Ontario Labour Relations Board

[1980] OLRB Rep. February 158

0769-79-R Printing Specialties & Paper Products Union Local 701, London, Ontario, Applicant, v. Atlantic Packaging Products Ltd., Respondent, v. Canadian Paperworkers Union, Intervener #1, v. Canadian Chemical Workers Union, Intervener #2.

BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members O. Hodges and F.W. Murray.

APPEARANCES: C. M. Mitchell and J. Eliot for the applicant; S. C. Bernardo and John Cherry for the respondent; Douglas J. Wray and G. Bucella for intervener #1; S. M. Grant and Paul Roelfsen for intervener #2.

DECISION OF THE BOARD; February 27, 1980

1. In a decision dated August 24, 1979 the Board certified the applicant trade union as bargaining agent for all employees of the respondent located at Ingersoll, Ontario save and except foremen, persons above the rank of foreman, office staff and sales staff. The employer, although served with proper notice, did not appear at the certification hearing. The documents filed by the respondent with its reply shows two employees working within the bargaining unit as of July 25, 1979; the date of application. The applicant submitted membership evidence on behalf of both employees falling within the unit and accordingly, the Board certified. the applicant without a vote by the above referred to decision of August 24, 1979.

2. On October 10, 1979 the Canadian Paperworkers Union filed an application for certification in respect of essentially the same group of employees for which the Printing Specialties and Paper Products Union, Local 701 (the applicant in this matter) had been certified on August 24, 1979. The Printing Specialties and Paper Products Union intervened in that application and argued at the hearing that the certificate issued to it on August 24th served to bar the Canadian Paperworkers Union's application. The Canadian Paperworkers Union argued in reply that the August 24th certificate was issued at a time when there was not a representative number of employees in the bargaining unit; that is during a period of build-up. The Canadian Paperworkers Union, therefore, sought to have the Board:

"Reconsider its earlier decision issuing a certificate to the Printing Specialities and Paper Products Union, Local 701, pursuant to Section 95(1) of the Labour Relations Act, and either revoke the earlier Certificate, or in the alternative, order a representation vote."

The panel of the Board seized with the application for certification filed by the Canadian Paperworkers Union (a different panel than this panel which certified the Printing Specialties Union in August) dealt with the Canadian Paperworkers Union's request for reconsideration of the Board's decision certifying the Printing Specialties Union in a decision dated November 9, 1979 as follows:

"Since the certificate issued by the Board to the intervener of August 24th, 1979 poses a bar to this application and, since the applicant's request that the Board's decision be reconsidered is a matter which should be determined by the panel that issued the decision, the Board decided to adjourn these proceedings in respect of all matters therein so that the applicant's request for reconsideration could be determined by the other panel. This panel of the Board makes no recommendation as to the consolidation of any of the matters referred to in the representations of the parties."

3. This panel of the Board, which certified the Printing Specialties Union on August 24, 1979, convened a hearing on December 11, 1979 for the purposes of entertaining the request of the Canadian Paperworkers Union that the Board reconsider its earlier decision pursuant to Section 95(1) of the Act. The Canadian Chemical Workers Union also appeared at the December 11th hearing for the purpose of intervening in the proceedings. Counsel for the Canadian Chemical Workers Union advised that he sought to intervene for the purposes of dealing with the "build-up". The Printing Specialties Union and the respondent company challenged the status of both the Canadian Paperworkers Union and the Canadian Chemical Workers Union to intervene following the issuance of a certificate for the purpose of asking the Board to reconsider the granting of the certificate.

4. In a decision dated January 4, 1980 the Board accorded both the Canadian Paperworkers Union and the Canadian Chemical Workers union intervener status for the purpose of seeking reconsideration of the Board's decision of August 24, 1979 certifying the applicant trade union. Both interveners take the position that the Board certified the applicant on the basis of membership support amongst an unrepresentative number of employees.

5. The facts in this matter are not in dispute and may be summarized as follows:

• The company constructed a new plant in Ingersoll and commenced to make it ready for production in the summer of 1979.

• At the time of the instant application for certification the respondent had two (2) employees working at its new plant in Ingersoll. Neither was engaged in production work although both were scheduled to become engaged in production work.

• The applicant applied for certification of July 25, 1979 and was certified on the basis of membership support from the two employees then working.

• Production has since commenced at the new plant and the number of employees has increased from 2 as of July 25th to 15 as of October 10, 1979, the date of the application filed by the Canadian Paperworkers Union.

• There are presently 18 employees working at the Ingersoll plant. They work two operating shifts of eight hours each, four days per week.

• The applicant trade union served notice to bargain on the respondent company by letter dated September 20, 1979. The letter reads:

"This letter will give notice of our intent to negotiate a new agreement for your new Ingersoll Plant.

I have called to the members employed at this plant and they have told me that this plant is now receiving new equipment and is in the process of hiring new employees.

We as a union feel that until this plant is made more operational it would be premature at this time to enter into negotiations until you have made it such.

Would you please direct any correspondence to me regarding this plant in the future as I will be negotiating the contract and handling all its affairs until we have a collective contract."

• The company replied to the union by letter dated September 28, 1979. The letter reads:

"Concerning you letter of September 20th, 1979, we recognize your intent to negotiate a new agreement for our Ingersoll Plant, and agree with your viewpoint that at this time it would be premature to enter into negotiations until we have completed our machinery installations and have assigned job responsibilities.

Based on this and our current schedule, I would estimate that this would put us in a position to commence negotiations during the first week of November, 1979."

• In the face of these reconsideration proceedings the applicant union and the respondent company have not commenced to bargain a collective agreement.

• The company has purchased machinery which will require the addition of 4 employees when the machinery is installed.

6. The Canadian Paperworkers Union, relying on the Board's decision in Domco Foodservices Limited, Board File 1014-79-R, October 3, 1979, [1979] OLRB Rep. Oct. 937, and January 2, 1980, and in particular paragraph 7 of the January 2, 1980 decision, argues that the build-up principle applies in the circumstances of this case and must cause the Board to exercise its powers of reconsideration under section 95(1) of the Act, revoke the certificate issued to the applicant in August and direct the taking of a representation vote as it would have done if it had been aware of the "build-up" in August. The Canadian Paperworkers Union maintains that the criteria for "build-up" that is, a real likelihood of a significant build-up in the work force within a reasonable period of time, are established on the evidence and when reference is had to the exchange of correspondence between the applicant and the respondent in respect of the commencement of bargaining, the Board must revoke the certificate and direct the taking of a representation vote. The Canadian Chemical Workers Union adopted the argument of the Canadian Paperworkers Union and in addition, maintained that there exists a positive onus upon the parties to an application for certification to advise the Board of a potential build-up.

7. The applicant takes the position that there is no positive onus on the parties to an application for certification to advise the Board of a potential build-up. The applicant relies on the absence of any rule or regulation which requires the information to be brought forward. The applicant maintains that the Board doesn't know what information it would have had before it six months ago and cannot ascertain, therefore, what it would have done six months ago. The applicant argues it was the "early bird" and has relied on the certificate at least to the extent that it stopped organizing after its issuance and maintains that absent these proceedings it would have commenced to bargain in November; within the time limits set down in the Act. The applicant distinguishes the Domco case on the grounds that the Board was not required to reconsider an outstanding certificate in that case as it is being urged to do in this case and as it has done in no other case involving an alleged build-up.

8. The Board will defer certification of a trade union where there is a planned build-up of the work force such that a representative segment of the planned work force is not employed as of the date of the application. The rationale in support of deferral is based upon an acknowledgement of the right of those employees who will be hired as part of the planned build-up to take part in the selection of a bargaining agent. Certain conditions must be met, however, before the Board will impinge upon the right of the present employees to engage in collective bargaining. These are: (1) the present employees do not constitute a representative segment of the work force to be employed; generally the Board considers fifty per cent of the projected work force in a representative number of the classifications required to operate the plant as constituting a representative segment of employees for the purpose of certification; (2) the "build-up" is planned to take place within a reasonable period and (3) the "build-up" does not depend upon factors which are beyond the control of the employer, such as market conditions. (See Emil Frant and Peter Waselovich, 57 CLLC ¶18,057, Wix Corporation Ltd. [1975] OLRB Rep. Aug. 637 and the cases cited therein.) In cases where the above conditions are met the Board will direct the taking of a representation vote when a representative number of employees are within the bargaining unit.

9. The statutory basis for the application of the "build-up" principle as described above is found in section 7 of the Act. Section 7(1) of the Act allows the Board to direct the taking of a representation vote even if satisfied on the membership evidence that more than fifty-five per cent of the employees in the bargaining unit as of the date of application are members of the trade union. The practice of the Board, in other than the construction industry, even when satisfied that more than fifty-five per cent of the employees in the bargaining unit are members of the trade union on the date of application, is to hold a representation vote where the conditions necessary to establish a build-up exist. In the face of the statutory scheme to establish a system of labour relations based on majority rule and in the absence of any direction to the Board to disregard any planned increase in the number of employees in the bargaining unit, as appears in the construction industry sections of the Act, the Board takes planned build-up into account in exercising its discretion under section 7(1) whether to certify outright or direct the taking of a representation vote. Section 108(2) of the construction industry provisions of the Act expressly directs the Board "not [to] have regard to any increase in the number of employees in the bargaining unit after the application is made" when processing a construction industry application for certification. Rule 43(a) of the Board's Rules of Procedure allows the Board to settle the list of employees to be used for the purpose of any vote and Rule 43(c) allows the Board to settle the date of the taking of any vote. If the conditions precedent to a planned "build-up" exist, the Board will exercise its discretion to conduct a representation vote as of the time that a representative number of employees are within the bargaining unit so as to satisfy itself that a majority of those in the unit desire to t e represented by the applicant trade union. The practice of the Board is consistent with the scheme of employee choice and majority representation as established under the Act and flows from a legitimate exercise of the discretion given the Board to hold representation votes.

10. In most of the cases in which the Board has applied the build-up principle the matter has been raised by the employer party to the application. As far back as 1965, however, the Board raised the matter on its own motion. (See The McCord Corporation [1965] OLRB Rep. June 203. In the recent Domco case, supra, a union seeking intervener status in an application for certification raised the issue of build-up. The Board refused to grant intervener status and neither the respondent nor the applicant argued build-up. Nevertheless the Board refused to certify and in calling the parties back for evidence on the point commented:

"At the hearing the Board took no issue with the agreement of the parties that the number of employees was sufficiently representative. Upon further consideration however, we have some concern. In an application for certification where one of the parties has put the Board on notice that a substantial build-up of the work force is likely the Board must, quite apart from any agreement of the parties, satisfy itself that the certificate it issues is based on the wishes of a number of employees who are sufficiently representative of the employees who will eventually comprise the bargaining unit. In this case if the respondent's representations are borne out by direct evidence, the Board would have some difficulty accepting that nine employees are a substantial and representative sampling of a work force that is expected to increase to 35 within a matter of weeks."

The Board satisfied itself that the conditions precedent to a build-up existed in that case and in response to the concern that there is no express requirement to inform the Board of a potential build-up stated at paragraph 7:

"Admittedly, neither the Board's form for a union's application for certification nor the employer's reply form contains any question which specifically solicits information about a possible build-up of the bargaining unit. Nor does the Board of its own motion normally make such inquiries at certification hearings. That is not to say, however, that the Board will not do so in appropriate circumstances, nor that it will hesitate to reconsider a certification if it should subsequently be disclosed that at the time of the application, whether by ignorance or by design, the parties failed to advise the Board of an impending build-up of which they both had knowledge. The Board therefore expects the parties before it in certification proceedings to bring all pertinent information to the Board's attention with the kind of candour exhibited by counsel for the respondent in this case.”

The requirement of majority support is so fundamental to the operation of the Act and the build‑up principle so clearly enunciated in the Board's jurisprudence that the parties to an application for certification where a planned build-up of the work force is imminent cannot be heard to say that they are under no obligation to inform the Board of this fact.

11. The evidence in this case establishes that a significant increase in the work force was planned as of the date of the application for certification such that a representative number of employees were not in the employ of the respondent at the time the Board issued the certificate to the applicant. The letters between the parties in respect of the commencement of bargaining amply underscore this finding. The planned build-up was imminent such that we would have not have issued a certificate if we had been advised of the relevant facts in August. Rather, we would have directed the taking of a representation vote at the time as of which a representative number of employees were employed at the plant.

12. Does the fact that we are dealing with the issue through reconsideration distinguish our case from Domco as is argued by the applicant. The answer is yes, but only to the extent that we must concern ourselves with the passage of time from the granting of the certificate and weigh the prejudice which might result if we were to amend our original decision or revoke the certificate. Possible prejudice to one side or the other as a result of reconsideration is a proper matter to be considered in determining whether or not to exercise our discretion to direct the taking of a representation vote. In this case, there is no collective agreement in place. Indeed, the parties did not commence to bargain because the plant was not sufficiently operational at the time of certification. If a collective agreement had been negotiated prior to the Board's reconsideration, the Board would have been required to assess the weight to be given to its existence in reconsidering its original decision and may have looked to the time frame established under section 52(1) for challenging voluntary agreements. The Board does not have to enter into these considerations in this case, however, because there is no evidence before us to establish that the applicant would be prejudiced in any way if the Board was to revoke the certificate issued to it on August 24, 1979 and direct the taking of a representation vote.

13. Having regard to all of the foregoing we hereby exercise the authority given us under section 95(1) of the Act and revoke the certificate issued to the applicant on August 24, 1979. Having regard to the evidence now before us which establishes that a representative number of employees were not in the bargaining unit at the time the Board issued the certificate of August 24, 1979 and the further evidence which establishes that a representative number of employees are presently in the bargaining unit, the Board hereby directs the taking of a representation vote. Neither of the interveners would have been entitled to have been shown as a choice on the ballot if the Board had directed the taking of a representation vote in its August 24, 1979 decision. We are now proceeding as we would have proceeded at that time if the relevant information had been put before the Board. Accordingly, the Board directs that all employees of the respondent located at Ingersoll, Ontario, save and except foremen, persons above the rank of foreman, office staff and sales staff on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote.

14. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.

15. The matter is referred to the Registrar.