Canadian Food and Associated Services Union v. Windsor Arms Hotel Limited

1768-80-R Canadian Food and Associated Services Union, Applicant, v. Windsor Arms Hotel Limited, Respondent.

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members B. L. Armstrong and J. A. Ronson.

APPEARANCES: M. Cornish and W. Iler for the applicant; I. T. Bern for the respondent.

DECISION OF THE BOARD; September 9, 1981

1. This is an application for certification.

2. This matter originally came on for a hearing on November 13, 1980. At that hear­ing, the parties were able to resolve many of the matters in dispute between them; however, there remained a question concerning the employee status of certain named individuals and, in accordance with its usual practice (and the agreement of the parties), the Board appointed a Labour Relations Officer to inquire into the duties and responsibilities of the disputed individuals, and to report back to the Board. When the parties met with the Officer, they were able to further narrow their dispute, so that it now appears that the only outstanding questions before the Board are:

(a) whether, in the opinion of the Board, the "captain-waiters", and the assistant maitre d'hotel exercise managerial functions and thus cannot be considered employees within the meaning of the Act; and

(b) if these persons, or some of them are "employees" within the meaning of the Act, whether the applicant is estopped from applying to represent them.

3. The evidence before the Officer was transcribed and issued as a formal report. The parties were given the opportunity to make their representations to the Board concerning the conclusion which it should reach in light of this evidence. A hearing for this purpose was conducted on June 18, 1981. At that hearing the respondent requested an adjournment so that it could obtain the presence, and evidence, of another witness. The request was denied. In the opinion of the Board the respondent had already had an ample opportunity to lead its evidence, the witness could have been available for the June 18th hearing but was not, and the matter had already been considerably delayed. The Board was not disposed to permit it to be delayed any further, and in consequence, the evidence upon which the Board's decision is made is that contained in the Labour Relation's Officer's report.

4. The relevant provision of The Labour Relations Act is as follows:

I .-(3) Subject to section 80, for the purposes of this Act, no person shall be deemed to be an employee,

(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.

The managerial status issue does not raise any novel question of law, nor are the facts especially complicated. The task facing the Board is simply to weight the factors which point in one direction against those which point in the other, and assess the evidence in light of the statutory purpose which section l(3)(b) was designed to accomplish. We do not think any useful purpose would be served by reviewing, once again, the Board's jurisprudence concerning section l(3)(b). (See for example The Cottage Hospital, [1980] OLRB Rep. March 304, Caledon Hydro, [1979] OLRB Rep. Oct. 924, and the many cases digested in Sack & Levinson Ontario Labour Relations Board Practice.) It is sufficient to note that in the case of so-called "first line" managerial employees, the important question is the extent to which they make decisions which affect the economic lives of their fellow employees thereby raising a potential conflict of interest with them. Thus, the right to hire, fire, promote, demote, grant wage increases or discipline employees are all manifestations of managerial authority, and the exercise of such authority is incompatible with participation in trade union activities as an ordinary member of the bargaining unit. In the present case however, these managerial functions appear to be exercised by Angelo Vitale, the "Maitre d"', and the disputed indi­viduals have virtually no involvement other than occasionally reporting a situation to Vitale for him to assess and act upon as he sees fit. Having regard to the totality of the evidence, it is the opinion of the Board that neither the assistant maitre d'hotel nor the captain-waiters exercise managerial functions within the meaning of section l(3)(b) of the Act.

6. A more difficult question is the respondent's alternative submission; namely, that even if these individuals are "employees" within the meaning of the Act. The applicant is precluded from applying to represent them because of an agreement which it made some three years ago. The facts in support of this contention are not in dispute.

7. In 1977 the applicant applied to be certified as bargaining agent for a large group of the respondent's employees. The group which it sought to represent, (and, consequently, its proposed bargaining unit) excluded the captain waiters and assistant maitres d'hotel who are affected by the current application. The respondent's reply to the application likewise proposed a bargaining unit which excluded these individuals. Initially the issue was not in dispute.

8. The major issue arising on the 1977 application involved the scope of the bargaining rights held by Local 280 of the Bartenders' Union which represents some of the respondent's employees. There is no doubt, however, that at some point, despite the respondent's reply, a question arose concerning the status of the individuals whom the union now seeks to represent. It was the union's view that these persons (or some of them, at least the record is not entirely clear) were "captain waiters" exercising managerial functions. It was the respondent's position that they were not captain waiters and did not exercise managerial functions. But this issue was not the parties' principal concern; nor the primary focus of the enquiry undertaken by a labour relations officer pursuant to a decision of the Board dated September 19, 1977. It is apparent from a perusal of paragraph 8 of that decision that the main issue remained whether a number of waiters including those affected by the current application were already represented by another bargaining agent. It is also clear that a determination of the status of the individuals the union now seeks to represent would have had no effect on its right to certification.

9. Since the resolution of this employee status issue could not affect the outcome, the applicant regarded the captain waiters as managerial, and as the captain waiters themselves had evinced no particular interest in trade union representation, the parties were content to agree that they should be excluded from the bargaining unit. There was no Board determina­tion of the issue. Now, of course, the union is seeking to represent persons who some three years ago it did not regard as employees under the Act and agreed to exclude. The union changed its position following a closer examination of the employees' duties which it under­took after they approached it seeking representation. The respondent, it will be observed, has also changed its perception of the employees' status.

10. The first collective agreement between the parties ran from August 1979 until August 1980. The recognition clause followed the Board certificate and excluded the assistant maitres d'hotel and captain waiters. A second agreement in the same terms was signed in October 1980 covering the period August 1980 to August 1981. Throughout this period there has been no change in the duties and responsibilities of the disputed individuals demonstrating, ironically, the accuracy of the respondent's initial assessment of their status. They do not now, and did not then, exercise managerial functions which require their exclusion from the ambit of collective bargaining. Nor is there any evidence that the respondent has altered its method of operation or otherwise acted to its detriment as a result of the parties' 1977 agreement. No doubt the agreement of the parties avoided the necessity of litigating a peripheral issue, but it is difficult on the evidence before us to discern any other consequence to the parties flowing from it.

11. The respondent takes the position that the union cannot resile from its earlier agreement at least not until the expiry of the current agreement between the parties (i.e. August 4, 1981). The respondent argues that the present certification application is "untimely" and should be dismissed. The union contends that the Board has no jurisdiction to impose timeliness conditions other than those already expressly set out in the Act (see sections 5 and 53); and, further, that there is no prejudice to the respondent in proceeding with the instant application. The employees do not exercise managerial functions, and if the respondent wishes to reorganize its operation so that they actually do possess managerial authority, it remains free to do so. The agreement to exclude the disputed individuals three years ago should not impede their right to join a trade union now.

12. The issue posed by the respondent is a difficult one because there are many situations in which a union will obtain a certificate or avoid a representation vote because of the parties' agreement with respect to the status of disputed individuals. It smacks of abuse of process when a union agrees that certain individuals are not employees in one application, then asserts precisely the opposite in a later application. Whether or not a concept analogous to res judicata applies, and even if the agreement has not permitted a union to get a certificate or obtain some other concrete advantage, an agreement entered into by a party before the Board should have some substance, and it is arguable that it should not be swept away by the simple expedient of filing a second certification application. On the other hand, persons who are employees have a right to organize and bargain collectively. When there has been no formal determination of their status by the Board, why should they be prevented from being represented by the union of their choice? The employees in the instant case were not party to the earlier proceedings or agreement; and while such agreements are obviously desirable to avoid protracted litigation, an unduly rigid interpretation of their effect on future proceedings may pose as great an impediment to agreement as an approach which is too lax. In both cases, parties may be prompted to litigate the issue rather than agree. Moreover, from an industrial relations point of view, there may be a real disadvantage to erecting any absolute bar. Employees who wish to engage in collective bargaining may simply seek out a new union thereby fragmenting the bargaining structure and introducing two unions in a situation where, in all likelihood, collective bargaining stability and industrial peace would be enhanced if there were only one.

13. Issues such as this do not arise very often on certification applications, but they are not uncommon in applications under 95 of the Act. If during collective bargaining or the operation of a collective agreement "a question arises between the parties" as to whether an individual is an employee under the Act, section 95 permits the parties to refer the matter to the Board for its determination. Where the employment status of such person had once been settled by a collective or other form of agreement, the Board at one time refused to permit either party to ever unilaterally withdraw from that agreement by means of an application under section 95 on the theory that, in the absence of some change in the individual's duties, a party could not claim that a "question" existed. More recently, however, the Board has liberalized this policy (see: Westmount Hospital [1980] OLRB Rep. Oct. 1572), and at least two cases suggest even more latitude to re-examine a status issue in an application for certification.

14. In City of St. Catharines [1966] OLRB Rep. July 270, the Board had before it a fact situation which was very similar to the one in the instant case. On an initial certification application and acting on the agreement of the parties, the Board has excluded certain people from the scope of the bargaining unit. That exclusion was also written into the recognition clause of the parties' collective agreement which (as in most cases) was framed in the same terms as the certificate. Subsequently, the union brought a section 79(2) [now section 95] application in respect of the excluded group. In dismissing that application the Board made the following observations (emphasis added):

Again, in a proper case, a decision of the Board as to the status of certain persons may be of assistance to the parties in negotiating a new collective agreement, i.e., where the extent of the bargaining rights that the union has at that time is in issue. The section ought not to be used, however, to enable an application to pave the way for what is in effect a request for voluntary recognition of a union as bargaining agent for a group of employees not presently covered by an agreement, i.e., as a substitute for a certification application. In one sense, a question may be said to arise in such circumstances as to the status of certain persons but, in our opinion that is not the sense in which the phrase is used in section 79(2) of the Act. What useful purpose in furtherance of bargaining for a collective agreement could be served by a determination of this Board as to the status of the seven persons here under consideration? The only purpose that readily comes to mind is that the union might seek to have the employer agree to widen the scope of the bargaining unit defined in the collective agreement to include any of the persons whom we might find to be employees. However, the union could not insist on their inclu­sion in the agreement as a matter of right. The union is not without remedy. It could apply to the Board to be certified bargaining agent on behalf of such persons, and on an application of that nature, the union would legitimate/v be entitled to a ruling as to their stat us.

Although these remarks are undoubtedly "obiter", they do speak to precisely the situation which is currently before the Board.

15. The same issue arose tangentially in Mclntire Porcupine Mines Limited [1975] OLRB Rep. Apr. 261. That case involved an application for certification of shift bosses and foremen who had been excluded from the union's initial certificate many years before, as well as from a number of subsequent agreements between the parties. The employer took the position that the matter was "res judicata" or that, in the absence of changes in duties, the union was estopped from seeking certification. The Board reviewed a number of the decisions under 95(2) but pointed out that the real rationale for the restrictions imposed was to prevent "unfair advantage" as, for example, in Davis Lumber Ltd. 59 CLLC, 91 18,148, where the union had avoided a representation vote by agreeing to exclude certain persons from the unit, then subsequently sought to resile from that agreement by way of a section 95(2) application. In the absence of tangible prejudice to the respondent or unfair advantage to the applicant, the Board suggested that it should be reluctant to impose a bar which excludes people from the right to participate in collective bargaining through the bargaining agent of their choice:

Therefore, the Davis Lumber Co. Ltd. case (supra) stands for the proposition that a party will not be allowed to gain an unfair advantage by way of a section 95(2) application;.... But even if we were to conclude that the Davis Lumber Co. Ltd. doctrine ought to prevent even a sub­sequent application for certification by a party to an earlier exclusionary agreement, the respondent in this case has failed to establish that the applicant is gaining some kind of an unfair advantage by reason of this application for certification. For example, in the Davis Lumber Co. Ltd. case the trade union had avoided a representation vote by agreeing to the exclusion of all foremen and for this reason the Board responded as it did. .... It can also be argued that if a respondent cannot point to substantial prejudice the Board ought not to hold parties to the terms of an earlier bargain where that bargain deprives a group of persons the very coverage of the Act and, as noted above, the respondent has not established any such prejudice.

(See also: Globe & Mail Limited [1976] OLRB Rep. Nov. 662)

16. In the instant case, the union has not gained any unfair advantage from its agreement three years ago to exclude the disputed individuals from the scope of its certificate, nor has there been any detrimental reliance or prejudice to the interests of the employer. The respondent's original position, it will be recalled, was that these individuals were all employees (as indeed they are), but although it takes a different position in the current application, there is no evidence that it has relied upon the earlier agreement to its detriment or suffered any bargaining or other disadvantage. It might be argued that to certify another small pocket of the respondent's employees while the bulk of them remain bound by a collective agreement, would create collective bargaining difficulties for the respondent arising from the fragmented bargaining structure; however, even this poses no problem in the instant case because by the time this decision issues, the main agreement will have expired, and the parties will be in a position to negotiate a single comprehensive agreement if they wish to do so. In the circumstances, it would be entirely artificial to accede to the respondent's request and dismiss the application, when, if the respondent's argument is fully accepted, it could immediately be refiled. There may well be cases where it is appropriate to hold a party to its earlier agreement, and decline to entertain a new application for certification and this is especially so where the agreement is very recent and the union can be said to have gained an "unfair advantage", or the respondent can demonstrate real prejudice. That is not the situation in the present case, however, and we are satisfied that we should proceed with the application on its merits.

17. The Board finds that the unit of employees appropriate for collective bargaining includes:

"all employees of the respondent in the Municipality of Metropolitan Toronto, employed at the Windsor Arms Hotel, Noodles, and the Bay Streetcar, save and except supervisors and assistant supervisors exercising managerial functions, persons above the rank of supervisor and assistant supervisor, office staff, musicians, management trainees, maitre d'h6tel, chefs, sous-chefs, chefs de parties who exercise managerial functions, persons regularly employed for not more than twenty-four hours per week, students employed during the school vacation period and employees covered by subsisting collective agreements."

Clarity note: The parties are agreed that as of the date hereof the persons occupying the categories of maitre d'hotel, chefs, and sous-chefs, exercise managerial functions within the meaning of section 1 (3)(b) of The Labour Relations A ct. The parties are further agreed that as of the date hereof the assistant maitres d'hotel other than John Darocha exercise managerial functions and are excluded from the unit on that basis.

18. On the basis of the evidence before it, the Board further finds that more than fifty­-five per cent of the employees in the above described bargaining unit were members of the applicant on November 26, 1980, the terminal date fixed for this application and the date which the Board determines pursuant to section 92(2)6) of the Act to be the time for ascertaining membership under section 7(1) of the Act.