United Food and Commercial Workers International Union v. Famz Foods Limited, 1985 CanLII 983

[1985] OLRB Rep. June 857

0336-84-R United Food and Commercial Workers International Union, Applicant, v. Famz Foods Limited, Respondent, v. Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees, Local 88 and Canadian Union of Restaurant and Related Employees, Intervener #1, v. Canadian Union of Restaurant and Related Employees, Intervener #2, v. Group of Employees, Objectors

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members F. W Murray and L. C. Collins.

APPEARANCES: A. M. Minsky, Q. C., and K. Corporan for the applicant; Allen A. Morrow and Wanda Paszkowski for the respondent; Alick Ryder, Q. C., Tom Rees and James Whyte for the interveners; and C. J. Abbas, Dave Callum and Sue Mitchell-Buxton for the objectors.

DECISION OF THE BOARD; June 12, 1985

1. This is an application for certification. The applicant is a trade union within the meaning of section t(l)(p) of the Labour Relations Act ("the Act"). The parties agree, and the Board finds, that

all waitresses, waiters, busboys, kitchen staff, cashiers and bartenders employed by the respondent at 1426 London Road, in the City of Sarnia, 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. The contested issues addressed in this decision are whether the Board should extend the terminal date by approximately one year to permit consideration of the objectors' petition when determining, in the exercise of its discretion under section 7(2) of the Act whether to direct a representation vote and whether, quite apart from the petition, the circumstances warrant exercising that discretion in that manner.

2. This application for certification was filed on May 3, 1984. The Registrar fixed May 17, 1984, as the terminal date for this application, listed it for hearing June 4, 1984 and gave notice of the application and hearing to the respondent employer. The material sent to the employer included notices to employees of the application and of the hearing date, in Form 6. The employer was directed to post those notices immediately, and to complete and send to the Board a return of posting card to confirm the posting of those notices. The card returned by the respondent indicates that the notices to employees were posted at 4:00 p.m. on the 14th day of May, 1984.

3. The notice to employees advised them of the date of application, the bargaining unit applied for, the terminal date fixed for the application and the date on which and time and place at which the application would be heard by the Board. The notice also contained the following provisions:

4. Any employee or group of employees affected by the application and desiring to make representations to the Board in opposition to this application must send to the Board a statement in writing of such desire, which shall,

(a) contain the return mailing address of the employee or representative of a group of employees;

(b) contain the name of the employer concerned; and

(c) be signed by the employee or each member of a group of employees.

5. The statement of desire must be,

(a) received by the Board not later than the terminal date shown in paragraph 3; or

(b) if it is mailed by registered mail addressed to the Board at its office, 400 University Avenue, Toronto, Ontario, M7A 1V4, mailed not later than the terminal date shown in paragraph 3.

6. A statement of desire that does not comply with paragraphs 4 and S will not be accepted by the Board.

7. Any employee, or group of employees, who has informed the Board in writing of his or their desire in accordance with paragraphs 4 and S may attend and be heard at the hearing in person or by a representative. Any employee or representative who appears at the hearing will be required to testify, or produce a witness or witnesses who will be able to testify from his or their personal knowledge and observation, as to (a) the circumstances concerning the origination of the material filed, and (b) the manner in which each of the signatures was obtained.

THE BOARD MAY DISPOSE OF THE APPLICATION WITHOUT FURTHER NOTICE AND WITHOUT CONSIDERING THE ST/I TEMENT OF DESIRE OF ANY PERSON WHO FAILS TO ATTEND.

No statement of desire was filed by any employee prior to the terminal date.

4. The respondent filed a Reply, and the interveners filed Interventions. The respondent and interveners took the position that the respondent was bound by a collective agreement (the "SCEA agreement") between the Canadian Union of Restaurant and Related Employees ("CURRE") and the Swiss Chalet Employers' Association ("SCEA"). That collective agreement was not due to expire until November 8, 1984. The respondent and intervener took the position that this application was, therefore, untimely. Intervener #1 ("Local 88") took the position that it should be declared successor to the bargaining and collective agreement rights of CURRE, by reason of a purported merger of CURRE into Local 88 on January 13, 1984.

5. No employee or group of employees sought to intervene in this application when it first came on for hearing on June 4, 1984. The parties then present agreed to consolidate the hearing of certain preliminary matters in this application with the ongoing hearing of similar issues in other applications then before the Board. The nature of those common issues, the manner in which they were tried and the Board's determination of those issues are described in decisions herein dated September 12, 1984, and February 18, 1985. The finding of the Board (differently constituted) with respect to this application was that while CURRE did have bargaining rights with respect to the employees of the respondent at the subject location, the respondent was not bound by the terms of the SCEA agreement at the time this application was filed, and the application was, therefore, timely. In paragraph 43 of its decision of February 18, 1985, the panel which dealt with those preliminary issues directed that the Registrar list this application for further hearing and indicated that it was not seized of any of the remaining issues in this application. The Registrar listed this and a number of other applications affecting Swiss Chalet restaurants for hearing by the Board on May 3, 1985.

6. On April 4, 1985, the applicant and interveners entered into a settlement concerning certification applications outstanding with respect to a number of Swiss Chalet restaurant locations in the Province of Ontario. A written memorandum of the settlement was filed with the Board. Insofar as it affected this application, it provided that CURRE and Local 88 would request leave of the Board to withdraw their interventions herein. By letter dated April 11, 1985, counsel for CURRE also advised the Board that his client abandoned its bargaining rights with respect to employees at a number of locations, including the location affected by this application.

7. On April 25, 1985, the Board received an undated "petition" signed by seventeen persons, under cover of a solicitor's letter dated April 23, 1985, the relevant portions of which are as follows:

Re: File No. 0336-84-R

Enclosed herein please find a Petition signed by a group of employees of Famz

Foods Ltd. working at its Swiss Chalet Restaurant located at 1426 London Road, Sarnia, Ontario.

We are advised that the UFCW is currently applying for certification as bargaining agent for this said group of employees and that the hearing date for the application is on May 3rd, 1985. We have been instructed to submit the said Petition to the Ontario Labour Relations Board in order to express their objection at the said hearing to representation by any trade union.

The employees have been kept in the dark with respect to the status of the dispute between the UFCW and CURRE and have only recently discovered that the hearing date is on May 3rd, 1985. Accordingly they have not had adequate time in which to obtain counsel with any expertise in labour matters. We wish to advise that we will request an adjournment of the May 3rd, 1985 hearing in order that the said group of employees may be fairly represented in this matter.

8. The objecting employees were represented at the Board's hearing in this matter by counsel with experience in labour relations matters and proceedings before this Board. Counsel did not press the request for an adjournment. He asked that the Board give his clients' petition the same affect as it would give to a timely petition, even though this petition had been filed long after the terminal date. He emphasized that the delay in disposing of this application had been the result of inter-union rivalry, not employer obstruction, and submitted that in those circumstances the Board's usual concerns about delay should not apply. He argued that as certification proceedings are concerned with the right of employees to be represented by the trade union of their choice, the Board should be prepared to consider a petition evidencing changed wishes where, as he argued, both participant unions by their actions may have cooled the employees' desire for union representation.

9. We are not prepared to extend the terminal date in this case. To do so for the reasons advanced would be inconsistent with the certification process contemplated by the Labour Relations Act.

10. The certification process and the significance of employee petitions in that process were described in Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138:

11. The object in certification proceedings is to determine whether a majority of employees in a unit appropriate for collective bargaining wish to be represented by the applicant trade union in their relationship with their employer. Important considerations underlie the Legislature's choice between membership evidence and the representation vote as the means of ascertaining majority wishes (see Weiler, P.C., Reconcilable Differences, (Carswell 1980), at pp. 37-49 for a review of these considerations). The Legislature's choice of membership evidence as the primary basis for the certification decision recognizes the obvious correlation between a desire for trade union representation and the act of joining a trade union. Any uncertainty inherent in equating the two is balanced by striking a confidence level of fifty-five per cent membership at and below which the appearance of majority support for trade union representation must be confirmed by a representation vote. When there is satisfactory evidence that over fifty-five per cent of the employees in the unit are members of the applicant, the Act authorizes certification without a vote. In giving the Board a discretion to order a vote even when over fifty-five per cent membership is demonstrated, the Legislature recognized the possibility that circumstances other than the number of members in the unit might, in a particular case, make trade union membership seem less reliable as a measure of an employee's desire for trade union representation. That discretion should be exercised in a manner consistent with the balance struck by the Legislature in emphasizing membership evidence as the method of determining employee wishes when membership support exceeds fifty-five per cent (see Cleveland-Cae Metal Abrasive Limited, [1979] OLRB Rep. Feb. 81 at 8; Baltimore Aircoil Interamerica Corporation, [1982] OLRB Rep. Oct. 1387 at 49; Walbar of Canada, Inc., [1982] OLRB Rep. Nov. 1734 at 17.)

12. Rule 73 of the Board's Rules of Practice makes provision for the filing by employees of evidence of their objection to certification. As with membership evidence, evidence of objection must be in writing, signed by the employee(s) and filed not later than the terminal date for the application (which is ordinarily the date set by the Board under section 103(2) (/) of the Act as the date as of which employee wishes are to be ascertained). Form 6, the Notice to Employees of Application for Certification, refers to such written evidence as a "statement of desire"; such documents are also commonly referred to as "petitions". Subsection 5 of Rule 73 sets out the Board's requirement that viva voce evidence be introduced at hearing as to the circumstances concerning the origination and circulation of the petition and the manner in which each signature thereon was obtained. The object of that inquiry is to determine whether the petition is a voluntary expression of the wishes of its signatories (see Baltimore Aircoil Interamerica Corporation, supra, 40.)

13. If a petition is shown to be the voluntary expression of the wishes of its signatories, the effect then given to it depends on the extent to which it casts doubt on the significance of membership in the applicant as evidence of the employees' desire for representation by the applicant. In the use of membership evidence to test employee wishes, an employee for whom no membership evidence has been filed is treated as though he or she opposes representation by the applicant. Therefore, a non-member's signature on the petition adds nothing to the assessment of support for representation by the applicant. However, the signature on the petition of an employee who is a union member casts doubt not on that employee's status as a member, but on the otherwise reasonable inference that the employee's membership in the trade union reflects a desire for representation by that trade union in collective bargaining with his employer. The evidence of an employee's membership, that is to say, the inference which otherwise reasonably follows from proof that the employee is a member, is "clouded" in that sense by that employee's subsequent signature on a voluntary petition. If the membership evidence which remains unclouded would not alone be sufficient to support certification without a vote, then the Board ordinarily exercises its discretion under section 7(2) by ordering a representation vote. However, the petition speaks only to the desires of those who sign it; its existence casts no doubt on the desires of those who did not sign. One employee's change of heart cannot logically be given any more weight than another's consistent opposition. If the membership evidence which remains unaffected by the petition is itself otherwise qualitatively satisfactory and its quantity establishes that more than fifty-five per cent of the bargaining unit employees are members of the applicant, then faithfulness to the scheme of section 7 of the Act requires that the application be treated no differently than if the Board had received neither the petition nor the membership evidence thereby affected. In other words, such a petition is not considered 'relevant" to the exercise of the Board's discretion under section 7(2) because it will not alone warrant a decision ordering a vote. ...

[emphasis added]

11. Both membership evidence and written evidence of employee opposition to certification must be filed with the Board on or before the terminal date, because of the strict limits Rule 73 imposes on the evidence which the Board may consider:

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).

(3) Any employee or group of employees affected by an application for certification or by a declaration of termination of bargaining rights and desiring to make representations to the Board in opposition to the application may file a statement in writing of such desire in the form prescribed by subsection (1) not later than the terminal date for the application, but this subsection does not apply where the Board grants a request that a pre-hearing representation vote be taken.

12. The terminal date referred to in the Board's Rules of Procedure derives its significance from subsection 7(1) of the Act, which requires that the Board assess the extent of trade union membership within the bargaining unit as of a time determined by the Board:

7.-(i) Upon an application for certification, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at such time as is determined under clause 103 (2)(j).

[emphasis added]

Clause 103(2)(j) of the Act provides:

(2) Without limiting the generality of subsection (1), the Board has power,

(j) to determine the form in which and the time as of which 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 presented to the Board on an application for certification or for a declaration terminating bargaining rights, and to refuse to accept any evidence of membership or objection or signification that is not presented in the form and as of the time so determined;

[emphasis added]

13. A terminal date is fixed by the Registrar when he first receives the application for certification, pursuant to section 2 of the Board's Rules of Procedure:

14. When an application is made, the registrar shall fix a terminal date for the application which shall be not less than five and not more than ten days, as directed by the Board, after,

(a) the day on which the registrar serves the employer with the notice of application for posting, where they are served personally;

(b) the day immediately following the day on which the registrar mails the notices of application to the employer for posting, where they are served by mail.

Employees learn of the terminal date when their employer posts the Board's Notice to Employees of Application and of Hearing in Form 6. Section 82(2) of its Rules of Procedure gives the Board the power to change the terminal date at any time after it is set by the Registrar. The panel which hears the application ultimately determines the time referred to in subsection 7(1) and clause 103(2)(j) of the Act: R v. OLRB, Ex Parte Hannigan, (1967) 1967 CanLII 205 (ON CA), 64 D.L.R. (2d) 117 (Ont. C.A.). Given the obvious relationship between the date by which evidence of membership must be obtained and filed, and the time as of which evidence of membership must be determined, the Board invariably determines that the time for ascertaining membership and objection under clause 103(2)6) is the terminal date. If the Board determines in a particular case that the terminal date established for that application prior to its hearing date would not be appropriate as the "time" contemplated by clause 103(2)6) and subsection 7(1) of the Act, then it will extend the terminal date so that the two can be made to coincide.

14. Time is of the essence in labour relations matters. Subsection 7(1) of the Act requires that the Board consider the wishes of the persons who were employed on the application date. It is important that those wishes be determined expeditiously, and that determination cannot be made until after the time as of which it is to be made. Fairness requires that all interested parties be able, when they receive notice of application, to predict with reasonable certainty the time as of which membership and objection will be determined.

These considerations favour the fixing of that date as close to the application date as the need to give notice of it will permit. If affected parties receive adequate notice of the terminal date initially set by the Registrar, there is obvious good reason both to adopt that date under clause 103(2)(j) and to pursue a policy of doing so in like circumstances. In R v. OLRB Exparte Hannigan, supra, at page 128, Laskin J. A., as he then was, observed that:

…fixed times to govern the various steps in a certification or other proceeding before the Board and to set limits within which the necessary materials of proof must be submitted must be established as a guarantee of regularity, of fairness to employees, trade unions and employers; and to avoid chaos in administration. What is true of the Courts is true of this and other Boards. The Labour Relations Board, particularly, must have a general rule to govern the date as of which a count can be made of those employees who comprise the bargaining unit for which certification rights are sought; and a period with a fixed outside date for establishing proof of membership or non-membership of such employees in the trade union seeking certification. Since fluctuations in employment occur in even the most stable enterprises, it is not surprising that it be thought desirable to contain the proof or disproof of union membership within a fixed time period, especially when it is necessary for the Board to satisfy itself of the genuineness of the tendered proof or disproof which is required to be in written form. To allow either or both the time as of which the bargaining unit count of employees is fixed, and as of which union membership of employees within the unit is fixed, to be a mere matter of case to case discretion would shake confidence in the regularity of certification proceedings.

The Board put it this way in Hostess Food Products Ltd., [1980] OLRB Rep. May 710:

4. The requirements of Rule 48 are mandatory. Unless the evidence of membership in, or objection to, the union is filed in a timely fashion, the Rule provides that it "shall not be accepted." The Board has the power to vary the terminal date pursuant to section 57(2) of the Rules, however this is not a power which should be exercised lightly. It is essential that there be one clear point in time, at which the Board can ascertain the views of the employees, and make the determinations required by section 7 of The Labour Relations Act. This is done by fixing a terminal date pursuant to section 92(2)U) of the Act, (see, R. v. O.L.R.B. Ex Porte Hannigan, (1967), 1967 CanLII 205 (ON CA), 64 D.L.R. (2d) 117 (OCA)) and clearly advising all of the parties that material must be filed by that date.

5. If applications for certification are to be dealt with expeditiously and equitably, it is important that the terminal date provide a firm benchmark for all of the parties affected by the application; although this does not mean that the terminal date is entirely inflexible. In exercising its discretion to extend the terminal date the Board has adopted an approach which is sensitive to the particular circumstances of the case. In Kilean Lodge Incorporated [1977] OLRB Rep. April 240 the Board commented:

The Board's approach in such cases has been to avoid fixing any rigid formula to determine whether the employees in any given application have been given adequate notice. Where a request for an extension of the terminal date is made the Board prefers to assess the merits of each request in the light of the particular fact surrounding it. Among the things the Board takes into account are:

1. The number of days the notice was posted.

2. The manner in which it was posted, including the frequency of locations of posting on the respondent's premises and whether it was sent to employees individually by mail.

3. The number of employees in the bargaining unit and the frequency of their presence on the premises during the time of posting, having particular regard to shifts and days off.

4. Whether any delay in posting is attributable to the employer.

5. Whether the request for an extension is made by the employer alone or by a group of employees. This may be especially relevant where employees have made no request for an extension of time and posting was delayed by the employer's own conduct.

(see, generally, Lanark Mills Ltd., [1965] OLRB Rep. Aug. 356 Joesug Really Ltd. [19661 OLRB Rep. July 278; The Breithaupt Leather Company Limited [19661 OLRB Rep. Dec. 734; Dominion Sport-Service Limited [19671 C)LRB Rep. June 266; J.H. McNairn Limited [1973] OLRB Rep. Feb. 90).

15. Their counsel asserted that the objectors were all employed in the bargaining unit on the application date. There is no suggestion that they received less than adequate notice either of the terminal date or of the first hearing date in this application. They do not want the terminal date extended so as to afford them adequate notice of it; they want the terminal date changed because their wishes have changed since the terminal date. Employee wishes may well change with time and circumstances. The Legislature recognized that when in subsection 7(1) it required the Board to establish a fixed point in time as of which it would ascertain membership. The fact that employee wishes change is precisely the reason for having such a provision. That provision would be meaningless if a change in wishes was reason enough to revise the time as of which membership would otherwise be ascertained. Such an approach would destabilize both the Board's proceedings and the employment relations of the parties to them. It would be illogical, institutionally counterproductive and ultimately unfair to the vast majority of parties who come before it for the Board to treat post-terminal date changes in wishes as sufficient grounds for a change in terminal date: Toronto Board of Education, [1970] OLRB Rep. July 430.

16. For similar reasons, the mere fact that the hearing of this application took some months is not a persuasive ground for extension of the date as of which membership is to be ascertained. It is not correct to say that the delay was the sole result of inter-union rivalry. Final disposition was delayed in this case because a number of issues had to be dealt with. Some of those were issues raised solely by the intervener trade unions. Some were issues raised and relied upon by the respondent employer as well as the interveners. Some were issues raised by the applicant. In any event, the identity of the party or parties whose allegations most consumed the Board's hearing time seems an inappropriate focus of attention in assessing the effect delay should have on the exercise of discretion under section 7(2). In Baltimore Aircoil Interamerican Corp. [1982] OLRB Rep. Oct. 1387, the Board held that a delay in final disposition which resulted from successful judicial review of its first disposition did not justify the Board's exercising its discretion under subsection 7(2) to direct a representation vote:

17. ... We cannot agree that a representation vote should be directed on the sole basis of the passage of time since the date of filing of this application for certification. Prior to the interim certification provisions enacted in 1975, the Board experienced many complex applications, that without the intervention of judicial review, took a very long period of time to process differences between the parties. These differences usually centered on the configuration and composition of the bargaining unit. Even today, complex applications for certification involving widespread unfair labour practices or bargaining unit problems can take more than a year to process. If the Board were to accept that the mere passage of time could so fundamentally affect the outcome of an application for certification, an unfairness would be visited on those applicants who, by no fault of their own, become involved in complex and lengthy certification matters. There may also be encouragement for some parties to seek to delay a case in order to achieve this outcome. Clearly, there are equities on both sides of this issue. The turnover in the employer's workforce since the date of application is considerable. However, as already noted, the same level of turnover is possible in a lengthy application for certification not involving judicial review. In fact, the statute, by creating the concepts of "application date" and "terminal date", has considered the effects of labour force turnover and recognized that at some point in time the composition of a bargaining unit must be considered frozen to provide a stable basis for the purposes of a certification application. See Fuller's Restaurant, [1980] OLRB Rep. Sept. 1289. Considering the submissions of the parties and the evidence before us, we are of the view that the parties are best put in the position they would have been in had the Board not erred by considering this application as if there had been no passage of time.

The reasoning in this passage bears equal application to delay as a ground for extending the terminal date so as to make it possible to consider a petition in connection with the exercise of the discretion to direct a representation vote; the length of the delay should not alone influence the exercise of that discretion.

17. Accordingly, the Board determines under clause 103(2)(j) of the Act that May 17, 1984, the terminal date, shall be the time for ascertaining membership for the purpose of subsection 7(1) in this application. As of that date, more than fifty-five per cent of persons employed in the bargaining unit on the application date were members of the applicant.

18. When this application was filed, CURRE had the right under the Labour Relations

Act to act as exclusive bargaining agent of the employees in the subject bargaining unit. Certification of the applicant would terminate that right (see subsection 56(1) of the Act). The Board's practice where an incumbent trade union holds the bargaining rights sought by an applicant is described in NCR Canada Ltd., [1974] OLRB Rep. Dec. 847:

8. Had the [incumbent trade union] intervened in these proceedings the Board would have followed its usual practice and directed a vote in the name of the applicant as well as the aforementioned trade union. Notwithstanding the membership evidence of an applicant, the very existence of such an intervener, provided its bargaining rights have not been abandoned, casts a doubt on the true wishes of the employees which is most appropriately resolved by the taking of a representation vote. We see no reason to vary this practice despite the failure of the incumbent trade union to intervene and attend at the hearing, and in support of this ruling we rely upon Employees' Association of the Toronto Plants of Canadian John Wood Manufacturing Company, Limited and Service Station Equipment Company, Limited, and 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, 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 Foundry case, [16,443], the Purity Bread case, [16,447] and the Toronto Transportation Commission case, [16,4481. 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 agreement has run its full course and the 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, Breithaupt 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 and still retained its interest in the collective agreement when the application of the present petition was filed."

CURRE participated in these proceedings, and actively opposed this application until April, 1985, when it agreed to withdraw its intervention and advised the Board it wished to abandon its bargaining rights. In Famz Foods Limited, [1984] OLRB Rep. Dec. 1714, the Board held that a representation vote offering a choice between an applicant and incumbent is not necessary when the incumbent advises the Board that it wishes to abandon its bargaining rights; if an applicant in those circumstances demonstrates sufficient membership support, the Board may certify it without a vote. The applicant asked that the same approach be applied in this case.

19. The facts in the earlier Famz Foods Limited case are different from those here. That decision concerned an application by Local 88 for certification for a unit of employees at this respondent's Swiss Chalet restaurant in Windsor, Ontario. The UFCW had been denied standing as an intervener, and the application was not opposed. CURRE and Local 88 were not and never had been antagonists; indeed, Local 88's "raid" was supported by CURRE at that and other Swiss Chalet locations. In short, it was a "friendly raid" from the start. The earlier Famz Foods Limited decision relied on the Board's decisions in The Marra 's Bread Limited, [1965] OLRB Rep. June 156 and The Craig Bit Company Limited, [1978] OLRB Rep. May 411, which both involved displacement applications in which express abandonment of bargaining rights by an incumbent resulted in the Board not conducting a representation vote. In Craig the "raid" was "friendly" from the start; the brief report in Marra 's does not describe the events which led to the application. Here the application was opposed at the outset and for a considerable time thereafter. Having regard to that difference, and to the Board's statement in NCR Canada Ltd., supra, that "the very existence of such an [incumbent trade union] intervener, provided its bargaining rights have not been abandoned, casts a doubt on the true wishes of the employees which is most appropriately resolved by the taking of a representation vote", the Board invited and received submissions on the proper exercise of discretion under section 7(2) in the event it determined, as it now has, not to extend the terminal date.

20. Having considered the parties' submissions, we are satisfied that a representation vote should not be ordered. The mere passage of time and attendant alleged changes of wishes since the terminal date would not warrant our so doing, as we noted in paragraph 16 above. The objectors do not say that they were opposed as of the terminal date but failed to file evidence thereof at that time because they thought the pre-existence of CURRE and its bargaining rights would inevitably result in a two-way representation vote, and such a reliance interest argument would be hard to accept. The Form 6 notice says nothing about a representation vote or the circumstances in which it might be directed; the form does state quite clearly that expressions of opposition must be filed by the terminal date. An employee who knew nothing about this Board's practice and jurisprudence could have no basis for a claim of reliance on the presence of an incumbent trade union in choosing not to oppose; if such knowledge were assumed, it is hard to see how one could avoid also assuming awareness of the exceptions to the Board's ordinary practice in displacement applications.

21. We were troubled by the statement in NCR Canada Ltd. quoted in paragraph 18 above. Our task is to consider employee wishes as of the terminal date. CURRE had not abandoned its rights at that time. On the theory advanced in NCR, CURRE's existence "cast doubt" on the true wishes of employees at that time just as a numerically relevant petition would, with the same consequence for the exercise of the Board's discretion. The weak link in this chain of reasoning is the statement in NCR itself. The theory that an incumbent's mere existence "casts doubt" on employee wishes is simply wrong. There is a critical difference between a relevant petition and pre-existing bargaining rights when assessing their effect on an application for membership or other membership evidence which is otherwise reliable as a measure of the desire of an employee to be represented by an applicant. Incumbent bargaining rights will necessarily predate any fresh membership evidence on which outright certification might be granted, while signatures on a petition are "relevant" only to the extent they postdate membership evidence filed on behalf of the signatory. The last signification of wishes before the terminal date is ordinarily the most relevant to the question of wishes as of that date: see Baltimore Aircoil Interamerican Corporation, supra, at paragraph 49. It is not some constructive doubt about membership evidence that warrants directing a vote in displacement situations, it is faithfulness to the theme expressed in Canadian John Wood Manufacturing Co. Ltd., 46 CLLC 16,449 and reflected in the termination provisions of the Labour Relations Act: no matter how many employees have signed in support of termination of an incumbent's bargaining rights, those rights should not be terminated without a vote. That policy reflects respect for acquired trade union rights, not concern about employee confusion. That policy does not apply, and the pre-existence of bargaining rights does not alone warrant directing a vote, if the incumbent advises the Board that it does not wish, for whatever reason, to continue representing the unit.

22. In all of the 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. Accordingly, a certificate will issue to the applicant with respect to the bargaining unit referred to in paragraph 1 above.868