[1982] OLRB Rep. August 1135
0461-82-R Food and Service Workers of Canada, Applicant, v. Bond Place Hotel, Respondent.
BEFORE: Ian Springate, Vice-Chairman and Board Members J. Wilson and B. L. Armstrong.
APPEARANCES: M. Cornish, N. Howes and M. Schuster for the applicant; M. Contini and S. Pustil for the respondent.
DECISION OF THE BOARD; August 19, 1982
- This is an application for certification. The respondent operates a hotel in the city of Toronto.
000
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The parties are in general agreement as to the description of two bargaining units, namely a "full-time" and a "part-time" unit. They agree that office staff and front desk staff should be excluded from both bargaining units but disagree as to whether or not switchboard operators should also be excluded.
As far as we are aware, the Board has not previously been called upon to rule on the issue of whether hotel switchboard operators should be excluded from an "all employee" bargaining unit along with office and front desk staff. The respondent led evidence to establish that at the other major hotels in downtown Toronto, the hotel and the union involved have agreed to exclude front desk and office staff from the "all employee" bargaining unit, but not to exclude switchboard operators. The respondent contends that the Board should follow this practice in the instant case. We are unable to accept this contention. Firstly, we do not know what considerations led to the exclusion of the switchboard operators at the other hotels. Further, we are of the view the Board should decide the issue in this case not on the basis of what is done at other hotels, but rather on the basis of the evidence put before us with respect to the respondent's hotel.
The evidence before us indicates that only one switchboard operator is on duty at the hotel at any onetime. The switchboard operator sits in a small room behind the front desk. There is no door in the entrance between this room and the front desk. The switchboard operators answer in-coming calls to the hotel, and also make the wake-up calls in the morning. With information cards supplied by the front desk staff, the switchboard operators maintain an up-to-date alphabetical list of hotel guests. The operators also take messages for hotel guests who are not in their rooms. The switchboard operator on duty will put one copy of message into a slot at the front desk, and put another copy in an envelope on the front desk so that it can later be picked up and taken to the guests room by a bell-boy.
No switchboard operator is on duty between 11:00 p.m. and 7:00 a.m. During those hours, all incoming calls are taken either by the Front desk staff or by a security guard. The front desk staff take any wake-up call requests after 11:00 p.m. and make the wake-up calls prior to 7:00 a.m.
Unlike most staff in the hotel who are supervised by a manager, who in turn reports to Mr. N. Karim, the hotel's general manager, the switchboard staff and the front desk staff both report directly to Mr. Karim.
Given the above facts, we are of the view that the community of interest of the switchboard operators lies more closely with the front desk and office staff than it does with the employees agreed to be in the bargaining units. This being the case, switchboard operators will be excluded from both bargaining units. Having regard to this conclusion, and the agreement of the parties with respect to all other issues relevant to the description of the bargaining units, the Board finds the following to be units of employees appropriate for collective bargaining:
"FULL- TIME" UNIT:
All employees of the respondent in the Municipality of Metropolitan Toronto employed at the Bond Place Hotel, save and except supervisors, persons above the rank of supervisor, office staff, front desk staff, switchboard operators, security personnel, persons regularly employed for not more than twenty-four hours per week, and students employed during vacation period.
"PART-TIME UNIT:
All employees of the Respondent at the Bond Place Hotel in the Municipality of Metropolitan Toronto regularly employed for not more than twenty-four hours per week and students employed during the school vacation period save and except supervisors, persons above the rank of supervisor, office staff, front desk staff, switchboard operators and security personnel.
The applicant contended that a number of persons whose names were included on the list of employees prepared by the respondent exercised managerial functions within the meaning of section l(3)(b) of the Act, and hence were not employees within the bargaining unit. During the hearing, the respondent withdrew its challenges with respect to two of these persons. With respect to two others, namely, Maria Sousa and Denyse Guite, the Board ruled orally that notwithstanding their limited supervisory functions, neither of them exercised the type of independent decision making associated with persons who exercise managerial functions.
The Board also heard evidence with respect to yet another person on the list of employees who according to the applicant exercises managerial functions, namely, Mr. Michael Erwin. Mr. Erwin testified that he is classified as a "duty cook". In mid April of 1982 the Hotel discharged its chef. During the following two and a half weeks, until a new chef was hired, Mr. Erwin served as the acting chef. We are satisfied that while serving as the acting chef Mr. Erwin did exercise managerial functions. We are further satisfied, however, that Mr. Erwin ceased to perform any managerial functions prior to June 4, 1982 the date of the filing of the application, and that accordingly his name was appropriately included on the list of employees.
During the hearing the Board orally upheld the applicant's contention that the name of Mr. Fred White should be added to the list of employees. Mr. White was terminated at about 8:05 a.m. on June 4, 1982, the application date, shortly after he arrived at the Hotel. Mr. White did not actually perform any work on the day in question. In our view, Mr. White remained an employee of the respondent until such time as he was actually terminated, and hence he was an employee of the respondent for part of the application date. The application for certification was mailed by way of registered mail to the Board on June 4, 1982. Although no evidence was led on point, it is reasonable to assume that it was actually mailed some time after 8:05 a.m. when Mr. White was discharged. In our view, however, the test is not whether Mr. White was an employee at the precise time that the application for certification was mailed, but whether he was an employee on the date of mailing. In this regard we would adopt the following reasoning of the Board in Windsor Tube & Metal Inc. [1977] OLRB Rep. June 396:
"The Board has always taken the view that employee status is determined as of the day that the application for certification is made, rather than the precise time of mailing. In this respect, the phrase "time of mailing" in the Rule (now Rule 75) is intended to mean the date of mailing — which is all that the registration stamp would indicate. Section 102(2) (now section 113(2) of the Labour Relations Act provides as follows:
An application for certification or accreditation or for a declaration that a trade union or employers' organization no longer represents the employees or employers, as the case may be, in a bargaining unit, if sent by registered mail addressed to the Board at Toronto, shall be deemed to have been made on the date on which it was so mailed.
There can be no doubt that the application for certification is deemed to have been made on the date on which it is mailed. In our view, this is the time the application was made for the purposes of section 7(1) of the Act. Indeed, the schedules which the employer is required to submit to the Board, together with its reply (and which must be in the form specified by the regulations), all require the employer to list employee status on the date of the application for certification. There is no doubt in this case that the 7 discharged persons were "employees" on the date on which the application was mailed and, therefore, by virtue of section 102, were "employees" on the date on which the application was mailed and, therefore, by virtue of section 102, were "employees" "when the application was made". In our view, therefore, these 7 persons were employees "at the time the application was made" and it is unnecessary to defer our consideration until the completion of the section 79 proceedings. Whatever the outcome to those proceedings, the employees' status cannot be affected, since it is our view that they were, in fact, employees in the bargaining unit at the time the application was made. Even if it can be said that the phrase "time the application was made" is ambiguous, it is our view — having regard to section 102 and the entire scheme of the Act and Rules that employee status is to be measured as at the date on which the application is made. See United Steelworkers of America v. Ampllfone Canada Ltd. v. Group of Employees, [1967] OLRB Rep. Dec. 840 where the Board found that employees who presented themselves at their place work in the reasonable expectation of carrying on their normal employment must be found to be employed on the date they so reported, notwithstanding the fact that they were laid off indefinitely without performing any work on that same date."
(emphasis added).
In these circumstances, we are satisfied that Mr. White is appropriately regarded as a bargaining unit employee for the purpose of section 7(1) of the Act.
Two challenges remain with respect to the accuracy of the lists of employees. These challenges relate to Mr. S. Dowdell and Miss N. Howes, both of whom were discharged by the respondent prior to the application date. It is the contention of the applicant that both of these individuals were discharged because of their activities on behalf of the applicant, and accordingly pursuant to section 1(2) of the Act they are deemed to have remained employees of the respondent. If the applicant's contention is correct, Mr. Dowdell's name should be included on the list of employees in the "full-time" unit and Miss H owes on the list of employees in the "part-time" unit. To date the applicant's allegations with respect to Mr. Dowdell and Miss H owes have not been inquired into. In terms of revealing the applicant's membership position, the Board was advised at the hearing that all of the parties were now aware that both Mr. Dowdell and Miss Howes had signed applications for membership in the applicant trade union.
On the basis of all of the evidence before us, we are satisfied that on the date of the making of the application there were, depending upon the status of Mr. Dowdell, either 76 or 77 employees in the "full-time" bargaining unit. The applicant filed evidence of membership on behalf of 42 (or 43 counting Mr. Dowdell) of these employees. Accordingly, we are satisfied that more than fifty-five per cent of the employees of the respondent in the "full-time" bargaining unit at the time the application was made, were members of the applicant on June 15, 1982, the terminal date fixed for this application and the date which the Board determines, under section 103(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. It is to be noted, however, that a number of persons who had become union members also signed statements of desire in opposition to the application. The circumstances surrounding the origination and circulation of these statements of desire have not as yet been inquired into.
We are satisfied that on the application date there were, depending on a final resolution with respect to Miss Howes, either 25 or 26 employees in the "part-time" bargaining unit on the date of the filing of the application and that either 11 or 12 of these employees were members of the applicant on June 15, 1982. Accordingly, the Board is satisfied that at the relevant time fewer than forty-five per cent of the employees in the "part-time" bargaining unit were members of the applicant.
The Board notes that the applicant has requested that it be certified pursuant to the provisions of section 8 of the Act if it is not otherwise entitled to outright certification.
The matter is to be re-listed for hearing to hear the evidence and the representations of the parties with respect to all outstanding issues.
The matter is referred to the Registrar.