[1985] OLRB Rep. May 690
3202-84-U United Food and Commercial Workers International Union, Complainant, v. J. Paiva Foods Ltd., Respondent, v. Canadian Union of Restaurant and Related Employees, Intervener and eight other files
BEFORE: Harry Freedman, Vice-Chairman, and Board Members W. H. Wightman and W. F. Rutherford.
APPEARANCES: Mark Zigler and Kevin Park for the complainant; B. 0 'Byrne and A. Morrow for the respondents; R. Ross Wells and James Whyte for the intervener.
DECISION OF THE BOARD; March 28, 1985
1. These are complaints filed under section 89 of the Labour Relations Act which came on for hearing at the same time. Counsel for all parties agreed that the submissions made should apply to all of the proceedings.
2. The Board issued the following oral ruling at its hearing on March 21, 1985 after receiving submissions from all counsel and recessing to consider those submissions:
Oral Ruling
The Board has before it nine complaints alleging a violation of section 64 of the Act filed by the complainant against the nine respondents in respect of eleven Swiss Chalet Restaurants. The complainant has also filed applications for certification in respect of these respondents which are presently before another panel of the Board. The intervener was party to a collective agreement to which eight of the respondents were bound which expired on November 8, 1984 (see exhibit #1) and to another collective agreement which expired on May 16, 1982 (see exhibit #2) to which the respondent 485376 Ontario Limited was bound. The parties agreed that the terms and conditions under those agreements were applied by the respondents at all material times.
Counsel for the respondents asks this Board to dismiss these complaints because he submits that they do not disclose a prima facie case. The Board is asked to assume that all of the facts asserted in the complaints are established. Counsel submits that on those facts, no violation of the Act is made out.
The Board's discretion to dismiss a complaint on the grounds that it does not disclose a prima facie case should only be exercised in the clearest of cases, that is, when the Board is satisfied that there is no reasonable likelihood that a violation of the Act can be established on the facts as alleged. This approach has been set out in the International Association of Bridge, Structural and Ornamental Ironworkers, [1982] OLRB Rep. Feb. 233 at page 234:
Although counsel for the respondents contended that the Board has a duty to dismiss a complaint which does not make out a prima facie case, section 7i(i) clearly provides the Board with a discretion. In some circumstances it is eminently appropriate for the Board to exercise its discretion under that provision to dismiss a complaint where it is apparent that no useful purpose would be served in listing the complaint for hearing since the facts as alleged could not support an argument that a violation of the Act had occurred (see, for example, Heist Industrial Services, 63 CLLC i6,263; Patternmakers Association of Hamilton and Vicinity, [1970] OLRB Rep. Sept. 688; Ernest D 'Andrea, [1975] OLRB Rep. Aug. 646; Local 1285 United Automobile Aerospace & Agricultural Workers Union of America, [1975] OLRB Rep. Apr. 387; Masonry Contractors' Association (Toronto Incorporated), [1970] OLRB Rep. Dec. 1124; and Woodall Construction Company Limited, [1979] OLRB Rep. June 597).
See also Caravelle Foods, [19831 OLRB Rep. June 875 at page 881 where the Board stated:
The words 'prima facie' in section 71 are meant to allow the dismissal of a case without a hearing where the allegations are insufficient to render reasonable or arguable a conclusion that the Act has been breached.
[emphasis added]
See also Shaw v. McLeod, (1982), 1982 CanLII 2140 (ON HCJ), 35 O.R. (2d) 641.
Counsel for the complainant submits that the respondents violated section 64 of the Act by permitting or approving the posting of a notice (see exhibit #3) in the premises of the respondents on the bulletin boards that are used by the intervener. The notice that was posted is clearly a notice that appears to have been prepared by the intervener and is, at the very least, disparaging of the complainant and its attempts to negotiate on behalf of the employees in a Swiss Chalet Restaurant in Ottawa. There is an ongoing organizing campaign by the complainant in respect of the employees of the respondents. It is clear to us that the notice was intended to draw support away from the complainant and in favour of the intervener while the pending certification applications referred to earlier are being dealt with by the Board.
Counsel for the respondent relies on Article 20 of both of the collective agreements. Those Articles provide:
Exhibit #1
Article 20 — Bulletin Board
20.01 The Association's members [all of the respondents herein, but for 485376 Ontario Limited] agree to permit the Union to keep notices of meetings and other Union business and affairs on a bulletin board provided by the Association for such purposes. It is agreed that before being posted, such notices must first be approved in writing by the store manager.
20.02 All such notices must be signed by a Union Officer.
20.03 Union notices will be restricted to:
(a) Notices of Union meetings;
(b) Notices of Union elections or appointments;
(c) Notices of results of Union elections;
(d) Notices of Union recreational and social activities; and
(e) All other notices concerning Union activities.
Exhibit #2
Article 20 — Bulletin Folder
20.01 The Company [485376 Ontario Limited] agrees to permit the Union to keep notices of meetings and other Union business and affairs in a bulletin folder provided by the Company for such purposes, such folder to be kept at the store premises. It is agreed that before being placed into the bulletin folder, such notices must be first approved in writing by the store manager.
The notice posted on the bulletin boards appear to us to be the kind of notice contemplated by the above quoted provisions. The respondents permitted the notice to be posted, it is submitted by counsel for the respondents, pursuant to their obligation to do so under the terms and conditions of those collective agreements.
Counsel for the complainant submits that the employer could and should not have approved the posting of the notices because employees would perceive that the employer is supporting the intervener, the incumbent union, over the complainant, and further, that such approval is conduct prohibited by section 64 of the Act.
We disagree.
The use by an incumbent union of a notice board pursuant to a collective or to the terms and conditions of a collective agreement that have been extended by section 79 of the Labour Relations Act, appears to us to be contemplated by section 46(l)(c) of the Act. That section provides:
46.-(l) Notwithstanding anything in this Act, . . . the parties to a collective agreement may include in it provisions,
(c) for permitting the trade union that is a party to or is bound by the agreement to use the employer's premises for the purposes of the trade union without payment therefor.
[emphasis added]
In our view, employer conduct pursuant to the collective agreement provisions that are permitted by section 46(1) cannot be a violation of section 64, by virtue of the opening words of section 46(1), notwithstanding anything in this Act.
Therefore, the cases cited by counsel for the complainant relating to employer support of employee associations that were not parties to a collective agreement are of no assistance to him.
Since we are satisfied that no violation of section 64 can be made out on the facts asserted by the complainant, we adopt the approach of Mr. Justice Grange in the Shaw v. McLeod case, supra where he stated at page 643:
I concede that on this motion if, after a careful review of the law, the Court determines that he [the Plaintiff] cannot possibly succeed, then his action should be mercifully dispatched.
Therefore, the respondents' motion is granted and these complaints are hereby dismissed.