Certain Employees of (Westin Hotel Company Limited Societe Hoteliere Westin Ltee), (”Certain Employees”) and Westin Hotel Company Limited Societe Hoteliere Westin Ltee, (the “Employer”) and U.N.I.T.E.-H.E.R.E., Local 40, (the “Union”), 153 C.L.R.B.R. (2d) 276
- Topalian V-Chair
Judgment: February 28, 2008
Docket: B22/2008
Counsel: Ib Petersen, for Certain Employees
Terry Honcharuk, for Local 40
Gary Catherwood, for Employer
Subject: Labour; Public
Topalian V-Chair:
- Nature of Application
1 Certain Employees apply under Section 142 of the Labour Relations Code (the “Code”) to delete the Banquet Captains (the “Captains”) employed at the Westin Bayshore Hotel (the “Bayshore”) from the Union’s certified bargaining unit.
2 On November 5, 2007, the Board ordered that a vote proceed on the application and that the ballot box be sealed pending adjudication of the issues. Submissions have now been received from all parties.
3 The Union opposes the application. The Employer supports it. I find I am able to render a decision on the application based on the submissions of the parties and without proceeding to an oral hearing.
- Background
4 The Union was previously known as the Hotel, Restaurant & Culinary Employees & Bartenders Union, Local 40. It has been certified to represent employees at the Bayshore since 1962. Initially, there was a separate certification for employees working in the cocktail lounge but the two certifications were consolidated into an all employee unit in 1974. The Captains have been included in that unit.
5 There are approximately 375 employees in the bargaining unit. They work in 13 different departments, of which the Banquets Department (”Banquets”) is one. There are currently 114 employees in Banquets: four regular and eight part-time Bartenders; 13 regular and ten part-time Housepersons; 23 regular and 51 part-time Servers; and five Captains, all full-time.
6 The Employer is affiliated with the Greater Vancouver Hotel Employer’s Association (the “GVHEA”) and is bound by a master collective agreement negotiated between the GVHEA and the Union.
7 One of the matters dealt with in the collective agreement is gratuities. Gratuities are apportioned in fixed percentages between the Employer and bargaining unit employees. The employee portion is pooled and distributed among eligible employees according to a formula set out in the collective agreement.
8 Until the recently concluded round of collective bargaining, the apportionment between the Employer and bargaining unit employees was 70% to the employees and 30% to the Employer. This was unlike the other three hotels (the Four Seasons; the Hyatt Regency; and the Renaissance) included in the “big four”, where the split was 60% to employees and 40% to the Employer.
9 Because it believed that the Employer was asking the Captains to take on work more properly assigned to management employees and was treating the gratuity funds as incentive compensation for the Captains doing that work, the Union tabled a proposal at bargaining to cap the gratuities available to Captains at 10%.
10 The Captains were very unhappy with the proposal to cap their share of gratuities because they believed that it would reduce their earnings by $200 to $250, each, per pay cheque. The Captains advised the Union of their disagreement with the proposal.
11 There is disagreement between the parties regarding the willingness of the Union to meet with the Captains to discuss the matter or the preparedness of the Union to abandon the proposal. Nothing turns on this as the Union did, in fact, withdraw its proposal. Instead, it proposed that the share of the bargaining unit employees at the Bayshore be reduced to 60%, as at the other “big four” hotels, with the Captains’ share to come out of the Employer’s portion. This proposal was agreed to and became part of the new collective agreement.
12 The Captains remain dissatisfied with the gratuity provisions of the collective agreement and the present application is the result of that dissatisfaction.
III. Positions of the Parties
13 Certain Employees argue that there is little overlap between their role and that of other classifications in Banquets. They argue, as well that their involvement in the disciplinary process presents a conflict of interest. They point to Banquet Captains in some other hotels who are not included in the bargaining unit at those hotels.
14 Certain Employees submit, correctly, that Certain Employees of White Spot Ltd. v. White Spot Ltd., BCLRB No. B16/2001 (Leave for reconsideration of BCLRB No. 440/99 [1999 CarswellBC 3222 (B.C. L.R.B.)]), (2001), 65 C.L.R.B.R. (2d) 161 (B.C. L.R.B.) (”White Spot”) sets up a threshold requirement when dealing with partial decertification applications under Section 142. That is, both the applicant and the remaining group must meet the test of appropriateness, as set out in Island Medical Laboratories Ltd. v. H.S.A.B.C., BCLRB No. B308/93 (Leave for reconsideration of IRC No. C217/92 [Dueck Chevrolet Oldsmobile Cadillac Ltd. v. General Truck Drivers & Helpers, Local 213 (December 3, 1992), Doc. C217/92 (B.C.I.R.B.)] and BCLRB No. B49/93 [(March 3, 1993), Doc. B49/93 (B.C. L.R.B.)]), (1993), 19 C.L.R.B.R. (2d) 161 (B.C. L.R.B.) (”IML”).
15 Certain Employees argue that there is no doubt that a rational and defensible line can be drawn around the Banquet Captain classification, submitting that as a group, it is indisputable that they meet the first four IML factors. They dispute the degree to which the Captains are functionally integrated with Servers stating:
…there is, in fact, little overlap between the Captains and the Servers; rather they work side-by-side. The Captains only occasionally and in limited circumstances perform the work of the Servers or other classifications, akin to “emergency” situations. There is nothing to suggest that Servers perform the duties of the Captains.
16 Certain Employees submit that, given the relative numbers between themselves and the remainder of the bargaining unit, it would be impossible to decertify the whole unit.
17 Certain Employees argue that the Union not only abandoned their interests in collective bargaining, it actively worked against their interests, referring to the manner in which the Union dealt with the gratuity issue. They say that the Union held consultations with the remainder of classifications in Banquets regarding matters that potentially could seriously impact on their interests and deliberately excluded them from those consultations.
18 Finally, Certain Employees argue that employee wishes should result in the present application being granted.
19 The Employer submits that the Union has, in negotiations, recognized and accepted the significant differences between employees in the Banquet Captain classification and employees in other classifications in Banquets. Accordingly, the Employer submits that the application should be granted.
20 The Union argues that the Captains have no inherent community of interest distinct from the other employees in Banquets, noting that the Captains work side by side with Servers on a daily basis, and that the Captains routinely perform duties which are also performed by Servers. In support of its arguments, the Union notes that the Captains, without exception, have been promoted to that position from the Server position. Certain Employees disagree that all Captains were promoted from Server positions, pointing to one who came from another department. However, nothing turns on this difference.
21 The Union submits that allowing decertification of a single classification of employees in a single department which is included in a bargaining unit representing 50 classifications and 12 departments would be a radical departure, given the Board’s existing policy on partial decertification. It would, in effect, make “employee wishes” the primary determinant.
- Analysis and Decision
22 In White Spot the Board stated:
Certain Employees, with the endorsement of the employer-side parties, suggest that an appropriate policy on partial decertification to replace the Westar policy would be: subject to the remaining bargaining unit being appropriate, the wishes of the group seeking partial decertification should prevail. While this proposed test has the virtue of being clear and concise, and provides a reasonable starting point for the development of an appropriate policy, we find that it is not in itself an appropriate test or policy. (para. 82)
The policy rejected by the Board in the paragraph set out above is precisely the policy urged by Certain Employees in the present matter when they argue:
The Union’s focus is on the Banquet Department. In my submission that is wrong; the focus needs to be on the bargaining unit sought to be varied. In the case at hand, there can be no serious dispute that the remaining unit (not the Banquet Department, but the hotel) will remain an appropriate bargaining unit.
23 It is true that the doctrine of stare decisis does not apply to administrative tribunals. Nonetheless, there is a value to consistency in tribunal decisions. Parties should be able to organize their affairs with confidence that policies and principles established in past decisions will not be abrogated unless those policies and principles are clearly inappropriate or inapplicable in a given set of circumstances. This approach is consistent with the duty set out in Section 2(1)(e) of the Code to promote conditions favourable to the orderly, constructive and expeditious settlement of disputes. Parties can assess the likely outcome of adjudication based on existing jurisprudence, making it more likely that they will be able to resolve their disputes in a constructive fashion without the need to resort to litigation.
24 No compelling reason has been offered by Certain Employees to justify adoption in this case of the policy rejected by the Board in White Spot and I decline to do so.
25 Certain Employees were unhappy with the proposal initially tabled by the Union, in bargaining, that the gratuity amount applied to Banquet Captains would be capped at 10%. They made their concerns known to the Union and, on September 12, 2007, the Union withdrew its proposal. It replaced the proposal with one which was part of the Memorandum of Settlement between the parties and is now included in the collective agreement.
26 Two days after tabling the revised proposal, the Union received a letter from Counsel for the Captains demanding that the proposal to cap Captains’ gratuities be taken off the table.
27 The Union responded to the letter, informing the writer that the proposal had already been withdrawn. As well, on September 18, 2007, the Union sent a letter to each of the five Captains advising them of the change to the proposal and proposing a meeting to discuss their concerns.
28 Certain Employees do not dispute that the Union responded as it says it did. However, they say the assertion that the Union took its proposal to cap gratuities off the table on September 12, 2007 is inconsistent with its statement in its September 18, 2007 communications that it “modified” its proposal.
29 That is a matter of semantics and, to the extent that anything may turn on it, I find that the Union responded to the concerns expressed by the Captains by resiling from its position that Captains’ gratuities should be capped and substituting the proposal which was eventually agreed.
30 Certain Employees say that the offer to meet was not received by one of the Captains, and that the letter invited them to a meeting on the same day it was sent. The location of the proposed meeting was not disclosed. Certain Employees do not dispute that the letter contained the following:
Please respond to me at the office, 604-291-8211 at your earliest convenience regarding your availability for this meeting.
Nor do they dispute the Union’s assertion that none of them contacted the Union to propose an alternate meeting time or date.
31 In White Spot the Board stated:
In our view, partial decertification should not become a routine solution to difficulties and dissension within a bargaining unit. We accept the point made by the union-side parties that the potential threat of partial decertification has an intrinsically destabilizing effect on bargaining unit cohesiveness, and therefore on a union’s ability to bargain collectively on behalf of that unit with the employer. The more remote the possibility of partial decertification, the less destabilizing the effect. A union that does not have to concern itself seriously about losing part of the bargaining unit is less likely to flinch from making the difficult choices among conflicting employee interests often required in collective bargaining. Conversely, the more readily available the option of partial decertification becomes, the greater the destabilizing effect on both the bargaining unit’s relationship with the union and the balance of power between the union and the employer.
This is not to say unions and employers should be able to ignore the concerns of a minority of employees within the bargaining unit. Nor is it to say a group within the bargaining unit which comprises less than a majority of the employees has no right to press its demands upon the union (and by extension the employer). Unions are not accountable only to the majority in the bargaining unit; they must endeavour to represent the interests of all employees. However, when the wishes or interests of a minority collide with that of the majority of employees in the unit, it would rarely be fair or democratic that the minority should prevail over the majority simply because they are able to threaten to leave the bargaining unit. While the threat of partial decertification would not invariably have this result, the risk increases as partial decertification becomes more readily available. (paras. 83, 84)
32 The Union did not ignore the concerns expressed by Certain Employees regarding its initial proposal to cap their share of gratuities. Responding to their concerns, it withdrew the proposal and substituted the one which became part of the collective agreement. There is no evidence that Certain Employees raised any concerns with the Union regarding the substituted proposal before bargaining was concluded.
33 Also in White Spot, the Board set out the requirements that must be considered in exercising its discretion to grant a partial decertification. First the application must meet the threshold requirement:
F.
The Threshold Requirement
Before turning to a consideration of the other relevant factors which should be considered besides employee wishes, we will elaborate briefly upon the “threshold requirement” that the unit remaining be appropriate for bargaining. No party before us expressed disagreement with the threshold requirement. The Board will not use its discretionary power to vary a certification under Section 142 unless the result is a unit appropriate for bargaining. This is true whether the application is to expand the unit by varying it to add a group of employees (a “variance in”), or to reduce the unit by varying to remove a group of employees (a partial decertification).
In most cases, the requirement that the group remaining be appropriate will necessarily imply that the group seeking to leave will also meet the Board’s definition of appropriateness. That is to say, if it is possible to draw a rational and defensible line around the group remaining, it will almost always be possible to draw a rational and defensible line around the employees in that portion of the bargaining unit for which application has been made. Nevertheless, there are two reasons for requiring that both groups (those remaining and those leaving) meet this requirement.
First, the employees applying for partial decertification are attempting to impose their wish with respect to union representation on other employees in the bargaining unit, even though they are a minority within the unit as a whole. Assuming their application has the requisite 45% support among the employees in the portion of the unit applied for, and meets the other requirements set out in this decision, the Board would hold a representation vote for the employees within the portion of the unit. The outcome of the vote (the wishes of the majority within the portion) would be binding on all employees in the portion, including any in the minority within that group who wish to continue union representation.
Second, the Board’s appropriateness criteria are well established in the jurisprudence, especially the IML decision. There are four criteria for determining whether a group of employees have a sufficient community of interest such that a rational and defensible line can be drawn around them. Applying these criteria provides a clear and consistent method for distinguishing those groups of employees which are entitled to apply for partial decertification from those which are not. (paras. 98 – 101)
34 Assuming, without deciding, that Certain Employees have met the threshold requirement, I must consider other relevant factors as set out in White Spot Ltd.. The other relevant factors are: impact on the employees remaining in the bargaining unit; impact on the collective bargaining relationship; timing or context of the application; whether there is improper interference by the Employer; whether the application is a disguised raid; and whether there is a practical difficulty inherent in decertifying the unit as a whole.
35 Certain Employees assert that it would be impossible to decertify the entire bargaining unit, given the relative numbers. There are only five Captains in a bargaining unit of approximately 375 employees. No other basis for the assertion has been provided.
36 In Vancouver City Savings Credit Union v. B.C.G.E.U., BCLRB No. B19/2004, (2004), 103 C.L.R.B.R. (2d) 298 (B.C. L.R.B.) the Board stated:
Another factor that the Board considers is whether or not there is a realistic possibility of decertifying the unit as a whole:
Another relevant consideration is the practical difficulty inherent in decertifying the unit as a whole. Where there is no practical possibility of decertifying the entire unit, for geographic or other reasons, the Board may be more inclined to allow partial decertification. Conversely, where the application is for decertification of a portion of a single integrated unit, and there appears to be a realistic possibility of decertifying the unit as a whole, this may be a factor which would make the Board less inclined to allow partial decertification. (White Spot, para. 111) (para. 10)
37 All the employees in the bargaining unit work at the same location. There is no evidence that any attempt has been made to canvass any other members of the bargaining unit regarding the possibility of decertification. I do not consider that the evidence establishes decertification of the bargaining unit as a whole to be a practical impossibility. The mere unlikelihood of success based on the relative size of the group seeking to leave compared to the size of the bargaining unit as a whole is not equivalent to impossibility.
38 Partial decertification involves the exercise of the Board’s discretion and represents an exception to the majoritarian principle governing the cancellation of bargaining rights under Section 33 of the Code: MKA Leasing Ltd. v. O.P.E.I.U., Local 387 (Discount Car & Truck Rental), BCLRB No. B217/2003, (2003), 96 C.L.R.B.R. (2d) 192 (B.C. L.R.B.), at paragraph 22.
39 As I am not convinced that decertifying the entire unit is a practical impossibility, I decline to exercise my discretion to grant the application. The application is dismissed.
40 Given the above conclusion, the ballots will not be counted.