Ontario Labour Relations Board

[1984] OLRB Rep. December 1714

1515-84-R Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees Union, Local 88, AFL-CIO-CLC, Applicant, v. Famz Foods Limited, Respondent, v. Canadian Union of Restaurant and Related Employees, Incumbent Trade Union, v. United Food and Commercial Workers International Union, Intervener

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members W. G. Donnelly and H. Kobryn.

DECISION OF THE BOARD; December 20, 1984

1. This is an application for certification. The applicant is a trade union as defined by clause 1(1)(p) of the Labour Relations Act. The respondent operates a Swiss Chalet restaurant. In its Reply, it alleges it is bound by a collective agreement between the Swiss Chalet Employers' Association ("SCEA") and the Canadian Union of Restaurant and Related Employees ("CURRE"). CURRE did not file an intervention in this application, but counsel for Local 88 advised the Board that he was authorized to speak on CURRE's behalf. It has been a matter of uncontraverted evidence in another proceeding before this Board that Local 88 was brought into existence as the vehicle for a proposed merger of CURRE into the Hotel Employees and Restaurant Employees International Union. By a decision dated September 12, 1984, in Board File No. 2628-83-R, a differently constituted panel of the Board found that an attempt by the executive board of CURRE to cause CURRE to merge into Local 88 was legally ineffective, and the Board declared that Local 88 had not acquired CURRE's rights, privileges and duties under the Labour Relations Act. The term of the agreement between the SCEA and CURRE ended November 8, 1984, and the existence of that agreement would not bar a certification application filed on or after September 9, 1984. This and a number of other applications for certification with respect to employees of Swiss Chalet Restaurants were filed by Local 88 shortly after that date. The United Food and Commercial Workers International Union ("the UFCW") sought to intervene in all of those application but, as a result of this panel's decisions of November 23rd and December 10th, the UFCW was denied standing in this and five others of Local 88's certification applications. This and four of those five other applications were heard on their merits on December 10, 1984, at which time the Board in each case reserved its decision, on the issue now dealt with in paragraphs 5, 6 and 7 of this decision.

2. Having regard to the agreement of the parties, the Board finds that

all waitresses, waiters, busboys, kitchen staff, cashiers and bartenders employed by the respondent at 3078 Dougall Avenue, Windsor, Ontario, save and except assistant hostesses and persons above the rank of assistant hostess,

constitute a unit of employees of the respondent appropriate for collective bargaining. We should note that this respondent is not alleged to operate any other Swiss Chalet Restaurant in the City of Windsor, or anywhere else in the Province of Ontario.

3. The Board is satisfied on the basis of all the evidence before it that more than fifty-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 September 25, 1984, 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.

4. Subsection 7(2) of the Act provides that if an applicant trade union establishes that more than fifty-five per cent of the employees in the appropriate bargaining unit were members of the trade union at the relevant time, then the Board may, in its discretion, either order a representation vote or certify the applicant without a vote. When another trade union already has bargaining rights with respect to the employees in question, the Board's practice has been to order a representation vote among the employees affected by the application; see, for example, Thomas Fuller Construction Company (19S8) Limited, [1963] OLRB Rep. May 108; Redfern Construction Company Limited, [1967] OLRB Rep. Sept. 606; Nadeco Limited, [1970] OLRB Rep. April 141. This practice, and the reason for it, were described nearly forty years ago in Canadian John Wood Manufacturing Co., Ltd., 46 CLLC ¶ 16,449, where Professor Finkelman wrote:

.There has been no intervention in the present proceedings. Had the United Steelworkers of America, Local 3062, intervened in these proceedings, we should have followed our usual practice in such cases, a practice sanctioned by the decision of the National Board in the New York Central case, [Dominion ¶ 10,436], and directed a vote in which the name of the petitioner as well as that of the aforementioned trade union would both have appeared on the ballot, so as to enable the employees to indicate their preference. In our opinion, the employees should be afforded such a choice in this instance despite the fact that the United Steelworkers of America, Local 3062, has not intervened in these proceedings. Such a course would carry out the thought which motivated the National Board in the New York Central case, supra, namely, that an organization which holds a collective agreement should not be displaced unless the employees are given an opportunity to mark their ballots in its favour.

Our conclusion in this respect is also in line with our decisions in the Beach Foundary case, [¶ 16,443], the Purity Bread case, [¶ 16,447] and the Toronto Transportation Commission case, [¶ 16,448]. The underlying principle in all of these cases is that stability in collective bargaining relations should be promoted to the fullest extent that the law will permit. This case must be distinguished from those cases in which an trade union or employees' organization party to such agreement, having lost interest in the employees, makes no effort to renew the agreement. It must also be distinguished from those cases in which a trade union or employees' organization party to an agreement has been dissolved or has disintegrated and has thus ceased to exist. Breihaupt Leather case, [¶ 16,446]. In those instances, we would not be inclined to include the name of such an organization on the ballot unless it actually intervened in the proceedings. Here, the trade union which was a party to the agreement was still a living force an still retained its interest in the collective agreement when the application of the present petitioner was filed. [emphasis added]

An applicant's success in a displacement application has the effect of terminating the bargaining rights of the incumbent trade union. The principles set out in the passage quoted from John Wood Manufacturing Co., Ltd., supra, are reflected explicitly in the provisions of the Act which deal with the termination of bargaining rights on the application of employees, and particularly in section 57(3) of the Act.

5. In his capacity as spokesman for CURRE, counsel for Local 88 advised the Board that CURRE did not oppose Local 88's acquisition of the bargaining rights CURRE claimed to have, and CURRE no longer wished to assert bargaining rights with respect to the employees affected by this application. Counsel suggested that CURRE's position obviated the need for a representation vote. Counsel said he recognized the Board's invariable practice of ordering a vote in displacement situations, however, and had been unable to find any authority which might assist us in determining whether or not to follow that practice in circumstances such as these, where the alleged incumbent does not wish to participate in a vote.

6. The Board's endorsement in The Marra's Bread Limited, [1965] OLRB Rep. June 156 reads as follows:

In its endorsement dated June 9th, 1965, the Board directed that a representation vote be taken among the employees of the respondent in the bargaining unit in which voters will be given a choice between the applicant and The Association of Driver Salesmen, Warehousemen and Over-The-Road Drivers of Marra's Bread Limited. Since that endorsement was issued, the Board has been advised by letter dated June 11th, 1965, over the signatures of representatives of the Association, that the Association no longer claimed to represent the employees of the respondent and did not wish to participate in a vote.

Having in mind these circumstances and the representations of the parties, the Board revokes its direction that a representation vote be taken in this matter.

Although it is not made explicit by the endorsement, one presumes the applicant trade union was thereafter certified without a vote. In The Craig Bit Company Limited, [1978] OLRB Rep. May 411, the incumbent employees' Association had held a meeting to discuss the subject of representation by the Steelworkers, and a large majority of its members had voted in favour. The Steelworkers organized the unit in the appropriate way, and at the hearing of its application for certification, the employees' Association filed a document indicating that it no longer wished to retain its bargaining rights with respect to the unit in question. The Board held that there was "no reasonable requirement for the holding of a representation vote between the applicant and the employees' Association", and certified the applicant without conducting such a vote.

7. Even in the context of a termination application, where the statute makes it necessary to resort to a representation vote before the rights of an incumbent trade union can be terminated, sub-section 57(5) provides:

Upon an application under subsection (1) and (2), where the trade union concerned informs the Board that it does not desire to continue to represent the employees in the bargaining unit, the Board may declare that the trade union no longer represents the employees in the bargaining unit.

8. We are satisfied that there is no labour relations policy that requires a representation vote between an applicant and an incumbent when the incumbent is content to abandon its bargaining rights. Of course, the existence or otherwise of a trade union holding bargaining rights with respect to affected employees is not the only factor the Board considers in determining whether to order a representation vote notwithstanding the demonstration by an applicant trade union of membership support sufficient to warrant certification without a vote. In this case, however, none of the interested parties has put before us any other circumstance which would lead us to exercise our discretion in favour of directing a vote. There is nothing in the material properly before us in this case which suggests that the membership evidence submitted by the applicant is unreliable as a measure of the employees' desire to have the applicant represent them in collective bargaining with the respondent, or that Local 88 has been the beneficiary, directly or indirectly through the medium or CURRE, of employer support of such a nature as would disentitle it to certification. In all these circumstances, we are satisfied that we do not need the confirmatory evidence of a representation vote, and have determined not to direct that one be conducted.

9. It should be noted that there are other proceedings before the Board involving Local 88, CURRE, the UFCW, and the employers of persons employed at other Swiss Chalet Restaurants, in which CURRE's bargaining rights and its agreement with the SCEA have been challenged by the UFCW. It is not necessary for us to determine whether that challenge, if successful, would compel the conclusion that CURRE did not have the rights of an incumbent trade union with respect to the employees affected by this application. If there were no incumbent trade union, then there would equally have been no circumstance properly before us which would have led to our ordering a representation vote.

10. Accordingly, a certificate will issue to the applicant with respect to the bargaining unit referred to in paragraph 2 of this decision.