Hotels, Clubs, Restaurants, Taverns Employees Union, Local 261 v. Cara Operations Limited, 1992 CanLII 6748

Hotels, Clubs, Restaurants, Taverns Employees Union, Local 261 v. Cara Operations Limited

[1992] OLRB Rep. February 131

2658-91-R Hotels, Clubs, Restaurants, Taverns Employees Union, Local 261, Applicant v. Cara Operations Limited, Respondent v. Group of Employees, Objectors

BEFORE: Ken Petryshen, Vice-Chair, and Board Members D. A. MacDonald and K. Davies.

APPEARANCES: Sean McGee, John R. Kearney, Valerie Picard and Karen Grella for the appli­cant; David Corbett, George High and Hugh Smith for the respondent; Norm Manns for the objec­tors.

DECISION OF THE BOARD; February 4, 1992

1. The name of the respondent is amended to read: "Cara Operations Limited".

2. This is an application for certification.

3. The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.

4. As part of the regional certification program, the applicant and the respondent met with a Labour Relations Officer on December 12, 1991 in Ottawa in order to attempt to resolve or at least narrow the issues in dispute. The Board Officer's Report discloses that the parties were unable to agree on the description of the bargaining unit and whether or not the applicant could rely on photocopies of its membership evidence in support of this application. At the hearing on December 19, 1991, Mr. Norm Manns appeared representing a group of employees objecting to the certification of the applicant and asked the Board to consider his petition. The parties dis­agreed on whether the Board should give any weight to Mr. Manns' petition. After hearing from the parties on the issues they placed before the Board on December 19, 1991, the Board reserved its rulings. The Board's determinations of the issues, with reasons, are set out below, beginning with the petition issue.

The Petition

5. Mr. Manns did not appear at the Labour Relations Officer's meeting but, as noted above, he did appear at the hearing before the Board on December 19, 1991. Mr. Manns advised the Board that he circulated a petition opposing the certification of the applicant. On November 28, 1991, the terminal date fixed for this application, Mr. Manns delivered his petition to the Office of the Official Examiner in Ottawa and left it with the receptionist. She advised Mr. Manns that she would give it to a Labour Relations Officer. It appears that Mr. Jackson, the Labour Rela­tions Officer who conducted the meeting on December 12, 1991, was handed the petition on December 12, 1991 by someone in the Office of the Official Examiner when he arrived for the meeting. The Board's file did not contain Mr. Manns' petition and the Board did not acknowledge having received it. Mr. Manns provided the panel with a copy of his petition at the hearing. Mr. Manns explained that he concluded he could deliver his petition to the Office of the Official Exam­iner after reading Form 6, the Notice to Employees.

6. At one point, Mr. Manns stated that he delivered the petition to the wrong place. In submissions, he requested an extension of the terminal date and stated that he wished the Notice to Employees was clearer on where petitions could be delivered. Counsel for the respondent argued that the petition was filed in a timely way and, alternatively, counsel submitted that the Board should extend the terminal date so its filing would be timely. Counsel argued that a reason­able employee would infer from Form 6 that a petition could be delivered to the Office of the Offi­cial Examiner. Counsel suggested that the receptionist's acceptance of the document and the indi­cation that it would be passed on to a Labour Relations Officer should be sufficient. Counsel also argued that the confusion caused by Form 6 should cause the Board to extend the terminal date. Counsel for the applicant took the position that the petition was not filed in a timely fashion and that no basis existed for the extension of the terminal date.

7. In order to appreciate the submissions, the Board has attached as an Appendix to this decision, a copy of the Form 6 Notice to Employees (in English) that was posted in this case.

8. Posted with the Form 6 is another Notice to Employees which explains the certification process and the rights of employees. Under the question "What is the terminal date?" the Notice contains the following:

The terminal date is set by the Board. It is normally seven to ten days following the date the application for certification was received. This is the date by which the trade union applying for certification must file its membership evidence and interested employees must file any documents expressing opposition to certification of the trade union or revoking that opposition. Material sent by registered mail on or before the terminal date is considered to have been filed as of the date of mailing. Otherwise documents are filed when they are received by the Board.

If documents opposing the union or indicating an employee no longer wishes to oppose the union are not received by the Board by the terminal date or sent by registered mail to the Board by that date, the Board generally refuses to consider them.

Evidence of employee wishes is kept confidential by the Board.

9. The following provisions of the Act and Rules of Procedure are relevant to this issue:

The Act

105.-(18) The Office of the Board shall be in Toronto, but the Board may sit at other places that it considers expedient.

The Rules

1.-(1) In these Rules,

(a) "file" means file with the Board;

73.-(1) Evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application for certification or for a decla­ration terminating bargaining rights unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and,

(a) is accompanied by,

(i) the return mailing address of the person who files the evidence, objection or signification, and

(ii) the name of the employer; and

(b) is filed not later than the terminal date for the application.

75.-(1) Where a document is required to be filed by these Rules, filing shall be deemed to be made,

(a) at the time it is received by the Board; or

(b) where it is mailed by registered mail addressed to the Board at its office at 400 University Avenue, Toronto, Ontario, M7A 1V4, at the time it is mailed.

82.-(2) The Board may, upon such terms as it considers advisable, enlarge the time prescribed by thes n e Rules for doing any act, serving any notice, filing any report, document or paper or taking any proceeding and may do so although application therefor is not made until after the expiration of the time prescribed.

10. Rule 73(1) provides that evidence of membership or evidence of objection shall not be accepted by the Board unless the evidence is filed not later than the terminal date. Rule 1(1) indi­cates that "file" means file with the Board. Rule 75(1) addresses when a document is deemed to have been filed with the Board. It provides that a document shall be deemed to be filed at the time it is received by the Board or at the time it is mailed where it is mailed by registered mail addressed to the Board at its office at 400 University Avenue, Toronto.

11. On the evidence and submissions before us, the Board finds that Mr. Manns did not file his petition with the Board on or before the terminal date of November 28, 1991. Mr. Manns did not send his petition to the Board by registered mail on or before November 28, 1991, nor did the Board receive his petition on or before November 28, 1991. Mr. Manns delivered his petition to the Office of the Official Examiner. The Board does not have an office in Ottawa but does hold hearings and Board Officer meetings in Ottawa at various locations, one of them being the Office of the Official Examiner. There is nothing in the Notices to Employees or at the building in Ottawa where the Office of the Official Examiner is located which advises employees that the Board has an office in Ottawa.

12. Is this an appropriate case in which to extend the terminal date? The situation here is not one where an employee takes the position that insufficient notice was given of the application. Rather, the argument is that the Form 6 Notice to Employees is unclear and that a reasonable employee, on reading the Notice, would conclude that what Mr. Manns did complied with the fil­ing requirements. The Board is satisfied that its Notices to Employees are clear and that any rea­sonable employee who takes the time to read them carefully would understand how to file a docu­ment with the Board in a timely way. The Form 6 Notice to Employees, among other things, advises employees of the time and location of the hearing, as well as the time and location of the Board Officer's meeting. In this instance, both were to take place at the Office of the Official Examiner in Ottawa. Paragraph 4 of the Form 6 Notice to Employees provides that petitions must be filed with the Board and received by the terminal date if sent other than by registered mail. Paragraph 6 of Form 6 refers to the address of the Board's offices. Part I of the Form 6 Notice pro­vides that all communication should be addressed to the Registrar and sets out the Board's Toronto address. In our view, the Notices to Employees convey to employees that a petition that is not sent by registered mail must be received by the Board by the terminal date. The Form 6 Notice indicates where all communication should be sent and where the Board's offices are located. A reasonable person reading the Form 6 Notice would appreciate that the Officer's meeting and the Board hearing were to be held at the Office of the Official Examiner and not at the Board's offices. The Board is satisfied that its Notices clearly indicate to employees where and how peti­tions can be filed with the Board in order to comply with the Rules.

13. The Board has often stated the importance of a final cut-off point for the filing of evi­dence of employee wishes. The Board made the following comments in The Westin Hotel, [1986] OLRB Rep. Oct. 1486:

14. ... It is our view that the terminal date, and Rules relating to it, are not technical matters. Furthermore, the need for clear rules and their consistent application requires the Board to make it clear to parties when their documents will be considered filed and when all evidence must reach the Board. The question of the appropriate terminal date is not equivalent to the failure to name the employer on a petition or the failure to designate the section under which a complaint has been made, situations in which amendments are permitted; rather, as pointed out above, it addresses a matter of significance in labour relations: the date at which all parties can be satisfied all evidence must be filed if it is to be considered by the Board.

In exercising its discretion, the Board is satisfied that it would be inappropriate in the circum­stances of this case to extend the terminal date. Accordingly, the Board will not give any weight to Mr. Manns' petition in assessing the membership evidence filed by the applicant since the petition was not filed with the Board on or before the terminal date.

The Membership Evidence

14. The Board did not receive the original membership evidence from the applicant, but rather photocopies of that evidence. The applicant takes the position that in the circumstances the Board should rely on the photocopies. The respondent takes the opposite position.

15. Valerie Picard, a secretary employed by the applicant and the person who does its mail­ing, testified regarding the membership evidence sent to the Board in support of this application. She testified that she received the original membership cards and six sets of photocopies of the original membership evidence from Andre Plouffe, the applicant's organizer. She typed a list of employees, with their addresses, and also typed a Form 9 for Karen Grella's signature. Ms. Picard stated that she sent to the Board the original membership cards, 6 sets of photocopies of the origi­nal membership cards, 6 copies of the list of employees and 6 copies of the Form 9. Because of the quantity, Ms. Picard stated that she put the material in two large envelopes which she taped together. She testified that she clearly recalls putting the original membership cards in one of the envelopes. Ms. Picard testified that she went to the post office and sent the two envelopes to the Board by registered mail. Ms. Picard identified the photocopies received by the Board as the ones she sent by registered mail. She also identified the two envelopes taped together which the Board received as the ones she sent. Ms. Picard has been employed by the applicant as a secretary since September 1990 and during this time she has filed other applications and membership evidence with the Board. It is her practice and the applicant's to send the Board the original membership cards and six photocopies.

16. B. Jackson, the Labour Relations Officer, called Ms. Picard on December 9, 1991, and advised her that the Board received the photocopies but not the original membership cards. Mr. Jackson suggested that she look through the office. Even though she was sure she sent the original cards, she did as he suggested for fifteen to twenty minutes before leaving for the day. The next day Ms. Picard advised Frank Grella (the applicant's Secretary-Treasurer) of Mr. Jackson's call. Mr. Grella and Ms. Picard searched throughout the office but did not find the original cards. On that day, Ms. Picard was instructed to go to the post office and ask if there was any way of finding the cards. She did not receive an optimistic response at the post office. On the day prior to the hearing, Ms. Picard went to the post office and asked for the cards to be traced. She testified that she recognized the importance of sending the original membership cards and that she felt she might be blamed if the Board did not receive them.

17. Andre Plouffe testified that he made photocopies of the cards and gave the original cards and some photocopies to Ms. Picard. He stated that the photocopies which the Board received were copies of the original membership evidence.

18. Counsel agreed that the appropriate principles to apply when a trade union seeks to rely on photocopied membership evidence are set out in the relatively recent decision of the Board in American Barrick Resources Corporation carrying on business as Holt-McDermott Mine, [1990] OLRB Rep. March 267. The following paragraphs of that decision set out the facts, the Board's review of some cases and its conclusions:

19. The applicant filed photocopies of the evidence of membership on or before the terminal date of this application for certification with respect to those persons who made application to join the applicant. The original evidence of membership consisted of individual membership cards which were packaged and forwarded together with a binder. In the binder were photoco­pies of the evidence of membership. This material was forwarded from Kirkland Lake to the Legal Department of the applicant by priority post. The envelope which was used was a brown paper padded envelope such as might be used to send a book through the mails. The envelope was closed by means of staples and was received in Mr. Shell's office on November 7, 1989. Mr. 5hell's secretary recalls that upon receipt the envelope was taped. The envelope had been opened by pull string and its contents were removed. The membership cards were not in the envelope. The envelope had been packed in Kirkland Lake with membership cards and photo­copies of the membership evidence by Wes Dowsett personally. The photocopies of the mem­bership evidence which were placed in the package by Mr. Dowsett who is a casual employee of the applicant and who works as an organizer. The envelope had been forwarded to the applicant so that the membership cards could be filed with the Board on or before the terminal date of November 16. The applicant has searched and checked and concludes that the membership cards have been lost. Mr. Dowsett has reconstructed the package by placing the same number of other membership cards therein and has ascertained that the package weighed the same as when it was initially mailed. The stapled envelope had been opened accidentally or otherwise and was resealed by the Post Office. The applicant discovered that the membership cards were missing on November 10 and on November 12 learned with certainty that none of its personnel had the membership cards. The applicant filed photocopies of the membership cards on or before the terminal date and advised the Board that it did not rely upon the membership evidence with respect to one person. The applicant engaged in a strenuous Form 9 inquiry and as an appendix to Form 9, Declaration Concerning Membership Documents, disclosed as follows:

APPENDIX "A"

The membership evidence submitted in support of the application for certification consists of photocopies of individual applications for membership to the United Steelworkers of America. The applicant hereby confirms that each of the collectors of the memberships for application has confirmed the authenticity and validity of each document filed in support of membership in the Steelworkers and that has been filed in support of the application for certification.

In submitting this Form 9 Declaration and Appendix the applicant notes that because of excep­tional circumstances (see cover letter) it must rely upon the photocopies of membership evi­dence. Accordingly, the applicant has undertaken an exceptionally rigorous review and confir­mation of the validity of the membership evidence in support of the application for certification. The applicant is prepared to bring evidence as to why it is relying upon the photocopied mem­bership evidence in this case.

With regard to the membership evidence filed on behalf of:

1. (Name), the applicant states that the correct date of signing for request of membership in the applicant, payment of the $1.00 and collection of the $1.00 is August 30, 1989.

2. (Name), the applicant states that the correct date of signing for request of membership in the applicant, payment of the $1.00 and collection of the $1.00 is September 1,1989.

As a result of not Being able to ascertain who collected one card, the applicant asked that it not be relied upon. The membership cards have been lost. This loss is not due to any negligence by the applicant. On November 14, the applicant filed an Application for Indemnity or Service Inquiry with Canada Post Corporation. Such an application initiates a trace internally for the contents of the package. However, the applicant has not received an official response from Canada Post Corporation.

22. The Board has previously considered applications for certification where an applicant did not file membership evidence in its original form. In Praetor Enterprises Limited, [1983] OLRB Rep. Apr. 592, the Board listed an application for hearing and stated that the purpose of the hearing was as follows:

Applications made pursuant to the construction industry provisions of the Labour Relations Act normally do not require that a hearing be held by the Board. In the present instance, the Board has not received the evidence of representation in support of this application nor has it received a Form 80 as required by the Board's Rules of Procedure. The position taken by the applicant trade union is that prior to the termi­nal date, the evidence of membership and the Form 80 were sent by registered mail to the Board. The Board has not yet received these documents. In these circumstances, the Board directs that the Registrar list this matter for hearing. At the hearing in this matter, the Board will hear viva voce the evidence of the applicant trade union con­cerning the mailing by registered mail of the evidence of membership and the Form 80. The Board will then base its decision in this application for certification on that evidence.

At the hearing a business representative of the applicant gave evidence that he handled the application for certification and that he mailed by registered mail to the Registrar an envelope containing certain membership documents and a Form 80, Declaration Concerning Membership Documents, Construction Industry. In support of this statement he presented a registration receipt from Canada Post for March 28, the date on which he mailed the letter, listing amongst other things, a letter sent by registered mail to the Registrar. The business representative also filed with the Board photocopies of five membership documents enclosed in the envelope. The business representative testified that the applicant had instituted a search with Canada Post on April 12. As of the date of hearing, the search had revealed nothing further about the missing envelope. The Board accepted the evidence of the business representative that the documents referred to were mailed by registered mail prior to the terminal date of the application. The Board specifically found that the applicant had filed and recited the details of the membership evidence as set forth on the photocopies. In The Norfolk County Board of Education, [1974] OLRB Rep. March 182, the Board commented upon a situation where photocopies of member­ship evidence were filed without being disclosed in advance. At pages 183 and 184, the Board stated as follows:

4. The Board has examined with some concern the evidence of membership filed by the applicant in support of its claim for bargaining rights. They are photocopies of documents that purport to indicate that the undersigned in each case is an office employee in the employ of the respondent, that each is a member of the applicant trade union, and that the required initiation fee was paid. Save in two circumstances, the signatures purport to reflect copies of the counter-signature of the treasurer of the applicant and a date appears on each of the documents described herein. In the case of two documents, the signature of the treasurer seems to have bene penned in after the photocopies were taken.

5. The Board usually relies on the "best evidence" in accepting documents indicating the voluntary wishes of employees to be members of a trade union. The Board relies heavily on such evidence and normally accepts documents indicating membership in a trade union at face value. In this regard such reliance is usually predicated upon the filing of the authentic, original membership cards. The Board imposes such strict stan­dards with respect to the acceptability of such evidence in order to avoid the onerous task of requiring oral testimony of each and every person who purports to be a mem­ber of a trade union pursuant to an application for certification. In short, the practice of the Board in satisfying itself of the true and voluntary wishes of employees who desire to be members of a trade union is to rely on "the best evidence" available.

6. The hazard of accepting photocopy evidence is indicated in the two instances referred to in paragraph #4 herein. In those instances, the signature of the treasurer is handwritten on two cards. That is to say, in those examples the photocopies are not a true replica of the original cards. It is noted that this matter was not disclosed in the Form 8 [now Form 9], Declaration Concerning Membership Documents. It follows, therefore, that for the Board to accept the membership evidence filed by the appli­cant we would have to condone an obvious (whether intended or not) misrepresenta­tion. The Board, therefore, does not hesitate to set aside all of the applicant's evi­dence of membership.

7. In order that the Board's decision be not misunderstood, it wishes to add the fol­lowing for the applicant's benefit. The Board, in most circumstances, will require that documents purporting to be membership cards be filed in their original form. Never­theless, there may very well be circumstances where photocopy evidence may be the only evidence available for purposes of establishing a claim to representative rights. In such instances, the Board is of the opinion that the matter of the photocopy evi­dence should be disclosed in advance and that the applicant be prepared, at the hear­ing, to establish the authenticity of such evidence.

8. The application is therefore dismissed.

9. In the instant application, the applicant seeks to rely on the best evidence available and has adopted the advice of the Board set forth in The Norfolk County Board of Education. The facts set forth by the applicant have not been challenged by the respondent. The respondent had the opportunity to cross-examine the declarant of the Form 9. The photocopies of the membership evidence which the applicant has filed are in writing and are signed by the employee. The appli­cant is relying on secondary evidence. In The Law of Evidence in Civil Cases 1974, by Sopinka and Lederman, the authors set out at page 281 the circumstances under which secondary evi­dence is admissible as follows:

Secondary evidence may be admitted when the court is satisfied that the original doc­ument existed and it has been lost or destroyed. Proof of its loss or destruction need not be made by direct evidence but may be proved presumptively by showing that a reasonably diligent search has been made in the places where the document was likely to be found. Whether the inference of loss will be drawn by the court depends upon the sufficiency of the evidence of the search made to find it.

See also Re Beukenkamp et al. v. The Minister of Corporate Affairs (1974), 1973 CanLII 2261 (FC), 43 D.L.R. (3d) 118, where the Federal Court ruled that a photocopy of a share purchase note was admissible in evi­dence upon satisfactory proof of the destruction of the original or loss of the original by showing it cannot be found after a diligent search. The issue of copies of originals has also been recently considered by the British Columbia Supreme Court in Beatty v. First Exploration Fund 1987 and Company. Limited Partnership (1988) 1988 CanLII 3066 (BC SC), 25 B.C.L.R. (2d) 377 where the court considered a part­nership agreement which provided that proxies should be "written" and "signed by the appoin­tor". Some of the proxies had been faxed in a timely manner. The court observed that the law had to take cognizance of technological advances in means of communication and that a faxed copy was essentially a photocopy of the original and should be considered as both "written" and "signed".

24. The applicant is faced with the loss of its original membership evidence through no fault of its own. The applicant has searched diligently and has done all in its power to find the original membership cards. The Board does not agree that in these circumstances the application ought to be dismissed with the applicant being left to contemplate whether it will re-sign the employ­ees who signed the lost membership cards.

While accepting the photocopies as satisfying the requirements for evidence of membership in the above case, the Board emphasized that it will ordinarily require the best evidence available, namely the original evidence of membership.

19. In arguing that the Board should not rely on the photocopied membership evidence in this case, counsel for the respondent submitted that we should not believe Ms. Picard when she says she filed the original membership cards with the Board. He notes that the searches which Ms. Picard made are not consistent with her evidence that she sent the original cards to the Board. Counsel suggests that her evidence was influenced by a concern of adverse employment conse­quences. Even if one assumed Ms. Picard's evidence to be true, counsel argues that the applicant is no better off. He points to the facts in the American Barrick decision in contrast to what occurred here and submits that this applicant did not do enough to satisfy the Board's requirements. Coun­sel argues that the applicant did not investigate the loss of the original cards as thoroughly as it should have. He also submits that the applicant should have filed an amended Form 9 once it became aware of the situation in order to provide the Board with the best evidence possible.

20. After hearing the evidence of Ms. Picard, the Board finds that she did place the original membership evidence in the envelopes and sent that evidence to the Board by registered mail. However, the original membership evidence was not placed in the Board's file and the only mem­bership evidence the Board has is the photocopied membership evidence and the Form 9. Should the Board rely on the photocopies in the circumstances of this case?

21. As the American Barrick decision and the cases cited therein indicate, the Board usu­ally requires membership evidence to be filed in its original form since the Board's practice in satis­fying itself of the wishes of employees is to rely on the "best evidence" available. Where the photo­copied evidence of membership is the only evidence available, the Board may rely on this evidence if it is satisfied that the applicant has established the authenticity of its evidence. Whether the Board will be prepared to accept photocopied membership evidence will be dependent on the facts before it in each case.

22. The Board is satisfied that the membership evidence has been lost through no fault of the applicant. The Board is also satisfied that the photocopies which were filed in a timely way are photocopies of the original membership evidence. Counsel for the respondent argues that the applicant should have filed an amended Form 9 once it became aware that the original cards were lost. In our view, it was not necessary for the applicant to file an amended Form 9 in the circum­stances of this case. It sent its Form 9 with the original membership evidence and with the photoco­pies and there is no reason to conclude that the proper Form 9 enquiries were not made. In the cir­cumstances of this case, the Board is prepared to rely on the photocopied evidence filed by the applicant.

23. The evidence of the membership which has been filed by the applicant, although mechanically reproduced, is in writing as required by section 73(1) of the Board's Rules of Proce­dure. On the evidence before it, the Board is satisfied that the evidence of membership establishes that the persons, on whose behalf the evidence of membership has been filed, have applied for membership in the applicant and have paid to the applicant on their own behalf an amount of at least one dollar in respect of initiation fees in the applicant. The Board is therefore satisfied that these persons are members of the applicant within the meaning of section 1(1) of the Labour Rela­tions Act.

The Bargaining Unit Description

24. The parties were unable to reach complete agreement on the bargaining unit descrip­tion. The underlined portions of the following description highlight the disputed areas:

all employees of the respondent at its Airline Services Division in Gloucester, save and except supervisors/assistant manager, persons above the rank of supervisor/assistant manger, office staff, chef, and sous-chef.

25. The applicant takes the position that persons employed as supervisors and sous-chefs do not exercise managerial functions within the meaning of section 1(3)(b) of the Act. The respondent takes the opposite position. Having regard to the agreement of the parties, the Board hereby appoints a Labour Relations Officer to inquire into and report back to the Board with respect to whether or not the persons listed in paragraph 3(b) of the Board Officer's Report exercise manage­rial functions within the meaning of section 1(3)(b) of the Act.

26. The applicant seeks a unit that includes all employees of the respondent in Gloucester while the respondent maintains that the appropriate unit should be described as all employees of the respondent at its Airline Services Division. The employees whom the applicant seeks to repre­sent are employed at the in-flight kitchen at the Ottawa Airport. They are involved in the prepara­tion and delivery of food for the airlines using that airport. This is the only location from which the respondent operates a business in the City of Gloucester.

27. The respondent has seven operating divisions which carry on business under the follow­ing names: Swiss Chalet, Harveys, Steak & Burger Restaurants, Airline Services, Retail Stores, Air Terminal Restaurants, and Days Inns. Each division operates as a separate profit centre and reports through its own management structure. The labour relations history and the way it has been certified in the past is by operating division. In 1970, this Board certified the respondent for "all employees of the respondent in its Airline Services Division working at or out of the Right Kitchens at Malton". The respondent has twenty collective agreements in Ontario, with at least eight trade unions and all of these bargaining relationships are by division.

28. Counsel for the respondent recognized that the Board's usual practice is to certify for a municipal-wide unit where an employer operates from only one location in a municipality. Counsel argued that the Board should not rely on this practice in this case having regard to its particular cir­cumstances. Counsel noted that the divisions have been in existence for some time, are quite dis­tinct from each other and operate separately. Counsel relies strongly on the fact that all of the respondent's collective bargaining relationships are along divisional lines which for him illustrates the separate bargaining interests. Counsel in effect argued that a certificate which did not recog­nize the respondent's divisions could only impact adversely on collective bargaining should another division begin to operate in the City of Gloucester.

29. Counsel for the applicant argued that the circumstances of this case should not cause the Board to depart from its usual practice. In counsel's view, the employees working for the respondent at its in-flight kitchen would have a community of interest with employees employed in at least some of the other divisions. In order to protect and give stability to its bargaining rights, counsel submitted that the unit should include all employees in the City of Gloucester. In support of his position, counsel relied on the following cases: Intercity Foods Services Inc., [1977] OLRB Rep. Dec. 824; T. Eaton Company Limited, [1984] OLRB Rep. March 530; and, Hunter Douglas Canada Limited, [1985] OLRB Rep. April 535.

30. The Board is satisfied in the circumstances of this case that the bargaining unit should be defined as: all employees of the respondent at its Airline Services Division in Gloucester. By defining the bargaining unit in this way, the applicant does obtain municipal-wide bargaining rights. The issue in dispute between the parties is whether the bargaining rights will attach to all of the respondent's divisions or only one of them. In our view, it is appropriate in this case to limit the municipal-wide bargaining rights to the business the respondent now operates in Gloucester. The respondent's divisions operate separately, each with its own managerial structure. Each divi­sion is different to the extent that we are not satisfied that employees in each division would share a community of interest. Of most significance is the collective bargaining history of the respondent. The respondent has a considerable number of bargaining relationships with different trade unions, all of which are along divisional lines. The applicant's proposed unit could lead in the future to bar­gaining difficulties. In this connection, we refer to the following comments of the Board in VS Ser­vices Ltd., [1987] OLRB Rep. June 931, which deal with bargaining units in the food service indus­try:

31. In the instant case, the evidence establishes that client-specific bargaining units have become the norm in this industry. Moreover, Ms. Kelman's evidence concerning the wide variance in the respondent's industrial dining division operations, and in the terms and conditions of employment which reflect the varied needs of individual clients (confirmed, in the instant case, by the evidence adduced before the Board Officer with respect to the respondent's Eaton Yale and Navistar locations), demonstrates that this norm reflects the labour relations and competi­tive realities of the industry. As submitted by counsel for the respondent, the inclusion of such disparate operations in a single bargaining unit would tend to place an undue strain on the col­lective bargaining process by creating a situation in which the Union would likely attempt to enshrine in a collective agreement specific terms and conditions of employment suitable to a particular location, while the employer would likely attempt to negotiate highly general provi­sions reflecting the "lowest common denominator" among the wide variety of potential services which it could be called upon to provide for future (and existing) clients.

32. The facts before us are quite different from those before the Board in Hunter Douglas Canada Limited, supra. The nature of the industry involved here and the unique circumstances lead us to accept the respondent's position.

33. The Board has determined that the applicant's right to certification cannot be affected by the Board's ultimate decision as to the inclusion or exclusion of the disputed classifications referred to in paragraph 25. On the basis of all the evidence before it, 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 November 28, 1991, the terminal date fixed for this application and the date which the Board determines, under section 105(2)(j) [formerly 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.

34. Accordingly, the Board, pursuant to its discretion under section 6(2) of the Act, certi­fies the applicant, on an interim basis, as the bargaining agent for all employees of Cara Opera­tions Limited at its Airline Services Division in Gloucester, save and except office staff and chef, and, pending the resolution of the bargaining unit description, supervisors/assistant manager, per­sons above the rank of supervisor/assistant manager, and sous-chef.

35. A formal certificate must await the final determination of the appropriate bargaining unit.

APPENDIX

FILE NO. 2658-91-R

FORM 6

LABOUR RELATIONS ACT

NOTICE TO EMPLOYEES OF APPLICATION FOR CERTIFICATION

AND OF HEARING

BEFORE THE ONTARIO LABOUR RELATIONS BOARD

Between:

Hotels, Clubs, Restaurants, Taverns, Employees

Union. Local 261,

Applicant,

-and­-

Cara Operations,

Respondent.

TO THE EMPLOYEES OF

Cara Operations

1. TAKE NOTICE that the applicant, on NOVEMBER 12, 1991, made application to the Ontario Labour Relations bard for certification as bargaining agent of employees of Cara Operations in the following unit claimed by the applicant to be appropriate:

'All employees of the respondent at Cara Operations Ottawa International Airport. Ottawa, Ontario save and except the Manager, Assistant Manager, Chef, Office Staff all persons above the rank of Assistant Manager.'

2. AND TAKE NOTICE that the hearing of the application by the Board will take place at the Office Of The Official Examiner, 901 — 200 Elgin St., Ottawa, Ontario, on THURSDAY, the 19th day of DECEMBER. 1991. at 9:30 o'clock in the forenoon. (Local Time)

SEE EXPLANATORY NOTICE ON PAGE 2.

THE PURPOSE OF THE HEARING is to hear the evidence and representations of the parties with respect to all matters arising out of and incidental to the application referred to in paragraph 1.

3. The Board has fixed THURSDAY, the 28TH day of NOVEMBER 1991, as the TERMINAL DATE for this application.

4. (1) The board will sot hear evidence or representations of employees objecting to certification of the applicant unless one or more documents, sometimes referred to as petitions, expressing objection to the certification of the applicant are filed with the board.

(2) A document referred to in subsection (1),

(a) must be signed by the objecting employee or employees;

(b) must be,

(i) received by the terminal date if sent other than by registered mail, or

(ii) mailed to the Board by the terminal date shown in paragraph 3 if sent by registered mail; and

(c) must be accompanied by the name of the employer concerned and the return mailing address of the employee or employees filing the document or of the representative of the employee or employees. including the board file Number.

(3) The objecting employee or employees or a representative of the objecting employee or employees MUST ATTEND THE BOARD’S HEARING AND PRODUCE A WITNESS OR WITNESSES who, from personal knowledge and observation, can describe the circumstances in which each document was prepared, circulated and signed, and verify each signature.

No oral evidence of employee objection to certification of the applicant will be accepted by the Board except to identify and substantiate written evidence which complies with these requirements.

5. IF TOO DO NOT ATTEND AT THE HEARING, THE BOARD MAY PROCEED IN YOUR ABSENCE AND YOU WULL NOT BE ENTITLED TO ANY FURTHER NOTICE IN THE PROCEEDING.

6. (Where the applicant is a council of trade unions) AND FURTHER TAKE NOTICE that the applicant has filed with the Registrar certain documents upon which it intends to rely to satisfy the board that each of the trade unions that is a constituent union of the council baa vested appropriate authority in the council to enable it to discharge the responsibilities of a bargaining agent. These documents are available for inspection at the offices of the board, 400 University Avenue, Toronto, Ontario, during business hours.

7. Other relevant statements, if any:

N/A

YOUR ATTENTION IS DIRECTED TO THE ACCOMPANYING EXPLANATORY “NOTICE OF EMPLOYEES”.

Please be advised that Mr. William Jackson, a Board Officer from the Ontario Labour Relations Board, will convene a meeting of the parties to this Application for Certification at the Office Of The Official Examiner, 901 — 200 Elgin St., Ottawa, Ontario, on THURSDAY. DECEMBER 12, 1991, at 9:30 A.M. (Local Time)

The purpose in attending the officer's meeting will be to address all questions that may be raised in connection with the appropriateness for collective bargaining purposes of the unit(s) proposed in the application and any reply, the membership support for the union, and such other issues as may arise as a result of the application filed. This meeting may result in the board issuing a decision in this matter without an oral hearing on the basis of agreements reached between those attending the meeting.

DATED this 20th day of November, 1991.

T. A. Inniss

________________________________

Registrar

Ontario Labour Relations board

FORM 6

NOTES

I. All communication should be addressed to,

The Registrar

Ontario Labour Relations board

4th Floor

400 University Avenue

Toronto, Ontario

M7A 1V4

II. The requirements set out in paragraph 4 of this notice relate only to evidence of employee objection to certification of the applicant trade union. If you attend at the board’s hearing and wish to make representations about something other than employee objection to certification of the applicant, paragraph 4 does not apply. However, your attention is directed to section 72 of the bard’s Rules of Procedure which applies in such situations and provides, in part, as follows:

72. (1) Where a person intends to allege at the hearing of an application or complaint, improper or irregular conduct by any person, he shall,

(b) file a notice of intention that shall certain, a concise statement of the materiel facts, actions and emissions upon which he intends to rely as constituting such improper or irregular conduct, including the time when and the place where the actions or emissions complained of occurred and the names of the persons who engaged in or committed them, but not the evidence by which the material facts, actions or emissions are to be proved, and, where he alleges that the improper or irregular conduct constitutes a violation of any provision of the Act, he shall include a reference to the section or sections of the Act containing such provision.

(4) No person shall adduce evidence at the hearing of an application or complaint of any materiel fact that has not been included ... in any document filed under these Rules in respect of the application or complaint, except with the consent of the Board and, if the Board deems it advisable to give such consent, it may do so upon such term and conditions as it thinks advisable.