United Food and Commercial Workers International Union, Local 1000A, AFL-CIO-CLC v. Panache Rotisseurs Inc., 1982 CanLII 1063

United Food and Commercial Workers International Union, Local 1000A, AFL-CIO-CLC v. Panache Rotisseurs Inc. operating under the name and style of St. Hubert Bar-B-Q

[1982] OLRB Rep. January 122

2090-81-R United Food and Commercial Workers International Union, Local 1000A, AFL-CIO-CLC, Applicant, v. Panache Rotisseurs Inc. operating under the name and style of St. Hubert Bar-B-Q, Respondent

BEFORE: George W. Adams, Q.C., Chairman, and Board Members F.W. Murray and O. Hodges.

APPEARANCES: Elizabeth J. Shilton Lennon, Les Dowling, and Carol Gibbons for the applicant; Michael Gordon and Albert Wiltshire for the respondent.

DECISION OF THE BOARD; January 25, 1982

1This is an application for certification.

2The Board finds the applicant to be a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

3The applicant seeks certification for two bargaining units which the Board finds to be appropriate for collective bargaining. They are:

Bargaining Unit #1

All employees of the respondent at Brampton, Ontario save and except the manager, assistant manager, dining room manager, persons above those ranks, persons regularly employed for not more than twenty-four hours per week, and students employed the school vacation period.

Bargaining Unit #2

All employees of the respondent at Brampton, Ontario, regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, save and except the manager, assistant manager, dining room manager and persons above those ranks.

4Counsel for the respondent advised that the respondent received a copy of the application and related documents on January 11, 1982 and that the respondent posted the Notice to Employees at 3:30 p.m. on that same date. The terminal date set for the application was January 14, 1982 and the Notice to Employees advised that all statements of objection by employees must be received by the Board by the terminal date or such statements must be sent by registered mail as of that date. The notice to Employees also advised that the date of hearing set for the application was January 22, 1982.

5The Board received, on January 18, 1982, an undated hand-printed statement of desire containing the signatures of nine persons purporting to be employees of the respondent. By letter dated that same date, the Board acknowledged receiving the document; advised that it had been sent by regular mail and received after the terminal date of January 14, 1982; and enclosed a copy of the Guide to the Labour Relations Act. No one appeared at the hearing on behalf of the persons who signed the document and, in any event, the document does not constitute a timely statement of desire. Counsel for the respondent agreed that all full-time employees would probably have seen the posted Notice to Employees between January 11 and 14.

6The Board finds that more than fifty-five per cent of the employees in bargaining unit #1, at the time the application was made, were members of the applicant on January 14, 1982, the terminal date fixed for this application and the date which the Board determines pursuant to section 103(2)(j) of the Act, to be the time for determining membership under section 7(1) of the Act. The parties at the hearing were advised that the precise number of employees in bargaining unit #1 at the time of the application was thirty-nine, and twenty-two of these employees were members of the applicant within the meaning of the Act on January 14, 1982, the terminal date. Accordingly, 56.41 per cent of the employees in the bargaining unit were members of the applicant trade union at the times relevant to the application. Counsel for the respondent submitted that the application was borderline and that, in such circumstances, the Board should exercise its discretion and direct a representation vote. It was suggested that the Board ought to adopt the requirement of "one full employee's support" in excess of 55 per cent as, in counsel's submission, it requires with respect to 50 per cent in the context of a representation vote. We cannot assent to this request nor do we agree that this is the Board's practice with respect to representation votes. The mathematical nature of 50 per cent always results in "one full employee's support" in excess of 50 per cent but beyond the inherent nature of this number, there is no Board practice upon which the respondent can rely. Many applications entertained by the Board only exceed 55 per cent by a fraction of employee support but it is the Board's practice to require circumstances over and above the extent of support in determining whether to exercise the discretion accorded to it. It is our finding that no such circumstances exist in the instant case.

7A certificate will issue to the applicant for bargaining unit #1.

8The Board further finds that less than 45 per cent of the employees in bargaining unit #2, at the time the application was made, were members of the applicant on January 14, 1982, the terminal date fixed for this application and the date which the Board determines pursuant to section 103(2)6) of the Act.

9The application, insofar as it relates to bargaining unit #2, is dismissed.