made in the newspaper and printing industry. Those industries were traditionally organized by craft unions at a time, long pre-dating the existence of this Board, when the printing trades were distinguished by a specialized skills that gave rise to clear distinctions along craft lines. (See Zerber The Development of Collective Bargaining in the Toronto Printing Industry in the 19th Century(1975) 30 IR/RI 83. From its earliest days the Board granted certificates in the newspaper industries reflecting the traditional craft designations. (See, e.g. The Ottawa Citizen, [1944] OLRB Rep. Aug.; The Star Publishing Company of Windsor, Limited, (1945) CLLC ¶10,424. The traditional preponderence of craft units in the newspaper industry tended to produce more fragmented bargaining structures than would be encountered in other industrial settings. That may explain why, over the years, the Board often acceded to the agreement of the parties to departmental units of employees who did not possess craft skills. Generally in an industrial setting the Board would, apart from any special craft units, contemplate a breakdown of employees for collective bargaining purposes into office and clerical employees on the one hand and production employees on the other. When a plant is substantially organized along those lines any union seeking to obtain certification for a departmental unit is normally required to take a tag end unit of all unorganized employees. The obvious reason is to avoid undue fragmentation in collective bargaining.

36. In the instant case the parties were unable to refer the Board to any precedent decisions in which the practice of permitting departmental bargaining units in the newspaper industry was fully explained. A review of the Board’s prior decisions suggests that the practice has evolved more as a matter of deferring to the agreement of the parties in the industry, an obviously critical consideration, rather than the application of normative collective bargaining principles in disputed cases. If in the past the Board has acceded to agreements establishing the non-craft departmental units in the newspaper industry, it has not done so without some guarded concern. In the St. Catharines Standard Limited, [1975] OLRB Rep. July 601, the Board granted certification for all employees in the classified advertising department of the employer newspaper. In so doing it commented, at page 603, as follows:

In accepting the agreement of the parties, we wish to state that although the Board does not normally grant departmental units, such units have been recognized as appropriate in the newspaper publishing industry: see, for example, Telegram Publishing Company Limited, 59 CLLC ¶18,126; Globe & Mail Limited, 63 CLLC ¶16,290, where Circulation Department units were held to be appropriate. Moreover, it is presumed that the parties themselves know how their collective bargaining relationship can best be structured. Therefore, unless the agreed unit is potentially irrational or unworkable – for example, if the grouping has no functional or organizational coherence, or if it excludes persons without convincing justification – the Board will normally accede to the wishes of the parties.

9. The foregoing passage indicates the Board’s concern for the excessive fragmentation of bargaining units while recognizing the countervailing value of giving the greatest weight to the agreement of the parties in the structuring of bargaining units. Implicit in that statement, however, is an indication that where there is no agreement between the parties on the structure of a bargaining unit in the newspaper industry the Board will not hesitate to apply established general principles respecting community of interest in fashioning appropriate bargaining units. This is the first application in the newspaper industry which we are aware in which the parties have not been agreed on the designation of the bargaining unit. To that extent the Board is compelled to address the question of whether non-craft departmental units should be the presumed rule in the newspaper and printing industry or whether collective bargaining could be appropriately ground on a more comprehensive basis.

10. We see no reason why, in a similar case, this Board should arrive at any different conclusion. When the employees of a newspaper or printing shop perform discernable craft skills and an established craft union applies to represent them in collective bargaining the overriding policy of the Act, expressed in section 6(2), is that the value of special representation overrides the disutility of fragmentation. On the other hand, where employees do not exercise technical skills or perform craft work which meaningfully distinguishes them from other employees there should be no presumption in favour of fragmentation. In future applications in the newspaper and printing industry, therefore, where it does not appear on the evidence that the preconditions to the certification of a craft unit are made out the Board will be open to submissions for the structuring of bargaining units on the basis of normal considerations of community of interest. There should no longer be any presumption that non-craft bargaining units will be structured by department; without limiting the direction in which the Board may wish to take in any given case we see no reason why in the newspaper and printing industry, apart from the establishment of legitimate craft units, the representation of employees for collective bargaining purposes should be any less comprehensive than in other industries. Where the evidence discloses a separate community of interest among all office and clerical employees, all mechanical production employees and all editorial or newsroom employees bargaining units should be fashioned accordingly.

11. Despite the Board’s statements in The Spectator, the Board accepted a department bargaining unit in Sault Star, a Division of Southam Inc., [1983] OLRB Rep. June 1980. In that case the parties had a pre existing departmental bargaining structure and they agreed that a department unit was appropriate.

12. The Board restated its position on department bargaining units in T.V. Guide Inc., [1986] OLRB Rep. Oct. 1451:

13. Since the Spectator there has been no general retreat from the concerns expressed in that case. In Peterborough Examiner, [1982] OLRB Rep. March 432, it was the union (the ITU) which initially sought an “all-employee” unit and the employer which demanded bargaining units segregated by department. There were already in place two existing bargaining units of “pressmen” and “composing room employees”. The evidence does not indicate the facts of the employees’ relationship, but the Board ultimately decided to reject the employer’s position and certify a consolidated unit of office and clerical employees, and a separate unit of editorial department employees. In Welland Evening Tribune, [1982] OLRB Rep. March 513, the ITU again applied for a broader-based bargaining unit and the employer sought a narrow one. The Board held that it should take an “open and pragmatic attitude to the rationalizing of bargaining structures in the newspaper industry”, and after canvassing the wishes of the employees found a comprehensive bargaining unit to be appropriate. In the Sault Star, a Division of Southam Inc., [1983] OLRB Rep. June 980, there were already four bargaining units in the employer’s enterprise and “both parties expressed satisfaction with the viability and workability of the proposed [departmental] bargaining unit”. There was no interchange of employees or “lines of progression” between the units and, in the Board’s view (with which we agree), the key to the Spectator decision is the disagreement of the parties. In the result, the Board accepted the agreed-upon bargaining unit. Thus, in each of these cases there was either an existing pattern or departmental units or the agreement of the parties, or both. In none of them is there any indication of the kind of evidence we have here.

14. In all of the Board decisions, except T.V. Guide Inc., relied on by the employer, the Board preserved the ability of the union to organize on a department basis over the objections of, or on the agreement of the employer. In T.V. Guide Inc., the Board declined the union’s request for a department unit in circumstances where there was no history of departmental bargaining. In none of the cases relied on by the employer did the Board decline to find appropriate a broader bargaining unit because of a history of bargaining along department lines. In fact in Peterborough Examiner, referred to in the excerpt from T.V. Guide Inc., the Board declined the employer’s request that a union’s proposed all employee unit be rejected in favour of department units where the employer already had two department collective agreements in place.

15. In my view, the employer’s expectation interest is not something which the Board ought to consider in any great way in determining an appropriate bargaining unit in a particular sets of factual circumstances. It is not clear what an expectation interest is in these circumstances. It appears simply to be that because of the current bargaining structure the employer expected that the Board would find a department unit appropriate, even though it would lead to greater fragmentation in the workplace. The Board is not obliged to follow the expectation of one or both of the parties in determining an appropriate bargaining unit. The Board also notes that there was no evidence led by the employer to demonstrate that expectation interest actually exits or the consequences which would follow (there appear to be none) were that expectation interest not followed by the Board.

16. Even assuming, without finding, that the Board would find that a unit applied for is not appropriate because of the “expectation interest” of the parties, this would not be an appropriate case to apply such a result. In this case, the effect of limiting the bargaining unit to a department would be to significantly fragment the workplace. Even in circumstances where the workplace is already of significantly fragmented, that is not a satisfactory labour relations outcome.

17. The employer also argued that serious labour relations problems would result from a municipal wide bargaining unit. Those serious labour relations which would be said to arise if the union’s position was accepted were essentially the same as the employer’s argument as to why the bargaining unit applied for was not appropriate.

18. In my view the concerns raised by the employer regarding the loss of “expectation interests” are not the kind of “serious labour relations problems” which are contemplated by the Hospital for Sick Children decision. In Active Mold Plastic Products Ltd., [1994] OLRB Rep. June 617 the Board commented on the emphasis to be given the various parts of the test set out in Hospital for Sick Children:

19. Most recently, in Burns International Security Services Limited (unreported, April 7, 1994, Board File 3340-93-R) [now reported at [1994] OLRB Rep. Apr. 347], the Board addressed the utility of the concept of “community of interest”. In this decision, it was noted that the term “community of interest” does not usually provide the Board with much assistance in determining whether an applied for bargaining unit is appropriate. It was observed in this decision that the focus before the Board in bargaining unit determination cases should be upon “concrete problems rather than the sometimes nebulous concept of ‘community interest’”. After citing a passage from Homewood Health Centre [1992] OLRB Rep. Feb. 181, in which Hospital for Sick Children is once again referred to, the Board observes as follows at paragraph 30:

These passages suggest a more flexible approach, focusing on the problems caused or averted by particular bargaining unit configurations, rather than so-called Board policies that may or may not reflect current labour relations realities. This is not to say that history or existing practices are irrelevant. History can be a useful guideline to what is appropriate because established practice may reveal what works and what does not. And, of course, there is some virtue in certainty and simplicity – hence the Board’s inclination to define bargaining units with respect to the geographic municipality in which the employer operates. But as the practice in the security industry amply illustrates: multiple locations, or even multiple municipalities may also be appropriate bargaining units.

30. This panel of the Board agrees with the approach to the concept of “community of interest” which is reflected by the decision of Burns International Security Services Limited, described above. In the case before us, we found the numerous references to “community of interest” to be unhelpful. As noted by the Board in Burns International Security services Limited, all employees share a “community of interest” by virtue of working for the same employer. In point of fact, there are numerous “communities of interest” that can be identified in any particular workplace. It is not necessary nor is it desirable for the Board to Asses the relative strengths of the varied “communities of interest” in the workplace, just as it is unnecessary for the Board to consider alternative bargaining unit descriptions in the absence of serious labour relations problems. At the end of the day, the Board’s focus should be upon the concrete, demonstrable problems which will result from the applicant’s proposed bargaining unit should it be granted by the Board. In the absence of such concrete, demonstrable problems, the applicant’s proposed bargaining unit will be acceptable to the Board.

31. Applying the above approach to the case at hand, the Board is of the view that the responding party has adduced no concrete, demonstrable evidence of serious labour relations problems should the applicant’s proposed bargaining unit be accepted by the Board. There was no evidence that the company relied on this expectation to its detriment or that the Company will suffer any adverse consequences in the future if the union is certified for an “all employee” bargaining unit. Apart from the lack of serious labour relations problems which would result from an all employee bargaining unit, such a unit would be valuable to prevent further fragmentation.

32. There is little doubt that the bargaining unit applied for by the union is something of a hodge podge. It includes employees from several different departments and employees with varying degrees of connection to the workplace. Nevertheless, there was no evidence before the Board that such a group of employees is so deficient in community of interest that the bargaining unit is unviable.

33. In any given workplace there may be many bargaining unit configurations which could be appropriate. The Board in Hospital for Sick Children and before has held that the union ought to be allowed to be certified for any of those appropriate bargaining units that it chooses to apply for so long as serious labour relations problems would not result. In this case it may be that a department bargaining unit is an appropriate unit given the bargaining structure which exists at the employer’s facility. However, an all-employee unit as applied for by the applicant is at least equally appropriate.

Issues 3, 4, 5

45. For similar reasons to those set out above, there is no reason why the union’s request that temporary/casual employees, painters and cylinder porters be included in the bargaining unit should not be granted. In my view these groups of employees do not have such dissimilar community of interest that they cannot bargain effectively and on a viable basis together. There was also no serious argument that including them together would cause serious labour relations harm to the employer. Indeed it is difficult to imagine that this bargaining configuration would not be of benefit to the workplace by reducing fragmentation and bringing stability.

46. There were only 3 cylinder porters, one of whom is a temporary employee. Similarly, there are only five painters who were hired for a special project, 3 of whom were students. If these groups are excluded, they would have no effective means of organizing themselves. I also do not accept that they should be organized as part of a “tag-end” unit. The only groups of employees not covered by this application are security guards and office and clerical employees. Leaving aside the issues which may be present under section 14 of the Act, porters and painters are likely to have less community of interest with office and security employees than they do with the employees who comprise the applicant’s proposed bargaining unit. The practical effect of excluding them would be to completely deny them the right to organize effectively. The Board should avoid such a result. See Board of Governors of Ryerson Polytechnical Institute, [1984] OLRB Rep. Feb. 371.

47. Finally, there is also no reason to exclude summer students from this unit. The Board’s policy with respect to students has been changed since Inter City Bandag. That decision was decided based on the Board’s then existing practice which was to virtually automatically divide part-time and full-time employees at the request of either party. Because of that policy, a request to exclude students was in essence a request to exclude, part-timers. In any event it is unclear what relevance that practice is given the test now applied by the Board to determine bargaining unit configuration as enunciated by the Hospital for Sick Children decision. In any event, since the employer in this case does not employ part-time employees, there is no place for students to go. Since the union has applied to represent them, they therefore ought to be located in the all-employee bargaining unit.

48. For all of the foregoing reasons the Board finds that:

all employees of Quebecor World Inc. in the Quebecor World Islington division employed in the Municipality of Metropolitan Toronto, save and except supervisors, persons above the rank of supervisors, office, clerical, sales, security, studio and persons already covered by a subsisting collective agreement on August 10, 2001

is a unit of employees appropriate for collective bargaining.

49. The Board directs that the ballots cast in this application be counted.

50. The matter is referred to the Manager of Field Services.

“Brian McLean”

for the Board