The Swiss Chalet Workers: Part 3
The Party's Over
By the fall of 1983, CURRE had established itself as one of the largest unions in the Canadian restaurant industry and, in a quiet kind of way, a respected player in the community of biz-unions. It had a bargaining unit encompassing some 60 Swiss Chalet Restaurants from coast to coast in Canada. In Ontario, it had a province-wide collective agreement covering some 3000 members and a voluntary recognition deal that would feed it a steady stream of new members as Foodcorp Limited expanded its Swiss Chalet restaurant chain. Despite its murky origins, representatives of various CLC affiliates were making overtures to CURRE's General Manager, about a merger and its exec board had taken steps to modify its constitution so a merger could be effected speedily if and when the right suitor came along. The union's General Manager Bill Whyte, an unelected official, took care of CURRE's business as well as a number of his own. In addition to running the union, Whyte also ran an armoured courier business that at one time involved Foodcorp's Industrial Relations Manager and Foodcorp's labour lawyer, a consulting business through which he billed CURRE over $100,000 a year for his services and a benefits administration business operated by his significant other, a former Foodcorp labour relations officer. The future looked good for CURRE and for Foodcorp. Despite a recessionary economic climate, the company was reporting healthy profits and expanding its restaurant operations. As it grew, so did CURRE.
A Raid of Monolithic Proportions
Sometime late in 1983, the UFCW International Union began a raid on CURRE's Ontario bargaining unit. The raid was facilitated by what was then UFCW Region 18 - the Amalgamated Meatcutters side of the UFCW organization. (Following the merger of the Amalgamated Meatcutters and the Retail Clerks Unions which created the UFCW in 1979, the Canadian UFCW was divided into two regions: Region 18, the former Meatcutters organization was headed by Frank Benn and Region 19, formerly the Retail Clerks, was headed by Cliff Evans.) Frank Benn's and Bill Whyte's paths had crossed before. From Whyte's account at OLRB proceedings in 1984, the UFCW initially expressed an interest in CURRE late in 1980. At least two meetings took place between Benn and Whyte to explore the possibility and a formal merger proposal was made by Benn in 1982. While there is nothing all that unusual about a large CLC affiliate raiding an independent union or about a merger opportunity being offered up in advance of a raid, there were a couple of elements about the UFCW's raid on CURRE that were most unusual: Its magnitude and its timing.
By anyone's reckoning, the UFCW's attempt to oust CURRE from its Ontario stronghold was an ambitious undertaking. Organizing 30 non-union restaurants scattered around a large geographic area is difficult - so difficult, in fact, that to date no union has done it successfully. Organizing 30 restaurants, with an incumbent union comfortably in place and an employer that liked it that way, could only make the task more formidable. Notwithstanding the enormity of the task, the UFCW hit the ground running with what had to be a massive and sophisticated campaign - one that required significant resources and that was most certainly sanctioned by the International itself. Even the campaign literature [UFCW News.PDF, UFCW Honest Union.PDF] shows a certain sophistication - an understanding of the workplace issues confronting the workers and an understanding of the industry that is not all that common in organizing leaflets - then or now. Considerable use was made of community-based organizing, particularly in the Toronto area where the Swiss Chalet workforce had a large proportion of recent immigrants. Kevin Corporon (currently President of UFCW Local 1000a) was its coordinator and, from what we can see, he did a stellar job. In February of 1984, the UFCW filed the first of its applications for certification for a group of 9 Ontario Swiss Chalet's. It would go on to apply for a total of 29 restaurants. Twenty-four of those applications would be filed over a three-month period from February to May of 1984. The UFCW's take on the Swiss Chalet campaign is described in this article.
What CURRE did
It may have been mere coincidence or it may have been the raid but in January 1984, CURRE merged with the Hotel Employees and Restaurant Employees Union (HERE), creating the Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees Union, Local 88 or CURRE-HERE, Local 88. CURRE's General Manager Whyte was testing the waters for merger possibilities shortly after coming on board in 1980. According to his OLRB testimony, the lineup of potential suitors included the UFCW, the RWDSU, HERE and the Teamsters. Merger discussions with the Teamsters were down to the fine details in December 1983 when, at the last minute, Whyte put the Teamsters on ice to pursue discussions with a very motivated HERE. Those discussions were facilitated by Thomas (Tommy) Rees, a HERE International Organizer who, in his OLRB testimony, stated that he had been "courting" CURRE since 1981. Rees' courtship efforts paid off. A merger between CURRE and HERE took place on January 17, 1984. Rees was appointed CURRE-HERE Local 88's President. Whyte continued on as an Executive Member and Trustee, Whyte's brother Jim, was a Vice President and Whyte's accountant, the Secretary-Treasurer. A number of "consultant" business agents suddenly appeared on the scene, including Tom Rees Jr., son of CURRE-HERE's newly appointed President.
The validity of this merger would be challenged by the UFCW. CURRE's original constitution contained onerous provisions on the subject of merger and amalgamation. Article 19 of that constitution provided that it could not merge, amalgamate with or transfer its jurisdiction to another trade union without the approval of a resolution passed at a special meeting of members by the unanimous vote of all those who were members of the union at the time. A motion to amend the constitution required acceptance of 75% of members in attendance at a "special meeting". Through a convoluted series of motions passed at a membership meeting which was attended by approximately 18 members in November 1981, Article 19 was amended to include the following provision: However, by unanimous agreement of the executive board of the Union, it is empowered with the authority to merge, amalgamate, or transfer its jurisdiction to another trade union or association without convening a SPECIAL MEETING of its members to consider such merger, amalgamation or transfer of jurisdiction. This add-on essentially gave the CURRE executive board the authority to effect a merger on its own. Since the constitution gave the President the right to appoint executive board members pending an annual election, the exec board had a great deal of control over its composition and the outcome of any exec board vote.
From some of its earlier propaganda, it would appear that CURRE-HERE expected HERE's membership in the CLC to put an end to the UFCW's campaign but there is nothing to suggest that it ever tried to formally invoke the CLC's "no raiding" protocol. For whatever reason, HERE chose not to go there. Some early efforts at counter-organizing or blunting the UFCW's campaign were undertaken. CURRE-HERE bulletins speak glowingly of CURRE's various achievements, of the certain loss of the health and welfare plan and the seniority bonus if CURRE-HERE was decertified and of fifteen "consultant business agents" that the new improved union had taken on to step up service to the membership. Other propaganda drew attention to substandard UFCW contracts and a lack of fairness and democracy within some UFCW locals [Letter from the President.PDF, Yes To CURRE.PDF]. CURRE-HERE claimed that, by virtue of the merger, it had successor rights, which gave it status as an Intervener in the UFCW's applications, meaning that it automatically had standing before the OLRB. In the event that votes were ordered on any of the applications, CURRE-HERE could expect to be on the ballot with the UFCW without having to organize the workers and applying for certification.
What the UFCW alleged
Apart from its scale and apparent success, the timing of the campaign was noteworthy as well. Filed well outside of the open period (the last two months of a collective agreement, during which workers in Ontario were at that time permitted to change unions) the UFCW's applications would, under normal circumstances, be dismissed. The only way around this was for the UFCW to challenge CURRE's status as a trade union and that is exactly what the UFCW did. The Ontario Labour Relations Act prohibits the certification of unions found to have been in receipt of "financial or other support" from an employer. The UFCW alleged that CURRE fit the bill when, in 1979, Foodcorp planted undercover security operatives in a number of unorganized Swiss Chalet's to help persuade the workers to join CURRE. CURRE's certificates, the UFCW claimed, should be revoked and its collective agreement nullified. With no collective agreement in place, the OLRB could certify the UFCW as if its application were for a non-union workplace. In addition, the UFCW challenged the validity of CURRE's merger with HERE, claiming that it did not comply with the terms of CURRE's constitution, and took issue with the validity of the Swiss Chalet Employers' Association (the umbrella Swiss Chalet franchisees' organization that was the "employer" party to the province-wide collective agreement).
The litigation that followed was extensive. CURRE denied knowledge of the allegations concerning the undercover operatives. CURRE-HERE claimed that whatever CURRE may have done, CURRE was no more. The province-wide agreement was now an agreement between the SCEA and CURRE-HERE - a different entity. How could the Board nullify an agreement to which CURRE-HERE was a party based on the actions of some other union? HERE was not on the receiving end of any employer support and so the normal restrictions on applications for certification outside of the open period should apply. CURRE-HERE asked that the applications be dismissed.
What the Labour Relations Board did & didn't do
On September 7, 1984, the OLRB handed down the first of two decisions addressing the various issues raised by the UFCW in support of its applications. The Board found the CURRE-HERE merger was null and void as a result of the CURRE executive board's improper amendment of its constitution.
CURRE continued to represent the workers covered by the master agreement (pending the outcome of the UFCW's charges about employer support) but CURRE-HERE represented no one. The SCEA was a legitimate employers association, however, its failure to abide by the requirements of its constitution left many of the franchisees out of the province-wide master agreement. The end result was that a group of stores were found to be represented by CURRE and bound by the master agreement, another group were found to be represented by CURRE but operating under the now expired 1978-79 agreements and yet another four stores were found not represented by any union. At these locations, two in London and one in Peterborough and one in Ottawa, the UFCW was certified in September 1984.
This early victory put the UFCW in a position it had likely not anticipated. On the one hand, it had obtained, sooner than expected, certification for a small number of restaurants. On the other hand, it was now required to commence negotiations for those restaurants within a 60-day window. With the OLRB hearings not completed, the union would have to commence bargaining with a hostile employer for a small number of stores - a position of considerable disadvantage. Attempts to negotiate collective agreements for these stores appear to have been made, as is evident from a number of bad faith bargaining charges filed by the UFCW in the latter part of 1984. At the Ottawa location, a government-supervised vote on the company's final offer resulted in a vote in favour of a concessionary agreement. No agreements would be concluded for the other 3 stores however, until much later and under many different circumstances.
With the merger null and void or as the Board put it "legally ineffective", and minus a handful of stores as a result of the OLRB's September 1984 ruling, CURRE-HERE set about trying to organize the workers that it believed it had acquired by way of its merger earlier in the year. In addition to its efforts at organizing Swiss Chalet workers, CURRE-HERE attempted a raid of two UFCW Local 1000a bargaining units: A group of restaurant workers that had been part of Cara's Air Terminal Restaurant operation at Toronto Pearson Airport and full and part time bargaining units at Cara's Airport Retail Stores (Foodcorp and Cara merged in the spring of 1984). CURRE-HERE's application for certification for the restaurant workers was dismissed and a vote was order for the retail workers. The full time workers voted in favour of Local 1000a while the part-time retail workers took the "no union" option on the ballot ended up without any union.
In November 1984 when the CURRE master agreement entered its open period, the UFCW did something remarkable yet again. It re-signed the workers at the majority of the stores for which it had applied in the spring and filed another set of applications for certification for them. This unusual move would give the UFCW a second chance at certification in the event that the OLRB dismissed its charges of impropriety against CURRE. In effect, the second set of applications, filed during the open period, would be treated as straightforward displacement applications. Strategically, this would turn out to be a very smart move.
The OLRB hearings into the UFCW's allegations of impropriety between CURRE and Foodcorp commenced in October 1984. The UFCW called among its witnesses two of the seven women who were, in the fall of 1979, employees of Intertec Security and Investigation. The women testified that in October of '79 that year they were assigned to pose as waitresses in various Swiss Chalet Restaurants in Southern Ontario. Their mission was to encourage other workers at these stores to join CURRE and they carried out their mission with speed and efficiency. In November 1979 CURRE was granted automatic certification for all seven of these restaurants. A passage from the OLRB's subsequent decision describes the operatives' methodology:
"She [an operative named Catherine Littlefield} became friendly with a group of waitresses right away, and went out drinking with about seven of them three or four days after she started work. They started "talking union". They were fed up with their working conditions. They went back to Littlefield's hotel room, where she had a book about unions from the public library, to continue the discussion. When that discussion had reached a suitable stage, Littlefield went to the telephone book, took out the note of the name and number she had been given, and pretended to copy that name and telephone number from the telephone book. She then gave the note to one of the waitresses, who the next day had union cards and was signing employees. Littlefield signed and paid a dollar, which she later claimed as an expense."
Officials from Intertec and from Foodcorp denied the allegations and hotly disputed the operatives' testimony. Intertec's President recalled that his firm had been retained by Foodcorp's Industrial Relations Manager, Kevin Boyd, to perform a "health check" - an investigation into theft and staff morale. Describing himself as conversant with labour relations legislation, the security firm's President stated that while he would consider it unusual for a company to hire undercover operatives to assist a union with it's organizing, he did not believe such activity to be unlawful. Sharman Fullerton, assistant to Foodcorp IR Manager Kevin Boyd, testified that the seven stores into which the operatives were placed were selected on a random basis for purposes of the "health check". Boyd would not have done anything underhanded Fullerton claimed, at least not without telling her.
On February 25, 1985, the OLRB decided the matter. The Board accepted for the most part, the evidence of the operatives and found the company in stark violation of the law. The Board patently rejected Fullerton's evidence about the random selection of the seven stores, concluding that given that these were the only "uncertified" stores left in Ontario, it was mathematically impossible that a random selection would have resulted in no unionized locations being selected for the "health check". Nor did Fullerton's admission that she had used a security company to infiltrate worker ranks at HERE's Scarborough location a year later, make a favourable impression on the Board. Although the Board did not draw any particular connection between this and the alleged 1979 operation, it did conclude that in the least "such behavior was not unthinkable to this company".
"There can be no doubt" the Board found, "that the services Boyd sought and obtained from Intertec on Foodcorp's behalf constituted a violation of what was then section 56 and is now section 64 of the Labour Relations Act, which provides:
"No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union."
The Board rejected an argument made by the company to the effect that the workers at these locations were ripe for organizing and would have found their way to CURRE sooner or later in any event. On this score the Board commented:
"We do not accept the argument of the respondents and interveners that the interference had no effect because employees at both the Niagara Falls and the Waterloo store were ripe for organizing and needed no encouragement. Even if it were true of both stores, a focus on the employees' appetite for collective bargaining ignores the significance of the attempt to co-opt that appetite and focus or steer it in a particular direction. It is impossible to say where and when the employees' unprovoked, unguided interest in collective bargaining might have taken them, had there been no interference. It is impossible to assess what the effect of the uninfluenced exercise by the employees at those locations of their right to choose a bargaining agent might have had on the later exercise of that right by employees at both the other then unorganized locations and the locations that had previously been organized. The interference was no less invidious because the employees were not aware that their employer was attempting to steer them in a particular direction. Indeed, it is far more disturbing that it was covert. Apart from any question of the propriety of an employer's openly preferring a trade union, if it is done openly the employees are at least aware of the perspective and bias of the person expressing the opinion, and can assess how that reflects, it at all, on the desirability of that trade union as his or her bargaining agent in dealing with that employer. When the preference is expressed through the mask of someone who appears to share the employee's interest, that opportunity to critically assess the motivation of the speaker is lost. The Labour Relations Act does not countenance such employer subversion; the violation is clear, serious and disturbing."
Having said all of that, however, the Board decided to do absolutely nothing. The evidence, the Board concluded, did not establish that CURRE was aware of the operatives' activities and there was no evidence that it had in any way participated in the company's scheme. That being the case, it would seem unfair the Board reasoned, to deprive it of it's bargaining rights especially when some five years had passed and "so much had happened". There was also the labour-management relationship that had evolved between CURRE and the company. Labour-management relationships are special and must be preserved except where there are compelling reasons to do otherwise. In this case, the Board could see no such compelling reasons. The UFCW's first set of applications were dismissed - to preserve the labour-management relationship and because so much time had passed.
How close they came...
The second set of applications the UFCW filed during the open period became its safety net. Having dismissed the first applications, the OLRB would now process the second applications as it would any displacement applications. Where the UFCW had 55% support of the workers, it would be certified automatically. At stores where its support was below 55%, votes would be ordered. Although the outcome of the OLRB hearings was clearly less than it had hoped for, the UFCW was in a relatively good position. It had uncovered an ugly scheme to deprive workers of their rights. The details of that scheme were now a part of the public record. The fact that it had been able to sign the same group of workers twice - the second time almost a year after the first - was a strong indicator that the union had sustained the support of many of its new members. As for those members, their lives had not been easy. Various unfair labour practices charges filed during 1983 and 1984, indicate a range of harassment on the part of the company of UFCW supporters - from arbitrary changes in days and hours of work, to the introduction of rigid work rules, to dismissal, it was clear that the company was not in neutral on the issue of who its workers' representative should be. Nonetheless, a significant portion of this mostly female service industry workforce toughed it out and backed the union of its choice.
Having come this close to getting the union of their choice, what happened next was bewildering for some and devastating for others. The automatic certificates and votes that many were expecting never materialized. Something else happened instead.
Next Up: A Deal Goes Down - The Beginning of the End
Sources:
Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees Union, Local 88 v. United Food and Commercial Workers Union v. York County Quality Foods Ltd. OLRB 1139-84-R, 1140-84-R, 1153-84-R, September 6, 1984
United Food and Commercial Workers International Union v. L.M.L. Foods Inc. v. Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees, Local 88 and related files, OLRB 2631-83-R, July 4, 1985
United Food and Commercial Workers International Union v. Foodcorp Limited v. Swiss Chalet Employers' Association v. Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees Union, Local 88, OLRB 2410-83-U, June 28, 1985
United Food and Commercial Workers International Union v. Manual DaSilva Foods Ltd., v. Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees Union, Local 88, OLRB 2899-83-U, June 20, 1984
United Food and Commercial Workers International Union v. Swiss Chalet Employers' Association and its member, Rahims Food Limited v. Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees Union, Local 88, OLRB 0526-84-U, September 12, 1984
United Food and Commercial Workers International Union v. Cabral Foods et al, OLRB 2628-83-R, September 12, 1984, February 25, 1985
Letter from the President, undated (a pre-merger letter to CURRE members from CURRE President, April Kennoway)
Restaurant workers want union replaced, Toronto Star, March 2, 1984
Other information from confidential sources with direct knowledge of the events described.