Ontario Labour Relations Board
[1982] OLRB Rep. January 124
2004-81-U Brian Morgan and certain casual employees, Complainant, v. Metropolitan Toronto Civic Employees Union, Local 43 (CUPE), Respondent, v. Corporation of the City of Toronto, Intervener.
BEFORE: M G. Picher, Vice-Chairman.
APPEARANCES: J. McCartan and B. Morgan for the complainant; G. Charney, S. Kavaesi and J. Mele for the respondent; R. Rae for the intervener.
DECISION OF THE BOARD; January 14, 1982
1This is a complaint under section 68 of the Labour Relations Act. The complainant, Mr. Brian Morgan, is a casual employee with the City of Toronto. He alleges that the respondent union, which represents both casual and permanent "outside" employees of the City, violated the duty of fair representation under section 68 of the Act in negotiating a change in the collective agreement affecting the job security of casual employees.
2The evidence establishes that for a number of years the City was allowing the number of permanent positions in the bargaining unit to shrink by attrition, hiring casual employees as replacements. Over the last several years the number of permanent employees has declined from some 2000 to 1500, while there has been a commensurate increase in casual employees. To the extent that casual employees do not receive benefits, there has been an obvious saving to the City. The union, on the other hand, projected that its bargaining unit would be entirely depleted in ten years if the current pattern of attrition continued.
3In the negotiation of the 1981 collective agreement the union advanced a demand to make all casual employees permanent. When that was rejected by the City, the parties resolved on the following provision in a memorandum of settlement on June 5, 1981:
CASUAL EMPLOYEES
Amend Clause I "Bargaining Unit and Definition of Employee" by adding to sub-clause (c) (ii) the following:
"Provided that effective from the first day of the calendar month following ratification of the 1981 Collective Agreement by city Council, any Casual employee hired after said date of ratification shall not be employed for more than two (2) such periods of employment."
Provide a new sub-clause (iii) to read as follows:
"That a Casual employee shall be employed only for the purpose of accommodating seasonal workload requirements or for replacement of employees absent on account of vacation, illness, accident or leave of absence."
4The effect of the article, from the union's viewpoint, is to force the City of make casual employees permanent, since their services, as often experienced employees, would otherwise be lost upon their second layoff. Counsel for the union stresses that previously the casual employees had no job security whatever, it having been established by several boards of arbitration that they could be discharged, laid off and not recalled at will and without recourse to the grievance procedure.
5The evidence also establishes that all employees in the bargaining unit including casual employees, were provided full copies of the memorandum of settlement, including the article affecting casual employees. They all received, with the same material, full notice of the union ratification meeting and vote held at Massey Hall on Sunday, June 14, 1981. There is no evidence to establish that casual employees did not have notice or the fullest opportunity to participate in the discussion and vote in the ratification of the collective agreement. The agreement was ratified by an 87% majority of some 860 employees voting.
6When a union takes steps that impact on the job security of a minority of employees it must show some objective justification for its action (see, B.C. Distiller v Company Limited, [1978] Can. L.R.B.R. 375 at 381). In this case ample justification has been shown. The union faced a continuing erosion of the ranks of permanent employees. The long standing use of casual employees, some of whom were called, laid off and recalled to work regularly for up to seven years, was becoming an increasing problem for the union. Casuals are employees virtually without rights under the collective agreement, save the right to pay union dues and receive the negotiated wage. They enjoy no benefits, seniority or other rights under the agreement. The ascendancy of casual employees was a real and serious threat to the union s interest and to the interest of permanent as well as casual employees who had any aspirations to becoming permanent. In this regard it is significant that some sixty to seventy casual employees have been made permanent since article 22 of the memorandum of agreement came into effect. I am satisfied that the union has established an objective justification for its action.
7I am also satisfied that there has been no violation of the rights of the casual employees in respect of the procedure followed by the union. Casual employees received the same notice of the ratification meeting as the permanent employees, and the same full disclosure, in advance, of the articles to be discussed. They likewise had the opportunity to inquire as to the meaning of article 22, to speak to it and to vote on its acceptance. I am satisfied on the evidence that there has been no conduct by the union or its officers that is arbitrary, discriminatory or in bad faith.
8The complaint must therefore be dismissed.