[1983] OLRB Rep. May 636
2147-82-R Hotel Employees and Restaurant Employees Union, Local 75, Applicant, v. Food Corp. Limited (Urban Restaurant Division, Commerce Court, Respondent.
BEFORE: R. 0. MacDowell, Vice-Chairman, and Board Members W. H. Wightman and P. J. O'Keeffe.
DECISION OF THE BOARD; May 13, 1983
By letter dated March 23, 1983, the solicitors for Food Corp. Limited advised the Board that by reason of a corporate reorganization, Food Corp. Limited has become the employer of the employees to which this application applies. Accordingly, the style of cause of this application is amended to substitute Food Corp. Limited (Urban Restaurant Division, Commerce Court) as the correct name of the respondent herein. For reasons set out below, the name of the applicant is amended to read: Hotel Employees and Restaurant Employees Union, Local 75.
This is an application for certification in which the applicant union requested the taking of a pre-hearing representation vote. In accordance with its usual practice, the Board appointed a Labour Relations Officer to meet with the parties to endeavour to settle the voting constituency and the voters' list. The parties were in substantial agreement with respect to the description of the bargaining unit and the voting constituency, although they were not in agreement about the status of "sous chefs" or "cashiers". The union took the position that these individuals were "employees", sharing a community of interest with their fellows, and, as such, should be entitled to vote and to be included in the bargaining unit. The employer took a contrary position.
By decision dated February 1, 1983, the Board directed that a Labour Relations Officer inquire into this matter, but also directed the taking of a pre-hearing representation vote with the proviso that the individuals whose status was in dispute should cast segregated ballots. The voting constituency was described as follows:
All employees of the respondent's Urban Restaurant Division working at Commerce Court (Wellington's Dining Room & Wellington's On The Court Lounge, Jolly Chef, Teller's Cage, Cafe Galleria, P. J.'s West & P. J.'s East) in the City of Toronto, save and except supervisors, chefs, sous chefs, persons above the rank of supervisor, chef and sous chef, management trainees, entertainers, office, sales, accounting and support staff, cashiers and students employed during the school vacation period.
The vote was held on the employer's premises on February 11, 1983, and on the agreement of the parties the ballots (other than those segregated) were counted. The voting results indicate that regardless of the eligibility of the disputed individuals to vote and the way in which they might have cast their ballot, more than fifty per cent of the respondent's employees have voted in favour of trade union representation. In other words, even if all of the individuals casting segregated ballots were included in the bargaining unit and voted against the union, it would still "win" the vote. Nevertheless (again in accordance with its usual practice), the Board put the matter on for a hearing to entertain the parties' representations with respect to that vote. In the meantime, as we have already noted, the legal identity of the employer had changed. It is not suggested that this, in itself, affects the issues in this case.
In order to appreciate the argument raised by the respondent employer, it is necessary to briefly sketch in some of the organizational history of the applicant union. As will become apparent, infra, the respondent is not the only entity which has been the subject of some reorganization. The facts are not in dispute.
On September 2, 1982, Local 75 of the Hotel, Restaurant & Cafeteria Employees Union (the traditional name of Local 75), affiliated with the Hotel and Restaurant Employees and Bartenders International Union, AFL-CLO-CLC (the traditional name of the parent union) filed an application for certification respecting the employees of "Wellington's Restaurant" - then run by Cara Operations Limited. Wellington's is one of a number of food and beverage establishments in the "Commerce Court" commercial complex in Toronto. On October 26, 1982, the applicant sought leave to withdraw this application, and by decision of the Board dated November 3, 1982, the application was dismissed. The applicant then set about organizing the other food service employees working in the food service outlets in Commerce Court. These employees subsequently became the subject of the present certification application.
The Hotel, Restaurant & Cafeteria Employees Union, Local 75 has established its status as a union within the meaning of section l(l)(p) of the Labour Relations Act. So has its parent International Union. The respondent herein does not question the status of either union entity.
At its 1981 international convention, the parent Hotel and Restaurant Employees and Bartenders International Union, changed its name to the "Hotel Employees and Restaurant Employees International Union". Such change in name, of course, does not impair its status as a trade union within the meaning of the Act. More important for this case, however, are the changes to "Local 75".
In order to eliminate duplicate expenses and administration costs, and generally to improve the efficiency of service to its membership, the parent International Union decided to merge some of the smaller local unions scattered around Ontario into the Local 75 - the Toronto Local. The merger was affected under Article 5, section 19 of the International Union constitution, which empowers the general president to merge local unions with the approval of the general executive board. This power was exercised by instrument dated October 25, 1982, entitled "Declaration and Order for Merger" and under which (to put the matter colloquially) Hotel and Restaurant Employees and Bartenders Union, Local 756 (Hamilton, St. Catharines) and Hotel, Motel and Restaurant Employees Union, Local 893 (Atikokan) were "folded into" Toronto Local 75. In addition, under this document, new bylaws were established which changed the name of the applicant to Hotel Employees and Restaurant Employees Union, Local 75. This amendment brought the name of the Toronto Local 75 more into line with the new name of the International. Subsequently, Hotel and Restaurant Employees Union, Local 743 (Windsor), Beverage Dispensers' Union, Local 412 (Sault Ste. Marie), and Hotel, Motel and Restaurant Employees and Beverage Dispensers Union, Local 757 (Thunder Bay) were also "folded into" Local the same manner. All of these formerly independent local unions referred to themselves in a slightly different way although all of the locals were affiliated to the same parent union and, as the local designations all indicate, all of the locals consist of hotel and restaurant employees.
The above-noted transactions changed the name, size, and responsibilities of Toronto Local 75, but there was no substantive or structural change. All of the officers of the Local remain the same. The business agents remain the same. The address remains the same. The bank account remains the same. Collective bargaining activity and the administration of existing collective agreements has gone on just as before. Local 75 has a number of subsisting collective bargaining relationships with employers in the Toronto area, and in respect of those relationships, Local 75 has continued to perform its role and fulfill its responsibilities as the employees' bargaining agent. No employer has raised any question about this, and it is acknowledged by the respondent that even if Local 75 under its "old name" and Local 75 under its "new name" were to be treated as two entirely separate entities (rather than the same entity with a slightly different name), both would clearly be "trade unions" within the meaning of section l(l)(p) of the Labour Relations Act. It is also agreed that there is no other trade union operating in Ontario or inToronto which could be confused with Local 75 under either its old or new name. No other union has sought to organize the respondent's employees. The only union on the scene is Local
The problem in this case arises from the various ways in which the applicant refers to itself on the various documents associated with this proceeding. The application itself, made on January 18, 1983, was filed mistakenly under the name "Hotel, Restaurant & Cafeteria Employees Union, Local 75" - the "old name" for the Toronto Local and the name in which the earlier application had been filed several months before. The old application was referred to as a precedent when the union filed the present application, and, in consequence, the old name was mechanically but mistakenly inserted in the style of cause. The membership documents filed in support of the application are of two different kinds. One group of cards is headed "APPLICATION FOR MEMBERSHIP in the HOTEL AND RESTAURANT EMPLOYEES' AND BARTENDERS' INTERNATIONAL UNION affiliated with AFL - CIO CANADIAN LABOUR CONGRESS"; and indicates a place where the employee makes application to become a member of HOTEL AND RESTAURANT EMPLOYEES' AND BARTENDERS' INTERNATIONAL UNION Local No. 75. These cards, more or less conform to the old name for the parent and local union, except that the latter has more recently included a reference to Cafeteria Employees. By signing such card, the employee is joining Local 75 of a hotel and restaurant employees' union affiliated to an international parent union. The other group of cards has a preamble APPLICATION FOR MEMBERSHIP in the HOTEL EMPLOYEES', RESTAURANT EMPLOYEES', INTERNATIONAL UNION and there follows a space wherein the individual employee makes application to become a member of HOTEL, RESTAURANT AND CAFETERIA EMPLOYEES' UNION LOCAL 75. In the case of these cards, the preamble reflects the new name of the International, but the traditional name of Local 75. Again, however, it is obvious that the employee is joining Local 75 of the hotel and restaurant employees' union which has an affiliation with its American parent union. The literature supporting the organizing campaign also refers to the union which employees are invited to join as the "Hotel, Restaurant and Cafeteria Employees' Union - Local 75 of Hotel and Restaurant Employees' and Bartenders' International Union". And there is reference to "Hotel Employees' and Restaurant Employees' International Union AFL-CIO" too. Finally, in accordance with the way in which the applicant initially styled this proceeding, employees were asked to vote upon whether or not they wish to be represented by the Hotel, Restaurant & Cafeteria Employees Union, Local 75.
Counsel for the respondent contends that the mergers referred to above have the effect of creating a new organization which, although a trade union, is a different trade union from the applicant. Counsel submits, therefore, that the application should be dismissed. In the alternative, the respondent argues that there would be confusion in the minds of the employees as to which union they were joining, such that the Board should disregard their membership evidence and the results of the representation vote.
The applicant maintains that neither the merger of certain other locals into Local 75 nor the change in its name affects the essential identity of Local 75. It is not a new entity because it is now bigger and has a new name. Counsel asserts that the instant application was made in the old name because of a simple and perhaps natural mistake, given that the applicant merely followed the precedent of its previous application a few months before. Counsel notes that there is not the slightest evidence of any actual confusion on the part of employees, nor has any employee come forward to impugn the representation vote on this basis. The union is the same body it always was, even though it may have been referred to, at various times, in slightly different ways. At all material times there has only been one union on the scene soliciting employee support. There is no other union present with which it could be confused. It has always been evident that the applicant is Local Union No. 75 of an International Union representing hotel and restaurant and related employees. Counsel submits that it would be unduly technical and prejudicial to the rights of the majority of employees as indicated in the representation vote, if the Board were to disregard the results of that vote simply because the material before the Board reflects the slightly different ways in which the applicant is actually referred to.
In an application for certification the Board places considerable reliance on a union's documentary evidence of membership - even though here we also have the confirmatory evidence of a representation vote. Any arguable irregularities or deficiencies in that documentary evidence will merely complicate the processing of a certification application and contribute to cost and delay. Such problems are usually minor, and totally avoidable with a modicum of care on the part of an applicant union.
The Board acknowledges that the union's organization campaign in this case coincided with certain structural and nominal changes to Hotel, Restaurant & Cafeteria Employees Union, Local 75; however, even so, it is evident that the union has been rather lax and sloppy in the conduct of its campaign through the use of membership cards and literature which do not refer precisely to the local union's correct name. Such laxity should not be encouraged. On the other hand, the evidence before us demonstrates beyond doubt that, despite certain variations in nomenclature, there has been no substantive change in the legal identity of Local 75, which was and continues to be a trade union within the meaning of section l(l)(p) of the Act; nor is there any real basis for confusion as to what the employees were joining or voting for. In our view, it would be unduly technical (as well as inequitable) if we were to disregard the desires of the employees for trade union representation as expressed on both the membership cards and the secret ballot vote. This is not a case, for example, where individuals could have been confused about whether they were joining one local or another, or a local versus a parent body. In such circumstances, different considerations might well apply. Here, however, there has only been one union on the scene from the outset and we do not think there is any reasonable basis for concluding that the employees did not know what they were voting for. We note, once again, that no employee has made any such assertion.
On the basis of the evidence before the Board, it is clear that whether or not the disputed sous chefs and cashiers are included in the bargaining unit, more than thirty-five per cent of the employees in the bargaining unit, at the time the application was made, were members of the union within the meaning of section 1(1)(l) of the Act. It is also evident, having regard to the results of the representation vote, that whether or not the sous chefs and cashiers are included in the unit, more than fifty per cent of the ballots case were cast in favour of trade union representation. Any dispute as to the composition of the bargaining unit in this case cannot affect the union's right to certification. Accordingly, the Board, pursuant to section 6(2) of the Act, and pending the final resolution of the composition of the bargaining unit, certifies Hotel Employees and Restaurant Employees Union, Local 75 as the bargaining agent for a bargaining unit described as follows:
All employees of the respondent's Urban Restaurant Division working at Commerce Court (Wellington's Dining Room & Wellington's On The Court Lounge, Jolly Chef, Teller's Cage, Cafe Galleria, P. J.'s West & P. J.'s East) in the City of Toronto, save and except supervisors, chefs, sous chefs, persons above the rank of supervisor, chef and sous chef, management trainees, entertainers, office, sales, accounting and support staff, cashiers and students employed during the school vacation period.
- A formal certificate must await the final determination of the appropriate bargaining unit.