2618-00-U Jorge Daniel Schauman, Applicant v. CAW, Local 414 of National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW‑Canada), Responding Party v. Select Service Partners, Intervenor.
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Jorge D. Schauman for the applicant; Robert Gibson and Mike Penfold for the responding party; Hugh Dyer and Mike Byerley for the intervenor.
DECISION OF THE BOARD; July 19, 2001
This is an application under section 96 of the Labour Relations Act in which it is alleged that the responding party trade union violated section 74 of the Act.
A consultation was held in this matter on July 4, 2001 in Toronto.
The applicant was a bartender employed by Select Services Partners (the “Company”) in Lester Pearson Airport in Toronto. The applicant was represented in his relations with the company by the trade union.
The applicant’s complaint regarding the union arises out of its handling of the termination of his employment by the company. The applicant’s employment was terminated on July 18, 2000 for violations of the company’s cash-handling policies. The union filed a grievance on the applicant’s behalf and held a grievance meeting with the company. The company declined to reinstate the applicant to his employment. The union decided not to take the applicant’s grievance to arbitration. The applicant appealed the union’s decision through the union’s internal procedure but could not reverse the decision. The applicant then brought this application.
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.
The background facts respecting this application are as follows. The company operates, among other things, a bar at the Toronto Airport. The applicant was employed there as a bartender. The company heard rumours that some of its staff was stealing money from the company and accordingly, it activated its “mystery shopper” program. That program engaged the services of undercover persons to purchase drinks at the bar to ensure that staff were following appropriate procedures. Two “mystery shoppers” attended at the applicant’s workstation and purchased drinks. In each case the applicant failed to follow procedure in that he did not punch the drink into the computer cash register system and did not issue a receipt to the customer.
Management met with the applicant and asked him for an explanation. The applicant was offered but declined union representation. The applicant asserted that he was busy serving customers and therefore could not input the sales into the cash register. The company decided to terminate the applicant’s employment and advised the applicant of their decision at that meeting.
The applicant attempted to contact the union. There was some difficulty in getting connected, but at most, these delays amounted to a few days and were therefore insignificant. A grievance was filed on the applicant’s behalf and a grievance meeting was set up. The union and the applicant attended the meeting. The company explained its position and at the conclusion of the meeting, advised the union that it was not amending its decision. The union decided not to take the applicant’s grievance to arbitration.
The applicant has three complaints. First, he asserts that the union did not properly investigate his grievance. Second, he says that he was not properly represented at the grievance meeting because the union was not acting on his behalf but was taking the company’s side. Third, he asserts that the union ought to have taken his case to arbitration.
There is little doubt that, particularly taken together, the types of allegations made by the applicant, if proven, could constitute a violation of section 74 of the Act. The union’s defence, however, is that the applicant admitted to the wrongdoing that he was accused of. More importantly, the union also says that the applicant also admitted to something more serious, the taking of “overages” in the cash register. An overage occurs when there is more money in the till than the cost of drinks sold that day. It is also noteworthy that if a bartender fails to punch a drink into the cash register but puts the money in the cash register that will result in an overage. Based on these admissions and the other factors of the case such as the applicant’s seniority, the union asserts that it was justified in handling the applicant’s case as it did.
There was a dispute between the parties regarding whether the applicant made the admissions that were claimed by the union. Accordingly, the Board heard formal evidence regarding this issue. Mike Penfold, a staff representative of the union testified that he attended the grievance meeting with the applicant. The meeting commenced by the employer outlining the reasons for the termination of the applicant’s employment. The employer cited the violations of policy, which the applicant had acknowledged previously. The employer also mentioned the fact that the applicant had, during the termination meeting, admitted to keeping any overage that was present on a particular day. Mr. Penfold was hearing this allegation for the first time and therefore he turned to the applicant and asked him if it was true. Mr. Penfold testified that the applicant’s answer was “yes”. Mr. Penfold then asked the applicant if he accidentally short-changed a customer, did he also believe that money belonged to him. Based on this admission of what Mr. Penfold considered to be extremely serious conduct and given the short service of the applicant, Mr. Penfold decided to drop the applicant’s grievance.
Mike Byerley, the employer’s human resources and training manager testified next. He testified that at the conclusion of the termination meeting with the applicant, the applicant advised that he had been taking overages. Mr. Byerley testified that he was extremely surprised by this admission, as the employer did not suspect anything in this regard. Mr. Byerley confirmed Mr. Penfold’s account of the grievance meeting.
The applicant testified that he had said nothing about overages in the termination meeting and that he would not have damaged himself in that way. As for the grievance meeting, he testified that when Mr. Penfold asked him if he had admitted to taking overages, he said “no”. The applicant acknowledged that Mr. Penfold asked him “If you accidentally short change a customer, do you believe that money belongs to you!” Under cross-examination the applicant acknowledged that Mr. Penfold’s follow-up question and attitude at the grievance meeting which he characterized as hostile, did not make sense if he had said “no” in answer to Mr. Penfold’s question. He was also unable to account for how the overages issue could have come up at all if he did not raise it since that was not a matter which was in the report provided to the company by the mystery shoppers.
The Board is satisfied that the applicant did admit to the union that he took overages in addition to his admitted violations of other policy. The Board comes to this conclusion because the whole tenor and direction of the conversation between Mr. Penfold and the applicant at the grievance meeting does not make sense if the applicant had denied taking the overages. Why would Mr. Penfold have asked in follow-up to his question regarding overages, as is alleged by the applicant, whether the applicant believes that he was entitled to short-change a customer? In addition, the whole issue of overages would not have arisen had it not been raised by the applicant, there being no mention of it in the investigator’s report. The Board is also influenced by the applicant’s statements in evidence that although he did not claim to be entitled to any overage, he did not believe the company was entitled to it either. Moreover, if the Board were to accept the applicant’s version of events, that would mean that the employer and union conspired to create a false story. The applicant cannot explain why they would do this, especially since Mr. Penfold never knew the applicant prior to this grievance.
In view of the applicant’s admission to the breaches in policy and his admission to taking overages, which in my view in essence is an admission of theft, the Board concludes that the union was justified in proceeding as it did. The union came to the conclusion that in view of the applicant’s conduct, his short service and his lack of remorse (which was demonstrated to this Board), it would not be successful at arbitration. That was an entirely reasonable position to take even under the higher scrutiny which the Board applies to decisions by trade unions not to take discharge grievances to arbitration.
The applicant’s complaints regarding lack of preparation, even if well founded are in any event moot because any alleged lack of preparation had no impact on the applicant’s success or failure at the grievance meeting since he admitted to the conduct of which he was accused.
For all of the foregoing reasons this application is dismissed.
“Brian McLean”
for the Board