[1989] OLRB Rep. January 29
2191-88-R Hotel and Restaurant Employees' and Bartenders' Union, Local 604 AFL -CIG, OFL-CLC, Applicant v. 408762 Ontario Limited o/a Montreal House, Respondent
BEFORE: Ian C. Springate, Vice-Chair, and Board Members R. M. Sloan and H. Peacock.
APPEARANCES: Gerry Ellis and Harry A. Lavoie for the applicant; Paul Warner for the respondent.
DECISION OF THE BOARD; January 26, 1989
1. The name of the respondent appearing in the style of cause of this application is amended to read: "408762 Ontario Limited 0/a Montreal House".
2. This is an application for certification.
3. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
4. In its application the applicant requested that it be certified to represent a bargaining unit comprised of all employees at the Montreal House in Peterborough, save and except managers, persons above the rank of manager and those covered by existing collective agreements. The applicant and the respondent agree that the applicant is currently the bargaining agent for all employees of the Montreal House below the rank of assistant manager, except for those regularly employed for not more than fourteen hours per week.
5. In 1965 the applicant was certified by the Board to represent a unit of employees at the Montreal House, which was then being operated by Loucks (Peterborough) Limited. The bargaining unit was restricted to waiters, bartenders and tapmen, and excluded persons regularly employed for not more than 24 hours per week. In June of 1976, when the Montreal House was operated by the Branahasi Restaurant Ltd., the applicant was issued a second certificate by the Board. The bargaining unit described in this certificate encompassed all employees at the Montreal House save and except those of the rank of assistant manager and above and persons covered by existing collective agreements.
6. The details of the 1976 certification proceedings are not before us. Presumably the exclusion of persons covered by existing collective agreements was referable to waiters, bartenders and tapmen working more than 24 hours per week for whom the applicant already held bargaining rights. The 1976 certificate apparently covered a bargaining unit comprised of employees other than waiters, bartenders and tapmen, as well as those waiters, bartenders and tapmen who were working not more than 24 hours per week.
7. Following the issuance of the 1976 certificate the parties did not negotiate separate collective agreements for each of the two bargaining units. Instead they negotiated a series of agreements covering a single bargaining unit. This bargaining unit encompasses part, but not all, of both of the previous units. The current collective agreement between the parties, with a term of September 1, 1987 to August 31, 1990, describes the bargaining unit as follows:
The Employer (Montreal House) recognizes the Union as the sole collective bargaining agent of all employees employed by the Employer within the areas of recognition as per the Ontario Labour Relations Board Certificates dated September 28, 1965 and June 1, 1976 at its Montreal House at Peterborough, Ontario save and except assistant manager, persons above the rank of assistant manager, and persons regularly employed for not more than fourteen (14) hours per week.
The parties are in agreement that the exclusion of persons regularly employed for not more than fourteen hours per week has been in every collective agreement entered into by the parties subsequent to the issuance of the Board's certificate in 1976.
8. Subsequent to 1976 the parties did not treat employees working fourteen or fewer hours per week as being covered by their collective agreements. In negotiations leading up to the most recent collective agreement the union requested that the scope clause of the agreement be amended so as to bring employees working not more than fourteen hours per week within the bargaining unit. The respondent refused to agree to the proposed amendment.
9. At the hearing, the applicant indicated that until recently it believed that it had retained the bargaining rights for all part-time employees. The respondent, however, took the position that in the first negotiations after the issuance of the 1976 certificate the applicant bargained away its bargaining rights for employees regularly employed for not more than fourteen hours per week. The respondent contends that if the applicant wishes to again represent these employees, it can do so only by raising the issue at the bargaining table during negotiations for the next collective agreement.
10. As indicated above, as of June 1976 the applicant held bargaining rights for both full and part-time employees at the Montreal House. By agreeing to exclude those employees working not more than fourteen hours per week from the scope of the bargaining unit, however, and then not seeking to actively represent them in a separate unit, the applicant effectively abandoned its rights to represent them. See: York-Finch General Hospital [1987] OLRB Rep. April 641. Once the applicant abandoned its bargaining rights with respect to these employees no legal bar existed to stop the applicant, or any other trade union, from filing an application to become their bargaining agent. See: Dominion Cellulose Limited, [1974] OLRB Rep. March 114.
11. We cannot accept the respondent's contention that the only way for the applicant to reacquire bargaining rights with respect to the employees in question is at the bargaining table. While it is open to the parties, subject to certain limitations, to agree to expand the scope of the bargaining unit, the applicant would have no basis for complaint if the respondent refused to do so, as it did during the last round of negotiations. Equally, the applicant would not be entitled to engage in strike action so as to force the respondent to agree to expand the scope of the unit. See:
Carpenters and Joiners of America, [1978] OLRB Rep. Aug. 776. In addition, section 5 of the Labour Relations Act indicates that where a group of employees are unrepresented, a union can apply to be certified to represent them at any time. The previous dealings between the parties cannot serve to over-ride this provision.
12. Having regard to the foregoing, we find this to be a timely application for certification with respect to those employees of the respondent regularly employed for not more than fourteen hours per week. In line with this finding, and the Board's general approach to describing bargaining units of part-time employees, the Board finds that all employees of the respondent regularly employed for not more than fourteen hours per week at its Montreal House at Peterborough, Ontario, save and except assistant manager and persons above the rank of assistant manager, constitute a unit of employees of the respondent appropriate for collective bargaining.
13. The respondent did not file a list of bargaining unit employees. At the hearing, however, the respondent advised the Board that as of the application date there were three individuals regularly employed at the Montreal House for not more than fourteen hours per week. The respondent also advised the Board of the names of these three individuals. Prior to the terminal date, the applicant filed acceptable evidence of membership with respect to the two of the three individuals. In these circumstances, the Board is satisfied 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 December 19, 1988, 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.
14. A certificate will issue.