[1986] OLRB Rep. December 1759
1206-86-U Carmelo Pelleriti, Complainant, v. Hotel and Restaurant Employees' and Bartenders' International Union, Respondent, V. Cara Operations Limited, Intervener, V. Ministry of Labour, Intervener
BEFORE: Judge R. S. Abella, Chairman.
APPEARANCES: K. S. Chatarpaul and Charinee Abeyesekera for the complainant; Richard Stephenson for the respondent; Brian O'Byrne and Wanda Paszkowski for Cara Operations Limited; Donald Chiasson for the Ministry of Labour.
DECISION OF THE BOARD; December 22, 1986
This is a complaint by Carmelo Pelleriti that the respondent union violated section 68 of the Labour Relations Act.
The complainant, at the time of his termination, had been an employee of Cara Operations Limited for 17 years. He was first employed as a kitchen helper but for the past 10 years was working as a cook.
On March 25, 1985 at the end of an extended night shift, he was stopped by the police in the company parking lot and was arrested because a box of shrimp belonging to the company was found in his car. Pelleriti called his supervisor the next morning and was told he was suspended for stealing from the company. As a result, he went to the union office to speak to the union representative, Gerry Jones. Jones filled out a grievance form for Pelleriti's suspension.
On March 26th, Pelleriti received a letter from the company advising him that as a result of what the police found in his car, his employment was terminated.
On March 29th, Pelleriti attended at the company offices with Jones, a shop steward, and two company representatives. Jones was told by the company representatives at this meeting that the reason Pelleriti was terminated was because of the theft. At the conclusion of this meeting, Jones told Pelleriti they would go to arbitration.
On April 18th, Jones called Pelleriti to tell him there was to be a meeting the next day. Jones did not tell Pelleriti what the meeting was about or who would be present, but Pelleriti was under the impression, based on his previous conversation with Jones, that it was an arbitration meeting. He did not know it was a settlement meeting. In fact, the meeting was with a Grievance Settlement Officer of the Ministry of Labour's Office of Arbitration.
The meeting took place on the company's premises. Pelleriti was in the meeting room with Jones, Ida Banton who was a shop steward, and Banton's then 3 year old daughter. Banton was not at the meeting to represent Pelleriti but was there for her own case. She remained only because Jones had asked her to stay and she gave evidence that she had no prior knowledge of Pelleriti's case.
The Grievance Settlement Officer was William Davis. He was subpoenaed by the union to give evidence in these proceedings. He attended with his counsel but ultimately objected to giving evidence on the grounds of privilege. The Board ruled orally that the Grievance Settlement Officer was not compellable and that these settlement efforts were in fact privileged based on Wigmore's principles and the rationale in the Supreme Court of Canada case of Slavutych v. Baker et al, 1975 CanLII 5 (SCC), [1976] 1 S.C.R. 254 at 260. Wigmore's principles state:
"(1) The communications must originate in confidence that they will not be disclosed.
(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.
(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation."
In this case, we are satisfied that Davis' evidence is privileged on the grounds that this is a process the parties engage in on the understanding that it will be confidential. Although there is no specific legislative protection for Grievance Settlement Officers, one may look to the statutory protection given by section 111(4) and (5) of the Labour Relations Act for support for the theory that this is a confidential relationship to which a privilege ought to attach. The case of Shakotko v. Shakotko and Williamson (1976) 1976 CanLII 1961 (ON HCJ), 27 R.F.L. 1 (Ont. C. of A.) also shows, by analogy, the willingness of the courts to develop for settlement officers such a privilege not otherwise protected by statute.
The meeting with Davis involved a process whereby Davis spoke to Pelleriti, left him alone with Jones and Banton while he spoke in another room with company representatives, then returned to suggest in very strong terms that Pelleriti accept the termination by resigning and accepting the company's offer of a standard letter of reference. Davis told Pelleriti he was "dead, finished" because of the evidence he learned that the company had.
Pelleriti was very confused. He denied the theft and waited for Jones to give him advice. Jones gave him none, and in fact admitted in evidence that Pelleriti seemed to have trouble understanding what was going on. Jones also admitted that he kept telling Pelleriti that it was up to him. Banton's evidence that was that she did not know what was going on and was distracted by having to attend to her young daughter. She confirmed that Jones did not advise Pelleriti or even talk to him about the case.
Eventually, Pelleriti signed a form containing his resignation and the company's agreement to sign a letter of reference. Neither Jones nor Banton explained it to him. He asked for a copy but did not receive one until after his case was completed in criminal court.
Pelleriti speaks a very halting English. He was assisted throughout these Board proceedings by an interpreter. He claims not to have understood that he was resigning permanently. It was his understanding that what was reached was a tentative settlement whereby he would not work for Cara until the court case was over, but would receive a letter from them so he could find other interim employment. In fact, he was unable to find alternate employment until April, 1986.
On September 4, 1985, Pelleriti was acquitted of the criminal charges. The next day, he went to the union office because Jones had told him to wait until the criminal case was over. He made inquiries about getting his job back, but the union officer who called the company representative about the matter was told the matter was closed because Pelleriti had resigned. The union official then checked the file, found the document containing the settlement, and gave Pelleriti a copy. It was the first time anyone had given Pelleriti a copy of this document. As a result of this information, Pelleriti went to a lawyer and eventually instituted these proceedings.
It is clear from the evidence that throughout the settlement meeting with Davis, Pelleriti kept asserting his innocence. Jones in his evidence admitted this, confirmed that Pelleriti kept asking for his job back, and that he had difficulty understanding Davis. There is no doubt that Pelleriti was confused about the process on April 19th, that he did not appreciate the implications of it, and that he certainly did not realize that he was signing a permanent resignation. Nonetheless, in the absence of any advice from the union, he signed because he thought whatever he was signing would get him other employment until his criminal case was over. He did not understand that arbitration was an option in the event that the meeting with Davis was unsuccessful.
In the Board's view, the union behaved arbitrarily at the April 19th settlement meeting in a number of ways. Through Jones, it failed to direct its mind to the particular grievance and represent Pelleriti in a fair way. To Pelleriti, a 17 year employee, the matter of a termination was critical and should have been taken more seriously by Jones. It was Jones' duty clearly to ensure, given Pelleriti's limited English, that he understood the implications of what he was signing, and in particular, to explain to him that he had the option of not signing and going instead to arbitration. Jones ought to have prepared Pelleriti for the April 19th meeting by explaining to him what it was for, and how it would proceed. As far as Pelleriti knew, he was at an arbitration hearing and had little choice but to sign the settlement offer Davis had secured from the company. He did not appreciate or fully understand the implications of what he was signing. In its totality, Jones conduct towards this long-term employee who had received the ultimate employer sanction was cavalier in its disregard of Pelleriti's rights of fair representation.
In all the circumstances, therefore, the Board finds the union's conduct to have been arbitrary and in violation of section 68 of the Act. The Registrar is therefore directed to list this matter for a hearing to receive the parties' submissions as to an appropriate remedy if and when the Registrar is notified by one of the parties that they have been unable to agree on a remedy.