The Canadian Union of Operating Engineers and General Workers v. 95467 Ontario Ltd. c.o.b. as Pet-Pak Containers, 1997 CanLII 15577

[1997] OLRB REP. MAY/JUNE 520

0009-97-R The Canadian Union of Operating Engineers and General Workers, Appli­cant v. 95467 Ontario Ltd. c.o.b. as Pet-Pak Containers, Responding Party

BEFORE: Christopher Albertyn, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.

APPEARANCES: Craig Morrison and Terry Fitzpatrick for the applicant; Stewart Saxe, Stephen Dulong and Jo-Ann Codlin for the responding party.

DECISION OF CHRISTOPHER ALBERTYN, VICE-CHAIR, AND BOARD MEMBER H. PEACOCK; June 17, 1997

1. This is an application for certification,

2. The parties have agreed upon the description of the bargaining unit:

all employees of Pet-Pak Containers in the Regional Municipality of Peel, save and except supervisors and technicians, persons above the rank of supervisors and technicians, office and clerical staff.

The Board finds that unit to be a unit appropriate for collective bargaining.

3. A representation vote was ordered by the Board on April 4, 1997 and held on April 8, 1997. The outcome of the vote was as follows:

DATE OF VOTE: April 8, 1997

1. Number of persons on voters' list at start of vote 99

2. Number of persons who voted 93

3. Number of ballots excluding segregated ballots cast by persons whose name appear on voters' list 90

4. Number of segregated ballots cast by persons whose names appear on voters' list 3

5. Number of segregated ballots cast by persons whose names do not appear on voters' list

6. BALLOT BOX SEALED YES NO

7. Number of spoiled ballots 4

8. Number of ballots marked in favour of applicant 52

9. Number of ballots marked against applicant 34

10. Number of ballots marked in favour of intervenor

11. Ballots segregated and not counted 3 DATED at Mississauga. Ontario on April 8, 1997.

12. In the employer's response to the application it alleged a build-up of employees and, as a result, applying the 'build-up' principle, it contended that the vote should be held on or after May 29, 1997, when a work force more representative of the employer's eventual staff complement will have been employed. The Board considered that contention in its decision of April 4, 1997 and stated the following:

The Board considers it appropriate to hold a vote and to determine the "build-up" issue raised by the employer at the hearing after the vote. In the event that the responding party's "build-up" argument is successful, it may be necessary to hold a second vote.

The Issue

5. The hearing occurred on May 5, 1997. The issue was whether a new representation vote should be ordered on account of the 'build-up'. The employer's counsel argued that 'build-up' had occurred, thus rendering the representation vote of April 8, 1997 an inexact and misleading indication of the true wishes of the employees who will soon constitute the bargaining unit. To remedy the situation, a new representation vote should be ordered towards the end of May 1997, or thereafter, when the 'build-up' process will have reached a relatively stable plateau. The union's counsel argued that Bill 7 has so altered the process of determining a union's entitlement to collectively represent a bargaining unit, that the 'build-up' argument no longer has currency; alternatively, that 'build-up', as understood in the Board's jurisprudence, has not occurred in this case.

The Factual Background

6. The employer manufactures plastic bottles, mainly for the liquor and soft drinks industry. Until about March 1997 the employer had relatively few full-time employees, but several part-time or 'on-call' employees. They were available to the employer to be summoned on an 'as needed' basis. At about that time, as a consequence of growing demand for its product, the employer decided that it needed to operate from a second plant and with a larger proportion of full-time employees. It decided also to develop a more structured approach to employment and it engaged the services of a Human Resources Director to provide the organizational foundation for its personnel arrangements.

7. On March 12, 1997 the employer issued a notice to all of its production staff announcing the opening of a second production plant during April 1997. The notice informed staff that some employees would be moved to the new plant; some would have new job responsibilities; some would work on different shifts. The titles of some positions would change. The notice advised employees of the pay scales for each job and it informed employees how they could switch their shift, plant or job assignments with any other employee, by mutual agreement. The notice contained organizational charts of the existing staff structure and of the anticipated future structure and schedules of the positions that would exist in the new structure. What the schedules reveal is that, on March 12, 1997, there were 54 full-time bargaining unit positions and, with the opening of the new plant, management anticipated that there would be 130 full-time bargaining unit positions.

8. On April 1, 1997 the parties agreed upon the voters list for the forthcoming representation vote. There were 64 full-time employees and 35 part-timers, making a total of 99 employees in the bargaining unit. On the date of the vote, April 8, 1997, 6 additional part-timers arrived and voted.

Their participation was initially challenged, although both parties subsequently agreed that they were employees and that their votes should be counted and included in the totals. The effect of their inclusion is that, on April 8, 1997, when the vote occurred there were 64 full-time and 41 part-time employees, making a total of 105, who made up the employees in the bargaining unit.

9. On April 29, 1997 the employer produced a second, updating memorandum concerning the opening of its second production plant, which was sent to all employees. The memorandum deals with several matters regarding the expansion of the employer's business and it identifies numerous positions which are available to be filled. It contemplates a staff complement within the bargaining unit of 1 37 full-time employees at the two production sites. The memorandum advises part-time employees what they should do if they wish to apply for full-time positions.

10. The intention of the employer is to have a more stable work force, with a greater proportion of full-time to part-time employees than existed prior to April 1997. The employer wishes to have less reliance on part-time employees than it did previously. Hence, as of April 29, 1997, the contemplation of the employer was that the number of full-time employees would increase from 64 full-time positions -the number determined at the representation vote on April 8, 1997 - to 137 full-time positions by the end of May 1997. The employer's expectation was that the number of part-timers would remain constant. There would be no appreciable difference in the number of part-timers from the number employed on April 8,1997. Given the employer's intention to rely less upon part-timers and to reduce the 'on-call' method of employment in preference for a more stable, full-time complement of employees, and the replacement of part-timers by full-timers, the absolute number of part-time employees is probably likely to decline. Nevertheless, for the purposes of this decision and subject to a comment below, we accept that the number of part-timers in the bargaining unit will remain constant at 41.

The parties' contentions regarding the numbers for 'build-up'

11. The employer's counsel urged upon us that, for the purpose of calculating the number of employees to determine if there has been a 'build-up', we should have regard only to the actual employment positions in the company. The number increased from 64 on the date of the representation vote to 137 by the end of May 1997, an increase of 114%, or 53% of the eventual total. The employer's counsel argued that the calculation for the purposes of the 'build-up' argument must include only positions within the company. The part-timers - the 'on-call' employees - do not occupy positions of employment. They merely replace employees who do occupy positions of employment when they are on vacation or sick leave. At any one time there will not be more than a handful (7 or 8 employees) actually at work from the pool of the 'on-call' or part-time employees. The number of part-time employees at any one time is unpredictable and depends upon the particular production demands of the company and the number of full-time, regular employees who are at work then. The 'on-call' employees merely fill in for regular employees and, given the uncertain and inherently contingent nature of their employment, their numbers should not be taken into account in assessing whether or not there has been a 'build-up'. The true basis for the determination of a 'build-up' is the number of employment positions within the company and that number is an increase from 64 to 137. On that basis, an increase of 53%, the Board's standard for 'build-up' has been realized.

12. The union takes a different approach. Its counsel argues that the bargaining unit is not divided between full-time and part-time employees: it is an all-employee bargaining unit. Hence, as the parties themselves did when they determined employee voter eligibility on April 8, 1997, all employees of the company should be taken into account for the purposes of assessing whether there has been a 'build-up'. The fact that the part-timers do not work every day, but work to replace full-timers who are away from work or when there are special production demands, does not detract from their status as employees who are part of the bargaining unit and whom the employer was willing to accept as part of

the voting constituency in the representation ballot. Doing that would result in the following transition:

on April 8. 1997 there were 105 employees (64 full-time and 41 part-time); at the end of May 1997 there will be 178 employees (137 full-time and 41 part-time). On the basis of those figures there has been an increase of only 41% and hence no 'build-up',

What is 'build-up'?

13. In Emil Framtt and Peter Waselovich, 57 CLLC ¶18,057 the Board described the circum­stances in which it will order a defet-red vote on the basis of a 'build-up': I. the (current) employees do not constitute a substantial and representative segment of the eventual work force, i.e. they are less than 50% of the eventual total; 2. there is a real likelihood of a build-up of employees to the anticipated eventual number within a reasonable period of time; and 3. the build-up does not depend upon factors beyond the control of the employer, but must be a f'irm plan of the employer. An additional consideration is that the build-up should not be a response to the union's certification application, but should genuinely have been contemplated by the employer prior to it having knowledge of the union's recruitment endeavou rs.

14, F Lepper & Somt Ltd., [19771 OLRB Rep. December 846, at ¶ 10 describes a fourth requirement l'or a 'build-up' argument to succeed, as follows: 'as another yardstick in determining the representative character of the existing work i'orce, the Board looks to the proportion of projected classifications that are filled at the date of the application,' This, like the requirement that the Board determine whether 'the employees employed at the time of the application constitute more than 50% of the anticipated number of employees' (¶10), is really a variant of the central test for a delayed vote, The Boai'd must be satisfied that the employees who initially established the union's representativeness do not constitute a sufficiently repi'esentative proportion of the eventual staff complement in the bargaining unit. Therefore the core requirement is to determine what constitutes a sufficiently representative proportion of the eventual staff cotnplement in the bargaining unit, Having made that determination, the resulting f'igure is cotnpared to the actual number who participated in the first count - in this case, the representation vote on April 8, 1997.

15. In deciding matters of this sort the Board has sought to balance the interest of the existing employees (to have their collective bargaining agent certified and to have it commence the process of collective bargaining on their behalf without undue delay) against the interests of employees who are 500fl to be hired (to be able to influence whether or not they will be represented by a union and, if so, what mandate the union should have in collective bargaining). The method by which the Board has effected that balance has been to determine firstly the likelihood of the hire of the new group of employees, then the pi'oximity of their hire, If their employment is virtually certain and it will occur soon, then the Boai'd moves to the next inquiry: is the anticipated group of new employees of sufficient size relative to the existing group of employees (who have expressed their preference for the union) such that their views ought properly to be taken into account'? Leaving aside consideration of significant changes in job classil'ications, which do not arise in this case, the Board has usually conducted this inquiry on the basis of a majoritarian test: if the existing group of employees, who have made their choice, outnumber the incoming group then the former's views prevail and no second vote is usually ordered, If the incoming group outnumbers the existing group, then a vote is usually ordered. The Board has treated the 50% threshold (i.e. 50% of the eventual total) as a guide to determine the representativity of the existing group of employees as compared to the eventual group of employees (Brick Bm'ewing Co. Limited, [1985] OLRB Rep. November 1557, 1560; Samuel Manu-Tech Itzc., Quicklaw [19941 OLRD No, 4342 File No. 2562-94-R December 1, 1994 ¶9118-19, 25; North/amid Power Partnership. [19911 OLRB Rep. June 768, at 769 ¶8; Hawk Security Systemns Ltd. [1993] OLRB Rep. August 751. ¶22). There ai'e cases in which the absolute application of the 50% guide may produce an unreasonable result, but in general, if the incoming group will outnumber the existing group of

employees, and the primary considerations are satisf'ied, then there should be a second vote, otherwise not.

16. The employer's counsel suggested that the 50% rule should not be applied rigidly, but should depend upon the circumstances of each case. The 50% rule, on this argument, is merely a guideline to assist the Board in its primary inquiry, which is to determine if the group who participated in the initial vote were sufficiently representative of the eventual work force that one may comfortably assert that no second vote is necessary. The absence of a second vote should not offend one's sense of democratic fairness. Accordingly, the proximity of the proposed second vote to the first - in this case merely a matter of 7 or 8 weeks - should have a bearing upon whether the second vote should be held. The absence of any significant delay should militate towards the holding of the second vote if it will be more representative than the first.

17, We accept that the 50% test is a guide and it should not be rigidly applied. We accept also that the proposed proximity of a second vote and the certainty of the increase in numbers should have a bearing upon the exercise of the Board's discretion to order a second vote, The existing approach is first to determine whether the 'build-up' will occur within a reasonable time, If it will not, then that is the end of the matter. If it will, and if the anticipated increase is relatively certain (as in this case), then the second inquiry occurs: will the existing work force be signil'icantly outnumbered by the anticipated workers? If not, then there is no second vote; if so, then there is,

18, Accordingly, while we do not apply the 50% rule in a rigid manner, it is a useful guide to determine whether the existing composition of the bargaining unit is sufficiently representative of the eventual composition so as to obviate the need for a second representation vote.

The Impact of Bill 7

19, What is the impact of Bill 7 upon the 'build-up' doctrine? The employer's counsel argues that there has been a l'undamental philosophical change in the legislature's approach to labour relations from what existed before. Prior to Bill 7, every change to the Labour Relations Act was an amendment of the existing statute. Bill 7 ushered in a wholly new Act with fresh philosophical underpinnings, The new Act is founded upon the principle that there must be a vote in every case and that a representation vote is the preferred method of determining the views of employees. The employer's counsel therefoi'e urges us to accept that its impact is to affirm the importance of determinating the true wishes of all interested employees and accordingly all employees who are likely to be affected by the vote (and that would include those who will be in employment by the end of May 1997) should be entitled to vote upon the future of their employment relations with their employer, As a consequence the build-up principle has even greater efficacy under Bill 7 and should be flexibly and readily applied in this instance,

20. The union's counsel suggests that Bill 7 has the opposite effect of doing away with the 'build-up' principle, No more should we have regard to what is to happen in the future. The Labour Relatiomzs Act now requires that a snapshot view be taken of union support on the date of the representa­tion vote, and that is the true test of employee support. The Act contemplates a quick, certain result which is not subsequently set aside, except in circumstances described in section II, which do not apply to this case. The 'build up' doctrine is antithetical to the requirement of a quick vote,

21. The Union's counsel suggested that the new requirement under section 44 of the Act for a ratification vote by a union supports the notion that no second representation vote is required. If, in fact, there has been 'build-up', then the new majority of employees, who were not involved in the representation vote for the union's certif'ication, will have their say in the ratification vote, They can

reject the union's recommendations in that context if they do not wish to be represented by it any longer. They can thereby create the preconditions l'or a termination application, if they so choose.

22, There are some indications in the scheme of Bill 7 which suggest that Bill 7 does not perpetuate the 'build-up' doctrine, The representation vote occurs quickly after the Board receives a certification application. Not all eligible voters are likely to participate in the ballot, despite their entitlement to vote. Some will be on vacation, or sick leave or sabbatical. Their absences do not vitiate the force and effectiveness of the ballot. The quick certainty of the result, with a minimum period of campaigning, is treated as a more valuable labour relations interest than the inclusion of everyone who might be affected by the result of the vote. By extrapolation, the same interest may prevail in respect of employees whose interests are protected by the 'build-up' doctrine. Like those absent from work on the date of the representation ballot, future employees may reasonably be excluded from the ballot.

23. A further indication that Bill 7 may not preserve the 'build-up' doctrine is, as the union's counsel suggested, the mandatory requirement of a ratification ballot for every collective agreement. The 'future' employees get their chance to decide whether they like what the union has done for them.

24, These indications contrast with others in the Act which suggest that 'build-up' has not been eliminated, There was no amendment to section 1 28(2) of the Act when Bill 7 was passed. That subsection reads as follows:

128. (2) In determining whether a trade union to which subsection (I) applies has met the requirements of subsection 8)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 section applies to the construction industry. Because the representation vote in the construction industry is a snapshot of the views of the employees who worked on the application date, 'build-up' has no role in that industry. By implication, 'build-up' has a role in sectors of the economy other than construction,

25. Section 111(5) of the Act reads,

26. (5) Where the Board determines that a representation vote is to be taken amongst the employees in a bargaining unit or voting constituency, the Board may hold the additional representation votes as it considers necessary to determine the true wishes of the employees.

The Board endeavours, subject to the consideration that representation votes be held promptly, to ensure that representation votes are as representative as possible. But if it is apparent to the Board that a representative vote is not truly representative, the Board may order a second representation vote. A 'build-up' is one circumstance in which section Ill(S) of the Act still has application.

26, Reviewing these contrary indications, we accept that the build-up doctrine retains its efficacy under Bill 7, as it did previously.

Pre judice

27, The employer argues that the union suffers no prejudice by a delay of about 8 weeks between the representation vote on April 8, 1997 and a second more representative vote which would occur if we find the 'build-up' principle has application. In contrast, the prejudice to the employees who were not in employment on April 8, 1997 and who will be working by the end of May 1997 is substantial, The interests of both sets of workers - those in employment then and those newly employed -would both be recognized if a second, more representative vote were ordered.

28. The union's counsel submits that a second representation vote will cause prejudice. The certainty of the earlier vote would be jeopardized if a second vote were ordered. The union would not influence the date of the vote, an entitlement which is substantially entailed by the manner in which the voting date is determined under section 8(5) of the Act. Effect would not necessarily be given to the intention expressed by a majority of the employees who cast ballots on April 8, 1997. The union would not have had access to employees newly i'ecruited shortly prior to the second vote, particularly if there were to be a short period between the ordering of the second vote and its occurrence. If the period were not short, then there would be room for campaigning and l'or the kinds of problems which are anticipated and proscribed by section II of the Act.

29, We are not satisfied that every potential prejudice need be considered in making this determination, In our view the proper balancing of respective interests is between those of the existing employees and of the employees who had no part in the earlier representation vote. That balancing has generally been resolved in the Board's jurisprudence on the basis of whether the existing employees represent a majority of the eventual complement of employees. If so. their interests prevail; if not, then the interests of the anticipated employees prevail. We accept that standard,

Calculating representativeness

30. The employer has established certain elements of the 'build-up' test. The employer's decision to rapidly expand the number of employees in the bargaining unit was taken prior to it receiving the union's certification application, It was a genuine decision based upon business exigencies and operational requirements and it was unrelated to the union's organizing campaign. There is a real likelihood of a rapid increase in the number of employees and it will occur before the end of May 1997 - certainly within a reasonable period. See F. Lepper & Somz Ltd., above, ¶¶8- 10. The staff increase does not depend upon factors outside of' the employer's control. The growth in numbers is part of the employer's organizational plan; it does not depend upon any outside influence or determinant.

3 I. The problematic portion of the employer's 'build-up' argument concerns the calculation of the growth in employment. Are we to adopt the 'increase in positions' approach advanced by the employer (which could result in a finding of a 'build-up'), or do we have regard to the growth in the total number of employees, as advanced by the union (which would usually not have that result)'?

32. The union argues that the employer cannot approbate and reprobate: the employer is willing to accept an all-employee bargaining unit, when it might have contended t'or separate full-time and part-time units; the employer was willing to include the part-time (on-call) employees in the count for the purposes of determining who would participate in the representation vote on April 8, 1997; yet, now that the union has been successful, the employer wishes to change the ground rules - it now wants the Board to have regard only to the number of full-time employees - and, in the union's submission, it should not be permitted to do so.

33. We accept the union's argument. If we were dealing with a full-time only bargaining unit, then the employer's argument might be persuasive. But we are not. We are dealing with an all-employee unit, which consists of full-time and part-time employees. Each employee has the same status in the bargaining unit, whether they be full-time or part-time. They had an equal vote in the representation vote and there is no reason why they should not now be treated as equivalent. The fact that the full-time employees have definite positions and work on specif'ied shifts, while the part-timers work only as 'call-in' employees on an as-needed basis, does not mean that they are not employees. The employer itself has accepted that they are employees by including them in the representation vote that occurred onApril8, 1997.

34. Furthermore, the evidence suggested that the employer will consider its "on-call" pool of part-time employees to fill the newly created full-time positions. They were invited to apply for the full-time positions. We can assume that some of the new full-time positions will he filled by employees from the "on-call" pool. They have already expressed their opinion on the union's certification applica­tion because they were entitled to vote in the representation ballot on April 8, 1997. Hence, while there has been a considerable growth in the number of full-time positions from what existed on April 8, there has not been a commensurate growth in the number of employees. The parties estimated that the number of part-time employees would remain constant between April 8 and the end of May 1997. In our view, given the change in the employer's employment orientation from an on-call pool to a regular full-time complement, that is likely to be an over-estimation of the eventual number of on-call employees. These observations suggest that the figure of a 41% build-up in the number of employees is probably on the high side. Nevertheless, accepting that the build-up figure will be 41%, that is not sufficient to meet the usual test of 50% applied in 'build-up' cases,

35. In light of this determination, we find that the growth in the number of employees to be engaged by the end of May 1997 does meet the test of the 'build-up' principle. Accordingly, there has not been suf'f'icient build-up of employees to warrant a second representation vote.

36. The union is in a certifiable position as a result of the representation vote of April 8, 1997 a certif'icate will issue.

37, The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of' 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.

38, Meetings and hearing dates previously arranged are hereby cancelled,

39. The employer should ensure that copies of this decision be posted on employee noticeboards at its workplaces so that the decision comes to the attention of the company's employees. The copies should remain posted for a period of 30 days from the date hereof.

DECISION OF BOARD MEMBER, J. A. RONSON; June 17, 1997

I. Bill 7 radically changed the approach that our Board must take in certification proceedings, To my knowledge, this is the first "build-up" case to be decided by the Board under Bill 7.

2. When we certify a group of employees at the wish of less than 30% of their number, we give short shift to our build-up cases prior to Bill 7, and we ignore completely the present wishes of the Legislature.

3. I would order another vote, so the persons directly affected by union representation could tell us what they want.