Cheaper Chip Inc. (the “Company”) is the manufacturer and the exclusive distributor of Cheaper Chip computer chips in Canada. Its head office is located in Ottawa, Ontario with regional offices and distribution centres in Vancouver and Halifax. All of the Company’s chips are produced at two manufacturing plants in Ontario. One plant is located in Burlington and the other is in Kitchener. In each plant, there are 150 full-time production workers, 10 supervisors (who supervise and discipline workers), 15 lead hands (who direct and coordinate the work of the production workers), 15 engineers and electricians, 5 human resources workers, and 10 part-time production workers (family relatives of the other workers who get to help production work during college/university breaks or in between jobs). That is, each location has a total of 205 workers.
Jamil (a full-time production worker at Kitchener) and his good friend, Samantha (a lead hand at Kitchener) are concerned about the health and safety conditions at their plant after Patrick (Jamil’s nephew), who worked as a part-timer at the Burlington facility, was severely injured in December 2019. When the management quickly dismissed their concerns, Jamil and Samantha turned to Unifor (the “Union”) in an attempt to organize their workplace. On February 1, 2020 Unifor Local 111 filed an application for certification as the exclusive bargaining agent of “all employees of Cheaper Chip Inc. in Kitchener, Ontario, save and except supervisors, engineers, and electricians”. The Union estimated that there were 180 workers in the bargaining unit and provided the Ontario Labour Relations Board (the “Board”) with signed membership cards on behalf of 80 workers in its proposed bargaining unit.
On February 3, 2020, the Company filed its response stating that the correct bargaining unit description is actually “all Cheaper Chip employees in Ontario, save and except the head office in Toronto, supervisors, engineers and electricians, human resources employees, lead hands, and part-timers”. The Company explained that: (1) employees in both locations (Kitchener & Burlington) should be organized together; (2) lead hands should be excluded because “supervisors sometimes consult them prior to making promotion decisions”; (3) human resources employees should be excluded because “they all may potentially access annual payroll reports using their authorization password even if not all of them work on salaries”; and (4) “it does not make any sense to include part-timers in the bargaining unit because they come on go and retention rates are very low”. The Company concluded that there are 300 employees in its proposed bargaining unit description.
On the same day (February 3, 2020) the Company sent out an email to all of its employees to let them know that the Company “will appoint a new health and safety specialist and commence a serious consultation process with the workers”. The email also announced “a one-time bonus of $1,000 to those who would submit rigorous proposals on how the Company and its workers can tackle this health and safety concern without resorting to external greedy parties, such as Unifor, who can only make things worse for us and everyone knows what this means in an unstable economy”.
On February 5, 2020, the Board ordered that a certification vote would be held on February 10, 2029. A hearing was scheduled for March 22, 2020 to determine the appropriate bargaining unit. On February 10, 2020, the vote is held. Although the votes are not counted yet, as the Board had to deliberate on the appropriate bargaining unit, Jamil is pretty certain the Union will lose the vote. He therefore instructs all lead hands in both plants to direct the work of others only when they are specifically asked to do so by the supervisors; and otherwise just sit and read a newspaper. The lead hands do as told, and when the management finds out, all lead hands are suspended for 3 days.
If the Union loses the vote, what complaint can the Union file with the Board? What will the Union argue? What do you think the Board will decide? What remedies it may award?