[1996] OLRB Rep. May/June 480
3308-95-R; 3395-95-R United Steelworkers of America, Applicant v. Sara Lee Bakery Canada, Responding Party
BEFORE: M. Kaye Joachim, Vice-Chair, and Board Members J. A. Ronson and P. R. Seville.
APPERANCES: Mark Rowlinson for the applicant; Bonnie Oldham and Jason Hanson for the responding party.
DECISION OF THE BOARD; May 14, 1996
1This is an application for reconsideration in Board File No. 3308-95-R and an application for certification in Board File No. 3395-95-R. which were heard together on January 16, 1996. At the conclusion of the hearing, the Board made the following bottom-line oral rulings:
i) The Board declines to reconsider its decision not to impose a bar on the applicant following withdrawal of its certification application in Board File No. 3308-95-R; accordingly, there is no bar to the applicant's filing of the second application for certification in Board File No. 3395-95-R.
ii) A certificate will issue to the applicant in Board File No. 3395-95-R.
2These are the reasons for our decision.
3On December 4, 1995 the applicant (also referred to as the "union") filed an application for certification of the employees of the responding employer (Board File No. 3308-95-R). The bargaining unit was described in the application as follows:
all employees of the responding party in the City of Brampton save and except managers, persons above the rank of manager.
4The union's application indicated that there were six employees in the described bargaining unit.
5On December 6, 1995, the responding party (also referred to as the "employer") filed its response to the application, agreeing to the union's bargaining unit description, but noting that there were nineteen individuals in that unit. The responding party noted that there were seven employees in its outlet store and twelve office employees. The employer asserted that the applicant did not have the requisite support of forty per cent of the employees in the bargaining unit to obtain a vote and asked that the application be dismissed.
6By letter dated December 7, 1995, the union requested leave to amend its application to narrow the bargaining unit description to the six individuals identified in its application. The amended bargaining unit description was as follows:
All employees of the Responding Party in the City of Brampton save and except managers, persons above the rank of manager, office and clerical staff. (emphasis added)
7The union indicated that the reason it had applied for the all employee unit was because of its mistaken belief that there were only six employees employed by the responding employer. The union believed that the other individuals were employed by a different employer. It was only upon receipt of the employer's response that the union learned that there were nineteen employees employed by the responding employer.
8The employer opposed the union's request to amend its application and submitted that the original application should be dismissed. In the alternative, the request to amend should be treated as a request to withdraw the application, in which case the employer requested that the applicant be barred for one year from reapplying.
9The union responded reiterating its request to amend its application, or in the alternative, requesting leave to withdraw, without a bar.
10By decision dated December 9, 1995, the Board granted the applicant leave to withdraw its application, without imposing a bar. The responding party filed this request for reconsideration, reiterating its request that the Board impose a bar.
11On December 12, 1995, the union filed a second application for certification (Board File No. 3395-95-R) in respect of some of the employees of the responding party. The bargaining unit was described in the application as follows:
all employees of the Responding Party employed at its retail outlet store in the City of Brampton, save and except Managers and persons above the rank of Manager.
For the purposes of clarity, the above-described unit does not include employees covered by a subsisting collective agreement, professional and technical employees, engineers, draftsmen, office and sales staff.
12By decision dated December 18, 1995, a different panel of the Board directed a representation vote in Board File No. 3395-95-R, which was held on December 19, 1995.
13The Board held a hearing on January 16, 1995, for the purpose of hearing representations on the reconsideration request. In light of the extremely tight time frames involved in certification applications, and the fact that neither party had the opportunity during that process to make full submissions on the issue of the bar, the Board has not applied its usual standard on reconsideration applications. Rather, the Board has considered the parties' submissions on the issue of the bar on the merits.
Board File No. 3308-95-R
Employer's arguments
14The employer argued that section 7(9) of the Labour Relations Act, 1995 ("the Act") provides for a mandatory lapse of time between the withdrawal of the application and the submission of a new application for certification. Section 7(9) states:
7(9) If the trade union withdraws the application before a representation vote is taken, the Board may refuse to consider another application for certification by the trade union as the bargaining agent of the employees in the proposed bargaining unit until one year or such shorter period as the Board considers appropriate has elapsed after the application is withdrawn.
15The employer argued that the only discretion provided to the Board in section 7(9) is to shorten the bar from the one year standard, should the Board consider it appropriate. The employer argued that the Board has no authority to waive the bar in its entirety.
16The employer noted that automatic one year bars are imposed in section 7(10), 10(3) and 160(3), in order to ensure consistency throughout the Act. The employer argued that it would be contrary to the intention of the Act if the union could avoid the imposition of a bar by requesting leave to withdraw.
17The employer noted that under section l05(2)(i) of the [Labour Relations Act, ](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l2/latest/rso