United Food and Commercial Workers International Union Local 175 v. Parisco Limited, 2000 CanLII 13326

1775-99-R United Food and Commercial Workers International Union Local 175, Applicant v. Parisco Limited, Responding Party.

BEFORE: Anthony Brown, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.

DECISION OF ANTHONY BROWN, VICE-CHAIR; July 26, 2000

This is an application for certification.
On September 23, 1999, having regard to the agreement of the parties, the Board (differently constituted) found that:

all employees of Parisco Limited at 20 East Pearce Street and 66 West Beaver Creek Road in the Town of Richmond Hill, save and except Supervisors and those above the rank of supervisor, Office, Clerical, Sales Staff,

constitutes a unit of employees of the responding party appropriate for collective bargaining and ordered that a representation vote be held on September 27 and 28, 1999. On September 24, 1999, the Board ordered that the ballot box be sealed in light of the build-up issue raised by the responding party. A hearing was held on October 25 and 26, and November 5, 1999. On January 11, 2000, the Board issued a “bottom line” decision and found that the build-up principle does not apply to the facts disclosed in this application. The ballots were counted, the applicant was successful and a certificate was issued. These are the Board’s reasons. The reasons of Mr. Ronson will follow in due course.

The Issue

The responding party (referred to as “Parisco” or “the company”) sought to have the Board delay the representation vote until February 2000. It stated that the number of employees in the bargaining unit would increase substantially by that time and the new employees should be permitted to vote on whether the applicant should be certified as their bargaining agent.
The applicant (referred to as “the union”) argued that the build-up principle no longer applies after the coming into force of the Labour Relations Act, 1995 (“Bill 7”) and that the Board is therefore without jurisdiction to order a new vote. In the alternative, the union argued that the Act changed the test that the Board should apply in build-up cases, such that a new vote should be ordered only in the most extraordinary circumstances. The union also asserted that the facts do not support the application of the build-up principle in the present application.

The Facts

Mr. John Dobie, General Manager of Production for Parisco was the sole witness. He reports to the company president and oversees production-related matters such as budgeting, sourcing of new production equipment, operational procedures and policies. He works closely with the sales department and quality assurance department.
Parisco manufactures Belgian “liege” waffles. It also manufactures chocolate-covered waffles and it plans to produce other chocolate waffle-based products. It is this expansion plan that lies at the heart of the matter before the Board.
The company serves stores across North America and at the time of the hearing it had a new agreement to supply Costco stores in the United Kingdom. Mr. Dobie stated that Parisco has no significant competition in North America for its particular kind of waffle, and although competition could come in future, the company has a two or three year head start. Mr. Dobie stated that it would be difficult for a competitor to obtain the necessary production equipment from Europe.
Parisco has experienced rapid growth. It opened its East Pearce Street plant (Plant 1) in January, 1996. Production started on a manual basis but, after it was determined that there was a market for the waffle, the company commissioned its first automated line in June of that year. The product was successful and it became evident that Parisco would need to increase capacity. In February, 1998, a second oven was added to complete the first production line and in the summer of 1998 the company started a second line at Plant 1. By September, 1998, a total of four ovens were in operation and staff worked in two shifts. Plant 1 produces the “plain” waffle.
The company’s fiscal year ends on June 30th. In 1995-96 there were sales of approximately $500,000. In 1996-97 sales were just under $2 million. In 1997-98 sales were $6 million and by 1998-99 they had grown to $20 million. In July, 1998, the company had 58 employees and by the end of the fiscal year in June, 1999, it had 110 employees. From 1996 to 1998 most sales were in Ontario and to some smaller accounts in Quebec. However, in 1998-99 the company expanded into the United States, opening up a much larger potential market. Approximately 80% of its sales are to businesses in the United States.
Mr. Dobie explained how the company sells it products to retailers. It first endeavours to obtain a “listing agreement” with a retailer, although such an agreement does not guarantee that the retailer will order the product or that all stores of the retailer will carry the product. Once a listing agreement is obtained, Parisco then determines how much product it can supply in light of its production capacity. When the retailer needs product, it will place a purchase order. Parisco does not have contracts with retailers that guarantee a certain level of sales. Purchase orders are normally received 14 days in advance of the arrival date at the retailer’s distribution centre. Mr. Dobie acknowledged that the sales figures filed with the Board indicate significant fluctuations for individual retailers. For example, in one week, a retailer may place a huge order but in the next few weeks the same retailer may place much smaller orders, or none at all. Sales figures filed by the company show that, although total sales have increased significantly, sales to at least some of the retailers on the Parisco’s list of “trade accounts” can be unpredictable.
Mr. Dobie stated that the production lines must be ready to go when an order comes in. This means that the company must have sufficient staff, even in the absence of long-term contractual commitments from retailers.
In the summer of 1998, Parisco decided to pursue opening another facility because there was no more room at Plant 1. Mr. Dobie explained that the company did not want to get too confident by relying solely on the plain waffle. It decided to expand into new products to fit the consumer trend to sweeter foods: biscotti (both plain and chocolate), bite size waffles (chunks) in chocolate, and the chocolate-enrobed waffle. However, new production lines ordered for Plant 2 were also designed to produce plain waffles, in case the new products did not sell as expected.
The company leased Plant 2 at 66 West Beaver Creek Drive in Richmond Hill. The lease is for 10 years, expiring on January 31, 2009. Purchasing of equipment for the plant commenced in September and October 1998. The equipment is manufactured in Europe and some of it is custom built for Parisco. Plant 2 required a capital investment of 10 million dollars. The floor plans for Plant 2 were filed with the Board. They show areas for shipping, receiving, mixing, production and offices. Another plan shows details of the office and staff facilities. A third plan shows the lay-out of the four production lines.
Mr. Dobie explained that the company’s original plan was to have all four production lines in place in the fall of 1999. The first line, Line 4 arrived in February, 1999, about three weeks late because there were delays at Customs and because of shipping delays during the holidays. There were also unforeseen technical difficulties during commissioning of the line. The chocolate-enrobing equipment did not work properly. The original idea was to enrobe the waffle horizontally, so that half the surface area of both sides was covered. The product had been marketed to buyers and packaging had been prepared. Retailers had allotted shelf space for this product. However, the enrobing difficulties derailed the project and the company missed shipping deadlines. The company decided to enrobe the waffles vertically. This required new packaging and new efforts to sell the product to buyers. The problems with Line 4 were solved toward the end of March or beginning of April, 1999, and by mid-April the new packaging had arrived.
As of the date of application, Line 4 was installed and employees had been hired to staff the line. The equipment for Lines 3, 5, and 6 was being manufactured. With respect to Line 5, Mr. Dobie stated that some of the equipment was in transit and undergoing Canadian Standards Association approval. Some packaging machines had been received by the date of application. The company filed a complete list of the equipment that will be used on the Plant 2 production lines.
Line 4 was not producing chocolate-covered waffles full time as of the date of application for certification (September 20, 1999). Mr. Dobie explained that summer is not a good time to launch a chocolate product. Line 4 did, however, operate full time for about 4 weeks in the summer of 1999. The company decided to delay the launch of the chocolate-covered waffle until the 1999 Christmas “drive”.
No biscottis or chunks had been produced as of the date of the hearing. Mr. Dobie stated that the company expected to commission Line 5 in November, 1999, Line 6 toward the end of December, 1999 and Line 3 in February, 2000. As of the date of application, staff had not been hired for these lines.
In its written response to an unsuccessful application for certification by the United Steelworkers of America (filed with the Board on December 24, 1998), in which Parisco argued “build up”, the company predicted that Line 5 would be installed by May 1999, Line 6 by August 1999 and Line 3 by September 1999. As mentioned previously, these timelines were “derailed” because of the problems with Line 4.
Mr. Dobie admitted that small problems can be expected during the commissioning of Lines 3, 5 and 6, but stated that he expected fewer problems than those experienced with Line 4 because the company is more experienced with chocolate technology, is using proven technology, uses “single source” equipment supply, and applies a 10% holdback on the purchase of the equipment. The lines were to be pre-tested in Europe.
Mr. Dobie stated that the company has been in a constant state of hiring over the last two years. At the time of application, the company employed approximately 115 (bargaining unit) staff and had 24 vacancies unfilled for existing lines. When Line 4 was installed, the company hired 40-45 staff, to be able to operate two shifts. When Line 4 ran into commissioning delays, the staff were retained and assigned to work in Plant 1. The company also experienced some staff attrition during the same period of time. (In July, 1999, it had 137 employees.) The net increase in staff after Line 4 was installed was 25 employees as of the date of application. Because the company wanted to be prepared for orders for the chocolate-covered waffle (particularly during the Christmas season), it did not switch to the plain waffle on Line 4.
The responding party filed a document prepared by Mr. Dobie showing the company’s projected staff increase for Plant 2. As of the date of application, 181 people are projected to be hired, including (1) the 24 existing vacancies, (2) the staff specifically required for Lines 3, 5 and 6, and (3) maintenance/cleaning staff. Forty-four staff are required to operate two shifts on each line. Each shift will produce 20 skids of boxed waffles. A skid holds (for example) 236 boxes of 10 waffles. Thus, a line running at two shifts per day will produce 40 skids per day, or 200 skids per week. Mr. Dobie stated that if the new products were not successful, and a switch were made to plain waffles, there would be a slight reduction in staff required for the new lines.
The hours worked and the number of shifts depends on the number of orders received. An overall increase in sales does not result in the same percentage increase in staff because there are greater yields and more productivity. Conversely, a decrease in sales does not mean that staff can be reduced, because the company must be ready to fill orders as they come in. Mr. Dobie stated that the company has not laid off staff.
The company is considering opening other plants, outside Ontario. These plants would affect which markets are served by Plants 1 and 2 but are not expected to reduce production.

The Board’s Jurisdiction

The union argues that the “build-up” principle no longer applies after “Bill 7” created new certification procedures. It argues that the principle of a quick vote following an application for certification is an overriding consideration and that “build up” is contrary to the quick vote principle. In support of its submission, the union referred the Board to The Corporation of the City of Toronto [1996] OLRB Rep. July/August 552 in which the Board examined the new certification process in Bill 7 in detail.
The responding party asserts that the Board has jurisdiction to consider build-up under subsection 8(5) of the Act, which states:

s. 8(5) Unless the Board directs otherwise, the representation vote shall be held within five days (excluding Saturdays, Sundays and holidays) after the day on which the application for certification is filed with the Board. (emphasis added)

The Corporation of the City of Toronto (supra) decision does not address the issue of whether the new certification process in Bill 7 eliminated the build-up principle. It explains the importance of having a “quick vote” and “quick result” in an application for certification, a consideration which should influence how the Board exercises its discretion in respect of build-up. However, it is unnecessary to decide the “jurisdictional” argument raised by the applicant because the facts do not support build-up, even using the traditional test.

What is the traditional test for build-up?

Several Board decisions have defined the circumstances in which the Board will order another vote because of “build-up”. These decisions show that the test for build-up, however articulated, has in practice been a difficult one for an employer to meet.
In F. Lepper & Son Ltd., [1977] OLRB Rep. Dec. 846, the Board stated (at paragraphs 9 and 10):
In deciding whether to postpone the taking of a representation vote because of the respondent’s planned build-up of its work force, the Board must balance the rights of the 28 employees already employed at the time of the application with the rights of future employees the respondent intends to hire over the next eight months. By delaying the vote, the existing employees are temporarily deprived of their opportunity to engage in collective bargaining. By ordering an immediate vote, however, the future employees would be deprived of their opportunity to participate in the selection of their own bargaining agent.
Over the years, the Board has developed some guideposts to assist it in the balancing of the rights of these two groups of employees. Firstly, the Board requires that there be a real likelihood that a build-up will take place; there must be a firm plan for an imminent build-up. (See Power Controls [1967] OLRB Rep. Mar. 954, Cameron Packing Inc. [1972] OLRB Rep. No. 988, and Canron [1967] OLRB Rep. Sept.750.) As well, the actualization of the build-up must be relatively certain. It should not, in other words, be dependent on market factors well beyond the control of the employer. In Travelaire Trailer Mfg. Ltd., [1970] OLRB Rep. Nov. 829, for example, the Board ruled that the planned build-up was not sufficiently firm to delay the vote because the build-up was almost totally dependent on the unstable market conditions in which the respondent’s industry was engaged. The Board made a similar ruling in Cameron Packaging Inc. (supra), where the projected build-up was dependent on the next year’s market and competitive conditions. Secondly, the planned build-up must take place within a reasonable period of time. While each case must be determined on its own facts, we note that in Vulcan Equipment [1974] OLRB Rep. May 285, a build-up over a period of seven months was allowed; in United Asbestos, [1974] OLRB Rep. April 234, a build-up over a period of some sixteen months was allowed. In Wix Corporation Limited, [1975] OLRB Rep. Aug. 637, on the other hand, a build-up spanning between one and five years was not allowed. Thirdly, 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 less than fifty per cent of the expected total are the employed, it is normally felt that the group is not sufficiently representative and that the application is therefore premature. (See B.F. Goodrich Canada Limited, [1970] OLRB Rep. Sept. 655; Cornwall Spinners, [1975] OLRB Rep. Sept. 693.) Fourthly, 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. (See Ford Motor Co., [1967] OLRB Rep. Dec. 858, Cornwall Spinners, [supra] and Sparton Tool & Mould Ltd., [1975] OLRB Rep. June 469.)

This approach has been adopted in numerous cases.

In Custom Leather Products Limited [1981] OLRB Rep August 1128 the Board summarized the test as follows (at paragraph 14):

The criteria referred to in Lepper, supra, which have been used by the Board to guide it in balancing the competing interests of present and future employees indicate what conditions must be met before the Board will defer determining the right of the present employees to be represented in collective bargaining. These conditions can be summarized as follows:

(a) the present employees are not representative of the work force to be employed by the end of the build-up period;

(b) the planned build-up is scheduled to take place within a reasonable time span;

Each criterion does not stand alone, it must be taken into account together with the others. Generally, each case must be decided on its own facts. Usually the Board considers that there is a representative work force at the time of the application when it is fifty per cent of the projected total employment and that the employees are engaged in a representative number of the classifications required to do the bargaining unit work which will exist at the end of the build-up period. Many of the Board’s reported cases indicated that a build-up period of up to six or seven months is acceptable. It would appear that the longest build-up period in a reported decision would be sixteen months in the United Asbestos decision supra. In assessing the degree of certainty that the build-up plan and schedule will be met, as indicated by the cases cited in Lepper, supra, the plan should not depend upon factors which are beyond the control of the employer, such as future market conditions. The Board’s decision in Valdi Inc., [1979] OLRB Rep. June 593 suggests that where the build-up is dependent on such uncertain conditions as marketing objectives, there needs to be evidence from which the Board can infer a real likelihood of the build-up being realized, such as ‘. . . an overt commitment of capital and/or assumption of legal obligations . . .’ ”.

In Custom Leather Products Limited there was no certainty that the employer would be successful in obtaining a firm contract from General Motors to manufacture vinyl roofs. The employer was not willing to commit to capital investment until it knew that it would have a purchase order, which would only come after a successful trial run. The Board found that there were insufficient grounds to support a build-up argument.
In Valdi Inc. [1979] OLRB Rep. June 593, the Board distinguished between a “marketing objective” and “proof of an overt commitment of capital and/or assumption of legal obligations which if followed through would inevitably result in implementing that marketing objective.” The Board looked for evidence of a “real likelihood” of a build-up within a reasonable time, and was not willing to defer the vote on the basis of “remote contingencies not completely within the control of the respondent”. In Travelaire Trailer Mfg. Ltd. [1970] OLRB Rep. Nov. 829, the Board rejected the employer’s build-up argument because the projected increase in work force depended on production orders being obtained in “rather discouraging and far from stable market conditions”. The Board ruled that the respondent had failed to satisfy it that there was “a definite planned build-up in the work force of the respondent which was reasonably likely to occur.”
In F.B.I. Foods Ltd. [1983] OLRB Rep. Dec. 2027, the employer had invested 4 million dollars in new production equipment. Based on its sales projections, the employer hoped to run the equipment on a three-shift basis, which would require the hiring of two additional quality control technicians. However, the Board stated (at paragraph 4):

[T]he company’s witnesses had to concede that whether the equipment will in fact be fully utilized is dependent on how sales in fact prove out, and the Board notes in that regard that the company’s projections are for a product and a method of packaging which, from this company’s point of view, are totally untried, and have not yet even reached the store shelves. It is simply not possible to say on the evidence that the test required by the Board in its jurisprudence over the years for the degree of certainty and company control has been met. See e.g. Custom Leather Products Limited , [1981] OLRB Rep. Aug.1128 The refusal on the part of the Board to entertain an application for certification in the normal way is discretionary, and the Board in the present circumstances does not find a justification to exercise that extraordinary discretion to defer.” (emphasis added)

In United Parcel Service Canada Ltd. [1978] OLRB Rep. Feb. 172, the company intended to expand operations in Ontario and wanted the certification adjourned until its expansion had occurred. This expansion depended upon obtaining the necessary provincial inter-city trucking licence and then taking over the projected market share. The Board articulated the build-up issue and the applicable test as follows (at paragraphs 9 and 10):

The issue is whether this application for certification should be adjourned until a more representative work force is in place. In other words, should the Board delay the access of an existing group of employees to collective bargaining in order to preserve the right of an indeterminate group of future employees to participate in the selection of their collective bargaining agent?

The Board will do that in any application for certification where it is established that the employer has a definite and firm plan to increase its work force within a reasonable period of time, and that there is a real likelihood that the build-up will take place. In that circumstance the employees at work at the time of the application will in all likelihood not be representative of the work force that will in fact be employed. But it must be shown to the satisfaction of the Board that the build-up of the work force amounts to more than a mere possibility. The desire of the existing employees to exercise their right to immediate collective bargaining is not to be subordinated to mere chance. Moreover, if it appears that the build-up depends on factors that are beyond the control of the employer, so that the certainty of build-up is to that extent still more remote, the Board may decline to postpone consideration of the application before it.”

The Pet Pak Containers [1997] OLRB Rep. May/June 520, the Board described the test as follows (at paragraph 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 soon 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 proximity of their hire. If their employment is virtually certain and it will occur soon, then the Board 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? (emphasis added)

Park Plaza Hospitality L.P. [1998] OLRB Rep. September/October 863 the applied Pet Pak Containers (supra) and found that it was “relatively certain” that the build-up would occur in a work force consisting of mini-bar attendants. The employer had recently undertaken extensive renovations at its Park Plaza hotel and could predict with relative certainty, based on industry projections, the room occupancy rates at the end of the build-up period, and thus the need for additional mini-bar attendants once the hotel was fully operational.
These decisions show a requirement for a significant degree of certainty that the build-up will occur, whether it is expressed as “reasonable”, “virtual” or “relative” certainty.

How does the build-up principle apply to the facts?

In the instant application, even when the “traditional” test is applied, the responding party is unable to establish build-up.
Parisco was required to show that it had a firm plan to expand its operations and that the expansion was reasonably certain to result in a sufficient increase in the number of employees. There was no issue pertaining to the job classifications of the incoming employees.
As of the date of application, Parisco had begun to implement a firm plan to expand production capacity by investing $10 million in a new plant that will contain four lines. It is expanding into new waffle-based products. It has bought equipment and signed a 10-year lease Plant 2, which is additional to Plant 1, not a replacement.
In the absence of evidence to the contrary, the Board accepted that the new lines will be physically installed and capable of operation by the end of February, 2000 and that the nature and extent of problems encountered in commissioning Line 4 were unlikely to occur with the other three lines. Although some delays may be faced in transportation, customs processing and commissioning of Lines 3, 5, and 6, Mr. Dobie testified at length about the precautions taken by the company not to have a repeat of the Line 4 problems. The key issue for the Board is whether the physical expansion is virtually certain to result in an increase in staff sufficient to establish “build-up”.
Counsel for the union placed significant emphasis on whether the company’s sales of the new products will justify the hiring of staff to operate Lines 3, 5 and 6 in Plant 2. Counsel asked the Board to note the absence of firm sales contracts, the fluctuation in orders from retailers, the fluctuation in the number of staff and “hours worked”, the seasonal nature of chocolate sales, the possibility of competition, the relative inactivity of Line 4 (chocolate waffles), and the fact that no biscotti, chunks or jumbo chunks had been produced. Counsel noted that the net increase in staff after Line 4 was installed was only 25 employees, less than the company projected.
Counsel for Parisco emphasized (a) that the company has already made a considerable investment and is not merely hoping to expand; (b) it has firm plans to hire staff to be ready when the new lines are installed; (c) the projected staff increase (181) is 30 % in excess of what the company needs to show “build-up”, (d) 24 of the 181 projected positions are for existing plant vacancies; (d) there are contingency plans to make the plain waffle if need be; (e) the company has a proven record of success and no significant competition; and (f) the number of employees is more relevant than the “hours worked”. Counsel urged that the company has a firm business plan that is likely to succeed.
No evidence was produced to show that sales of the chocolate products will be “seasonal”. Mr. Dobie testified that chocolate products are launched at certain times of year. It is true that certain times of the year such as Valentine’s Day, Easter and Christmas, are more associated with chocolate than other times. However, the Board is not prepared to speculate about the extent to which sales of the chocolate-based products will fluctuate during the year, and does not accept the notion that an increase in employee numbers in this case would be “seasonal” in nature.
However, it is also true that, as recently as 1999, the “hours worked” and the number of staff fluctuated from pay period to pay period. To some extent this fluctuation reflects the nature of the waffle business, where the product is perishable and where retailers are not committed to long-term contracts. The evidence shows that some retailers may go for weeks or months without placing orders, while others order with more regularity.
The documents filed by the responding party show that an increase in the number of hours does not necessarily mean that more employees are hired: they simply work longer hours. However, it is important to consider the overall increase in numbers of employees. In 1996 and 1997 the number of employees was relatively stable, with slightly higher numbers in 1997. In 1998, the figures show a rapid increase. For example, in the first 1998 pay period there were 12 employees. By the 13th pay period, this had grown to 62 employees and by the 26th pay period, there were 95 employees. Over 1998, the number of hours worked also gradually increased. 1999 shows greater fluctuation both in “hours worked” and in the number of employees. For example, in the 8th pay period, 111 employees worked 8,728.25 hours; in the 14th pay period, 110 employees worked 6,102.75 hours; in the 15th pay period in 1999, there were 137 employees, and 9,483.50 hours were worked. At some times, staff work overtime, and, at others, they work reduced hours.
The number of employees in the bargaining unit, as listed in Parisco’s response is 114.
As of September, 1999, the company’s projected staff increase for the build-up period was 181 employees, of which 24 were existing operational vacancies in Plants 1 and 2. To operate two shifts on Lines 3, 5, and 6, the following staff are required: Line 5 (waffles, biscotti and jumbo chunks) will require 4 mixers, 18 bakers, 10 operators and 24 packagers; Line 6 (waffles and chocolate chunks) will require 4 mixers, 24 bakers, 4 operators and 10 packagers; Line 3 (chocolate waffles) will require 4 mixers, 24 bakers, 4 operators and 14 packagers. Support functions will require 2 maintenance workers, 1 shipper and 10 cleaners.
The Board accepts that Parisco would not lease a new plant and install new production lines if it did not intend also to proceed with the hiring of staff. The issue is how many employees the company would be reasonably certain to hire between the date of the application and the end of February 2000.
The company might reasonably have been expected to hire enough staff to be able to produce its new products in February 2000. Assuming that demand for the products on each new line is relatively uniform, one shift on the three lines would require approximately 72 persons, plus roughly 7 support staff (one maintenance, 5 cleaners and 1 shipper). Therefore, if one includes hiring to fill the 24 existing vacancies, it was conceivable that the company would hire approximately 103 staff by February 2000. Using the aforementioned 50% guideline as a rough benchmark, this increase would be insufficient to establish build-up, even allowing for slight variation in the numbers.
However, in the Board’s view it was not reasonably certain or even likely, that, in the short term, the company would hire any staff beyond what is required to run one shift and to fill the existing vacancies. Quite simply, until one shift is working, why would any further hiring take place? The fact that the company designed the lines to produce plain waffles in case the new products are not successful, indicates that it recognizes that sales are uncertain at this point in the venture; it knows there is a risk.
For the foregoing reasons, the Board found that there was not a reasonable certainty of a sufficient increase in the number of staff by the end of February 2000 to establish build-up.

“Anthony Brown”

for the Board

DECISION OF BOARD MEMBER R. R. MONTAGUE: July 26, 2000

I agree with the result in this case but not with the reasoning. I would have found that the Board’s old “build-up” policy does not apply under Bill 7 and that the Board has no business relying on that policy to defeat the “quick vote” mechanism under the Labour Relations Act, 1995 (the “Act”).
As is well known, Bill 7 introduced the representation vote as the exclusive method of testing employee wishes under the Act. But as the Chair of the Board noted in the City of Toronto case (at p. 566):

“The new system makes it very clear that time is of the essence: It is not just a ‘vote in every case’; the statute contemplates a ‘quick’ vote in every case’. The 5-day time frame mentioned in the statute is the most critical characteristic of the new certification scheme...[The 5-day target] is a target which we think the Board is required to meet if it can.”

I agree. The 5-day target is a target which the Board is required to meet if it can. It follows that a Board policy which routinely postpones conducting representation votes for up to six months is entirely inconsistent with the “essence” of the statutory scheme. That policy should be abandoned.
There is absolutely no statutory support for perpetuating the old “build-up’ policy under the new Act. The opening words of section 8(5) of the Act (“unless the Board directs otherwise”) give the Board the power to depart from a “quick vote” in a particular case, where the Board finds itself unable to meet the statutory target. It does not, in my view, support a policy of extensive delay in the resolution of time-sensitive certification matters.
The Board explained in the City of Toronto case that when faced with alternative readings of the statute, it is of real significance whether the options proposed: will facilitate or inhibit employee choice with respect to collective bargaining; will encourage or discourage litigation; will aggravate or moderate adversarial behaviour that can poison the work environment regardless of the outcome of the case; will expedite or retard the resolution of time-sensitive certification questions; will complicate or simplify the regulation process; will minimize or increase the potential for improper employer interference; and so on.
It seems to me that by its insistence on following its old “build-up” policy despite the very different statutory context, the Board has chosen a path calculated to inhibit employee choice, to encourage litigation, to retard the certification process, to increase the costs to the parties and to the public and to increase the potential for improper employer interference, and, in this case, delay the certification of the applicant by three and a half months.
The Board has not gone far down this road under Bill 7. It is not too late to reverse course. The Board should do so without delay.

“R. R. Montague”