Bakery, Confectionery and Tobacco Workers International Union, Local, 264 v. Peek Frean Division of Christie Brown & Company
3476-99-R Bakery, Confectionery and Tobacco Workers International Union, Local, 264, Applicant v. Peek Frean Division of Christie Brown & Company, Responding Party.
BEFORE: Anthony Brown, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
DECISION ANTHONY BROWN, VICE-CHAIR AND BOARD MEMBER R. R. MONTAGUE; July 4, 2000
1This is an application for certification.
2By letter to the Board dated March 3, 2000, the applicant indicated that it wishes to withdraw the application. By letter dated March 6, 2000, the responding party requested that the Board impose a bar against a further application for certification for one year by the applicant in respect of the same proposed bargaining unit. The responding party states that a previous application for certification for the bargaining unit was made by the applicant approximately eight months prior to the instant application. It states that the applicant is abusing the process of the Board by making repeated applications for certification. The proposed unit consists of approximately 564 employees, few of whom were in dispute between the parties.
3No reply was filed by the applicant in response to the responding party’s submissions.
4Subsection 7(9) of the Labour Relations Act, 1995 (the "Act") gives the Board the discretion to refuse to consider another application for certification for up to one year after the application is withdrawn. It states:
"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unit until one year or such shorter period as the Board considers appropriate has elapsed after the application is withdrawn."
5In Sara Lee Bakery Canada [1996] OLRB Rep. May/June 480, the Board considered the exercise of its discretion under subsection 7(9), including the issue of whether jurisprudence that arose prior to the coming into force of the Labour Relations Act, 1995 is still helpful in interpreting and applying the subsection. After reviewing the relevant decisions, the Board concluded:
The legislative scheme of the Act with respect to the imposition of a bar in certification application cases does not deviate significantly from the Board’s approach to that issue under the previous Act. In the past, the Board had a discretion to decide whether or not to impose a bar and the length of bar, following an unsuccessful certification application. The Board’s approach in the past was twofold. The Board generally imposed a bar following an unsuccessful representation vote. This approach has now been codified in section 10(3) of the Act. In keeping with that approach, the Board also imposed a bar where the trade union sought to withdraw its application for the purpose of avoiding an unfavourable result at the vote. In those cases, the certification process had advanced sufficiently so that the Board was satisfied that the wishes of the employees were clear. The focus of the Board’s inquiry was whether the wishes of the employees to be represented by the applicant trade union had been clearly tested. Section 7(10) may be seen as a codification of that approach. Where the representation vote has been taken, a withdrawal by the applicant will still trigger the one year bar. Finally, in the past, the Board has imposed a bar where the applicant trade union made repeated, unsuccessful certification applications in a short period of time. Again, the focus of the Board was on the wishes of the employees, which had been tested with some degree of certainty through the mechanism of repeated, unsuccessful applications. The purpose of the bar, the Board has stated, is to foster orderly labour relations by means of a period of repose, after the wishes of the employees have been tested. (See Amarcord Carpenters Ltd., and R.J.R. MacDonald Inc., supra).
The Board’s jurisprudence is still useful in guiding the Board in the exercise of the discretion of section 7(9) of the Act. In our view, the Act contemplates that the focus of our inquiry should be on whether the wishes of the employees on the issue of representation by the applicant have been tested with sufficient certainty so as to give rise to the need for a period of repose on that issue. The Board must also be satisfied that the union is not abusing the Board process by, for example, making repeated applications.
6In the instant application, the wishes of the employees have not been tested. Furthermore, the applicant has not made repeated applications within a short period of time. It has made two applications, within approximately eight months. The Board recognizes that the responding party has been put to some inconvenience by the efforts of the applicant to organize its employees. However, up to this point, we do not consider that the Board’s process has been abused by the applicant.
7The Board hereby grants leave to withdraw the application for certification. The Board declines to impose a bar on the applicant pursuant to subsection 7(9) of the Act.
8Decision of J. A. Ronson, Board Member to follow.
"Anthony Brown"
for the majority