[1994] OLRB REP. OCTOBER 1400

1824-94-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. N.S. Enterprises Limited, Responding Party

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members R. M. Sloan and C. McDon­aId.

APPEARANCES: Craig Grant, Daniel Kaplan and Mark Penfold for the applicant; Rosanne Angotti and Narine Sooknanan for the responding party.

DECISION OF THE BOARD; October 13, 1994

1. This is an application for certification.

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

3. Having regard to the agreement of the parties, the Board further finds that the unit of employees appropriate for collective bargaining should be described as follows:

all employees of the respondent in the Town of Ajax, save and except supervisors, persons above the rank of supervisor, office and clerical staff.

4. In its Response, the employer records that its correct name is 'N.S. Enterprises Limit­ed". That is the way that it has been described in this decision. At the hearing however, the owner of the employer indicated that the business was run by a numbered company: 599350 Ontario Lim­ited. Accordingly, it is not entirely clear which corporate entity should be named in this proceed­ing. But until the union or the responding party otherwise advises, the Board will continue to use the corporate name recorded in the Response.

5. In accordance with the Rules of Procedure, respecting applications for certification, the employer has filed a list of employees in the bargaining unit at the time the application was made.

6. In support of its application for certification, the union has filed documentary evidence of membership or support in the form of cards. Those cards are signed by each employee, bear a date within the six month period immediately preceding the application date, and indicate that the employee wishes to be represented by the union in his/her employment relations with the employer. This documentary evidence is supported by a duly completed declaration verifying the documentary material.

7. On the basis of all of the evidence before it, the Board is satisfied that more than fifty-five per cent of the employees of the responding party in the bargaining unit, on August 23, 1994, the application date, had applied to become members of the applicant on or before that date. In other words, the union has demonstrated the support of a "clear majority" of the employees in the bargaining unit and is therefore entitled to certification without a representation vote, unless the Board exercises its discretion to direct that such vote be taken.

8. The employer submits that, although the level of union support would ordinarily result in automatic certification, the Board should, nevertheless, exercise its discretion to order a repre­sentation vote. The employer submits that, at the time the application was made, the 13 employees in the bargaining unit were not a substantial or representative portion of the actual work force which, it said, was expected to increase significantly within a short period of time. The employer asserts that the bargaining unit is expected to include some 30 employees by mid-December, and that, in the circumstances, the Board should defer this certification application and hold a repre­sentation vote when the work force has "built up" to this more representative number.

9. The Board's approach to these "build-up issues" was summarized as recently as Sep­tember 20, 1994 in Kids Come First Child Care Centre of Vaughan and Canadian Union of Public Employees, (Board File 1671-94-R) [now reported at [1994] OLRB Rep. Sept. 1235]. This is what the Board said in that case:

10. The Board has exercised its discretion to order a representation vote where the employees employed in the bargaining unit on the application date do not constitute a substantial represen­tative number of employees in the ultimate bargaining unit. The policy behind the exercise of this discretion is summarized in the case of Northland Power Partnership, [1991] OLRB Rep. June 768 at paragraph 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 work-force 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 at 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 [19721 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.

21. Over the years the Board has developed some guidelines to assist it in balancing the rights of the two groups of employees described above. First, the Board requires that there be a real like­lihood that a build-up will take place. Second, the planned build-up must take place within a reasonable period of time. Third, to determine whether the existing group is sufficiently repre­sentative of the expected total, the Board looks to whether the employees employed at the time of the application constitute more than fifty per cent of the anticipated number of employees. If more than fifty per cent of the expected total are then employed, it is normally felt that the group is sufficiently representative and the Board will decline to exercise its discretion to order a representation vote. If less than fifty per cent of the expected total are then employed it is nor­mally felt that the group is not sufficiently representative and the Board exercises its discretion accordingly. Fourth, as another yardstick in determining the representative character of the existing work force, the Board looks to the proportion of projected classifications that are filled at the date of the application (F. Lepper & Son Ltd. [1977] OLRB Rep. Dec. 846 at paragraph 10; Brick Brewing Co. Limited, [1985] OLRB Rep. Nov. 1557 at paragraph 6; Champlain Forest Products Limited, [19721 OLRB Rep. May 399 at paragraphs 6 and 7; GSW Inc., [1990] OLRB Rep. May 535 at paragraph 3; Hawk Security Systems Limited, [1993] OLRB Rep. August 751, paragraphs 19 and 22).

22. In our view, this is a useful summary of the Board's approach to "build-up" questions and accurately identifies the factors which the Board normally considers in the exercise of its dis­cretion. It must be remembered though, that this "build-up" question is being considered in a situ­ation where the union appears to be certifiable under section 8 of the Act; moreover, as has fre­quently been said, time is of the essence in labour relations matters. There should be a good reason why the Board should delay disposition of a certification application - particularly where the appli­cant has met the statutory requirements for certification.

23. A hearing in this matter was held, in Toronto, on Tuesday, October 11, 1994. The pur­pose of that hearing was to receive the parties' evidence and representations on the "build-up issue" - and in particular, the employer's evidence, that there will be an increase in the number of employees in the bargaining unit, together with the likely time frame within which this employ­ment level would be reached.

24. Having considered that evidence, the Board is not persuaded that a case for "build-up" has been made. To put the matter another way: the Board is not persuaded on the basis of the evi­dence before it that it should exercise its discretion to order a representation vote, or to delay the disposition of this application until mid-December.

25. The employer asserts that the work force will grow from about 13 workers as at the application date in August to some 30 workers as at mid-December. In support of that proposition the employer tendered a document (Exhibit 2) which was initially described as a "business plan", and which indicated that there would be 21 employees in the "fascia repair" area, and 9 employees in the "painting function". It was said that this expansion was necessary to accommodate a purchase order that the employer had received from "Custom Racks Limited" and which called for average production of "3,300 pieces per month".

26. However, when this information is carefully examined (and subjected to cross-examina­tion) it is much less clear that there will be a significant build-up, or that any significant build-up will actually occur by mid-December.

27. Mr. Sooknanan the president of the employer testified that Exhibit 2 was not in fact a "business plan" but rather a projection that he made for the purpose of this hearing. He said that there was no business plan, per se, nor were there any supporting documents for the disposition, or number of employees appearing on Exhibit 2. He admitted that the 9 individuals he had projected would be involved in the "painting function" were still problematic, because the company was still doing quality tests and would not actually receive this work until the customer was satisfied that its quality standards could be met. The 9 "future" painters were not part of the purchase order/contract requirements of Custom Racks, and in fact no firm purchase order requiring their work had been issued up to the date of the hearing.

28. The current work force of 16 individuals (only 2 more than in August) was producing an excess of 8,000 pieces. In cross-examination, Mr. Sooknanan admitted that the 3,300 piece pur­chase order was merely a "guide line" which had been significantly increased (apparently without any corresponding increase in the work force). He also testified that the company had been experi­encing difficulties attracting employees who, he said, required at least three months training and evaluation before the company could be confident in their productive abilities.

29. In all the circumstances, we are simply not persuaded that the evidence reliably points to a substantial build-up of the work force within the time frame anticipated by the employer. No doubt Mr. Sooknanan hopes to expand and has taken some steps to facilitate expansion. But we are not satisfied that such expansion is so certain, significant, or imminent that the disposition of this application should be postponed, or that the union's certification should await a representation vote in December.

30. The Board is satisfied, on the basis of all the evidence before it, that more than fifty-five per cent of the employees of the responding party in the bargaining unit on August 23, 1994, the certification application date, had applied to become members of the applicant on or before that date.

31. A certificate will issue to the applicant.