United Steelworkers of America v. Northland Power Partnership, 1991 CanLII 6178

[1991] OLRB Rep. June 768

0354-91-R United Steelworkers of America, Applicant v. Northland Power Part­nership, Respondent v. Group of Employees, Objectors

BEFORE: G. T Surdykowski, Vice-Chair, and Board Members J. A. Ronson and C. McDonald.

APPEARANCES: P. Turtle and Marcel Deslardins for the applicant; Vincent P. Johnston, Fred

Brown and Fred Hnatuk for the respondent; Michael J. Schapiro for group of employees.

DECISION OF THE BOARD; June 12, 1991

1. This an application for certification.

2. The respondent, supported by the group of employees, objectors, argues that this appli­cation should be dismissed, or, in the alternative, that a deferred representation vote be held on the basis that the present employee composition of the bargaining unit is not representative of the employees who will be in it once the respondent's facility is fully operational.

3. The facility in question is an electrical power generating plant located in Kirkland Lake. Presently capable of producing approximately 80 megawatts, the plant is expected to be capable of producing from 98 to 108 megawatts of power (depending on the season). The construction of the facility is essentially complete. Cleanup work and the commissioning of the plant, during which time systems problems are worked out and the turbines are brought fully on line, remain to be completed. In particular, the respondent has been experiencing problems with the facilities' wood-boiler system.

4. At the time this application was made, the maximum number of persons and their clas­sifications which might be included in the bargaining unit herein (depending upon how the bargain­ing description issue and the applicant's challenges are resolved) stood as follows:

i) four shift engineers;

ii) three assistant shift engineers;

iii) five engineers "trainees";

iv) four electricians;

v) two millwrights (maintenance);

vi) two shippers/receivers;

vii) twelve (non-construction) labourers.

5. The evidence disclosed that the labourers, who have been engaged in a wide variety of tasks, are now primarily engaged in cleanup work and what might be characterized as the more menial tasks that the engineer trainees would otherwise perform. This serves to free up the trainees for other work and enables them to study for examinations they must pass in order to qualify as engineers under the Operating Engineers Act. The respondent plans to begin laying off these lab­ourers in mid-June, 1991 and expects that there will be no labourers left when the facility is fully operational sometime in July.

6. At present, the respondent anticipates it will use four crews of four persons working on a shift basis when the facility is fully operational. It appears that a fifth shift engineer will also be hired, presumably for relief purposes. Although that crew structure could change, the respondent anticipates that each crew will consist of a shift engineer, an assistant shift engineer, one of the cur­rent trainees and what was referred to as a "helper". The respondent will also retain two electri­cian positions and both millwright or maintenance positions. It appears also that one shipper/receiver position will be retained.

7. All twelve of the present engineering staff will be retained, as will two of the present electricians, both of the present millwrights, and one of the present shipper/receivers. The evi­dence with respect to the proposed "helpers" does not disclose whether or not they will have to be operating engineers or trainees, or whether or not those positions could be filled with some of the present labourers. In the result, on the evidence before the Board, it appears that a maximum of five persons may be hired by the respondent by sometime in July, 1991 and that fourteen of the present employees may be laid-off. However, it is also apparent that most of the employees who may be included in the bargaining unit in July, 1991 were already employed by the respondent at the time this application was made. More specifically, seventeen of the twenty-two employees the respondent expects to have at the facility in July, 1991 were employed by it at the time the applica­tion was made.

8. The Board has recognized that there are circumstances in which it is appropriate to defer consideration of an application for certification. Where, for example, the Board is satisfied that an application is premature because a significant build-up of the workforce will take place within a reasonable period of time, the Board may defer consideration of the application, and order that a vote be taken at a time when a substantial representative number of employees are at work. This "build-up principle", as it is come to be known, represents an attempt to reconcile the right of present employees to exercise their rights under the Labour Relations Act and the right of future employees to do so (see for example, R. ex rel. United Steelworkers of America et al v. Labour Relations Board (Saskatchewan) and the Random Mines Ltd. [1970] (7d) L.R. 3rd 1, 69 CLLC para. 14,205 (SCC); Champlain Forest Products Limited [1972] OLRB Rep. May 399; Inco [1973] OLRB Rep. March 172). This principle has been applied in limited circumstances (see, for example, Emile Frant and Peter Waselovich 57 CLLC para. 18,057; F. Lepper & Son Ltd. [1977] OLRB Rep. Dec. 846). More specifically, if the employees at work do not constitute a substantial and representative part of the workforce which is expected to be employed within a reasonable period, and the build-up does not depend upon factors beyond the employer's control, the Board may defer consideration of an application for certification or order a deferred vote.

9. The respondent concedes that the instant case is not a classic build-up situation. How­ever, supported by the group of employees, objectors, it urges the Board to take a flexible approach to the build-up principle and apply it in circumstances where a number of employees will be let go and a number of others will be hired.

10. It is trite to say that the Board's policies are not written in stone. They are used as gen­eral guidelines and the Board must be responsive to the real world of labour relations and the cir­cumstances of particular cases in developing or applying its practices or policies. On the other hand, practices or policies which have evolved over and withstood the test of time should not be abandoned, restricted, or expanded unless there is a cogent reason to do so. To take a different approach would destroy the value of practices or policies as guidelines, create undesirable uncer­tainty and undoubtedly result in protracted unnecessary litigation.

11. In Simpsons Limited, [1985] Board Rep. May 731, the Board dealt with a "build-down" argument as follows:

12. Moreover, the respondent's argument, in essence, is based upon the premise that per­sons who will not be actively employed once the union is certified and a contract negotiated, who will not be subject to any collective agreement provisions including the obligation to pay union dues (to quote in part from the respondent's written sub­missions at pg. 4), should not be counted in the usual fashion in the certification appli­cation. To reiterate, the respondent asserts that if the deletion of the cards of those who were given layoff notices (and, of course, the others given notice who did not sign cards) results in the slippage of union support to 55% or below, a vote should be ordered. The Board does not agree that receipt of the layoff notices somehow divorces the interests of those employees from the other employees in the bargaining unit. Those scheduled for layoff may have a very real interest in the outcome of the certification application and a subsequent collective agreement. To give but one example, the collective agreement could well provide for recall rights of considerable value to those laid off. Employees at the application date who have received layoff notices may yet retain a real interest in the certification application and bargaining process, if the applicant is certified. Thus, the Board does not agree that such employ­ees' wishes should be discounted, at least, in the present circumstances where the decrease in the work force is less than 20%.

13. The Board would add that, in rejecting the respondent's build-down argument, it is not mechanically applying a build-up rule. Rather, the approach of the Board in build-up cases, as stated earlier, is one of balancing competing interests. In this case, the decrease in the work force resulting from the layoff notices is not such as to make the employee complement at the application date unrepresentative and, in that repre­sentative group, the applicant enjoys membership support in excess of fifty-five per cent. Thus, in these circumstances, the Board declines to exercise its discretion, pur­suant to section 7(2) of the Act, to order a representation vote where the applicant's level of membership support is greater than fifty-five per cent.

We agree. We are not persuaded that the likelihood that the twelve labourers and two other employees presently employed by the respondent will be laid-off in the near future should prohibit them from exercising their rights under the Act. Similarly, the fact that five (or even seven as asserted in the respondent's reply but not substantiated in the evidence before the Board) employ­ees are likely to be added to the core group of seventeen is not the kind of accretion to the work-force which makes it appropriate to apply the build-up principle or one analogous to it.

12. In the result, we are not persuaded that the expected lay-offs, or the expected hirings, or a combination of the two make it appropriate to dismiss or defer consideration of this applica­tion, or to order a representation vote in it.

13. The parties have come to a partial agreement with respect to the description of the bar­gaining unit herein as follows:

all employees of the respondent in the Town of Kirkland Lake, save and except supervisors, per­sons above the rank of supervisor, office and clerical employees, and students employed during the school vacation period.

[Emphasis added to the part of the description

in dispute between the parties.]

The difference between the parties in that respect seems to centre on whether persons classified as "shift engineers" should be included in the bargaining unit. The applicant asserts that shift engi­neers should be included and appears to assert that the exclusionary line should be drawn above that position. The respondent appears to take the contrary view.

14. The applicant filed twenty-two pieces of documentary membership evidence in support of this application. Each one complies with the requirements of section 1(1)(l) of the Act. In addi­tion, the applicant filed the requisite Form 9, Declaration Concerning Membership Documents, which attests to the regularity and sufficiency of the membership evidence.

15. The group of employees, objectors, filed five statements of desire (or "petitions") in opposition to this application. These contained twelve different signatures, but only two are of employees who may be in the bargaining unit who had previously signed one of the pieces of mem­bership evidence submitted by the applicant.

16. Finally, the applicant filed a "counter petition" containing one signature.

17. On the basis of the documentary evidence before the Board, the Board is satisfied 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 May 13, 1991, 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 Act, regardless of the manner in which the bargaining unit is finally described, and regardless of which of its challenges, if any, the applicant is successful in. (In that respect also, we note that the applicant filed membership evidence with respect to well in excess of fifty-five per cent of the seventeen employees who will be retained by the respondent when its facility is fully operational.)

18. Further, the overlap between the petitions filed in opposition to the application and the applicant's membership evidence (which overlaps are the significant aspect for purposes of the Board's considerations; see for example, Unlimited Textures Company Limited [1984] OLRB Rep. Jan. 138) is such that even if it proved to be voluntary, the petitions would not raise sufficient doubt with respect to the continued employee support for the application to cause the Board to exercise its discretion under section 7(2) of the Act to direct that a representation vote be taken notwithstanding the level of employee support for the application as indicated by the applicant's membership evidence.

19. In the circumstances, and because the matters remaining an issue between the parties cannot affect the applicant's right to certification, the Board finds it appropriate, in the exercise of its discretion under section 6(2) of the Labour Relations Act, to certify the applicant on an interim basis pending the final resolution of the matters in issue with respect to the composition of the bar­gaining unit.

20. Consequently, pursuant to section 6(2) of the Act, the Board hereby certifies the appli­cant for employees of the respondent in the Town of Kirkland Lake, save and except supervisors, persons above the rank of supervisor, office and clerical employees, and students employed during the school vacation period.

21. A formal certificate must await a final determination of the composition of the bargain­ing unit.

22. In that respect, the Board authorizes a Labour Relations Officer, to be designated by the Board's Manager of Field Services, to inquire into and report to the Board with respect to the list and composition of the bargaining unit, and more specifically, with respect to the bargaining unit description issue and the applicant's challenges to the list of employees.

23. Finally, with respect to interim certification, the attention of the parties is directed to the Board's decision in Comstock Funeral Home Ltd. [1982] OLRB Oct. 1436 and P & M Electric Limited [1989] OLRB Oct. 1064).