Union of Bank Employees (Ontario) Local 2104 v. National Trust, 1989 CanLII 3126

[1989] OLRB Rep. April 369

0414-85-R; 2810-88-R Union of Bank Employees (Ontario) Local 2104, Canadian Labour Congress, Applicant v. National Trust, Respondent v. Group of Employ­ees, Objectors; Janeen G. Snare, Applicant v. The Union of Bank Employees Local 2104, Respondent v. National Trust, Intervener

BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members G. 0. Shamanski and K. Day­tes.

APPEARANCES: Janeen G. Snare for the applicant in; David Devine for the respondent; Richard J. Charney and Eli Gershkovitch for the intervener.

DECISION OF THE BOARD; April 14, 1989

I

1. This is an application for termination of bargaining rights brought by employees cur­rently working at 1410 Victoria Park Avenue. In order to appreciate the context in which this application arises, it is necessary to sketch in some background.

2. In a decision dated February 2, 1988 the Board (differently constituted) certified the union as bargaining agent for the employees of a number of branches of the respondent employer, including the branch at 1882 Eglinton Avenue. Subsequently, the Board was advised that the branch at 1882 Eglinton Avenue had been relocated to 1410 Victoria Park Avenue. The union and the employer both requested the Board to amend the street address on the certificate to reflect this change in location and facilitate their bargaining. This joint request was circulated to all of the par­ties of record for comment. None was forthcoming. The Board further directed that a decision explaining the situation and inviting submissions be posted in the respondent's location at 1410 Victoria Park Avenue in prominent places where it would come to the attention of the employees working there. In the Board's opinion those employees were entitled to notice of the request made by their employer and the trade union, and should be given the opportunity to make representa­tions. Once again, none were forthcoming.

3. When this termination application came on for hearing before the Board on Tuesday, April 4, 1989, the representative of the applicant employees was advised that, strictly speaking, there were no bargaining rights at 1410 Victoria Park Avenue because the certificate was site spe­cific. She was asked whether, as the employees representative, she had any objection to the amendment of the original certificate, to reflect the employer's change of address. She indicated that she did not.

4. Section 106(1) of the Act gives the Board a broad power to reconsider, vary or revoke any decision, at any time, if it considers it advisable to do so. (See Re International Association of Machinists and Genaire Ltd. and Ontario Labour Relations Board (1958), 58 CLLC ¶15,416 (O.C.A.); Bakery and Confectionery Workers International Union of America, Local 458 et al. v. White Lunch Limited etal. (1966) 66 CLLC ¶14,110 (S.C.C.); and Labour Relations Board (British Columbia) et al. v. Oliver Cooperative Growers Exchange (1963), 1962 CanLII 46 (SCC), S.C.R. 7.) In the instant case, both bargaining parties have requested the variation mentioned above. No employee has raised any objection and no one either seeks a hearing or the opportunity to make further representa­tions. There is no intervening collective agreement which might be disturbed by the variation of the certificate (see the remarks of Laskin, C.J.C. in Beverage Dispensers and Culinary Workers Union, Local 835 et al. v. Terra Nova Motor Inn Ltd. (1974) 74 CLLC ¶14,253 (S.C.C.)). None of the parties have raised, nor will the Board here canvass, those policy considerations which might bear upon the exercise of the Board's discretion in circumstances other than the narrow and unique ones currently before us. Accordingly, while we are not entirely sanguine about the exercise of this discretion under section 106(1), we are prepared, in this case, to accede to the bargaining parties' request.

5. Having regard to the foregoing, the decision of February 2, 1988 certifying the union as the bargaining agent for the full-time and part-time employees at the respondent's branch at 1882 Eglinton Avenue is hereby varied and revoked to substitute, instead, the street address of 1410 Victoria Park Avenue. New certificates will issue bearing the amended street address. The appli­cant and respondent are directed to return the certificates originally issued.

II

6. With the above-noted amendment, the trade union currently holds bargaining rights for two bargaining units framed as follows:

Bargaining Unit #1:

All employees of National Trust at 1410 Victoria Park Avenue, save and except branch managers, administration officer(s)/assistant branch manag­er(s) exercising managerial functions, administration officer trainees, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period.

Bargaining Unit #2:

All employees of National Trust at 1410 Victoria Park Avenue regularly employed for not more than 24 hours per week and students employed dur­ing the school vacation period, save and except branch manager, administra­tion officer(s)/assistant branch manager(s) and administration officer train­ees.

7. On the basis of the evidence and representations before it, the Board is satisfied that not less than forty-five per cent of the employees of National Trust in bargaining unit #1, at the time the application was made, had voluntarily signified in writing that they no longer wish to be represented by the respondent trade union on March 17, 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 the number of persons who have voluntar­ily signified in writing that they no longer wish to be represented by the respondent trade union under section 57(3) of the said Act.

8. The Board directs that a representation vote be taken of the employees of National Trust employed in bargaining unit #1 described in paragraph 6 above. All those employed in that bargaining unit on the date hereof who are so employed on the date the vote is taken will be eligi­ble to vote.

9. Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with National Trust.

10. The Board is further satisfied on the basis of all the evidence before it that less than forty-five per cent of the employees of the respondent in bargaining unit #2, at the time the appli­cation was made, were members of the applicant on March 17, 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.

11. The application is dismissed with respect to bargaining unit #2. 12. The matter is referred to the Registrar.