[1982] OLRB Rep. June 824
2321-81-R A. Da Cuhna and others, Applicants, v. Hotel, Restaurant and Cafeteria Employees Union, Local 75, Respondent, v. Canadian Pacific Hotels Limited (Chateau Flight Kitchen), Intervener, v. Group of Employees, Objectors
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members H. Kobryn and W. H. Wightman.
APPEARANCES: Stewart D. Saxe and Adam Da Cuhna for the applicant; Alick Ryder Q. C. for the respondent; Katharine Braid and James Forrest for the intervener; Racheal Pow for the objectors.
DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER H. KOBRYN; June 14, 1982
- This is an application for a declaration terminating bargaining rights, pursuant to the provisions of section 57(2) of the Labour Relations Act. Sections 57(2) and (3) provide:
57.- (2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,
(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation.
(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as is determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.
- The applicant, Mr. Da Cuhna, works at Malton Airport as a galley-checker in the Flight Kitchen that is the subject of this application. He was formerly one of the stewards for the bargaining unit, but became personally disenchanted with the services the respondent was providing. He began to discuss with others the possibility of a change in bargaining agent, and eventually got in touch with a business agent of the International Association of Machinists, the trade union representing members of the ground crew at Malton Airport. With the guidance of the Machinists' Union, Mr. Da Cuhna and another employee circulated the present petition to decertify the respondent. The petition reads:
We, the undersigned employees of Canadian Pacific Hotels Limited, (Chateau Flight Kitchen), Malton, Ontario, hereby state our desire that we no longer wish to be represented in collective bargaining by Hotel, Restaurant and Cafeteria Employees, Union Local 75.
The Board has absolutely no doubt that management was a party to neither the conception nor the circulation of this petition. Neither does the Board find that employees were misled in any way as to the purpose or effect of signing, as a step towards ending the representational rights of the respondent.
- There was, however, a counter-petition filed with the Board in favour of continuing the bargaining rights of the respondent. This petition reads:
We, the undersigned employees of Canadian Pacific Hotels Ltd. (Chateau Flight Kitchen), Malton, Ontario, do not wish to be decertified or lose our bargaining rights with our Union, Local 75, Hotel, Restaurant and Cafeteria Employees Union.
There were a relatively small number of employees who signed both petitions, but the overlap was sufficient, if the expression of an employee's wishes on the second document were held to cancel his or her wishes on the first document, to reduce the support for Mr. Da Cuhna's application below the necessary 45 per cent of the bargaining unit.
- Counsel for the applicant argues that the Board ought to disregard the counter-petition entirely, on two grounds:
(1) that the Board lacks the jurisdiction to do anything but order a representation vote, once a voluntary petition has been submitted which bears the names of not less than 45 per cent of the bargaining unit. In support of this, counsel points to the use of the word "shall" in section 57(3), as opposed to the word "may" in section 7(2) dealing with certification. Counsel characterizes the reference in section 57(3) to "at [the terminal date]" as simply a signal to an applicant to deliver to the Board by that date whatever material he may have in support of his application.
(2) If the Board does have a discretion, it ought to exercise it so as not to give weight to a petition which openly calls upon an employee to declare his or her support for an incumbent trade union. Counsel contrasts the position and influence of a trade union which has become established in the work place as exclusive bargaining agent with that of a trade union simply knocking at the door, and argues that the former holds in the eyes of employees a special status not wholly dissimilar to that enjoyed by management.
Counsel for the applicant candidly concedes that there is a long line of Board jurisprudence which stands directly opposed to the propositions he puts forward. See VS Services, [1978] OLRB Rep. Mar. 323, and the cases cited therein. He argues, however, that the time has come for a re-appraisal by the Board of the position it has adopted in the past.
Precisely the same submissions have, however, been considered and again rejected by the Board in the very recent case of Browning-Ferris Industries, [1982] OLRB Rep. June 816. The Board notes, however, at least one significant difference which has always existed between the effect of a "counter-petition" in a termination, as opposed to a certification proceeding. In a certification proceeding, the Act calls for employee wishes to be evidenced at the outset by the filing of individual forms of membership evidence, together with all of the additional elements, such as evidence of the payment of fees in earnest, and the declaration provided in Form 9, which have been built into the certification system. If membership exceeds 55 per cent of the bargaining unit, normally the Board would certify an applicant on the basis of that evidence; but if a subsequent petition casts a cloud upon the representativeness of that membership evidence, the Board may resort to a secret-ballot vote as a further means of identifying employee wishes. In such circumstances, a voluntary counter-petition may simply cause the Board to accept the reliability of the original membership evidence filed and grant the certification being sought. On a termination application, the counter-petition seeks in effect to have the Board disregard the issue of representation which a voluntary petition has raised, and dismiss the application entirely. To do that, the Board would, at the very least, have to be fully satisfied of the reliability of the second or "counter"-petition as an indicator of employee wishes. The Board is not so satisfied in the present case.
The bulk of the signatures on the counter-petition were collected by Racheal Pow, a checker and steward in the Flight Kitchen. Mrs. Pow indicated that roughly 90 percent of the employees in the bargaining unit could neither read nor write English. The preamble to the counter-petition was in English, and closely paralleled the form of Mr. Da Cuhna's. Mrs. Pow testified that she explained to each employee what the petition was about. Her account to the Board of that explanation was, however, confusing, and she was asked whether it was possible that some of the employees she approached to sign would have thought they were signing Mr. Da Cuhna's petition again. She replied: "I don't know really — I can't answer that".
Based on Mrs. Pow's evidence, and the close similarity between the two positions, the Board finds that it cannot give such weight to the second petition as to cancel the first, and cause the Board to dismiss this application.
Considering all of the evidence before it, the Board remains satisfied that not less than forty-five per cent of the employees in the bargaining unit at the time the application was made have voluntarily signified in writing that they no longer wish to be represented by the respondent union as of February 17, 1982, the terminal date fixed for this application and the date which the Board determines, under section 103(2)6) of the Labour Relations Act, to be the time for the purpose of making such determination.
The Board accordingly directs that a representation vote be taken of the employees of Canadian Pacific Hotels Limited (Chateau Flight Kitchen).
The matter is referred to the Registrar.
DECISION OF BOARD MEMBER W. H. WIGHTMAN;
While agreeing with the decision to order a vote, my grounds for doing so would have been on the grounds argued by Counsel for the applicant.
Counter petitions derive their legitimacy from the Board practice of viewing them as a logical extension of the certification provisions of the Act. Whatever basis may have existed for such a viewing of this type of document, I believe the practice should be re-examined in light of contemporary realities and empirical evidence and experience.