[1991] OLRB Rep. November 1280
0937-90-R Hotel Employees Restaurant Employees Union, Local 75, Applicant v. Holiday Inns of Canada Ltd., Respondent
BEFORE: M. A. Nairn, Vice-Chair, and Board Members J. A. Rundle and D. A. Patterson.
APPEARANCES: Alick Ryder for the applicant; Stephen Shamie, Stephen Gleave, Mary Cox and Carol Fenn for the respondent.
DECISION OF THE BOARD; November 22, 1991
1Having regard to the information provided by the respondent at the outset of this hearing and there being no objection taken by the applicant the style of cause is hereby amended to reflect the correct name of the respondent: "Holiday Inns of Canada Ltd.".
2This is an application for certification. Pursuant to an earlier decision of the Board a Labour Relations Officer was appointed to inquire into and report to the Board with respect to a number of challenges made by the applicant to the composition of the bargaining unit and to the list of employees in the bargaining unit. A Labour Relations Officer convened meetings with the parties and heard evidence with respect to these matters. Transcripts were prepared and provided to the parties following which written submissions were filed with the Board by both parties. At their request a hearing was convened before this panel to hear the further submissions of the parties with respect to the conclusions the panel should reach in light of the evidence.
3The report of the Officer identifies that there were nine remaining challenges to the list of employees made by the applicant on the basis that the individuals employed exercised managerial functions and therefore ought to be excluded from the bargaining unit pursuant to section 1(3)(b) of the Labour Relations Act (the "Act"). The applicant also asserted that one of these employees was performing security services and therefore ought also to be excluded by virtue of section 12 of the Act. In addition there were two challenges made by the applicant to exclude employees from the bargaining unit on the basis of their community of interest ("control clerk" and "administrative assistant"). It was the position of the applicant that their community of interest was more closely associated with the office group of employees. It was the position of the respondent that all eleven persons were properly included in the bargaining unit.
4In their written submissions to the panel and before us the parties confirmed that they were in agreement with respect to five other challenges. The parties are agreed that D. Crone, D. MacLean, A. Sarr, and A. Doherty are properly included in the bargaining unit. The parties are further agreed that J. Koleros is properly excluded from the bargaining unit in that he exercises managerial functions in accordance with section 1(3)(b) of the Act.
5Following an initial meeting with a Labour Relations Officer upon filing the application for certification the parties entered into minutes of settlement which were entered as exhibit 33 in these proceedings. There is a dispute between the parties as to the binding effect of that settlement. However the parties chose not to place that issue before this panel. A section 89 complaint remains outstanding. However, at the outset of this hearing the applicant did seek to have the panel deal with an additional challenge to the list. It was the applicant's position that relying on the evidence in the transcripts the panel ought to hear submissions with respect to the question of whether or not M. Yordanou was a security officer at the relevant time and therefore ought to be excluded from the bargaining unit pursuant to section 12 of the Act. The respondent opposed this request. Having heard the representations of the parties we ruled that even assuming that a challenge to Yordanou could be raised at this stage we were not prepared to hear it on the basis of the evidence on the record given that at the time that evidence was called the respondent was not aware that Yordanou was being challenged and therefore had no opportunity to assess whether it wished to call any evidence on that issue. The subsequent question of whether or not additional evidence could be called by one or both of the parties raised the issue of the binding nature of the settlement between the parties filed as exhibit 33; an issue that the parties were not seeking to put before the panel at this time. Therefore we declined to deal with any issue in respect of a challenge to Mr. Yordanou at this time and indicated that we would deal with the remaining 11 challenges outlined in the Officer's report.
6The parties were agreed that the evidence concerning N. Kaulback and P. Talon was representative of the duties and responsibilities of D. Everitt. Although referred to in the written submissions of the applicant, neither party sought to raise any issue with respect to the indication in the transcripts of the officer's report that a section of tape was not transcribed. Neither party sought to rely on that evidence.
7As indicated, the evidence with respect to these challenges has been transcribed and been made available to the parties and the panel. We have reviewed those transcripts carefully and do not intend to refer to or summarize the evidence contained in them except as is necessary to explain our decision. We will deal with the challenges in the order that the parties dealt with them at the hearing. At the outset we note that in a number of cases the respondent's indication on its list of employees as filed stipulate a title or classification for employees that is different from that identified during the course of the examinations. In this regard the applicant argued that the panel ought to be more circumspect concerning the evidence provided by the respondent and that these matters amounted to a fraud on the Board. The representative of a respondent who prepares the list of employees is expected to confirm its accuracy by their signature. The result of inaccuracy is inevitably delay in dealing with the application. Challenges to the list may have to be made unnecessarily and result in the waste of considerable time and expense for the parties and for the Board. We note however that on the issue of whether certain challenged individuals herein exercise managerial authority that, regardless of their title, we have the benefit of the evidence with respect to their actual duties and responsibilities. It is on that basis that we draw our conclusions with respect to their inclusion or exclusion from the bargaining unit.
8Although the applicant submitted that the standards of the hotel industry were to be a guide post by which the Board should determine the managerial nature of these employees' duties, there was neither any evidence nor caselaw to support the proposition that the Board should depart from the usual indicia with respect to whether persons were exercising managerial functions. To the contrary, in Waldorf Astoria Hotel, [1981] OLRB Rep. Sept. 1308, in a case dealing with the managerial status of a head housekeeper in a hotel operation the Board stated:
- The criteria which are generally considered by the Board to be relevant to the determination of whether or not an individual exercises managerial functions are well established in the Board's jurisprudence; see, for example, Hydro Electric Commission of Borough of Etobicoke, [1981] OLRB Rep. Jan. 38 and the cases cited therein.
9And in Windsor Arms Hotel Limited, [1981] OLRB Rep. Sept. 1313, the Board stated:
- The managerial status issue does not raise any novel question of law, nor are the facts especially complicated. The task facing the Board is simply to weight the factors which point in one direction against those which point in the other, and assess the evidence in light of the statutory purpose which section 1(3)(b) was designed to accomplish. We do not think any useful purpose would be served by reviewing, once again, the Board's jurisprudence concerning section 1(3)(b). (See for example The Cottage Hospital, [1980] OLRB Rep. March 304, Caledon Hydro, [1979] OLRB Rep. Oct. 924, and the many cases digested in Sack & Levinson Ontario Labour Relations Board Practice). It is sufficient to note that in the case of so-called "first line" managerial employees, the important question is the extent to which they make decisions which affect the economic lives of their fellow employees thereby raising a potential conflict of interest with them. Thus, the right to hire, fire, promote, demote, grant wage increases or discipline employees are all manifestations of managerial authority, and the exercise of such authority is incompatible with participation in trade union activities as an ordinary member of the bargaining unit.
We have adopted the approach in those cases in assessing the evidence before us.
10By way of background the respondent operates a hotel near the Pearson International Airport. The bargaining unit in question is one that includes all employees engaged essentially in performing service functions for the hotel. Office, sales and accounting staff are excluded, as are reservation agents, guest service representatives, and security staff. It is a full-time employee bargaining unit only.
11The applicant argued that the conditions of employment of various of the challenged employees were sufficiently different from employees in the bargaining unit so as to draw distinctions between them. We note generally that in many cases where the applicant submitted that employees were paid on a salary basis the evidence indicates that hourly wages are also noted for the employees. In addition we are not satisfied that the treatment of payment for overtime contrasted with the availability of time off in lieu of overtime worked is sufficiently clear or consistent within the hotel to draw any conclusions with respect to employees' managerial authority. Finally to the extent that the applicant sought to rely on the challenged individuals' training of other employees, it is apparent that training is conducted by a "sponsor trainer" which is a program available at the hotel in which bargaining unit members participate and become sponsor trainers (see the evidence relating to Agaton, Singh, and Kaulback). Consequently we placed little if any weight on this as indicia of managerial authority.
12R. Charles and K. Leung are employed as Sous-Chefs at the hotel. They report through the Executive Sous-Chef to the Executive Chef. Both those positions are excluded from the bargaining unit on the basis of their managerial authority. Summarizing the evidence with respect to both these individuals it is clear that they work primarily preparing food for the kitchen. They have first and second cooks under their supervision and work assignments are distributed to the cooks by the Sous-Chef. These assignments arise from menus that are prepared by the Executive Chef in accordance with predetermined contracts. While the Sous-Chefs may have some authority to grant time off or to authorize overtime they play no role in the hiring process. They have no authority to lay off or terminate employees. Although they could be expected to report problems in the kitchen to the Executive Chef they play no role in the disciplinary process. We are satisfied that neither R. Charles nor K. Leung, although they supervise the immediate work of the individuals with whom they work are not exercising managerial functions in accordance with section 1(3)(b) of the Act.
13The applicant sought to exclude S. Rajaratnam on three grounds; that Mr. Rajaratnam was manager of the security department on the date of application and therefore both because of his managerial authority and as a security guard was precluded from being within the bargaining unit. Thirdly, in the alternative if Mr. Rajaratnam was a Banquet Captain he ought to be excluded because of his exercise of managerial functions. With respect to the first two assertions the applicant relies primarily on exhibit 7. That document makes it clear that Mr. Rajaratnam was responsible for the security department on a temporary basis. Mr. Rajaratnam was working as a Banquet Captain in the hotel and in order to avoid a lay-off he was offered the opportunity to train in the security department on a temporary basis. At the same time the hotel was actively recruiting to replace its Manager of Security Services who had left. Mr. Rajaratnam accepted the assignment for a period of some three weeks following which he returned to his position as Banquet Captain. We do not accept that by virtue of this temporary reassignment Mr. Rajaratnam either became a managerial employee in the security department or became a security guard within the meaning of section 12 of the Act. The evidence does not establish that he performed any managerial functions during this period nor does it establish that he performed the functions of a security guard so as to fall within the ambit of section 12 of the Act (see Maplegrove Building Specialties Limited, [1984] OLRB Rep. Apr. 635). His classification remained that of Banquet Captain although on temporary reassignment. That reassignment was clearly designed to avoid his lay-off from employment. He did also continue to perform at least some if not all of his functions as Banquet Captain during this time.
14As Banquet Captain Mr. Rajaratnam works with porters in setting up rooms for both meetings and banquets. He assists with portering during the service of banquets. He has no role in hiring or firing, nor participates in any decisions in respect of lay-offs or transfers of employees. He does not perform performance appraisals of employees. He does not perform a supervisory role except to organise the work of porters from a predetermined schedule. We note that the applicant has agreed that those employees in the position of Room Service Captain fall within the bargaining unit. This is consistent with our conclusion that Mr. Rajaratnam as Banquet Captain does not perform managerial functions so as to be excluded from the bargaining unit on the basis of section 1(3)(b) of the Act.
15S. Connelly worked in the fitness centre. There is a dispute concerning his actual title during the time leading up to and including the day of application for certification. In February 1990 Mr. Connelly was made Acting Manager of the Fitness Centre having been employed as a fitness attendant. At that time he received a wage increase which included a commission component. Mr. Connelly operated the fitness centre during the day and was replaced on evenings and weekends by part-time relief staff. He reported to the Assistant Manager of Rooms. In addition to the daily running of the Fitness Centre which included the upkeep of the facility, the cleaning of the facility, making deposits from membership or retail sales, Mr. Connelly also scheduled the part-time relief staff. Those schedules were generally prepared on a month-to-month basis although Mr. Connelly did have authority to alter the schedule to accommodate the part-time staffs other commitments, for example school. While Mr. Connelly signed the part-time staffs time sheets he did not have authority to grant overtime. Although Mr. Connelly would be responsible for maintaining supplies in the fitness area those were actually ordered through the maintenance department. While in this position Mr. Connelly did not hire or fire any staff or participate in any discipline or transferring or laying off of any employee. To the extent that Mr. Connelly evaluated any employee it was simply reporting to his supervisor, Mr. Vallevand, the nature of any concerns arising in the daily operation of the area. He filed no formal reports and had not been advised that he had any authority with respect to discipline or the hiring or firing of employees. While Mr. Connelly felt he had the authority to recommend wage increases that had never occurred. He did not attend meetings of management. He did attend meetings of the Employee Representative Committee as a representative of the employees in the fitness area. Essentially Mr. Connelly was the only full-time employee in the area and as such had certain additional responsibilities over the part-time relief staff. Any decisions affecting the employees or decisions other than a minor nature affecting the operation of the fitness area would be directed to Mr. Vallevand. While it is apparent that Mr. Connelly felt he was a part of the management structure in the hotel we do not accept that the employer held him out as such except in an acting capacity. More importantly, on the evidence we are not satisfied that Mr. Connelly actually performed functions that would bring him within the ambit of section 1(3)(b) so as to exclude him from the bargaining unit.
16R. Singh is employed as chief steward. In that capacity he assigns the work of ten or eleven dishwashers and cleaners. Eighty-five percent of his time is spent performing the same work as these individuals although in addition he schedules the employees. However that scheduling requires the approval of his supervisor. To the extent that there might be some discrepancies in the evidence between Mr. Singh and Mr. Lund we prefer the evidence of Mr. Lund. The evidence of Mr. Singh is contradictory and in some cases improbable. We are satisfied that his role in the hiring process was limited to acting as an interpreter to assist the respondent. While he has some supervisory authority over the employees involved in cleaning, the vast majority of his time is spent performing bargaining unit work and his supervisory duties are not such that would bring him within the exercise of managerial functions pursuant to section 1(3)(b) of the Act.
17C. Agaton was on the list of employees as a room-checker but was employed in the position of assistant Housekeeper. In that capacity she may assign rooms to room attendants for cleaning and supervise the work performed by room attendants or housemen. She reports to the Assistant Executive Housekeeper or the Executive Housekeeper, both of whom are excluded from the bargaining unit. Ms. Agaton plays no role in hiring employees. She may identify potential discipline problems to her supervisor but is not involved in any decision making regarding such matters. We do not accept that she performs as a member of management on the weekends. Her responsibility is limited to providing access to certain locked areas for the convenience of the remaining hotel staff. She will as necessary assist the room attendants and provide them with additional supplies. We are satisfied she does not exercise managerial functions in accordance with section 1(3)(b) of the Act.
18D. Everitt, N. Kaulback, and P. Talon were listed as Host/Hostess. The hotel operates two restaurants. The evidence of P. Talon indicates that he was in the position of Dining Room Supervisor or Assistant Manager during the period of time up to approximately March of 1990. At that time there was a re-organization in the hotel to the extent that the supervisor position was eliminated and he was re-classified as Host. His primary responsibility involves greeting customers, seating them, dealing with customer complaints and assisting the service staff in ensuring efficient service in the restaurants. He reports to the Restaurant Manager. He could grant time off for example for a doctor's appointment and employees would report to him in the absence of the Restaurant Manager. The Restaurant Manager established the schedules for both Mr. Talon and the other employees in the restaurant.
19Regardless of his earlier title, Mr. Talon was not, at the relevant time, involved in the hiring, firing, lay-off or transfer or discipline of any employee. Nor did he have any authority in that regard. It lay with the Restaurant Manager. Contrary to the submissions of the applicant, Mr. Talon's evidence confirms that his duties did change after his reclassification to Host, although it is also apparent that there was confusion with respect to his title. He apparently continued to wear a name tag indicating his title as Assistant Manager.
20The evidence with respect to Nancy Kaulback's duties and responsibilities is somewhat contradictory. The parties dispute her job title. Ms. Kaulback states she was classified as Dining Room Supervisor/Hostess or Dining Room Supervisor. The evidence called on behalf of the respondent indicates that her title was Hostess. Her name tag indicated her position as supervisor. She considered herself subordinate to Mr. Talon during the spring of 1990, although it is apparent that they worked somewhat as a team. Much of the discrepancy in the evidence of the duties and responsibilities of Ms. Kaulback and Mr. Talon lies in the fact that the management and organization in the restaurants was undergoing change. Mr. Talon was initially hired as Assistant Manager but acknowledges that in or about March 1990 that position was eliminated and he became a host. That change is confirmed by exhibit 22A. It was Ms. Kaulback's view that Mr. Talon was the Assistant Manager even on the date of application, July 3, 1990. On the other hand Ms. Kaulback was initially hired as a Hostess and her evidence indicates she was promoted to supervisor in the spring of 1990. It was her evidence that she continued in this position until some time after the application date. The change to a supervisor's position is confirmed by exhibit 17. However, exhibit 18 restates her job title as Hostess although she does receive a wage increase. At best, the documentary evidence is ambiguous with respect to Ms. Kaulback's job classification. Exhibit 18 however, is dated within six days of the formal notification to Mr. Talon that he has been reclassified to Host, that is, these events occurred during the reorganization.
21Mr. Nadou was Restaurant Manager between approximately December 1989 to sometime in May of 1990. During that time Ms. Kaulback acknowledges she had less responsibility. It was Mr. Nadou's responsibility to hire, to discipline, to decide whether to retain probationary employees, to transfer employees, and to determine lay-offs and terminations. Any question of whether Ms. Kaulback exercised any authority to make effective recommendations arises from two situations in the evidence. Ms. Kaulback sat in on an interview with Mr. Nadou in respect of a new employee. While it appears that Ms. Kaulback offered an opinion and may have made a recommendation there is nothing in the evidence that indicates whether the individual was in fact hired or not. Ms. Kaulback herself indicates that she sat in on the interview because Mr. Nadou wasn't familiar with the restaurant. It is unclear whether this is referable to the hotel's restaurant in that Mr. Nadou may have been new at the time or whether it was referable to the restaurant at which the perspective employee had worked. In any event, this incident does not weigh heavily to the exercise of managerial authority.
22The second matter involves Ms. Kaulback's purported firing of a new employee. An employee called in on his first day of work to advise that he would not be attending. There is a discrepancy in the evidence as to who took this call. Even accepting Ms. Kaulback's evidence that she took the call and advised the individual that he need not attend for his shifts we are not persuaded that this act amounted to terminating this individual's employment. Ms. Kaulback acknowledges that she immediately informed Mr. Lund, the Assistant General Manager of the Food and Beverage Division at the hotel and subsequently, Mr. Nadou of the call. The evidence as to the nature of the conversation itself indicates that Ms. Kaulback did not understand that she had the authority to terminate someone's employment. We are satisfied that Ms. Kaulback commented abruptly in response to a rude caller. Overall the evidence is more consistent with the conclusion that she then reported the conversation not to advise or confirm to management that she had fired someone but to make sure they knew the circumstances of the event. During the same period some five to ten other people were either laid-off or terminated and Ms. Kaulback played no role whatsoever in those.
23This incident with respect to the employee failing to attend at work must be taken in context of Ms. Kaulback's other evidence wherein she indicates that she did not "do anything without telling Mr. Lund" and in light of certain inconsistencies in her evidence. She states that she could send people home early from work but that it would be at their option. That is, if the restaurant was slow and therefore overstaffed she would not direct a reduction in staffing whereby someone might lose pay. Ms. Kaulback stated she could schedule employees. At another point her evidence indicates that she and Mr. Talon would do it together. At another point she indicates she'd make up the schedule, Mr. Talon would approve it and it would go to Mr. Lund. It is apparent from Paul Talon's evidence that to the extent he scheduled people he needed Mr. Lund's approval. It appears that Ms. Kaulback may have had some authority to change the schedule for example if someone called in sick, or to let people go early. She also had some authority to supervise the employees in the restaurant although that authority fell short of involvement in the disciplinary process.
24We are satisfied that the vast majority of Ms. Kaulback's time was spent performing the duties of Hostess and assisting as necessary with bussing and/or relieving the bartender so as to promote the smooth functioning of the restaurant's service. It is not in dispute that other employees classified as Host or Hostess are included in the bargaining unit. Although we have no evidence to compare these individuals' respective duties and responsibilities, on balance, we are not satisfied that Ms. Kaulback performed duties and responsibilities of a managerial nature so as to exclude her from the bargaining unit in accordance with section 1(3)(b).
25Having regard to the agreement of the parties respecting D. Everitt and to our conclusion with respect to P. Talon and N. Kaulback, we find that D. Eventt is also properly included in the bargaining unit.
26It is the position of the applicant that C. Mills and S. Romyn both share a community of interest more closely associated with the office and sales staff than with the employees in the proposed bargaining unit. Mr. Romyn is a member of the accounting department employed under a title of either food and beverage control clerk or food and beverage receiver. His duties involve responsibility for receiving and physically unloading and storing primarily liquor products for the food and beverage area. He also issues and delivers liquor stock to the various bar facilities in the hotel. Mr. Romyn works in the same location as the rooms receiver. Mr. Romyn reports to the Controller. The applicant asserts that this indicates a closer alignment with the office staff. However it is clear that both the rooms receiver and the mini-bar attendant (who are both included in the bargaining unit) also report to the Controller. We place little if any weight on the varying degrees of computer utilization and skills as between bargaining unit employees and employees in the office unit. However we are satisfied that Mr. Romyn's work is more closely associated with the work performed by other members of the bargaining unit in that he acts as a necessary support for that service. To that extent he also interacts with other members in the bargaining unit, whereas he has little if any contact with the office employees.
27C. Mills is described on the employee list as a room checker and on exhibit 9 as administrative assistant. Her evidence identifies her as a housekeeping clerk. Ms. Mills is a member of the housekeeping department and her responsibilities include, primarily, ensuring that the department is properly stocked and supplied. She works in the basement in the housekeeping department with other employees that are included in the bargaining unit. While she does perform certain record keeping functions her primary responsibilities associate her with the service activities of the housekeeping department.
28C. Mills and S. Romyn share a greater community of interest with employees in the proposed bargaining unit than with the office and sales exclusion. Having regard to that conclusion and to the agreement of the parties, we find that:
all employees of the respondent at its hotel located at 970 Dixon Road in the Municipality of Metropolitan Toronto, save and except supervisors, persons above the rank of supervisor, office, sales and accounting staff, auditors, reservation agents, guest service representatives, security staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period,
constitute a unit of employees of the respondent appropriate for collective bargaining.
29For purposes of clarity we summarize our findings that R. Charles, K. Leung, S. Rajaratnam, S. Connelly, R. Singh, C. Agaton, D. Everitt, N. Kaulback and P. Talon do not exercise managerial functions in accordance with section 1(3)(b) of the Act and therefore are properly included in the bargaining unit. Further that C. Mills and S. Romyn share a greater community of interest with employees in the bargaining unit than with office and sales employees and are therefore properly included in the bargaining unit as well.
30Having regard to these findings we hereby direct that the parties meet with the Labour Relations Officer for the purposes of identifying and/or resolving any remaining issues in dispute, failing which, this matter will be scheduled for further hearing. This matter is referred to the Registrar.