United Food & Commercial Workers International Union v. Cobi Foods Inc., 1987 CanLII 3285

[1987] OLRB Rep. June 815

1359-86-R United Food & Commercial Workers International Union, Applicant v.

Cobi Foods Inc., Respondent

BEFORE: V. Solomatenko, Vice-Chair, and Board Members R. J. Gallivan and B. L. Armstrong.

APPEARANCES: Martin Levinson, Bruce Zufelt and Sharon White for the applicant; Gordon J. Weir and John King for the respondent.

DECISION OF THE BOARD; June 16, 1987

1. This is an application for certification.

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

3. Having regard to the agreement of the parties, the Board further finds that all employ­ees of the respondent at Whitby, Ontario, save and except fieldmen, forepersons, persons above the rank of foreperson, office and sales staff, and employees for which any trade union held bar­gaining rights as of July 31,1986, constitute a unit of employees of the respondent appropriate for collective bargaining.

4. The applicant union filed this application for certification on July 31, 1986 and, in accordance with the Board's Rules of Procedure, August 15, 1986 was set as the terminal date. Subsequent to the processing of the application and the setting of the terminal date, the applicant requested an amendment to the bargaining unit description. By decision dated August 29, 1986, a differently constituted panel of the Board amended the bargaining unit description as requested and directed that the Registrar reprocess this application and extend the terminal date in accord­ance with the Board's Rules of Procedures. As a result, the terminal date in this application was extended to September 15, 1986.

5. The respondent has filed the appropriate employer's lists indicating that it had a total of 34 employees in the bargaining unit as of the application date, July 31, 1986. On or before August 15, 1986, the applicant filed 33 membership cards in support of its application and, on or before September 15, 1986, it filed a further 29 membership cards, for a total of 62 cards. Twenty-three of the applicant's membership cards filed on or before August 15, 1986 coincide with the names on the employer's lists of 34 employees in the bargaining unit as of July 31,1986. On that basis, the Board is satisfied on the evidence 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 15, 1986, 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.

6. Upon an application for certification, section 7(1) of the Act requires the Board to ascertain the number of employees in the bargaining unit at the time the application was made. By reason of Rule 75(1) of the Board's Rules of Procedure, the instant application is deemed to have been made or filed on July 31, 1986, being the date the application was mailed by registered mail. The respondent submits, however, that July 31, 1986 is not the appropriate date for determining the number of employees in the bargaining unit. It requests that the Board either amend the appli­cation date to a date "within a representative time period" and reprocess the application in accord­ance with that amended date, or direct the taking of a representation vote. The application date, that is, the time as of which the number of employees in the bargaining unit is to be ascertained, has been fixed immovably by statute and is not subject to variation by the Board: Amplifone Can­ada Ltd., [1967] OLRB Rep. Dec. 840 and R. v. Ontario Labour Relations Board. Exparte Hanni­gan et al., 1967 CanLII 205 (ON CA), [1967] 2 O.R. 469. The issue to be determined in this matter therefore is solely whether the Board should exercise its discretion to order a representation vote.

7. The respondent's arguments in this matter arise out of the seasonal nature of the work performed by the employees of the bargaining unit subject of this application for its canning opera­tions. The respondent is a food processor and the applicant already holds bargaining rights with respect to the regular or permanent employees. The unit subject of the instant application is in essence a tag end unit of employees who work for varying periods of time during the respondent's picking and packing season which extends from approximately June to October of each year. The Board does not normally distinguish between temporary or seasonal employees and permanent employees in determining what constitutes an appropriate bargaining unit. However, an exception to that rule has been established in the canning and tobacco-harvesting industries. In Melnor Manufacturing Ltd., [1969] OLRB Rep. Mar. 1288, the Board noted that its practice in these industries has been to include the seasonal or temporary employees in the unit if the application was made during the season, but not to include them if the application was made in the off-season. The instant application, however, is made with respect to a unit comprised exclusively of tempo­rary or seasonal employees; there is no core group of permanent employees.

8. Neither party called evidence in this matter. Since the applicant took no exception to the respondent's submissions regarding the number of employees and the timing of the various hir­ings throughout the season, we accept them in the nature of an agreed statement of facts for pur­poses of our determinations herein. The first employees are hired sometime in June or July and additional employees are hired at various times determined generally by the harvesting require­ments of the different crops. The respondent states that the application date coincided with the end of its pea season during which time it traditionally requires 25 to 30 employees. As of August 10th, the respondent had hired 53 new employees, 27 of whom were hired on August 10th itself. This group was hired with respect to the corn season which begins about mid-August and peaks about mid-September. As of August 30th, the respondent had 99 employees and it contends that it has traditionally required approximately 100 employees at this same time each year. The respondent states that, in the period between July 1st and September 15th, 1986, it had hired 157 persons in order to be able to maintain a complement of 100 employees at any particular time.

9. Counsel submits that, although the respondent's position in this matter is somewhat unique, it is entirely consistent with the unusual employment pattern of these employees. He states that the respondent's traditional timing for hiring the different groups of employees throughout the season is known to the applicant. In his view, it is entirely open for the applicant to gerrymander the bargaining unit as it pleases in these circumstances. Basically, the respondent's position is that the Board should not consider the 34 employees on the list on the date of the application as being representative of a bargaining unit of seasonal employees which traditionally increases three-fold a short time thereafter.

10. Counsel for the respondent suggests that a concern with the fluctuation of the work force during the season is implicit in the Board's existing jurisprudence dealing with seasonal employees in canning and tobacco-harvesting. He notes that in Melnor Manufacturing the Board stated specifically that the application for certification, which included seasonal employees, was made during the height of the season. In this respect, counsel also relies upon the Board's state­ments in Filkon Food Services Limited, [1981] OLRB Rep. Dec. 1771 at paragraph 4:

11. The alteration of physical premises, however, has never been a factor in the Board's appli­cation of its "build-up" principle. Rather, 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.... 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.

[emphasis added]

11. The respondent's next argument is based on the Board's decision in Queen's University at Kingston, [1982] OLRB Rep. May 753, which dealt with an application for certification in which the applicant had requested a pre-hearing representation vote. That application was with respect to a bargaining unit of graduate students engaged in teaching and tutoring. The issue the Board had to contend with in that instance was the timing of the vote, having regard to the fact that there was a large influx of graduate students into the bargaining unit in the period between October and April. The application for certification had been filed in May. Counsel refers to paragraph 11 of the decision in Queen's University where the Board stated:

12. As in the Filkon and Peter Austin cases, the employment level at the time of the present application (603 employees) constituted a substantial and representative number of the persons in the employ of the respondent (during the period from September to late April). Therefore, if the applicant were able to satisfy the Board that more than fifty-five per cent of those employees were members of the applicant on May 10, 1982 (the terminal date, and the membership date determined by the Board under section 103(2)(j)), the Board could certify the applicant without a representation vote. However, the applicant does not purport to be in a position to do so. Thus, if it is to obtain bargaining rights, it must win a representation vote. It is this aspect of the case which has presented the Board with some difficulty. Unlike the Filkon and Peter Austin cases, the persons employed in the proposed unit on the terminal date (and the persons who would be employed at the time at which a pre-hearing vote would be taken in the normal course of events) are not persons employed in the unit on a year round basis, nor can they be said to be substantially representative of the persons who are generally employed in the unit during the period from September to late April. Quite to the contrary, they are only a small fraction of such persons, and a highly disproportionate number of those who make up that fraction are graduate students in Psychology or Economics.

The respondent's position is that the same principles the Board applied in Queen's University to determine the timing of the pre-hearing vote should now be used to determine the appropriate application date for the instant application for certification. Counsel further notes that the respon­dent's arguments are based purely on the fact of a "seasonal hiatus" or fluctuation in the number of employees and not on projections of future employment levels as is the case for purposes of the "build-up" principle.

12. Counsel for the applicant argues that the respondent is essentially asking the Board to restrict the time for making the application to the corn season, which is the period during which the respondent employs the greatest number of employees. In his view, that would constitute a varia­tion of the build-up principle which is really applicable only in the context of new enterprises. In this respect, counsel further submits that Filkon Food does not stand for the proposition that the build-up principle is applied in the canning industry. Instead, it simply states that to include sea­sonal employees an application for certification in the canning and tobacco-harvesting industries must be made during the season.

13. The applicant contends that to grant the respondent's request in this instance would in effect frustrate or thwart the presumption under the Act to grant employees a right to bargain col­lectively. Counsel notes that, although the respondent is requesting a vote, there would be no employees there for the vote after mid-October. The parties would therefore have to wait until next year in order even to have a vote. As to the issue of representative numbers of employees raised in the Queen's University case, counsel for the applicant argues that case is distinguishable on the basis that it represents the Board's exercise of discretion in the context of a request for a pre-hearing vote.

14. We concur with counsel for the applicant that Filkon Food simply states that the Board's practice with respect to applications for certification in the canning and tobacco-harvesting industries is to include seasonal employees in the bargaining unit if the application is made during the season and not include them if made in the off-season. Neither Filkon Food nor Melnor Manufacturing can be interpreted as even an implied endorsement by the Board, as suggested by the respondent, of some principle that it will consider the amount of "build-up" during the season before it will include the seasonal employees in the bargaining unit.

15. The statements upon which the respondent relies in both Filkon Food and Melnor Manufacturing must be considered in the context of the decisions in which they arise. To begin with, neither of these cases, nor Universal Cooler, [1967] OLRB Rep. Sept. 546 which was referred to in Filkon Food, was involved with either the canning industry or tobacco-harvesting. Conse­quently, none of these cases was a direct application of the Board's exceptional practice with respect to seasonal employees in the canning or tobacco-harvesting industries. In each case, the respondent employer sought to exclude its seasonal or temporary employees from the bargaining unit for which an application for certification had been filed. In each case, however, the Board denied the request. As was noted in Filkon Food, the Board has consistently refused to take into account seasonal fluctuations in a work force or to distinguish between permanent or regular employees on the one hand and temporary or seasonal employees on the other. In so doing, how­ever, in each case the Board noted that the only exception to that rule is with respect to seasonal employees in the canning and tobacco-harvesting industries. But, in none of these cases did the Board further state, either directly or indirectly, that it also takes into account how many of the usual number of seasonal employees are in the unit at the time of the application.

16. As previously noted, counsel for the respondent has indicated that he is not relying upon the Board's traditional build-up principle to support the request for a representation vote. Nevertheless, there is some element of "build-up" implicit in the respondent's arguments which rely upon a similar rationale of "representation" as articulated by the Board with respect to its classical build-up principle. In this respect, we note the Board's comments in Atlantic Packaging Products Ltd., 119801 OLRB Rep. Feb. 158:

17. The Board will defer certification of a trade union where there is a planned build-up of the work force such that a representative segment of the planned work force is not employed as of the date of the application. The rationale in support of deferral is based upon an acknowledge­ment of the right of those employees who will be hired as part of the planned build-up to take part in the selection of a bargaining agent. Certain conditions must be met, however, before the Board will impinge upon the right of the present employees to engage in collective bargaining. These are: (1) the present employees do not constitute a representative segment of the work force to be employed; generally the Board considers fifty per cent of the projected work force in a representative number of the classifications required to operate the plant as constituting a rep­resentative segment of employees for the purpose of certification; (2) the "build-up" is planned to take place within a reasonable period and (3) the "build-up" does not depend upon factors which are beyond the control of the employer, such as market conditions.

[emphasis added]

9... If the conditions precedent to a planned "build-up" exist, the Board will exercise its discre­tion to conduct a representation vote as of the time that a representative number of employees are within the bargaining unit so as to satisfy itself that a majority of those in the unit desire to be represented by the applicant trade union. The practice of the Board is consistent with the scheme of employee choice and majority representation as established under the Act and flows from a legitimate exercise of the discretion given the Board to hold representation votes.

The Board emphasized the principle of majority support in Atlantic Packaging with the further statement that:

10. ...The requirement of majority support is so fundamental to the operation of the Act and the build-up principle so clearly enunciated in the Board's jurisprudence that the parties to an application for certification where a planned build-up of the work force is imminent cannot be heard to say that they are under no obligation to inform the Board of this fact.

11. It is essentially this "fundamental" principle of majority support that was the basis of the Board's direction in Queen's University to defer the pre-hearing representation vote until such time that:

...a representative number of employees will be in the bargaining unit so that the Board can properly satisfy itself, within the scheme of free employee choice and majority representation established under the Act, as to whether or not a majority of those in the unit desire to be repre­sented by the applicant trade union in their employment relations with the respondent. (at para.

13).

In so doing, the Board stated that it was adopting an approach similar to that adopted in Island of Bob Lo Company, [1970] OLRB Rep. May 211. In the Bob Lo case, the employer operated an amusement park during the summer months during which time it would employ approximately 13 persons. Prior to the start of its normal season, however, an application for termination was brought at a time when there were only two employees in the bargaining unit. The respondent union argued successfully in that case that the Board should direct the representation vote to be taken at a time when the full complement of employees were at work.

18. In Bob Lo, the Board deferred the taking of the representation vote on the following basis:

19. It is clear from the undisputed facts outlined above that the intervener is in the process of building up the bargaining unit to its usual complement and that such build-up will be substan­tially completed or [sic] or about June 1st when the park will be in operation. In these circum­stances, we are of opinion that the Board should apply its build-up principle and delay the tak­ing of the representation vote in this matter until a representative number of employees are employed in the bargaining unit....

[emphasis added]

In somewhat prophetic terms, the dissenting opinion in Bob Lo commented as follows on the Board's application of the build-up principle in that instance:

I dissent with respect to the decision of the majority dated May 15, 1970, in this matter. In my respectful opinion this is not an instance where the Board should apply its "build-up" principles.

It had hitherto been my opinion that the principle of build-up was applicable only in the situa­tion of new enterprises. The majority, however, have indicated that this is not the case and it would now seem from their decision that in any situation where the complement of employees will be substantially increased, the principle of build-up will prevail. This, of course, should apply also to applications for certification.

Thus, in an application for certification, if an employer submits that within a reasonable period his complement of employees will substantially increase, either by the hiring of new full-time employees or by the hiring of seasonal employees, it would follow that the Board should not certify immediately, but should wait until a representative number of employees are employed in the bargaining unit, at which time the Board should conduct a representation vote.

19. To put the matter into its full context, it must also be noted that the application of the build up principle is specifically excluded for purposes of the construction industry by virtue of sec­tion 119(2) of the Act which states:

In determining whether a trade union to which subsection (1) applies has met the requirements of subsection 7(2), the Board need not have regard to any increase in the number of employees~ in the bargaining unit after the application was made.

The Board has on numerous occasions been invited to and has declined to apply the build-up prin­ciple in the construction industry. The rationale for declining to do so was expressed in the follow­ing terms in Colibri Construction Inc.,[19861 OLRB Rep. May 594:

8. Assuming to be true everything the respondent has stated in paragraph 13 of the reply, what has been depicted is the common state of affairs in the construction industry. Construction busi­ness most frequently consists of performing a series of relatively short-lived contracts, a major factor responsible for the short-term employment relationship typical of the industry. That is why it has been the Board's consistent practice to consider only those persons at work in the bargain­ing unit on the date of making of the application for purposes of deciding how many employees are in the unit and how many of those employees are members of the applicant within the mean­ing of the Act. That also is why the Board just as consistently has ignored diminution of or accretion to the bargaining unit, including what is more particularly referred to as build-up, after the date of application.

[emphasis added]

20. Thus, in one fashion or another, the build-up principle is not too far removed from the respondent's argument in the instant application based on representative employees at the time of making the application. The Board's formulation and application of the build-up principle repre­sents a balancing of interests within the legisative scheme of labour relations. It is implicit in the Atlantic Packaging case that the exercise of the Board's discretion to order a representation vote on the basis of the build-up principle impinges on the right of the present employees to engage in collective bargaining. The reason or rationale for the Board to so impinge on the right of present employees is that it is not satisfied that these employees constitute a representative segment of an anticipated work force. Yet, in the context of the construction industry, the Board will not apply the build-up principle regardless whether the present employees are "representative" or not. The rationale for not applying build-up in the construction industry is attributed to the nature of the employment in the industry, specifically the short-term employment relationship typical to the industry.

21. As was evident from the outset, the instant application represents an unusal fact situa­tion which does not fall neatly into any of the usual category of cases to come before the Board. The instant application is not one which is properly within the construction industry. Nevertheless, ~t is quite evident that the work environment of the employees subject of this application is more akin to the construction industry than the industrial sector which gives rise to the build-up princi­ple.

22. As in the construction industry, the work of this bargaining unit is comprised of a series ₉f projects for which varying numbers of employees are hired at different times of the season. The season starts in June with no employees in the unit. About 30 employees are required in July for ~he pea season and that represents full employment for the respondent's operations at that time. About 100 employees are required in mid to late August and by mid-October the unit is down to zero employees again. There simply could not be a more typical description of construction indus­try employment. Even on that basis alone, we would be inclined to determine this application on the basis of the construction industry principle of considering only the employees at the date of the application.

23. The specific question put to the Board in this case is whether the employees at the time of the application were "representative". The respondent has framed the issue only in terms of numbers. That is, it alleges that the 30 or 34 employees on July 31st were not representative of the 100 employees at the peak of the season. However, even for purposes of its traditional build-up principle, the Board is prepared to entertain a vote where only fifty per cent of the projected num­ber of employees are already at work. It is in that context that the Board states it will conduct a vote to determine whether there is the support of a "majority" of representative employees. Also, in determining the timing of the vote, the Board is concerned whether there is fifty per cent in a representative number of the classifications. These criteria are formulated in the context of a fairly stable industrial environment. It is expected that the work force will "build-up" to a certain level and the operation will continue at or about that level with a relatively stable work force. What the Board looks for in those circumstances is a representative segment of that projected work force.

24. However, the working environment subject of the instant application is not of the nature which gave rise to the build-up principle. As noted previously, it approximates more the working environment of the construction industry, consisting of short-term employment relation­ships. Furthermore, what constitutes a "representative" segment of the employees of the bargain­ing unit in this application may have little relation to the maximum number of employees that the respondent may employ in the course of the season. On or about the date of the application, the respondent was in full operation. That was the height of the pea picking season and the respondent had the full complement of employees it required for its normal operations at that point. Nothing it~ the submissions before the Board suggests that the 30 or 34 employees on the date of the appli­cation, are any less representative of the type of employees or the interests of the employees in this unit than the 100 or so employees who may be present during the peak of the corn season. There is no suggestion and certainly no evidence that the work required during the corn season is in a dif­ferent classification than the work required for the pea picking season.

25. Having regard to the evidence before us, it is our view that the employees working at the date of this application were "representative" of the respondent's employment environment. The accretion to the bargaining unit thereafter for the corn season is more properly characterized as the normal ebb and flow of the work force. As was noted in Filkon Food and the other cases previously referred to, the Board does not in most circumstances take into account the normal ebb and flow of the work force. In terms of a balancing of competing interests, in our view, the right of the employees present at the time of this application to engage in collective bargaining must be given preference over the prospective right of future employees to take part in the selection of a bargaining agent, particularly in the circumstances of a work environment where the term of employment of those future employees may be significantly less than that of those present at the time of the application. Having regard to the facts which have been alleged before us, and the Board's jurisprudence relative to this matter, we do not find any necessity for ordering a represent­ation vote.

26. A certificate will therefore issue to the applicant.

DECISION OF BOARD MEMBER R. J. GALLIVAN;

1. The certification process under the Labour Relations Act has several fundamental underpinnings. The most important of these is a requirement that before being given a licence to engage in collective bargaining under the protections of the Act a union must enjoy majority sup­port of the group of employees which it wishes to represent. Just which of an employer's employ­ees on whose behalf the union may act is determined in the certification process by identifying the cadre of employees who occupy positions within the parameters of a defined subdivision or group­ing of employees deemed by the Board to be "appropriate" for collective bargaining purposes, known under the Act as a bargaining unit.

2. In determining "appropriateness" the Board must consider a number of factors beyond a mere determining of the geographic parameters of the bargaining unit, criteria such as com­munity of interest among the employees, exclusion of managerial personnel from the unit, histori­cal trade interests and so on. As well, the Board must determine whether or not the number of persons in the bargaining unit is representative in the face of any evidence that there may be immi­nent a planned build-up of the workforce such that, if it occurs, those in employment at the certifi­cation application date may not be representative within a reasonable time of the eventual work-force. In labour relations terms this criterion has become known as the "build-up principle". Its validity as an appropriate consideration in certification proceedings has been endorsed by the Supreme Court of Canada (Noranda Mines Ltd., v. The Queen et al., 1969 CanLII 104 (SCC), 7 D.L.R. (3d) 1). In support­ing the principle, Martland J. said (about the Saskatchewan Board):

That the Board should consider this factor in cases of this kind, in the interests of employees, seems to me to be logical. A union selected by a handful of employees at the commencement of operations might not be the choice of a majority of the expected large work force.... In my view the Board not only can, but should, consider these factors in reaching its decision....

3. In another Noranda Mines Ltd. case (but of the British Columbia Labour Relations Board, [1982] 2 CLRBR 475), it was noted that central to the scheme of the certification sections of labour legislation is the concept of a unit appropriate for collective bargaining. In making a determination of appropriateness, the Board should look to the representative nature of the com­plement of employees present at the time of the certification application. A bargaining unit deter­mination which would effectively install a union which was not a freely chosen representative of the employees would not be an appropriate unit within the meaning of the legislation. The Board referred to the reasoning of Berger. J. in Board of School Trustees of School District No. 57 (Prince George) and International Union of Operating Engineers, Local No. 858 (B.C.S.C.) 1973 CanLII 1068 (BC SC), [1974] 1 W.W.R. 197, at pp. 206-7:

The board determined that the unit here was appropriate for collective bargaining. The board, by considering the application made in August, disenfranchised those employees who would be hired in September. That was a clear departure from the lines or objects of the statute. The choice of a bargaining agent, in a case like this, ought to be the choice of a majority, and I do not think it can be said that there has been a choice made by a majority when the employees who work ten months out of twelve have had no say in that choice. The majority the union had in August was a transitory one. It was not a majority coming within the scheme of the Act. The board's power to decide whether a bargaining unit is appropriate does not allow it to breach the fundamentalprinciples of the statute itself.

[emphasis added]

The build-up principle is an established part of the jurisprudence of the National Labour Relations

Board in the United States as well.

4. Consideration by the Ontario Board of a possible build-up in the workforce has been a long-standing practice which has survived numerous legislative amendments to the Act, one of which in dealing with the construction industry added section 119(2):

In determining whether a trade union to which subsection (1) applies has met the requirements of subsection 7(2), the Board need not have regard to any increase in the number of employees in the bargaining unit after the application was made.

[emphasis added]

I believe the majority errs in law in concluding that the build-up principle is "specifically excluded" from consideration in construction industry certifications by virtue of that section. With respect, all that section says is that in determining bargaining unit appropriateness the build-up principles need not be considered in construction cases. It does not say it must not be considered, as concluded by the majority. Further, I believe that a clear inference which can be drawn from that section is that elsewhere than in construction the Board must consider an imminent employment build-up since only in construction is it authorized not to do so when exercising its discretion based on the partic­ular circumstances of each case. Even in construction the section leaves it open to apply the princi­ples if the Board considers it appropriate to do so. There is no similar exception elsewhere in the Act for seasonal employees. Thus, outside construction, the Board in my view is obliged to take account of a possible build-up where there is evidence that one is imminent, and to apply that prin­ciple to the evidence fairly and in accordance with its practices and precedents. In my view, the Board lacks jurisdiction to read seasonal or cyclical employees out of the Act. Canning and other seasonal employment is not new in Ontario. It has existed as an industry for a great many years; in fact, it pre-dates the Labour Relations Act. Thus, if the Legislature had intended to relieve the Board of the requirement to give adequate effect to a build-up in that or other seasonal industries beyond construction, it could have done so on any number of occasions when amending the Act by making an exception similar to that for construction. The Legislature has not done so and there­fore this Board has an obligation to apply the build-up principle to all employment other than con­struction, including all other types of cyclical or seasonal employment. As the Supreme Court has said in interpreting similar legislation elsewhere, the exercise of the Board's discretion to determine the appropriateness of a bargaining unit "does not allow it to breach the fundamental princi­ple of the statute itself".

5. There are many other types of seasonal employment in Ontario besides construction, such as summer resorts, amusement parks, exhibitions, ski resorts, logging, fishing, some types of teaching, canning, tobacco and fruit harvesting to name a few. The majority of this panel of the Board attempts to characterize the canning industry as being similar or analogous to construction because, if I understand their reasoning correctly, once a specific crop is picked the job is done and the employees move on. It is at best a tortuous analogy and essentially just as inaccurate as if the comparison to construction were made with a summer resort or amusement park. The fields to be harvested each summer by Cobi Foods, the employer in this case, are the same fields planted year after year. They are, in the industrial sense, the employer's fixed plant and equipment which require the services of labour for several months of the year in the same way as the buildings and restaurants of a summer resort are the operator's fixed plant also requiring labour for only part of the year. Cobi's fields are not a project visited for a short time by a construction worker who, once the last mail is driven or the last brick laid, will never again work on the site. Employees harvesting and packing the production from Cobi's fields may return year after year if they and the employer so agree. Their job is never "finished" in the sense that a construction project is finished. Their work is no more "finished" than a school teacher's who faces a new "crop" of students at the beginning of each academic year. The place of employment of such cyclical or seasonal employees remains the school, the amusement park or the ski resort just as for the harvester it remains Cobi's fields and packing sheds. To hold, as does the majority, that the harvester's job is similar to a con­struction worker's because when one type of crop is picked his job is done and he then moves on to the next ripe crop, is to mischaracterize the nature of the harvesting employment. The individual harvester employee may be itinerant, as may be a construction worker, but unlike the latter's the harvester's job site is not; it remains Cobi's fields. It is useful to recall that it is "employees" in a generic sense who are in specific job classifications, not the individual employees themselves, which are defined in a bargaining unit. Job classifications comprise a bargaining unit and once those classifications are defined, certification procedures take a once-only snapshot of the employ­ees in those job classifications at a fixed date for purposes of determining the percentage who hold union membership. If it were otherwise, if it were based on specific employees, a bargaining unit would gradually erode and eventually disappear as employees resign, retire or otherwise leave their jobs. Thus the fact that there may be high turnover of employees in those job classifications is irrelevant except for purposes of determining an appropriate date for taking the snapshot. High turnover among harvesters does not make their employment or their job classifications within a bargaining unit analogous to construction.

6. Until now, this Board has not compared other types of seasonal or cyclical employment to the construction industry in order to deny a representative group of employees an opportunity to decide for themselves whether or not they wish to be unionized. In Island of Bob-Lo Company [1970] OLRB Rep. May 211, a termination application was before the Board with respect to an amusement park which operated only during the summer months. At the time of the application only two of the regular summer complement of 13 employees had so far been hired. The Board held that since it was clear that the employer was in the usual process of building up within a rea­sonable time to his full seasonal employment complement, the vote on decertification should be delayed until a more representative number of employees were available. This was consistent with the view taken earlier in Cochrane Industries Limited 65 CLLC, 16,034 where the Board held that the build-up principle must be applied equally to both certification and decertification applications.

7. This Board has dealt with seasonal employment patterns in other instances as well. The majority refers to the Queen's University case (Queen's University of Kingston [1982] OLRB Rep. May 753) but claims, quite incorrectly in my view, that the precedent is inapplicable because it involved a pre-hearing vote application. I submit that that is a difference without substance since the case deals directly and unequivocably with the issue of representation rights in seasonal employment. The certification application had been filed during the summer on behalf of graduate students employed at the university when the number of such students was at a low ebb compared to the winter months. The Board decided to hold a representation vote but noted that the persons in the proposed unit at the terminal date were not representative of the persons generally employed in the unit during the normal university year of September to April. As a consequence the Board decided to defer the vote in order not to disenfranchise a substantial number of employ­ees who would have to work under the labour relations regime determined by the outcome of the vote. The Board said at paragraph 13:

Although we are concerned that deferral of a pre-hearing representation vote will delay the processing of this application somewhat, we are nevertheless of the view that an approach simi­lar to that adopted in the Bob-b case should be applied by the Board in the circumstances of this case in order to avoid unreasonably disenfranchising a very substantial number of employ­ees who will have to work under the labour relations regime determined by the outcome of the vote. Accordingly, having regard to the cyclical and relatively high turnover aspects of employ­ment in the university graduate (and undergraduate) student context in which this case arises, the Board is of the view that the proper balancing of the various labour relations interests involved in the case requires that the taking of a pre-hearing representation vote.., be deferred until October of 1982, when a representative number of employees will be in the bargaining unit so that the Board can properly satisfy itself, within the scheme of free employee choice and majority representation established under the Act, as to whether or not a majority of the [sic] those in the unit desire to be represented by the applicant trade union in their employment rela­tions with the respondent....

Note the similarity to the instant case of "the cyclical and relatively high turnover aspects of employment" in considering an appropriate date for a representation vote. Note too that the Board decided to postpone a pre-hearing vote which it normally would be much more reluctant to do than to postpone a post-hearing vote as in the instant case. Notwithstanding the greater sense of urgency in pre-hearing vote applications, the Board in Queen's University did not lose sight of the fundamental principle of majority rule.

8. The Board followed that precedent in the case of the University of Windsor [1983] OLRB Rep. Mar. 478, where there had been a significant increase in the number of part-time office and clerical employees between the date on which the union applied for certification and a few weeks later when the academic year got underway. As the Board noted in paragraph 9:

Nor is this surprising since the University's full range of activities is ordinarily carried on between September and May, while the summer months are relatively quiet. But because the union applied for certification during the summer, if we were to consider only the support of the individuals employed at that time, a minority would govern the collective bargaining destiny of the much larger group employed only a few weeks later when the University resumed its regular activities. And, on the evidence before us, we cannot conclude that the minority employed on the application date form a representative core about which the much larger group fluctuates, so that it would be appropriate to base our decision solely on the wishes of the minority. In these circumstances, therefore, the Board has determined that the most appropriate disposition of this case is by means of a representation vote. However, that vote should obviously take place very soon since the end of the school year is rapidly approaching.

The majority offers no explanation for ignoring this further and consistent precedent of applying the build-up principle to seasonal employment.

9. As I have reasoned earlier, there is neither a factual nor logical basis on which to com­pare Cobi's harvesting and packing operations to construction. Even if there were, outside the con­struction industry the Board cannot ignore an imminent employment build-up, consideration of which has been endorsed and mandated by the Supreme Court in respect of legislation whose fun­damentals are similar to the Act's. Nor should the Board now ignore its own clear precedents deal­ing with seasonal employment, some of which have been quoted above. The build-up principle should be applied to this case just as it has been to others where the tests developed by the Board over time have been met. In summary, those tests associated with the build-up principle are that before deferring certification the Board must be satisfied that:

(a) the present employees do not constitute a representative segment of the workforce to be employed within the bargaining unit; generally the Board considers 50% of the projected workforce in a representa­tive number of the eventual job classifications as being a representa­tive segment of the bargaining unit;

(b) the build-up of employment is planned within a reasonable time. "Reasonableness" clearly must depend on the circumstances of each case. (In Vulcan Equipment [1974] OLRB Rep. May 285, seven months was considered reasonable; in United Asbestos [1974] OLRB Rep. Apr. 234 build-up over sixteen months was allowed. A build-up between one and five years was not accepted in Wix Corporation Limited [19751 OLRB Rep. Aug. 637); and

(c) the build-up does not depend upon factors beyond the employer's control, for example, market conditions.

10. In applying those criteria to the instant case there is no evidence before us to suggest that market conditions would affect the build-up. Employees are added at about the same time each year depending upon the ripening dates for each different crop which is harvested and packed when ready, regardless of market conditions. Nor is that harvesting process stretched over an extended period of time; it starts in late June or early July each year, peaks in late August or early September and ends in October. Thus the facts in this case fall clearly within and easily meet the Board's stringent but normal build-up tests (b) and (c) above. The build-up does not depend upon market conditions but upon inexorable crop ripening dates, and peaks within two months.

11. With respect to the first criterion, (a) above, we have no evidence before us about the number of different job classifications within the proposed bargaining unit. However, from other agreed facts it can be inferred that the employment build-up is into job classifications similar to those held by earlier hires. That is, when the company adds to its crew, it is likely hiring people with the same skills as those already at work. It simply wants more of the same kinds of people rather than persons with different skills to be assigned to other different or new classifications. I am satisfied that the people at work on the application date were in job classifications likely to be representative of those to be found a few weeks later when the number of employees had tripled.

12. The only remaining element to be determined is whether or not 50% of the projected workforce was in place at the time the application was made. In accordance with the accepted facts (said by the company, without challenge, to be representative of other years as well) the employ­ment pattern off full and part-time employees in the 1986 harvesting season was as follows:

Early June - no employees

July 31 - 34 employees

August 10 - 83 employees

August 30 - 99 employees

September 15 - 99 employees

Late October - no employees

The build-up occurs since the ripening dates for different types of crops overlap. The union's appli­cation was made on July 31 when only one-third of the projected workforce was on hand. Giving the union the benefit of applying to it even the Board's minimal criterion of just 50% of the work-force as being representative of the bargaining unit, the unit should comprise no fewer than 49 employees to qualify for possible certification. Since the number of employees on the application date (34) fell far short of the minimum, this element of the Board's build-up test also indicates that certification should be delayed. The facts of this case thus meet all three of the Board's major tests for deferring certification in a build-up situation.

13. The union filed membership evidence on behalf of 23 of the 34 employees in the bar­gaining unit at July 31. That number of union members is only 47% of the 49 employees who must be regarded as the very minimum number required for certification purposes. Under section 7(2) of the Act the Board is required to order a certification vote when union membership support is "not less than 45 per cent and not more than 55 per cent of the employees". In such circumstances the Board cannot grant, as it has done here, automatic certification since the union is not repre­sentative of the majority of employees.

14. As noted in the University of Windsor case,(supra), when faced with a certification application for a seasonal group of employees the Board must act with alacrity if it is to conduct a certification vote "in season". In the instant case the union first applied on July 31, 1986 for a unit of part-time employees. A differently constituted panel of this Board accepted the union's request to amend its application to an "all employee" unit. That decision was rendered August 29, 1986 and the amended application came to this panel for hearing on September 26. Even if this panel had that day ordered a representation vote, it is doubtful it could have been held while at least 50% of the workforce was still employed and available to vote. On the other hand, if a delay in processing its application before the Board had not occurred as a result of the union requesting to amend its own application, it is likely a vote could have been held near mid-September when a rep­resentative group of employees was still at work. Now, in June 1987, attempting to resolve the issue by certification without a vote is not the solution.

15. The correct decision, I submit, is for the Board to use the authority which it has under the Act to exercise its own discretion for determining both the timing of a representation vote and which employees shall be eligible to cast ballots in such a vote (see section 103(2)(f) of the Act and section 68(a) and (c) of the Board's Rules of Procedure). In accordance with that authority the Board should order a vote to be held during the week of August 10th 1987, when, in accordance with the employer's past practice based on crop ripening dates outside his control, a representative group of employees will be at work in the agreed bargaining unit and should be declared eligible to vote.

16. In summary, I would order such a vote under section 7(2) of the Act since at the appli­cation date the union had membership support of 47% of the employees in the appropriate bar­gaining unit. I believe the majority errs in law by concluding that only one-third of the employees comprise an appropriate bargaining unit in the face of the undisputed facts of a rapid and substan­tial build-up in employment, by concluding that because the employment of these employees is seasonal they are therefore analogous to construction workers to whom the build-up principle need not apply, and by ignoring without foundation the Board's clear precedents for dealing with build­up among seasonal employees. The Board lacks jurisdiction to ignore a build-up of seasonal employees elsewhere than in construction and violates the basic premise of the certification process under the Act by certifying the union based on a transitory majority calculated at an inappropriate date. I find from the facts and the law that this case is one where the build-up principle must apply, that the criteria for application of that principle have all been met by the agreed facts, and con­clude that given the lengthy delay between the hearing date of September 26, 1986 and the date of this decision, and taking cognizance of the 1987 crop season, the Board should use its authority to order a representation vote of employees in the bargaining unit in the week of 10th August 1987.