[1983] OLRB Rep. December 2027
1317-83-R United Food and Commercial Workers, International Union, AFL-CIOCLC, Applicant, v. F. B. I. Foods Ltd., Processing Division, Respondent, v. Employee, Objector
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members I. M. Stamp and B. L. Armstrong.
APPEARANCES: Stephen Krashinskv, Bruce Zufelt, Jim Foshay for the applicant; Gordon J. Weir and William Jeffery for the respondent; no one for the objector.
DECISION OF THE BOARD; December 12, 1983
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.
The parties are already covered by a collective agreement for its main production group, the recognition clause of which reads:
The company recognizes the union as the sole and exclusive collective bargaining agent for all its employees at Trenton, Ontario save and except supervisors, persons above the rank of supervisor, office and sales staff, plant clerical staff, supervisory trainees, security guards, quality control technicians, persons regularly employed for twenty-four (24) hours per week or less, students employed during the school vacation period, and seasonal employees as defined in Article 17:09 herein.
Both parties were in agreement that the description of an appropriate bargaining unit could read "all quality control technicians", as those are the only excluded persons presently employed by the respondent in the "tag-end" to the production unit. Because of the possibility of future classifications being hired, however, the Board indicated its preference for the normal "tag-end" description, in terms of ''all employees not covered by the subsisting collective agreement". The applicant indicated that if that were the description to be adopted, then it would have no objection to the respondent's sought-after exclusion for students and part-time employees. The only issue remaining for the parties, therefore, was the exclusion which the respondent sought for "seasonal employees", to mirror, it said, the regular production unit. The Board accordingly heard the evidence and representations of the parties with respect to the exclusion of the quality control technician, Randy Brown, whom the respondent sought to exclude as "seasonal", as well, as the evidence and representations of the parties with respect to the respondent's request for deferral of consideration of this application on the grounds of a predicted "build-up" within the bargaining unit. The Board then issued the following oral reasons for decision.
With respect to the issue of "build-up", the company witnesses were notable for their candour, and satisfied the Board of the substance and sincerity of the company's plans. The company in fact has in operation both its new liquifill (gable-pak) and tetra-pak lines, and the Board is satisfied of the need of the respondent for four quality control technicians on a full-time basis by January of 1984. There were, however, as of the date of the application, either two or three quality control technicians employed in the unit, depending on the "seasonality" issue, so that a "build-up" to the number of 4, as of January, would be insufficient to cause the Board to grant the respondent's request for deferral (there being, in the Board's view, a representative number of persons employed in the bargaining unit as of the date of the application). The respondent must effectively rely, therefore, on its projections for an additional two quality control technicians to be hired sometime in April or May of 1984, on the basis that it is the company's hope that its present sales projections will permit the operation of its new $4 million equipment on a three-shift basis. The company witnesses' own evidence, however, underscores the degree of uncertainty and lack of company control still attaching to that aspect of the company's "build-up" plans, both witnesses acknowledging that such further development is dependent upon sales in fact reaching projected levels. The Board accepts the common-sense submission that an investment of $4 million leaves no doubt that the company is aiming for a full utilization in production from this equipment. The prospect of realizing that, however, remains a calculated risk on the part of the respondent, however, and no evidence was put before the Board on the basis on which that risk, or the sales projections, had been calculated. Irrespective of that, however, the company's witnesses had to concede that whether the equipment will in fact be fully utilized is dependent on how sales in fact prove out, and the Board notes in that regard that the company's projections are for a product and a method of packaging which, from this company's point of view, are totally untried, and have not yet even reached the store shelves. It is simply not possible to say on the evidence that the test required by the Board in its jurisprudence over the years for the degree of certainty and company control has been met. See, e.g., Custom Leather Products Limited, [1981] OLRB Rep. Aug. 1128, and the cases cited therein. The refusal on the part of the Board to entertain an application for certification in the normal way is discretionary, and the Board in the present circumstances does not find a justification to exercise that extraordinary discretion to defer.
The Board accordingly will deal with the present application as filed, the only remaining issue being that of the "seasonal" exclusion. The Board's normal approach, recently reviewed and summarized in the case of Filkon Food Services Limited, [1981] OLRB Rep. May 1771, is not to take into account normal fluctuations in the company's work force, based on the cyclical nature of a particular business. A limited exception to this has developed in the case of certain industries such as tobacco harvesting, canning, and similar food-processing. The operation of the respondent falls within this limited class, and the exclusion in the scope clause for production employees hired on a "seasonal" basis is reflective of that. It remains to be decided, however, whether that exclusion ought to be extended beyond the actual production group, and to do that it is necessary to consider the basis for that "seasonal" exclusion. The cases themselves contain little articulation of that basis, but it would appear to be a reasonable conclusion that it is based upon the existence of a totally distinct community of interest, both in terms of the specific period of hiring and the nature of the work performed. This would appear to be consistent with the way the exclusion is dealt with in the present parties' collective agreement, particularly in terms of the definition of the period for which a "seasonal" employee is hired. And while the evidence in this case discloses some overlap in the nature of work which both "seasonal" employees and the permanent work force perform, by and large one can see a discernible distinction in the work for which the "seasonal" employees are hired. Neither of these distinctions are borne out by the evidence with respect to the quality control laboratory. Indeed, the evidence with respect to Mr. Brown, the individual in dispute, confirms that he tends to be hired simply in accordance with the company’s needs, rather than for any period specifically defined by the apple season itself. He has, for example, been retained in the past at least until January to work on clamato juice. Similarly, the evidence satisfies us that, apart from some difference in emphasis in the assignment of work between the "temporary" and "permanent" technicians, the work performed by the two categories overlaps to a substantial degree, and is effectively the same. The case of the quality control technicians, therefore, is much closer to that involving no more than cyclical fluctuations within a particular classification, and which the Board would find does not affect the composition of the appropriate bargaining unit. Alternatively, the Board would find that there are, or have been, no "seasonal" employees employed in the proposed bargaining unit, as that term has been used either by the parties or by the Board in other cases, and the designation of such an exclusion would be inappropriate on that basis as well. The appropriate bargaining unit accordingly will be defined without reference to a "seasonal" exclusion.
Based on all of the material before it the Board is satisfied that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on September 26, 1983, the terminal date fixed for this application and the date which the Board determines, under section 103(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.
The Board accordingly certifies the applicant as exclusive bargaining agent for all employees of the respondent at its plant in Trenton, save and except forepersons and those above the rank of forepersons, persons regularly employed for not more than 24 hours per week, students employed during the school vacation period, and persons covered by subsisting collective agreements.
A certificate will issue to the applicant.