[1985] OLRB Rep. September 1414
1242-85-R Retail, Wholesale and Department Store Union, AFL-CIO-CLC, Applicant, v. Bidwell Investments Limited c.o.b. as President Motor Hotel, Respondent
BEFORE: Robert D. Howe, Vice-Chairman, and Board Members K. Rogers and A. Grant.
APPEARANCES: L. Steinberg and M. Hoffmann for the applicant; John W. Woon and Kenneth C. Stonley for the respondent.
DECISION OF THE BOARD; September 6, 1985
The name of the respondent is amended to "Bidwell Investments Limited c.o.b. as President Motor Hotel".
At the commencement of the hearing of this application for certification on September 6, 1985, counsel for the respondent requested that the proceedings be adjourned to afford him a further opportunity to attempt to locate a copy of a collective agreement (dated June 9, 1968) that he alleged to be still in force between the parties to this application. It was his position that the contents of that collective agreement could be of assistance to the Board in determining whether the applicant had abandoned its bargaining rights in that the contents of the collective agreement might be "very unfavourable" and might, therefore, support an argument that a desire to get out of those unfavourable terms provided the basis for the applicant's position that it had abandoned its bargaining rights. Counsel for the applicant opposed that request for an adjournment. It was his position that the contents of the collective agreement would not be relevant to the issue of whether the applicant had abandoned its bargaining rights. Moreover, he advised the Board that he was prepared to stipulate that the terms of the collective agreement are unfavourable by today's standards.
The usual practice of the Board is to grant an adjournment only on the consent of all of the parties to a proceeding, or where a request for an adjournment is based on circumstances which are completely beyond the control of the party making the request and where to proceed would seriously prejudice such party. (See, for example, Northwest Merchants Ltd. Canada, [1983] OLRB Rep. July 1138, and the Board and Court decisions referred to therein.) Having regard to that practice, which recognizes the great importance of expedition to the efficacious administration of the Labour Relations Act, the Board, after recessing to consider the submissions of the parties, made the following oral ruling:
Having considered the submissions of the parties, we are unanimously of the view that the respondent's request for a one week adjournment should be denied. Counsel for the respondent seeks that adjournment in order to have more time to attempt to locate a copy of a collective agreement entered into by the parties to this application or their predecessors in or about 1968. Counsel submitted that if the terms of that collective agreement are unfavourable, that might be relevant to the Board's decision as to whether or not the applicant has abandoned its bargaining rights. However, counsel for the applicant has advised the Board that he is prepared to stipulate for the purposes of this application that the terms of that collective agreement are unfavourable by today's standards. It is also apparent from the letter of agreement dated July 21, 1971 that has been filed with the Board by the respondent that the parties or their predecessors agreed that that collective agreement would operate from year to year until the stipulations set out in paragraph 1 of that letter of agreement had been complied with by the union. Neither party has suggested that those stipulations have been complied with. Thus, it is apparent that, irrespective of what its contents may be, that collective agreement will be a bar to the present application unless, as contended by counsel for the applicant, the applicant has abandoned its bargaining rights; which is a question of fact concerning which the contents of the collective agreement are not (on the basis of the submissions made by counsel for the respondent) relevant, with the possible exception of the aforementioned stipulated fact. Accordingly, we will proceed to hear the evidence and submissions of the parties concerning the issue of abandonment.
- The only evidence adduced concerning that issue was the testimony of Manfred Hoffman, who was called as a witness by the applicant. The respondent elected to call no evidence in these proceedings. After hearing that evidence, and the submissions of the parties concerning the abandonment issue, the Board made the following oral ruling, which is hereby confirmed:
In March of 1968, the Board (in File No. 14254-67-R) certified the applicant as bargaining agent for "all employees of the respondent [President Motor Hotel] at Sudbury, save and except hotel, dining room, kitchen, and housekeeping managers, persons above these ranks, and office, registration desk and telephone staff, maintenance staff, students employed during the school vacation period, persons regularly employed for not more than 24 hours per week, and persons covered by the subsisting collective agreement between the applicant and the respondent" (see [1968] OLRB Rep. March 1145).
Pursuant to that certificate, the applicant entered into a collective agreement dated June 9, 1968 with the President Motor Hotel. The terms of that collective agreement are not before the Board in these proceedings in that the parties have been unable to locate a copy of it. However, it can reasonably be inferred from the evidence before us that one of the terms of that collective agreement was a requirement that the employer deduct and remit union dues, in that such remittances were made each month until July of 1971.
On July 21, 1971, Retail, Wholesale and Department Store Union Local 579 entered into the following "Letter of Agreement" with Caswell Motor Hotel, Ambassador Motor Hotel, and President Motor Hotel:
This is to confirm the agreement reached on the date hereof that negotiations between the above noted parties covering the employees in the bargaining unit under the Collective Agreements at the (Ambassador Motor Hotel dated June 9, 1968); at the (Caswell Motor Hotel dated July 25, 1968); and the (President Motor Hotel dated June 9, 1968) will be suspended until the majority (50% or more) of the Sudbury hotels have been certified under the Ontario Labour Relations Board by the Union covering employees other than those covered by the master beverage room and cocktail lounge Collective Agreement [sic].
Further it is agreed and understood that the present Collective Agreement in existence, as referred to above, shall continue to operate and shall do so from year to year until the stipulations set out above have been complied with by the Union.
Dated at SUDBURY, ONTARIO this 21st day of JULY 1971.
The sole witness called in these proceedings with respect to the question of abandonment was Manfred Hoffmann, who has been an International Representative of the applicant and the Administrator of the applicant's Northern Ontario-Quebec Joint Council (of which Local 579 is one of the eight members) since April of 1973. Prior to that, Mr. Hoffman was a business agent for the applicant. It was his uncontradicted evidence that there have been no negotiations, grievances, or other attempts by the applicant to represent or otherwise exercise bargaining rights on behalf of the employees in that bargaining unit for at least the past twelve years. It was also his uncontradicted evidence that the President Motor Hotel ceased to remit union dues in respect of that unit in the summer of 1971, and that the union has made no attempt to have that remittance restored in the ensuing years. It was further his uncontradicted evidence that the applicant has had no contact with any of the employees in that bargaining unit during that period, with the exception of the contacts during the last six weeks which have given rise to the present certification application.
Having regard to all of the circumstances, we find that the applicant had abandoned its bargaining rights in respect of the aforementioned bargaining unit many years before the present application was made. Thus, the bargaining rights which the applicant had prior to that abandonment are not a bar to the present application. The "automatic renewal" clause in paragraph 2 of the July 21, 1971 Letter of Agreement in no way effects this conclusion, as it is the very bargaining rights which that clause purports to preserve that we have found as a fact to have been abandoned by the applicant in the intervening period (see, generally, Nordic Hotel, [1975] OLRB Rep. June 495, at paragraph 16).
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in Sudbury, save and except department managers, persons above the rank of department manager, persons regularly employed for not more than twenty-four (24) hours per week, students employed during the school vacation period, and persons for whom any trade union held bargaining rights as of August 16, 1985, 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 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 August 27, 1985, the terminal date fixed for this application and the date which the Board determines, under section 103(2Mj) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the Act.
A certificate will issue to the applicant.