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No certification if no prospect of continued existence
March 17, 2002

In Bridge River Logging, BCLRB No. B449/2001, the Labour Relations Board dismissed a certification application on the basis that the proposed unit did not have a prospect for continued existence.

The union applied to be certified for the timber harvesting employees of Bridge River Logging. Bridge River Logging had harvested timber under the timber harvesting license of Ainsworth Lumber. Bridge River Logging had traditionally contracted out the falling and hauling of timber. Bridge River Logging was a joint venture between the principal of Ainsworth Lumber and Bridge River Developments (a company operated by the Bridge River Band).

In the summer of 2001, Bridge River Logging decided that it would contract out all of the timber harvesting work. Bridge River Logging entered into discussions with one contractor and notified its timber harvesting employees of the layoff which would result.

Once given notice, the employees sought union representation and the union filed an application for certification. At the time of the hearing, Bridge River Logging had entered into a contract with Copper Child Contracting to perform the timber harvesting work. Bridge River agreed to supply the yarder and loader (which it had used when it performed the work). Copper Child would provide the labour, look after safety and Worker’s Compensation issues and the supply of consumable life items such as fuel, cable and the choker, as well as a power source.

There was no allegation of anti-union animus. The union agreed that if it could be shown that the relationship between the employer and employees was clearly over, then that is the end of the matter. However, it argued that if the continuing relationship is “fuzzy”, the employees should be given the right to access collective bargaining. The union argued that Bridge River Logging could not establish that it was getting out of the timber harvesting business permanently. Further, the union argued that since the work was being contracted out, there could be a reasonable expectation of recall.

The Board found that Bridge River Logging had intended to get out of the direct business of timber harvesting when it decided to contract out the work and that it had followed through with its intent and contracted out the work thereby ceasing direct operations of timber harvesting.

The Board applied the principles in Sun Rype, BCLRB Letter Decision No. L351/82 which state that in order for a bargaining unit to be certified, the Board must be satisfied that there is a bargaining unit, which has some prospect of continued existence to which the obligations and rights created under the Code would apply. The Board concluded that the proposed bargaining unit did not have a prospect for continued existence and the unit was, therefore, not appropriate for collective bargaining. The application for certification was dismissed with the caveat that should Bridge River Logging start operations in the direct harvesting of timber, then any employees it hired would be able to exercise their right to join a union.

(Click here for full text of the judgment)