[1998] OLRB REP. SEPTEMBER/OCTOBER 863
1491-98-R International Beverage Dispensers' and Bartenders' Union Local 280 of the Hotel and Restaurant Employees' and Bartenders' International Union, Applicant v. Grand Bay Hotel c.o.b. Park Plaza Hospitality L.P., Responding Party
BEFORE: D. L. Gee, Vice-Chair.
APPEARANCES: Mary Hart and James Jackson for the applicant; Stewart Saxe and Marie McCammont for the responding party.
DECISION OF THE BOARD; September 9, 1998
This matter is an application for certification. In its response the Grand Bay Hotel c.o.b. Park Plaza Hospitality L.P. ("Grand Bay Hotel") requested that the representation vote be delayed pending a build up in the bargaining unit. By decision dated July 29, 1998, the Board directed that it would proceed with the representation vote on July 31, 1998 and would consider the build up issue after the vote was taken. Accordingly, a hearing was held on August 24, 1998 for the purpose of hearing the parties' evidence and representations on the issue of whether the representation vote taken on July 31, 1998 should be considered a nullity and a new vote directed following a build up in the bargaining unit.
Grand Bay Hotel is currently carrying on business as the Park Plaza Hotel located at the corner of Avenue Road and Bloor Street in Toronto. The hotel began undergoing renovations in June, 1997 and, as a result, is currently operating with only 90 rooms in service. Prior to closing a portion of its rooms for renovations, the hotel operated with approximately 238 rooms. The initial plan was for the renovations to be completed in June, 1998. This date was subsequently postponed to September, 1998 and then further postponed to January, 1999. The delay is largely attributable to strikes in the construction industry. Hotel management is confident that the renovations will be completed by January, 1999 and in fact expects an unofficial opening of rooms in December, 1998. A "Facilities Summary" document currently being provided to guests and mailed out to people seeking future bookings refers to the opening of the new rooms as occurring in January, 1999. Upon reopening the portion of the hotel undergoing renovations, the hotel will have a total of 348 rooms.
The bargaining unit sought by the applicant is comprised of full and part-time mini bar attendants. There is a mini bar in each guest room in the hotel.
In the spring of 1997, prior to the commencement of the renovations and at a time when the hotel had 238 rooms in operation, the hotel employed two full-time and five part-time staff designated as mini bar attendants. Currently, while the hotel has only 90 rooms in operation, it employs two full-time mini bar attendants. There are two mini bar attendants on shift three days of the week and one mini bar attendant on shift for the remaining four days of the week. In July, 1998, the mini bar attendants were paid for 326 hours.
The Director of Human Resources for the Grand Bay Hotel has determined that, following completion of the renovations in January, 1999, the hotel will require five or six mini bar attendants. The exact number will depend on the number of full and part-time employees hired. Whether full or part-time employees are hired will depend on the applicants and the hours they wish to work. By April, 1999, the hotel will require eight to nine mini bar attendants. Once again, the exact number is dependent on the number of full and part-time employees hired.
The hotel intends to hold a job fair in October, 1998 at which time the employees needed to staff the newly renovated hotel commencing in December or January, including the mini bar attendants, will be hired. The staff will be trained in late November and early December so that they are ready to begin as soon as the newly renovated rooms open.
A document called "Budget 1999 Minibar" was admitted into evidence. This document indicates that the occupancy for January, 1999 will be 4550 rooms requiring a total of 607 mini bar attendant hours or 3.4 full-time positions. The document indicates that the occupancy in April, 1999 will be 6395 rooms requiring a total of 853 mini bar hours or 5.0 full-time positions. The document indicates that eight hours of time is required to service 60 rooms.
The discrepancy between the number of mini bar attendants which the "Budget 1999 Minibar" document indicates will be needed in January, 1999, and the Director of Human Resources' estimate of five to six, is explained in a number of ways. First, the document is described as a conservative estimate. Second, the document does not allow for the fact that the two existing mini bar attendants, both of whom are long service employees and entitled to four weeks vacation, have been asked to take their vacation during the hotel's slow period in January. Thirdly, the hotel intends to staff the mini bar attendant position in a fashion that ensures that two mini bar attendants, as opposed to the present one, are scheduled seven days per week.
In the event the hotel's projected occupancy rates do not materialize, it will not have the effect of lowering the number of mini bar attendants hired. The attendants will be hired in October, and trained in November and December, 1998, prior to the occupancy rates being known. In the event, come January, the occupancy rates do not meet expectation, the individuals hired will be given some hours as mini bar attendants and the rest of their hours will have to be made up by assigning them to other work in the hotel.
The industry is projecting occupancy rates of 60 to 65 per cent for January, 1999 and 65 to 70 per cent for February and March, 1999.
Counsel for Grand Bay Hotel submits that the build up doctrine applies on the facts in issue as the hotel has a firm plan to increase the number of employees in the bargaining unit within five months of the application date by a minimum of 150 per cent. Counsel points to the fact that the hotel will be increasing the number of mini bars from the present 90 to 348 and the level of staffing will have to be increased accordingly. The increase is certain to occur as the renovations are nearing completion and the rooms and mini bars will exist and require servicing.
Counsel for the union does not dispute that the number of employees in the bargaining unit will be increasing. Counsel takes issue, however, with the hotel's assertion that it is a certainty that the numbers will increase to five or six by January, 1999. Counsel submits that the occupancy rates contemplated by the hotel indicate that only three full-time mini bar attendants will be required for the months of January and February, 1999 and only four will be required in March, 1999. Further, Counsel questions the certainty of the employer's numbers and argues that the numbers are subject to market conditions and fluctuations.
Counsel for the union does not dispute the Board's determination in Pet-Pak Containers, [1997] OLRB Rep. June 520, that the build up doctrine continues to apply to applications filed following the enactment of Bill 7. Counsel does, however, argue that the Board should have regard to the amendments made by Bill 7 which mandate strike and ratification votes and amend the termination provisions. In counsel's submission, the existence of such provisions should cause the Board to consider the criteria which it typically considers in build up cases in a different light. In support of such argument, counsel points to the Board's comments in Woodbridge Foam Corporation, [1985] OLRB Rep. Jan. 139 at paragraph 27 wherein the Board commented that the decision reached in that case, not to postpone certification and order a representation vote, did not irrevocably force upon future employees a collective bargaining agent in whose selection they did not participate. Counsel submits that the combination of the newly available mechanisms for employees to express their views of the trade union's representation and the importance the Labour Relations Act, 1995 (the "Act") now places on a quick and certain vote, should cause the Board to reassess the criteria it typically considers in cases of this nature.
The factors considered by the Board in the course of determining whether it will order a deferred vote on the basis of a build up were summarized by the Board in Pet-Pak Containers, [1997] OLRB Rep. June 520 at paragraph 15 as follows:
In deciding matters of this sort the Board has sought to balance the interest of the existing employees (to have their collective bargaining agent certified and to have it commence the process of collective bargaining on their behalf without undue delay) against the interests of employees who are soon to be hired (to be able to influence whether or not they will be represented by a union and, if so, what mandate the union should have in collective bargaining). The method by which the Board has effected that balance has been to determine firstly the likelihood of the hire of the new group of employees, then the proximity of their hire. If their employment is virtually certain and it will occur soon, then the Board moves to the next inquiry: is the anticipated group of new employees of sufficient size relative to the existing group of employees (who have expressed their preference for the union) such that their views ought properly to be taken into account? Leaving aside consideration of significant changes in job classifications, which do not arise in this case, the Board has usually conducted this inquiry on the basis of a majoritarian test: if the existing group of employees, who have made their choice, outnumber the incoming group then the former's views prevail and no second vote is usually ordered. If the incoming group outnumbers the existing group, then a vote is usually ordered. The Board has treated the 50% threshold (i.e. 50% of the eventual total) as a guide to determine the representativity of the existing group of employees as compared to the eventual group of employees (Brick Brewing Co. Limited, [1985] OLRB Rep. November 1557, 1560; Samuel Manu-Tech Inc., Quickiaw [1994] OLRD No. 4342 File No. 2562-94-R December 1, 1994 ¶19118-19, 25; Northland Power Partnership, [1991] OLRB Rep. June 768, at 769 ¶8; Hawk Security Systems Ltd. [1993] OLRB Rep. August 751, ¶22). There are cases in which the absolute application of the 50% guide may produce an unreasonable result, but in general, if the incoming group will outnumber the existing group of employees, and the primary considerations are satisfied, then there should be a second vote, otherwise not.
Applying the factors referred to by the Board in Pet-Pak to the facts before me, it is my determination that the build up doctrine does apply and that it is appropriate in the present circumstances to delay the conduct of the representation vote to a point in time when greater than 50 per cent of the anticipated total number of mini bar attendants have been hired, which on the facts as stated above, will be January, 1999 at the latest. My reasons for such determination are as follows.
Based on the facts before me, it is my view that it is a relative certainty that the number of mini bar attendants employed by the Grand Bay Hotel will increase in a reasonable period of time and that such increase is not dependent on factors beyond the control of the hotel. There is no dispute that the Grand Bay Hotel is presently undergoing significant renovations following which the number of rooms in operation will increase from the present 90 to 348. All of the 348 rooms will be equipped with a mini bar which, during occupation of the room, will require servicing by a mini bar attendant. Based on the industry projection rates, it is relatively certain that 60 to 65 percent of the 348 rooms will be occupied in January, 1999 and that 65 to 70 per cent of the rooms will be occupied in February and March, 1999. Thus, there will be an increase in the number of mini bars to be serviced resulting in an increased need for mini bar attendants.
In addition, the Grand Bay Hotel does not intend to wait until it is able to accurately assess occupancy rates to hire the additional mini bar attendants. The hotel intends to hold a job fair in October at which time applications will be accepted. Positions will be offered and training for the positions will take place in November and December, 1998. If the anticipated occupancy rates do not actualize, it will not impact on the number of individuals hired as the hiring will have already been completed. If occupancy rates are lower than expected, it is the hotel's intention to assign any underutilized mini bar staff to other areas of the hotel in order to make up their hours.
Further, the hotel's past staffing of the mini bar attendant position indicates that additional mini bar attendants will be required to service the additional mini bars and that a complement of five to six mini bar attendants is a reasonable estimate of the number of attendants that will be required as of January, 1999. In this regard, I note that in July, 1997 when the hotel had 248 rooms in operation, the hotel employed seven mini bar attendants. While it may be argued that July is the hotel's peak season such that most of the 248 rooms would have been occupied, whereas in January, 1999 only 60 to 65 per cent of the rooms will be occupied, when one considers that a 60 to 65 per cent occupancy rate of 348 rooms means that 209 to 226 rooms will be occupied, it is consistent with the hotel's prior employment of seven mini bar attendants to service 248 rooms that it would plan to employ five to six mini bar attendants to service 209 to 226 occupied rooms. In addition, the hotel's desire to have its existing two mini bar attendants take their vacation in January, suggests a greater number of mini bar attendants will be employed for the month of January than the occupancy rate may suggest is necessary in order to cover off such absences. The hotel's intention to schedule the mini bar attendants such that there are two mini bar attendants on at all times during the day shift means that a number of part-time attendants will be necessary.
I am also persuaded that it is relatively certain that the build up will occur by January, 1999. While I recognize that the renovations were initially scheduled to be completed in June, 1998 and subsequently September, 1998, the hotel has explained the delay as having been caused by strikes in the construction industry. The strikes affecting the completion of the renovations are now resolved. Thus, the source of the delays no longer exists. The hotel has begun circulating information to its clients advising them of the opening of the new rooms in January, 1999 and is planning a soft opening in December, 1998. There is no evidence to suggest that the hotel's planned January, 1999 completion date is unrealistic.
Counsel for the applicant submits that the Board should revise its approach to the factors which it considers in the course of determining whether or not a build up should postpone the taking of a representation vote as a result of the provisions of Bill 7. Counsel argues that by mandating ratification and strike votes and making termination applications less onerous, it is no longer the case that new employees would have to wait a considerable period of time before they were in a position to express their views on trade union representation.
I am not persuaded that the fact that employees will have an opportunity to vote on whether they wish to ratify a collective agreement or whether they wish to go on strike is equivalent to their ability to express their views on whether or not they wish to be represented by a union. A vote against a collective agreement proposal or a vote against going on strike does not operate to terminate a trade union's bargaining rights. Employees must still wait the same period of time before they are in a position to file a termination application as they were before Bill 7. Further, although it is now easier to terminate a trade union's bargaining rights than it was prior to Bill 7, it remains the case that it is not possible to do so until the same open periods have been reached as was the case prior to Bill 7.
Having regard to all of the facts, it is my determination that it is a relative certainty that the number of mini bar attendants will increase from the present complement of two to five or six by January, 1999. As a result, the vote conducted on July 31, 1998, is hereby declared a nullity. As indicated above, individuals will be offered employment as mini bar attendants in October or November, 1998, trained as mini bar attendants in November and/or December 1998 and commence work as mini bar attendants in December or January, 1999. The parties indicated to the Board that they will likely be able to agree between themselves as to the appropriate date for the taking of the vote recognizing that the vote would be directed by the Board at such time as more than fifty per cent of the anticipated complement has been hired. Accordingly, the parties are hereby directed to advise the Board, no later than January 7, 1999 as to the agreed upon date, time and location of the representation vote.
The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.
I remain seized with respect to any issues arising out of this decision.