Ontario Labour Relations Board
File Nos.: 1939-99-R, 2098-99-U Date: May 10, 2000
Between: Anna Maria Ventresca on behalf of a group of employees, Applicant v. Hotel Employees Restaurant Employees Union Local 75, Responding Party v. Canadian Niagara Hotels Inc., Intervenor.
And Between: Hotel Employees Restaurant Employees Union, Local 75, Applicant v. Canadian Niagara Hotels Inc., Responding Party.
Before: Caroline Rowan, Vice-Chair.
Appearances: Barry W. Adams and Anna Marie Ventresca for the employees; Harold F. Caly and Michelle Duncan for the union; Paul Young and Peter Wadsworth for the employer.
Decision of the Board
Board File No. 1939-99-R is an application for termination of bargaining rights filed by Anna Maria Ventresca, the applicant, under subsection 63(2) of the Labour Relations Act, 1995 (the "Act") in respect of a unit of employees of the Canadian Niagara Hotels Inc. (the "employer"). In its response to the application, the Hotel Employees Restaurant Employees Union, Local 75 (the "union") alleges that the employer "initiated the application or engaged in threats, coercion, or intimidation in connection with the application" within the meaning of subsection 63(16) of the Act.
Board File No. 2098-99-U is an application under section 96 of the Act filed by the union, in which it alleges that the employer has violated sections 70, 72 and 76 of the Act. The facts pleaded in support of this complaint are substantially similar to those pleaded by the union in its response to the termination application in support of its claim under subsection 63(16) of the Act.
By decision dated October 8, 1999 in Board File No. 1939-99-R, the Board directed that a representation vote be taken of the employees in the bargaining unit described therein. In view of the allegations made by the union in its response to that application, the Board directed that the ballot box be sealed and the ballots not counted until the Board so orders or the parties agree.
The vote was conducted on October 15, 1999. Sixty-five (65) persons voted. Three (3) ballots cast in the representation vote were segregated as the names of the individuals who cast these ballots do not appear on the voters' list and their entitlement to vote was challenged by the employer and the applicant in the termination application. There was no challenge to the remaining sixty-two (62) ballots cast by persons whose names do appear on the voters' list.
The Board convened a hearing in these matters on November 8 and 9, 1999, and on May 3 and 4, 2000. Shortly after the continuation of the hearing on May 4, 2000, the parties advised that they had reached agreement to count the ballots, other than the three (3) segregated ballots, cast in the representation vote. This agreement was reached on the understanding that the union was withdrawing its unfair labour practice complaint and its allegations in support of its claim under subsection 63(16) of the Act. Union counsel then specifically advised the Board that he had instructions to withdraw the union's unfair labour practice complaint in Board File No. 2098-99-U and to withdraw its allegations raised under subsection 63(16) of the Act in Board File No. 1939-99-R.
Having regard to the agreement of the parties, the union's application filed under section 96 of the Act in Board File No. 2098-99-U is hereby withdrawn with leave of the Board.
It is common ground between the parties that the only outstanding issue remaining in the termination application in Board File No. 1939-99-R relates to the eligibility to vote of the three (3) individuals whose ballots were segregated. This issue is now, however, academic given the results of the count of the remaining sixty-two (62) ballots. The termination application may therefore be finally determined as follows.
On the taking of the representation vote directed by the Board, not more than fifty percent of the ballots cast in the bargaining unit were cast in opposition to the responding party.
The termination application in Board File No. 1939-99-R is therefore dismissed.
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.
Hearing dates set previously are hereby cancelled.
The employer is directed to post copies of this decision immediately, adjacent to all copies of the "Notice of Vote and of Hearing" posted previously. These copies must remain posted until the date that had been set for the hearing.
"Caroline Rowan" for the Board