Court File and Parties

[1980] OLRB Rep. January 33

1014-79-R Restaurant, Cafeteria and Tavern Employees Union, Local 254, of the Hotel and Restaurant Employees and Bartenders International Union, Applicant, v. Domco Foodservices Limited, Respondent, v. Retail Clerks Union, Local 409, Intervener.

BEFORE: M. G. Picher, Vice-Chairman, and Board Members J. A. Ronson and W.F. Rutherford.

APPEARANCES: Douglas J. Wray and J. D. Sobolewski for the applicant; John P. Sanderson, Q. C. for the respondent; Lynn King and Jeff McNullen for the intervener.

DECISION OF THE BOARD; January 2, 1980

Decision

1. This application for certification was first heard on September 18, 1979. At that hearing counsel for the respondent advised the Board that it anticipated a build-up of the work force. It was expected that the bargaining unit, then numbering nine employees, would grow to include 35 employees within a two or three month period. At that time the respondent did not ask the Board to apply its normal build-up principles to the application and the applicant took no position on that issue.

2. On occasion the Board is faced with clear evidence that a number of employees in an industrial bargaining unit on the date of an application for certification is not a substantial and representative segment of the work force to be employed. The Board may then order the taking of a representation vote to be held at a time when the build-up of the work force is far enough advanced that the wishes of the employees who will comprise the bargaining unit can be fairly determined. There must be a definite planned or scheduled expansion of the work force to take place within a reasonable and specified time, usually not exceeding a year. (Emil Frant 57 CLLC ¶18,057; McCord Corporation [1965] OLRB Rep. June 203; Wix Corporation Limited [1975] OLRB Rep. Aug. 637; F. Lepper & Son. Ltd. [1977] OLRB Rep. Dec. 846). Bearing in mind the tentative nature of any plan, the Board requires at a minimum that there be a real likelihood of build-up, and generally regards 50 per cent of the projected work force as constituting a representative segment of the employees for the purpose of certification. (McCord Corporation (supra); B. F. Goodrich Canada Limited [1970] OLRB Rep. Sept. 655; Cornwall Spinners Limited [1975] OLRB Rep. Sept. 695).

3. By its decision dated October 3, 1979 the Board stated:

"12. 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.

13. There being no direct evidence before the Board which the applicant could challenge, it would be unfair for the Board to treat the case as bough build-up was established. In this case the Board should have some evidence from the respondent on any planned build-up in order to assess the merits of the application. The Registrar is therefore instructed to list this matter for a continuation of hearing. The purpose of the hearing will be to allow the respondent to adduce evidence of any plans to increase the number of employees in the bargaining unit. The applicant shall be given the opportunity to respond to such evidence."

4. In the interim the Retail Clerks Union, Local 409 having been denied standing at the first hearing for lack of any membership among the employees, sought to intervene on the basis that it now has as a member an employee hired since the first hearing. The sole purpose of the intervention at this time is to request the taking of a one way representation vote to verify the support of the applicant in light of the build-up. Neither the applicant nor the respondent objected to the standing of the Retail Clerks to intervene for that purpose.

5. At the second hearing counsel for the respondent advised the Board that there are now 35 employees in the bargaining unit. That representation was not challenged by either the applicant or the intervener.

6. In every application for certification the Board has a duty to satisfy itself that the applicant trade union commands the support of the required percentage of a representative number of employees. Therefore when the Board is put on notice by a party that there are firm plans to implement an immediate and substantial increase in the work force it may of its own motion apply its normal build-up principles and order a representation vote to be taken when the build-up is far enough along that the will of the majority of the employees who will occupy the bargaining unit can be determined. (See McCord Corporation [1965] OLRB Rep. June 203). By doing so the Board is merely implementing the majoritarian principles fundamental to the granting of bargaining rights under the Act.

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 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 candor exhibited by counsel for the respondent in this case.

9. Having regard to the build-up of the work force in the bargaining unit from 9 employees at the date of application to 35 employees at the present time the Board is satisfied that it should exercise its discretion to conduct a representation vote among the employees presently working in the bargaining unit.

12. The matter is referred to the Registrar.