Mulu Tafesse Jalle et al. v. Hotel Employees Restaurant Employees Union, Local 75
File No.: 3745-99-U Date: August 15, 2000
Applicants: Mulu Tafesse Jalle, Aida Alas-as, Marina Ruiz, Casimera Tuban, Joven De Guia, Cecilia Tubog, Edna Tenel, Berna-Liza Santos, Andrea Raranjo, Satia Rajah, Collin Sheppard, Adly Wanis, Maria Campos, Navada Smith, Jimmy Tan, Feliz Serrano, Christina Chow, Brigitte Neunteufel, Raymond Williams, Lisa Lee, William Tung, Octavian Ardue Responding Party: Hotel Employees Restaurant Employees Union, Local 75 Intervenor: Delta Chelsea Inn
Before: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; August 15, 2000
I. By decision dated May 18, 2000 the Board directed the applicants' representative to file submissions in reply to specific portions of the response of the responding party ("the union"). Submissions were filed by two applicants, within the time limits set by the Board.
- The union alleged in paragraph 4 of Appendix A of its response that the application relates to a matter of collective agreement interpretation, and accordingly is not the proper subject matter of a complaint under section 74 of the Labour Relations Act, 1995 ("the Act"). The applicants replied by alleging that the union has breached its own constitution. Specifically, the applicants claim that the following provisions of what it says is the union constitution have been breached:
ARTICLE 1
NAME AND OBJECT
Section 2. The purpose of this organization shall be to organize all persons working under its jurisdiction; to establish and maintain equitable wage scales and working conditions; to elevate the moral, social and intellectual standing of its members; to guard their financial interests; to promote their general welfare and the Local's cardinal principles of truth; justice and morality; to secure employment for its members; to uphold the dignity of Labour; and to assist employers in the hotel, motel and restaurant industries in all legitimate ways.
Article X
DUTIES AND MEMBERS
Section 5. Members shall not work for wages less than the scale adopted by the Union and shall abide by all working conditions contained in the working agreement adopted by the Union. Members must ascertain the wages and condition to be received and shall immediately report all violations of the contract to the Union office.
At paragraph 5 of the union's response the union characterized the dispute as concerning the temporary closure of Wittles restaurant, the re-opening of two new outlets, and the employer's proposed elimination of two classifications. The union goes on to assert that most staff have continued to work for the employer since the closure of Wittles. In their reply the applicants say that the application is concerned with the elimination of classifications and the union's alleged failure to respond by filing a grievance challenging that elimination.
At paragraph 6 of the union's response, the union alleges that it has been and continues to be involved in discussions and meetings with the applicants and the employer in relation to the closure of Wittles and the elimination of classifications. The applicants do not dispute that the union held such meetings, but claim that not all Wittles staff attended the meetings.
At paragraph 7 of the union's response, the union alleges that it met with Wittles staff on February 29, 2000, March 7, 2000 and March 22, 2000 to discuss the areas of the applicants' concern. The applicants do not dispute that those meetings took place, but maintain that at the March 7, 2000 meeting, the union president would not discuss elimination of one of the classifications, and expressed indifference to the threat of proceedings before the Board. Moreover, they complain that the union has not distributed minutes of these meetings, although it is not alleged that minutes were taken, or that the applicants asked for, and were denied, information concerning those meetings.
At paragraph 8 of the union's response, the union alleges it sent a letter dated March 28, 2000 to the employer expressing concern about the issues that now concern the applicants. It alleges a copy of the letter was provided to all Wittles staff, and it attached a copy of the letter to its response. The applicants do not dispute the existence of the letter or its distribution. That letter sets out in detail a list of 10 issues that the union demanded the employer address, including the elimination of classifications and the re-training of employees in eliminated classifications. The applicants claim the letter reveals that the union did not file a grievance despite knowledge, expressed in the letter, of the employer's alleged failure to disclose its plans concerning the Wittles restaurant during the course of collective bargaining. In fact, the letter shows the union taking a serious view of what it considers to have been the failure by the employer to disclose the information, and reserving its rights to pursue that issue following a further meeting with the employer.
Although directed by the Board to do so, the applicants made no reply to the allegations contained in paragraphs 9 and 10 of the union's response. Paragraph 9 alleges that the union met with Wittles staff and the employer on March 29, 2000 to follow up on the union's March 28, 2000 letter. It also alleges that discussion is ongoing. The silence by the applicants on this point is deemed by the Board to indicate that they do not dispute the allegations of fact as put by the union in paragraph 9.
Paragraph 10 of the union's response asserts that the remedies requested by the applicants are not appropriate section 74 remedies because they involve matters of collective agreement interpretation.
The Board is of the view that the application is premature. The applicants’ reply to the union's response does not dispute that the union has turned its mind to the issues of concern raised by the applicants in relation to their employment. The letter from the union to the employer, dated Match 28, 2000 is ample evidence that the union had been pursuing these issues. Nor does the lack of filing of grievances, on the basis demanded by the applicants, give rise to section 74 liability, at this point. Up to the date the applicants filed their reply (May 26, 2000) the applicants have failed to make out a case for a section 74 application. That could change depending on the manner in which the union conducts itself in further dealing with the applicants’ concerns about the elimination of the job classifications..
The application is dismissed without prejudice to the filing of a fresh application should further material allegations emerge concerning the union‘s conduct after May 26, 2000 in relation to the applicants’ concerns.
The application is dismissed.
“Patrick Kelly”
for the Board