Hotel Employees Restaurant Employees Union Local 75 v. Carey's Restaurants (Dundas) Inc., 1989 CanLII 3108

Hotel Employees Restaurant Employees Union Local 75 v. Carey's Restaurants (Dundas) Inc.

[1989] OLRB Rep. March 233

2803-88-R Hotel Employees Restaurant Employees Union Local 75, Applicant v. Carey's Restaurants (Dundas) Inc., Respondent v. Group of Employees, Objec­tors

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members W. H. Wightman and C. McDonald.

APPEARANCES: Rich Frechette, Stan Urbain and Roy Whiley for the applicant; Cathy Bishop for the respondent; Carol Drummond, Mike Otonichar, Susan Clements and Tammie Tucker for the objectors.

DECISION OF THE BOARD; March 16, 1989

1The name of the respondent is amended to read: "Carey's Restaurants (Dundas) Inc.".

2This is an application for certification in which the parties met with a Labour Relations Officer on the day scheduled for hearing of this matter, reached agreement on all matters in dis­pute between them, except with regards to the matter of the petition set out below, and further agreed to waive their right to a formal hearing on the agreed matters.

3The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

4Having regard to the agreement of the parties, the Board further finds that all employ­ees of the respondent at 120 King Street West, Dundas, Ontario, save and except supervisors, those above the rank of supervisor, office and clerical staff, constitute a unit of employees of the respondent appropriate for collective bargaining.

5The 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 February 22, 1989, 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.

6On the date set for hearing, March 3, 1989, a document entitled "Petition Against the Unionization of Carey's Restaurant Inc." was filed with the Labour Relations Officer during dis­cussions with the parties. The terminal date in this matter was February 22, 1989. Thus the petition is not timely and cannot be accepted unless the terminal date were to be extended. If the petition were accepted, it would not be relied upon to cast doubt on the majority membership evidence filed by the union unless it were proven voluntary, i.e. it would have to be shown that the petition was started and circulated without any actual or perceived participation by members of manage­ment. The Board first heard the parties' submissions on why it should accept the petition late. The petitioners' request for the acceptance of the petition was interpreted by the Board as a request for an extension of the terminal date.

7The Board was informed that the employer posted three copies of Form 6 at the work­place on the morning of Monday, February 20, 1989. This allowed three full days before the end of the terminal date in which the employees could have expressed their opposition to the union. Ms. Drummond, who spoke on behalf of the petitioners did not see the notice until the following morn­ing. Ms. Bishop, who spoke on behalf of the company, said that staff was light on Monday and many employees would not have seen it that day. None of the signatures on the petition of people agreed to be in the bargaining unit were obtained until February 23, 1989, and some were not obtained until February 28, 1989.

8The Board ruled orally at the hearing that it was not prepared to extend the terminal date in this matter as three full days was sufficient notice to allow employees to object to the certifi­cation. Thus, it was not necessary to inquire into the voluntariness of the petition. We confirm that ruling, noting the small size of the bargaining unit, numbering twenty-seven in total, and the absence of any special circumstances put before the Board. The Board does not extend the termi­nal date lightly. In Breithaupt Leather Company Limited [1966] OLRB Rep. Dec. 734 it was said that it only does so in "extraordinary circumstances". Less than three full days has been considered sufficient notice in MacDonnell Memorial Hospital [1979] OLRB Rep. Oct. 996 (2 1/2 days) where the Board said that three days notice had consistently been held to be sufficient and in Lanark Mills Ltd. (2 days).

9A certificate will issue to the applicant.