[1985] OLRB Rep. May 662
3027-84-U International Beverage Dispensers and Bartenders Union, Local 280, Complainant, v. Metro Investment Corporation c.o.b. as Doyles Tavern, Anthony Indovina, and Last Resort Hotel Inc., Respondents
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. H. Wightman and B.
L. Armstrong.
APPEARANCES: Beth Symes, James Jackson and Joe Leithwood for the complainant; no one appearing for the respondents.
DECISION OF THE BOARD; May 15, 1985
The names of the respondent are amended to add Last Resort Hotel Inc..
This is a complaint under section 89 of the Labour Relations Act, alleging a violation of various sections of the Act, and in particular sections 50, 64 and 66.
The complaint alleges that the grievors, members of the complainant, have been dealt with unlawfully by one or more of the named respondents in a number of respects. In summary, these are:
(a) that the respondent or respondents repudiated the complainant's collective agreement and advised the employees that they would henceforth be paid at a new, lower rate;
(b) that the respondent or respondents terminated the employment of Donna Sheppard because she objected to the repudiation of the complainant's collective agreement and threatened to take the respondents to the Labour Board;
(c) that the respondent or respondents advised the employees that it would be changing the method of payment by holding wages back for a week, and have in fact failed to pay wages and vacation pay owing to the employees as of the date of the Tavern's closure.
- It is apparent that at least a portion of the above claims would normally be the subject matter of grievance-arbitration, and not of proceedings before the Labour Relations Board. The case involves, however, elements well beyond a failure to abide by the provisions of a collective agreement, and it is this mix of contractual and unfair labour practice elements which has prompted the Board in the past to exercise its jurisdiction under section 89 of the Labour Relations Act. As the Board wrote in Valdi Inc., [1980] OLRB Rep. August 1254, the principal case dealing with this issue:
7... This congruence between the contractual dispute and the overlying unfair labour practice complains is significant in the sense that the Board is able to take the view that the matter is primarily a contractual or factual difference between the parties . . However, where key provisions of the Labour Relations Act require important elaboration and application or where the employer's or trade union's conduct represents a total repudiation of the collective bargaining process, it becomes more difficult to characterize the complaint as essentially contractual. It is in these situations that the Board has asserted its jurisdiction.
[emphasis added]
In the present case there is, apart from the alleged total repudiation of the trade union and its collective agreement, the further allegation of a matter which would fall clearly within the jurisdiction of the Board, and that is the alleged termination of Donna Sheppard as a consequence of her threatening to complain to the Labour Board about the employer's repudiation. In the exceptional circumstances present here, therefore, the Board is persuaded that all of the related matters set out in the complaint are properly before it.
It should be noted that the respondents, although duly notified by the Board in writing through the respondent, Anthony Indovina, of the time and place of these proceedings, failed to appear at the hearing which took place on the scheduled date. It might also be noted that Mr. Indovina represented the respondent Metro Investment Corporation before the Board at a related hearing on April 4, 1985 (File No. 3028-84-R), at which time Mr. Indovina agreed with counsel for the complainant on the date that the present complaint would be heard. Neither the Board nor the complainant received any subsequent indication from the respondents that they would be unable to attend on the date agreed upon.
The instant tavern has recently formed the subject matter of a number of Board proceedings. In Board File No. 1888-84-R, reported [1984] OLRB Rep. December 1700, the Board found that a sale of a business to Last Resort Hotel Inc., operating as Doyle's Tavern, had taken place, within the meaning of section 63 of the Labour Relations Act, and that the bargainirg rights of the complainant herein accordingly continued. The respondent was represented in those proceedings by Mr. John Doyle and Mr. Anthony Indovina. Following the Board's decision, Mr. Doyle, whom the evidence establishes was at the material time the licence-holder and manager of Doyle's Tavern, entered into a collective agreement with the complainant (being the complainant's master agreement) on January 15, 1985. Mr. Doyle testified that on January 17th, he was told by Mr. Indovina that he, Indovina, was exercising his option to buy up Mr. Doyle's shares in Last Resort Hotel Inc., and that Mr. Doyle was out. Mr. Doyle then advised the employees that Mr. Indovina was taking over the Tavern, and left (never to return).
On or about January 18, 1985, the complainant's Secretary-Treasurer, Jim Jackson, delivered to the Tavern two copies of the collective agreement which Mr. Doyle had signed. He left these with the new manager whom Mr. Indovina had installed, Andy Adams. In the course of the following week Mr. Indovina met with each one of the waitresses and bartenders in the complainant's unit and told them that he had taken over and that their hourly rate was being cut, effective the Monday of that week. Only Ms. Sheppard, the Union steward, voiced any real objection, saying that Mr. Indovina could not ignore the contract that way, and saying she would take him to the Labour Board. Mr. Indovina replied that she could do what she wanted, that he was in charge now and the rules were his own. Mr. Indovina also advised each of the employees that he would henceforth be paying the employees their wages one week in arrears.
On Friday of that week, being January 25th, Ms. Sheppard learned that her brother had been taken to hospital with a suspected tumor, and arranged with Mr. Adams and Mr. Indovina to miss her scheduled shift for that evening. On Saturday afternoon she attended at the Tavern and advised Mr. Adams that she was returning to the hospital, and that if her brother's condition had not improved, she would not be in for her shift that evening either. Mr. Adams replied that that was no problem, and that her shift could be covered in the same way that it had been on the previous night.
On the following Monday Ms. Sheppard learned she had been left off the new work schedule and was no longer employed at the Tavern. She telephoned Mr. Adams and was told she would have to speak to Mr. Indovina. Mr. Indovina advised her she had been terminated for failing to report for her scheduled shift on Saturday. Ms. Sheppard responded that she had discussed that with Mr. Adams in the afternoon prior to her shift, but Mr. Indovina cut her short and said he did not wish to talk about it. Ms. Sheppard was never re-hired. In the latter part of February, the Liquor Licence Bureau of Ontario was formally advised by Mr. Doyle that he, the licence-holder, was no longer involved in Doyle's Tavern. The Bureau apparently responded by revoking the licence, and the Tavern was closed as of February 21st. The premises are, apparently, once again for sale. All of the grievors' requests for unpaid wages and their separation certificates have gone unheeded.
It should be noted, finally, that the complainant trade union, when it received word of the take-over on January 17th, 1985, by Mr. Indovina, apparently acting through the respondent Metro Investment Corporation, filed a successor application under section 63, together with the present complaint, against Metro Investment Corporation. That successor application was heard before another panel of the Board on April 4, 1985, and its decision will be referred to infra. Of initial significance, however, is the opening paragraph of the Reply filed by Mr. Indovina on behalf of Metro Investment Corporation, which stated:
Metro Investment Inc. is not a successor employer. Metro Investment Inc. purchased the shares of the Last Resort Hotel Inc. Metro Investment Inc. contends that the application is addressed improperly and should be addressed to the Last Resort Hotel Inc., who should be the respondent of the application.
Mr. Indovina' s position, in other words, was that only a transfer of shares had taken place, and that the corporate ownership of the business continued to be in the hands of Last Resort Hotel Inc. The Board having just ruled in its December 21st decision that Last Resort Hotel Inc. was a successor employer, it is less than apparent to the Board how Mr. Indovina could take this position in his reply and at the same time take the position with the employees that he was not bound by the collective agreement which Mr. Doyle had entered into on behalf of Last Resort. The respondents, as noted, did not appear before the Board or adduce any evidence.
On the basis of all of the evidence before the Board, as well as the reverse onus provisions of section 89(5) of the Act, the Board finds that the operators of the Tavern engaged in a massive repudiation of the complainant and of the employees' lawful rights under their collective agreement, in contravention of section 64 of the Labour Relations Act. The Board also finds, again in the absence of any countervailing explanation from Mr. Indovina, that his termination of Donna Sheppard was, contrary to section 66(a) of the Act, influenced at least in part by his annoyance over her insistence on retaining her rights, and on pursuing her rights, established under the January 15th collective agreement. It is not unreasonable to conclude, in fact, given the timing of events, that Mr. Indovina's ouster of John Doyle himself was motivated by the news that Mr. Doyle had signed a collective agreement with the Union, and that all of Mr. Indovina's subsequent repudiation of the Union and the rights of its members was similarly influenced by Mr. Indovina's strong anti-Union attitude. Given the lack, once again, of any evidence from Mr. Indovina as to the reasons for his actions, the Board further finds that Mr. Indovina's refusal to deal with the Union on the rights of its members upon the Tavern's closing was also a product of his anti-Union attitude, and, in the particular circumstances here, a violation of sections 64 and 66.
The above violations of the Act having been found, it remains to consider against whom the remedy in this case ought to run. Firstly, regard must be had to the decision of the other panel of the Board in the successorship application, Board File No. 3028-84-R. That decision was released May 14, 1985, and found, from a corporate point of view, that Last Resort Hotel Inc. did in fact continue to be the owner of the business. Accordingly, the Board finds that the remedy herein properly runs against Last Resort Hotel Inc.
Beyond that, however, the complainant has argued that this case involves the kind of extraordinary circumstances which the Board found in Sunnylea Foods, [1981] OLRB Rep. Nov. 1640, appropriately gives rise to personal liability under sections 64 and 66 of the Act. The Board ruled orally at the hearing that, in light of the complainant's submissions and allegations in this case, it would continue Anthony Indovina personally as a respondent in the proceedings, and, as in Daynes Health Care Limited, [1985] OLRB Rep. Mar. 387, it would be prepared to entertain submissions on the issue of personal liability at a subsequent stage in the proceedings, if that becomes necessary.
The evidence establishes that Donna Sheppard lost 3 1/2 weeks pay, at the union rate of $6.86 per hour, plus average tips in the amount of $200 per week, for a total claim of $1,504.34. Against this amount Ms. Sheppard has received an advance of $100.00. She is, however, also owed vacation pay of $318.00. Thus her total claim is $1,722.44.
The evidence establishes that Linda Lavalley was paid 80 cents under the Union rate for 72 1/2 hours, for a make-up claim of $58.00. She is also owed full pay at the Union rate of $4.80 an hour for 49 hours, being $235.20, and vacation pay in the amount of $160.00, for a total claim of $393.20.
And finally, the evidence establishes that Anny Cieslak is owed, on the basis of a shortfall in the Union rate of 80 cents per hour for 13 1/2 hours spent as a waitress, and of $2.36 an hour for 98 hours spent tending bar, the amount of $242.08. In addition, Ms. Cieslak is owed full pay for 38 1/2 hours worked as a bartender (at the Union rate of $6.80 an hour), or $264.11, and vacation pay in the amount of $193.60, for a total claim of $699.79.
Having regard to the foregoing, the respondents are directed to deal with the complainant on all matters arising out of the complainant's collective agreement and the cessation of employment of the complainant's members thereunder, and the respondent Last Resort Hotel Inc. is directed to pay to the complainant forthwith on its members' behalf:
a) on behalf of Donna Sheppard, the amount of $1,722.34;
b) on behalf of Linda Lavalley, the amount of $393.20; and
c) on behalf of Anny Cieslak, the amount of $699.79.
- The Board will remain seized of this matter, in accordance with paragraph 14 above, until such time as the above orders have been complied with.