Hotels, Clubs, Restaurants, Tavern, Employees' Union, Local 261 v. Fuller's Restaurant
File Nos.: 0150-79-R; 0153-79-R; 0073-80-R; 0074-80R Date: July 4, 1980 Ontario Labour Relations Board
Between: Hotels, Clubs, Restaurants, Tavern, Employees' Union, Local 261, Applicant, v. Fuller's Restaurant, Respondent, v. Group of Employees, Objectors.
Before: George W. Adams, Chairman, and Board Members J. D. Bell and W. F. Rutherford.
Decision of the Board
1This is an application for reconsideration of the Board's decision dated June 2, 1980 wherein it was determined that two applications for certification were still before the Board subsequent to a successful application for judicial review brought on behalf of certain objecting employees. The Board had certified the applicant trade union for both a full-time and part-time bargaining unit after having ruled that the objecting employees had not filed timely statements of objection in the proper form. The Supreme Court of Ontario quashed the Board's decision on the basis that the Board had improperly refused to hear the objecting employees in light of the Board's own rules of procedure. The Court did not specifically remit the matters back to the Board, but subsequently the applicant trade union requested the Board to process the two applications. The objecting employees and respondent company challenged the Board's right to do so and, after entertaining the submissions of all affected parties on this one issue, this panel concluded that the Board was obligated in law to act on the applicant's request. The objecting employees seek reconsideration of this decision.
2The first ground for reconsideration is that the Board should have sought instruction or advice from the Court before making its decision of June 2, 1980 and "that by assuming jurisdiction it has sat in an appellate capacity upon a decision of the Supreme Court of Ontario." There is no basis to this submission in our view. The decision of the Supreme Court of Ontario did nct strike the two applications for certification from the Board's docket. The trade union and the employees supporting it were not responsible for the error brought before the Court and, that error having been corrected by the Court, the Board is obligated to process the two outstanding applications.
3The second ground for reconsideration is that the Board improperly relied on a decision of the Nova Scotia Supreme Court, Appeal Division, in the Little Narrows Gypsum Co. Ltd. case (1973), 1977 CanLII 1808 (NS CA), 82 D.L.R. (3d) 693. Counsel suggests that the Board ignored important portions of this decision and in so doing reinforced the views of the objecting employees that they cannot receive a fair hearing before the Board. We cannot agree. The Board extensively canvassed the reasoning of that judicial opinion in its June 2, 1980 decision and concluded that the earlier error of the Board did not show an ongoing predisposition to exercise its jurisdiction injudiciously. Indeed, out of an abundance of concern for the views expressed on behalf of the objecting employees, we indicated that a differently constituted panel of the Board would hear the two applications for certifications.
4The third submission for reconsideration is that the Board on the basis of the Little Narrows Gypsum case, ought not to hear "new evidence" in continuing to process the two outstanding applications. We cannot agree. The decision of the Supreme Court of Ontario obligates the Board to entertain the evidence and submissions of the objecting employees. In the instant applications the few determinations of the Board preceding the point where the objecting employees should have been heard were uncontested and, procedurally, occupied the space of a few minutes. The remainder of the applications do have to be heard by the Board once again with the full participation of the objecting employees. This is the essence of the Supreme Court's decision and it is a responsibility that, in our view, is best handled by a freshly constituted panel of the Board.
5The fourth ground for reconsideration is based on the submission that the objecting employees arc prejudiced by the Board continuing to process the two applications because the passage of time since the matters were initially processed by the Board has, counsel submits, made it almost impossible for them to adduce the evidence necessary to establish the "bona fides" of the l,etition. It is our view that this is a submission that should be made to the panel that will hear the two applications and the evidence of the objecting employees. The passage of time would be a proper factor for that panel to take into account in assessing the evidence submitted on behalf of the employees. We would also point out that the applicant trade union and its supporters are also affected by the passage of time. It is a situation that all the parties must cope with and, as we have pointed out, may be the basis of submissions to the panel hearing the applications. Indeed, the passage of time may, in the circumstances, cause that panel of the Board to exercise its discretion and order a representation vote. But that is a decision for the panel to make in light of all the evidence and the parties' submissions. This panel of the Board in its decision of June 2, 1980 dealt only with the narrow legal question of whether the two applications for certification were still before the Board as a matter of law as the applicant trade union had submitted they were. The fact that all the parties will be burdened by the cost of a further hearing is unfortunate but unavoidable in the circumstances. To simply refuse to entertain the applications on this basis would cause the applicant trade union to complain about costs it had incurred in bringing the two applications in the first place on the assumption that they would be effectively disposed of one way or the other.
6The fifth ground is that the applicant trade union abandoned its applications by filing two subsequent applications. However, these two later applications were filed in the alternative to its request that the Board process the earlier matters and so there is no basis to this submission.
7The final submission related to purported statements of counsel made before the Supreme Court of Ontario on the issue of whether the matter ought to be remitted back to the Board. We would point out that there was no consensus between all counsel before this panel on these recollections and, in the circumstances, we are of the view that the decision of the Supreme Court of Ontario should "speak for itself' against the backdrop of administrative law principles argued by the parties. No evidence was adduced before this panel on the point. We did not intend to imply that counsel misled the Board in this respect.
8For all of these reasons, the application for reconsideration is dismissed and the Registrar is to act on the Board's decision of June 2, 1980 as directed.