[1991] OLRB Rep. May 689
3448-90-R Hotel Employees Restaurant Employees Union, Local 75, Applicant v. Ronnie Gee's Sports Palace, Respondent v. The Westbury Hotel, Intervener
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.
APPEARANCES: Gerry Jones for the applicant; Robert Statton and Ron Goyda for the respondent; Donald B. Jarvis, Andre Beland and Heather Black for the intervener.
DECISION OF THE BOARD; May 23, 1991
This is an application under section 63 of the Act for a declaration that a sale of business occurred from the Westbury Hotel (Beaton's Lounge) to Ronnie Gee's Sports Palace (referred to in this decision as Ronnie Gee's), and that Ronnie Gee's is therefore bound by a collective agreement entered into by the applicant and The Westbury Hotel.
There was no dispute that a sale of part of a business had occurred, or that Ronnie Gee's is the successor employer. The dispute is over the consequences of those facts.
Prior to the sale, The Westbury Hotel operated Beatons's Lounge as one of the aspects of its total hotel operation. The Westbury Hotel is one of the employer parties to the master collective agreement between the Hotel Employers Group of Toronto and the applicant. The agreement reflects the fact that it contemplated an operation of an entirely different scale than the sports bar that Ronnie Gee's is. This is the fact which drives Ronnie Gee's request that we relieve it of the obligations of the hotel collective agreement as it is, in its submission, obviously inapplicable to its operation. It asks us to direct the union to serve notice to bargain, so that a more appropriate collective agreement might be concluded. The respondent relies on the Board's inherent jurisdiction, rather than any specific part of the successor rights provisions of the Act, for the Board's power to grant its request to be relieved of the obligations under the existing collective agreement.
Gee's also takes the position that the bargaining unit of which it is the successor employer only covers full-time employees. It wishes the Board to clarify this fact and note that there was only one full-time employee at the time of the transfer and that the balance of the employees are part-time. It gave notice of lay-off to the former employees in the Beaton's Lounge on January 7, 1991, and offered employment to three employees in late February, one full-time and two part-time. As of April 24, the terminal date in this matter, there were one full-time employee and three part-time. In its submission, the union's bargaining rights, as flowing from the original certificate, did not encompass part-time employees. It is argued that the union cannot have more than what it received in its certificate. However, Ronnie Gee's acknowledges that it would be affected by past practice at the hotel, although it maintains that is not relevant to the Board's determination.
The applicant takes the position that the matter is straightforward. The respondent acknowledges it is a successor employer. The collective agreement between the Westbury and the applicant covers full-time and part-time employees. Therefore the union argues there should be a
declaration that Ronnie Gee's is bound to the existing collective agreement and that it covers full-time and part-time employees. It submits there is no reason for it to give notice to bargain when the collective agreement expires in 1993. However, it made clear that it is not seeking to apply to Ronnie Gee's any provisions of the collective agreement that do not apply to the lounge operation, e.g. those in Article 38, which covers the Banquet Department.
- The intervener and the applicant both agree that the bargaining unit covered by the collective agreement between them covers part-time employees. The respondent takes the position that neither the scope clause nor the rest of the collective agreement has that effect. Article 2 -SCOPE, reads as follows:
2.01 The Agreement shall apply to all full-time regular employees of the Employer whose classification or groupings are listed in the schedule attached hereto.
2.02 All employees who regularly work twenty-four (24) hours or more in any one week will be classified as full-time regular employees of the Employer.
2.03 "Part-time Employee" means an employee employed in the bargaining unit who regularly works less than twenty-four (24) hours per week.
2.04 Articles, 25.01, 25.02, 25.04 and Articles 29 30, 32, 33 and 34 shall not apply to part-time employees classifications except where specified in such schedules. The Employer shall insure that any new hires within the references existing scope of the General Agreement resulting from the creation of new work areas shall become Union members and shall enjoy the appropriate rates of pay and benefits for the classifications concerned.
2.05 The Union and Company agree that employees who are not covered under the scope, will not be normally scheduled to work and perform duties under any of the classifications unless in an emergency.
There are a number of other references to part-time employees in the collective agreement, e.g. Articles 21.13 and 25.05.
We are unable to accede to the respondent's requests. The purpose of section 63 is to preserve the union's bargaining rights to the extent possible when a sale of business occurs, within the bounds of the legislative provisions. The general provision in section 63(2) is that the successor employer will be bound by the collective agreement "as if he had been a party thereto", until the Board otherwise declares. The Act then provides for circumstances in which the Board may otherwise declare. There are circumstances under which the Board is given the power to relieve the parties of a collective agreement (section 63 (6) and (11), e.g.), but those circumstances are not the facts before us, nor were they argued to be. There is simply nothing in the facts before us which would cause us to relieve the respondent of the normal consequences of being a successor employer. The fact that there is language in the collective agreement that is inapplicable to its situation, or that it would not have negotiated, is not a ground found in the statute or the jurisprudence, and not one to which we are attracted. It would be the exception that swallowed the rule, for it is not unusual for a successor employer to be uncomfortable with what others negotiated.
As to the issue of part-time employees, the language of the collective agreement is quite clear on its inclusion of part-time employees, even if the arrangement of the scope clause is a bit unusual. Both the original parties to it agree that it covered part-time employees