Hotel, Motel and Restaurant Employees Union Local 442 v. Sheraton Fallsview Hotel and Conference Centre, 1991 CanLII 6075

Hotel, Motel and Restaurant Employees Union Local 442 v. Sheraton Fallsview Hotel and Conference Centre

[1991] OLRB Rep. May 709

3360-90-R Hotel, Motel and Restaurant Employees Union Local 442, Applicant v. Sheraton Fallsview Hotel and Conference Centre, Respondent

BEFORE: M. A. Nairn, Vice-Chair, and Board Members W. H. Wightman and C. McDonald.

DECISION OF THE BOARD; May 9, 1991

1This is an application for certification.

2The applicant requested that a pre-hearing representation vote be taken. As is the Board's usual practice the parties met with a Labour Relations Officer in order to make arrange­ments for the holding of the vote. At that time the applicant sought leave to withdraw its applica­tion. Having regard to the stage of the proceedings when the request was made, this application is hereby dismissed.

3Following the meeting with the Labour Relations Officer the Board received a letter from counsel for the respondent dated April 5, 1991, requesting that the Board not only dismiss the applications but also impose a bar on the applicant, prohibiting it from filing any further certifi­cation application for a period of at least six months. The respondent relies on the following facts. This is the third application for certification made by the applicant within a period of four months. The application in Board File No. 2428-90-R was filed December 12, 1990. The Board allowed leave to withdraw that application by decision dated December 21, 1990. The second application was filed February 26, 1991 (Board File No. 3125-90-R), and leave to withdraw that application was granted by decision dated March 12, 1991. This application was filed March 14, 1991. In each case the respondent has filed a reply and the required documentation including a list of employees in the proposed bargaining unit.

4The letter of April 5, 1991 was forwarded to the applicant by the Registrar requesting its comments on or before May 1, 1991. No response has been received by the Board.

5In the circumstances we are not persuaded that it is appropriate to impose a bar. The Board's approach to the exercise of its powers under section 103(2)(i) was fully canvassed in Amarcord Carpenters Limited, [1989] OLRB Rep. June 531 and the cases cited therein:

5. Under clause 103(2)(i) of the Act, the Board has the power

to bar an unsuccessful applicant for any period not exceeding ten months from the date of the dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuccessful applicant or by any of the employees affected by an unsuccessful application or by any person or trade union representing such employees within any period not exceeding ten months from the date of the dismissal of the unsuccessful application.

The Board's approach to the exercise of its powers under this clause was described in general terms in Repac Construction and Material Limited, [1978] OLRB Rep. Jan. 91, at paragraph 7:

As a general principle the Board is quite reluctant to either bar, or refuse to enter­tain, a subsequent application for certification filed by a previously unsuccessful appli­cant. Indeed, such action is usually only taken either where employee desires have been tested by a representation vote in which the union failed to receive sufficient support to be certified (See: Campbell Soup Company Ltd., 1976) OLRB Rep. Feb. 1091), or where the union has sought to avoid an unfavourable vote result by with­drawing its application following the ordering of such a vote. (See: Mathias Quellette 56 CLLC ¶18,026). Exceptional circumstances may, however, also lead to the Board invoking the provisions of section 92(2)(i) [now 103(2)(i)] in other situations. The leading example of this is the J. W. Crooks Company case, [1972] OLRB Rep. Feb. 126, where "in light of the special and extreme circumstances confronting the Board", namely four unsuccessful applications for certification made by the same applicant in a little over three months, the Board imposed a six month bar on any future applica­tions by the same applicant. In its consideration of any request pursuant to section 92(2)(i), the Board, concerned that the wishes of employees be given effect to, has always been careful not to use its authority under that section merely to punish an unsuccessful applicant union, even in those instances where the union may have engaged in previous irregular or improper conduct. (See Fruehauf Trailer Company of Canada Limited [1974] OLRB Rep. Jan. 6).

The rationale for imposing a bar was explained this way in General Freezer Limited, 63 CLLC ¶16,294:

A bar to future applications for certification is usually imposed following a dismissal after a representation vote is taken, due to the fact that in such cases, all of the employees in the bargaining unit have had the opportunity to express their wishes with respect to their choice of a bargaining agent by means of a secret ballot, and therefore the true wishes of the employees have been fully tested. It is not the Board's usual practice to impose a bar to future applications for certification where an appli­cant fails to submit sufficient evidence of membership to entitle it to a representation vote where there is no incumbent bargaining agent. The success of an applicant union's organization campaign is dependent on many factors and its failure to acquire sufficient membership has not the same evidentiary value with respect to the wishes of the employees as a representation vote.

6While this is the third application filed, it is the first application to be dismissed by the Board. That dismissal occurs in circumstances where the wishes of the employees have not yet been tested. These circumstances are distinguishable from the kind referred to in J. W. Crooks Company.

7As set out in paragraph 1, this application is hereby dismissed.