George Lazenkas v. United Food & Commercial Workers International Union, Local 1000A

[1983] OLRB Rep. January 72

1442-82-U George Lazenkas, Complainant, v. United Food & Commercial Workers International Union, Local 1000A, Respondent

BEFORE: Corinne F. Murray, Vice-Chairman.

APPEARANCES: George Lazenkas on his own behalf Paul C'avalluzzo, Dan Gilbert and Rob Lebi for the respondent.

DECISION OF THE BOARD; January 4, 1983

1. This is a complaint under section 89, alleging a breaching of section 68 of the Labour Relations Act filed by George Lazenkas on behalf of himself and ten bartenders at Terminals 1 and 2 at Malton, Ontario. The complaint states:

During the past 6 months the grievors were dealt with by Daniel Gilbert and William Cox - agents of Local 1000A United Food & Commercial Workers Union, Local1000A contrary to the provisions of section 68 of the Labour Relations Act in that they did on their own behalf or on behalf of the respondent: refused to allow me and my co-workers the process of the grievance procedure and arbitration of the collective agreement.

On Schedule A attached thereto, the complainant states:

(1) The respondent signed a collective agreement that contains letters of understanding which effect my seniority as a bartender and all other senior bartenders employed at Cara Operations Terminals 1 and 2 Malton, Ontario.

(2) The respondent conducted a vote for the collective agreement between the Cara Operations Terminals 1 and 2 and the United Food and Commercial Workers Union, Local 1000A, whereby all members of Local 1000A employed at Terminals 1 and 2 were allowed to vote for seniority rights of bartenders, which did not effect the seniority rights of the other members of the Union employed at Terminals 1 and 2.

(3) Daniel Gilbert and William Cox refused to amend these letters of understanding which deny me and co-workers bartenders employed at Terminals 1 and 2 their rights by seniority — choice of shift— choice of days off, which were previously enjoyed by senior bartenders at Terminals 1 and 2 prior to the signing of the collective agreement, therefore, taking away rights which were ours by seniority.

000

3. This complaint arises from a change in scheduling shifts. This resulted from the settlement of a first collective agreement between the respondent and Cara Operations Limited (Air Terminals Restaurant Division) (hereinafter referred to as "Cara"). Prior to this settlement the complainant and the other bartenders represented by him enjoyed a fixed schedule of day shifts (10 a.m. — 6 p.m.) and days off. In a letter of understanding entered into between the respondent and Cara, on the same day as the collective agreement, July 8, 1982, Cara agreed

"to rotate bartenders through assigned shifts within each department within each terminal every four (4) weeks ... (and) to rotate the days off of the Bartenders, as well as cooks and sous chef."

This letter of understanding has been included in the booklet entitled "Agreement Full-time" (hereinafter referred to as "Agreement"). This Agreement was the result of numerous negotiating meetings between September 11, 1981 (Notice to Bargain) and May 21 1982 (Memorandum of Agreement).

4. The complainant claimed he did not participate in any aspect of these negotiations until he was advised that the newly negotiated collective agreement required that he, along with all other bartenders employed by Cara, rotate through the shifts. He explained his non-participation as being caused by his belief that he, as a salaried employee, was not in the bargaining unit. In this regard the respondent produced in evidence a certificate issued by this Board dated September 4, 1981, (Exhibit 13) which shows that the bargaining unit description is:

All employees of the respondent, Cara Operations Limited (Air Terminals Restaurant Division), employed at Terminal 1 and Terminal 2 at Toronto International Airport, Malton, Ontario, in its restaurants and lounges, save and except matire d', chefs, supervisors, those above the rank of maitre d', chef and supervisor, office and clerical staff, buyers, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period.

The respondent also produced in evidence two notices of meetings. The first (Exhibit 3) was addressed to "union members" and advised that two meetings were being convened on Tuesday, October 6, 1981, to consider "contract proposals". The second notice produced (Exhibit 6) was addressed to "all bargaining unit members, full-time and part-time" and advised that three meetings were being convened on Sunday, May 30, 1982, to consider ratification of the proposed contract. Both notices were issued by the respondent and posted in the normal course on Cara's premises. The respondent led evidence that the contract proposals, including the one relating to the rotation of shifts, were formulated at an initial meeting of the original core of supporters of the respondent and these proposals were submitted for consideration to those who responded to the notice marked as Exhibit 3. Ultimately, the whole of the settlement including letters of understanding was ratified as a 2:1 vote by those who attended the meeting of May 30, 1982 called by the notice marked as Exhibit 6.

5. According to witnesses called by the respondent, the Negotiation Committee of the respondent felt that the existing shift scheduling was based upon "favoritism” and not exclusively seniority. It was also the respondent's evidence that until after the ratification meeting of May 30, 1982, there was no contradiction of this view. At the ratification meeting an unidentified person who was presumed to be a bartender by Mr. Daniel Gilbert, President of the respondent asked whether it was fair that after years of day shift and weekends off he had to rotate. Mr. Gilbert's response was that he was not there to determine "fairness" because the proposal for shift rotation was one that he had received from the membership. Mr. Gilbert testified that the response of a member of the Negotiating Committee to this questioner was "more hostile". After the Memorandum of Agreement was ratified, there were numerous and frequent telephone calls by unidentified bartenders received by the Negotiating Committee of the respondent wherein these bartenders expressed unhappiness with the new schedule. The respondent decided that a meeting of bartenders alone should be convened in order to "let them beef and get it off their chest". This meeting took place on July 23, 1982 at the Howard Johnson's on Dixon Road. Mr. Lazenkas attended, as did between 20 to 30 other bartenders. The meeting was called for 9:30 a.m. and lasted for approximately 1-'/2 hours. Originally the meeting was to commence at 10:00 a.m. but this was changed at Mr. Lazenkas' request. Mr. Lazenkas and others in favour of non-rotating shifts could not remain throughout the whole of the meeting because they were required to report to work. Prior to their departure about half and hour after the meeting began, he and two other bartenders put forward arguments as to why the existing schedule should be retained. Mr. Gilbert responded on behalf of the respondent. Five or six other people present defended the Letter of Understanding. It appears the discussion was very heated between opposing sides. Mr. Barry Grant, Secretary/Treasurer of the respondent, said that at one point he "threw out" the idea of a shift preference being given by seniority. According to Mr. Grant, Mr. Lazenakas did not agree this was a good idea but instead said he wanted to revert to the "old system". Mr. Lazenkas denied saying this. He says his response was "if we go by seniority, we have more seniority —we don't have to work nights — we have enough to go back to day shift". After Mr. Lazenkas and the other bartenders supporting him left the meeting, the discussion continued. After the meeting concluded, approximately 6 to 8 people approached Mr. Gilbert to find out how they could carry their support for rotating shifts further. Mr. Gilbert suggested they provide him with names of those who were in favour of rotating shifts. An undetermined number of days later, a petition (Exhibit 8) composed of two sheets of paper with a total of 10 signatures, came to Mr. Gilbert. At this point Mr. Gilbert did nothing more. Mr. Lazenkas claimed he had never been advised of the petition until the day of this hearing. Mr. Gilbert acknowledged he did not inform Mr. Lazenkas of it because he received his grievance a few days after receiving the petition.

6. By letter dated August 16, 1982, (Exhibit 10) Mr. Lazenkas requested Mr. Gilbert to initiate a grievance claiming that the "undersigned" bartenders were denied:

(1) (their) seniority rights under the collective agreement in the assigning of work schedules and days off;

(2) (their) rights under the collective agreement to grieve (their) conditions of work;

(3) (their) rights at the ratification vote for the current collective agreement, when other employees, members of the Union, were allowed to vote on the collective agreement and the letter of understanding with regard to (their) conditions of work, whereby (they) are forced to rotate (their) days off work and assigned shifts.

Only Mr. Lazenkas signed this letter notwithstanding the reference to more than one bartender having signed the letter.

7. As a result, three identical grievance were initiated, one by Mr. Lazenkas (Exhibit 1), grieving the first two items listed in Exhibit 10. These grievances were carried through the grievance procedure in the normal course; and after the respondent gave notice to Cara that it would be proceeding to arbitration, it consulted Mr. Martin Levinson for a legal opinion as to the chances of success at such arbitration. Mr. Levinson, prior to rendering his opinion, met with the grievors and considered the provisions of the collective agreement. Based upon this his opinion was that the respondent would have "very little chance" in arbitration, and on this basis the respondent decided not to proceed any further. By letter dated October 29, 1982, (Exhibit 13) Mr. Gilbert forwarded a copy of Mr. Levinsons' opinion and advised Mr. Lazenkas of the respondent's decision. Mr. Gilbert suggested in this letter that Mr. Lazenkas and others who were interested in changing the collective agreement should endeavour to propose amendments to the next agreement which would reflect how they wished the shift allocation to occur.

8. There was conflicting evidence given as to how Mr. Lazenkas and other bartenders who had day shifts and certain fixed days off came to enjoy these scheduling arrangements and as to why some in the bargaining unit wished to see the system of scheduling change. The evidence given by Mr. Gilbert and Mr. Grant indicated that they understood from the membership and the Negotiating Committee that the old system was based on favoritism and the change to a rotational basis was seen by them to be necessary to bring about a more equitable situation. It is interesting to note that Mr. Levinson in his legal opinion stated that it was his understanding that the previous system was based on seniority. Mr. Lazenkas disputed both of these versions claiming that the old system operated on the basis of "seniority and classification". He claimed that he has had a schedule of day shifts since he began as "head bartender" 18'/2 years ago. He did not explain what he meant by this classification and there appears to be no recognition of such a classification either in Appendix "A" to the Agreement or on the seniority lists for Terminals 1 and 2 (Exhibits 14 and 15). The undisputed fact is that several bartenders who were relatively senior (e.g., Theodore Proios, John Soares, Nelson Avelar) did not enjoy the day-shift schedule, while others more junior did (e.g., Peter Goutjoulis, Paul Tamo, Konstantino Tabas). Mr. Lazenkas claimed at the hearing that there was no "favouritism", explaining that Mr. Prolos and Mr. Soares had had an opportunity to use their seniority to choose the day shift when a new bar opened up two years ago, but chose to stay in the old bar on a non-day shift schedule. He did not comment on the rationale behind Mr. Avelar's shift schedule.

9. Section 68 provides:

A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

The complaint of Mr. Lazenkas and the others he represents is with respect to two aspects of the respondent's representation rights and duties, i.e.,

(1) the negotiation of a collective agreement, i.e.,

(a) formulation of bargaining proposals;

(b) ratification and implementation of the memorandum of understanding;

(2) the administration of a collective agreement, i.e., grievance handling.

The complaint alleges arbitrariness, discrimination and bad faith in both of these spheres of activity.

10. Insofar as the union's duty under Section 68 in negotiation process is concerned, it has been repeatedly recognized by the Board that "trade-offs" which affect members of the bargaining unit unequally are "the everyday stuff' of collective bargaining, and that in its effort to obtain maximum benefits for its membership a trade union may be forced to make trade-offs which entail the abandonment of the interests of certain individual members. (See Dufferin Aggregates, [1982] OLRB Rep. Jan. 35; James Mason, [1979] OLRB Rep. Feb. 116 and cases cited therein; Reginald Stanley Harcourt, [1976] OLRB Rep. Sept. 508.) The fact that a union may be required to make a hard decision between the interests of groups in the bargaining unit therefore does not in and of itself, constitute a violation of section 68 of the Act (see Dufferin Aggregates, supra). While considerable deference is given to the union's normal internal procedures, the proof that these procedures have been followed alone will not necessarily be a complete defence (see Diamond Z, [1975] OLRB Rep. Oct. 791). Similarly, allegations under section 68 cannot be rebutted simply on the grounds that a settlement was based upon the will of the majority in the unit (see Dufferin Aggregates, supra, at pp. 44—45). The interference with "seniority rights" or "job security" especially places a special burden on the majority to explain the rationale behind its choice (see Dufferin Aggregates, supra). This Board, in considering allegations of breaches of section 68, must balance the notion that relationship between members of the bargaining unit and the trade union is one of majority control with the fact that the majority could act in an unfair way and tyrannize the minority (see Ford Motor Co., [1973] OLRB Rep. Oct. 519). It was stated at para. 38 of the Ford case that section 68 (then section 60):

... is to ensure that individual rights are not abused by the majority of the bargaining unit; it is an attempt to achieve a balance between the individual interests and the majority interest by recognizing that the exclusive bargaining agent has a duty to consider all the separate interests in the performance of its obligations. The duty has been described as the duty of fair representation. The emphasis is on fairness — it is a duty to act fairly in the interests of all members of the bargaining unit, minority factions, as well as majority factions, individual employees, as well as the collective group, members as well as non-members, craft employees as well as industrial employees. It is not a duty which makes the union the guarantor or insurer for every situation in which an individual employee is aggrieved or adversely affected; rather, the statute attempts to have the union consider the position of all groups and to weigh the competing interests of minorities, individuals and other like groups in arriving at its decision.

The purpose behind section 68 (then section 60) of the Act was aptly summarized in the Canadian Union of Public Employees Local 1000 - Ontario Hydro Employees Union case, [1975] OLRB Rep. May 444 at p. 460:

Section 60 reflects one of the great paradoxes in industrial relations. As legislatures of modern industrial jurisdictions have come to sanction collective action to protect individual employees from all-powerful employers, a second need has arisen to protect individual employees from all-powerful employers, a second need has arisen to protect individuals from the collective so sanctioned to act on their behalf.

And at p. 462:

Bad faith and discrimination constitute the outer limits of majoritarianism and official action, preventing a trade union from singling out certain individuals for unfair treatment. This aspect of the duty is particularly important in discouraging discrimination on the basis of race, creed, colour, sex, etc., preventing internal trade union politics from erupting into forms of invidious conduct; and in prohibiting extreme forms of interpersonal breakdowns within a trade union. It is basic to a system based upon an exclusive bargaining agent. But as important as this subjective ill-will aspect of the duty is and as difficult as it may be to apply in some circumstances the most vexing and difficult application of the duty today as in giving meaning to the word "arbitrary".

"Arbitrariness" has been variously translated to mean "unresponsiveness" (John Bourgeois, [1972] OLRB Rep. July 709), "perfunctory" (I. WA. Local 2—700, [1972] OLRB Rep. Oct. 916; Diamond Z, supra) or totally ignoring the merits of the position of an individual or group (I. WA. Local 2—700, supra). Conversely, in order to show no violation of section 68 has occurred, a union must show that it has addressed its mind to the circumstances of those who may be adversely affected by its decision (see Dufferin Aggregates, supra). This is applicable even when the union is receiving its mandate for negotiations and is acting as a forum for resolving conflict between sometimes irreconcilable employee interests.

11. The applicant, therefore, in the aspect of his case alleging employer conduct in the negotiation process, has the onus of showing that the will of the majority of those attending and voting at the meetings formulating bargaining proposals and ratifying a concluded memorandum of settlement had no objective justification. The Board has found that the applicant has failed to discharge that onus. The contract proposals were prepared on the belief that the system of scheduling was based on "favoritism". Without a countervailing view being expressed at a meeting called for the purpose of finalizing contract proposals or expressed at any other time prior to ratification, the respondent is not under any obligation to check on the accuracy of this belief. There also was no evidence that Cara disputed this belief at any time. It therefore would be natural that the belief would be considered reliable. The question put by an unidentified bartender at the ratification meeting would not cause even the most scrupulous listener to conclude that this perception of how scheduling had occurred in the past was thereby being challenged. While Mr. Gilbert's response to this person may indicate a lack of a full appreciation of what the dimensions of his duty under section 68 are, it does not constitute a violation in these circumstances. Faced with a desire by the membership and those on the Negotiating Committee that a system based on favoritism be changed to a more equitable basis, the bargaining demand was that everyone rotate. The Board finds nothing violating section 68 in this. The attractiveness of a union to employees often arises out of a desire to put their working conditions on a more equitable or systematic basis. In this instance the change in scheduling would have been in either of two ways — a system based on seniority or one with rotating shifts. The participants in the negotiation process, with one exception; felt rotating shifts was what they wanted for bartenders, cooks and the sous chef to rectify what they perceived to be an inequitable system. They achieved this through negotiations. Subsequent to the memorandum of agreement being ratified, there was a full discussion by bartenders only regarding the rotating of shifts and the respondent attempted to listen to the points and consider alternatives. A suggestion was made by Mr. Grant that perhaps the shift scheduling could be based on seniority. There is a conflict between Mr. Lazenkas and Mr. Grant as to what Mr. Lazenkas' response to this was. The Board accepts as more credible Mr. Grant's evidence because Mr. Lazenkas' rendition of his response did not make sense. It did not coincide with the fact that some more senior junior people were enjoying day shifts when some more senior people were not, and it did not coincide with Mr. Lazenkas' own description of the old system being based on "seniority and classification". If indeed seniority and classification (a term never explained) was the old system and the inclusion of classification was a factor missing from Mr. Grant's suggestion, one would have expected Mr. Lazenkas to devote some of his response to that aspect. In view of this, it is more likely Mr. Lazenkas stated he wanted to return to the "old system". In view of this, Mr. Lazenkas has failed to show that the formulation of the bargaining proposal for changing the shift scheduling to a rotational basis was not based on any objective justification.

12. The evidence was clear and undisputed that the union followed its usual ratification process, giving notice to the bargaining unit in the normal course and relying on the majority vote of those present. The bargaining unit consisted of bartenders, among others, at both Terminals 1 and 2, and it is not improper in any way to have all the members in the unit vote on the totality of proposals.

13. Even if the response of Mr. Gilbert to the bartender who questioned the fairness of the proposed changes to shift scheduling could be considered "Unresponsiveness" or "perfunctory" (which, in the circumstances, we have found it not to be) the results of it were cured by the meeting of July 23, 1982 for bartenders alone. There appears to have been a full vetting of positions at this meeting and the subsequent petition by 19 of the bartenders showed that the original position adopted by the membership was supported by a majority of the members who were bartenders. While Mr. Lazenkas should have been given the petition, or at least informed of its existence and the respondent's reaction thereto explained to him, this failure in these circumstances does not constitute a violation of the Act.

14. Turning to the handling of the grievances lodged by Mr. Lazenkas and two other bartenders, the Board finds that section 68 has not been violated because there is evidence that the union fairly put its mind to the merits of the grievances in deciding against arbitration. Acting in accordance with its usual practice, the union submitted the grievance to its legal counsel, and, based upon this advice, decided not to pursue the grievance to arbitration. It has been recognized by the Board on previous occasions that this type of consultation can resolve in the union's favour any allegation of breach of section 68 insofar as the processing of grievances is concerned (see Fran con Division' [1973] OLRB Rep. Nov. 556; Wakefield Harper, [19781 OLRB Rep. July 640; Toronto East General & Orthopedic Hospital, [19801 OLRB Rep. April 555).

15. For all of these reasons the complaint is hereby dismissed.