Ontario Labour Relations Board

[1980] OLRB Rep. January 106

0948-79-U David Sharpe, Complainant, v. Service Employees International Union, Local 204, Respondent, v. Royal Ontario Museum, Intervener.

BEFORE: N. B. Satterfield, Vice-Chairman

APPEARANCES: David Sharpe, Peter Maguire and George Ghent for the complainant; Michael Mitchell, Eric Tucker and Joe Jordan for the respondent; J. H. Harvey for the intervener.

DECISION OF THE BOARD; January 4, 1980.

1. The Royal Ontario Museum ("the employer") was represented at the hearings and made a party thereto.

2. This is a complaint alleging that the respondent trade union has contravened section 60 of The Labour Relations Act which imposes a duty of fair representation on trade unions. It provides as follows:

"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 complainant contends that the respondent, through its agents Joe Jordan and Alan Selman, has breached section 60 by acting in an arbitrary and bad faith manner in its representation of the complainant and the grievors named in the complaint. Jordan is business agent of the respondent and Selman is chief steward and was chairman of the respondent's negotiating committee which bargained with the employer on behalf of the complainant and the grievors. The complainant is alleging that the way in which the negotiating committee (and in particular Jordan and Selman) dealt with a proposal for collective bargaining made by part-time employees to protect them from compulsory shift assignments constitutes a breach of section 60 of the Act.

3. More particularly, the complainant contends that he and the grievors were dealt with in an arbitrary and bad faith manner as a result of the following acts, omissions and failures of the respondent and its agents:

(a) The failure of the negotiating committee to include in its bargaining proposals to the employer the protection against compulsory shifts sought by the part-time employees.

(b) Acceptance by the negotiating committee of a proposal from the employer which introduced the compulsory shift assignments from which the part-time employees were seeking protection.

(c) Conduct by Jordan and Selman of ratification meetings in a way which frustrated discussion of the offending agreement language and attempts by the complainant and the grievors to have that language removed from the terms of settlement.

4. The evidence of the complainant's and respondent's witnesses reveal differences and contradictions on some key points. The facts set out herein reflect the Board's assessment of that evidence, the reliability of the witnesses' recollection of events, their demeanor and relative credibility. The respondent has approximately 10,000 members in a diversity of bargaining units. This complaint concerns members of the respondent who are employed in the employer's support services and comprise a bargaining unit of some 56 employees known as the Royal Ontario Museum service group. This complaint is brought on behalf of five of these members, including the complainant and the events leading up to it are as follows.

5. The events giving rise to this complaint begin with the respondent's preparations for negotiating the renewal of a collective agreement with the employer on behalf of the service group and ends with the ratification of a collective agreement to be effective January 1, 1979 to June 30, 1980. In preparation for negotiations, the respondent held two meetings late in 1978, at the first of which a negotiating committee was elected, proposals for amending the collective agreement were put forward to the members and additional proposals obtained from members at the meeting. A written statement of these proposals were brought back to the members at the second meeting and eventually approved by a vote of the members. It was at one of these meetings that the part-time employees advanced a proposal for a condition in the agreement which would protect them from being compelled to take over the shifts of absent full-time employees. While the evidence of the several witnesses who testified is equivocal as to which meeting this occurred, on balance, the Board concludes that it was at the first meeting and, after modifications were made to the original proposal it was approved. The document in evidence before the Board which is purported to be a copy of the proposals approved by the members attending the second meeting, however, does not contain any reference to the protection being sought by the part-time employees.

6. The negotiating committee began bargaining with the employer and by mid-May 1979 was dissatisfied with progress of the negotiations. On May 23rd it held a meeting of the employees at which an interim report was made. By this time the committee had agreed to a proposal from management which is seen by the grievors as compelling part-time security officers to replace absent full-time officers, which of course runs counter to the protection which they were seeking. The information given to the employees at this meeting was of a general nature indicating that some progress was being made on non-monetary issues but not on monetary ones. No information was given on details of any of the resolved issues.

7. Another meeting of the employees was held June 20, 1979 at which a settlement offer from the employer was put before them. They voted to reject the offer on the advice of the negotiating committee, following which a strike vote was taken but the required plurality was not attained. The evidence indicates that this was a rather boisterous and sometimes chaotic meeting, however, a concise, written summary of the settlement offer was given to the employees and explanations and clarification of its contents were given before the vote was taken. The summary included the language, identified as Article 13.02, which required the part-time security officers to substitute for absent, full-time officers. This was the first indication which the part-time employees had of this provision and part-time employees attending the meeting spoke in opposition to the change. Bargaining resumed and on July 10 the parties signed a memorandum of settlement which confirmed all other issues previously agreed between the parties, including Article 13.02 and contained monetary improvements to the prior offer. The terms of settlement contained also the undertaking of the negotiating committee to recommend acceptance of the terms by the employees, which it did and the settlement was ratified by secret ballots taken at meetings held on July 12th for this purpose.

8. Following the June 20th meeting, two of the grievors took up separate petitions in an attempt to influence the respondent to change its position on Article 13.02. The object of one petition was to get the negotiating committee to call another meeting of the employees before July 1st to report on progress of negotiations. This petition was given to Jordan on or about June 26th, but no meeting resulted. The second petition was a demand of the signatories that the negotiating committee replace Article 13.02 by the protections which the part-time employees had originally sought. This petition was presented to Selman on or about July 8th and he in turn gave it to Jordan. There is no evidence that the negotiating committee considered either petition, but, if it did, neither petition attained the results which their sponsors were after.

9. The negotiating committee held two ratification meetings on July 12th in order to accommodate the shift arrangements of the employees. One was held in the morning and the other at night. Both meetings were run on the same format. Employees were given a summary of the changes to the collective agreement which had been agreed by the negotiating parties. A motion was made and seconded that the negotiating committee's recommendation to accept the settlement terms be approved. After this the employees had an opportunity to discuss and clarify terms of the settlement before a vote on the motion was taken. After the morning ballot, the boxes were sealed until the second meeting and all votes were counted after the second ballot was completed. Although these meetings were not without disruption and there is evidence of disagreements between the grievors who were in attendance and the chairman, Selman, at both meetings, they were by design of the negotiating committee more orderly than the June 20th meeting.

10. The complainant contends that the negotiating committee first having not only failed to put forward to the employer the proposal of the part-time employees but having agreed to the employer's proposal which was contradictory of the protection which the part-time employees were seeking, then conducted, either by intent or out of ineptitude, the June 20th and July 12th meetings in such a manner as to frustrate all efforts of the grievors to protect their interests. The complainant alleges that the lack of response to the two petitions was part of the same scheme to frustrate the wishes of the part-time employees, as was the failure of Selman to follow Robert's Rules of Order in his conduct of the July 12th meetings. The complainant claims that the respondent's own constitution and by-laws require it to conduct its meetings in accordance with Robert's Rules. It is these failures and acts of the respondent's agents which the complainant contends constitute acting in an arbitrary and bad faith manner in representing the grievors.

11. The evidence demonstrates that the negotiating committee has executed its responsibility to represent the respondent's members in collective bargaining in a manner consistent with the norms of the organized work force in this province. It has been elected by the respondent's members, obtained a mandate in the form of proposals for changes in terms of the collective agreement for which it was to bargain, reported back to the membership when it needed further instructions and eventually brought back terms which the employees approved in secret ballots. In this context, has the negotiating committee's failure to include in its proposals to the employer the protection sought by the part-time employees, and its acceptance of the employer's contrary proposal taken together with its conduct towards the grievors after the June 20th meeting, resulted in a breach by the respondent of its section 60 duty to fairly represent the grievors in their relationships with the employer? That is the issue the Board must decide.

12. The evidence does not reveal whether the negotiating committee's failure to include the part-time employees' protective language in the bargaining proposals was an act of omission or commission. In either event, the Board has stated consistently that section 60 is not designed to guard against error by oversight, carelessness or even negligence as long as the error itself does not demonstrate a "not caring" attitude or an improper motive indicative of or consistent with arbitrary, discriminatory or bad faith representation. In this case there is no evidence which conveys a not caring attitude on the part of the respondent's agents and none of any improper motive towards the grievors. Thus, whether their proposal was deliberately or accidentally omitted from the final proposals, there is no evidence to support a conclusion that the omission constitutes a breach of section 60.

13. In respect of the committee's acceptance of Article 13.02, the employer's proposal, one of the complainant's witnesses who was a member of the negotiating committee testified that the decision to accept it resulted from the interests of the full-time employees winning out over those of the part-time employees in the committee's evaluation of these competing interests. In doing so, the committee was meeting one of the responsibilities that fall commonly to bargaining agents, particularly in negotiations. The process itself is one of trade-offs between the parties and, for the trade union, it also involves an internal balancing of interests between individuals, minority factions and majority factions in order to arrive at what it believes is the best bargain it can achieve for the collective group. Section 60 is an attempt to protect individuals or sub-groups within the collective group from being abused by the bargaining agent in carrying out its role in the process. The section does not so much protect individuals and sub-groups from being adversely affected by the process as it is an attempt to protect them against arbitrariness, discrimination or bad faith on the part of the bargaining agent when it considers or fails to consider the competing positions of individuals and sub-groups. On the evidence, the Board is satisfied that the negotiating committee did weigh the competing interests of full-time and part-time employees in making its decision to accept Article 13.02 and there is no evidence of the committee members acting in an arbitrary or bad faith manner in doing so.

14. Turning now to the allegation that the handling by Jordan and Selman of the June 20th meeting, their apparent ignoring of the petitions and their conduct of the two meetings on July 12th constituted a breach of the respondent's section 60 duty because it frustrated the grievors' attempts to protect their interests, the Board finds no substance in this allegation. The negotiating committee's mandate for the negotiations came from the members. At the June 20th meeting, it was made clear by the members that the committee was to meet its mandate without the authority to call a strike, but there is no evidence of any other change in it. There was no obligation on the committee to call another membership meeting until it needed further instruction from the members; this is the uncontested evidence of Jordan. Therefore, while the committee's apparent ignoring of the petition for a meeting may appear to the Board or any other outside observer to be politically unwise, it is reasonable to infer from the acceptance by the members of the ultimate settlement, that the committee was acting in the best interests of all employees as a group in so doing. The second petition was delivered while the committee was in the process of negotiating the memorandum of settlement, which scarcely put it in a position where it could have acceded to the demand of the petitioners. To do so might have exposed the committee to a claim from the employer that the committee had failed to bargain in good faith. Insofar as the conduct of the meeting on June 20th and the two meetings on July 12th is concerned, the Board, having read the relevant articles of the respondent's constitution and by-laws as well as those of its parent organization, accepts the respondent's assessment that they do not require the negotiating committee to follow Robert's Rules in conducting the type of meetings in question. Quite apart from that consideration, the evidence indicates to the Board that, within the reality of conventional collective bargaining, the employees in attendance at these meetings were given a reasonable opportunity to obtain clarifications and explanations of the settlement terms and to speak to any issues attached thereto before deciding in secret ballots to accept or reject the proposed settlement.

15. For all these reasons the complaint is dismissed.