[1982] OLRB Rep. December 1863
1304-82-R Hotel, Restaurant & Cafeteria Employees, Local 75, Applicant, v. Orangeroof Hotels Limited, Howard Johnsons Airport Hotel, Respondent.
BEFORE: E. Norris Davis, Vice-Chairman and Board Members E.J. Brady and B. Lee.
APPEARANCES: Alick Ryder Q.C. and Gerry Jones for the applicant; W.J.M. Hanson R. King and R. Copeland for the respondent.
DECISION OF THE BOARD; December 14, 1982
This is an application for certification.
The board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.
The bargaining unit sought by the applicant would include two employees both of whom are classified as "night auditors". The respondent's submission is that if there is to be a unit it should comprise all the remaining employees as a "tag end" unit which would effectively expand the current number of employees to be affected to nine and, in addition to the Night Auditor classification, would also include persons classified as bookkeeper, reservations, sales and catering secretary, catering coordinator, two secretaries, and sales representative.
The parties are currently parties to two collective agreements which will run till November 1982. Collective bargaining relationships were first established in 1978 following Board decision in file 0182-82-R. As a result of that decision three bargaining units were found to be appropriate and may be generally characterized as an "all employee" unit, a "front desk office staff" unit, and a "part-time" unit. The latter unit is of no relevance to the present application: certificates were ultimately issued to the applicant following representation votes in respect to the other two units; and collective agreements ensued. The persons covered by the instant application, "night auditors" were excluded from the "all employee" unit certificate by agreement of the parties. In the "front desk office staff" unit a representation vote was conducted in which night auditors were not on the agreed voters' list and the subsequent certificate makes no specific mention of that classification. In the collective agreements between the parties covering the "front desk office staff" unit the parties did specifically exclude "night auditors".
It was the applicant's argument that there had been some change in duties of the "night auditors" since the original certification, and that in the 1978 proceedings the motivation for exclusion might have been because of the exercise of managerial functions. The record itself does not disclose the basis on which the parties agreed to exclude that classification from the "all employee" unit or in establishing the "front desk" unit voting list. The applicant now argued that night auditors had a community of interest with the "front desk" unit and that if it secured the right to represent them it might then be able to bargain them into that unit during current contract renewal negotiations: the applicant further argued that if the Board acceded to the "tag end" unit proposal of the respondent it would result in night auditors being combined with a group with whom there was little or no community of interest.
The respondent argued that the specific exclusion of night auditors from the bargaining unit in the collective agreement represents a concession bargained for in good faith and for which it must be assumed the company gave some quid pro quo. It is argued that the Windsor Arms case, [1981] OLRB Rep. Sept. 1313 rationale should lead to a conclusion that where the union has gained an unfair advantage and there has been prejudice to the employer, the Board should not now entertain the application and to enable the applicant to secure through the Board what it gave up in bargaining. It also argued that the Board should require the applicant to apply for the "tag end" unit and refers us to the cases of Canadian General Electric Company Limited, [1979] OLRB Rep. March 172; McKellar General Hospital, [1971] OLRB Rep. June 312.
The issue of the effect of an agreement entered into by a party before the Board on future applications made to the Board is the subject of a comprehensive examination in the Board's decision in the Windsor Arms Hotel Limited case, supra. The ramifications of the question are outlined in para. 12 of that decision where the Board said,
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 of 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.
The Board went on to examine a number of decisions where the issue had been raised in section 95(2) applications and, in a lesser frequency, in certification applications. The Board, in ultimately concluding that it should entertain the application before it, said,
"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 we should proceed with the application in its merits".
In the instant case it is not represented that the agreement for non-inclusion of night auditors on the voting list of the front desk unit gave to the applicant an unfair advantage or caused prejudice to the respondent, but rather that the prejudice to the respondent arose out of the specific exclusion of that classification which had not been included in the Board's certificate. As we read the Windsor Arms case, supra, the Board is concerned about the preservation of the integrity of its process and therefore, in a proper case, would not permit a party to resile from an earlier agreement made before the Board and which resulted in an unfair advantage to the applicant. In our view this is not the instant case and in any event it cannot be said that the events, after the conclusion of two collective agreements can be characterized as "very recent". We are therefore satisfied that the application should be dealt with on its merits.
The Board must determine whether the unit proposed by the applicant is one which is appropriate for collective bargaining. In so doing we have a primary concern for the viability of it as a collective bargaining entity and must also look to the total operations of the employer to determine whether it will result in excessive fragmentation which, in itself, militates against collective bargaining stability. The applicant here did not argue strongly that the proposed unit was in itself viable but rather that a certificate might put the applicant in a position from which it could bargain the employees into an existing viable unit. Certainly following the issuance of a certificate the parties would have the authority to so agree. However the Board must make its decision on whether or not the unit now proposed is, in itself, one which is viable for collective bargaining independent of what future re-arrangements might be reached between the parties. The concerns which the Board holds in respect to the viability of the applicant's unit together with the resultant fragmentation leads us to the conclusion that the appropriate bargaining unit in this case is a "tag end" unit. As said by the Board in the Canadian General Electric Company Limited case, [1979] OLRB Rep. Match 169 at p. 172,
In the process of organizing an employer's operation there may come a point when having regard to the extent of organization which has already taken place, the Board may decide that in order to avoid excessive fragmentation of the remnant group the appropriate unit is a tag-end unit encompassing the remaining unorganized employees with the possible exception of any remaining unorganized group(s) that the Board has traditionally recognized as constituting an appropriate unit. By the time an operation reaches a tag-end situation concerns for further fragmentation override the Board's usual insistence that employees in a bargaining unit share a community of interest. Consequently, in order to extend bargaining rights to a remnant group in the most beneficial way possible, the Board in those circumstances may find a bargaining unit appropriate which it might not have found appropriate at a less advanced stage or organization. (See Ajax and Pickering General Hospital [1972] OLRB Rep. May 477). In The Greater Niagara General Hospital, [1975] OLRB Rep. Jan. 16, the stationary engineers, service employees, nurses and technicians were already organized in four separate bargaining units at the time of application. In view of the bargaining structure in place, the Board denied the applicant's contention that the appropriate unit should be restricted to a number of occupations in the remaining group of unorganized employees and found that to avoid undue fragmentation the only appropriate unit was a tag-end unit.
For all of the above reasons the Board finds that the unit of employees appropriate for collective bargaining includes all office, clerical, sales employees of the respondent at the Howard Johnson Hotel at 801 Dixon Road, Rexdale, Ontario save and except supervisors, persons above the rank of supervisor, persons covered by subsisting Collective Agreements and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
The Board is satisfied on the basis of all the evidence before it that less than forty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on October 22, 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.
The application is therefore dismissed.