Rosetta Luciani v. The Hotel Employees: Restaurant Employees Union, Local 75 of the Hotel Employees, Restaurant Employees International Union v. Cara Operations Limited
Court File No.: 3167-91-R Date: March 13, 1992 Ontario Labour Relations Board
Before: G. T. Surdykowski, Vice-Chair, and Board Members J. A. Ronson and H. Kobryn.
Appearances: David Turner, Sharon Freedman and Rosetta Luciani for the applicant; Kevin Whitaker, Jerry Jones and Rick Frechette for the respondent; Brian O'Byrne, Ken Davis and Paul T. Bachand for the intervener.
Decision of the Board
1This is an application under (what is now) section 58 of the Labour Relations Act for a declaration that the respondent trade union no longer represents certain employees of the intervener Cara Operations Limited. The parties are agreed that the bargaining unit to which this application relates is described as:
all employees of Cara Operations Limited in its Airline Services Division at its Right Kitchens at the Toronto International Airport, save and except supervisors, persons above the rank of supervisor and office staff.
2At a hearing on January 31, 1992, the respondent sought to have the Board dismiss the application and impose a bar to further such applications in the exercise of its discretion under (what is now) section 105(2)(i) of the Labour Relations Act. Upon hearing the representations of the parties in that respect, the Board ruled, orally, that it was not satisfied that it should exercise its discretion in the manner requested and dismissed the respondent's motion. The Board's reasons follow.
3The applicant herein had also made a previous application for a declaration terminating the same bargaining rights as those in issue herein. The first application, in Board File No. 2601-91-R, was made on November 12, 1991. It was processed in accordance with the Board's usual procedures which included fixing a terminal date of November 25, 1991, and scheduling a meeting with a Labour Relations Officer for December 6, 1991 and a hearing for December 13, 1991. The Officer's meeting was adjourned to December 13, 1991 and proceeded on that date and on December 17, 1991. The hearing was rescheduled for December 20, 1991.
4After the parties worked through the application with the Labour Relations Officer, they were advised, on December 17, 1991, that it appeared that less than forty-five per cent of the employees in the bargaining unit for purposes of the application had signed the statement of desire filed in support of it and that the applicant therefore appeared to be in a dismissible position. The applicant indicated, at that time, that she nevertheless wished to proceed to a hearing with respect to certain unfair labour practice allegations she had made. The following day, however, by letter from counsel dated December 18, 1991, the applicant wrote:
This is to inform the Board that the applicant hereby withdraws the current application ... without prejudice.
5By letter dated December 19, 1991, the respondent advised the Board that it did not consent to the withdrawal of the application on a without prejudice basis and requested an opportunity to argue before the Board that the application should be dismissed and a bar imposed.
6The Board (differently constituted) heard the representations of the parties in that respect at the December 20, 1991 hearing and ruled, orally, that the application should be dismissed, but no bar was imposed to any subsequent applications. We were advised that in making that ruling, the Board indicated that the issue of a bar could be raised in a subsequent application if one was made.
7This application was made on January 3, 1992.
8The respondent argued that the representation issued raised by this application had been tested and determined in the first application and that the respondent has not had a reasonable opportunity to pursue collective bargaining since then. The respondent urged the Board to balance what is characaterized as being the competing interests and policy considerations behind sections 58 and 105(2)(i) (that is, the representation interest versus the protection of existing collective bargaining relationships) by dismissing this application with a bar. The respondent argued in that in balancing the two interests the Board should ask itself the following questions:
(1) has the applicant had a fair chance to raise the representation issue?
(2) if so, has the union had a reasonable opportunity to bargain since that issue was disposed of?
(3) are there any exceptional circumstances?
In support of its position, the respondent relied upon the Board's decisions in Seven-Up (Ontario) Limited, [1971] OLRB Rep. Dec. 791; Dunville Supermarket Limited, [1980] OLRB Aug. 193; Browning-Ferris Industries, [1982] OLRB Rep. June 816 and [1982] OLRB Rep. Sept. 1253; Storwall International Inc., [1985] OLRB Rep. Nov. 1679 and R.L.D. Electric, [1986] OLRB Rep. Aug. 1145, and it submitted that, in this case, the Board should conclude that the questions it had submitted should be answered "Yes", "No", and "No", and that the application should therefore be dismissed with a bar.
9The applicant agreed that it was appropriate to seek a balance between the right to test representation rights and the right to maintain and pursue a collective bargaining relationship. However, counsel submitted that the true wishes of the employees had not been tested with respect to the representation issue in this case and that the disruption to the collective bargaining relationship complained about by the respondent is inherent in any termination application and is therefore specifically contemplated by the Act. Counsel sought to distinguish the cases relied upon the respondent and also referred to the Board decisions in Soo Dairies Limited, [1971] OLRB Rep. July 439 and Repac Construction & Materials Limited, [1978] OLRB Rep. Jan. 91. The applicant argued that balancing of interests in this case favoured allowing this application to proceed in order to permit the representation issue to be truly tested.
10The intervener employer quite properly took no position with respect to the respondent's motion as such. It limited its submissions to the denying the respondent's allegations, in argument, that the intervener had refused to bargain and to responding to the applicant's complaints with respect to the quality of the list of employees filed in the first application.
11The situation before the Board in this case was analogous to one in which a trade union applies to be certified for a bargaining unit of employees already represented by another trade union, discovers that it has miscalculated its membership position, subsequently seeks to withdraw its application, but has its application dismissed because of the stage of the proceedings. In those circumstances, a subsequent application by the same union would not generally be dismissed by the Board in the exercise of its discretion under section 105(2)(i) of the Act, mainly because the Board does not consider that the representation issue in such circumstances has been both raised and determined. Accordingly, the first question is not quite as characaterized by the respondent. As the Board's jurisprudence demonstrates, that question is not just whether there has been a fair opportunity to raise the representation issue, but whether the representation issue has been raised and determined.
12As the Board said in the often quoted paragraph 16 of Seven-Up (Ontario) Limited, supra:
- The Trinidad Leaseholds Case and subsequent decisions based on its principles stand for the proposition that when a second application for certification or termination is made upon the heels of a prior application involving the same parties, in determining whether it should refuse to entertain the second application, the Board must balance the right to test an incumbent trade union's strength among the employees it represents at an appropriate time against the maintaining of continuity and stability in an existing collective bargaining relationship. Stated another way, once a representation issue has been dealt with on its merits and in the absence of special circumstances, then an incumbent trade union ought to be afforded a reasonable opportunity to demonstrate, without undue impediment, its ability to bargain with that employer for a collective agreement on behalf of those employees it represents.
[emphasis added]
13Certainly, the mere fact that there has been one representation application which has been dismissed does not mean that a second one, made soon after, should necessarily not be entertained by the Board. In order for the Board to properly exercise its discretion to entertain a representation application which is otherwise properly made, it must, in our view, be satisfied that the representation issue was truly determined in the first proceeding and that, in all the circumstances, it is appropriate to refuse the second one to proceed in the interest of labour relations stability. Seven-Up (Ontario) Limited, supra, Dunville Supermarket Limited, supra, Browning-Ferris Industries, supra, Storwall International Inc., supra, and R. L. D. Electric, supra, are all examples of cases in which the Board was so satisfied. Soo Dairies Limited, supra and Repac Construction & Materials Limited, supra are examples of circumstances in which the Board was not so satisfied. The jurisprudence also demonstrates the idiosyncratic nature of such cases.
14Obviously, discretionary determinations such as this, must be made judiciously on the basis of the circumstances peculiar to each case. It is neither possible nor appropriate to establish a catalogue or set of rules in that respect. In this instance, the Board was satisfied that, in the circumstances of described, the situation was analogous to that described in paragraph 11 above. The Board was satisfied that, what appears to be a very real representation issue was not truly determined in the first application, and that in the interests of both short and long term labour relations considerations, it should be. We find it neither necessary nor appropriate to comment further.
15The respondent's motion under section 105(2)(i) of the Act is therefore dismissed aforesaid.
16This matter will proceed as scheduled by the Registrar.```