Myrna Wood v. Canadian Red Cross Blood Transfusion Service Employees Association, 1981 CanLII 835

[1981] OLRB Rep. February 137

1762-80-U Myrna Wood, Complainant, v. Canadian Red Cross Blood Transfusion Service Employees Association, Respondent, v. Canadian Red Cross Blood Transfusion Service, Hamilton, Centre, Intervener.

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J.D. Bell and C. A. Ballentine.

APPEARANCES: Myrna Wood and Peter Slee for the complainant; B. P. Bellmore, Doug Simpson and Joanne Hatfield for the respondent; Howard Levitt, Hector Martinez, Barb Bogoch and Donald Bethune for the intervener.

DECISION OF THE BOARD; February 18, 1981

1. This is a complaint under section 79 of The Labour Relations Act alleging that the respondent trade union has failed to represent "temporary" employees of the intervener, Canadian Red Cross Blood Transfusion Service, and in particular the complainant, Myrna Wood, in a manner that is not arbitrary, discriminatory or in bad faith, within the meaning of section 60 of the Act. Section 60 provides:

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.

2. The complainant indicates general dissatisfaction with the level of representation which the respondent has been prepared to afford "temporary" employees of the intervener, but more specifically complains of the respondent's refusal to grieve the complainant's termination of employment. The respondent in fact has declined to consider Ms. Wood's grievance at all, on the ground that, as a "temporary" employee, she is not an employee within the bargaining unit covered by the respondent's collective agreement. For the same reason, the respondent takes the position that the Board is without jurisdiction to proceed further with this complaint.

3. The Board has in prior decisions pointed out that, having regard to the express terms of section 60 of the Act, the section only extends its protection to employees who are "in a bargaining unit" that the trade union is entitled" to represent. See James Mason, [1979] OLRB Rep. Feb. 116 and the cases cited therein, at paragraph 3. The words "entitled to represent employees in a bargaining unit" make it clear that, as one might anticipate, the duty of fair representation in section 60 only arises where an employee's individual avenues of redress have been abridged; that is, where the trade union has under the terms of The Labour Relations Act, become the exclusive bargaining agent for the employee. Under the present Act, this can occur in one of two ways: either through certification by the Board, or through what is commonly referred to as "voluntary recognition".

4. In the present case the respondent was certified in 1976 for an agreed-upon bargaining unit described as follows:

All non-professional employees of The Canadian Red Cross Society (Blood Transfusion Service) (CRCBTS) working at or out of the Toronto Blood Transfusion Centre, the Hamilton Blood Transfusion Centre, the Ottawa Blood Transfusion Centre and the London Blood Transfusion Centre, employed as Clinic Assistants, Clerical Staff, Transport Staff and Laboratory Helpers, save and except Transport Officers, the Office Manager (Toronto), Office Supervisor (Ottawa), Centre Secretary-Stores Accountant (Hamilton) and Office Supervisor (London), persons employed above these ranks, and those employed on a casual, part-time or temporary basis.

As can be seen, while the Board is normally opposed to such designations, in the particular circumstances of that case the Board accepted the agreement of the parties to exclude "temporary" employees. This bargaining-unit description, contained in the Board's certificate, was carried by the parties into their first collective agreement, and into each succeeding collective agreement.

5. In the negotiations for the renewal of the collective agreement which took place in 1978, the respondent trade union expressed its concern that the exclusion of "temporary" employees could be used by the employer, for reasons of economy, to undermine the integrity of the bargaining unit. The respondent therefore tabled a demand that "temporary" employees be included in the bargaining unit. The employer took the position that it was neither required nor prepared to agree to any extension of the bargaining unit beyond that originally certified by the Board. To demonstrate, however, that it was not motivated by the possibility of gaining an economic advantage through the use of temporary employees, the employer offered as a compromise to commit itself to the application of various terms of the collective agreement to temporary employees. The respondent's president, Joanne Hatfield, confirmed in her testimony that the respondent was unsuccessful in its efforts to have the collective agreement apply to the temporary employees, and contended itself to do the best it could. An Article 2.02 was added to the collective agreement to spell out the articles which the employer was undertaking to apply to temporary employees. The list of articles includes virtually all of those items in the collective agreement going to compensation, as well as miscellaneous others, but contains no reference to Article 3 of the agreement, which introduces the requirement of "just cause" for discharge. Even more notable for its absence, however, is any reference to the grievance and arbitration provisions of the agreement. "Seniority" also is omitted, but a provision was agreed upon whereby temporary employees would be given preferential consideration for permanent vacancies over persons applying off the street. The employer was, in addition, authorized to deduct and remit union dues on behalf of any temporary employees voluntarily requesting the employer to do so. Permanent employees, on the other hand, are required by the collective agreement to authorize the deduction of dues. As a result of the accommodations thus reached in these negotiations, Article 2 of the collective agreement appeared, and continues to appear, in the following form:

RECOGNITION

2.01 The Society recognizes the Association as the exclusive bargaining agent of all non-professional employees (support staff) of the Society working at or out of the Toronto Blood Transfusion Centre, the Hamilton Blood Transfusion Centre, the Ottawa Blood Transfusion Centre and the London Blood Transfusion Centre, employed as Clinic Assistants, Clerical Staff, Transport Staff, Laboratory Helpers and Utility Persons, save and except Transport Supervisors, Assistant Transport Supervisors, Centre Secretaries, persons employed above these ranks, and those employed on a casual, part-time or temporary basis.

(a) The parties agree that upon the completion of three (3) continuous months of employment the provisions of the Agreement as specified under the Articles hereunder indicated shall apply to all persons employed on temporary full-time basis in positions included within the bargaining unit, either as authorized leave replacements, seasonal help, or for specific projects where the employee's dura­tion of employment shall terminate upon completion or disconti­nuance of the project:

Article 13 Wages

14 Hours of Work and Overtime

15 Vacations with Pay

16 Statutory Holidays

20 Leave of Absence Without Pay

21 Special Leave

22 Marriage Leave

23 Compassionate Leave

24 Court Duty

25 Handicapped Employees

26 Welfare (except the benefit plans included in par.

26.02)

27 Uniforms

28 Sick Leave

29 Transportation

30 Meal Allowance

31 Lodging

33 Safety and Health and Employment Conditions

36 Position Premiums

37 Employee Performance Review and Employee Files

and, further, such employees shall be entitled to preferential consideration in filling up permanent full-time vacancies within the bargaining unit to which they are qualified, as against outside applicants. All full-time temporary employees shall upon commen­cement of their employment be provided with a letter setting forth the duration of their employment.

(b) If the Association provides the Society with an authorization signed by such temporary full-time employees for the deduction of Asso­ciation dues from their pay, the Society shall make such deduction and remit same to the Association.

6. The complainant, who was, of course, not a party to the above-described negotiations, argues that the legal effect of what the parties agreed to was to confer upon the respondent trade union "voluntary recognition" with respect to temporary employees, and that the complainant is therefore now an employee "in the unit".

7. "Voluntary recognition" acquires its legal status primarily from sections 15(3) and 5(3) of The Labour Relations Act. Section 15(3) in particular reads:

Where an employer and a trade union agree that the employer re­cognizes the trade union as the exclusive bargaining agent of the employees in a defined bargaining unit and the agreement is in writing signed by the parties, the Minister may, upon the request of either party, appoint a conciliation officer to confer with the parties and endeavour to effent a collective agreement.

As can be seen, consistent with the colloquial reference to "voluntary" recognition, the section contemplates that bargaining rights under the Act may be conferred by agreement of the parties, which must be in writing. Such language clearly makes intent an essential ingredient to the conferring of bargaining rights within the meaning of the section. The Board recognizes, however, that this intent need not be explicitly stated; it may, rather, be inferred from the entire document before the Board, and, where an ambiguity exists, from the conduct of the parties as well. See Massicotte and Teamsters Union Local 938, (1980) 1 Can. LRB Rep. 427 (CLRB); application for review dismissed December 15, 1980 (F.C.A.).

8. The complainant here relies upon the fact that the respondent in the 1978 negotiations admittedly set out to bargain on behalf of the temporary employees, and did so. Such "bargaining" however need not be synonymous with the exclusive bargaining authority which can be conferred under the Act, and which is critical to the application of section 60. As a general matter, any individual or group can, if it chooses, attempt to bargain on behalf of another, in an effort to confer some benefit on the other, By doing so, parties do not necessarily bring the provisions of The Labour Relations Act into play. This proposition would be more clearly self-evident if the commitments made by the employer in this case were obtained through the efforts not of the respondent, but by some other individual or a group that was not a "trade union" within the meaning of the Act. The fact that the "agent" in this case was a certified trade union already representing employees of that employer does, of course, create a more ambiguous situation requiring careful scrutiny. The Board must be cautious, however, in casting upon good-faith arrangements arrived at between parties legal consequences which neither party may have intended to arise, lest the Board discourage such accommodations from taking place at all.

9. Unlike the Massicotte case, supra, the present case does not contain an unqualified ''all employee'' recognition clause; nor did the trade union here purport to bind the employees in question to a reduction in their level of compensation, nor to a mandatory check-off of union dues in return for services rendered. The recognition clause in this case, Article 2.01, contains an express exclusion for "temporary employees". While the ensuing language of Article 2.02 does, certainly, raise at least an element of ambiguity, the extrinsic evidence received by the Board in this case is highly instructive. The very issue which the respondent trade union raised in the 1978 negotiations was that temporary employees be added to the bargaining unit. The employer refused to extend the bargaining unit, and the respondent accepted that. Instead, both parties agreed to a compromise, whereby the employer, to protect the integrity of the bargaining unit, agreed to a common application of various terms of the collective agreement. Once engaged in an enumeration of the terms which would apply on a uniform basis, it is obvious that the employer agreed to include in the list a number of relatively inconsequential terms going beyond mere compensation. The omission of the grievance and arbitration procedure from that list, however, reinforces the conclusion that the parties clearly understood that they were not by their actions bringing the temporary employees within the actual coverage of the collective agreement. The Board finds this conclusion to be more consistent with the evidence of the parties and the language used than the alternative conclusion relied upon by the complainant, that is, that the bargaining unit covered by the collective agreement was itself extended to cover temporary employees, so that by the operation of section 37 of The Labour Relations Act, a grievance and arbitration procedure for temporary employees must be implied. Clearly the additional provision for preferential treatment on hiring goes beyond the mere protection, from the respondent's point of view, of the integrity of its existing bargaining unit. In the circumstances of this case, however, the Board does not find it surprising or persuasive that the respondent, having failed to have temporary employees included in the bargaining unit, would be desirous of at least obtaining a commitment that temporary employees be given first chance at vacancies as they arose within the unit. The temporary employees do, after all, work side by side both with the members of the bargaining unit and the officers of the respondent Association.

10. The complaint in the present case therefore comes down to this: the Board is asked to hold that, having accepted in good faith the employer's compromise in 1978, which did not include a right for temporary employees to grieve under the collective agreement, the respondent should have gone back to the employer in 1980 and attempted to grieve the complainant's termination. The Board finds nothing in the evidence before it, or on grounds of labour relations policy, which would compel it to that conclusion. The Board is not without sympathy in regard to any confusion which the instant situation may have created in the mind of the complainant as to her status. In the final analysis, however, the Board must find that the complainant has simply had the benefit of whatever improvements to her contract of employment the respondent was able to obtain for her. That contract, with those additional benefits, has at all times remained enforceable for the complainant in the same way (i.e., in the Courts) that it was before the respondent intervened.

11. Because the complainant was not, however, an employee "in a bargaining unit" at the time of the respondent's refusal to grieve on her behalf, this complaint must be dismissed.