[1988] OLRB Rep. September 880
0804-88-R Brewery, Malt & Soft Drink Workers, Local 304, Applicant v. Cooper Canada Limited, Respondent v. Glass, Molders, Pottery, Plastics & Allied Workers International Union, Local 366, Intervener
BEFORE: Patricia Hughes, Vice-Chair, and Board Members W. Gibson and J. Redshaw.
DECISION OF THE BOARD; September 14, 1988
By decision dated August 4, 1988, the Board directed the taking of a pre-hearing representation vote in this application for certification and further directed that the ballot box remain sealed until further order of the Board. The vote was taken on August 23, 1988.
By letter dated September 12, 1988, the applicant sought leave of the Board to withdraw its application. The intervener, by letter dated September 12, 1988, consented to the withdrawal and further stated that it "join[ed] with the Applicant in requesting the Board to grant the applicant leave to withdraw. The respondent has not indicated its position on the matter.
A group of employees, however, wrote to the Board on September 12, 1988, requesting the Board to determine the application on its merits. The letter reads as follows:
We have been informed that the Brewers Local 304 are going to ask the Board for permission to withdraw their application for certification for Cooper Canada Ltd., Board File #0804-88-R.
We are employees of Cooper Canada and speak for the vast majority of the employees. We strongly request that you not grant the Applicant's request for withdrawal and instead deal with the merits, and certify the Union chosen by the majority of the Cooper employees.
On August 23, 1988, employees of Cooper voted in a secret ballot vote the Isic] was ordered and conducted by the Board, and we made a choice as to which Union we wanted to represent us.
We understand that because of political reasons having to do with the internal rules of the Canadian Labour Congress, the Applicant has been forced against its wishes to withdraw its Application.
We think that we have rights too and that the policy of the Labour Relations Act is that the majority of the employees have the right to choose. We have voted. We have chosen. We urge the Board to go ahead with the hearing on September 22nd, 1988, open the ballot boxes, and certify whichever Union is chosen by the majority.
Pursuant to Rule 70(2) of the Board's Rules of Practice the employees who are the subject of or have an interest in a pre-hearing representation vote application have an opportunity to make representations "in connection with the application or as to any matter relating to the representation vote or the accuracy of the report of the Returning Officer or the conclusions the Board should reach in view of the report". Where the Board has directed that the ballot box be sealed and then directed the vote be counted, the employees may make representations with respect to "the accuracy of the report of the Returning Officer on the counting of the ballots or the conclusions the Board should reach in view of the report", in accordance with Rule 70(3).
It is one thing to participate in a certification application, however, and another to influence whether the application is extant. Under the Labour Relations Act ("the Act"), only trade unions may apply for certification as bargaining agent of the employees in a particular unit (in a pre-hearing vote context, where the status of the applicant is in issue, the determination of whether the applicant is a trade union within the meaning of clause l(l)(p) of the Act will likely be made after the vote has been taken, but before it has been counted; however, that is not an issue in this case). The employees may not apply for certification, however, even though they may participate in a certification proceeding before the Board. The scheme of the Act (with the exception of applications under section 8 which is not relevant here) is, as the group of employees state, that "the majority of the employees have the right to choose". Thus while the Board may order a vote where the union applicant has documentary evidence that fewer than half the relevant employees are its members, it will not certify a union unless more than half the employees vote in favour of the applicant or more than fifty-five per cent of the employees in the bargaining unit are members of the union.
The Board will not, in other words, certify a union against the expressed will of the majority (in this respect, it should be noted that the theory underlying section 8 is that the will of the majority cannot be determined because of the conduct of the employer). But the Board cannot compel a union to make an application for certification should it not desire to do so, no matter how many employees want the union to do so. No more can the Board, then, insist that a union pursue an application it no longer wishes to pursue for whatever reason (and we note the applicant did not state its reason for wanting to withdraw) for the sole reason that the employees affected by the application wish it to continue and be determined on its merits.
For those reasons we are not prepared to accede to the request by the employees that we count the vote and certify the union chosen by the majority.
With respect to the applicant's request to withdraw its application, we note that the employer has not consented to the request and that the request has come not only after a Labour Relations Officer has met with the parties, but after the vote has been directed and taken. Accordingly, the request is denied.
This application is therefore dismissed.
The Board will not entertain an application for certification by the applicant with respect to any of the employees of the respondent in the voting constituency within the period of six months from the date hereof.
The Registrar will destroy the ballots cast in the pre-hearing 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.
After this decision had been made, but prior to its release, a letter dated September 14, 1988, from the solicitor for James Sheridan, one of the employees who had signed the letter of September 12th referred to in paragraph 3 above, was received by the Board. Nothing in that letter leads us to dispose of this matter other than as set out above. The letter in addition to submissions with respect to the applicant's request to withdraw its application, also contained a request for reconsideration of the Board's decision in Board File No. 0567-88-R granting Mr. Sheridan leave to withdraw an application for decertification which he had filed. This panel did not determine that matter and therefore cannot reconsider it.