National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada) v. Techform Products Limited
File No.: 0053-01-R Date: 2001-05-11 Ontario Labour Relations Board
Before: Anthony Brown, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
Decision of the Board
1This is an application for certification.
2By decision dated April 9, 2001, the Board ordered a representation vote to be held on April 11, 2001. The responding party gave notice under section 8.1 disputing the applicant’s estimate of the number of the employees in the applicant’s proposed bargaining unit.
3The applicant advised the Board by letter dated April 9, 2001, that it wished to “withdraw” its application under section 8.1(5)[7] of the Act, although the applicant’s letter also requests a “dismissal” under that provision. The applicant admits, having seen the employer’s list of employees, that it did not provide evidence that 40 per cent or more of the individuals in the proposed bargaining unit appear to be members of the union at the time the application was filed.
4The vote was cancelled by the Registrar after receiving the applicant’s letter of April 9, 2001.
5By letter dated April 9, 2001, the responding party employer objected to the withdrawal of the application except on the following terms: a one year bar against a re-application for certification and an order for payment of reasonable costs and expenses to the employer. It submits that it is entitled to a period of repose from the applicant’s efforts to organize its workplace. It alleges that the instant application was filed for the purpose of obtaining a list of the responding party’s employees in order for the applicant to continue its organizing drive.
6The responding party urges that the Board should not grant withdrawals under section 7, without a bar, in a routine manner without full consideration of relevant factors. It urges that the parties should be required to make submissions on the “bar” issue and that a hearing or consultation may then be necessary.
7The applicant filed a letter dated April 10, 2001 and reiterated its desire to “withdraw” the application under section 8.1(5)[7], without a bar as provided for in section 10(4). It states that it acted in good faith based on the most accurate information available at the time. It submits that the Act does not provide for the awarding of costs associated with responding to an application under the Act.
8The responding party filed a letter also dated April 10, 2001, reiterating its concerns about the abuse of process that it asserts arises from unconditional withdrawals and repeating its claim for reasonable costs under section 7(8).
9Although the applicant refers to its request as a “withdrawal” and as a “dismissal”, it is clear from the statutory reference provided by the applicant, that the applicant in fact seeks a dismissal under section 8.1(5)[7].
10Subsection 8.1(5) states as follows:
8.1 (5) The following apply if the Board receives a notice under subsection (1):
The Board shall not certify the trade union as the bargaining agent or dismiss the application for certification except as allowed under paragraph 2 or as required under paragraph 8.
If the Board did not direct that the ballot boxes be sealed, the Board may dismiss the application for certification.
Unless the Board dismisses the application as allowed under paragraph 2, the Board shall determine whether the description of the bargaining unit included in the application for certification could be appropriate for collective bargaining. The determination shall be based only upon that description.
If the Board determines that the description of the bargaining unit included in the application for certification could be appropriate for collective bargaining, the Board shall determine the number of individuals in the unit as described in the application.
If the Board determines that the description of the bargaining unit included in the application for certification could not be appropriate for collective bargaining,
i. the Board shall determine, under section 9, the unit of employees that is appropriate for collective bargaining, and
ii. the Board shall either certify the trade union or dismiss the application for certification.
After the Board's determination of the number of individuals in the unit under paragraph 4 or 5, the Board shall determine the percentage of the individuals in the bargaining unit who appear to be members of the union at the time the application for certification was filed, based upon the Board's determination under paragraph 4 or 5 and the information provided under subsection 7(13).
If the percentage determined under paragraph 6 is less than 40 per cent, the Board shall dismiss the application for certification and, if the ballot boxes were sealed, the Board shall direct that the ballots be destroyed without being counted.
If the percentage determined under paragraph 6 is 40 per cent or more,
i. if the ballot boxes were sealed, the Board shall direct that the ballot boxes be opened and the ballots counted, subject to any direction the Board has made under subsection 8(7), and
ii. the Board shall either certify the trade union or dismiss the application for certification.
11In our view, the application should be dismissed under section 8.1(5)[7]. There is no disagreement between the parties that the applicant’s proposed bargaining unit “could be” appropriate. There is also no disagreement that the applicant failed to provide evidence that 40 per cent or more of the individuals in the applicant’s proposed bargaining unit appear to be members of the applicant at the time the application was made. Therefore, the conditions leading to a dismissal under section 8.1(5)[7] are present and undisputed.
12The application is dismissed under section 8.1(5)[7]. Section 10(4) applies.
“Anthony Brown”
for the Board