International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Kuhlman Plastics of Canada Ltd.
Citation: [1988] OLRB Rep. December 1301 File Nos.: 3339-87-R; 3530-87-U
International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, Applicant v. Kuhlman Plastics of Canada Ltd., Respondent v. Group of Employees, Objectors; International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, Complainant v. Kuhlman Plastics of Canada Ltd., Respondent
BEFORE: Ken Petryshen, Vice-Chair, and Board Members W. A. Correll and M. Jones.
APPEARANCES: S. B. D. Wahl, D. V. Caryn and B. DeWagner for the applicant/complainant; Steve Schenke, Mike Laporte and Edward Klopfenstein for the respondent; John H. McNair and Brad Horan for the objectors.
DECISION OF THE BOARD; December 19, 1988
1The name of the respondent is amended to read: "Kuhlman Plastics of Canada Ltd.".
2Board File No. 3339-87-R is an application for certification. Board File No. 3530-87-U is a complaint under section 89 of the Labour Relations Act alleging violations of sections 64, 66, 70 and 79 of the Act. The applicant has also requested the Board to certify it pursuant to section 8 of the Act. On the agreement of the parties, these matters are hereby consolidated.
3The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
4On the first scheduled day of hearing, the parties met with a Labour Relations Officer. Since they were unable to agree on a bargaining unit description, the Board entertained representations from the parties concerning the two bargaining unit description issues that were unresolved. The respondent sought the exclusion of part-time employees and students employed during the school vacation period. The applicant opposed such an exclusion and the objecting employees did not take a position on this issue. At the time of the filing of the application, the respondent employed one laboratory technician and four persons performing quality control functions. The parties agreed that the laboratory technician should be excluded from the bargaining unit but were unable to reach agreement with respect to those persons performing the quality control functions. The applicant sought the exclusion of the quality control employees while both the respondent and the objecting employees argued that they should be included in the bargaining unit. On the basis of the statement of facts made by each party and their representations and after recessing to consider the matters, the Board orally ruled at the hearing that it would not exclude part-time employees and students from the bargaining unit and that it would include in the bargaining unit the quality control employees.
5When the application was filed, the respondent did not employ part-time employees or students employed during the school vacation period and did not have a history of employing either category of employee. When the issue was argued, the respondent did not anticipate hiring part-time employees and had not determined whether it would hire students during the summer months. The employer's business has only been in operation since October 1987, approximately five months prior to this application, and the respondent argued that the requirement in the Board's practice that it have a history of employing part-time employees and students should not apply in this case given the short time the plant has been open.
6Generally, the Board's practice is not to exclude part-time employees and students from a plant bargaining unit where no such persons are employed on the date of the application and where the employer does not have a history of employing such persons. We were satisfied that the fact that the respondent's plant has been in operation for only a few months should not lead us to depart from the Board's normal practice. The following statement of policy in Canadian Pittsburgh Industries Limited, [1968] OLRB Rep. July 367 reflects the Board's longstanding approach concerning the exclusion of students and part-time employees where an employer has been in operation for only a short period of time:
The fact that a plant has been in operation a short time and has not yet reached the stage of development or the period of the year when it is likely to employ part-time employees or students is not in itself a sufficient consideration to warrant a departure from the general principle that such classifications are to be included in a bargaining unit where the employer has not had persons in such classifications in his employ prior to or at the time of the application.
7The respondent manufactures fuel tanks which it supplies primarily to the auto industry. Given the nature of the product, all employees are involved in maintaining high safety standards. The persons employed to perform the quality control functions monitor the quality of the product as it passes through the production process. They spend seventy-five per cent of their time performing tests on the plant floor and the remaining time performing tests in the lab. The persons tn quality control learn their tasks on the plant floor, are generally recruited from the production employees and are paid on the same basis as production employees. When a quality control employee discovers a defect in a product, he or she completes a report that could be the basis for the imposition of discipline. The quality control employee would not be part of the decision-making process regarding discipline. We do not propose to detail the work or the terms of employment of the lab technician other than to note that the person in the position is a chemist by training, performs testing in the lab which is of a different nature than that performed by the quality control employees and is paid more than the quality control employees. After comparing the work and the terms and conditions of the quality control employees, the production employees and the lab technician, the Board was satisfied that the quality control employees have a community of interest with the production employees and, therefore, should be included in the bargaining unit.
8After the Board gave its oral rulings concerning the bargaining unit issues, it suggested that the parties continue to meet with the Board Officer to draft the appropriate language. Given the partial agreement of the parties and the Board rulings, the Board finds that all employees of the respondent at Blenheim, save and except supervisors, persons above the rank of supervisor, office, clerical and technical staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
9For purposes of clarity, the parties agree that students who work in the plant on a co-operative grant scheme, administered by government, who are not paid salary or wages by the respondent, are not employees of the respondent for purposes of this application.
10During the meeting with the Board Officer, the applicant objected to the Board Officer disclosing the number of membership cards filed in support of the application (the "count"). The Board reconvened the hearing and entertained the applicant's reasons for not wanting the count disclosed. Counsel for the applicant argued that the disclosure of the count would have an adverse effect on how the parties would conduct the case. It was submitted that the parties would be more likely to become intransigent and less likely to resolve outstanding issues if the count was disclosed. In counsel's view, such a result was not in the interests of sound labour relations. Without hearing from the other parties, the Board ruled orally at the hearing that the Board Officer would disclose the count. Generally, it is the Board's practice to disclose the count after the parties have reached agreement as to which persons were employed in the bargaining unit on the date of the application. The count is given in order that parties, in addition to the applicant, will be aware of the membership support enjoyed by the applicant. It is important that all parties be aware of the nature of the case they have before them. This is particularly so when section 8 is relied on since one of the pre-conditions for section 8 relief is whether the applicant has adequate support for collective bargaining. In this case, the disclosure of the count revealed that the applicant was in a vote position.
11Since the matter could not be completed on the first day of hearing, the application as it related to the section 8 issue was heard subsequently at London by a new panel but with the same Chair. Before completing the first day of hearing, the Board entertained representations from the parties concerning the order of calling evidence. After the respondent heard the applicant's submissions on this issue, it agreed that it would proceed to call its evidence first. Counsel for the objecting employees argued that the applicant should follow the respondent and that the objecting employees would then call their evidence. Given the similarity of interest and what would be most appropriate in the circumstances, the Board orally ruled at the hearing that the respondent would proceed to call its evidence first, the objecting employees would follow the respondent and the applicant would then call its evidence.