2795-99-R Noah’s Ark Tavern, Applicant v. Hotel Employees, Restaurant Employees Union Local 75, Responding Party.
BEFORE: Patrick Kelly, Vice-Chair, and Board Members J. A. Rundle and D. A. Patterson.
DECISION OF THE BOARD; February 4, 2000
This is an application for termination of bargaining rights brought by the applicant employer under section 65 of the Labour Relations Act, 1995, (the “Act”).
Section 65 provides as follows:
(1) If a trade union fails to give the employer notice under section 16 within 60 days following certification or if it fails to give notice under section 59 and no such notice is given by the employer, the Board may, upon the application of the employer or of any of the employees in the bargaining unit, and with or without a representation vote, declare that the trade union no longer represents the employees in the bargaining unit.
(2) Where a trade union that has given notice under section 16 or section 59 or that has received notice under section 59 fails to commence to bargain within 60 days from the giving of the notice or, after having commenced to bargain but before the Minister has appointed a conciliation officer or mediator, allows a period of 60 days to elapse during which it has not sought to bargain, the Board may, upon the application of the employer or of any of the employees in the bargaining unit and with or without a representation vote, declare that the trade union no longer represents the employees in the bargaining unit.
The certificate of delivery included in the application indicates that on December 9, 1999 at 7:02 p.m. the applicant sent a copy of the application via facsimile to the responding party. No response was filed in this matter. The application’s Confirmation of Posting (Form A-13) indicates that the application and Notice to Employees (Form B-71) were posted in the workplace on December 15, 1999. No representations from the employees of the applicant were filed with the Board.
By Board endorsement, dated January 12, 2000, a differently constituted panel of the Board directed the responding party to respond to the applicant’s request to decide the matter on the facts submitted solely by the applicant. Again, the responding party did not respond within the time frame established by that panel. Accordingly, the applicant wrote to the Board on January 25, 2000 requesting, among other things, that the Board rely only on the facts set out in the application and, without ordering a representation vote, declare that the responding party no longer represents the employees of the applicant in the bargaining unit described in paragraph 3 of the application, pursuant to section 65 of the Act.
In the circumstances, the Board is of the view that it is appropriate to rely exclusively on the applicant’s pleadings. These pleadings reveal that the responding party (“H.E.R.E”) acquired bargaining rights as a result of a merger with International Beverage Dispensers’ and Bartenders’ Union, Local 280 (the “predecessor”) on August 31, 1999. H.E.R.E. and/or the predecessor have “slept on their rights” for a protracted period of time. The predecessor has permitted the renewal of the collective agreement on four consecutive occasions without providing notice to bargain and without engaging the applicant in any form of bargaining. There has been almost no contact between the applicant and the responding party or predecessor in that period. The responding party and the predecessor have not administered or enforced the collective agreement in any substantial manner, including the pursuit of complaints and grievances.
Through its silence in the face of the application and the Board’s endorsement of January 12, 2000, the responding party has confirmed its lack of interest in representing the applicant’s employees. Given the responding party’s apparent position, the Board is of the view that there is no reason to exercise its discretion to order a representation vote.
Pursuant to section 65(2) of the Act the Board declares that the responding party no longer represents the employees of Noah’s Ark Tavern for whom it has heretofore been the bargaining agent.
The applicant is directed to post copies of this decision immediately in the workplace, in a place where it is likely to come to the attention of the employees affected by the application. These copies must remain posted for a period of 30 days.
“Patrick Kelly”
for the Board