[1982] OLRB Rep. November 1683
2220-81-U; 221-81-R International Beverage Dispensers' and Bartenders Union Local 280 of the Hotel and Restaurant Employees International Union A.F.L. C.I.O. C.L.C., Applicant, v. Movel Restaurants Limited c.o.b. as Movenpick Restaurants of Switzerland, Respondent, v. Group of Employees, Objectors.
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members W. H. Wightman and S. Cooke.
DECISION OF THE BOARD, November 16, 1982
- In an interim decision the Board directed the consolidation of these two files. With respect to Board File No. 2221-81-R, which is an application for certification the Board found a unit of employees described in the following terms with respect to its inclusive elements, to be appropriate for purposes of collective bargaining:
"All full time and part time tap men, bartenders, beverage waiters and waitresses, bar boys and improvers of the respondent in Metropolitan Toronto."
The Board's reasons for so finding were to be issued at a later date.
The interim decision also authorized a Board Officer to inquire into and report to the Board on the list of employees and the composition of the bargaining unit because the parties were disagreed as to who should be included in the unit as described above.
Following the Board's decision, the parties signed a consent agreement resolving the issues in Board File No. 2220-81-U, as a result of which that complaint was withdrawn by leave of the Board. The terms of the consent agreement included agreement that three persons, Casey Arnott, Clive McGregor and Dean Northcott were included in the bargaining unit described above. It also included the agreement that two persons, Pamela L. Stroh and Janet McQuattie, should be examined by the Board Officer to determine whether they were to be included in or excluded from the unit. The applicant was contending that neither of them were primarily engaged in the handling and serving of alcoholic beverages, the standard which the Board customarily applies to decide who is in the unit described. The applicant contended also that Stroh exercised managerial function within the meaning of section l(3)(b) of the Labour Relations Act. The respondent was holding the contrary positions.
The examination of the duties and responsibilities of Stroh and McQuattie was completed and a hearing was held for the purpose of receiving the submissions of the parties with respect to the Officer's report and to deal with any other outstanding matters arising out of or incidental to the application for certification. The Board heard the submissions of the parties on the officer's report. In the course of those submissions, counsel for the applicant conceded that the two employees were primarily engaged in the handling and serving of alcoholic beverages, but continued to assert that Stroh exercised managerial function.
Applicant counsel argued that Stroh had committed herself to be part of management by entering into a contract in which she accepts to be transferred outside of Canada with the respondent's organization for training in the food services industry, a contract characterized by counsel as a management training contract. Having allied herself with management, counsel contends that she should be excluded from the bargaining unit.
The Board, after recessing the hearing to consider the parties' submissions, rendered the following oral decision which is hereby confirmed:
(a) There is no evidence in the Board Officer’s report with respect to the Board's usual criteria for determining the exercise of managerial function which would support a finding that Stroh exercises managerial functions within the meaning of section l(3)(b) of the Act.
(b) Even were the Board to accept the proposition that an employee who has committed himself or herself to a management development direction should be excluded from a unit of employees appropriate for collective bargaining, and it does not accept the proposition, the evidence before the Board falls far short of establishing that Stroh has made such a commitment.
(c) Therefore Stroh does not exercise managerial function within the meaning of the Act and, since the parties are agreed that she and McQuattie are primarily engaged in the handling and serving of alcoholic beverages, Stroh and McQuattie are in the inclusive part of bargaining unit described in paragraph 8 of the Board's interim decision. Thus there are a total of five persons included in that unit: Casey Arnott, Clive McGregor, Janet McQuattie, Dean Northcott and Pamela Stroh.
It remains now for the Board to set forth its reasons for finding that the inclusive part of the appropriate bargaining should be described as shown in paragraph I herein.
The respondent operates a restaurant establishment in Toronto called Movenpick Restaurants which is comprised of several food and beverage service areas: the Movenpick Restaurant; the Grape 'N Cheese; the Rossli; the Verandah ("the Deli") and two patios. All of these areas are covered by dining lounge licenses for the sale of alcoholic beverages. The parties are agreed that the current liquor license regulations stipulate that sales revenue from liquor sales compared with sales revenue from food sales cannot exceed 60/40 ratio under a dining lounge license.
Alcoholic beverages sold consist of selections of beer, wine and mixed drinks and they are served from two areas, a service bar located in the kitchen area and the Grape 'N Cheese, a wine bar. This latter area is staffed by two bartender/waiters who prepare drinks for the customers of the Grape 'N Cheese and for the waiters serving food and beverages to the Rossli patrons. The Rossli is the most formal dining area. Except for the two bartender/waiters in the Grape 'N Cheese, the serving of alcoholic beverages is done by the waiters, male and female, who also provide the food service. The two Grape 'N Cheese staff serve food to their customers as well. During the lunch hour a cook who prepares and serves the food to customers at the dining counter in the Movenpick Restaurant serves some alcoholic beverages to customers also. The alcoholic beverages served from the service bar are prepared by the three bartenders who staff it and are picked up there and delivered to the customers by the waiters.
The five employees named in item (c) of paragraph 6 as being employees in the bargaining unit include the 3 service bartenders and the two bartender/waiters in the Grape 'N Cheese. The applicant seeks to represent as well all of the waiters who serve alcoholic beverages in the various restaurants of the establishment and contends that they together with the other five comprise a craft unit within the meaning of section 6(3) of the Act. That section provides as follows:
Any group of employees who exercise technical skills or who are members of a craft by reason of which they are distinguishable from the other employees and commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or crafts shall be deemed by the Board to be a unit appropriate for collective bargaining such skills or craft, and the Board may include in such unit persons who according to established trade union practice are commonly associated in their work and bargaining with such group, but the Board shall not be required to apply this subsection where the group of employees is included in a bargaining unit represented by another bargaining agent at the time the application is made.
As the Board pointed out in its decision in Orangeroof Canada Limited, [1974] OLRB Rep. Nov. 761, in order for a trade union to bring itself within the mandatory provisions of the section and be certified for a craft unit it must establish that:
(1) the group of employees concerned exercise technical skills or are members of a craft by reason of which they are distinguishable from other employees;
(2) the group of employees concerned commonly bargain separately and apart from the other employees through a trade union that, according to established trade union practice, pertains to such skills or craft;
(3) the application is made by a trade union pertaining to such skills.
If those three prerequisites are satisfied then the Board is mandated to deem the unit appropriate for collective bargaining purposes.
The Board for many years has recognized the applicant as a trade union which represents a craft comprised of tapmen, bartenders, beverage waiters, bar boys and improvers. It has been the consistent and long established practice of the Board to describe a bargaining unit comprised of that craft as "all full-time and part-time tapmen, bartenders, beverage waiters, bar boys and improvers" (emphasis added) whenever the applicant has applied for certification for employees of hotel beverage rooms, liquor lounges and dining rooms in the Toronto and Oshawa areas. Thus when the applicant applies to be certified for a unit described in those terms it satisfies the three prerequisites of section 6(3) and the Board has consistently deemed that unit to be appropriate for collective bargaining as it is mandated to do by the section. See Cederbrae Hotels and Homes Ltd., carrying on business as the Thunderbird Motor Hotel, [1973] OLRB Rep. Jan. 44 and Seaway Hotels (Ontario) Limited, [1976] OLRB Rep. Nov. 676. As those cases reveal, the mandatory nature of section 6(3) takes precedent over the Board's usual criteria for determining appropriateness under section 6(1). See also paragraphs 11 and 12 of the Board's decision in Orangeroof, supra.
The Board has always defined the parameters of this craft unit by application of a "primarily engaged" test; that is for a person to be included in the unit, he must be primarily engaged with handling and serving alcoholic beverages. This is usually determined by the focus of the room and whether it is maintained primarily for serving food or alcoholic beverages. See Seaway Hotels (Ontario) Limited, [1976] OLRB Rep. March 99. The unit proposed in the application (paragraph 5 of the interim decision), while similar to the standard unit in most respects, omits the modifying word "beverage" in the term "beverage waiters". The Board's decisions which deal with disputes over what persons are captured by the standard craft unit description reveal that it is the work performed by waiters which is invariably in dispute.
That is precisely the situation herein. Applicant counsel told the Board that the unit proposed in the application, which is described as follows: "All full-time and part-time Male and Female Bartenders Tapman Waiters Bar-boys Improvers Beer Operators in the employ of the Respondent . . .", described the applicant's standard craft unit according to its established collective bargaining practice. Counsel contended that the "craft" represented by the applicant included any person handling and serving alcoholic beverages or "incidentally but essentially involved" in the serving of such beverages. Therefore a unit comprised of that "craft" satisfied the three prerequisites which mandate the Board to grant a craft unit. Counsel argued in the alternative that the Board should exercise its discretion under section 6(3) for including in a craft unit ... persons who according to established trade union practice are commonly associated in their work and bargaining with such [a] group .. ." (emphasis added) so as to include in the craft unit waiters who are associated with the craft by being "significantly involved in or necessarily incidental to" the serving of alcoholic beverages.
Counsel for the applicant argued that the primarily engaged test was adopted and used by the Board to assist it in defining the limits of the craft in circumstances where the applicant was seeking to "carve out" beverage rooms and liquor lounges from other parts of a hotel operation. That, counsel asserts, is the context with which the Board's decisions were dealing when it has applied the primarily engaged test, not in the context of a restaurant separate and distinct from any hotel operation. Counsel contends the test is no longer appropriate today, and particularly is not appropriate in "upbeat" restaurants where food can or must be served together with alcoholic beverages.
The Board heard the evidence of Frank Cortese, secretary-treasurer and business agent of the applicant, given in support of the applicant's claim that its traditional craft unit included waiters who served food and alcoholic beverages and that it represented these waiters in collective bargaining together with persons in the other classifications in the craft, without regard for whether the waiters were primarily engaged in serving alcoholic beverages. His evidence-in-chief included evidence of certificates for four establishments were issued to the applicant by the Board in which the bargaining unit is described in terms identical with or closely similar to the unit the applicant is seeking here. These certificates are described to apply to persons employed at the Nags Head Tavern in Eaton's Centre, the Brunswick Tavern, The Normandy Room of the Cloverleaf Hotel and Sammy's Exchange Restaurant in the Toronto-Dominion Centre, all in Metropolitan Toronto. His evidence was that the waiters who served both food and beverages were included in the unit and represented in collective bargaining by the applicant. He stated that the Normandy Room was a dining room which operated under a dining room liquor license.
Cortese gave evidence as well that the applicant currently represents waiters who serve both food and alcoholic beverages in the Roland Emmett Lounge of the Park Plaza Hotel, the New Gregory House and the Strathcona hotel and had represented waiters in similar functions at the Colonial Tavern and the Westminister Hotel when they were in business. In addition to these establishments, according to Cortese's evidence-in-chief, the applicant represents waiters in 28 other establishments pursuant to a master agreement with the Hotel Association of Metropolitan Toronto. These waiters serve both food and alcoholic beverages.
In his cross-examination Cortese acknowledged that the Hotel Association collective agreement describes its scope in terms of the "beverage departments" of the covered establishments and refers to waiters as "beverage waiters". Approximately 80 other establishments have agreed to be bound by that agreement and another 30 are bound to individual agreements having the same or similar scope clauses. The Roland Emmett lounge of the Park Plaza Hotel is covered by one of these individual agreements. That agreement, which was put into evidence during cross-examination, is between the operators of the hotel and the applicant. Its scope clause describes the unit in terms of persons employed by the employer ..... as tapmen, bartenders, beverage waiters, bar-boys and improvers in the cocktail lounges and lounge service bars at the Park Plaza Hotel as well as room service waiters . . .". Cortese was unable to tell the Board whether waiters other than beverage waiters were covered by the agreement and there is no evidence with respect to room service waiters. It was his evidence that the collective agreements which apply, or had applied to the New Gregory House, Colonial Tavern, Strathcona Hotel and Westminister Hotel would have had the same scope as does the Association agreement.
Cortese did not know whether any certificates other than the four in evidence had been issued to the applicant during the two years prior to this application. The dates of the four certificates show them to have been issued June 7, 1978; August 5, 1980; January 6, 1981 and February 23, 1981. He admitted in cross-examination that the certificate which was issued to the applicant for the Nags Head Tavern was for the employees of the liquor lounge and the waiters he referred to in chief were the liquor lounger waiters, all of the other waiters "had been taken" by the applicant's sister Local 75 which also represents all other employees such as kitchen staff and caretakers. His evidence is that Local 75 must organize everyone including dining room waiters, kitchen staff, everyone in the house except for the applicant's craft. He did not know if the bargaining units in the three other certificates had been determined by agreement of the respondent. The certificates contain the statement that:
"This certificate is to be read subject to the terms of the Board's decision(s) in this matter and, accordingly, the bargaining unit described herein is to be read subject to any qualifications referred to in the said decision(s) of the Board.".
The Board record shows that the bargaining units in the three certificates were determined by the Board "having regard to the agreement of the parties".
Applicant counsel's contention that the Board should recognize the "craft" represented by the applicant as including any person handling and serving alcoholic beverages or "incidentally but essentially involved" in the serving of such beverages is tantamount to asking the Board to find that there is another grade or level of craft employees; those who handle alcohol to some extent but not to the extent that they are primarily engaged in handling it. The same may be said about counsel's alternative proposition that the Board exercise its discretion under section 6(3) of the Act to make those persons part of the craft unit. What counsel is asking the Board to do is to extend the reach of the craft unit which it usually determines for the applicant under section 6(3) absent agreement of the parties to a different description. Counsel characterized her argument in terms of a need to shift the locus of the "bright line" now drawn by the Board's primarily engaged test between the applicant's normal craft and waiters who have some involvement with handling alcoholic beverages, to be drawn between dining room waiters and kitchen staff, and in a hotel operation, other hotel staff.
In other words counsel is asking the Board to extend the reach of the craft unit so as to include all beverage and food service staff involved with any handling of alcoholic beverages. In addition, when the application came back on for hearing after the Board's interim decision had issued and to hear the parties' submissions on the officer's report, counsel argued for the Board to consider factors such as the amount of time and effort expended by waiters in the handling of alcoholic beverages as part of the test for deciding who would be included in the craft unit. This position was argued in the context of the need for clearer direction to the applicant for its guidance in knowing what employees of an establishment it can organize if it is to be certified for its craft.
One of the effects of shifting the locus of the "bright line" as argued by counsel would be to enable the applicant to organize into its craft unit, for example, dining room waiters who handle alcoholic beverages but would exclude busboys who do not. One presumes that they would be left to be organized by the applicant's sister local along with kitchen staff and, if the establishment was a hotel, other hotel service staff. Counsel submits that this position is supported by the Board's decision in Victoria Hotel, [1980] OLRB Rep. Feb. 270. That decision deals with an application for certification by the same applicant herein. Counsel claims that case stands for the Board saying that the applicant must take into its craft persons who are necessarily incidental to the serving of alcoholic beverages even if they do not actually handle alcoholic beverages. With due respect, the decision says nothing of the kind.
The applicant, which already represented persons employed in its standard craft unit at the hotel, was seeking to represent waiters, male and female, in only one of two dining rooms in the hotel. The respondent contended that the appropriate bargaining unit should include all employees in both dining rooms. The respondent was not contending that the units should include other hotel staff as well and the applicant clearly was not seeking to represent them. It is clear from the decision, particularly paragraph 9, that the Board considered the parties to be agreed on that exclusion and went on in paragraph 10 to describe one bargaining unit of all full-time employees and one of all part-time employees, but each one covering both dining rooms. In the process, it included busboys in the unit even though the applicant was seeking to exclude them because, unlike the barboys in the applicant's normal craft unit, busboys did not handle alcohol at all and by that fact were distinguishable from the waiters. The Board's reasons for rejecting the applicant's argument is set out in paragraph 9 of the decision:
The Board has always applied a "primarily-engaged test" in defining the limits of the applicant's beverage-employee craft unit. (See Seaway Hotels (Ontario) Limited, [1976] OLRB Rep. May 99; Cederbrae Hotels and Homes Limited, 119731 OLRB Rep. Jan. 44; Caswell Hotel (Saul,) Limited, [19711 OLRB Rep. July 446.) The applicant's argument on the busboys really depends upon the Board finding a second stratum of craft employees, being those employees who, while not primarily engaged to serve alcohol, handle alcohol to some extent. The Board has never gone that far, however, and indeed noted particularly in the Cederbrae Hotels case, supra, that the craft unit normally granted to the applicant is largely the result of the mandatory nature of section 6(2) of The Labour Relations Act, and is granted on that basis notwithstanding the strong community of interest the members of that craft share with other employees in a hotel. In fact, concern was expressed over this phenomenon in the Seaway Hotels (Ontario) Limited case, [1976] OLRB Rep. Nov. 676, in particular in the concurring opinion of A.S. Gribber. The Board finds no basis for the recognition of a second craft-group composed of waiters and waitresses, as urged by the applicant in the present case. Indeed, in terms of fragmentation (and in the absence of the agreement of the parties as we have here), there may be some question as to the appropriateness of limiting a bargaining unit only to persons employed in the dining rooms of a particular hotel. We mention this only to ensure that the applicant is not taken by surprise should this issue arise in any subsequent case.
The evidence put forward by the applicant in support of its argument that its normal craft has grown to include waiters who serve both food and alcohol but are not primarily engaged in the serving of alcohol falls far short of persuading the Board that that has happened. Its evidence in chief with respect to the Nag's Head Tavern was obviously intended to convey the impression that all of the servicing of both food and alcohol was done by the waiters whom it represented. Cross examination revealed that the applicant only represented its normal craft and that a sister local represented other staff, including other waiters. The bargaining units in the other three certificates recognize that the parties were agreed to a description which appears to be different from the normal craft unit and the Board accepted their agreement. No collective agreements with those three employers and no other evidence as to the scope of the applicant's collective bargaining with them was put before the Board to establish the actual scope of the applicant's bargaining units. The evidence is that for more than 100 establishments with which the applicant has agreements, separate from the establishments covered by the Association agreement, the bargaining unit is described by reference to the "beverage department" of the establishments and to include beverage waiters. It is reasonable, therefore, to infer that the establishments included in the three certificates covered in a similar fashion. Use of the terms "beverage department" and "beverage waiter" are entirely in keeping with the applicant's normal craft. In the absence of evidence which would persuade the Board that the employees covered by those agreements and by the Association agreement include persons who are not primarily engaged in the handling and serving of alcoholic beverages, the Board is of the view that the evidence is more supportive of a finding that the preponderance of employees represented by the applicant are those engaged in its normal craft.
For that reason the Board rejects the applicant's first submission that its craft includes persons who serve alcoholic beverages but are not primarily engaged in serving alcohol. For the same reason, the Board is not persuaded that it is the established practice of the applicant to represent such persons in collective bargaining so as to cause the Board to exercise its discretion under section 6(3) to include them in the craft unit. In other words, the Board is not persuaded that waiters who serve alcoholic beverages but are not primarily engaged to do that are ..... persons who according to established trade union practice are commonly associated in their work and bargaining . . ." with the applicant's normal craft group.
For similar and additional reasons the Board does not agree that the locus of the "bright line" defining the reach of the craft unit should be shifted so as to include waiters not primarily engaged in serving alcoholic beverages. The Board has previously expressed its concern over the incursion of this craft unit into the strong community of interest between persons engaged in its craft unit and other persons engaged in other work in licensed establishments and the hotels in which they frequently are based. See paragraph 9 of the Victoria Hotel decision quoted above. There is no evidence before this Board which would cause it to extend that incursion. Moreover, as far as the claimed need for clarity of who to organize, the applicant already has that guidance from the primarily engaged test as it has been applied in cases such as the decisions referred to in paragraph 9 of the Victoria Hotel decision, supra. If the applicant wishes to organize and represent employees beyond its normal craft lines, there is nothing in the Act to prevent it from organizing employees who would constitute an appropriate unit under section 6(1) of the Act. It is inhibited from doing so by the conditions governing relationships within its parent international union, the resolution of that problem is in its own hands.
For all of the above reasons the Board finds that all full-time and part-time tap men, bartenders, beverage waiters, bar boys and improvers of the respondent in Metropolitan Toronto, save and except supervisors and persons above the rank of supervisor, constitute a unit of employees of the respondent appropriate for collective bargaining.
The Board is satisfied that less than forty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on February 4th, 1982, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
Therefore, as the parties were advised orally at the hearing, this application is dismissed.