[1988] OLRB Rep. July 701
0694-87-U Reinaldo Santos, Complainant v. Hotel Employees and Restaurant Employees Union Local 75, Respondent v. Peel County Feed Co. Inc., Intervener
BEFORE: Patricia Hughes, Vice-Chair.
APPEARANCES: Reinaldo Santos and Cristina Santos for the complainant; B. Rutherford for the respondent; Robert Dunn and John Shelly for the intervener.
DECISION OF THE BOARD; July 13, 1988
The style of cause is hereby amended to add "Peel County Feed Co. Inc." ("the Peel County Feed Co." or "the employer" or "the restaurant") as intervener.
Mr. Reinaldo Santos, the complainant in this matter, is a member of the door staff, specifically a captain, at the Peel County Feed Co. restaurant, located near the Pearson International Airport. The respondent herein, the Hotel Employees, Restaurant Employees Union, Local 75 ("the union" or "Local 75"), was the bargaining agent for the employees at the restaurant until June 12, 1987, when the Canadian Textile and Chemical Union ("the CTCU") was certified as the bargaining agent of the employees, at which time Local 75 was decertified ("the decertification"). The arrangement at the restaurant during the relevant time period was that the serving staff paid the door staff 15% of the gratuities they themselves were given by customers. In his complaints Mr. Santos claims that the union failed to process a grievance which he requested be filed alleging that he had not been receiving the 15% gratuity and that the union representative, Mr. Brinsy Nickie, failed to make himself available to him, contrary to the duty imposed on the union by section 68 of the Labour Relations Act ("the Act"). Because the matter had not been finally dealt with by the time Local 75 was decertified, this case raises the following issue: does the duty imposed on trade unions by section 68 of the Act apply to a union which has been decertified with respect to matters arising prior to but not resolved by the time of decertification?
The complaint is dated May 23, 1987, and was sent by registered mail and therefore filed with the Board on June 5, 1987. Mr. Santos requested that the matter be adjourned on June 26, 1987, and it was adjourned sine die for a period not exceeding one year by decision dated July 3, 1987. Mr. Santos wrote to the Board by letter dated January 26, 1988, requesting that the matter be put on for hearing and that was done.
The CTCU was not named as a respondent by Mr. Santos; a representative of the CTCU attended at the first day of hearing, however.
At the beginning of the second day of hearing, Mr. Santos requested leave to amend his complaint to allege that the union did not follow the grievance procedure set out in the collective agreement because it failed to allow "grieving employees" to sign the grievance report, "forging" Mr. Santos' signature on a grievance report dated March 9, 1987 ("the grievance"), and failing to present the same grievance to the employer. Neither the union nor the employer objected to that request and I permitted the amendment. I am satisfied that Mr. Santos did not know prior to the first day of hearing that Mr. Nickie had written his (Mr. Santos') name on the grievance in the place marked for "Signature of Employee". Mr. Santos' original complaint was that the union did not process his grievance and therefore the failure of the union to give the employer a copy of the grievance dated March 9, 1987, appears to be a variant of that. As for the refusal to allow other employees to sign the grievance report, Mr. Santos testified to that effect on the first day of hearing and could have particularized that allegation in his complaint. In any case, there was no evidence adduced by any other employees that they had actually attempted to sign the grievance but were refused by the union. During the hearing it became evident that Mr. Santos disagrees generally with the manner in which the union handled his concern, not only with respect to the failure to file a grievance, but also with respect to the union's decision to treat his lack of gratuity as intertwined with a requirement, discussed below, that the door staff offer reasonable assistance to the serving staff.
Section 68 reads as follows:
- 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. Santos began to complain to the union in 1985 about not receiving his proper gratuity; he filed a complaint with the Board in 1986 which was withdrawn as a result of a settlement dated October 9, 1986. The settlement states as follows:
- The Respondent [Local 751 and Interested Party [Peel County Feed Co.] agree to monitor the tipping practices as agreed to in Appendix A of the Collective Agreement currently in effect between them, particularly that practice made reference to in the Letter of Understanding attached thereto and dated Sept. 7th 1983.
In the event said practice is not adhered to the parties to the Collective Agreement will endeavour to develop a system whereby the full 15% of gratuities will be paid to the captains and maitre “d"s [sic] as referred to therein.
Appendix "A" to the collective agreement, dated September 7, 1983, states in part that the restaurant and the union "agree that the practice[] in effect at the time of the entering into of the Memorandum of Agreement between the parties dated the 19th day of August, 1981 with respect to ... gratuities ... shall be continued during the life of the Collective Agreement".
Also attached to the collective agreement and dated the same day, is a "Letter of Understanding" which is reproduced in full below:
LETTER OF UNDERSTANDING
(To clarify Appendix" A" of the Collective Agreement and the Teplitsky Award dated the 31st day of August 1983)
The parties agree that:
(1) The practice referred to in Appendix" A" of the collective agreement with respect to "gratuities" is deemed to mean that 15% of all gratuities belongs to and is the property of the door. The "door" includes hostesses, maitre d's, assistant maitre d's and captains. Such practice shall be followed.
(2) The door will participate in providing reasonable assistance to the waiters.
(3) In the event of unresolved dispute as to whether the door is providing the reasonable assistance referred to in paragraph (2) hereof, Martin Teplitsky shall be the sole arbitrator.
(4) The sole arbitrator shall have no jurisdiction to interfere with the provision for gratuities set out in paragraph (1) hereof but shall have jurisdiction to determine whether or not the door has provided reasonable assistance.
I did not see the Memorandum of Agreement dated August 19, 1981, but it is clear that the practice referred to there comprised the payment of the 15% gratuity to the "door" referred to at para. 2 of this decision. Nor did I see a copy of "the Teplitsky Award" dated August 31, 1983. There seems doubt that it ever existed, at least as a written award; neither the union nor the employer seems to have a copy and according to the testimony of Mr. George Pineo, the secretary and business manager of Local 75 since 1977, neither Mr. Teplitsky's office nor the Office of Arbitration possesses a copy. Nevertheless, the elusive or illusive award of August 31, 1983, gave rise to the description in the Letter of Understanding of the practice referred to in Appendix "A" of the collective agreement.
This Letter of Understanding has now been replaced by a new letter of understanding; there is,in fact, a whole new scheme in place, involving deduction of the gratuity at source, negotiated by the CTCU and the restaurant after the certification of the CTCU. Although thete were apparently some retroactive adjustments made for the captains, they did not cover the relevant period of Mr. Santos' complaint.
The problem of the waiters and waitresses' not paying the 15% to the door staff is a longstanding one, not only at the Peel County Feed Co., but, I was informed, in the industry as a whole. Sometime around October, 1986, the problem assumed a new "wrinkle": the waiters and waitresses stopped paying the gratuity by "teams" and started giving gratuities which had been collected by one individual. In response to this change, Mr. John Shelly, then the General Manager of the restaurant, posted a memorandum directing that "[tihe past practice of the individual teams giving to the 'door' is to be enacted again immediately" and reminding the waiters and waitresses that "the gratuity to the door is to be 15% of all gratuities". That memorandum was dated October 8, 1986, a day or two prior to the signing of the settlement of Mr. Santos' first section 68 complaint. Subsequently, Mr. Shelly posted a second notice dated October 31, 1986, with the same direction as the first one and a reminder of the amount of gratuity. In addition, this second memorandum warned the waiters and waitresses that should they not return to the past practice based on teams, "other alternatives will be taken to resolve this matter". Finally, a notice dated December 3, 1986, was posted setting out the alternative: deduction by the employer of the gratuity at source. The alternative was not implemented, however, because the serving staff chose to return to the payment of the gratuity by teams. In between, a notice dated November 24, 1986, over Mr. Nickie's name, was posted, stating that "the provision in the collective agreement must be adhered to, especially in regards to gratuities and the payment of the door" and that union members failing to comply "may be disciplined by the Management".
Mr. Shelly testified that after the December memorandum and a meeting with the staff, the gratuities were properly given to the door for about six weeks and then the waiters and waitresses "started acting up again". He then talked to the captains and servers separately and informally.
On March 9, 1987, he, Mr. Nickie and Mr. Santos had a meeting to deal with Mr. Santos' concerns. Mr. Shelly understood that the purpose of the meeting was to discuss the contents of what would be a grievance. It was agreed, he said, that "Mr. Santos' displeasure with the 15% would go to arbitration" and that putting it before Martin Teplitsky, pursuant to the Letter of Understanding, was "the best way to deal with the matter". (Mr. Santos says he did not attend a meeting on March 9th but agrees he was at a meeting with Mr. Shelly and Mr. Nickie at which only he, Mr. Santos, talked. I am satisfied that this is the meeting referred to by Mr. Shelly.) Subsequently, Mr. Pineo wrote to Mr. Teplitsky on April 21, 1987, asking him "to convene a meeting with Peel County Feed Co. and Local 75 to adjucate [sic] a dispute with one of our members Reinaldo Santos, the Company and other Union Members with regard to your award of August 31st, 1983". Apparently, Mr. Teplitsky never responded to Mr. Pineo's request and shortly afterwards, the union was decertified and Local 75 took no further action.
I deal first with the failure to file a grievance with the employer. There is no doubt that the grievance was not filed with the employer. Mr. Shelly testified he had never seen the grievance (until the first day of hearing). Mr. Nickie admits he did not give it to Mr. Shelly. On the day he wrote the grievance, March 9th, there was a meeting already scheduled with Mr. Shelly. At that meeting, the employer agreed to refer the matter to Mr. Teplitsky. It was, therefore, not necessary to file a grievance with the employer. The failure to follow the grievance procedure as set out in the collective agreement prior to referring to arbitration (see article 11:04 of the Collective Agreement between the union and the employer) does not apply in this case where the employer and the union agreed that the issue needed resolution and agreed on the manner of resolution. For that reason, I do not find a violation of section 68 in failing to file the grievance. Filing it would be a technicality which would, I find, achieve no different result than the decision by both the union and the employer to refer the matter to Mr. Teplitsky.
But there is another reason why failure to file a grievance would not constitute a section 68 violation in this case. Mr. Santos had difficulty understanding the circumstances under which employees sign grievances. Mr. Nickie originally suggested filing a policy grievance since this was apparently a general problem. Mr. Santos wanted all the captains with complaints to sign it, but a policy grievance is a union, rather than an individual, grievance, and is not signed by employees. After a dispute over this point, Mr. Nickie tore up the policy grievance (which by then he had decided would be inappropriate since there was only one employee grieving [see article 13:01 of the collective agreement]) and wrote up an individual grievance, the March 9th grievance. Mr. Santos refused to sign it and did not even read it. He did not see it again until the first day of hearing when it showed his name in the space provided for the "Signature of the Employee".
The next (and related) issue is Mr. Nickie's signing of Mr. Santo's name to the grievance. Mr. Nickie explained that he thought a grievance should be put in, despite Mr. Santos' refusal to sign, and therefore he signed Mr. Santos' name to it on March 10, 1988, after the March 9th meeting with Mr. Shelly at which it was decided to refer the complaint to Mr. Teplitsky. Mr. Nickie's signing Mr. Santos' name on the grievance report gives me a great deal of concern. I do not believe him when he says he did not think anyone looking at the document would think Mr. Santos signed it. He said it never crossed his mind. It was suggested to me by the union's representative, that Mr. Nickie signed Mr. Santos' signature to achieve the desirable or "admirable" end of sending the matter on its way to Mr. Teplitsky. That leaves me to wonder what Mr. Nickie would do to achieve what I am sure he would consider another desirable end: the dismissal of this complaint against the union. Nevertheless, I am not convinced that signing a signature of another person constitutes a contravention of section 68 unless it somehow has an effect upon the relations between the employer and the employee or in some way denies the employee "rights" or "opportunities" he or she would otherwise have.
With respect to the effect on relations between the employer and Mr. Santos, Mr. Shelly knew that the focus or the catalyst for the referral was Mr. Santos' complaint. Mr. Shelly believed, without seeing the grievance, but after discussions with Mr. Nickie, that Mr. Santos' concern and the issue of reasonable assistance were interrelated. That is also the implication in the way the grievance and the letter to Mr. Teplitsky are worded. But, although Mr. Santos does not consider the two issues interrelated, he did not complain about the way in which the grievance was worded after he saw it at the hearing. Even if Mr. Shelly had seen the grievance, he would not have been misled by about the way in which the grievance was phrased, even though Mr. Santos had not actually signed it. Mr. Shelly believed Mr. Santos was doing his job as captain, but was still prepared to proceed under the Letter of Understanding because he understood that in some way the issues of the payment and assistance were intertwined. Thus Mr. Nickie's misrepresentation, disturbing though it might be in assessing his credibility and his perception of his role as a union representative, did not affect Mr. Santos' relationship with the employer. And since Mr. Santos has not complained about the way in which the grievance was worded, but only about the failure to give it to Mr. Shelly, it cannot be said Mr. Nickie's signing the grievance deprived him of any opportunity or right he would otherwise have had, since, in my view, the same course of referral would have been followed regardless of whether the grievance was signed by Mr. Santos or by Mr. Nickie.
I turn next to the decision to respond to Mr. Santos' concern as a matter coming within the terms of the Letter of Reference. Mr. Santos argues that it was not appropriate to refer the grievance to Mr. Teplitsky because he, Mr. Teplitsky, would not have jurisdiction to deal with it and the decision to so refer it breaches section 68. The employer and the union both thought the way to deal with the matter was to get the problem (as they saw it) of the reasonable assistance settled, even though there was no formal complaint or grievance filed about it. Mr. Shelly testified that in his view the only way to resolve Mr. Santos' complaint was to determine if he had been providing reasonable assistance. Mr. Nickie also testified that his understanding of the system is that if reasonable assistance is given, then the captain would be eligible for the 15%. Mr. Pineo also treated the matter as an interrelated issue.
On the other hand, the memoranda posted by Mr. Shelly and by Mr. Nickie all seem to treat the question of the payment of gratuities as a distinct issue, despite the subsequent position taken by both those individuals. In my view, the Letter of Understanding does so, as well. It is not at all clear from the wording and structure of the Letter of Understanding that the requirement that the door provide "reasonable assistance" to the waiters was part of the practice referred to in Appendix "A". More particularly, it is not clear that the provision of the 15% depends on the provision of reasonable assistance. The Letter of Understanding states that the gratuities practice, defined strictly as the payment of 15%, which is described as "belong[ing] to and [as] the property of the door" (emphasis added), "shall" be followed. In addition, and separately, it states there is a reasonable assistance requirement. Should there be a dispute about whether there has been reasonable assistance, the matter can be referred to Mr. Teplitsky who can decide only that issue. The arbitrator cannot "interfere" with the provision for gratuities set out in the first paragraph. The Letter of Understanding does not contemplate proportionate gratuities for specific levels of assistance. Nor does it seem that the waiters have the authority to decide to reduce the gratuity because they think the assistance has not been reasonable.
Regardless of my own view of the matter, however, the approach chosen by the union, and agreed to by the employer, in itself would constitute a breach of section 68 only if it were followed for one of the reasons set out in section 68, for example, if it were followed because that would delay appropriate treatment of the grievance or would distort the treatment of the grievance. After careful consideration, although I think Mr. Pineo was rather careless initially in reading the Letter of Understanding (he admitted that he had not paid attention to the fourth paragraph), I am not satisfied the union recklessly or without sufficient thought or with any ulterior motive took this route and did not therefore breach section 68 by deciding to do so. I add, too, that had Mr. Teplitsky dealt with the matter, he might have determined whether and how the two issues related to each other.
The next issue is whether there was adequate communication between Mr. Santos and Mr. Nickie. Mr. Nickie told Mr. Santos that he was going to recommend to the union's Executive Board that the matter should be referred to Mr. Teplitsky and followed that up with a letter dated March 19, 1987, to Mr. Santos which stated that he was recommending the grievance "be taken to Arbitration under the terms of the Collective Agreement, as spelled out in apendix [sic] A". Mr. Santos was not sent a copy of this letter or a letter advising him of the actual referral. Mr. Nickie says he told Mr. Santos the referral had been approved by the Executive Board; Mr. Santos said he did not know about it until the first day of hearing.
I accept that Mr. Nickie informed Mr. Santos of the letter to Mr. Teplitsky, although perhaps not in as clear terms as he might have. Nevertheless, I have considered whether a failure to inform Mr. Santos that a letter had been sent to Mr. Teplitsky would constitute a contravention of section 68. I conclude that it would not. Mr. Santos already knew that was how the union proposed to deal with the matter. Even if Mr. Santos had seen a copy of the letter, and even if he had expressed disagreement with it (and given that he did not do so at the hearing when he did see it, and did not object to the proposed manner of dealing with the matter set out in the March 19th letter to him from Mr. Nickie, I cannot find that he would have), it would not change what I have found to be the case: that the union decided, after consideration, that this was the proper way to proceed. Accordingly, I conclude that in the circumstances of this case there would have been no contravention of section 68 even if Mr. Nickie had not told Mr. Santos that his complaint was in fact being handled the way in which Mr. Nickie had advised him he recommended it would be.
Accordingly, I find that up to the time of the decertification, the union through Mr. Nickie, while, in my view, not necessarily acting in the most desirable manner, did not contravene section 68.
After the union was decertified, it simply stopped dealing with Mr. Santos. Given my conclusion with respect to whether there is a continuing duty under section 68, 1 do not need to consider whether the evidence of the union's conduct after decertification constitutes a failure to satisfy the section 68 duty of representation and do not do so.
Section 68 imposes a duty on a union not to act in certain ways "so long as it continues to be entitled to represent employees". The plain wording suggests that once the union is no longer entitled to represent the employees, it is no longer subject to the duty. Section 56 of the Act declares one circumstance under which a union ceases to represent employees:
56.-(1) If the trade union that applies for certification under subsection 5(4)., (5) or (6) is certitled as bargaining agent for any of the employees in the bargaining unit defined in the collective agreement, the trade union that was or is a party to the agreement, as the case may be, forthwith ceases to represent the employees in the bargaining unit determined in the certificate and the agreement ceases to operate in so far as it affects such employees.
- Subsection 56(1), as the Board in Sunnybrook Foods Limited, [19851 OLRB Rep. Feb. 337, at para. 13, said,
[mierely (but importantly) formalizes the displacement where the certification is granted. That is, without section 56(1) there would be two bargaining agents representing the employees in the same bargaining unit. Likewise, since the successful applicant concluded a collective agreement, there would be two such collective agreements operating in respect of the employees in the same bargaining unit. Section 56(1), then, avoids this chaotic situation by terminating the bargaining rights of the incumbent trade union that is or was a party to the agreement and rendering the agreement itself inoperative.
The Board in that case was dealing with alleged violation of section 79 of the Act. It found that the certification of a new union did not leave the employees in a worse position with respect to the freeze than prior to the successful outcome because "[t]he Board is not prepared to reach such a result absent express language in the statute".
In the case before me, once the CTCU was certified as the bargaining agent for the employees in the bargaining unit to which Mr. Santos belonged, Local 75 ceased to represent them pursuant to subsection 56(1). Local 75 no longer continued to be entitled to represent those employees within the meaning of subsection 56(1).
I return to section 68 of the Act. Do the words "as long as it continues to be entitled to represent employees in a bargaining unit" contemplate a continuing duty which arose prior to the decertification? Clearly there would be no duty on a union to deal with any new matters, arising after the decertification (indeed, the union would presumably be precluded from dealing with new matters). Here, however, the "grievance" and the referral occurred prior to the decertification and Mr. Santos' original complaint deals entirely with a period prior to the decertification; however, since the matter had not been resolved by June 12, 1987, the issue of whether the grievance had been dealt with appropriately also remained outstanding. When the union dealt with this matter initially, it was under an obligation to represent Mr. Santos according to the requirements of section 68. Can an obligation on the union to complete that which it started be found in section 68? For example, should the union have pressed Mr. Teplitsky further to convene a meeting?
There are considerations on both sides of this question. A union such as Local 75 which has just been displaced by the majority of employees may perhaps be excused for wondering why it should continue to expend money and energy on behalf of employees it no longer represents. But, on the other hand, we can ask hypothetically whether a union which has abandoned its bargaining rights should be able to desert the employees with impunity with respect to representation matters undertaken before the abandonment? An employee who has relied on the union to try to remedy what he or she believes to be a violation of the collective agreement by his or her employer, may also ask why the matter is suddenly abandoned, most likely without any recourse. Furthermore, it is not at all clear what either the duty or the right of a "new" union might be in this context (in which the "new~~ union is not a successor within the meaning of section 62 of the Act), nor is that a question I am asked to decide in this case. One must also ask what remedy might be granted to a successful section 68 complainant against a union which no longer has any rights with respect to an employer and therefore cannot compel an employer to negotiate or settle a grievance. In this regard, if there were an extended duty, the union's limited capacity to act might be a factor taken into consideration in determining whether the duty has been satisfied.
These and other factors show that from a policy point of view an argument can be made for a continuing duty, as well as one against a continuing duty. But the words "so long as it continues to be entitled to represent employees in a bargaining unit" constitute, I conclude, an unambiguous message from the Legislature that the duty on the union under section 68 of the Act ceases at the time it is decertified. This interpretation is reinforced by subsection 56(1) of the Act. Any employees who relied on the union to deal with conflicts with their employer - as they are required by the Act to do - are, quite simply, "out of luck". Had the Legislature intended otherwise, it could have omitted the phrase "so long as it continues to be entitled to represent employees in a bargaining unit" or added a qualifying phrase to ensure the union has an obligation to complete what it began. It chose to do neither, but rather to establish an arbitrary cessation of the duty, albeit at a logical point in the union's representation history.
I conclude that I have no discretion, given the plain wording of section 68, to find the duty on Local 75 extends past the decertification. That conclusion would not be altered, I should make clear, even if it were subsequently determined that a new union had neither an obligation nor a right to represent employees on matters arising before but not concluded by the time of its certification. In that event, employees who had indicated they still wanted union representation, but had simply changed the identity of their bargaining agent, as well as those employees whose union's bargaining rights have been terminated without replacement by another union, would have no recourse with respect to any matters not concluded at the time of tl~e transition, subject only to an employer's and new union's willingness to deal with unresolved matters informally.
Accordingly, since I find that Local 75 did not breach the Act prior to decertification and since there is no duty under section 68 on Local 75 after it was decertified, this complaint is dismissed.