[1992] OLRB Rep. February 195
2423-91-R; 2684-91-U Bakery Confectionery & Tobacco Workers International Union AFL CIO CLC, Applicant/Complainant v. R.J.R MacDonald Inc., Respondent v. Group of Employees, Objectors
BEFORE: M. A. Nairn, Vice-Chair, and Board Members J. A. Ronson and C. McDonald.
APPEARANCES: Susan Ballantyne, David W. T. Matheson, Sean Kelly, Domenic Ricci, Walter Press and Stan Williams for the applicant/complainant; R. W. Kitchen and G. Tribble for the respondent; C. M. Harpur, C. J. Abbass, Max Meharg and Bill Fulkerson for the objectors.
DECISION OF THE BOARD; February 14, 1992
By decision dated November 27, 1991 we advised the parties of the panel's conclusion regarding the description of the appropriate bargaining unit and referred these matters to the Registrar to list for hearing to deal with all remaining issues in dispute. In order to accommodate the further scheduling of this matter, the remaining issues are being placed before a differently constituted panel. This decision records the agreement of the parties with respect to certain matters and provides our reasons for our conclusion concerning the description of the bargaining unit.
Board File No. 2423-91-R is an application for certification. Board File No. 2684-91-U is a section 91 [previously section 89] complaint alleging that the respondent has violated sections 65, 67, and 71 [previously sections 64, 66 and 70] of the Labour Relations Act (the "Act"). By way of relief the applicant is requesting that the Board certify the applicant pursuant to section 8 of the Act and is relying on the complaint filed to support that request.
The Board finds that the applicant is a trade union within the meaning of section 1(1) [previously section l(l)(p)] of the Act.
Prior to the hearing the parties met with a Labour Relations Officer and were able to agree on certain issues in dispute. At the outset of the hearing the parties advised the panel of further agreements between them. The applicant originally made twenty-eight challenges to the list of employees filed by the respondent. At the outset of the hearing it withdrew those twenty-eight challenges which are listed on Appendix 1 to the Labour Relations Officer's report. In addition, the applicant had challenged three persons on the basis that they exercised managerial functions. The applicant withdrew those challenges as well. As a result, the only remaining challenges to the list of employees reflected the parties' dispute about whether or not seasonal employees should be included in or excluded from the bargaining unit.
The parties were agreed that the panel should determine the bargaining unit description issue prior to proceeding to any evidence with respect to the section 91 and the applicant's request for relief under section 8. Except with respect to the underlined portion, the parties were agreed on the following bargaining unit description:
all employees of the respondent employed in its Leaf Division in the Town of Tillsonburg, save and except forepersons, persons above the rank of foreperson, office, clerical, sales, technical, grading and buying staff, security guards, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, and seasonal employees.
It was the position of the applicant that seasonal employees were properly included in the bargaining unit. It was the position of the respondent that seasonal employees were properly excluded from the bargaining unit. The group of objecting employees took no position on this issue and, having determined that it was only this issue that would be dealt with at that time, the group of objecting employees and their counsel withdrew from the hearing.
The facts were not in dispute. The bargaining unit in question concerns those employees working in what is referred to as the respondent's Leaf Division. This division is generally involved in the buying, processing, and storage of leaf tobacco. Thirty percent of its product is shipped to the respondent's domestic manufacturing facility in Montreal for processing into cigarettes. The remaining seventy percent is shipped for the export market.
The respondent operates four locations in this division in the Town of Tillsonburg. One location is the Tillsonburg Auction Exchange, operated by the Tobacco Growers' Association. This is where tobacco is bought by the various producers at auction. The activities of the respondent's employees at that location involve the grading, sorting, buying, and loading and shipping of tobacco to the main plant located at No. 3 Highway West in Tillsonburg. On October 24, 1991, the date of application for certification, there were nine employees at the Exchange.
The Auction Exchange opened on October 21,1991. It is anticipated that in the normal
course it will close towards the end of March, 1992. The parties are agreed that while the date of
opening and closing will vary from year to year this variation is one of a few days. During the remainder of the year the Auction Exchange is closed.
At No. 3 Highway West there is a processing facility as well as a small storage area and office. Employees in the office are excluded from this bargaining unit. Leaf tobacco that is bought at the Auction Exchange is shipped to this facility within forty-eight hours of its purchase. At No. 3 Highway West it is re-graded and placed in green leaf inventory. On a processing line it is then blended, threshed, sorted, dried, re-dried, and packaged. From the processing line it is initially moved to the small storage area in the plant. During this processing season (between late October and late March) the respondent hires seasonal employees. The significant number of all employees work at No. 3 Highway West.
From the plant the product is shipped to two larger storage facilities, one on Tillson Avenue, and the other on Wabash Road, both in Tillsonburg. At these locations it is stored and subsequently shipped either for domestic or export market. Each storage facility employs three persons within the bargaining unit. These facilities operate year-round.
The crop year for tobacco begins in February. At that time an agreement is negotiated between the Tobacco Growers' Association and the three major tobacco companies (including the respondent). Based on that contract, the tobacco farming community plants their allotment and during the period between late July to October that crop is harvested. The crop is brought to market between late October and the following March. Farmers cannot bring the tobacco to market prior to the opening of the Auction Exchange.
During the period between March and October of each year the facility at No. 3 Highway West is not fully operational. Toward the end of the season in late January to late March many of the seasonal employees are terminated from employment. However some are kept on following the end of the processing season. The activities carried on in the plant during that period include maintenance and capital improvements and any special projects. During that period in 1991, the respondent employed thirteen permanent full-time employees and seventeen "extended seasonal" employees. The seventeen were employed to work on the installation of a burley-casing line (a capital project). That work lasted until approximately July 15th when their employment was terminated. Those individuals were re-hired on July 22nd for the purpose of completing an accelerated maintenance plan. That work lasted until approximately October 30th by which time the processing work had commenced. Those employees were then transferred to positions on the processing line or elsewhere in the facility. Over the last five to six years the respondent has employed a total of approximately thirty persons over the summer period.
Over the last five or six years the seasonal employees who are retained have had their employment terminated prior to the long weekend in July and are re-hired the following week. The exact number retained over the summer is dependent on the size of any capital projects underway. As evidenced in Exhibit 2 the respondent hired four additional maintenance employees in September 1991 and six additional employees to work in storage and reclaim in early October 1991. Additional hires continued. On October 21, 1991 the Auction Exchange opened. On October 23, 1991 the respondent opened its first receiving line at which time a further nineteen employees commenced working. A total of seventy-five employees are reflected on the list of employees and on Exhibit 2 as of the date of the application for certification.
We note that while some employees are treated as temporary or seasonal employees, their employment has been of a continuous nature. This is reflected to the extent that over the past five to six years there have been approximately thirty people employed during the "off' season.
Exhibit 2 reflects the dates and manner in which the respondent's processing activity continued. As of the date of hearing before this panel on November 22, 1991 the respondent employed a total of one hundred and forty-six employees. The projections for hire up to and including December 14, 1991 would reflect a total work force of two hundred and fourteen employees at the height of season. The respondent anticipates commencing its downshift in activity on January 20, 1992 continuing until March 28, 1992.
The respondent anticipates running a third shift on its first processing line this season. In the previous six years there has been only one other occasion when the respondent operated a third shift. Absent that third shift the employee numbers would total in the range of approximately one hundred and sixty-five to one hundred and seventy employees.
A little over one half of all the seasonal employees have some form of long standing relationship with the respondent and tend to return each year for employment purposes. Over the Christmas holiday period these temporary employees have their employment terminated. They are re-hired after the holidays. Statutory holiday pay, if any, is paid in accordance with the Employment Standards Act.
The respondent relied on what it described as Board policy to argue that a certification application made out of season would have seasonal employees excluded from the bargaining unit. The acknowledged corollary was that an application made in-season would include seasonal employees in the bargaining unit. The respondent argued that this application was made out of season because its substantive activity, described as processing of leaf tobacco, had not yet commenced by the date of application. In support of its position it relied on Melnor Manufacturing Limited [1969] OLRB Rep. Mar. 1288, Filkon Food Services Limited [1981] OLRB Rep. Dec. 1771, and Cobi Foods Inc. [1987] OLRB Rep. June 815. In the alternative, the respondent argued that if seasonals were to be included in the bargaining unit then the work force present on the date of application was not representative and the Board should apply a build-up principle and order a vote of employees at a more representative point in time. As well, the respondent noted that the question of the representative nature of the work-force on the application date is relevant to whether or not the applicant has membership support adequate for collective bargaining in the context of its request for relief under section 8.
The applicant argued that the Board has not recognized any distinction between seasonal or temporary employees and permanent employees in conjunction with the timing of an application for certification for purposes of the determination of the bargaining unit description. It acknowledged two activities which constitute an apparent exception to this, described as canning and tobacco harvesting. The respondent, it argued, is not engaged in tobacco harvesting and the applicant referred to the cases relied on by the respondent and in addition, Universal Cooler, a division of Sno-boy Coolers Limited [1967] OLRB Rep. Sept. 546.
In the alternative, the applicant argued that this application was made in-season and therefore seasonals ought to be included in the bargaining unit. It argued the season opened no later than the day the auction opened, that is, October 21, 1991. By the date of application, seventy-five people were employed, the bulk of whom the respondent would characterize as "seasonally" employed. The applicant further argued that the concept of build-up has no application to a seasonal work force and in the alternative it did not agree that the work force on the date of application was unrepresentative.
The Board's approach to seasonal employees was summarized in Filkon Food Services Limited, supra at paragraph 4:
……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., (1976) OLRB Rep. May 215).
In applying section 6(1) of the Act in determining an appropriate bargaining unit the Board asks whether the unit that the applicant seeks to represent encompasses a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer. The respondent does not suggest that if the application were made in-season that the seasonal employees here ought not to be included in a bargaining unit with permanent employees. Although respondent counsel denied applicant counsel's assertion in argument that the parties were agreed the employees shared a community of interest, it is implicit in the respondent's position and there is little in the evidence to suggest otherwise. During their period of employment the seasonal employees compliment the work of the permanent employees. Some "extended seasonals" work essentially year round with the permanent employees engaged in similar functions. While their terms of employment may differ that, in and of itself, does not lend itself to the conclusion that these employees do not share a community of interest. Nor is there any suggestion that serious labour relations problems would be created for this employer by including seasonal employees in an all-employee bargaining unit.
Whether or not a distinction or exception for tobacco harvesting and canning continues to be sound in the context of the Board's role under section 6(1) to determine an appropriate bargaining unit is not a question that this panel is required to answer. We are satisfied that the activity of the respondent is as described by it at the hearing, that is, the buying, processing, and storing of leaf tobacco, and as such is not properly described as tobacco harvesting. In that circumstance we see no reason to depart from the conclusion in Filkon Foods Limited to include seasonal employees in the bargaining unit.
In any event, we are further satisfied that as of October 24, 1991 the season, while not at its height of activity, had clearly begun so as to conclude that the application for certification was made in-season. The inclusion of seasonal employees in the bargaining unit is appropriate. The seasonal employees (whether truly seasonal or employed on a temporary but continuous basis) and the permanent employees, together represent a group of employees who can, on a viable basis, bargain collectively without creating serious labour relations problems for the employer.
The issue of the application of any principle of build-up is one that goes to representation, not to bargaining unit configuration. The applicant in this case has acknowledged that if the panel were to conclude that seasonal employees are properly in the bargaining unit it can only rely on section 8 in support of its certification application. It has not filed sufficient evidence of membership so as to be otherwise entitled to certification or a representation vote.
This panel is not seized. The matter has been listed for continuation on March 11, April 2, 3, 9, 16 and May 11, 1992 before a differently constituted panel of the Board to hear the evidence and representations of the parties with respect to the outstanding section 91 complaint and the applicant's request for section 8 relief.