[1985] OLRB Rep. January 139
1447-84-R International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, U.A.W., Applicant, v. Woodbridge Foam Corporation, Respondent, v. Group of Employees, Objectors.
BEFORE: S. A. Tacon, Vice-Chairman, and Board Members W. H. Wightman and L. C.
Collins.
APPEARANCES: Lorna J. Moses, Maureen Kirincic and Brian Patrick for the applicant; Heat her J. Laing, W. Grant Oliver, Fred Mathewson and Jacques Capra for the respondent; no one appearing for the objectors.
DECISION OF THE BOARD; January 10, 1985
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.
On the first day scheduled for hearing, the parties were not agreed on the bargaining unit description, including whether the quality control technicians, the process engineering technicians and a clerical employee (the shipping clerk) should be excluded from the bargaining unit, as contended by the respondent, or included in the bargaining unit, as submitted by the applicant. The Board heard evidence regarding the duties and responsibilities of employees in these classifications.
On the day scheduled for continuation of the hearing, however, the parties met with a Board Officer and fully resolved their disagreement with respect to the bargaining unit description.
Having regard to the agreement of the parties, the Board finds that all employees of the respondent in the Town of Tilbury, save and except foremen, persons above the rank of foreman, office, clerical, technical and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
CLARITY NOTE: For purposes of clarity, as agreed by the parties, the material control clerk and the shipping clerk are excluded from the bargaining unit as clerical staff. Also, for the purposes of clarity and as agreed by the parties, process engineers (i.e., professional engineers) are excluded from the bargaining unit.
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 the bargaining unit at the time the application was made, were members of the applicant on September 1 3, 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. In fact, the membership count is 86 employees out of 114 in the bargaining unit.
Three statements of desire were filed with the Board containing a total of 10 names, none of which coincide with the names of those who signed membership cards. Accordingly, the Board finds the statements of desire not relevant because, even if voluntary, they would not raise doubt concerning the continued support for certification of the applicant, by a sufficient number of employees who also signed membership cards, that the Board would exercise its discretion under section 7(2) of the Act to direct that a representation vote be taken despite the fact that more than fifty-five per cent of the employees in the bargaining unit were members of the applicant at the relevant time.
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 on the ground that there is a projected buildup in the number of employees in the bargaining unit.
The respondent called one witness with respect to the projected buildup of the work force, Jacques Capra, vice-president, manufacturing, at the Tilbury plant. The applicant called no witnesses. In view of that uncontradicted evidence, the Board makes the following findings of fact.
The respondent company manufactures urethane foam products primarily for the furniture industry, athletics industry and the automotive industry. In the automotive industry, customers include the major manufacturers (e.g., GM, Ford, Chrysler, Volkswagon and International Harvester). The customers request bids based on drawings of the products needed and issue purchase orders to the successful bidder in the anticipated volume for each unit. The supplier is responsible for producing the tooling (moulds) in sufficient quantity to fill the order by the relevant deadlines. Purchase orders are issued well in advance of the model year. That is, the great majority of orders in respect of the 1985 model year have already been placed, suppliers are currently bidding on orders in respect of the 1986, 1987 and even 1988 models.
At the Tilbury plant, construction started in May, 1983 and production began in late September, 1983. Currently, there is one production line normally operating in three five-day shifts and producing car seats, cushions and backs. In the past three or four weeks, due to an expected increase in plant capacity, a weekend operation of two twelve-hour shifts has been added.
The company purchased the Tilbury site with a view to possible expansion and erected the first building in such a way as to allow expansion on the remaining land. In spring 1984, the company was reasonably certain added capacity would be needed for the 1985 model year production. Thus, the warehousing portion of the expansion was started at that time and completed this past summer. More recently, construction for the production end of the project was commenced. At present, the section of the floor for the production line has already been poured, the roof is scheduled for completion within a week and the walls within two weeks. Delivery of equipment has started. The building is scheduled to be ready for production in late January, 1985. The capital costs of the second production line, including the building, are about $3 million.
Without going into exhaustive detail, the second production line would manufacture substantially the same product. The differences in design of the 1986 model year, however, would result in a need for more staff to maintain the same volume of output. The equipment to be used in the second line is substantially similar to that in the first line. Further, the job classifications on both lines would be the same or substantially the same.
The second production line would require 130 employees to handle a five-day three-shift operation. The second line is scheduled to start at the end of January, 1985. Sixty employees would be required to start this line. The line would not start with only one shift; at least two, if not all three, would be needed. Initially, "samples" would be produced for the customers to conduct testing, measurement and trimming. Then, output would increase to manufacture the parts as needed as the 1986 model year cars themselves were produced. The timing of this increase is not precisely predictable as customers' deadlines could be shifted somewhat. However, by mid-1985, car production would be in full swing and, thus, the production at Tilbury would have to be slightly earlier.
Of the sixty employees, approximately thirty comprised the employees recently hired for the "weekend" operation. That is, the company expected and informed these employees when they were hired in October, 1984 that they would form the core of the new line and could expect a normal forty-hour week schedule in January. The company has not, however, asked for a commitment by these employees to accept the full-time positions in January, 1985. Thus, the second line would start with 60 at the end of January, 1985 and rise in regular increments thereafter until the full complement of 1 30 is reached in July.
The company is committed to the expansion; there have been public statements by the company about the expansion. Firm orders have been received for the 1986 model year. In fact, the total capacity of the second production line is committed in order to fill these firm orders. If there was a dip or decline in the market for 1986 model year cars, this would not appear until the fall of 1985 and, consequently, there would be no impact on the projected expansion. That is, the expansion has to proceed as planned to fulfill the firm orders.
Counsel for the respondent argued that the usual conditions were present to warrant an exercise of the Board's discretion to order a representation vote deferred until a representative segment of the plant work force was in place. Atlantic Packaging Products, [1980] OLRB Rep. Feb. 158 was referred to in support. Specifically, the number of employees at the time of the certification application (i.e. August, 1984) was less than 50%, namely, 114 employees, whereas another 130 would be hired. Counsel also argued that the 114 was actually an inflated figure because of the Board's classification of employees working more than twenty-four hours per week as full-time, i.e., not all 114 were working the "normal" full-time shift at the plant. Secondly, the planned build-up (thirteen months by mid-summer 1985) should be considered reasonable. In the alternative, it was submitted the representation vote should be held at the end of January when the second production line would be in place. Thirdly, the buildup is not dependent on factors outside the employer's control, i.e., the orders are firm, construction and training of employees to run the second line are well underway, etc. A dip in the demand for the product would not affect the plant, even assuming such a market decline occurred (and it was asserted there was no evidence warranting such an assumption) would not affect the employees at the Tilbury plant until after the projected buildup had occurred. Finally, counsel submitted that for the Board to certify the applicant on the ground that it had over 55% membership support of less than 50% of the planned work force would "force" these new employees into a collective bargaining relationship and put unnecessary stress on that relationship.
Counsel for the applicant submitted that the Board should not order a representation vote in the circumstances. Firstly, the applicant had the support of 75% of employees in the bargaining unit. Secondly, all classifications were presently represented, i.e., the buildup really involved duplication of the current classifications. Expansions generally do not happen on schedule and, in the current case, deferring determination of the certification issue from the application date on August 31, 1984 to the date the buildup is scheduled for completion, namely, mid-summer of 1985, was not warranted in view of the level of membership support presently enjoyed by the applicant. Counsel referred to F. Lepper & Son Ltd., [1977] OLRB Rep. Dec. 846. In balancing the interests of the two groups of employees (the current and projected employees), it was argued that the existing group of employees was sufficiently representative, particularly in light of the level of union support, to warrant immediate certification.
Both counsel made submissions as to the number of employees actually in the bargaining unit at the relevant time. For example, counsel for the respondent argued that the number included some persons who really were "part-timers" but fell within the Board's definition of full-time employees. Thus, the figure 114 was inflated and the percentage of the work force currently in place thereby correspondingly reduced. Counsel for the applicant contended that the 114 included some employees who were working the special weekend shift and slated to "transfer" to the second production line in January. That is, the projected buildup was actually closer to 115 or 100 than 130. In consequence, it was submitted that the current work force did not comprise at least 50% of the total.
In the Board's view, the Board is confined to the actual numbers accepted by the parties with respect to the count, i.e., 86 union members of 114 employees in the bargaining unit. The Board cannot consider these numbers "adjustable", up or down. Further, with respect to the projected buildup, the Board is confined to the evidence heard by the Board as to when the weekend shift was added and how many employees are projected over the period of the buildup. That uncontradicted evidence, once again, is that the weekend shift of thirty employees, the planned core of the sixty needed to start the second production line, was hired in October, i.e., after the certification application date.
A useful exposition of the Board approach to buildup is found in the following passage from Marley Roof Tiles Limited, [1984] OLRB Rep. March 511.
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.
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.)"
- 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 'seasonal' basis.”
The Board has found in the instant case, that the respondent has a firm plan for a buildup of the work force which is not dependent upon external market factors beyond the control of the employer. Any decline for the product of the Tilbury second production line would not have an impact until some months after the projected buildup would be completed. The period of time involved is within the time frame accepted by the Board in these cases, albeit toward the upper end of that range. Moreover, the second production line would at least substantially duplicate the classifications of current employees.
The Board must, however, consider whether the existing group of employees is representative of the projected work force. The current complement of 114 employees is slightly less than 50% of the projected total of 244 (i.e. 114 plus 130). As indicated in F. Lepper & Son Ltd., supra, the Board usually takes the position that fifty per cent of the expected total number of employees is sufficiently representative. From a purely arithmetic perspective, this position would be reached when the 122nd employee was hired.
In Marley Roof Tiles, supra, the Board found that, when the fifty per cent point was reached in that case, it was reasonable to conclude, given the level of union support at the time of application, the applicant would retain support in excess of fifty-five per cent of the bargaining unit. Accordingly, the Board decided that the current employees were sufficiently representative for the purposes of that application. The Board refused to direct a representation vote.
The instant case, though, does not neatly fit into the approach in Marley Roof Tiles Limited, supra. The current level of union support is considerable, i.e. 86 of 114 employees or 75%. At the arithmetical half-way mark, the 122nd employee, the local union support drops to 70%. This calculation makes the same assumptions as in the Marley case as to the retention of current employee support and makes no predictions as to additional union support from current or new employees. On the facts, the second production line would consist of sixty employees. However, of those sixty, thirty have already been hired (i.e., in October, after the application date), first to work on the weekend shift, but expressly to form the core of the second production line. The Board, then, considers that this group of thirty should be added to the current total of employees and the support of the union measured against the complement of 144 employees. On this analysis, the level of union support is 59% when over 50% (in fact close to 60%) of the projected work force is present.
The respondent argued that 55% support by 50% of the projected work force was not a firm foundation for collective bargaining, for forcing new employees to accept a bargaining agent which they had no part in choosing. The Board does not intend to turn this into an arithmetical exercise, although the Board would note that the level of union support is above 55% even when almost 60% of the work force is on board. As stated earlier, the Board must balance the right to collective bargaining of current employees against the right of future employees to participate in the selection of a bargaining agent. In this case, despite the fact that the respondent has satisfied several of the relevant criteria, the Board considers that the applicant has sufficient support among a representative work force to warrant certification without delay or the taking of a representation vote.
The Board would add a final comment on the respondent's position that 55% support by 50% of the projected work force is an insufficient measure given the realities of collective bargaining relationships. Firstly, the Board notes that even the arithmetical exercise utilized by the Board in calculating the level of union support held that support at the current figure. That is, the calculation made the assumption that support for the union would not grow along with the buildup in employee numbers. It is because this assumption is just that — an assumption — that the Board is reluctant to view 55% of 50% as an unreasonably low or impractical standard. Secondly, if support for the union does not grow along with the planned buildup, there will come a point at which the disaffected employees can seek termination of the union's bargaining rights. The majority of employees at that time will determine whether the union will continue to hold bargaining rights for the bargaining unit. Thus, the decision not to postpone certification and order a representation vote does not irrevocably force upon future employees a collective bargaining agent in whose selection they did not participate. While it may be argued that it is difficult for unhappy employees to extricate themselves from representation by an unwanted bargaining agent, this must be balanced by the wishes of the current employees for representation by that bargaining agent. The Board must weigh the factors in each case but, included among those factors, is the actual level of support enjoyed by the union.
For the foregoing reasons, then, the Board is not prepared to direct a representation vote or postpone certification of the applicant. Accordingly, a certificate will issue to the applicant.