Ontario Labour Relations Board
Between:
Blanch McIntosh, Applicant v. United Food and Commercial Workers International Union, Local 351, Responding Party v. Days Inn Toronto Downtown, Intervenor.
Before: D. L. Gee, Vice-Chair.
DECISION OF THE BOARD
1This matter is an application pursuant to section 74 of the Labour Relations Act, 1995 (the "Act") in which a consultation was held on December 21, 1999. At the consultation, Ms. McIntosh outlined the nature of her complaint. Based on the submissions made at the consultation, I directed Days Inn Toronto to provide documentation to the United Food and Commercial Workers International Union, Local 351 ("UFCW, Local 351") and further directed UFCW, Local 351 to file submissions with the Board. Days Inn Toronto has provided the documentation in question and the UFCW, Local 351 has filed submissions in accordance with the Board's direction. Having regard to all of the material now before the Board it is my determination that there is no need to reconvene the consultation and accordingly the further consultation date of June 29, 2000 is hereby cancelled. For the reasons that follow, it is my determination that this application must fail.
2Ms. McIntosh is employed by Days Inn Toronto and is presently represented by the United Food and Commercial Workers Union, Local 351. It is not in dispute that, until the summer of 1996, the employees at Days Inn Toronto were represented by HERE, Local 75. In the summer of 1996, HERE, Local 75 was displaced by the Textile Processors, Service Trades, Health Care, Professional and Technical Employees, Local 351 ("TPST, Local 351"). TPST, Local 351 later merged with the United Food and Commercial Workers Union, Local 351 which was later merged with a number of locals now known as UFCW, Local 333.
3The Collective Agreement in effect at the time of the events in dispute provides as follows:
12.1 For the purpose of this Agreement seniority shall mean length of continuous service with the Employer in the bargaining unit.
4Also not in dispute is the fact that an individual by the name of Sonia Rose was employed in the same bargaining unit as Ms. McIntosh until approximately 1989. In or about 1989, Ms. Rose accepted a management position with the employer outside of the bargaining unit. Ms. McIntosh asserts that at some point, due to a lack of work at Days Inn Toronto, Ms. Rose stopped working for Days Inn Toronto and went to work exclusively for Chelsea Inn. Ms. Rose disputes that she was ever employed exclusively by Chelsea Inn and asserts that she always maintained an employment relationship with Days Inn Toronto.
5Ms. Rose returned to a bargaining unit position at Days Inn Toronto in 1994. It is Ms. McIntosh's assertion that, when Ms. Rose returned to a position within the bargaining unit in 1994, HERE, Local 75, the employees' bargaining representative at that time, would not advance an argument on Ms. Rose's behalf to the effect that she ought to be credited with her years of service outside of the bargaining unit. Ms. McIntosh asserts that Ms. Rose then introduced another employee by the name of Margelene Broderick to a representative of TPST, Local 351. TPST, Local 351 successfully displaced HERE, Local 75 in the summer of 1996.
6Ms. Rose denies that she ever raised the question of being credited with her years outside of the bargaining unit with representatives of HERE, Local 75. According to Ms. Rose, she did not even consider raising the issue until December, 1996 when a number of her fellow employees asked her why she was so low on the seniority list. Ms. Rose asserts that HERE, Local 75 did not at any time decline to credit her with her years outside of the unit and she has no reason to believe that, had she raised the issue with HERE, Local 75, it would not have found in her favour. Ms. Rose disputes that she was involved in the displacement of HERE, Local 75. Ms. Broderick has filed a statement with the Board in which she states that Ms. Rose was not involved in union activities at the time of the displacement.
7In December 1996, as a result of discussions between the then bargaining agent, TPST, Local 351, and management, Ms. Rose was given credit for seniority calculation purposes for the five years she spent working outside of the bargaining unit. As a result of such agreement, Ms. Rose was moved up on the seniority list to a place above Ms. McIntosh. It is Ms. McIntosh's assertion that the union advanced an argument on Ms. Rose's behalf as a result of her having assisted TPST, Local 351 in displacing HERE, Local 75.
8Ms. Rose disputes Ms. McIntosh's allegation and states that she approached the union about why she had not been credited with her five years outside of the bargaining unit following the December, 1996 Christmas party at which a number of her fellow employees had questioned her seniority standing and she was reminded of three individuals who had been credited with time spent outside of the unit. Accordingly, Ms. Rose states that she contacted her union steward, who at the time was Ms. Broderick, and mentioned to her the names of three individuals that she was aware of who had spent time working outside of the bargaining unit and had been credited with such time for seniority calculation purposes. Ms. Broderick indicated that she would look into the issue.
9On December 17, 1996, the Executive Assistant Manger of Days Inn Toronto wrote to the TPST, Local 351 Business Agent as follows:
Further to our conversations, we have agreed to re-instate Ms. Sonia Rose's seniority to her original date of hire.
As discussed, we originally agreed to schedule Sonia based on accumulative seniority in the Union only. Sonia did leave the Union into a Management role for approximately five years and we took your advice when determining her length of service for scheduling purposes.
We have since been advised that two other members of the Union have similar histories of leaving then returning and have maintained their continuous seniority.
Based on this precedent, we will honour Sonia's total service with us and have adjusted the Housekeeping schedule accordingly.
10Following Ms. Rose being credited with her years outside of the unit, there were complaints from employees in the bargaining unit. As a result, further discussions were held with management culminating in a letter dated March 3, 1997 from a UFCW, Local 351 Business Representative to Days Inn Toronto that stated as follows:
As per our meeting of January 28, 1997 regarding Sonia Rose, the union is willing to reduce the 5 years (management time) to 2 ½ years total out of the union. Please consider this as full and final settlement of the matter.
Should you have any further questions, please do not hesitate to contact me.
11Having regard to the December 17, 1996 letter from Days Inn Toronto to TPST, Local 351, it is apparent that the union and management had had a discussion concerning the existence of a past practice of recognizing an employee's years of service outside of the bargaining unit. The fact that the union and management had a discussion concerning the treatment of employees in the past suggests that Ms. Rose did in fact inform Ms. Broderick that she knew of three individuals who had been credited with years of service outside of the bargaining unit. The letter further establishes that Days Inn Toronto gave TPST, Local 351 reason to believe that, in at least two prior instances, employees had been credited with years of service spent outside of the bargaining unit. At the time Ms. Rose approached TPST, Local 351 and advised them that she was aware of three persons who had previously been credited with years of service outside of the unit and asked them to look into her seniority calculation, TPST, Local 351 had been the bargaining agent for only a few months. TPST, Local 351 did not have its own independent source of information that it could call upon. It was reliant, as a new bargaining agent, on information it could obtain from bargaining unit employees and the employer.
12I am satisfied that, lacking any independent knowledge, TPST, Local 351, when it was informed by Ms. Rose that three individuals in the past had been credited years of service outside of the bargaining unit, reasonably advanced the issue with management on her behalf. Management's response of December 17, 1996 in fact appears to confirm the existence of such a past practice. Thus, regardless of Ms. Rose's trade union sympathies, TPST, Local 351 would reasonably have been of the belief that it was pursuing an issue on her behalf that had been resolved in the favour of other individuals in the past.
13While there exists a dispute as to whether in fact there have been employees in the past who were credited with years spent outside of the bargaining unit, and in this regard I note that whether Rohanna Segree spent time outside of the bargaining unit is hotly contested, the issue before me is not whether the union was correct, rather, the issue is whether it acted in a manner that was arbitrary, discriminatory or in bad faith. A union can be wrong and yet still not violate section 74. For the reasons set out above, I am satisfied that the union acted on the reasonable belief that there had been a past practice of crediting employees with time spent outside of the bargaining unit. While the union may be wrong in its belief, it was, in light of the information it obtained from Ms. Rose and the employer itself, a belief reasonably held.
14As a result, I find that the union did not behave in a manner that is arbitrary or discriminatory nor did it act in bad faith. The consultation date of June 29, 2000 is hereby cancelled. This application is dismissed.
"D. L. Gee"
for the Board