Thought Leadership

The New Brunswick Labour and Employment Board affirms longstanding practice against piecemeal certification of bargaining units

July 8, 2019

Bryan Mills and John Morse

On May 21, 2019, the New Brunswick Labour and Employment Board (”Board”) dismissed an application by the New Brunswick Union of Public and Private Employees (“Union”) seeking certification as bargaining agent for three of Cannabis NB’s retail stores.

The Board concluded that the bargaining unit proposed by the Union was inappropriate, and simply did not have enough support to be certified. The proposed bargaining unit consisted of employees from only three of the twenty stores. The Board concluded that that the appropriate bargaining unit would consist of all Cannabis NB retail employees.

The Board cautioned that to certify the small local bargaining units as proposed, could have led to exactly the type of complicated and highly fragmented system that the Board has consistently attempted to avoid. The Board reiterated its position that larger bargaining units make good labour relations sense.

Background

Cannabis NB Ltd. (“Cannabis NB”) operates a retail network of twenty stores across New Brunswick, employing over 200 workers in various retail positions

The Union filed three separate applications and sought certification as the exclusive bargaining agent in each of the following Cannabis NB retail locations:

  • Miramichi;
  • Campbellton; and
  • Saint John – Lansdowne.

The Union’s application targeted three Cannabis NB locations employing 32 retail staff at the time of the Board’s decision, while the Retail Store Staff Occupational Group contained over 200 retail staff across all 20 locations.

Employer’s position

At the hearing of this matter, Cannabis NB argued that all employees in the Cannabis NB Ltd. Retail Store Staff Occupational Group had to be included in the bargaining unit. Cannabis NB argued that the Board has consistently maintained a practice against fragmentation, or proliferation of small bargaining units, and that this approach is consistent with good labour relations practice.

Cannabis NB pointed out that this argument has been accepted at both the provincial and federal level. At the federal level, the sheer size of the public service, the dispersal of employees throughout the country and at various points in the world, the complexity of the employment relationship and the multiplicity of classifications into which employees are divided, makes undue fragmentation impractical and probably unworkable. The same is true at the provincial level. Bargaining units should correspond to large occupation categories in terms of similar or readily comparable functions.

Union’s position

The Union contended that subsection 24(5) of the Public Service Relations Act (“Act”), which requires the appropriate bargaining unit to include all employees in a particular occupational group, did not apply to their application. Being of the view that subsection 24(5) was inapplicable, the Union further asserted that their application in no way contravened the “rules” for certification found in the Act.

The Union also argued that the drafters of the Act did not consider retail distribution at the time the Act was drafted, and that the rules therein should not be applicable to retail. The Union also argued that the Board should consider cases in the banking industry where labour boards have certified bargaining units on a branch-by-branch basis.

The Board’s decision

The Board accepted Cannabis NB’s position and dismissed the application. The Board concluded that the certification of the proposed bargaining unit would create the very type of fragmentation that Board has consistently tried to avoid, which would do nothing to promote good labour relations.

The Board determined that the appropriate bargaining unit would consist of all employees in the Cannabis NB Ltd. Retail Store Staff Occupational Group, employed across the 20 retail locations.

In its decision, the Board emphasized the importance of creating a system of collective bargaining in which good labour relations can flourish. Simplicity and order make good labor relations sense, while fragmentation does not.

This decision reiterates the importance of the longstanding principle that fragmented bargaining units should be discouraged, and do not promote good labour relations.


This update is intended for general information only. If you have questions about the above, please contact a member of our Labour & Employment group.

 

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