Ontario Labour Relations Board
[1985] OLRB Rep. April 523
1517-84-R Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees Union, Local 88, AFL-CIO-CLC, Applicant, v. Cara Operations 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.
APPEARANCES: Kevin Whitaker, Alick Ryder, Q. C., Thomas Rees and Jim Whyte for the applicant and the incumbent trade union; Allen A. Morrow for the respondent; A. Minsky and H. Corporan for the intervener.
DECISION OF THE BOARD; April 25, 1985
This is an application for certification. The applicant is a trade union as defined by section l(l)(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 uncontroverted 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) was granted standing to intervene in this application.
After several days of hearing of this and other Local 88 applications in which UFCW had intervened, on April 4, 1985, Local 88, CURRE and the UFCW entered into Minutes of Settlement. One of the provisions of their settlement was that the UFCW would withdraw its intervention and abandon its opposition to this application. This application and others came on for hearing again on April 16, 1985, at which time the UFCW requested and was granted leave to withdraw. We then completed our hearing with respect to this and the other applications then before us.
Having regard to the agreement of the parties, we find that all waitresses, waiters, busboys, kitchen staff, cashiers and bartenders employed by the respondent at 2955 Bloor Street West, Toronto, 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 are satisfied on the basis of all the evidence before us 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.
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 that CURRE no longer wished to assert bargaining rights with respect to the employees affected by this application. In his capacity as counsel for Local 88, he asked that we certify Local 88 without a vote.
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. However, in Famz Foods Limited, [19841 OLRB Rep. Dec. 1714, we reviewed the Board's jurisprudence and found:
- 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.
The circumstances of this case differ from those in Famz Foods Limited, supra, only in that here the UFCW actively intervened for a time and, during that time, led evidence in an attempt to establish that Local 88 had been the recipient of employer support of such a nature as should disentitle it to certification. The UFCW has now withdrawn. Its allegations were abandoned before the trial of the issue they raised was complete. That does not change our statutory mandate to consider whether there are circumstances which bear on the exercise of our discretion to order a vote or, indeed, on our jurisdiction to certify at all. We could not ignore evidence of employer support or of circumstances in which employees must have perceived that their employer favoured membership in the applicant and would learn whether they joined, merely because the party who led the evidence later withdrew. However, the evidence we had heard before the UFCW withdrew was not so clear, unequivocal and compelling as to lead us to pursue it despite the UFCW's withdrawal, when no interested person now seeks to do so. We are satisfied that we do not need the confirmatory evidence of a representation vote in this case.
A certificate will issue to the applicant with respect to the bargaining unit described above.