The Nova Scotia Labour Board has dismissed an application by the United Food and Commercial Workers Union, Local 864 (UFCW), to certify a bargaining unit of employees at a Dartmouth PetSmart location. In its decision, the Board imposed the standard three-month time bar on future certification applications, rejecting PetSmart’s request for a six-month period.
On Oct. 25, 2024, following a vote count where the UFCW was unsuccessful, both parties made submissions regarding the appropriate duration of the time bar. The UFCW advocated for the usual three-month period, while PetSmart argued for an extended six-month time bar to allow for workplace tensions to subside.
The Board, chaired by Jasmine Walsh with members Larry Wark and Buddy Lawrence, concluded there was “nothing extraordinary justifying a longer than usual time bar.” The time bar commences from the date of the unsuccessful vote count and expires on January 25, 2025.
Background
The UFCW filed the application for certification on April 4, 2024, aiming to represent employees at the Dartmouth PetSmart store. A quick vote was conducted as per the Board’s usual practice. On Oct. 7, 2024, the Board issued a preliminary decision regarding the bargaining unit composition. After the votes were counted on Oct. 25, the union did not secure enough support.
Following the unsuccessful vote, both parties provided written submissions on the appropriate length of the time bar for future certification applications. The UFCW suggested that the standard three-month period was sufficient, while PetSmart requested a six-month time bar, citing strained workplace relationships due to the certification process.
Analysis and decision
Under Section 25(16) of the Trade Union Act, the Board has the discretion to designate the length of time before a new certification application can be considered by the same applicant:
“If the Board is not satisfied that a trade union is entitled to be certified under this Section it shall reject the application and may designate the length of time that must elapse before a new application will be considered by the same applicant.”
The Board referred to its established policy (Labour Board Policy No. 025-002-095), which typically imposes a three-month time bar but allows for longer periods “depending on the offence.” The policy aims to balance the need for a cooling-off period in the workplace with the commitment to limit restrictions on employee associational rights.
“The Board policy balances the genuine need for workplaces to cool off with a commitment to fetter employee associational rights only as much as necessary,” the decision stated. It emphasized that the onus is on the party requesting a longer time bar to prove it is warranted.
PetSmart argued that the workplace was “frustrated and that relationships were strained” due to the certification application. However, the Board noted that “no evidence was presented to this effect, but the Board accepts that this may be true.”
PetSmart referenced the Board’s decision in Wynn Park Villa Ltd v. Canadian Union of Public Employees, Local 5483 (2022 CanLII 40403), where a six-month time bar was imposed due to significant evidence of damaged morale and employee relationships, along with findings of unfair labour practices.
Distinguishing the current case from Wynn Park, the Board stated: “The facts here do not support the same outcome. The application proceeded in a straightforward way; there were no unfair labour practices alleged or found to have occurred. And there are allegations, only, of morale and relationship impacts, whereas there was significant evidence of these before the Board in Wynn Park.”
The Board concluded: “The Board is not persuaded that an exception to the Board Policy on time bar would serve a valid labour relations purpose at PetSmart.”
