Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351 v. Warrington Products Inc., 1986 CanLII 1478

Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351 v. Warrington Products Inc.

[1986] OLRB Rep. May 597

2718-85-R Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351, Applicant, v. Warrington Products Inc., c.o.b. Cornwall Plastic Products, Respondent

BEFORE: Ian C. Springate, Alternate Chairman, and Board Members W G. Donnelly and R. Wilson.

APPEARANCES: S. B. D. Wahl and F. Da Silva for the applicant; Richard J. Nixon and Suzanne Duncan for the respondent.

DECISION OF THE BOARD; May 16, 1986

Reasons for Decision

1. The name of the respondent is amended to read: "Warrington Products Inc., c.o.b. Cornwall Plastic Products".

2. This is an application for certification.

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

4. Having regard to the agreement of the parties, the Board finds that all employees of the respondent in the City of Cornwall, save and except supervisors, persons above the rank of supervisor, office, clerical and sales staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

5. For the purposes of clarity, the Board notes the agreement of the parties that "accounting are included in the term office staff".

6. Section 7(1) of the Act provides as follows:

Upon an application for certification, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at such time as is determined under clause 103(2)(j).

This application was filed on February 6, 1986. In accordance with its general practice, the Board sets February 17, 1986, the terminal date in this matter, as the time, under section 103(2)(j) of the Act, for the purpose of ascertaining membership under section 7(1) of the Act.

7. On the date of the filing of the application there were 70 employees in the bargaining unit. Prior to the terminal date, the applicant filed evidence of membership with respect to 52 of these employees. However, one of the persons for whom the union filed membership evidence appears to have signed the relevant membership card after the application date and after he ceased to be an employee of the respondent. We are, in the circumstances, not prepared to give any weight to the membership evidence relating to this individual. Accordingly, we conclude that the applicant filed acceptable evidence of membership with respect to 51 of the 70 individuals who were employees in the bargaining unit on the date of the making of the application. This level of membership support, in excess of 70 per cent, exceeds the 55 per cent required under the Act for a trade union to be certified outright.

8. Even in instances where, as here, a trade union has met the statutory requirements for automatic certification, section 7(2) of the Act gives the Board a discretion to direct the taking of a representation vote. The respondent contends that the Board should exercise its discretion in the circumstances of this case and direct the taking of a vote because of a projected build-up in the number of employees in the bargaining unit.

9. In cases involving a projected build-up in the number of 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.

10. 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 build­up. (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 Caneron 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 Valcan 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 cases where the Board concludes that there exists a firm plan for an imminent build-up in the number of employees, the Board will generally direct the taking of a representation vote at the point where fifty per cent of the anticipated total number of employees is employed.

11. In the Marley Roof Tiles case, [1984] OLRB Rep. March 511, the Board departed somewhat from its established practice. In that case, the applicant union had filed evidence of membership on behalf of all 15 employees in the bargaining unit on the date the application was filed. Excluding certain employees who were to be hired on a temporary basis only, the bargaining unit was projected to increase to 39 employees. Rather than direct the taking of a representation vote at the point when 20 persons were employed within the bargaining unit, being the halfway point to the projected final employee complement, the Board, on the basis of the union's existing support, decided to certify the union outright. The reasoning of the Board was as follows:

13. ... 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.

This reasoning in the Marley Roof Tiles case was adopted in a somewhat similar fact situation in Brick Brewing Co. Limited, [1985] OLRB Rep. Nov. 1557.

12. The Board heard no evidence with respect to the planned build-up of employees. Rather, counsel for the respondent set forth his understanding of the planned build-up and counsel for both parties then made their submissions on the assumption that the facts outlined by respondent's counsel were correct. The applicant, however, reserved the right to require that the respondent actually lead evidence to establish the facts as outlined by respondent's counsel. According to respondent's counsel, the respondent commenced operations in January of 1985 with five employees. By December of 1985, the number of employees had risen to approximately 40. By the date of the filing of the application there were 70 employees, a figure which had increased to 98 as of the date of the hearing in this matter. According to the respondent's counsel, the respondent has firm plans to increase the number of bargaining unit employees to 158 by the end of June 1986. Counsel filed a written document with the Board which outlines in some detail the respondent's projected manpower requirements. This document indicates that the respondent plans to employ 156 employees by the end of June 1986. No one addressed the difference between this figure and the 158 employees referred to by counsel.

13. Prior to the date of the hearing in this matter, the number of employees in the bargaining unit had already passed the halfway point to the total projected work force. If we were to assume that none of the new employees were union supporters, and that all of the employees who were union members on the terminal date were still in the respondent's employ at the halfway point, the applicant's membership support at that point would have been 51 out of 78 or 79 (depending whether the final employee complement is expected to be 156 or 158), which is approximately 65 per cent. If we were to use the same assumptions with respect to the date of the hearing, however, the union's support would have dropped to 51 out of 98, or approximately 52 per cent.

14. The assumption that individuals who were union members on the application date would still be in the respondent's employ as at the halfway point to the final employee complement was challenged by the respondent. According to the respondent, between the application date and the hearing date, eight employees had left the respondent's employ. The respondent contends that at least some of these employees were likely to be union members. (It is of some interest that if the total projected employee complement is to be 156 as opposed to 158, then even if all eight employees who left were union members, and none of the newly hired employees joined the union, over 55 per cent of the employees at the halfway point would still have been union members.) For its part, the applicant contends it is unfair to assume that while the number of employees increases, the number of employees supporting the union will remain the same. Indeed, at the hearing, union counsel made reference to seven "lost" membership cards filed by the applicant prior to the terminal date. These cards bear the signatures of individuals who were not on the list of employees in the bargaining unit as at the application date. Union counsel contended that the individuals in question had been hired by the respondent subsequent to the application date, and had signed membership cards in the applicant trade union prior to the terminal date. Further, subsequent to the hearing, the applicant filed evidence of membership on behalf of 23 persons it claimed had been hired into the bargaining unit subsequent to the terminal date of the application and who had then joined the applicant.

15. As indicated above, we have set the terminal date as the time for the purpose of ascertaining membership under section 7(1) of the Act. Our use of the terminal date is in line with the Board's general practice in such matters and reflects section 73(1) of the Board's Rules of Procedure which provides as follows:

73.-(l) Evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall nor be accepted by the Board on an application for certification or for a declaration terminating bargaining rights unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and,

(a) is accompanied by,

(i) the return mailing address of the person who files the evidence, objection or signification, and

(ii) the name of the employer; and

(b) is filed not later than the terminal date for the application.

(emphasis added)

To accept the membership evidence filed by the applicant subsequent to the terminal date would be contrary to section 73 of the Rules. In addition, to abandon the use of the terminal date as the date for filing membership evidence even in a build-up situation would, in this and other proceedings, cause uncertainty as to when new membership evidence would be considered. Presumably if a union could keep filing membership cards after the terminal date, employees could also keep filing statements indicating that they had changed their minds about union representation. Rule 73 provides a fixed point of reference in this regard, and we are satisfied we should follow the dictates of the Rule and not consider membership evidence filed after the terminal date.

16. The fact that we decline to accept additional membership evidence does not mean that the Board is blind to the possibility that, as in this case where there is an expanding work force, a trade union seeking to organize that work force will seek to persuade new employees to join the union. We also recognize that some individuals who were employed as at the application date may leave a company's employ prior to the halfway point to the final employee complement, and that some of these employees may be union members. It is also quite possible, however, that some of their replacements will become union members. In our view, when the Board is deciding whether, in the exercise of its discretion, it should direct the taking of a representation vote in situations where a trade union has satisfied the statutory requirements for certification, it is appropriate to assume that as the employee complement on the application date "turns over", the relative proportion of employees who are union members will likely remain constant. In the instant case, that leads us to conclude that at the halfway point to the total projected employee complement, the union likely had membership support among approximately 65 per cent of the employees. In these circumstances, we do not believe that this is an appropriate case in which to direct the taking of a representation vote.

17. The respondent also contends that it would not be appropriate to certify the applicant outright because not all of the planned classifications of employees were actually occupied by employees as of the application date. On the basis of the information supplied by the respondent, it appears that of the planned 13 classifications, 9 were occupied on the application date. The other 4 classifications would, at the end of the build-up, have a combined total of 21 employees. In our view, it is not necessary that all classifications be occupied before a union is certified outright. Rather, in a build-up situation, the Board is concerned that a representative sample of classifications be occupied. In this regard, it is noteworthy that even where all classifications of employees are present, nothing in the Act requires that a trade union have support among employees in each of the classifications. Given all of these considerations, we do not believe, in the circumstances of this case, that the lack of employees in certain classifications should cause us to direct the taking of a representation vote.

18. The applicant has met the statutory requirements for automatic certification. We are not satisfied that this is a case where the Board should exercise its discretion and direct the taking of a representation vote. Accordingly, a certificate will issue to the applicant.