[1981] OLRB Rep. December 1771
0012-81-R Hotel, Restaurant & Cafeteria Employees Union — Local 75, Applicant, v. Filkon Food Services Limited c.o.b. as By The Way Frozen Yogurt, Respondent.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. D. Bell and O. Hodges.
DECISION OF THE BOARD; May 14, 1981
This is the continuation of an application for certification.
The parties at the initial hearing agreed that two bargaining units were appropriate, one relating to the full-time employees (bargaining unit #1), and the other to part-time employees and students employed during the school vacation period (bargaining unit #2). The Board in its decision of April 30, 1981 certified the applicant for the full-time unit. The unit of part-time employees and students remains to be dealt with. The respondent's objection to certification of the second unit is based on the Board's so-called "build-up" principle; that is, that this is not a representative time to ascertain the wishes of the employees in the part-time bargaining unit.
The respondent has been in operation for 3 years, and presently employs 6 part-time employees in its restaurant outlet. This is its normal complement of part-time employees. For the first time this summer, however, the respondent will be operating an outdoor cafe area, which will require the hiring by the end of June an additional 12 students to work outside, plus 4 more students to work inside. This outdoor operation will also require some modification to the respondent's premises. The summer cafe has not been operated in prior years because the respondent had, until now, been unable to obtain from the building's owner the kind of long-term lease which would justify the cost of renovations. The respondent points to these actual changes to the physical premises as the factor which brings this case within the "build-up" principle.
The alteration of physical premises, however, has never been a factor in the Board's application of its "build-up" principle. Rather, the Board's sole concern is whether the employee complement at the time of an application for certification is "representative" of the full complement on an ongoing basis (see, e.g. Atlantic Packaging, [1980] OLRB Rep. Feb. 158, paragraphs 8 and 9). What the respondent is relying upon in this case is a purely seasonal fluctuation in its work force, involving the increased use of students in the summer. The Board has never held that an application for certification which includes summer students must be brought in the summer. More importantly, the Board has consistently refused to take into account seasonal fluctuations in a work force, from the point of view of either "build-up" or bargaining-unit configuration, outside of certain historically-recognized industries such as canning and tobacco-harvesting (see Universal Cooler, [1967] OLRB Rep. Sept. 546; Melnor Manufacturing Ltd., [1976] OLRB Rep. May 215). The Board in most instances, in other words, does not take into account the normal ebb and flow of the work force. That is all that is occurring in the present case, albeit for the first time because this is the first year the respondent will be operating on a "seasonal" basis.
The present complement of 6 part-time employees is, as the applicant points out, in fact representative of the bargaining unit, even with the seasonal fluctuation, for approximately 10 months of every year. The Board is not of the view that the desire of a ''permanent" complement of part—time employees for collective bargaining (even recognizing that such employees may themselves be "students") ought to be deferred in a case such as this to await the determination of the wishes of additional students employed only during the school vacation period. The Board therefore declines to exercise its discretion under section 7 of The Labour Relations Act to defer further processing of the present application.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in bargaining unit #2 at the time the application was made were members of the applicant on April 13, 1981, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
A certificate will therefore issue to the applicant for all employees of the respondent at By The Way Frozen Yogurt in the Municipality of Metropolitan Toronto regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, save and except supervisors, persons above the rank of supervisor, office and sales staff, in accordance with its finding at paragraph 4 of its decision dated April 30, 1981.