0426-00-U Rosalina Papa, Applicant v. Hotel Employees, Restaurant Employees, Local 75, Responding Party v. Liverton Hotels International Inc., carrying on business as Metropolitan Hotel, Intervenor.
BEFORE: Gail Misra, Vice-Chair.
APPEARANCES: Rosalina Papa appearing on her own behalf; Denise Coombs and Sherrill Robinson for the responding party; Andra Pollak, Patrick Bourk, and Anna Carney for the intervenor.
DECISION OF THE BOARD; October 4, 2000
This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) claiming a breach of section 74 of the Act.
The essence of Ms. Papa’s formal complaint is that the responding party (the “union”) failed to represent her interests properly in relation to her complaints about her hours of work and a disciplinary measure taken by the intervenor (the “employer” or “Metropolitan”). At the hearing Ms. Papa also alleged that the union had failed to represent her with respect to harassment by the employer that she has allegedly been the subject of.
Ms. Papa was hired as a part-time Kitchen Helper at the Metropolitan in October 1995. In August 1996 she achieved full-time status. Even after Ms. Papa was made a full-time employee, she continued to receive 32.5 hours of work a week. About one year later, in July 1997, Mr. Rames Rajagopal began to work as a Kitchen Helper. Ms. Papa noted that he too was getting 32.5 hours a week. She complained to the Chef that Mr. Rajagopal, a new employee with less seniority than she had, was getting the same hours. It was Ms. Papa’s view that if there were extra hours to be worked, she should get them so that she could work 40 hours a week. Ms. Papa was told by the Chef and the Human Resources department for the employer that she did not have the experience that Mr. Rajagopal had, so she could not get the same work as he had. Ms. Papa asked to be trained, but that did not happen.
Ms. Papa works Monday and Wednesday from 4 to 10 p.m. (5 hours per day) and on Thursday, Friday and Sunday from 8 a.m. to 4:30 p.m. (7.5 hours per day). She is of the view that the collective agreement guarantees her 40 hours a week if there is work to be done, and that any available hours are to be allocated based on seniority. She contacted the union sometime in 1997 and explained her problem. Mr. Miguel Cifuentes, for the union, spoke to Metropolitan management and the Chef. Ms. Coombs, a union representative, accompanied Mr. Cifuentes in a meeting with management about Ms. Papa’s hours. The union was satisfied following its meetings with the employer that Mr. Rajagopal was in a different classification from Ms. Papa, and that there was therefore nothing to be done for the applicant.
It appears that by October 1997 Mr. Rajagopal had signed a contract of apprenticeship to become a cook. As such, he was no longer classified or paid as a Kitchen Helper. While Ms. Papa continued to be of the view that he was a Kitchen Helper, that was clearly not the case. There is no dispute that with respect to the allocation of hours of work, employees may only exercise their seniority in relation to others in their own classification. The union investigated what work Mr. Rajagopal had been assigned to ensure that he was not doing Kitchen Helper work when he was being paid as an Apprentice Cook. It was satisfied that Mr. Rajagopal was working in various areas, as is expected of an apprentice. Ms. Papa believes that the apprenticeship was a sham to avoid giving her more hours, but the Board has no evidence to support such a finding. At some point in 1999 or early 2000 Mr. Rajagopal was unsuccessful in completing a course component of the apprenticeship and thereafter asked to revert to Kitchen Helper status. However, that is not a matter material to this proceeding.
One reason that Ms. Papa does not believe that Mr. Rajagopal should have had more hours than did she is that there was nothing in the previous collective agreement (which governed in 1997) to indicate there was a classification for an apprentice of any sort. She is therefore of the view that he continued to be a Kitchen Helper, and since she was senior to him, she believes she should have got more hours. The Board accepts that the employer has historically participated in recognized apprenticeship programs and has paid apprentice cooks at a lower rate while they are participating in the apprenticeship. This is a practice that the previous bargaining agent had acquiesced to, and that the present union also agreed to. The present collective makes reference to the apprentice classification as the workplace parties have now negotiated for its inclusion in the collective agreement.
On October 27, 1999 the union filed two grievances on behalf of the applicant. One was filed with respect to a two-day suspension Ms. Papa had received. The other was regarding hours of work. At this juncture there was another employee, Mr. Marin Alveiro, who Ms. Papa was claiming was getting more or the same hours as she was. Mr. Alveiro was also a Kitchen Helper, and had begun work sometime in 1998. The employer denied the grievances. With respect to Mr. Alveiro, the employer asserted that he had indicated he was willing to work six days a week, without being paid overtime, in order to get 40 hours a week. Metropolitan showed the union representatives schedules which indicated that Mr. Alveiro indeed was on occasion scheduled six days a week and that that was the way in which he had gained the extra hours. However, from the union’s review of six months of schedules it was clear that for the vast majority of time Mr. Alveiro worked fewer hours than did Ms. Papa. In any event, Ms. Papa did not want to work six days to get 40 hours a week, and was only willing to work a sixth day if she was paid overtime. She was therefore not in the same situation as Mr. Alveiro.
The Board is satisfied that the union explained to the applicant that while Article 24.01 of the collective agreement states that the normal work week is 40 hours per week, consisting of five days a week and eight hours per day, the accepted practice in the hotel industry is to have full-time employees generally work less than that time. Article 24.04 specifically notes that the hotel may schedule employees for lesser periods than eight hours, so long as senior employees are given what full shifts are available on any given day. The Article also states that if a full-time employee is working a short schedule and elects to work other shifts that may be available, then the hotel will not be required to pay the requesting employee overtime rates to accommodate the request.
The Metropolitan appeared to have needed Ms. Papa for five hour shifts normally, but on certain days every week was able to give her more hours because other employees doing similar work were off on those days. The applicant did not want to make up her short schedule hours by working on a sixth or seventh day, unless she was paid overtime rates. Hence, the employer did not give her extra hours. Mr. Alveiro, by contrast, wanted to take extra hours to make up a 40 hour week, and the employer therefore gave him work on a sixth day when work was available. However, looking at a six-month period, Mr. Alveiro seldom worked more hours than did the applicant. In these circumstances the union, not surprisingly, could not see how it could make a case that the employer was violating the collective agreement with respect to Ms. Papa.
Ms. Papa complained at the hearing that the employer has been harassing her since 1998, and she alleges that she advised the union about this harassment every time she felt it had occurred. She claims that the union did not help her. There is nothing in the application alleging that the union had been asked to but did not assist Ms. Papa regarding any harassment. Since this issue had not been raised in a timely manner in the original application, and since neither the employer nor the responding party have had an opportunity to respond to this unspecified allegation, the Board declines to consider it.
The applicant concedes that many meetings were held between her, the union and the employer regarding her complaints. However, she claims that the union accepted the employer’s arguments and did not fight for her. Further, she claims that the union never explained to her why the terms of the collective agreement did not support her view of entitlement to hours of work.
The union contends that it spent considerable time representing Ms. Papa’s interests and advocating on her behalf. Since 1997 the union has met with Ms. Papa on several occasions to discuss her hours of work issues. Mr. Cifuentes, the business representative at the time, felt the applicant’s issue was serious enough to warrant calling in the union’s in-house counsel, Ms. Coombs. She met with the applicant a number of times. The current business representative, Mr. Salim Qadri, also met with her on several occasions. The union explained the situation to the applicant on numerous occasions, and indicated why it did not feel there was a viable case to take to arbitration. It explained to her that the provisions of the collective agreement did not say what she believed they did. Ms. Coombs herself explained the matters to Ms. Papa in 1998 and again in March 2000.
Having had the opportunity to observe the applicant firsthand, the Board accepts the union’s submissions that it made many efforts to explain the situation to Ms. Papa. The Board itself attempted to explain some matters to Ms. Papa and experienced her obstinacy and unwillingness to accept explanations given. The Board therefore rejects Ms. Papa’s allegation that the union did not explain to her why her hours of work grievance could not be successful. A further ground for finding no basis for this allegation is that in a letter dated April 10, 2000 Mr. Qadri for the union explained why the grievance was not being sent on to arbitration. The two page letter sets out the union’s explanation regarding the collective agreement provisions, Mr. Rajagopal’s apprenticeship, and states that Mr. Alveiro had not been given hours over and above the applicant’s in contravention of the collective agreement.
The Board notes that there were a number of allegations made in the original application that the applicant made no reference to during her submissions to the Board, and that were therefore not addressed by the responding party and intervenor. Since the applicant appears to have abandoned reliance on those allegations, the Board sees no reason to address them in this decision.
With respect to the two-day suspension grievance, there is nothing before the Board to indicate that the union has dropped the grievance. Further, the applicant made no reference to this grievance at the consultation/hearing. It therefore appears to the Board that this matter is no longer the subject of the complaint.
Decision
Section 74 of the Act states:
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.
In cases in which the main issue in contention is a union’s decision not to take a grievance to arbitration, the Board has consistently held that section 74 of the Act does not require a trade union to carry any particular grievance through to arbitration simply because an employee so wishes. The Board has found that section 74 requires that a union act fairly in the handling of employee grievances. In doing so, the trade union is expected to consider the merits of the grievance and the likelihood of success at arbitration. It is entitled to consider whether the facts upon which the employer relies can be successfully rebutted, whether the employer’s actions clearly establish a breach of the collective agreement, and so on. A union is entitled to settle or withdraw a grievance that it reasonably believes to have doubtful chances of success.
In Power Workers Union, CUPE Local 1000 and Ontario Hydro, [1994] OLRB Rep. June 765, the Board stated as follows:
This is not to say that section 69 [now 74] can have no application to the grievance process. But in order to trigger a breach of section [74], the union’s action must be:
(a) “arbitrary” – that is flagrant, capricious or grossly negligent;
(b) “discriminatory” – that is, based on invidious distinction without labour relations rationale; or
(c) “in bad faith” – that is, activated by ill-will, malice, hostility or dishonesty.
Having considered the evidence and submissions of the parties the Board cannot find that the union acted in a manner that was arbitrary, discriminatory or in bad faith in its representation of Ms. Papa regarding her hours of work complaints.
The union investigated her complaints about her hours both in 1997 and again in 1999. It met with both the applicant and the employer to ascertain the situation. By reviewing the employer’s documents regarding Mr. Rajagopal’s apprenticeship and schedules showing Mr. Alveiro’s hours, the union met its onus of thoroughly investigating Ms. Papa’s complaints. When, on each occasion, it concluded that Ms. Papa’s complaints did not disclose breaches of the collective agreement or established practice, the union told Ms. Papa so. As noted earlier, the Board accepts that the union explained to the applicant why it did not believe her complaints could be successful. It also sent her a letter explaining the bases for its decision in April 2000 when it advised her that the union was not proceeding to arbitration with her grievance.
The Board is aware that the applicant believes that the union simply accepted Metropolitan’s explanations and that it did not advance any arguments in Ms. Papa’s favour. That belief is not borne out by the facts. The union asked the employer a variety of questions regarding each complaint; it reviewed the schedules and Mr. Rajagopal’s apprenticeship agreement; and, it investigated whether Mr. Rajagopal was in fact doing apprentice cook work. The union, as the certified bargaining agent, is aware of the terms of the collective agreement and of practices that the workplace parties may have agreed upon even though those practices are not reflected in the collective agreement. As such, it was not unreasonable for the union to conclude that some industry practices would estop it from raising arguments about Ms. Papa’s hours. As an example, it appears that it is common in the hotel industry that full-time employees do not get 40 hours of work every week, despite the collective agreement provision. Similarly, although it was not in the collective agreement in 1997, there was an accepted practice that an employee who entered an apprenticeship program to become a cook would be paid less than a Kitchen Helper, but would be trained in various parts of the hotel and would be in a different classification. The union therefore reasonably believed that it could not rely on the strict language of the collective agreement in pursuing Ms. Papa’s claims.
For all of the above reasons the Board finds that the union has not violated section 74 of the Act, and the application is therefore dismissed.
“Gail Misra”
for the Board