Ontario Labour Relations Board
Citation: United Steelworkers of America v. Marchelino Restaurants Ltd., 1994 CanLII 9931 Date: September 28, 1994 File No: 1834-94-R
Between: United Steelworkers of America, Applicant v. Marchelino Restaurants Ltd. c.o.b. as Marchelino Restaurants, Responding Party
Before: Roman Stoykewych, Vice-Chair, and Board Members S. C. Laing and G. McMenemy.
Decision of the Board
1The style of cause of this proceeding is amended to reflect the correct name of the responding party employer, "Marchelino Restaurants Ltd. c.o.b. as Marchelino Restaurants".
2This is an application for certification.
3The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
4The applicant seeks to represent the employees of the responding party employer, who operates a restaurant in the downtown Ottawa area. Although the parties had resolved the substantial majority of the issues relating to this application, at the hearing of this matter on September 19, 1994, the Board received the parties' submissions concerning the appropriateness of the municipality-wide bargaining unit sought by the applicant. The responding party operates only one restaurant in the Ottawa area. At the hearing, counsel on behalf of the employer submitted that the location - specific nature of its operation was such as to warrant an exception to the Board's usual practice of granting an applicant municipality-wide bargaining rights. Instead, it was asserted that the geographic scope of the union's bargaining rights ought to be restricted to the street address of the restaurant establishment. After considering the submissions of the parties, the Board made the following oral ruling:
We have considered the submissions of the parties and have concluded that the responding party has not presented us with reasons why we should depart from our policy regarding the availability of a municipality-wide unit to the applicant in circumstances where the responding party operates out of only one establishment in that municipality. (See T.R.S. Food Services Limited, [1980] OLRB Rep. Apr. 542.) Moreover, the employer has not demonstrated that, were the applicant's proposed bargaining unit to be accepted, it would experience serious labour relations difficulties as has been elaborated in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266. Accordingly, the employer's objection to the applicant's bargaining unit is dismissed and the bargaining unit scope will extend to the City of Ottawa.
5Having regard to the foregoing and to the agreement of the parties, the Board finds that:
all employees of Marchelino Restaurants Ltd. c.o.b. as Marchelino Restaurants in the City of Ottawa, save and except District Manager, Store Manager, Assistant Manager, Floor Manager, Bar Manager and persons above the rank of District Manager, Store Manager, Assistant Manager, Floor Manager, Bar Manager and office and clerical staff,
constitute an appropriate unit for collective bargaining.
6In addition, upon the Board's usual inquiries into the membership evidence submitted by the applicant in support of this application, it was discovered that the membership application document with respect .to an employee whose name appeared on the list of employees supplied by the responding party, although apparently signed by that employee, did not bear any indication as to the date upon which it was so signed. The Board heard evidence with respect to the circumstances of the signature of the membership evidence, and satisfied itself that, in fact, the card was signed by the employee within the six month period preceding the application date. We therefore ruled that the applicant could rely upon the documentary evidence in support of the application.
7Having so ruled, it was determined that there were no further irregularities with respect to the remaining documentary evidence filed by the applicant. The application for membership cards are signed by each employee concerned, are dated within the six month period immediately preceding the application date, and are supported by a duly completed Declaration Verifying Membership Evidence.
8Upon being so advised, and having previously been made aware of the state of the "count", the parties resolved their remaining disputes regarding the employee status of certain persons. Accordingly, the parties agreed that both Paul Muise and Jeff Davies, who are employed in the position of "Team Leader", are excluded from the operation of the provisions of the Act because they perform managerial functions within the meaning of section 1(3) of the Act.
9Therefore, on the basis of all the evidence before it, the Board is satisfied that more than fifty-five per cent of the employees in the bargaining unit at the time the certification application was made were members of the applicant on August 25, 1994, the certification application date, or had applied to become members of the applicant on or before that date.
10A certificate will issue to the applicant.