[1980] OLRB Rep. August 1210
0164-80-U Hotel and Club Employees' Union, Local 299, Toronto of the Hotel and Restaurant Employees' and Bartenders' International Union (A.F.L. - C.I.O. - C.L.C.), Complainant, v. Hotel Canadiana, Respondent.
BEFORE: E. Morris Davis, Vice-Chairman, and Board Members M. J. Fenwick and F. W. Murray.
APPEARANCES: Patricia M. Conway for the complainant; J. A. Roffey and J. P. Charron for the respondent.
DECISION OF THE BOARD; August 27, 1980
This is a section 79 complaint alleging that the respondent has contravened section 58 of the Act in its dealings with George Colbourne and Dudley Brown, and it is also alleged there has been contraventions of section 70 of the Act. The same facts are, in the main, relied on to establish contraventions in both instances.
The respondent Hotel has, since July, 1979, been undergoing changes in management as well as renovations and revisions of the physical facilities. In the fiscal year ending July 31, 1979 the respondent suffered a loss in excess of $300,000 and in September, 1979 management commenced to make physical changes. This has been and is a continuing program; and at the time of the hearing, it was testified that the respondent was currently continuing to renovate single rooms, adding carpeting, renovating the pool area and landscaping. The first move in this program was to bring cable TV into all private and public rooms.
The complainant union was certified on February 6, 1980, and served notice to bargain on February 25, 1980. The first negotiating meeting was held on March 26, 1980 and a second meeting on April 10th. Mr. Colbourne, who was the key organizer in the initial organization, is a member of the Bargaining Committee (and also a steward).
The evidence is that J. P. Charron, General Manager of the respondent since July, 1979, met with Colbourne in mid-September or October along with the two principal owners and discussed the general need for changes to the Hotel, in an effort to gain maximum employee input. At that time ideas were examined, including the possibility of moving the lounge itself into the Dining Room area. There was no specific discussion about bar stools.
Insofar as the lounge is concerned (where Colbourne works as a bartender) a grand piano was brought in and the facility renamed the "Piano Lounge"; draperies were changed, furniture reupholstered, additional furniture added and the refrigeration system expanded. According to Colbourne, the ten stools were removed on April 15, 1980 and he was made aware by the respondent's general manager in advance, "a couple days before, about March 31st". As a result of management's survey of other lounges, it appeared that stand-up bars were something of a fad, and a decision was made to remove the bar stools at the bar tended by Colbourne. Initially three of the ten stools were removed and about a week later the remaining seven stools, which latter were restored to the bar some three weeks later. The decision to remove three stools at the short end of the bar was further influenced by the fact that a telephone was available at that end and there was a tendency for congestion to develop. Mr. Charron testified that the return of the seven stools was in response to customer requests, as was the non-return of the three stools. Sometime during this renovation program, the decision was also made to close the Dining Room which had a separate bar facility and to rely on the Piano Lounge bar to serve the restaurant. Mr. Colbourne complains that the removal of the bar stools affected his income from gratuities and constituted a change such as is prohibited by section 70 of the Act during the period of bargaining: and further complains that such action was an employer response to Colbourne's union activities and, therefore, a contravention of section 58 of the Act.
On April 10, 1980 Colbourne who has been the day-shift bartender for sixteen years arranged to switch shifts with the night bartender in order that Colbourne could attend a negotiating meeting. Mr. Colbourne testified that up till recently, it was his practice to gain acquiescence of the other bartender to a shift switch and then "I would approach management and have them approve the change", and such approval was never withheld. In respect to the shift change of April 10, 1980, Colbourne neglected to advise his superior, Mr. Yee, Restaurant Manager. Later that day when Colbourne was at work, Charron mentioned to Colbourne that he shouldn't have changed without informing Yee and that Charron would speak to Colbourne the next morning. Mr. Colbourne states this was in the presence of customers and waitresses. The following day Colbourne, accompanied by his assistant steward, met with Charron and another member of management. It was a very short meeting. Mr. Colbourne states that Charron told him "Not to do it again, or be punished". Mr. Colbourne accepted the reprimand and returned to work.
For some eight to ten years, there has existed a staff lunch room for employees. Mr. Colbourne states that he usually eats at home except for one night a week when he has a long shift. On these occasions Colbourne generally uses the staff lunchroom but occasionally eats in the Coffee Shop. The purpose of eating in the Coffee Shop he states is that when he has inexperienced waitresses, it makes him readily available to them if required to mix a drink. In direct examination the question was put to Colbourne, "Has management been aware of you eating in the Coffee Shop?" to which he replied, "Before the staff lunchroom. But since then, I don't eat in the Coffee Shop." On March31, 1980, about 7:30 p.m., Colbourne went to eat and he states he had an inexperienced waitress with him so he told her he would be in the Coffee Shop at the staff table, and if the waitress needed anything, she was to come and get him. Mr. Colbourne admits that the table he sat at bore a sign "Restaurant Staff Only" and that he was not part of such staff. Mr. Colbourne states he has previously had lunch in the Coffee Shop with the sales manager on two or three occasions and they sat at the same table. He also states that there was then no sign on the table. While Colbourne was in the Coffee Shop, Charron came in and observed him but said nothing to him. Mr. Charron did remind the hostess on duty that this was against the rules, and later that evening interviewed Colbourne in his office in the presence of Colbourne's superior. According to Charron, he simply reminded Colbourne he was not one of the employees allowed to eat in the Coffee Shop. Mr. Charron states he did not discipline or threaten to discipline Colbourne. Mr. Colbourne, in direct examination, stated "I was reprimanded for using the restaurant facilities and was told I had no business being there" and states that he made no comment. In cross-examination, when asked what Charron had said, Colbourne stated, "Charron said I had no right to be in the restaurant. He said he would punish me and take the bar stools away — I'm not sure he said that. He was very upset with me and my conduct in union activities and the bar stools were going out, to the best of my knowledge." On balance, the Board prefers the evidence of Charron as to the particular meeting.
On March 31, 1980 Dudley Brown, a front desk clerk for some eight months, was discharged. The events leading up to the discharge were that Brown wished to purchase U.S. funds which had been received from customers (approximately $200) and not having the available Canadian funds to do so, he telephoned a friend, Carlton Campbell, who agreed to bring over what money he had ($145) as a loan to Brown. When Campbell arrived, about 7.30 p.m., he came to the desk, Brown counted the Canadian money and put it on top of the cash register and counted out the U.S. money to Campbell. As this juncture, Charron who had observed the actions from his office, across from the front desk, came over and asked what it was "all about". Mr. Brown's reply was "its for U.S. currency". Mr. Charron asked if the full exchange being paid and Brown replied "I didn't understand what exchange is all about. I'm taking it for myself at ten per cent. I asked my friend to lend the money for me." Mr. Charron then walked away and returned immediately telling Brown he had better give back the money, which Brown did.
Later that evening Brown was called to Charron's office where Charron and Peter U, Brown's supervisor, were present. Mr. Charron told Brown he was finished and when Brown asked if he was fired, Charron stated, "You no longer work here. This is hotel property and I look on it as theft. You've got a choice, either walk out of here and resign or I call the cops." Mr. Brown got up to walk out and Charron noted that Brown had said nothing and enquired what was his decision, and again offered the alternative of "walking out" or having "the cops called". Mr. Brown stated he had "too much class and integrity" to make Charron call the police and that he had no choice but to quit.
Mr. Brown justifies the transaction with Campbell on the basis that it was an established practice for employees by buy U.S. funds at the hotel, at the hotel's rate of exchange. Mr. Campbell, who testified, states he had previously purchased U.S. funds from Mr. Brown at the hotel and also from Brown's supervisor, Peter U. In respect to the purchase from Peter U, Brown had phoned Campbell to tell him he was leaving work, and that there was some U.S. money at the hotel which Brown had left with Mr. U. Mr. Campbell went to the hotel, saw Mr. U, and exchanged $1 10 Canadian for $100 U.S. Mr. Campbell states on one occasion he purchased U.S. money for his own use from Brown.
II. Later on the night of March 3 1st, Brown met Mr. U off the hotel premises and during the course of that discussion Mr. U stated, "I did it last year when going to New York".
Mr. Brown states he has seen telephone operators and others around the office buying U.S. currency. Mr. Brown also states that shortly after he started to work at the respondent's hotel, he spoke with Peter U, front office manager, and referring to fact he occasionally went to Buffalo, asked if it was permissible to take U.S. funds from the hotel. Mr. U affirmed that it was "so long as you pay the ten per cent".
Mr. Colbourne also testified that he has purchased U.S. funds at the hotel and that that has been a practice for years. He also states that previous management has sold U.S. funds to customers and he, himself, has done the same. He did not know if present management was aware of either practice.
Mr. Charron testified there was no written policy relating to the handling of U.S. funds and that such belong to the Company in the same way as coffee and chairs do. He states he never discussed the matter of U.S. funds with Brown or any other employee prior to March 31st, and that if he had known about employees' purchases, he would have stopped it. When the question was put as to whether an employee was entitled to rely on the statement of a supervisor as to what was hotel policy, Charron answered affirmatively with the qualification that "Supervisors cannot direct employees to steal Company funds. He would be beyond his authority."
Mr. Charron states that he never discussed any union business with Brown and that he had no way of knowing if Brown was involved in preparing for negotiations. Mr. Brown corroborates that he never discussed union business with Charron or with Peter U nor had he been active in union affairs.
We direct our attention first to the question as to whether the disciplinary reprimands of Colbourne and the discharge of Brown were violative of section 58 of the Act. The Board's approach to the burden of proof in cases such as this is set out in Fielding Lumber Company Limited, [1975] OLRB Rep. Sept. 665 at p. 673 as follows:
"18. Having regard to section 79(4a) a respondent employer must satisfy the Board that in taking the actions it took it was in no way motivated by a grievor' s union activity. Thus the Board need not find that an employer's sole reason for acting stems from the union activity of his employees to find a violation of the legislation but rather an employer must satisfy the Board that union activity played neither a major nor minor role in regard to its impugned actions."
In respect to the discharge of Brown on March 31, 1980, the employer explains that he considered the unauthorized buying and selling of U.S. funds to be akin to "theft" of hotel property and, therefore, warranting discharge. Mr. Brown, on the other hand, states that he had received earlier the assurance of his supervisor that such transactions were permissible and that, on at least one prior occasion, his supervisor, Peter U, had been involved in completing such a transaction on his behalf. Mr. Brown further states that other employees have been involved in similar transactions; and Colbourne corroborated this testimony. Mr. Brown's testimony is uncontradicted and we consider it significant that this supervisor was not called to give evidence.
It is not the Board's duty to determine whether the discharge was for cause but rather whether it was motivated to any extent by an anti-union animus. As was said by the Board in TCE Canada, a Division of Tandy Electronics Limited, [1979] OLRB Rep. Mar. 259, at p. 262, ..... an employer's actions may be so unreasonable as to suggest that there may be an anti-union motive underlying the discharge". We do not find the employer's conduct in the instant case to be totally unreasonable.
There was no evidence led of any general pattern of anti-union conduct other than what is alleged to flow from the incidents before us. Mr. Brown's evidence is that he was not active in union activities and Charron states he never discussed union activities with Brown nor was he aware of what part, if any, Brown played. Mr. Charron, at the time of the incident, had been employed for nine months as part of achieving the overall objective of making the operation profitable. We find it credible under those circumstances that he would not have been aware of any employee practice of buying U.S. funds and accept his statement that had it come to his attention earlier, he would have put a stop to it.
The complainant suggests that the fact that Brown's discharge occurred on the same day as one of the disciplinary actions involving Colbourne should cause the Board to draw an inference of anti-union animus. In the face of the fact that the employer had no control over the timing of the incidents to which he reacted, we do not think the coincidence of date in itself can justify such an inference.
We therefore find that the employer did not violate section 58 in its discharge of Dudley Brown, and the complaint insofar as it relates to that discharge must be dismissed.
We turn to the shift and Coffee Shop incidents involving Colbourne. It is clear to us, in Colbourne's own evidence, that in the past he always secured final approval of a shift change from his supervisor. On April 10, 1980 he did not follow this practice and as a consequence Charron reprimanded him. A rule that shift changes must be approved by the supervisor seems perfectly reasonable to us, and particularly so when it has been in effect for some years. Despite that, we must determine whether the reprimand was, in any way motivated by an anti-union animus. As we have noted in our discussion above, there was no evidence led of any general pattern of anti-union conduct, and save for Colbourne's account of his meeting with Charron on March 3 1st, which on balance we do not accept, no evidence that Colbourne's own union activities had been the subject of comment for action. We can only conclude that the reprimand of April 10th was not violative of section 58 and the complaint insofar as it relates to this incident is dismissed.
As to the Coffee Shop incident, Colbourne's evidence as to his past usage of those facilities under circumstances similar to those of March 31st goes no further than that he used the facilities prior to the establishment of the staff lunchroom (some eight or ten years ago), and has on two or three occasions had lunch there with a member of management which occasions were prior to the placing of the sign, "Restaurant Staff Only", and Charron testified that such sign had been present at least since August 1979. As we have noted above, there is no credible evidence of an anti-union animus being any part of the motivation for Colbourne's reprimand of March 31st, and we must, therefore, find it to be not violative of section 58 and the complaint insofar as it relates to this incident is dismissed.
We now direct our attention to whether the removal of the bar stools and the alleged change in Company policy relating to employee purchase of U.S. funds constitutes conduct prohibited by section 70(1) which reads as follows:
"Where notice has been given under section 13 or section 45 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees,..."
- The case of Spar Aerospace Products Limited, [1978] OLRB Rep. Sept. 859 contains a review of the Board's developing jurisprudence in applying this section. The Board defined the impact of section 70 as,
"18. . .. What the statutory freeze does is to simply maintain the totality of the employment relationship in the pattern existing at the time that the freeze becomes effective, whether it be a pattern established by prior dealings on an individual basis or prior dealings on a collective basis, making it the starting point for negotiations."
and further,
"19. It should be emphasized that the 'business as before' approach dictates that the totality of the employment relationship be the subject of the freeze. In interpreting section 70, the Board does not place undue influence upon the term 'rates of wages' but recognizes that this term must be read in the context of the other words in that section. The words 'any other term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees' must also be given meaning and, in the Board's view, section 70 read as a whole manifests a legislative intent to maintain the prior pattern of the employment relationship in its entirety."
The complainant argues that the presence of ten bar stools at the bar is a working condition within the meaning of section 70. The respondent argues that the shifting of stools was only a part of a general program of revisions to the lounge which has been under way since last fall, and that Colbourne had been aware of the general program but not of the specific treatment of bar stools.
We think it questionable that the number and placement of bar stools can be properly characterized as a "working condition". It, no doubt, can be said that the presence or absence of the stools will have an impact on the volume of gratuities received by the bartender. That impact may be either to increase or decrease gratuities, and is incidental to the general right of the employer, at the onset of the freeze period, to rearrange his facilities so as to maximize the attraction of customers. The presence or absence of bar stools is done primarily as an arrangement of physical conditions which will best serve the interests of customers and its impact on working conditions is both tangential and incidental. The term or condition of employment or working condition of the employee is to receive gratuities when given, and it cannot be said that part of his employment relationship involves any assurance of the level of gratuities remaining constant.
At the onset of the freeze period, the respondent was mid-stream in a program of renovation and revision. The respondent's continuation of such a program during the freeze period is a carrying on of the "business as usual" approach which is envisaged by the legislation.
We, therefore, find that the temporary removal of all bar stools and the restoration of a majority of those stools does not constitute a violation of section 70 of the Act and the complaint in that regard is dismissed.
The remaining issue before us is whether section 70 has been breached by the dismissal of Brown. The evidence establishes that there has existed a practice or policy which permits employees to purchase U.S. funds for their personal use during visits to the United States, at the same exchange rate as that paid by the hotel in acquiring such funds. That there is nothing in writing to that effect, or that Charron, the present General Manager, was unaware of the practice and was in disagreement with the practice is of no consequence. The practice appears to have grown up under previous management and was confirmed to Brown by his supervisor, the same supervisor who according to the uncontradicted evidence of both Brown and Campbell, also participated in completing such a transaction on behalf of Brown. We see nothing sinister in the practice which is very much akin to employee discounts accorded by employers in many types of businesses. It is a privilege which is accorded to employees and, as such, cannot be unilaterally abrogated during the freeze period.
In the instant case, Charron interfered with Brown's exercise of the privilege. Clearly this is violation of section 70.
The Board therefore orders:
(i) that Dudley Brown be reinstated by the respondent forthwith;
(ii) the Dudley Brown be fully compensated by the respondent for all lost wages and benefits sustained through the respondent's violation of the Act;
(iii) that the respondent pay interest on the compensation for lost wages ordered by the Board, such interest to be calculated in the manner described in Hallo well House, [1980] OLRB Rep. Jan. 35;
(iv) that the respondent cease and desist from all acts of interference with employees seeking to exercise their privilege of purchasing U.S. funds for their own personal use while travelling in the United States from the respondent at the current rate of exchange paid by the respondent when acquiring such funds from its customers;
(v) that the respondent post copies of the attached notice marked "Appendix" after being duly signed by the respondent's representative, in conspicuous places on its premises where it is likely to come to the attention of the employees, and keep the notices posted for sixty consecutive working days. Reasonable steps shall be taken by the respondent to insure that the said notices are not altered, defaced or covered by any other material. Reasonable physical access to the premises shall be given by the respondent to a representative of the complainant so that the complainant can satisfy itself that this posting requirement is being complied with.