Ontario Labour Relations Board
[1980] OLRB Rep. September 1330
0799-80-R Hotel, Restaurant and Cafeteria Employees' Union, Local 75 Toronto of the Hotel and Restaurant Employees' and Bartenders' International Union (A.F.L. - C.l.O. - C.L.C.), Applicant, v. Toronto Airport Hilton a division of Toronto Hilton Inc., Respondent.
BEFORE: R. D. Howe, Vice-Chairman, and Board Members T. G. Armstrong and M. J. Fenwick.
APPEARANCES: Alick Ryder Q. C., for the applicant; Robert A. MacDermid, Robert Hassell and Susan Dalton for the respondent.
DECISION OF R. D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER T. G. ARMSTRONG; September 3, 1980
1The name: "Airport Hilton Toronto" appearing in the style of cause of this application as the name of the respondent is amended to read: "Toronto Airport Hilton a division of Toronto Hilton Inc."
2This is an application for certification.
3In Royal Canadian Yacht Club (File No. 0780-80-R, dated August 5, 1980, as yet unreported) the Board found the applicant to be a trade union within the meaning of section 1(1)(n) of The Labour Relations Act. By virtue of section 94 of the Act, such finding is prima facie evidence in the present proceedings that the applicant is a trade union for the purposes of the Act. Counsel for the respondent questioned the trade union status of the applicant, which was created on June 1, 1980 by a "merger" of Locals 299 and 254 of the Hotel and Restaurant Employees' and Bartenders' International Union, on the ground that some of the persons who joined Local 299 prior to June 1, 1980 were not notified of the proposed "merger". (Local 75 appears to have become the successor of Locals 299 and 254 through an amalgamation [which involves the combining of two or more entities so as to form a distinct, new entity] rather than a merger [which involves the absorption of one entity by another whereby the former ceases to exist while the latter continues], see section 54 of the Act; Hydro Electric Power Commission of Ontario, 57 CLLC 9118,080 [in which the Board noted that in trade union circles, the terms merger and amalgamation are often used interchangeably and Consolidated Glass Industries, 62 CLLC 9116,220]. Nevertheless, the term "merger" will be utilized throughout this decision since that is the term contained in the documentation concerning the successorship in question.) However, having regard to all the submissions (which counsel agreed would be treated by the Board as proof of the facts alleged therein) and the evidence before it, including the Constitution of the Hotel and Restaurant Employees' and Bartenders' International Union, and the Declaration and Order for Merger of Locals 299 and 254, the Board finds that the applicant is a trade union within the meaning of section 1(1)(n) of the Act.
4With respect to the bargaining unit, counsel for the applicant requested the exclusion of persons regularly employed for not more than 24 hours per week and students employed during the school vacation period in accordance with the Board's usual practice. Counsel for the respondent, on the other hand, submitted that neither of those groups should be excluded. In support of this contention, he submitted that the "twenty-four hour line" creates "an artificial distinction" since only a few of the respondent's employees work forty hours per week and since some work slightly over twenty-four hours one week but then work slightly under twenty-four hours another week. He contended that all of the employees of the respondent share a community of interest and noted that all are paid the same wage rate for serving customers. He further submitted that university students and second income earners now have a stronger commitment to the work force than they used to have. His submissions on this issue culminated in a request that the Board appoint a Labour Relations Officer to inquire into and report to the Board on the community of interest between the groups in question.
5In response to those submissions, counsel for the applicant argued that the Board's long-standing and well established practice concerning part-time employees and students is known to and relied upon by the parties which come before the Board. He stated that the applicant, in reliance upon this practice, had organized only the full-time employees of the respondent. Thus, a departure by the Board from its normal practice would defeat the application and disappoint the large number of full-time employees of the respondent who desire to be represented by the applicant. Counsel for the applicant further submitted that the Board's practice is based upon the fundamental difference between the part-time and full-time employees which results from the fact that persons who regularly work less than twenty-four hours per week generally do so because they want to have free time to discharge other responsibilities.
6The Board's general practice concerning exclusion of part-time employees and students from full-time bargaining units is set forth in Inter-City Bandag (Ontario) Limited, [1980] OLRB Rep. Mar. 324. (See also The Post Printing Company Ltd., a division of Thomson Newspapers Limited (Leamington), [1966] OLRB Rep. Mar. 930; Premier Plastics Limited, [1969] OLRB Rep. July 508; Wilson-Munroe Company Ltd., [1973] OLRB Rep. Dec. 647; and The Beacon Herald of Stratford Limited, [1975] OLRB Rep. Feb. 103.) This practice reflects the Board's view, supported by the extensive labour relations experience and knowledge of its members, that part-time employees and students, on the one hand, and full-time employees, on the other hand, do not generally share a community of interest since the former are primarily concerned with maintaining a convenient work schedule which permits them to accommodate the other important aspects of their lives with their work and with obtaining short-term immediate improvements in remuneration rather than with obtaining life insurance, pension, disability, and other benefit plans; extensive seniority clauses; and other long-term benefits. See, for example, Leons Furniture Limited, [1976] OLRB Rep. May 232, paragraph 5, in which the Board stated:
"... we have learned through experience in such applications that part— time employees do not share a community of interest with full-time employees in many aspects of the collective bargaining scenario. More precisely part-time employees are more pragmatically concerned with immediate as opposed to long-term benefits with respect to improving their terms and conditions of employment. In applying this proposition to more practical issues the part-time employee usually prefers to sacrifice long-term pension, medical and other welfare benefits for a more substantial increase in wages or a longer vacation period. The nature of seniority provisions contained in a collective agreement with respect to promotions, transfer and lay-offs does not always assume the same degree of significance to the part-time employee as it would to the full-time employee. In other words, the Board had discerned a natural, inevitable schism in measuring the community of interest between the two categories of employees that invite separation into peculiar bargaining units ..."
7For the foregoing reasons, part-time employees and students generally tend to have less initial interest in collective bargaining. Moreover, since the union organizing campaign may give rise to considerable uncertainty and apprehension among part-time employees and students with respect to the continued accommodation of their particular needs and desires for a convenient work schedule and maximum short-term remuneration, they are prone to oppose applications for certification. Such opposition could preclude full-time employees from engaging in collective bargaining if the Board generally exercised its discretion under section 6(1) of the Act in favour of bargaining units which included not only full-time employees but also part-time employees and students. Accordingly, the Board's practice concerning part-time employees and students is not only a policy designed to avoid difficulties which may arise where groups with separate communities of interest are included in a single bargaining unit, but is also an organizing rule which promotes the public interest, identified in the preamble of The Labour Relations Act, in furthering harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees.
8Having regard to the submissions of the parties and the Board's general practice concerning the bargaining unit issue in dispute in the present case, the Board finds that all employees of the respondent in the City of Mississauga, save and except supervisors, persons above the rank of supervisor, office, sales, accounting and front desk staff, persons regularly employed for not more than twenty-four hours per week, and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
9The applicant submitted membership evidence consisting of ninety-seven combination application and receipt cards, each of which indicates that it is an application for membership in "Hotel and Restaurant Employees' and Bartenders' International Union, Local No. 299". As noted in paragraph 3 of this decision, the applicant was created on June 1, 1980, by a "merger" of Local 299 and Local 254 of the Hotel and Restaurant Employees' and Bartenders' International Union. The following paragraphs are included in the aforementioned Declaration and Order for Merger of Locals 299 and 254:
"1. Subject to the following terms and conditions, the Hotel and Club Employees Union Local 299 and the Restaurant, Cafeteria and Tavern Employees Union Local 254 shall merge and form a new union to be known as the HOTEL, RESTAURANT AND CAFETERIA EMPLOYEES UNION LOCAL 75 of Toronto, Ontario, Canada, AFLCIO and CLC (hereinafter 'Local 75').
- The merger shall become effective on June 1, 1980.
e.g
Local 75 shall be the successor in interest to all assets, property, rights, liabilities and jurisdiction of Hotel and Club Employees Union Local 299 and Restaurant, Cafeteria and Tavern Employees Union Local 254. All funds of former Locals 299 and 254 shall be transferred into and made a part of the general fund of Local 75.
All members of Locals 299 and 254 automatically shall become members of Local 75 upon the effective date of the merger and their membership status shall remain unbroken as a result of this merger.
Local 75 shall, consistent with its bylaws and this Declaration and Order for Merger, take all necessary and appropriate action to implement the merger and smoothly effect the transition of Locals 299 and 254 into one merged local union."
In view of this evidence of transfer of membership filed with the Board, the Board is satisfied that the twenty-four cards dated prior to June 1, 1980 constitute valid evidence of membership in the applicant (see Swansea Construction Co. Ltd., [1965] OLRB Rep. Mar. 645). However, the validity of the seventy-three cards dated after June 1, 1980 is somewhat problematic. Each of those cards purports to be an application for membership not in the applicant but rather in one of the applicant's precedessors, "Hotel and Restaurant Employees' and Bartenders' International Union Local No. 299". After the merger" occurred, "75" was written on many of those cards as the "Local No." However, before the cards were signed, "75" was erased and "299" was written in its place. The reason for this change was that the organizers were of the view that all of the cards should specify "299" as the "Local No." because the organizational campaign commenced before the "merger".
10Counsel for the applicant contended that the Board has power to accept the cards dated after June 1, 1980 as valid evidence of membership in the applicant and that the Board should do so to avoid cost to the applicant, confusion to the employees, and disruption to the business. He argued that the inscription of "299" on the cards instead of "75" did not create any confusion in the minds of the employees since the applicant was at all material times the only organizing entity operating in the area with a name that bears any resemblance to the name which appears on the cards. He argued that the "merger" was of no significance to the employees, who, he submitted, were concerned only with joining the organization represented by Mr. F. Ragni (the chief organizer). Counsel also argued that it was significant that although the Form 5 Notice to Employees of Application for Certification and of Hearing, which clearly indicates the applicant to be Local 75, had been duly posted on the respondent's premises, none of the employees affected by the application has expressed any concern to the Board concerning the application or the validity of the membership evidence.
11Counsel for the applicant cited La Pa/me & Sons, 56 CLLC ¶ 18,034, in support of the validity of the membership evidence. That case involved an application for certification filed and supported by combination applications and receipts for membership in "International Union of Mine, Mill & Smelter Workers Local No. 902". All of the cards bore dates after November 29, 1955, the date of which Local 902 ceased to be a part of the International Union of Mine, Mill and Smelter Workers, and became a part of the organization of the International Union of Mine, Mill & Smelter Workers (Canada) (emphasis added). Although the word "(Canada)" was omitted from the name of the union which appeared on the cards, the Board found that the cards constituted "some evidence" that the employees intended to become members of the Canadian organization, but ordered a representation vote because there remained "an element of doubt". In reaching this decision, the Board reasoned as follows:
"As we have pointed out in the Port Colborne Hospital Case, the Canadian organization of the International Union of Mine, Mill and Smelter Workers was established on November 29, 1955, the date when the referendum vote pertaining to the Canadian Constitution was taken. Local 902 of the 'International Union' thereupon ceased to be a part of the 'International Union' and became a part of the Canadian organization by virtue of Article 7, section 2, of the International Constitution and the provisions of the Canadian Constitution. As we have seen, the 'International' no longer functions in Canada. Since the employees who signed the membership cards, submitted by the applicant in support of its application, did so at a time when the only organization operating in Canada which was known as the International Union of Mine, Mill & Smelter Workers was the Canadian organization bearing that name, there is some evidence before the Board that they intended to become members of the Canadian organization of which the applicant is a local union. However, in view of the wording of the application cards and the receipts and in view of the short interval of time that had elapsed between the date of the adoption of the Canadian Constitution and the date when the cards were signed there remains an element of doubt on this score. To resolve that doubt we are of opinion that we should seek the confirmatory evidence of a representation vote in this case."
Counsel argued by analogy that the applicant was the only organization operating in the area at the time the cards were signed which had a name which bore any resemblance to the name which appeared on the cards.
12Counsel for the respondent contended that the membership evidence was invalid and that, accordingly, the application should be dismissed. In support of this argument, he submitted that the Board's jurisprudence is clear that membership in one local is not membership in another local. He also maintained that the membership evidence dated after June 1, 1980, does not fulfill either of the two aspects of the definition of "member" set forth in section 1(1)(j) of the Act, namely, application for membership in the trade union and payment to the trade union of at least $1.00 in respect of the initiation fees or monthly dues of the trade union. He further argued that it is not possible to "look behind" the cards to consider what the individual employees may have intended since this would be contrary to the scheme of the legislation which is designed to preserve secrecy as to union membership and to ensure that membership cards will be submitted in a form worthy of being relied upon by the Board.
13It is clear from the Board's jurisprudence that evidence of membership in a local trade union other than the applicant local trade union is not satisfactory evidence of membership. As stated in J.D. Carrier Shoe Company Limited, [1968] OLRB Rep. April 54, "[i]t has been the Board's consistent practice to find that membership in one local does not constitute membership in another local ..." (See also J. D. Coad. Construction, [1969] OLRB Rep. Sept. 755; Dietrick & Koehler Construction Limited, [1968] OLRB Rep. Oct. 728; Prestige Drywall, [1968] OLRB Rep. April 59; Beaver Foundation Ltd. [1967] OLRB Rep. Oct. 652; Northern Flooring, [1966] OLRB Rep. Feb. 822; and O.J. Gaffnev Limited, [1965] OLRB Rep. Dec. 641.) However, it appears that in each of those cases, the local trade union to which the membership evidence purported to relate and the applicant local trade union were both in existence at the time the membership evidence was collected and at the time of the application. Thus, there was a substantial risk in each of those cases that the membership cards could reasonably cause the person signing them to be misled or confused as regards the applicability of those cards to the applicant local trade union, since at the time the cards were signed it was quite feasible that the employee could join either the applicant local trade union or the local trade union to which the membership evidence purported to relate. By way of contrast, in the present case at the time the cards in question were signed, Local 299 had ceased to exist by virtue of the June 1, 1980 "merger". Therefore, it was not feasible for the employees to join Local 299; the only local which they could in fact join was the applicant, which was the only local operating in the area in question with a name bearing any resemblance to the name on the cards. Moreover, any employee who had inquired would have learned that Local 299 had become part of Local 75 through the "merger". The fact that no employees intervened in this application after the Form 5 Notice was posted showing Local 75 as the applicant, also suggests that the employees intended to become members of the applicant by signing cards which, as a result of an administrative error, bore the name of the applicant's predecessors.
14Having regard to all the submissions and evidence before it, the Board, by analogy to the La Palme & Sons case, supra, finds that there is some evidence that the employees in question intended, by signing cards bearing the name of one of the predecessors of the applicant, to become members of the applicant and were accepted by the applicant as members. The definition of "member" contained in section 1(1)(j) of the Act does not preclude this finding since it is not an exclusive definition; it merely provides that "member", when used with reference to a trade union, includes a person who has done the acts specified in paragraphs (i) and (ii) thereof.
15Section 92(2)(j) empowers the Board to determine the form in which evidence of membership in a trade union shall be presented to the Board on an application for certification. Accordingly, it is within the Board's power to accept evidence of an application for membership in and payment of $1.00 to one of the predecessor local trade unions of the applicant local trade union as evidence of membership in the applicant local trade union, particularly where, as in the present case, the Declaration and Order for Merger makes the applicant local union successor in interest of all rights and jurisdiction of the predecessor local trade unions, specifies that all funds of the predecessor local trade unions shall be transferred into and made part of the general fund of the applicant local trade union, provides that all members of the predecessor local trade unions shall automatically become members of the applicant union, and recognizes that there will be a period during which the transition of the predecessor local trade unions into one merged trade union will occur.
16Thus, the Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made, were members of the applicant on July 25, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act. However, since the use of the name of one of the applicant's predecessor local trade unions on the cards in question casts some doubt upon the intentions of the employees in question, the Board, in the exercise of its discretion under section 7(2) of the Act, hereby directs that a representation vote be taken of the employees of the respondent in the bargaining unit. All employees in the bargaining unit described in paragraph 8 hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.
17This matter is referred to the Registrar.
DECISION OF BOARD MEMBER M. J. FENWICK:
I dissent.
The applicant union has filed the required number of membership cards entitling it to automatic certification.
My colleagues have reservations about the validity of some of the membership cards. Counsel for the applicant union explained the change in local number on some of the cards was an honest mistake arising out of procedural confusion caused by the merger of Locals 299 and 254 into a new entity; Local 75. I accept his explanation.
No employees filed a statement of desire in response to the Board's notice of the application.
In addition the declaration on merger provides for the tying of any loose ends resulting from the amalgamation of the two locals including acceptance of membership cards of both locals.
No useful purpose would be served in putting Local 75 to the expense and delay of a representation vote. I would have certified Local 75 without a representation vote.