Canadian Union of Restaurant and Related Employees Hotel Employees and Restaurant Employees Union Local 88 v. United Food and Commercial Workers Union, Local 1000A, 1984 CanLII 1131

Ontario Labour Relations Board

Parties and Appearances

[1984] OLRB Rep. September 1340

1139-84-R; 1140-84-R; 1153-84-R Canadian Union of Restaurant and Related Employees Hotel Employees and Restaurant Employees Union Local 88, (AFL­CIO-CLC), Applicant, v. United Food and Commercial Workers Union, Local 1000A, Respondent, v. York County Quality Foods Ltd., Intervener

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members F. W. Murray and B. L. Armstrong.

APPEARANCES: Alick Ryder, Q. C. and T. Rees for the applicant; D. i. Wakely, Carl Peterson, John Bitove and Tom Bitove for the company; Paul Cavalluzzo and Dan Gilbert for Local I 000A.

Decision of the Board

DECISION OF THE BOARD; September 6, 1984

1. These are two applications for a declaration terminating bargaining rights, and on the assumption that they succeed, an application for certification. All three applications are filed by Local 88 of the Canadian Union of Restaurant and Related Employees, with a view to replacing Local 1000A of the United Food and Commercial Workers Union as bargaining agent for the units of full-time and part-time employees who operate the food-service outlets at Pearson International Airport in Malton.

2. The contract from the Ministry of Transport for those food-service outlets had been held for a number of years by Cara Operations Limited, and the United Food and Commercial Workers Union was certified to represent its employees at the air terminal in 1981. Local 1000A, as the Local with jurisdiction in that area, was involved in the organizing drive and took over the bargaining rights (and money paid) upon certification. It was Local 1000A who then negotiated and signed two-year collective agreements with Cara for each of a full-time and a part-time unit. Those collective agreements were ratified by both units of employees, and took effect in 1982.

3. The food-service contract at the airport came up for tender, however, in 1983, and in October it was announced by the Ministry that Cara had been outbid by York County Quality Foods Ltd. (hereinafter "York County Foods"). Local 1000A had the jobs of approximately 300 members at stake at that point, and in light of the decision of the Board in the analogous case of Metropolitan Parking Ltd., [1979] OLRB Rep. Dec. 1193 (denying the existence of "successor rights" in such situations), Dan Gilbert, the Local's President, immediately entered into discussions with the members, with Cara, and with various area politicians about what could be done. As one of the letters sent to the members put it:

TO: ALL BARGAINING UNIT EMPLOYEES, CARA OPERATIONS RESTAURANT DIVISION, TORONTO INTERNATIONAL AIRPORT

Greetings:

By now, you are aware of the likely possibility, as printed in the Toronto Star, that Cara Operations Ltd. has lost the operating contract for the Food and Beverage concessions at Toronto International Airport.

The Union and Cara have not yet received official notification from the Federal Government that York County Quality Foods Ltd. is the successor operator but in all probability, it will be factual. The Union will do its utmost, in an endeavour to protect the jobs of all of the members, as well as retaining the Bargaining Rights for them.

You will be advised of further details, as they become available.

Fraternally yours,

"D. Gilbert"

Dan Gilbert,

President.

Ultimately, Mr. Gilbert approached the successful bidder, York County Foods, to discuss the prospects of retaining his members in their current employment, and of negotiating a collective agreement with Local 1000A to cover them. Mr. Gilbert at the same time delivered to York County Foods copies of the current collective agreements between Local 1000A and Cara. York County Foods proved receptive to Mr. Gilbert's suggestion, and negotiations began in earnest in November. Mr. Gilbert kept his members informed of what was taking place, and on January 11, 1984, the day before York County Foods was to take over the operations from Cara, included a Memorandum of Settlement for a new collective agreement with York County Foods, to be effective without hiatus from the moment York County Foods took over the operations and the employment of Local 1000A's members. It was expressly understood in the Memorandum, however, that acceptance of the new collective agreement was subject to ratification by the members. The agreements themselves contained certain forms of "concessions", including a freeze on wages and benefits, and lower rates for new hires.

4. The records of Local 1000A confirm that all former employees of Cara were, in accordance with the Union Security provisions of the Cara agreements, members of Local 1000A, and these made up 180 of the 223 full-time employees engaged by York County Foods when it commenced operations on January 12th, and 37 of the 48 part-time employees. Notice of two ratification meetings (to cover shifts) was given by Local 1000A for January 19th, the purpose of the meeting being clearly set out as: "Business-Ratification of Memorandum of Agreement". Both units of employees ratified their respective collective agreements at these meetings. The employer was then duly notified in writing of this, and on January 23, 1984, formal collective agreements were signed by the parties. It is these two collective agreements which the applicant, Local 88, now seeks to set aside, under the provisions of section 60(1) of the Act, in order to clear the way for its own application for certification.

5. Section 60(1) of the Act provides:

Where an employer and a trade union that has not been certified as the bargaining agent for a bargaining unit of employees of the employer enter into a collective agreement, or a recognition agreement as provided for in subsection 16(3), the Board may, upon the application of any employee in the bargaining unit or of a trade union representing any employee in the bargaining unit, during the first year of the period of time that the first collective agreement between them is in operation or, if no collective agree­ment has been entered into, within one year from the signing of such recognition agreement, declare that the trade union was not, at the time the agreement was entered into, entitled to represent the employees in the bargaining unit.

The applicant argues that because the collective agreement voluntarily entered into between Local 1000A and York County Foods contains a provision (as it does) requiring, as a condition of employment, membership in the trade union that is party to the agreement, it is the requirements of section 46(4) of the Act which, in this application, must be met. Section 46(4) provides:

A trade union and the employer of the employees concerned shall not enter into a collective agreement that includes provisions requiring, as a condition of employment, membership in the trade union that is a party to or is bound by the agreement unless the trade union has established at the time it entered into the agreement that not less than 55 per cent of the employees in the bargaining unit were members of the trade union, but this subsection does not apply,

(a) where the trade union has been certified as the bargaining agent of the employees of the employer in the bargaining unit; or

(b) where the trade union has been a party to or bound by a collective agreement with the employer for at least one year;

The applicant argues that Local 1000A must therefore demonstrate that it "established" for the employer at the time these collective agreements were entered into that it in fact had as members the required majority of the bargaining units, and that the majority required was not less than 55 per cent. The applicant argues further that Local 1000A was not entitled to rely on the evidence of memberships arising out of the prior Cara agreements, as those memberships were themselves the product of a compulsory membership clause in a voluntary-recognition agreement, the International having been the trade union party to the certification application (and in whose name cards had been signed), and Cara having voluntarily agreed to accept the transfer of bargaining rights to Local 1000A. The applicant argues, finally, that all evidence of membership relied upon herein by Local 1000A had to be filed with the Board not later than the "terminal date" fixed for these applications, pursuant to the provisions of section 73 of the Board's Rules of Practice. The applicant, in conclusion, urges the Board to be vigilant in dealing with voluntary-recognition situations such as these, and not allow the employer to select at random who the bargaining agent for its employees will be, nor to dictate, in return for voluntary recognition, what the terms of a collective agreement will be. The applicant indicated to the Board that its only interest in these proceedings was to challenge, in the words of counsel, "a collective agreement in which the employees themselves were not involved".

6. The Board can readily imagine scenarios where the concerns expressed by the applicant would have meaning (and that is the whole purpose of section 60). The present scenario, however, is not one of them. Here the bargaining agent was not selected at random by the employer. Local 1000A is the very bargaining agent who already represented the employees of these food outlets in collective bargaining. Because of the "tender" process, the only newcomer on the scene was the corporate employer, and Local 1000A set about, not unreasonably, to confirm the continuation of both the employment of its members and its own bargaining rights. One can easily contemplate the employees' worst fears at the time that the loss of Cara's contract was announced, and we have no difficulty believing the evidence of Mr. Gilbert that he was in contact with his members and keeping them informed of his efforts throughout the course of his dealings with the successful bidder, York County Foods. And, while the terms of the proposed collective agreements were agreed to be effective as of January 12th, so that no hiatus occurred in the rights of employees under the Cara and York County Foods agreements, final agreement was nonetheless expressly made subject to ratification by the employees themselves. That ratification was arranged to take place within a week, after notice was duly given to all of the employees in the proposed bargaining units. The applicant draws to the Board's attention the fact that no figures are given for the attendance or votes at the ratification meetings, so as to permit the Board to be satisfied that the votes in favour of the contracts represented a "majority" of the employees in the bargaining units. The applicant purports to represent, however, a number of employees in these bargaining units, and tendered no evidence whatever of a lack of adequate notice with respect to those meetings. In the circumstances, the Board is fully prepared to treat the ratification result, after full opportunity to attend and vote has been afforded, as indicative of the will of the "majority" (we would note that this is consistent with the Board's own statutory procedures for certification after a vote in section 7(3) of the Act), and we are satisfied that the collective agreements in question meet the test of section 60.

7. This case in fact has many parallels with the case of Gilbarco Canada Ltd., [1971] OLRB Rep. March 155, cited by counsel for Local 1000A. There the challenged trade union tendered no "membership evidence" at all, but had, like here, openly involved the employees in the proposed bargaining in each step of its dealings with the employer, including final ratification of the collective agreement. The Board wrote:

8. While the applicant submitted that there were deficiencies in the mem­bership evidence of the Gilbarco employees' Union, we are of the opinion that the requirements of section 45a [now section 60] of The Labour Relations Act, do not require membership. Section 45a speaks of representa­tion as opposed to section 7 of the Act which refers to membership. The Operative Plasterers' and Cement Masons' international Association of the United States and Canada, Local 117 v. The Canadian Plasterers' Union v. Toronto Plastering Company Limited 1967 December, OLRB Mthly. Rep. 879 at 891. Accordingly, in assessing applications under section 45a the requirements of membership which obtain in applications for certifica­tion do not obtain although membership may be some evidence of represen­tation.

9. In this case a majority of the employees attended meetings where they set up the Gilbarco Employees' Union, and they attended meetings where they discussed the bargaining relationship and ratified a proposed collective agreement. In the face of those facts we can only conclude that the Gilbarco Employees' Union at all material times represented the employees at Brock­ville.

The Board then went on to say:

18. There is a further ground for rejecting this application which flows from equity. The function of section 45a is to protect employees by enabling this Board to set aside collective agreements entered into by a trade union and an employer in a situation where the trade union does not represent the employees. The section envisions protecting the rights of employees to join a trade union of their own choice and to have their chosen trade union represent them in collective bargaining. In this case the employees freely and actively selected a trade union to represent them and participated in the procedures leading to the signing of a collective agreement. In our view section 45a is not intended to protect the employees in this type of situation. There is no evidence of any misrepresentation or fraud which induced these employees to set up the Gilbarco Employees' Union and to ratify the collective agreement.

19. The facts of this case clearly demonstrate that the employees have held out to the company a trade union that they put forth as a duly constituted trade union and have induced the company to enter into a collective agree­ment with that trade union. It is also relevant that the collective agreement which was entered into is not only binding upon the employer and the trade union, but it is also binding upon the employees in the bargaining unit defined in the agreement.

We consider these latter comments appropriate to the case at hand as well.

8. With respect to section 46(4), that section has long been a part of the Act, and constitutes a wholly different issue from that raised by an application under section 60 of the Act. The applicant would argue, however, that section 46(4) provides another basis upon which the present collective agreement should be set aside, in light of the words in the section that:

"A trade union and the employer of the employees concerned shall not enter into a collective agreement that includes . .

This means, the applicant submits, that an improperly negotiated "compulsory membership" clause is not severable from the rest of the collective agreement: the whole agreement falls. This, the applicant submits, is as it should be, since the Union Security provision cannot be separated from the rest of the "package" on the table.

9. The Board is prepared to assume, without deciding, that this issue is properly before us in the present proceedings, that the applicant would have the status to complain about this matter, and that the whole collective agreement would necessarily fall with the Union Security provision. What we find, in any event, is that Local 1000A fairly "established" to the employer at the time the present agreement was entered into that it had as members well in excess of 55 per cent of the proposed bargaining units. The employer knew that it was staffing its operation for the most part with the existing Cara employees, and was provided with copies of the applicable collective agreements, by the terms of which all employees of Cara were required to be members of Local 1000A. Whether or not those collective agreements can properly be regarded as "voluntary" because of the transfer of jurisdiction from the Internation­al to the Local (which we doubt), those collective agreements were more than a year old, and therefore no longer subject to challenge under the provisions of section 46(4). York County Foods had no other reason to go behind the face of those collective agreements, and indeed, none has been shown to us.

10. The applicant has referred us to the decision of the Board in Dellelce Construction, [1971] OLRB Rep. Dec. 778. That case, however, was a termination application under what is now section 60. The fact that the incumbent trade union gave applications for membership to the employer for signature by the employees was irrelevant: that took place after the collective agreement in dispute had been consummated, and could not have assisted the incumbent in demonstrating that it represented a majority "at the time that the collective agreement was entered into". What caused the agreement to be abrogated by the Board in that case was the fact that the trade union party to it had dealt with only a small "committee" of employees in taking its mandate, and, in direct contrast to our own case, had gone to the general body of employees only after consummation of the collective agreement, to explain its terms, and not for ratification. The Board in the present case feels no compulsion, contrary to the submission of the applicant, to "save" the employees in these bargaining units from a collective agreement which they had every opportunity to accept or reject.

11. The final point for decision is the applicant's contention that any "evidence of membership" upon which Local 1000A relies was required by section 73 of the Rules to be filed with the Board prior to the "terminal date". The section provides:

73.-(1) Evidence of membership in a trade union or of objection by employ­ees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application for certification or for a declaration terminat­ing bargaining rights unless the evidence is in writing, signed by the employ­ee or each member of a group of employees, as the case may be, and,

(a) is accompanied by,

(i)the return mailing address of the person who files the evidence, objection or signification, and

(ii)the name of the employer; and

(b) is filed not later than the terminal date for the application.

(2) No oral evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall be accepted by the Board except to identify and substantiate the written evidence referred to in subsection (1).

While the Rule does refer to applications for a declaration terminating bargaining rights as well as applications for certification, it would appear to be termination applications filed under section 57 which are contemplated. Applications under section 60, for example, do not, as the Board has noted, require the filing of "evidence of membership" at all, although that may in fact occur in a given case. More importantly, the concept of a "cut-off' date for the filing of evidence of employee wishes would appear to have meaning only in cases where ongoing campaigns are a material possibility. Under section 60, the relevant evidence is determined as of the date the impugned collective agreement was entered into. The same can be said for section 46(4), which, in addition, as the applicant has noted, appears to impose the requirement of satisfying not the Board but the employer that the requisite majority was held as of the time the collective agreement was entered into. Consistent with this analysis, we note that the Board has never in applications under section 60 of the Act required the filing of "evidence of membership", if such is relied upon, at any time prior to the hearing, and, with respect to section 46(4), that the normal means of ensuring compliance with that section would be by way of unfair labour practice complaints, for which no terminal date is prescribed.

12. For the foregoing reasons, the two applications for a declaration terminating bargain­ing rights are dismissed. And owing to the existence of Local 1000A's collective agreement, the application for certification is untimely and is dismissed as well.

13. In light of an earlier application for certification which was withdrawn and the present application, Local 1000A has requested that a dismissal on this occasion be accompanied by a bar. In the circumstances before us, the normal practice would not be to impose a bar, but rather to deal with the issue as a request not to entertain should a further application be filed. In view of the findings in these applications, however, and the affirmation of a contract bar, it appears to the Board that the issue is academic.