Ontario Labour Relations Board
[1984] OLRB Rep. October 1406
2310-83-U John Glykis, Complainant, v. Hotel Employees Restaurant Employees Union, Local 75 and The Four Seasons Hotels Limited (Inn on the Park), Respondents
BEFORE: Corinne F. Murray, Vice-Chairman.
APPEARANCES: Nicholas P. Kapilos and John Glykis for the complainant; Alick Ryder, Q.C. and Liana Turrin for the respondent union; Dolores Zimak for the respondent hotel.
DECISION OF THE BOARD; October 31, 1984
- This is a complaint under section 89 of the Labour Relations Act alleging that the respondent breached section 68 in its handling of Mr. Glykis' termination from his employment with the respondent hotel (hereinafter "the hotel") as a doorman. There is no dispute that the respondent union (hereinafter "the union") owed the complainant a duty under section 68 because he was a member of a bargaining unit for which the union holds bargaining rights. The sole question is whether the union failed to fulfill section 68 which 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.
Mr. Glykis was employed by the hotel as a doorman between 1979 and the date of his termination. He had previously worked for the hotel in or around 1973. Between 1973 and his return to the hotel he worked in doorman/bellman functions for the Sheraton Centre Hotel and the Holiday Inn. He also held other jobs unrelated to the hotel industry. At all of these hotels he was in a bargaining unit for which the union held representation rights. These facts are only important because they reveal that Mr. Glykis had, previous to his employment with the hotel in 1979, relied on the union as his bargaining agent to handle three grievances arising at other work locations. All three grievances were handled to the complainant's satisfaction, either by arbitration or settlement. Since 1979 the complainant has lodged a number of grievances, one of which proceeded to arbitration in which the complainant was unsuccessful in maintaining that he could eat his meals in a certain location. The other grievances were resolved short of arbitration; in some instances the complainant's position, in whole or in part, was upheld and in others not. There is no pattern of frivolous grieving by the complainant but it is also true that the complainant was not reluctant to assert his point of view as to his working conditions.
While in section 68 complaints the merits of the grievance are not in and of themselves determinable by the Board, it is nevertheless relevant to an assessment of whether the union fairly put its mind to the complainant's grievance over his termination to consider what events led up to the termination and what the grievor advised the union about them. There is no dispute that Mr. Glykis' functions at the hotel were to "look after" the entrance to the hotel, assist guests with their suitcases into the lobby, park their cars and give directions or information helpful to the guests. Needless to say, he was expected to be pleasant and helpful in attitude. It was clear that an important part of his function was to keep the entrance way of the hotel clear of cars because it was a fire route. He received a memo in October of 1982 from management critical of how quickly he was getting the cars of guests moved out of the entrance way. While this memo was ultimately taken off his file through the union's intervention, it shows that the hotel had put a high importance on this aspect of Mr. Glykis' job. Mr. Glykis did not work alone. Generally, there were two employees taking care of guests and cars.
On the evening of Friday, October 14, 1983, the time when an incident occurred which apparently led to his termination, he was working with another doorman, Dominic DeCarlo. Mr. DeCarlo went to assist the guest who had drawn up to the hotel's entrance in a car. After Mr. DeCarlo helped the guest with suitcases, etc., he advised him that the guest's car had to be moved out of the entrance way. He also advised the guest that the keys could be left with him for him to do it if the guest wished. Mr. Glykis believed that Mr. DeCarlo was pleasant to the guest but the guest began to raise his voice and "gave him a hard time". Mr. Glykis intervened when he heard the guest refuse to leave the keys. Mr. Glykis claims he politely advised the guest he was required to leave the keys because this was the rule. Mr. Glykis said the guest told him to leave him alone and warned he could get him fired if he did not, because he knew the manager and had been coming to the hotel frequently. The guest then went into the hotel, without leaving his keys, came out shortly thereafter and drove away very fast. When Mr. Glykis saw the guest again in the lobby, he does not remember exactly what he said but again advised him that the rule was that the guests had to leave their keys with the doorman. Mr. Glykis indicated that he was polite at all times, and never swore at him. When he encountered the guest in the lobby, Mr. Glykis said the guest had "cooled down" and commented that the other doorman gave him a hard time. Mr. Glykis claims he never saw the guest's car again that night. On Wednesday, October 19th, Mr. Glykis was called by Mr. Pergant, Manager of the hotel, to his office where Mr. Pergant and Mr. Racine, Rooms Manager of the hotel, were waiting for him. Mr. Glykis' evidence on what happened at this meeting was not contradicted by Mr. Pergant's testimony. Mr. Glykis recalled Mr. Pergant claiming that he had just received a letter from a guest about an incident on Friday, October 14th. The letter-writer claimed he had been ordered around by the doorman and because of this manner of handling him as a guest, he decided to check Out early and go to the Holiday Inn. Mr. Glykis testified that Mr. Pergant told him that he should be terminated because this was a complaint from a guest who had been coming to the hotel for 10 years and because there were a number of "things" on Mr. Glykis' file already. Mr. Glykis said he told Mr. Pergant he disagreed that he should be fired and asked for written reasons for his termination. Mr. Pergant refused. Mr. Glykis was given his pay and he was escorted out of the hotel's premises by security guards who were waiting outside Mr. Pergant's office.
Mr. Glykis phoned the union s offices immediately and was advised by Cledwin Longe, a steward, to come to its offices next day. Mr. Glykis testified that next day he met with Mr. Longe, "told him what had happened" and Mr. Longe expressed the opinion that it was not fair. He immediately prepared a grievance to this effect. Mr. Glykis was given the grievance to deliver to the hotel. Mr. Glykis did this. Mr. Longe testified that Mr. Glykis told him he did not know why he had been fired but thought it was because "they didn't like him". Mr. Longe was skeptical abut Mr. Glykis not knowing the reason, but Mr. Glykis maintained this was the truth.
Subsequently Mr. Glykis was advised by the union about a meeting at the hotel in connection with the grievance. He attended the meeting (which all involved agree was on October 28th) at which Mr. Pergant, Ms. Zimak (the hotel's Personnel Manager), Mr. Longe, Fred George (the hotel's steward) and Frank Cabrita (chief steward and bellman at the hotel) were present. It is clear that Mr. Longe went into this October 28th meeting with only the information he had received from Mr. Glykis, i.e., he did not know why he was fired. Mr. Glykis testified that Mr. Pergant said "the same kind of things as he had said when he fired him". Mr. Pergant elaborated on what was said in his testimony. Mr. Pergant claimed he assessed Mr. Glykis' record and concluded it disclosed that a great number of problems had arisen in the past relating to rudeness. The frequency of misconduct and memos to Mr. Glykis regarding house rules were so extensive that they could not be ignored when a report from a guest is received about an altercation between Mr. Glykis and a guest. Mr. Glykis recalled that Mr. Longe asked management to think again about firing Mr. Glykis because it was not right. Mr. Longe's recollections are basically coincidental with Mr. Pergant's evidence and with Mr. Glykis' more limited recall. Mr. Longe indicated that when he turned to Mr. Glykis, after management had spoken, to ask whether he wanted to say anything, Mr. Glykis said that "they" were discriminating against him and did not like him and "wanted to get rid of him", or words to this effect. Mr. Glykis did not contradict or deny he said this. The only thing that Mr. Glykis appears to have categorically denied to management in this meeting was about allegations regarding damage to the guest's car. Mr. Glykis' memory of the meeting is very vague in comparison with Mr. Pergant's and Mr. Longe's and I have concluded that the end result of the meeting was that Mr. Glykis had not, during the meeting, substantially denied most of what was said about the incident and his record. Mr. Glykis seems to have initially indicated a lack of knowledge about why he was terminated (he explained it was because it was not written down) and during the meeting continued to avoid coming to grips with the issues raised by management; instead, he defended himself on the basis that no one liked him.
After the meeting, Mr. Longe claims he made an investigation about the grievor and the incident, not only with his department but in other departments of the hotel. He could not recall who he specifically spoke with — he could not recall speaking with Mr. DeCarlo. He found nothing to support any different view of Mr. Glykis' conduct over a period of years from management's charges that he was verbally abusive and had a poor attitude toward guests, and he could find no witnesses supportive of Mr. Glykis. When Mr. Longe reported the results of his investigation, Mr. Glykis once again claimed that no one liked him.
He advised George Pineo, the Business Agent of the union, that in his opinion there was no merit to the grievance by Mr. Glykis because there had been an incident of abusiveness and he had received a number of previous verbal and written warnings in connection with the same type of action as he was accused of engaging in with the guest. The hotel decided to stick with its decision to terminate and so advised Mr. Longe by letter dated October 31, 1983. An Executive Board meeting was held November 3rd and the Executive decided not to proceed to arbitration. This was upheld at a membership meeting at the hotel on November 8th.
George Pineo, the union's Business Agent for some 1 7 years and chief architect of Local 75's process of handling grievances, testified about the union's practices and, in particular, about the handling of Mr. Glykis' grievance regarding his termination. Since the handling of Mr. Glykis' grievance up to and including the October 28th meeting is not complained of and does not diverge from the practices of Local 75, I will not dilate on that aspect. Mr. Pineo testified that after the third step meeting with management (which the October 28th meeting was), any of three officers of the Local can decide to put the grievance on for arbitration immediately. If this is not done, then the Local writes to the employer requesting an extension of the time limits to consider. The grievance is then considered first by the Executive Board and then by the membership at regularly scheduled membership meetings (every two months). At the November 3rd Executive Board meeting, Mr. Pineo reviewed Mr. Glykis' history of grievances and the incident in question. While Mr. Pineo did not say this precisely, it is clear that he considered the allegations of rudeness in connection with the guest a culminating event in a long history of altercations by Mr. Glykis with guests, management and co-workers at his workplace. There was nothing in what Mr. Pineo advised the Executive Board about Mr. Glykis' record that was ever established by the complainant to be untrue. Indeed, it was similar to a conclusion of fact made by an arbitration board almost 2 years before:
The grievor's record includes 2 oral warnings and 2 written warnings each of which involves either discourteous or rude behavior to guests and fellow employees.
The arbitration board itself upheld a 3-day suspension for the same type of conduct in connection with staff at the hotel over where Mr. Glykis ought to have his meal during his shift. After Mr. Pineo's review, which contained no recommendation one way or the other, a lengthy discussion ensued (one of the lengthiest Mr. Pineo had witnessed). Compton Marshall, Vice-President of Local 75, then made a motion that arbitration not be taken on the grievance of Mr. Glykis. The President, Jean Guy Belanger, put the motion and the Executive Board decided not to take the grievance to arbitration.
Mr. Marshall testified about this meeting and about a telephone conversation he had with a Mr. Carlisi, a lawyer who phoned him to inquire into how the Local decided not to go to arbitration. Mr. Marshall could recall that the Executive Board members had decided that Mr. Glykis' grievance was not a good case "from the evidence presented" but could not recall what that evidence was in detail. He recalled Mr. Glykis' "record" being discussed and one of the reasons the Executive chose not to support Mr. Glykis' arbitration was because the union generally goes to arbitration regarding a discharge to get a person their job back. Mr. Glykis had succeeded at a previous arbitration in getting his job back at another hotel, but instead took a monetary settlement. When a lawyer acting for Mr. Glykis, Mr. Carlisi, phoned Mr. Marshall sometime in December to inquire about the Executive Board's decision, Mr. Marshall recalls advising him that the Executive Board had decided that Mr. Glykis did not have a very good case and the money should not be spent on it. He mentioned that the Executive Board was not "keen" because the Local had got Mr. Glykis' job back before through arbitration and Mr. Glykis took a money settlement. Mr. Marshall did not deny that he could have told Mr. Carlisi it was a "political" decision in response to Mr. Carlisi questioning whether it was so.
Mr. Carlisi testified, relying on simultaneously written notes, about his telephone conversation with Mr. Marshall on December 7, 1983. He claimed that Mr. Marshall told him that Mr. Glykis had a bad record. While the Business Representative wanted to go to arbitration, his co-workers did not want to support him. Also, the Executive Board was not pleased with Mr. Glykis for taking a money settlement instead of his job which the Local had succeeded in getting through arbitration. Mr. Marshall detailed the incident itself, i.e., an argument between Glykis and a guest about the location of his car and the customer wanting to leave the car in a forbidden area because of expensive equipment. Mr. Glykis threatened him and next day the car was damaged. Mr. Carlisi questioned the proof of the damage to the car and Mr. Marshall claimed that no evidence was produced linking it to Mr. Glykis. Mr. Carlisi expressed his opinion that he thought the process was pretty "political" and the Executive seemed afraid of the membership. Mr. Marshall agreed.
The next step was consideration of the recommendation of the Executive Board by the members at a regular general membership meeting held at the hotel's location on November 8, 1983. These meetings are held every 2 months. The Minutes show that President Belanger and another member recommended that Mr. Glykis' grievance not proceed to arbitration. Neither testified as to what they did, if anything, beyond this. Mr. Marshall was not present for this segment of the meeting but Mr. Pineo was, because he reviewed Mr. Glykis' file for the membership. He did not say what it was he said in detail but he could recall the President filling in what he missed. Mr. Pineo did recall saying to the members that the grievance did not have much merit, and he made them aware of the previous arbitration where Mr. Glykis did not take his job back. A heated discussion ensued and it was clear that the members did not want to expend any funds to take his case to arbitration. The decision of the membership was to support the Executive's recommendation.
By letter dated November 10, 1983, Mr. Pineo advised Mr. Glykis that neither the Executive nor the membership supported taking his grievance to arbitration. Mr. Glykis said he did not receive the letter. He was informed by Mr. Longe by telephone about the outcome. Mr. Pineo says that most members who receive this type of letter come to him saying they do not like the decision and request an opportunity to appeal before the Executive Board and membership to overturn the decision. Mr. Glykis said he had no notice in advance of either the Executive Board meeting or of the membership meeting. He did not know he had a right to appear before either, because neither Mr. Longe nor anybody else advised him he could. Mr. Longe testified that when he reached Mr. Glykis after the hotel made the decision to reject his grievance, he explained to Mr. Glykis that he could write to request permission to attend the next meeting of the Executive Board to explain his situation and that he also had a right to speak to the general membership as well. He did not tell him of the specific dates for these events, even though they must have been set at the time Mr. Longe spoke with Mr. Glykis. Mr. Glykis did not ask either. Mr. Longe assumed he would know where to write to seek the permission because he had given him his card which had the proper address. No one asked Mr. Longe how Mr. Glykis could get a letter into the Local in time for the Executive Board meeting within less than 3 days at the most, or one day at the least. Mr. Longe indicated he had difficulty reaching Mr. Glykis to report to him the decision of management not to uphold the grievance. The earliest he could have received this information was on the Monday (October 31st) following the Friday grievance meeting. In all probability, he did not receive it until November 2, 1983, because Exhibit "18", Ms. Zimak's letter to this effect, is date-stamped November 2, 1983. Assuming that Mr. Longe may have known by oral advice on Monday, October 31st, and assuming he would have taken at least a day to reach Mr. Glykis (he claimed he had difficulty), then Mr. Longe would have been advising Mr. Glykis to write and seek permission to attend an Executive Board meeting to be held 2 days later. It is odd and it is unimaginable that he would not have told Mr. Glykis about the meeting and tried to arrange a speedy delivery of the written request. He certainly also could have explained when the membership was to meet to consider it so that Mr. Glykis could at least attend. By his own evidence, Mr. Longe did neither.
On the basis of all the evidence, I have concluded that there was a failure to fulfill section 68 of the Act in that Mr. Glykis was not informed in a proper manner as to the time of two crucial meetings by the union to consider his case, which meetings he was entitled to attend. I cannot find that he bore any onus to inquire into when the Executive was to meet or when the membership was to meet in the circumstances. The processing of his case through these stages was incredibly fast; and he was informed of management's decision so close to these two meetings that no reasonable person could have been expected to take action in writing immediately to get his opportunity to put his case to each body. Because the timing was so important, Mr. Longe had a duty to inform him. I do not think Mr. Pineo's evidence about there being subsequent opportunities to try to change the minds of the Executive and membership after the decisions are made is equal to the opportunity to bring it to the Executive or membership in the first instance, and I do not consider that Mr. Glykis accepted the faulty procedure or waived his rights by not reacting to Mr. Pineo's letter, especially because he says he did not receive it. Even if he had, his non-action would have been understandable. In any event, he brought these proceedings so he certainly could not be considered to have failed to fulfill his obligation to actively pursue his case.
The recollections of all the material witnesses, Mr. Glykis and Messrs. Pineo, Longe and Marshall, are cloudy on many important aspects and details of conversations, investigations and actions. It appears from the evidence of the union that Mr. Glykis may not have been wrong in his assertions made many times to Mr. Longe that everyone at the hotel did not like him. Unfortunately for Mr. Glykis, there were concrete, indisputable instances where he was rude and abusive with staff and management, and this was the very conduct he was accused of in connection with the guest on October 14, 1983. This type of grievance required the Business Manager, the Business Representative and the membership to take into account the grievor's character and patterns of conduct to assess the likelihood of succeeding at arbitration. Be that as it may, it is still clear and undisputed that Mr. Glykis, in accordance with the Local's normal practice, was entitled to be present at the Executive and membership meetings to plead his case. Perhaps if he had attended, he could have explained his conduct or dispelled these assessments about his penchant for getting into altercations. He clearly missed an opportunity which he should have had and could have had according to internal union procedures if he had been given clear times and places of these meetings. If the timing of the meetings had been different, then it would be understandable that Mr. Longe would not advise on them specifically. However, common courtesy would have dictated that Mr. Glykis be advised of the rapidly approaching consideration of his grievance. This conduct amounted to gross negligence and I have found on this basis that this is arbitrary treatment and a violation of section 68.
The remedy in this instance is the extension of an opportunity to Mr. Glykis to attend before both the Executive and membership meetings and present his case, with or without the assistance of his counsel. Should the membership decide to support his arbitration, we order that the time limits of the collective agreement not be used as a defence by the hotel.