Employees of 598142 Ontario Limited carrying on business as Spooners' Restaurant v. The Retail, Wholesale and Department Store Union, Local 448

[1993] OLRB Rep. January 77

2458-92-R Employees of 598142 Ontario Limited carrying on business as Spooners' Restaurant, Applicant v. The Retail, Wholesale and Department Store Union, Local 448, Respondent v. 598142 Ontario Limited c.o.b. as Spooners' Restaurant, Intervener

BEFORE: Brain Herlich, Vice-Chair, and Board Members W. H. Wightman and J. Redshaw.

APPEARANCES: Paul Brooks, Patricia Wood and Pam Gibson for the applicant; Robert McKay for the respondent; Frank A. Angeletti, Jim Raglan and Joe Kiefer for the intervener.

DECISION OF THE BOARD; January 7, 1993

1. This is an application for a declaration that the respondent trade union (the "union") no longer represents the employees of the intervener employer (the "employer") in the bargaining unit described below. The application is brought pursuant to section 58 of the Labour Relations Act.

2. Through the waiver process and the involvement of a Labour Relations Officer the parties were able to agree, prior to the hearing, that the bargaining unit affected by this application consists of:

all employees of 598142 Ontario Limited c.o.b. as Spooners' Restaurant at London, Ontario, save and except Department Managers and persons above the rank of Department Manager, office and clerical staff.

The waiver process also disclosed that there were 49 employees on the employer list for the purposes of the count. And although the union objected to the inclusion of three of those persons on the list of employees, it was also evident that, regardless of the disposition of those challenges, the statements of desire (petitions) filed in support of this application were numerically relevant. It is consequently not necessary for us to deal with those challenges, at least not at this stage of the proceedings.

4. This application was filed with the Board on November 16, 1992. In its reply to the application the union indicated as follows:

The parties held several bargaining meetings in 1992, the last occurring on September 14, 1992 with a mediator. The union accepted an offer put forth by the employer as settlement of all outstanding issues. The employer subsequently withdrew their offer. The Union has charged the employer with bad faith bargaining and a hearing is set for December 14, 1992.

5. At the commencement of the hearing, on December 18, 1992, in the present matter, the union advised that it was asserting the current application is untimely. According to the union a collective agreement was concluded in September of this year. If that is the case, the current application would clearly appear to be untimely. The employer denies the union's assertion regarding the current existence of a collective agreement. The parties agree, however, that these, or at least related issues are the subject of an unfair labour practice complaint, Board File No. 1876-92-U, in which a hearing has already commenced and is scheduled to continue and likely conclude before a different panel of the Board in February, 1993. The union advised that in those proceedings it is seeking a direction that the employer execute a memorandum of settlement and that the Board declare that the collective agreement was in force from September of 1992.

6. None of the parties to the present application argued that this panel should hear all the evidence relevant to the timeliness issue at this stage of the proceedings. In view of the substantial overlap, if not complete identity, of the evidence that would consequently have to be heard by two different panels of the Board, we are of the view that the parties' position in this regard was eminently sensible. From there, however, the parties' views as to how we should proceed in this matter diverged. The union submitted that the present matter ought to be adjourned pending the determination of the Board in the unfair labour practice complaint at which time the timeliness issue would be clarified. The applicants and the employer urged the Board to proceed and hear the evidence regarding the voluntariness of the statements of desire (petitions) filed in support of the application.

7. After recessing to consider the submissions of the parties, the Board ruled, orally, that in the circumstances, including the fact that the union had not proposed adjourning the matter until the morning of the hearing and after the other two parties had been required to travel to Toronto from London and the fact that there was a real likelihood of completing the evidence in one day, we would proceed to hear the evidence regarding the voluntariness of the petitions.

8. We also noted at that time that once the section 91 complaint in Board File No. 1876-92-U was determined we would hear further from the parties with respect to the timeliness issue in the present application.

9. We then proceeded to hear the evidence of the applicants who called two witnesses to testify as to the origination, preparation and circulation of the petitions. After hearing this evidence and having the opportunity to cross-examine the witnesses, the union conceded that the petitions represented the voluntary desires those who had signed.

10. At this stage the parties once again disagreed as to how the Board should proceed. The applicants and the employer urged that the Board direct the taking of a representation vote and that, pending the determination of the section 91 complaint, the ballot box be sealed and the ballots not counted. The union argued that as long as the timeliness of the present application remained in doubt, no vote should be directed. As a practical matter, a determination as to the timeliness of the present application must await the determination of the Board in the section 91 complaint.

11. All of the parties advanced credible policy arguments to support their respective positions. For example, the applicants and the employer argued that any delay in holding the vote might have an impact on the composition of the voting constituency, they also asserted that to hold the vote and seal the ballot box would cause no prejudice to any of the parties. The union acknowledged that delay might have an impact on the voting constituency but argued that the Board should, for sound labour relations reasons, avoid even the possibility of holding a vote and then, in the event the application is found to be untimely, destroying the ballots and nullifying the vote.

12. The Board has further concerns about the propriety of directing a representation vote at this stage in the proceedings, which it raised with the parties at the hearing.

13. Section 58(2)(a) of the Act provides:

58.-(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 62, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,

(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;

14. The union's position is that the collective agreement it asserts was in existence at the time of the application is a bar to these proceedings. The other parties dispute the existence of a collective agreement at the relevant time. Final determination of that issue will have to await the determination of the Board in the section 91 complaint. Hence, at least for the interim, the Board is unable to make an unequivocal finding regarding the timeliness of the current application. It may (or not) be that the applicants have no right to bring the present application. If the applicants have no right to bring the application then the Board has no jurisdiction to direct the taking of a representation vote.

15. Even if we were persuaded that we had some discretion to, at this stage, direct the taking of a representation vote in the unique circumstances of the present case, we are not satisfied such discretion should be exercised. In this regard we note that there are procedures under the Act where the Board does routinely direct the taking of representation votes while issues (some of which may ultimately go to the applicant's entitlement to a representation vote) are still outstanding and even before a hearing is held into those issues. There is, however, no equivalent for termination applications of the pre-hearing certification vote procedures found in section 9 of the Act. The obvious analogy to termination applications are the "regular" certification application procedures. It has not hitherto been the practice of the Board to direct the taking of a representation vote when the applicant union's entitlement to such a vote remains in dispute. Rather the parties generally must resolve any outstanding issues affecting the applicant's entitlement to a vote and then, if that entitlement is established, a vote will be directed. We are not persuaded that we should proceed any differently in the current termination application.

16. Further, it is not unreasonable to conclude that employees in the present case may wish to know whether they have a collective agreement (and even what its terms may be) before they are called on to exercise their franchise. We are also concerned about the impact on employee expectations and other potentially disruptive labour relations effects of holding and possibly subsequently nullifying a representation vote.

17. In all of these circumstances our concerns about holding a vote now outweigh the advantages of so doing. Thus, even assuming we have a discretion to direct the taking of a representation vote at this stage of proceedings, we decline to do so.

18. This matter is hereby adjourned pending determination of the complaint in Board File 1876-92-U. Once that matter is determined the union will have 15 working days from the date of that determination to advise the Board of its position regarding the timeliness of the present application. If the union (at any time) concedes the timeliness of the current application or fails to advise the Board of its position within the time stipulated, the Board may direct the taking of a representation vote.

CONCURRING OPINION OF BOARD MEMBER W. H. WIGHTMAN; January 7, 1993

I concur with the decision on the grounds that the Board may not have discretionary authority to order a vote in these circumstances. I am unaware, however, as to any "sound labour relations reason" for subordinating the prospect of the matter being voted upon by a totally different group of constituents to the prospect of having to destroy uncounted ballots and nullifying a vote as mentioned at paragraph 11 of the majority decision.