United Steelworkers of America v. Graphic Controls Canada Limited
0843-01-R United Steelworkers of America, Applicant v. Graphic Controls Canada Limited, Responding Party.
BEFORE: Laura Trachuk, Vice-Chair.
DECISION OF THE BOARD; July 19, 2001
1This is an application for certification which was withdrawn prior to the holding of a representation vote. The responding party (referred to as the “company”) asked the Board to impose a bar under section 7(9) of the Labour Relations Act, 1995 (“the Act”) which would prohibit the applicant (referred to as the “union”) from applying for certification for one year. In a bottom line decision dated June 27, 2001 the Board declined to impose a bar upon the applicant. These are the reasons for that decision.
Facts
2The union applied for certification on June 15, 2001. In the application it estimated that there were 208 employees in the bargaining unit. It indicated that it was providing membership evidence on behalf of more than 40 per cent of them. The company initially responded by way of a letter. It claimed that there were more than 300 people in the bargaining unit and that the union had underestimated by more than 50 per cent. The company advised that if the union withdrew its application before it had to file its response it would not seek the imposition of a bar. The company claimed that the application was a “mere reconnaissance” and that the union had no intention of proceeding further. The union responded that it had no intention of withdrawing the application until it had the opportunity to review the response. It claimed that it was not required to accept the company’s word on the number of employees in the bargaining unit. It said it was entitled to review the list of employees which the company is required to submit with its response under the Board’s rules. The union advised that it would then make an informed decision as to whether to withdraw the application. It denied that it should be subject to a bar in those circumstances. The company filed its response on June 19, 2001. The union asked to withdraw the application on June 20. The responding party subsequently requested that the Board impose a bar on the basis that the application had been a “mere reconnoitre” designed to acquire information about the employer and its employees. The union denied that its application had been an abuse of the Board’s process and relied upon the Board’s jurisprudence with respect to the withdrawal of certification applications before a vote.
Decision
3The Board’s practice has been to permit a trade union to withdraw a certification application prior to a vote without imposing a bar except in rare circumstances in which multiple applications have been made. The Board knows that a trade union will often not know the number of employees in a bargaining unit, particularly when they number in the hundreds. The Board has not been concerned that a trade union, in these circumstances, would have received information about the employer and the employees from the response. The union is entitled to review the employer’s claim with respect to the number of employees in the bargaining unit and the list is the only way to do that. In Sara Lee Bakery Canada, [1996] OLRB Rep. May/June 480 the Board said at paragraph 46:
It may often be the case that the applicant trade union will discover information from the employer’s response that will cause it to withdraw its application. A trade union’ ability to obtain accurate information about the identity of the employer, the configuration of the workplace, the number of employees, and other matters which may be relevant to the certification application, is limited. The employer’s response to the certification application may provide new information to the applicant to cause it to reconsider the advisability of pursuing the application. Although an employer may suffer inconvenience in responding to a certification application which is subsequently withdrawn, the employer suffers no prejudice in the withdrawal of a certification application prior to the taking of a vote, and the subsequent refilling of a new application. We recognize that the subsequent application may be based upon information the union has gained from the first application but we see nothing improper in this.
4Under the current provisions of the Act, there is even more reason not to impose a bar in these circumstances. If the union had not withdrawn its application it would, presumably, have been dismissed pursuant to section 8.1 of the Act. In those circumstances, no bar would have been imposed. However, the Board would have been put to the administrative expense of a holding a representation vote and the parties would have been subject to the disruption. It is difficult to see why a bar should be imposed because the union avoided the necessity of a vote. The Board (differently constituted) noted this factor in Canadian Opera Company, [1999] OLRB Rep. September/October 804.
5For all of the above reasons the Board declined to order a bar in the circumstances of this case.
“Laura Trachuk”
for the Board