International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (U.A.W.) v. Gabriel of Canada Limited, 1981 CanLII 889

International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (U.A.W.) v. Gabriel of Canada Limited

Parties

0561-81-R International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (U.A.W.), Applicant, v. Gabriel of Canada Limited, Respondent, v. United Steelworkers of America, Intervener.

Decision Makers

BEFORE: Pamela C. Picher, Vice-Chairman, and Board Members J. D. Bell and O. Hodges.

Appearances

APPEARANCES: H. Carl Anderson and Howard Powers for the applicant; Richard M. Lyon, Brian A. Bennett and Thomas L. Skinner for the respondent; Hugh G. Mackenzie and Joseph Ginty for the intervener.

Decision

DECISION OF THE BOARD; July 31, 1981

1This is an application for certification by both the U.A.W. and, by way of intervention, by the United Steelworkers of America.

7No one disputes that the Board should order the taking of a representation vote to determine which union, if any should become the exclusive bargaining agent for the employees in the bargaining unit.

8The respondent company, however, contends that the vote should be delayed because of a planned build-up in its work force.

9In F. Lepper & Son Ltd., [1977] OLRB Rep. Dec. 846 at 847 the Board set out the rationale behind the Board's practice of delaying the resolution of an application for certification where there is a planned, imminent build-up in the respondent's work force:

In deciding whether to postpone the taking of the representation vote because of the respondent's planned build-up of its work force, the Board must balance the rights of the 28 employees already employed at the time of the application with the rights of future employees the respondent intends to hire over the next eight months. By delaying the vote, the existing employees are temporarily deprived of their opportunity to engage in collective bargaining. By ordering an immediate vote, however, the future employees would be deprived of their opportunity to participate in the selection of their own bargaining agent.

The Board then surveyed the criteria applied to balance the interests of the two groups at pp. 847-848:

Over the years the Board has developed some guideposts to assist it in the balancing of the rights of these two groups of employees. Firstly, the Board requires that there be a real likelihood that a build-up will take place; there must be a firm plan for an imminent build-up. (See Power Controls [1967] OLRB Rep. Mar. 954, Cameron Packing Inc. [1972] OLRB Rep. Nov. 988, and Canron [1967] OLRB Rep. Sept. 750.) As well, the actualization of the build-up must be relatively certain. It should not, in other words, be dependent on market factors well beyond the control of the employer. In Travelaire Trailer Mfg. Ltd., [1970] OLRB Rep. Nov. 829, for example, the Board ruled that the planned build-up was not sufficiently firm to delay the vote because the build-up was almost totally dependent on the unstable market conditions in which the respondent's industry was engaged. The Board made a similar ruling in Cameron Packaging Inc., (supra), where the projected build-up was dependent on the next year's market and competitive conditions. Secondly, the planned build-up must take place within a reasonable period of time. While each case must be decided on its own facts, we note that in Vulcan Equipment, [1974] OLRB Rep. May 285, a build-up over a period of seven months was allowed; in United Asbestos, [1974] OLRB Rep. April 234, a build-up over a period of some sixteen months was allowed. In Wix Corporation Limited, [1975] OLRB Rep. Aug. 637, on the other hand, a build-up spanning between one and five years was not allowed. Thirdly, to determine whether the existing group is sufficiently representative of the expected total, the Board looks to whether the employees employed at the time of the application constitute more than fifty per cent of the anticipated number of employees. If less than fifty per cent of the expected total are then employed, it is normally felt that the group is not sufficiently representative and that the application is therefore premature. (See B. F. Goodrich Canada Limited, [1970] OLRB Rep. Sept. 655; Cornwall Spinners, [1975] OLRB Rep. Sept. 693.) Fourthly, as another yardstick in determining the representative character of the existing work force, the Board looks to the proportion of projected classifications that are filled at the date of the application. (See Ford Motor Co., [1967] OLRB Rep. Dec. 858, Cornwall Spinners, (supra) and Sparton Tool & Mould Ltd., [1975] OLRB Rep. June 469.)

10In this case the Board is satisfied that the respondent has firm plans for an immediate build-up. They further have existing plans for the build-up to continue over a five year period. The projected increases in the respondent's work force may be summarized as follows:

June 1981 53 total employees
July 1981 78 total employees
January 1982 170 total employees
July 1982 213 total employees
1983 318 total employees
1984 368 total employees
1985 468 total employees

Each of the representative employee classifications has been filled since June, 1981.

11Counsel for the respondent contends that a representation vote taken anytime in 1981 will not be sufficiently representative of the wishes of its ultimate workforce to be appropriate. Instead, counsel maintains that the vote should be taken in July 1982 when close to half of its total projected workforce will be in place.

12On cross-examination Mr. Brian Bennett, the vice-president of manufacturing at the respondent's plant, acknowledged that while the company had planned to hire 45 people on June 15, 1981 it in fact hired fewer than that. By way of explanation he stated that the company had encountered temporary problems in moving the business from a plant in Saco, Maine to its new plant in Ingersoll, Ontario.

13At its Ingersoll plant the respondent will be manufacturing McPherson struts and shock absorbers. The respondent has entered into a contract with Volkswagon of America to supply at least 80 per cent of their struts. It is apparent on the evidence that over the next few years the major portion of the respondent's production will be directed to supplying struts to Volkswagon. Bennett testified that the respondent's production capacity will be increased in 1982 in order to meet Volkswagon's rising needs. Bennett explained that Volkswagon's need for struts will increase in 1982 with the opening of a second plant in Michigan. The projected opening date for that plant was not given in evidence.

14It is apparent to the Board that to a significant degree the respondent's expansion plans are dependent on the success of Volkswagon, the number of cars it makes and the opening of a new Volkswagon plant.

15In 1982 the respondent intends to commence defense related production. Further it has committed itself, as part of the terms of its 5 year loan, to enter into a full scale employee training program. The respondent has made careful estimates of the growth in its manpower needs and has thus created firm plans to increase its workforce over the next 5 years.

16Notwithstanding these factors the Board is not prepared to consider as relevant to this application any projected build-up beyond January of 1982. In reaching this conclusion we are guided in part by the substantial extent to which the respondent's production is tied to the fortunes of a single company and the projected opening, sometime in 1982, of another Volkswagon plant. The respondent may be able to accurately predict how many struts it needs to produce for each Wolkswagon car; it may also be able to predict the production level of Volkswagon's existing plant. The respondent, however, has no control over the success of Volkswagon and whether in fact it opens a new plant. No evidence was presented to the Board regarding the stability of Volkswagon's plans.

17In reaching its conclusion the Board is further mindful of the high level of total support the two unions enjoy among the employees at the present time. Additionally we note that the first planned increase in June did not take effect as planned. While the problem responsible for that may be over, the respondent's circumstances, when viewed as a whole, satisfy the Board that the reasonable period of build-up to be considered by the Board in this case is up until January 1982.

18The respondent's evidence indicates that fifty per cent of the workforce that is projected for January of 1982 will be employed as of August 1, 1981. The Board has concluded thereby that as of August 1, 1981 a representative group of employees will be employed by the respondent for the purposes of the taking of a representation vote.

19Accordingly, the Board orders that a representation vote be taken forthwith among the employees in the bargaining unit. All employees of the respondent in the bargaining unit on August 1, 1981 who do not voluntarily terminate their employment or who are not discharged for cause between August 1, 1981 and the date the vote is taken will be eligible to vote.

20Voters will be asked to indicate whether they wish to be represented by the applicant or the intervener or no union in their employment relations with the respondent.

21The matter is referred to the Registrar.