[1999] OLRB REP. NOVEMBER/DECEMBER 1113
3435-98-R United Brotherhood of Carpenters and Joiners of America, Local 3054, Applicant v. Twin Trim Wood Manufacturing Inc. c.o.b. Twin Trim Dimensions, a division of Twin Trim Wood, Responding Party
Certification - Employer asking Board not to give effect to representation vote and to order a new vote at a later having regard to anticipated "build-up" of workforce - Board not satisfied that evidence reliably pointed to substantial build-up of workforce within time frame anticipated by employer - Employer's request dismissed - Certificate issuing
BEFORE: Brian McLean, Vice-Chair.
DECISION OF THE BOARD; December 10, 1999
This is an application for certification.
A representation vote was held in this matter on January 25, 1999. Following an agreement between the parties resolving all but one of the issues in dispute, the ballots cast in the representation vote were counted and the majority of employees voted in favour of representation by the applicant. The outstanding issue which remains in dispute is the employer's submission that, despite the fact that the union won the representation vote, the Board should exercise its discretion to hold another vote. The employer submits that, at the time the vote was held, the complement of employees in the bargaining unit were not a representative portion of the actual workforce which, it said, was expected to increase significantly within a short period of time.
A hearing in this matter was held on February 22, 1999. The purpose of that hearing was to receive the parties' evidence and representations on the "build-up" issue. Following the hearing, the Board issued a "bottom-line" decision dated May 3, 1999 (amended by decision dated June 1, 1999), denying the employer's request that another representation vote be held and certifying the applicant. These are the full reasons for that decision.
The employer initially asserted that the bargaining unit, which was 35 at the application date, was expected to include 90 employees by August 1999. However, at the commencement of the hearing the employer sought to revise its estimate of the number of employees that it would originally hire to 120. Based on oral reasons given at the hearing, the Board declined to permit the employee to resile from its earlier position. Regardless, since the number of employees at the application date was less than 50% of the total alleged to be anticipated to be hired, whether the number is 90 or 120 is of no consequence.
The Board's approach to "build-up" cases was summarized in Kids Come First Child Care Centre of Vaughan, [1994] OLRB Rep. Sept. 1235:
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 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.
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 detennine whether the existing group is sufficiently representaÂtive 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, [1972] 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).
There was no disagreement that the Board retains the power to order another representation vote or delay holding such a vote because of build-up even considering the most recent amendment to the Act. (See Pet Pak Containers, [1997] OLRB Rep. May/June 520 and Park Plaza Hospitality L.P, 1998] OLRB Rep. Sept./Oct. 863.)
The employer manufactures wood products such as cabinet parts, mouldings and hardwood flooring. It asserted that its workforce would grow from 35 workers as on the application date to 90 (or 120) by August, 1999 This growth arises out of the fact that the employer recently moved its operations from a 10,000 square foot facility to a facility which comprises 60,000 square feet.
Joel Kember, the company's president was the only witness to testify in this case. In addition to giving the background to the Company's position which is described in the proceeding paragraph, Mr. Kember testified with respect to the number of employees the Company hoped to hire. He used diagrams (created for litigation) to demonstrate where all of the new employees would work and on what shifts they would be scheduled. He also testified that since the application date the company had hire additional employees. It had recalled employees who had earlier been laid off and hired 14 new labourers. However, under cross examination Mr. Kember testified that he did not have a list of the names of the new hires. He also acknowledged that the vast majority of space into new facility would be used for warehousing. (I also note that following the hearing the company wrote the Board a letter advising that as of March 16, 1999 the complement of employees had increased to 62 employees. However, that was not evidence before me at the hearing, it was not subject to cross examination and accordingly I did not consider it when making my decision.)
There is no doubt that the fact that an employer has moved into a larger facility (even if, as here, much of the increased space will be used for storage and not production) and plans for how new employees are to be utilized are evidence that the workforce may increase. However, it is apparent that the employer's employee complement build up rests on the company obtaining sufficient orders to allow it to employ more workers. The Company did not produce a business plan or the documents which Mr. Kember testified that he provided to the Bank in order to obtain financing for the new facility. There was also no evidence with respect to sales figures or orders or the demand for the products the company produces. The only evidence called in support of the position that the employer might actually employ the number of workers it alleges was Mr. Kember's testimony that the increase in the number of workers was "realistic and achievable".
Moreover, the employer's assertion that it was anticipating hiring a large number of workers appears inconsistent with the fact that the employer laid off employees in October, 1998. In a letter to the Board dated January 18, 1999 the employer had the following submission about those lay offs:
The additional space in our new facility made processes more efficient, and this coupled with reduced orders prompted a change to our production schedule in October'98. We began to run 12 hours a day, 7 days a week, as opposed to the prior 24 hours a day, 7 days a week. A shift supervisor was reassigned to other duties, as were a few machine foremen, 3 machine foremen and 13 labourers were laid off. Although 2 shifts were cancelled, not all foremen from these shifts were laid off, as they continue to be in training to ensure they are up to speed when the full complement of labourers are in place, and production reaches the forecasted levels.
Under cross examination Mr. Kember distanced himself the information provided by the Company in the January 18, 1999 letter. He testified that increased efficiencies in the new facility did not lead to the lay offs. Instead Mr. Kember asserted that increased efficiencies actually would cause the employee complement to build up. Mr. Kember also stated that the reduction in orders resulted from the fact that the company moved into its new facility in October, 1998. Lay offs also resulted from the Company's move from running a 24 hour operation to a 12 hour operation. There was no suggestion that the lay offs were seasonal.
It is difficult to think of anything less consistent with an alleged imminent build up than lay offs. Lay-offs are an indication that the Company's plan to hire new workers is dependent on market forces which are beyond the company's control. Lay-offs suggest that demand for the company's product may not be as great as hoped. I was not convinced by the explanations for the lay-offs offered by Mr. Kember since they contradicted the company's, more believable earlier submissions set out in the company's letter to the Board dated January 18, 1999.
Given the fact that lay offs had occurred, that orders had been reduced and that the new plant was more efficient, the evidence presented at the hearing did not satisfy the company's onus to demonstrate that there is reasonable certainty that a build-up will take place as the Board's jurisprudence requires.
During closing argument, the employer's representative suggested an argument which loosely can be characterized as "if they build it, customers will come". However, the Board was presented with little evidence about the employer's current business levels, and no evidence about how the demand for the company's products was supposed to increase. If the Company's position was that the demand for its product was so great that any increase in production would be met by an increase in demand it should have led evidence to that effect, but it did not do so.
In all of the circumstances, I therefore was not persuaded that the evidence reliably points to a substantial build-up of the workforce within the time frame anticipated by the employer. No doubt Mr. Kember hoped to increase the workforce and has taken some significant steps to facilitate this increase. However, I was not satisfied that the expansion in the workforce was so certain that another vote should be held.