Sean Kelly

The moving party brought a motion for leave to appeal the decisions of the lower court judge.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the responding party.

The applicant union sought certification for a bargaining unit of employees in the respondent's Leaf Division.

The parties agreed on most of the bargaining unit description but disputed whether seasonal employees should be included.

The respondent argued that the application was made out of season and seasonal employees should be excluded, relying on exceptions for canning and tobacco harvesting.

The Board found that the respondent's operations involved processing, not harvesting, and that the application was made in-season.

The Board concluded that seasonal employees shared a community of interest with permanent employees and included them in the bargaining unit.

The applicant union applied for certification.

During the proceedings, it was revealed that two major collectors of membership cards had deliberately misled the union president regarding the direct payment of the $1.00 initiation fee by certain employees.

The union president had signed the Form 9 declaration without noting these exceptions.

The Board found that the reports from these two collectors, who gathered over 80% of the cards, were unreliable.

Consequently, the Board could not be satisfied that the union had the requisite 45% membership support for a representation vote or 55% for outright certification.

The application was dismissed without a bar.