[1985] OLRB Rep. November 1557
1796-85-R Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Applicants, v. Brick Brewing Co. Limited, Respondent, v. Group of Employees, Objectors
BEFORE: Harry Freedman, Vice-Chairman, and Board Members L M. Stamp and P. Grasso.
APPEARANCES: Archie Duckworth, Perry Witt and Mike Ostner for the applicants; Ian S. Campbell and James R. Brickman for the respondent; no one appearing for the objectors.
DECISION OF THE BOARD; November 14, 1985
This is an application for certification.
Prior to the scheduled hearing of this matter, the parties met with a Labour Relations Officer at which time the parties reviewed and agreed on all but one of the issues raised in this application.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that:
all employees of the respondent in Waterloo save and except supervisors, persons above the rank of supervisor, office and sales staff, and persons regularly employed for not more than 24 hours per week and students employed during the school vacation period, hereinafter referred to as bargaining unit #1; and
all employees of the respondent in Waterloo regularly employed for not more than 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, hereinafter referred to as bargaining unit #2,
constitute two units of employees of the respondent appropriate for collective bargaining.
The Board is satisfied on the basis of all of the evidence before it that more than fifty-five per cent of the employees of the respondent in each bargaining unit, at the time the application was made, were members of the applicant on October 29, 1985, 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.
Counsel for the respondent submitted that this was an appropriate case for the Board to exercise its discretion and order a representation vote among the employees in each of the bargaining units after the build-up of the respondent's employee complement was completed, in February 1986. Some of the facts relevant to the issue of build-up were agreed to by the parties, while others were disputed by the applicant. Counsel for the respondent adduced evidence relating to the relevant facts that were in dispute. After receiving the evidence, the Board heard the submissions of the parties, following which it recessed and then returned to deliver the following decision orally:
In this application for certification, counsel for the respondent submits that the Board should exercise its discretion to order a representation vote because there will be a build-up of the employee complement.
The parties agreed and the Board found that two units of employees were appropriate for collective bargaining, a full-time unit and part-time unit. At the time of the application, there were six employees in the full-time bargaining unit and ten employees in the part-time bargaining unit. Five of the six full-time employees and seven of the ten part-time employees were members of the applicant as of the terminal date.
The respondent's submission requires the Board to balance the rights of the current employees with those of the future employees that will be hired by the respondent. Generally, the Board will exercise its discretion to order a vote in a build-up situation where
……….there [is] a firm plan for an imminent build-up. (See Power Controls, [19671 OLRB Rep. March 954, Cameron Packing Inc., [1972] OLRB Rep. Nov. 988, and Canron [1969] 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., [19701 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 years' market and competitive conditions."
(F. Lepper & Sons Limited, [1977] OLRB Rep. Dec. 846 at 847-848.)
We are convinced that the respondent will increase its complement of employees by six additional employees in the full-time unit and six additional employees in the part-time unit within the next three months, as was submitted by counsel for the respondent.
However, before ordering a representation vote as a result of a build-up of employees, the Board must be satisfied that the number of employees in the bargaining unit at the time the application was made is not representative of the work force that will be employed after the buildup has been completed. As the Board stated in the F. Lepper & Son Limited case, supra, at 848:
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, [19701 OLRB Rep. Sept. 655; Cornwall Spinners, [1975] OLRB Rep. Sept. 693.)"
It is clear to us that in respect of the part-time bargaining unit, well over fifty per cent of the anticipated number of employees were employed in the bargaining unit on the application date. Those employees are representative of the anticipated work force that will be in place after the build-up.
However, in the full-time bargaining unit, precisely fifty per cent of the anticipated work force were employed in the bargaining unit as of the application date. The Board notes that all of the job classifications that the respondent will utilize after the build-up have at least one employee in them.
In our view, the respondent's current work force in the fulltime bargaining unit is representative of the anticipated work force after the build-up is completed. We adopt the approach of the Board in Marley Roof Tiles, [1984] OLRB Rep. March 511, referred to in Woodbridge Foam Corporation, [1985] OLRB Rep. Jan. 139, where the Board in the Marley Roof Tiles case stated at page 514:
"As indicated in the above excerpt from the F. Lepper & Son Limited 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 instance 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 are 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."
In this case, five of the six employees, who comprise fifty per cent of the anticipated work force in the full-time bargaining unit, are members of the applicant. Therefore, in balancing the rights of the current employees and the rights of future employees, we are satisfied that because the employees in each of the bargaining units are representative of the anticipated number of employees that will be employed in those bargaining units after the build-up, we decline to order a representation vote.
Certificates will issue to the applicant in respect of each of the
bargaining units.