Ontario Labour Relations Board

[1983] OLRB Rep. March 511

2341-83-R United Steelworkers of America, Applicant, v. Marley Roof Tiles Limited, Respondent

BEFORE: Ian C. Springate, Vice-Chairman, and Board Members I. M. Stamp and H. Kobryn.

APPEARANCES: Stephen Krashinsky, Everett Roberts and Norman Cress for the applicant; Lynn H. Harnden and Bernard M. Curtis for the respondent.

DECISION OF THE BOARD; March 22, 1984

1. This is an application for certification.

2. The Board finds that the applicant is a trade union within the meaning of section l(1)(p) of the Labour Relations Act.

3. Having regard to the agreement of the parties, the Board finds that all employees of the respondent in the Town of Milton, save and except foremen, persons above the rank of foreman, office and sales staff, field installation staff and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

4. For the purposes of clarity, the Board notes the agreement of the parties that employees in the positions of storeman, driver and roof loading crew are not part of the field installation staff and are included in the bargaining unit. The parties are also in agreement that employees in the position of scaffolder (being a person who works outside the plant erecting scaffold for the field installation staff) are part of the field installation staff and are not included in the bargaining unit.

5. On the date of the making of the application there were fifteen employees in the bargaining unit. The applicant filed evidence of membership on behalf of all fifteen employees. In these circumstances, 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 January 23, 1984, 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. Accordingly, the applicant has established that it meets the statutory requirements for automatic certification.

6. Notwithstanding the fact that the applicant has met the statutory requirements for automatic certification, the Board retains a discretion under section 7(2) of the Act to direct the taking of a representation vote. The respondent submits that this is an appropriate case in which to direct such a vote, and further that the vote should be postponed until some six months after the application date. The respondent bases its case on a projected build-up in the number of employees in the bargaining unit.

7. The respondent led evidence before the Board that establishes that it has set in motion a firm plan that can reasonably be expected to lead to an increase in the number of employees between the application date of January 12, 1984 and August of 1984. The respondent's estimates indicate that the number of employees in the bargaining unit will be as follows for the months of January to July, 1984:

January - 15 employees February - 16 employees March - 22 employees April - 28 employees May - 32 employees June - 35 employees July - 36 employees

The respondent projects a total of fifty-four bargaining unit employees in August of 1984. However, most of this increase is projected to relate to a temporary second shift of approximately fifteen employees, with these additional employees being laid-off in November of 1984. Indications are that only three employees who will be hired during August are likely to be retained past November of 1984.

8. In cases involving a projected build-up in employees, the Board seeks to balance the right of persons presently employed to collective bargaining against the right of future employees to select a bargaining agent of their own choice. As the Board noted in the Canadian Canners Limited case 57 CLLC ¶ 18,056 a refusal to certify immediately tends to deprive the current employees of their right to collective bargaining, including the right to engage in legal strike activity. However, immediate certification will prevent future employees from having input into selecting a bargaining agent (or deciding not to be represented at all) for some period of time due to the provisions in the Act relating to the displacement and termination of bargaining rights.

9. The Board surveyed the criteria it has applied in trying to balance the interests of the two groups in F. Lepper & Son Ltd. [1977] OLRB Rep. Dec. 846 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.)"

10. In applying the criteria referred to above, the Board generally does not take into account normal fluctuations in a company's work force arising out of the cyclical nature of the particular business in which it is engaged. In this regard see Filkon Food Services Limited [1981] OLRB Rep. May 1771, where in rejecting the argument that a projected influx of summer students into a bargaining unit involved a build-up such that the Board should delay consideration of a certification application, the Board made the following comments:

".... .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."

11. We turn now to the facts at hand. As already indicated, we are satisfied that the respondent has set in motion a plan that can reasonably be expected to lead to an increase in the number of bargaining unit employees. The period of time involved is within the time frame accepted by the Board in certain other cases. Further, it appears that employees are already employed in most of the projected classifications. Accordingly, in applying the Board's criteria as set out in the cases referred to above, the only remaining question concerns the representative nature of the existing group of employees.

12. In approaching this question, we do not believe that we need be unduly concerned about the wishes of those individuals who are slated to be hired in August and laid off again in November. The planned hiring of these individuals appears to involve the type of seasonal fluctuation which the Board has traditionally not viewed as involving a build-up. Further, in the balancing of competing interests, we are satisfied that the interests of the current employees clearly override the interests of individuals who will not be hired for some months yet, and who are slated to be laid off approximately three months after they are hired.

13. When the fifteen temporary employees projected to be hired in August are excluded from consideration, there still remains a projected build-up to thirty-nine employees. As indicated in the above excerpt from the F. Lepper & Son Ltd. case, the Board generally takes the position that a group of employees is sufficiently representative if it includes fifty per cent of the expected total number of employees. In the instant case, the fifty per cent point is projected to be reached at some point during the month of March, 1984 when the respondent hires the twentieth bargaining unit employee. Accordingly, if the Board were to follow its normal practice, it would consider the wishes of a majority of employees at that point in March when twenty employees were employed in the bargaining unit. Generally, this would be done by way of a representation vote. Given the facts of this case, however, we are satisfied that no such vote is required. Presumably, of the twenty bargaining unit employees projected to be employed in March, fifteen of them will be the same employees who were in the bargaining unit on the application date. All of these fifteen employees are members of the applicant. Accordingly, even when half the total projected number of the employees are employed in the bargaining unit, it appears reasonable to conclude that over fifty-five per cent of them will be members of the applicant union. In these circumstances, we believe the current employees to be sufficiently representative for the purposes of this application. Accordingly, we are not prepared to direct the taking of a representation vote or to postpone certification of the applicant.

14. A certificate will issue to the applicant.