September 19, 2001
Directed to: United Steelworkers of America, Local No. 6034 - Del Pare/Susan Carrigan, Chivers, Greckol & Kanee - David Williams, Sears Canada Inc. - Dave Ritch, Ackroyd, Piasta, Roth, & Day - Sean Day/Elizabeth A. Johnson
RE: An application for certification as bargaining agent brought by United Steelworkers of America, Local Union No. 6034, Calgary, Alberta affecting Sears Canada Inc., Calgary, Alberta – Board File No. CR-02970
[1] This letter confirms the decision and reasons given orally by the Board (Howes, Cooper, Krueger) at the hearing on August 24, 2001.
[2] On August 2, 2001, United Steelworkers of America, Local Union No. 6034 ("USWA" or "the Union") applied for certification of a unit of employees of Sears Canada Inc. ("Sears" or "the Employer") described as: "All warehousing/distribution center employees at 25 Dufferin Place, SE Calgary and 2624 – 54th Avenue SE Calgary, except office and clerical personnel, resource protection (security), janitorial, LAN office personnel, those employed by SLH Transport Inc. and those excluded by the Code." The Board Officer recommended the Board alter the unit description to read: "All warehousing/distribution center employees at 25 Dufferin Place SE, Calgary and 2624 – 54th Avenue SE, Calgary except office, clerical, security personnel and those employed by SLH Transport Inc."
[3] Sears says the unit applied for or amended by the Officer is not appropriate for collective bargaining unless it includes the office and clerical employees. While Sears does not ask the Board to dismiss the application on this basis, it does ask the Board to count the ballots cast by office and clerical employees. USWA says the unit applied for matches with the recommended unit description for warehouse units set out in Information Bulletin #9, indicating the unit applied for is appropriate. The Union also relies on section 32 which directs the Board to satisfy itself that the unit applied for is an appropriate unit, even if it is not the best or most appropriate.
[4] Relying on Voting Rule 16, the parties also asked the Board to decide whether certain individual ballots should be counted. During the hearing the parties resolved a large number of these disputes, leaving only nine disputed ballots for the Board to adjudicate. Sears did not want the ballots of two "temporary" workers Jean Paul LeBlanc and Tony Woodhead counted because those persons were not employees of Sears. USWA wanted the ballots of the two temporary workers be counted, saying those workers were employees of Sears and had a continuing interest in the application. The Union did not want the ballots cast by five others counted because they had not actually started work on the date of application. Instead, these workers had attended an orientation that day. The Union challenged two other ballots, Lerch and Johnson, because they did not meet the two part test in the "30-30 rule" in Voting Rule 16.
Office and Clerical
[5] Section 32(1)(c) requires the Board to satisfy itself that the unit applied for or one reasonably similar to it, is an appropriate unit for collective bargaining. Under section 33(1) the Board can find the unit applied for is appropriate or it can alter or amend the unit, as long as the altered unit is reasonably similar to the unit sought and appropriate for bargaining. We adopt the principles set out in General Teamsters, Local Union No. 362 v. Southland Transportation Ltd. [1997] Alta. L.R.B.R. 443, in particular those noted at page 453 summarizing Island Medical Laboratories Ltd. (1993) 19 C.L.R.B.R.(2d) 161 and 455, summarizing AUPE v. Good Samaritan Society [1997] Alta. L.R.B.R. 88.
[6] The first step is to determine whether the unit applied for is an appropriate unit for collective bargaining. The unit complies with the suggested standard unit for warehouse operations as set out in Information Bulletin 9. We find that such a unit is on its face appropriate for collective bargaining. In addition, the unit applied for consists of a large group of employees with a rational and defensible boundary. It contains similar employees within teams performing similar work on a warehouse floor. They work shift work and perform, broadly speaking, "physical" work. There is no evidence upon which we would or could conclude that the unit applied for is not appropriate for collective bargaining.
[7] Sears asks the Board to count the ballots of these office and clerical employees. It asks us to amend or alter the unit to include these employees, as they are integral to and share a strong community of interest with the warehouse workers. This approach falls within the second step contemplated in s. 33(1).
[8] Sears operates a very large warehouse and distribution centre in Calgary, comprised of three buildings. One building houses the main entrance, security, various offices, lunchroom, locker rooms, and maintenance offices. The other two buildings are warehouse and loading facilities, with some offices dispersed throughout. In these offices work about 27 office administrative staff whom Sears seeks to have included in the unit. Twenty-three of these employees voted and their ballots are sealed.
[9] These administrative staff all perform work related to the computer system necessary to the operation of the warehouse and distribution centre. They may enter data received from the warehouse staff or run reports or prepare lists or tickets used to locate, package, ship and receive merchandise in and out of the warehouse. In contrast, the warehouse workers perform physical work on the warehouse floor. The administrative staff all work in offices that have walls and ceilings and doors that separate them from the warehouse proper. Almost all of them work a regular day shift, rather than the shifts worked by warehouse workers to run the warehouse, 24 hours per day, seven days per week. These staff members have different reporting structures than the warehouse workers. Warehouse workers work in teams and report to group leaders who report to managers. The administrative staff reports directly to managers. Dee Pocock, Assistant Systems Manager, referred to the warehouse workers as "they" and the administrative staff as "we," illustrating to us the distinction the employees see in the workplace. Mr. Ritch, Operations Manager, used a similar way of distinguishing the two groups of employees.
[10] The Board finds the office and clerical group do not share a sufficient community of interest with the employees in the unit applied for that would persuade us to alter the unit. They are a large enough group to form a viable bargaining unit on their own. The differences in their work and their working conditions convince us that the office and clerical employees would have different goals and interests in collective bargaining than the warehouse employees. As a result, we find the office and clerical employees are properly excluded from the unit and we refuse to amend the unit applied for to include this group.
Temporary Employees
[11] Sears asks the Board to find Mr. LeBlanc and Mr. Woodhead are not its employees and not eligible to vote. USWA says these two workers are Sears’ employees. The Board Officer included both persons on the eligible voters’ list and both voted. Information Bulletin #22 describes how the Boards approaches questions of who is the real employer and the factors we consider including control, burden of remuneration, and the power to hire, fire and discipline.
[12] Sears has a practice of using temporary workers obtained through one of several temporary placement agencies to assist it with peak demands and staff shortages, usually on a rush or as needed basis. Sometimes, as in this case, Sears later hires these workers as part of its own workforce. Sears uses a separate recruiting process when recruiting permanent employees from that used to seek temporary workers from a placement agency. These two persons went through both processes.
[13] Mr. LeBlanc was placed with Sears as a temporary employee through Drake. He registered with Drake on January 15, 2001 and had four placements other than Sears. He was placed at Sears in April and worked until sometime in August. On August 15, 2001 both workers became permanent employees of Sears.
[14] In Sears’s contract with Drake, Drake maintains the right to substitute workers as the need arises. Drake makes all payroll deductions and remittances and bills Sears on regular intervals. It provides benefit programs to its fieldstaff. Sears did not participate in the recruiting of Mr. LeBlanc except for making the call to Drake.
[15] We find that Drake is Mr. LeBlanc’s true employer. It reserves the right to substitute employees when it places them with a client. It does not pass control over that employee to the client. In addition, Drake placed Mr. LeBlanc with other clients during his tenure with Drake. Although the burden of remuneration may ultimately rest with Sears, we find the control element is the most persuasive in this case. Mr. LeBlanc is not eligible to vote and his ballot shall be destroyed.
[16] Adecco Employment Services Limited ("Adecco") placed Mr. Woodhead with Sears. From its contract with Sears, we conclude that Sears bore both the burden of remuneration for Mr. Woodhead and the right to control the work and how it was performed. We find Adecco was acting as a recruiting and payroll agent for Sears. As a result, we conclude that Mr. Woodhead was an employee of Sears on August 2, 2001 and entitled to vote. His ballot shall be counted.
Garth Lerch
[17] Mr. Lerch was included on the voters’ list and cast a ballot. The only evidence before us was the agreed facts that Mr. Lerch worked on June 26 and then did not work again until August 7, 2001.
[18] When examining voter eligibility, the Board looks at Voting Rule 16 in three steps. First, under Voting Rule 16, if he or she was at work on the date of application, an employee is entitled to vote, unless the Board finds otherwise. Mr. Lerch was not at work that day. As a second step, if necessary, the Board looks at whether a full time or part time person who was not present on the date application has worked within the 30 days before the application and has or is likely to work in the 30 days after the application. The employee must work within both time frames. Here, we have no evidence that Mr. Lerch was a full time or part time employee. The parties agree he did not work within both 30 day time periods required. As a third step, the Board can exercise its broader discretion (consistent with sections 33 and 56) to find an employee eligible to vote even thought he or she does not meet Voting Rule 16. We have no evidence to persuade us to exercise our discretion in this case. Therefore, we find Mr. Lerch is not eligible to vote and direct his ballot be destroyed.
Hugh Johnson
[19] We apply the same process to Mr. Johnson as we did with Mr. Lerch. Mr. Johnson was also listed on the voters’ list and voted. The parties agree he is a part time employee who did not work on the date of application and who last worked on July 29, 2001. Sears introduced the shift schedule to show that Mr. Johnson was scheduled to return to work on August 21, 2001 for a shift he normally worked. He did not report for work that day. We refused to rely on the hearsay evidence, which was introduced to show that the schedule was wrong and Mr. Johnson was on vacation until August 24th. USWA could not cross- examine on the information because the persons with the knowledge were not called to testify. We will not rely on hearsay evidence to substantiate an essential element of the case.
[20] Mr. Johnson does not meet the tests in Voting Rule 16 as he was not at work on the date of application and does not meet the 30-30 day rule. He was scheduled to return to work on August 21st and did not return. There is no other direct information upon which to exercise our discretion. We find Mr. Johnson is not eligible to vote. His ballot should be destroyed.
Employees Attending Orientation
[21] Five workers David Petchey, Dale Harder, Douglas Leyenaar, Camille LeRouge and Chris Fornier attended an orientation session on August 2, 2001. The parties agree these workers were paid for their time on August 2 and that all five began working regular shifts between August 6 and August 12. From the payroll and personnel records introduced by agreement of the parties, we find Sears offered employment to each person before August 2 and, in four of the five cases, the employee accepted the offer before August 2. One employee signed to accept the offer on August 2. All five were scheduled to start employment on August 2.
[22] USWA argues that attending orientation is not "doing work" as contemplated by the Code. Sears argues the persons were its employees at work on the date of application, even though their work that day differed from the work they would later perform.
[23] Sections 1(l) and (m) of the Code define an employee and employer. An employee is a person employed to do work who is in receipt of or entitled to wages. An employer is a person who actually or customarily employs employees. These five workers meet the definition of employee. We find that attending a mandatory orientation session before beginning other duties is work within the definition of the Code. The employees were paid for that work. That payment will reflect on a T-4 slip and on a record of employment. Sears actually employed these workers on the date of application, meaning it is their employer. We find these employees are eligible to vote and direct their ballots be counted.
Wording of the Bargaining Unit Description
[24] The Board asked the parties to comment on the amended unit description recommended by the Officer, particularly the reference to employees of SLH Transport Inc. Both parties agreed the unit should not refer to employees of another employer. Accordingly, we amend the unit description to read: All warehousing/distribution center employees at 25 Dufferin Place SE, Calgary and 2624 – 54th Avenue SE, Calgary except office, clerical and security personnel ." We find this unit reasonably similar to the unit applied for and appropriate for collective bargaining.
Summary
[25] In summary, we find the office and clerical employees are excluded from the bargaining unit. We amended the unit description as set out above. We direct the Officer to count ballots cast by Mr. Woodhead, David Petchey, Dale Harder, Doug Leyenaar, Camille LeRouge and Chris Fornier and to destroy the ballots cast by Mr. Johnson, Mr. Lerch, Mr. LeBlanc, and the following employees in the office and clerical group who voted:
Adamson, Esther
Barron, Louise
Boardman, Janice
Burns, Stephanie
Callfas, Donna
Chollack, Allison
Clark, Teri
Duval, Brenda
Eisler, Lindsay
Eisler, Paulette
Elliott, Deanna
Jesso, Carla
Kam, Sharon
Kelbert, Beverly
Lovas, Cheryl
Notschaele, Jannette
Oakley, Rosie
Rees, Anita
Roy, Dana
Schaefer, April
Taylor, Kimberley
Watier, Raylene
Zagar, Sandra
Zakoc, Robert
Zakowski, ShirleyDeborah M. Howes, Vice- Chair