[1981] OLRB Rep. February 156
2209-80-R Group of Employees, Applicant, v. Hotels, Clubs, Restaurants and Tavern Employees' Union, Local 261, Respondent, v. Fuller's Restaurant, Intervener
BEFORE: R. D. Howe, Vice-Chairman, and Board Members M. J. Fenwick and R. W. Redrod.
APPEARANCES: Michael Gordon, Shelley Chapman and Doris Saueracker for the applicant; no one appearing for the respondent; C. E. Humphrey and M. Lalonde for the intervener.
DECISION OF R. D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER R. W. REDFORD: February 20, 1981
This is an application under section 51(2) of The Labour Relations Act for a declaration that the respondent no longer represents the employees in the bargaining unit for which it is the bargaining agent.
The application was filed with the Board on January 16, 1981. The respondent sent an unsigned reply to the Board by registered mail on January 29, 1981. Although the respondent was duly notified that the hearing of this application by the Board would take place at the Board Room, 400 University Avenue, Toronto, Ontario, on Friday the 13th day of January, 1981 at 9:30 o'clock in the forenoon (E.S.T.), no one appeared on behalf of the respondent when the case was called. As a matter of courtesy, the Board recessed the hearing for one-half hour in view of the possibility that the representative(s) of the respondent might have been delayed. When no one had appeared on behalf of the respondent by the time the hearing resumed, the Board proceeded to hear the application.
Section 5 1(2) of the Act provides:
"Where a trade union that has given notice under section 13 or section 45 or that has received notice under section 45 fails to commence to bargain with sixty days from the giving of the notice or, after having commenced to bargain but before the Minister has appointed a conciliation officer or mediator, allows a period of sixty days to elapse during which it has not sought to bargain, the Board may, upon the application of the employer or of any of the employees in the bargaining unit and with or without a representation vote, declare that the trade union no longer represents the employees in the bargain unit."
- It is a matter of record that the respondent was certified by decision and certificate dated September 30, 1980 in File No. 0153-79-R (Fuller's Restaurant [1980] OLRB Rep. Sept. 1289) as the bargaining agent for the following bargaining unit:
"All employees of Fuller's Restaurant working at 809 Richmond Road, Ottawa, Ontario, who are regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, save and except assistant managers, management trainees, kitchen managers and persons above those ranks, and office staff."
This application was filed by a group of employees in the bargaining unit. Having regard to all of the evidence before it, the Board finds that on or about November 3, 1980, the respondent gave the intervener written notice under section 13 of its desire to bargain with a view to making a collective agreement. The Board further finds that the respondent failed to commence to bargain within sixty days from the giving of notice (and had not commenced to bargain as of the date of the hearing of this matter). The sixty-day period preceded the making of this application. No official or other representative of the respondent appeared at the hearing to give evidence concerning its failure to commence bargaining within sixty days from the giving of notice under section 13. Although two (Form 15) notices of this application were posted in conspicuous places on the intervener's premises, none of the employees in the bargaining unit sent to the Board a statement of desire to make representations in opposition to this application.
The two employees in the bargaining unit who testified in support of the application told the Board that they have never at any time been contacted by the respondent nor been asked to attend any meeting of the respondent to discuss collective bargaining proposals. It was also their evidence that they have received no correspondence or other communication whatever from the respondent.
The purpose of section 5 1(2) is no protect the employees (and, in a proper case, the employer) against a union which stakes out a claim to represent certain employees, serves notice to bargain on the employer and then fails to commence to bargain within sixty days thereafter, thereby sleeping on its bargaining rights and neglecting to forward the interests of those employees. As has been indicated by the Board in numerous cases, section 51 should not be used to penalize a union but rather to afford an opportunity for an interested party to bring the material facts to the attention of the Board so that the Board can call upon the trade union to provide an explanation for the failure to commence (or continue) bargaining. (See, for example, Trizec Equities Limited, [1978] OLRB Rep. Feb. 189, and the Board jurisprudence cited therein.)
The Board has generally exercised its discretion under section 5 1(2) to terminate bargaining rights without a vote where the trade union fails to file a reply and appear at the hearing to provide a satisfactory explanation for its failure to commence (or continue) to bargain within the time period specified in section 5 1(2). (See Lakeview Pure Milk Dairy Ltd., [1962] OLRB Rep. Dec. 380; Brunswick of Canada Limited,[1966]OLRB Rep. Feb. 824; Deerifield Plastics Limited, [1967] OLRB Rep. Nov. 778; West End Chrysler Dodge, [1968] OLRB Rep. Nov. 839; Interchem Presstite Limited, [1969] OLRB Rep. Apr. 99; Canadian Silk Manufacturing Co. Ltd., North Bay, [1970] OLRB Rep. Mar. 1458; Wegu Canada Inc., [1976] OLRB Rep. Feb. 7; and Canwood Lachute, [1979] OLRB Rep. Dec. 1140; cf. Faultless Casters Limited, [1963] OLRB Rep. Nov. 459.) Moreover, in a case which was substantially similar to the instant case, the Board terminated a trade union's bargaining rights without a vote where the trade union filed a reply but did not attend at the hearing to give any explanation for having allowed a period of sixty days to elapse during which it had not sought to bargain (see Army, Navy and Air force Veterans in Canada - Fort William Unit No. 2S7, [1967] OLRB Rep. Aug. 457.
Having regard to all of the circumstances, the Board is of the view that this is an appropriate case in which to exercise its discretion under section 5 1(2) to terminate the respondent's bargaining rights without a representation vote. Accordingly, the Board hereby declares that the respondent no longer represents the employees of the intervener in the bargaining unit set forth above, for whom the respondent has heretofore been the bargaining agent.
The decision of Board Member M. J. Fenwick will be issued at a later date.