AH – 23
IN THE MATTER OF AN ARBITRATION
Canadian National Hotels Limited
Canadian Brotherhood of Railway, Transport and General Workers
IN THE MATTER OF THE GRIEVANCE OF Antonio Popyk, Gilles Cousineau, Paul Charlebois, and Edward Finnegan
SOLE ARBITRATOR: Hon. C.A. Cameron, Q.C.
There appeared on behalf of the Company:
N. A. McLean – Labour Relations Assistant, Personnel and Labour Relations Dept.
M. F. Craston – Manager, Chateau Laurier Hotel
B.Turner – labour Relations Supervisor, Hotel Dept.
L.Monfils – Assistant Manager- Personnel, Chateau Laurier Hotel
And on behalf of the Union:
J. R. Greely – General Chairman of the Brotherhood
L. St. Pierre – Local Chairman
G. Danis – President of the Local
A hearing in this matter was held in May, 1965.
The parties to this arbitration entered into a collective agreement (Exhibit 2 ) covering certain employees of the Chateau Laurier Hotel, Ottawa, dated February 22, 1963, and effective for a period of three years from March 1st, 1962. The agreement covered inter alia, the bartenders and waiters in the Jasper Lounge of that hotel. On August 13, 1964, Antonio Popyk, a waiter, and Gilles Cousineau, a bartender, were suspended from work for two days for acts of misconduct alleged to have occured on July 2nd and on July 3rd, 1964. On the same date Paul Charlebois, a bartender, and Edward Finnegan, a waiter, were reprimanded for misconduct alleged to have taken place on or about the same dates. These four men were members of the Brotherhood which on their behalf followed the procedure laid down in Article 15 of the agreement; but the decisions and awards by the Hotel Manager were upheld throughout. The dispute being unresolved resort was had by the Brotherhood to the arbitration procedure found in Article 16 but being unable to agree with the Company on an arbitrator I was appointed as sole arbitrator by the Minister of Labour of Canada to determine the issue, as provided for in Article 16 (3).
The Brotherhood on behalf of the grievors asks that the findings of misconduct made by the Manager bet set aside and conduct record sheets amended accordingly; and that Popyk and Cousineau who were suspended for two days be paid for those days at the rates provided in the agreement.
Mr. Grealy on behalf of the Brotherhood and Mr. McLean on behalf of the Company submitted written briefs outlining their respective cases. Oral evidence on behalf of the Brotherhood was then given by the four grievors and by Mr. St. Pierre, Chairman of the Local, each being cross-examined by Mr. McLean.
I then asked Mr. McLean if he were calling any witnesses. Attached to the brief filed by him and marked as Exhibit 10 thereto are copies of four confidential reports made to the Inspector of Investigations of the Canadian National Railways, made by constables and special agents of the Investigation Branch and dated July 6th, 7th, 10th and July 7, 1964, all unsigned. These of course by themselves are inadmissible in evidence although it is apparent that the charges made against the grievors were based on these reports. Mr. McLean asked leave to introduce in evidence two affidavits presumably taken by one or more of these investigators without calling the affiants personally because, as he said, he did not wish the identity or appearance of the investigators to become known. His motion I refused on the grounds that such affidavits were wholly inadmissible it being apparent that the affiants therein could have been called as witnesses when they would then have been available for cross-examination if so desired. Mr. McLean then asked for leave to have the evidence of one of the affiants who was in the hotel, taken orally, but on the condition that the witness would remain behind the screen out of sight of the grievors and their representatives. This also was refused since in my opinion it would be contrary to the ordinary Rules of Evidence to permit such procedure. There is no valid reason why the grievors should not have the opportunity of seeing their accusers in person of course in this case questions of identification, those of the grievors and the investigators, might well arise. In the result Mr. McLean called no witnesses.
Management’s evidence therefore consisted of certain exhibits and the cross-examination of the Union’s witnesses.
On behalf of the Union it is first submitted that Management has failed to comply with Article 15.6 and Article 15.1 of the grievance procedure in that while the alleged offences are said to have taken place on July 2 or July 3, 1964, the first action by Management was taken on August 13, 1964 when all four employees were called to the Company office and each was shown his Conduct Record Sheet, with the details of the charges – an interval of 41 days.
Article 15.6 and Article 15.1 in part are as follows:
Article 15.6. the time limits set forth in Article 15.1 will apply equally to grievance originating with the Company.
Article 15.1 When an employee believes he has been unjustly dealt with or that any of the provisions of this agreement have not been complied with, his grievance shall be dealt with in the following manner:
Step Number One
The employees having a grievance must present the grievance either orally or in writing within three calendar days or its occurrence (or within three calendar days from the date on which the cause of the grievance was discovered, if the employee or Union, as the case may be, to know that there were grounds for a grievance) to the department head or his representative who shall give his decision to the employee within three calendar days after receipt of the grievance. The employee may present his grievance with or without a representative of the Brotherhood.
I am unable to find any proof that these requirements were met. The matter was raised in Mr. Grealy’s letter to Mr. Chambers, General manager, CNR Hotels, in his letter of August 26, 1964, and the letter on September 2, 1964, replied in part as follows:
As to your criticism of the delay in issuing Conduct Records for employees concerned: Mr. Craston took action on the basis of reports submitted by members of the Special Service Branch who visited the hotel between the dates of July 6 and 10. Such reports take time to process and did not reach our office until July 20. Mr. Craston, being on vacation, was unable to take action until his return. I hope you will appreciate that there are times when it is not feasible for us to take immediate disciplinary action, as desirable as this might be.
It seems to me that the delay on the part of Management in bringing the attention of the grievors to their alleged misconduct was not only contrary to the collective agreement but prejudicial to the case of the grievors. As will be seen later the alleged incidents referred to are of such a nature that they may not be readily recalled after a lapse of 41 days. Moreover, such witnesses of events in a public lounge as may have been available to the grievors had a complaint been made within the time limit provided, may have disappeared or their identity later forgotten. On this ground alone, I think the four grievors are entitled to succeed in the relief claimed as the employees of the Company had knowledge of the alleged misconduct on July 2 or July 3, 1964 and made their reports to the Company between July 6 and July 10 an actually reached the latter’s office on July 20; but no notification was given to the grievors until August 13.
The second point taken by the Union is that on the evidence presented it should be found that the grievors are entitled to succeed, particularly as their evidence is uncontradicted. I shall deal individually with each case.
Re: Gilles Cousineau. The misconduct alleged on the Conduct Report reads:
Failure to obtain payments for drinks serve to two patrons who were drinking at the bar late in the evening of July 3. Patrons left the bar without paying after they were unable to draw the bartender’s attention.
The employee gave evidence to the effect that he had no recollection whatever of this incident; that on that date he was not the bartender but merely a bartender trainee, unauthorized to handle any money or take payments from customers, all this being done by Mr. Cabana who was then the bartender and his supervisor. He says that it was impossible for such an event to have occurred as the bartender was always on hand in the evening. If customers did leave without paying on the pretext that they were going to the lavatory – and he emphatically denied that this occurred on July 3 – he would follow them and report the incident to his supervisor. In the absence of any evidence to the contrary I must accept this witness’ statement. His Conduct Record Sheet should be amended therefore by deleting the misconduct alleged and the suspension noted thereon. He should be paid wages for the two days he was suspended. It may be noted that when charged with the offence this employee neither acknowledged the offence or signed the Conduct Record Sheet.
Re: Edwar Finnegan. The charge here is:
Repeatedly carrying on private conversations with other waiters in full view of guests during the evenings of July 2 and 3.
When called before Management on August 13, 1964, this employee refused to sign the Conduct Record or acknowledge the offence but was reprimanded. He has been employed as a waiter at the Chateau Laurier for 38 years and in the Jasper lounge about 4 years. He was previously charged with only one offence, namely, charging 31c for a coke but he denied the offence and his name was cleared. He does not deny talking to the waiters when there was nothing to do and no customers waiting to be served. Had this case been made within the proper time limit and proof adduced that the conversations between the waiters interfered with their duties or annoyed the customers or were contrary to good practice, I would have been inclined to uphold the suspension. But in the circumstances I must find that the grievor is entitled to succeed and the Conduct Record amended accordingly.
Re: Antonio Popyk. The charges here are as follows:
1. Failure to present cash register slip to patrons in bar when serving one gin collins and one gin and seven-up on the evening of July 3.
2. Causing embarrassment to patrons by waiting for tip on July 3.
3. Counting money in full view of patrons, July 2nd and 3rd.
4. Failure to make any effort to discourage patrons from behaving in objectionable manner during evening of July 3rd.
This employee has been in the Chateau Laurier as a waiter for 38 years and prior to moving to the Jasper Lounge was in the Chateau Grill. Both parties agree that he has been a good waiter during all his 38 years at the Chateau and that previously there had never been any complaints as to his efficiency or conduct. He denies all the charges laid but admits signing the Conduct Record when called "on the carpet" before the Manager on August 13th. While the question therein "does the employee acknowledge the offence?" is answered ‘Yes’ there is no satisfactory evidence as to who made the ‘cross X’ in a box after the word ‘yes’ and is not filled in in the other copies filled. He says that he signed the Record form as he was afraid not to do so and that is understandable in view of the fact that his knowledge of English is not perfect and he had never been "on the carpet" previously.
On one prior occasion in an endeavour to restrain an unruly customer he was so badly injured that he had to be hospitalized. It is his invariable practice to put the cashier’s register slip before the patron whom he serves – and as he has been charged by the bartender for the drinks the customer really owes him the cost of the drinks and therefore it his duty to count the money received to ensure its accuracy. This witness was obviously truthful and as there is no contradiction of his evidence he is entitled to succeed, have his Record amended accordingly and to be paid his wages for the two days he was suspended.
Re: Paul Charlebois. Bartender. The charge is:
Charged Waiter 186, on the evening of July 2, three different prices for service of three consecutive orders for two champagne cocktails. Waiter was charged $1.55, $1.65 and $1.75 respectively.
On August 13 he was found guilty and reprimanded.
In this case the employee signed the Conduct Record Sheet and it is admitted that he took the blue copy thereof to Mr. St. Pierre, the local President and there it is shown that he admitted the offence for which he was reprimanded. While he has been employed by the hotel for some 21 years and he has been a bartender for 6 or 7 years I was not impressed with his evidence. While he was nervous when questioned in the Manager’s office there was no pressure brought on him to admit the charge or to sign the Record. I am not convinced that there was any justification for three different charges for the same drinks on the same evening, notwithstanding his statement that the "wine list" charges presented to the customers were at the time changed quite frequently. In view of his admission that the details of the charges were correct I would have dismissed the grievance had the charge been laid within the time limits above referred to. In the circumstances however the grievor must succeed and the Conduct Record be amended accordingly.
Ottawa, May 27, 1965
CHAS. A. CAMERON