Ontario Labour Relations Board
[1985] OLRB Rep. May 731
1782-84-R Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Applicant, v. Simpsons Limited, Respondent, v. Group of Employees, Objectors
BEFORE: S. A. Tacon, Vice-Chairman, and Board Members J. A. Ronson and S. 0'Flynn.
DECISION OF THE BOARD; May 27, 1985
Reasons for Decision
By decision dated April 15, 1985, a final certificate was to issue to the applicant with respect to bargaining unit #1 (part-time unit) and, with respect to bargaining unit #2 (full-time unit), the Board directed the parties to make written submissions, if desired, on the matters noted reserved in the original Board decision in this application, dated November 7, 1984.
That issue concerns the impact of lay-off notices, sent to a number of full-time employees, on the entitlement of those employees to be included in the bargaining unit count and, if any had signed membership cards submitted by the terminal date, to have those cards included in the membership evidence tendered by the applicant. The respondent filed a written submission with the Board; the applicant did not.
The respondent acknowledged the decision of the Board in Simpsons Limited, [1984] OLRB Rep. Oct. 1520 between the same parties wherein the Board held that employees as of the application date were to be included in the count taken pursuant to section 7(1) of the Act, whether or not some employees had received notices of lay-off effective November 3, 1984. Counsel argued, however, that the impact on the membership count of the exclusion from the bargaining unit of those persons so notified was a relevant consideration with respect to the exercise of the Board's discretion under section 7(2) of the Act. That is, counsel contended that, if the exclusion of those persons would reduce the applicant's level of support to below 55 %, this would be an appropriate case for the Board to exercise its discretion to order a representation vote, despite the fact that the applicant was otherwise entitled to certification without a vote. Counsel cited build-up cases by way of analogy, i.e., the interests of existing employees should be balanced against those who would remain in the event the union was certified. Cases cited include: F. Lepper & Son Limited, [1977] OLRB Rep. Dec. 846; General Extrusion Company, Inc., 121 NLRB 1165 (1958); Douglas Motors Corp, 128 NLBR 307 (1960); Plum Creek Lumber Co. Inc., 214 NLRB 619 (1974); Mrs. K's Food Products Ltd. v. United Food & Commercial Workers International Union, Unreported May, 1984 (Man. C.A.).
The Board has developed a number of factors to be considered in determining whether to order a representation vote in what is colloquially referred to as the build-up cases: see Woodbridge Foam Corporation, [1985] OLRB Rep. Jan 139; Marley Roof Tiles Limited, [19