[1980] OLRB Rep. March 383
1394-79-U James H. Hopson, Complainant, v. International Union of Operating Engineers, Local 796 & York University Respondents.
BEFORE: R. O. MacDowell, Vice-Chairman.
APPEARANCES: W. A. Harrison, J. Hopson and S. Gibson for the complainant; Maurice A. Green and Jack Sullivan for the respondent; D. J. Mitchell, C. Miller and R. Kori for York University.
DECISION OF THE BOARD; March 17, 1980
- This is an application under section 79 of The Labour Relations Act alleging a breach by the respondent trade union of section 60 of the Act. Section 60 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 grievors, James Hopson, Stewart Gibson and Harry Gee, contend that the trade union breached its section 60 obligation when it settled their grievance rather than taking the matter to arbitration. At the time of the events giving rise to this grievance the grievors were employed as operating engineers at York University. York University has received notice of this proceedings, and appeared at the hearing. Having regard to Rule 54 of the Rules of Practice, the Board directs that York University be added as a party respondent in this matter and that the style of cause be amended accordingly.
For some years York University has scheduled an annual plant shutdown for the purpose of cleaning and repairing the steam distribution system. This shutdown normally occurs on weekend "off hours" in order to minimize the disruption to the University. During the shutdown, the operating engineers are scheduled to work overtime. The University also employs the services of outside subcontractors. In 1979, arrangements were made for the annual shutdown to take place from 7:00 p.m. Friday, May 4th, until 4:00 a.m. Saturday, May 5th. The grievors were scheduled to work on an overtime basis for at least part of that period, and when they refused to so do they were each given a three-day suspension.
Steward Gibson and James Hopson testified that their employer had posted a memo advising them of the scheduled overtime, and that none of the employees was in any doubt that overtime was being required, and was regarded by their employer as compulsory. The previous year a refusal to work overtime had resulted in formal discipline being imposed on the individuals involved. The grievors were aware, therefore, that if they refused to work, and advanced no reason for this refusal, they might be subject to discipline. Nevertheless, after discussing the issue among themselves, the three employees decided not to work. They questioned the University's right to schedule overtime on a compulsory basis and they objected to working the Friday evening/Saturday morning hours, on jobs which in their view (but not their employer's) could have been accomplished during normal working hours. In addition, it would appear that Harry Gee, (who was at that time a shop steward for the respondent union) was dissatisfied with the progress of negotiations for a new collective agreement and was unhappy that he had not been allowed free parking on campus. When their supervisor requested the reason for their refusal to work, the three employees wrote the following memo:
"It is not necessary for us to supply reasons, as this is not, repeat not, an emergency shutdown but a planned shutdown that could be scheduled at normal hours, therefore it is purely voluntary. We have chosen not to volunteer."
On or about May 9, 1979, by registered letter over the signature of R. Kori, superintendent of utilities, each of the grievors was advised that he was being suspended for three working days, without pay, for his failure to report for work. On May 16, 1979, each of the grievors filed a grievance alleging that his suspension was improper and claiming payment for all time lost and a public apology. It was also contended that the suspension letter was "full of innuendo, hearsay and misquotes" and that the suspension was a form of harassment related to the ongoing contract negotiations. Before the Board, however, both Mr. Hopson and Mr. Gibson confirmed that the statements contained in the suspension letter were substantially correct. There was no real dispute about the facts. The only issue raised by the grievance was the propriety of compulsory overtime.
Article 2 of the collective agreement reserves to management, inter alia, the sole and exclusive right to schedule operations; moreover, a "scheduled shutdown of the plant", scheduled overtime, and scheduled weekend working hours are all contemplated by the language of the agreement and attract overtime pay at time and one half the regular rate. However, there is no clause in the collective agreement specifically and explicitly authorizing the employer to schedule overtime on a compulsory basis, nor is there any clause specifically making overtime voluntary.
As has already been pointed out, the overtime issue is not a new one for these parties. It has been the subject of past grievances, and has been raised by the trade union at the bargaining table on several occasions. Part of the problem, as perceived by the union, was that the engineers were required to work side by side with the employees of outside subcontractors who were being paid at a higher rate. This was a source of friction and dissatisfaction, among the operating engineers employed by the University. To meet this concern the trade union had attempted to negotiate premium pay of "double time" for hours worked during the plant shutdown, but the employer refused to make this concession. The employer took the position that the right to schedule overtime was a management right, under the agreement, and it was not prepared to modify the method of payment.
Following the filing of the grievance, the matter was processed through the various stages of the grievance procedure, an arbitration board was constituted, and a date scheduled for the hearing. Throughout this procedure, Harry Gee was the primary link between the grievors and Jack Sullivan — a business agent of the parent international union who becomes involved in the grievance procedure at the third step. This is in accordance with the usual practice of the union. Once the matter proceeds beyond the initial steps of the grievance procedure, it is the local steward and the international representative who have carriage of the proceeding. The grievors themselves are not directly involved.
Following the failure to resolve the grievance in the grievance procedure, the union retained a firm of solicitors to render an opinion on the merits of the grievance, and the chances of success. A meeting was arranged between the grievors and these solicitors so that counsel could be fully briefed with respect to the facts. The union's solicitors advised that, in their view, the case was "iffy", with a perhaps "fifty fifty" chance of success. The issue of compulsory overtime is not free from doubt, especially where, as here, the employer has an overtime permit issued by the Employment Standards Branch of the Ministry of Labour. (See generally, Brown and Beatty, Canadian Labour Arbitration Canada Law Book 1977 at pp. 214-217, 355-360, and authorities cited therein). The parties' past practice and other extrinsic evidence all supported the employer's interpretation of the agreement. In the circumstances the solicitors were reluctant to give an optimistic appraisal of the chances of success.
On October 10, 1979 shortly before the day fixed for the hearing, Sullivan arranged a meeting with representatives of the employer in order to make a final effort to reach a settlement. At this meeting the union was represented by Sullivan, and Ian Gibson —the new shop steward who had replaced Harry Gee. Harry Gee and Stewart Gibson had terminated their employment on or about July 9, 1979. Sullivan hoped that the impending hearing would induce the employer to moderate its position, but initially this was not the case. The employer pressed the union to abandon the grievances of the two individuals who were no longer employed by the University as a condition precedent to resolving the Hop-son grievance. After further discussion of the merits of the case, the employer finally agreed to treat all of the grievors in approximately the same way as the employees in the earlier overtime incident had been treated. The employer undertook to withdraw the suspensions and substitute a written warning. Each of the employees was to be paid for three "eight hour days" — an ordinary work day as specified by Article 21 of the collective agreement. Finally, in order to minimize the likelihood of this problem arising again vis-a-vis Mr. Hopson or the other operating engineers, the employer agreed to pay double time for overtime hours worked during the annual plant shutdown.
The proposed settlement would not fully vindicate the grievors' position. Since the grievors had been working twelve-hour shifts, their three-day suspension had resulted in a loss of thirty-six hours pay. However, these shifts had been arranged by "private agreement" between the employer and the employees, and were not expressly contemplated or authorized by the collective agreement. The union was concerned that even if it won the arbitration, an arbitrator might not have the jurisdiction to order compensation calculated with reference to a "private arrangement" which was not itself authorized by the collective agreement. The union was also concerned that its settlement of the earlier grievances (in which the issues were identical) would prejudice its position. On the other hand, the proposed settlement was consistent with the resolution of these previous grievances and if accepted would provide for the payment of double time for hours worked during the shutdown — a concession which the union had not been able to achieve at the bargaining table and which no arbitrator could have awarded. This feature of the settlement went to the root of what the union perceived to be the basic problem. The union believed that it met the general concerns of both the grievors and the other employees in the bargaining unit, and might well avoid a recurrence of the problem. This, of course, was also the perception of the University and it was for this reason that this aspect of the settlement was acceptable to it.
Sullivan and Gibson decided that in the circumstances, the proposed settlement was as good or better than anything they could hope to achieve at arbitration and that the acceptance of the settlement would avoid the possibility of an outright loss — a possibility of which the union had been warned by its solicitors. On October 10, 1979 Sullivan and Gibson, on behalf of the union, executed a formal settlement of the three grievances in the terms outlined above. It might be noted, parenthetically, that this settlement did not entirely avoid the cost of arbitration, for the union still had to bear the financial cost of its solicitors' opinion as well as a cancellation fee charged the board of arbitration for the late cancellation of the hearing. There is no suggestion that the union settled the case simply to avoid the cost of arbitration.
The grievors were dissatisfied with the settlement; although Mr. Gibson candidly admitted that, in his view, Sullivan had made his best efforts on their behalf. Hopson and Gibson testified that they regarded the grievance as a matter of principle. They were quite prepared to lose. As Mr. Hopson put it, he wanted the issue of compulsory overtime determined by an arbitrator "win, lose or draw". The grievors had made their position clear to the union and no solution short of full vindication or arbitration would have been acceptable to them. It is clear that if the trade union had departed from its usual practice and had involved the employees in the final settlement discussions, they would merely have reiterated a position of which both the employer and trade union were aware, and which the union considered in reaching its final decision to settle the case. The Board also accepts the evidence of Jack Sullivan that the responsibilities of servicing some ninety small units of employees scattered across Ontario create a busy schedule which makes it difficult for him to be involved personally in direct communications with the grievors in every situation. It is for this reason that the union relies upon the local shop steward as the conduit to the grievors. Such reliance is reasonable in the circumstances and in any event the evidence indicates Sullivan was personally involved in investigating and assessing the situation.
Counsel for the grievors contended that the union's conduct in accepting the proposed settlement was motivated by bad faith or ill will towards the grievors. There is no evidence whatsoever to support this contention nor did either of the grievors suggest that this was the case. Following Mr. Gibson's termination of employment Sullivan assisted him with difficulties which he was experiencing with the Unemployment Insurance Commission and represented him before the board of referees. The union also found Mr. Gibson employment at St. Lawrence Starch Company. Similarly, Harry Gee was assisted to obtain employment at Maple Leaf Mills Limited. There is simply no support for the allegation that the decision to settle the grievors' case was discriminatory or taken in bad faith. It remains to be determined, whether the decision was "arbitrary".
In Douglas Aircraft of Canada Limited, [1979] OLRB Rep. Aug. 745, the Board discussed the impact of section 60 on the processing of employee grievances in the following way:
"7. Section 60 requires a trade union to act fairly, inter alia, in the handling of employee grievances; but it does not require a trade union to carry any particular grievance through to arbitration simply because an employee wishes that this be done. A trade union is entitled to consider the merits of the grievance, the likelihood of its success, and the claims or interests of other individuals or groups within the bargaining unit who may be affected by the result of the arbitration. The trade union must give each grievance is honest consideration but so long as the arbitration process involves a significant financial commitment and has ramifications beyond the individual case, a trade union is not only entitled to settle grievances, but in many cases it should do so. And, as has been pointed out in a number of cases, in assessing the merits of a grievance a trade union official — especially an elected one — cannot be expected to exhibit the skills, ability, training and judgment of a lawyer. Union officials are entitled to make honest mistakes.
- Most collective agreements contain a grievance procedure to which resort must be made before a matter can proceed to arbitration. The grievance procedure involves several stages of pre-arbitration discussion in which the parties seek to amicably resolve their differences. As in the ordinary civil litigation process, it may be in the interest of both parties to seek an 'out of court' settlement which is more modest than either might have obtained had it been entirely successful before the adjudicator. A settlement is a compromise solution which avoids the costs and uncertainties of litigation. The generosity of the settlement will depend upon the skills of the negotiating parties, the merits of the claim the cost of the litigation process and the degree of 'downside risk', i.e., the long-term ramifications of an adverse judgment."
Similar sentiments were expressed by the Supreme Court of the United States in Vaca v. Sipes (1967), 386 U.S. 1971— a case involving the American duty of fair representation upon which the Ontario legislation is modelled:
"Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement. In LMRA Section 203(d), 29 USC Section 173(d), Congress declared that 'Final adjustment by a method agreed upon by the parties is.. .the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.' In providing for a grievance and arbitration procedure which gives the union discretion to supervise the grievance machinery and to invoke arbitration, the employer and the union contemplate that each will endeavour in good faith to settle grievances short of arbitration. Through this settlement process, frivolous grievances are ended prior to the most costly and time-consuming step in the grievance procedures. Moreover, both sides are assured that similar complaints will be treated consistently, and major problem areas in the interpretation of the collective bargaining contract can be isolated and perhaps resolved. And finally, the settlement process furthers the interest of the union as a statutory agent and as coauthor of the bargaining agreement in representing the employees in the enforcement of that agreement. See Cox, Rights Under a Labor Agreement, 69 Harv. L. Rev. 601 (1956).
If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined, thus destroying the employer's confidence in the union s authority and returning the individual grievance to the vagaries of independent and unsystematic negotiation. Moreover, under such a rule, a significantly greater number of grievances would proceed to arbitration. This would greatly increase the cost of the grievance machinery and could so overburden the arbitration process as to prevent it from functioning successfully.. .It can well be doubted whether the parties to collective bargaining agreements would long continue to provide for detailed grievance and arbitration procedures of the kind encouraged by LMRA Section 203(d), supra, if their power to settle the majority of grievances short of the costlier and more time-consuming steps was limited by a rule permitting the grievance unilaterally to invoke arbitration. Nor do we see substantial danger to the interest of the individual employee if his statutory agent is given the contractual power honestly and in good faith to settle grievances short of arbitration. For these reasons, we conclude that a union does not breach its duty of fair representation, and thereby open up a suit by the employee for breach of contract, merely because it settled the grievance short of arbitration."
The whole objective of the pre-arbitration discussion is to arrive at an amicable resolution of the matters in dispute which fairly accommodates the interests of all of the parties involved. The very purpose of the procedure is to facilitate compromise. It cannot be said that the existence of a compromise, ipso facto, demonstrates arbitrary conduct upon which a breach of section 60 of The Labour Relations Act can be based. While section 60 requires the union to give honest consideration to the interests of the individual grievors, I do not think that section 60 elevates those interests to such paramount importance that they outweigh all other considerations. No doubt individual employees must be dissatisfied if their position is not fully vindicated, just as they may be dissatisfied if the negotiated collective agreement does not fully meet their own particular concerns. Neither situation, in itself, demonstrates that the trade union's conduct has been arbitrary.
- Can the union's conduct be characterized as arbitrary in the circumstances of this case? Having regard to the totality of the evidence I am satisfied that it cannot. The union did not refuse to process the employees' claims. The grievance was carried through the various stages of the grievance procedure. The merits of the employee's position were carefully considered and an arbitration board was constituted. The union retained solicitors, sought a legal opinion, and made arrangements whereby the employees could brief counsel. The union refused to "trade off" the interests of those employees who were no longer members of the bargaining unit, and continued to press the employer for a solution which would not only resolve the immediate problem but also meet the concerns which the grievors shared with other members of the bargaining unit. The resulting settlement is an eminently reasonable one which contains an important feature which could not have been attained if the union had proceeded to arbitration, and had been entirely successful. I am satisfied that the union carefully weighed the views of the employees, the weaknesses of its own case, and the chances of success at arbitration, against the tangible benefits which could be obtained by accepting the employer's proposed settlement. On the basis of this assessment the union decided that the settlement was preferable, and I can find nothing improper in the course of conduct which it adopted. In the result, this application must be dismissed.