[1982] OLRB Rep. October 1571
2733-81-U Isabelle Bastien, Complainant, v. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, and its Local 2098, Respondent, v. Seagram Company Ltd., Intervener
BEFORE: G. Gail Brent, Vice-Chairman.
APPEARANCES: P. J. Ducharme for the complainant; M. White and J. Beneteau for the respondent; Martin Breshamer for the intervener.
The complainant has complained that she was dealt with by the respondent contrary to section 68 of the Act.
At all material times, the complainant was employed by Seagram Company Ltd. in Amherstburg, Ontario. On June 12, 1980 her name appeared on a list of employees to be laid off effective after the week ending June 15, 1980. On June 13, 1980 a notice of vacancy for a mini computer operator job was placed on the employer's bulletin board. The other jobs which were also to become vacant because of the layoff were also posted. On the same date a notice was posted by the employer covering the mini computer job, along with other jobs. That notice indicated the jobs would be reposted and that the employee with most seniority would remain on the job until the new applicant was selected and trained. Accordingly, the complainant remained as engineering clerk and S. Paquette remained as mini computer operator, and neither was laid off.
On June 13, prior to the date that her layoff was to take effect, the complainant applied for the mini computer job and other jobs which had been posted as vacant that day. Other clerical employees who had been affected by the layoff notice also applied for the clerical jobs which were to become vacant.
The complainant testified that she had some concerns about the legitimacy of bidding for these jobs while she was subject to a formal notice of layoff but still retained in the plant, so she went to a union membership meeting and asked Mr. Beneteau, the president of the local, if she could bid on the jobs. She said that Mr. Beneteau answered that as long as the employees were in the plant they could bid. Mr. Beneteau had no memory of the question from the floor; however the minutes for that meeting indicate that the complainant asked, "if we could bid on our jobs that were posted because of a layoff' and Mr. Beneteau answered, "If you are still working in the plant at the time the jobs goes up you can put in for it." Mr. Beneteau said that, when he heard the minutes, he would construe the reference to "our jobs" as clerical jobs generally and not to the very jobs which were being vacated by the layoff. He explained that in the previous collective agreement clerical employees had "super seniority" and were never subject to layoff, and that this would have been the first layoff which would have affected them.
The complainant said that she relied on Mr. Beneteau's response as confirming that she could apply for one of the clerical jobs which was being vacated by the same layoffs which affected her.
While the Board does not consider it necessary to resolve exactly what was meant by the question and the response, I must acknowledge that both are ambiguous and that it would be reasonable for someone to misunderstand both the question and the answer.
The complainant was awarded the mini computer operator job on June 26, 1980.
In October, 1981, a situation arose which caused Ms. Paquette to attend a local union executive committee meeting along with the steward in the bottling area. Any member of the local who believes that he or she has a potential grievance can attend such a meeting to discuss it with the executive. No member of the executive committee was put on notice that Ms. Paquette was going to attend the meeting or that she had any particular problem to discuss.
At that meeting Mr. Beneteau clearly concluded, for the first time, that the collective agreement had been violated in June, 1980 when the complainant had applied for and been awarded Ms. Paquette's mini computer job. It was the conclusion of the executive that the union should ask the employer to correct the situation by returning to the June, 1980 position, and Ms. Paquette was told by Mr. Beneteau that she had "a legitimate grievance". The result of the success of Ms. Paquette's claim would be that the complainant would lose the mini computer job.
The question of the time which had elapsed since June, 1980 was explored at great length with Mr. Beneteau. It is clear that nobody raised the issue of any possible time bar at that meeting. That is most surprising; one would have expected the employer to raise the issue at the first meeting with the union, and the union would have looked quite foolish in Ms. Paquette's eyes after telling her that she had a legitimate grievance. Mr. Beneteau appears to have assumed that the employer's error in interpreting the collective agreement had just come to Ms. Paquette's attention or, as he said, why would she have waited a year and a half to complain.
I do not think that the union's actions thus far can be faulted insofar as section 68 is concerned. It is merely in possession of a complaint concerning what it regarded as a clear violation of the collective agreement. In its role as guardian of the collective agreement, the union has a duty to all of its members to ensure that the agreement is complied with. There are times when this role, and its duty to the membership in general, involves the union in what appears to be activity against the personal interest of a particular employee. Such an appearance should never be mistaken as a breach of the union's duty of representation under section 68 of the Act. If there is any fault to be found at all, it is in Mr. Beneteau's assertion to Ms. Paquette that she had a legitimate grievance before he knew whether the company would press any objection on the ground of timeliness.
On the 19th of October, 1981, there was a regularly scheduled union/management meeting during which the problem concerning Ms. Paquette and the complainant was discussed. It is clear from the evidence that the employer did not indicate that it considered any claim barred by the time limit provisions of the collective agreement. It is from the employer, and the employer alone that one would expect such an objection to originate. It is not reasonable to expect the union to tell the employer what defences it may have to any claim that the collective agreement was violated. It is also clear that the employer agreed with the union that there had been a mistake made in the interpretation of the collective agreement, and that the complainant should not have been awarded the mini computer operator job in June, 1980. The only matter discussed at any length appears to have been how to remedy the situation. The union's position was that it would be best to return to the status quo as of June, 1980 and the employer agreed.
Naturally, that was not the only possible solution to the problem; however, it is a reasonable solution and it was agreed upon by both parties to the collective agreement. It is not the function of this Board to second guess the wisdom of such an agreement. Under the circumstances it cannot be said that the union was motivated by any bad faith toward the grievor or that it was attempting to do any more, or less, than to correct a misinterpretation of the collective agreement in what it believed was the best way possible. There is no doubt from the evidence that it appreciated that the complainant would be upset or might consider the move to be unfair, but that it was willing to take the consequences of its decision.
The complainant's evidence makes it clear that she knew of the union/management meeting of October 19th, that she spoke to Mr. Beneteau before that meeting, and that she was aware that the decision regarding the mini computer job would be made then by the employer. It is also clear that she was made aware of the decision, because she filed a grievance after the notice was placed on the bulletin board acknowledging the return to the June 1980 positions.
The next step in the proceedings causes the Board some concern. The grievor was summoned to a grievance meeting to receive the employer's answer to her grievance. Mr. Bailey, a steward in the bottling department, would normally have accompanied a grievor to the meeting to represent the grievor's and the union's position. Mr. Bailey had been the steward who had pressed for the correction of the situation along with Ms. Paquette. It was felt, apparently by both Mr. Bailey and Mr. Beneteau, that it would be improper for Mr. Bailey to represent the grievor in this case. The Board cannot fault that decision in any way. Mr. Beneteau designated Ms. Lorna Beaudoin, the recording secretary, to go to the meeting because she was a member of the executive and had attended both the union committee meeting and the union/management meeting where the matter had been discussed. Mr. Beneteau said that he believed that Ms. Beaudoin would be the best available person to stand in for Mr. Bailey because she was familiar with the background. That decision appears to be a reasonable one on its face and does not of itself constitute any refusal to represent the complainant. Unfortunately, Ms. Beaudoin, from her own evidence, would not be considered to be a particularly able representative. She had never been at a grievance meeting; she had not talked to the complainant about the grievance; and she was reluctant to go to the meeting. It appears that Ms. Beaudoin did point out to the employer the length of time that had passed; however, the employer denied the grievance.
The complainant knew the grievance had been denied, and she also knew that the position taken by the employer was one which the union considered to be correct and consistent with the collective agreement. It would be a difficult position for any person who had felt wronged to be in, particularly when she understood Mr. Beneteau to have sanctioned her application for the mini computer job in June, 1980.
Following the grievance meeting, the grievor contacted Mr. Mike White, an international representative of the union. He agreed to meet with her, and she explained to him her complaint about Mr. Beneteau and about the way she had been represented. Mr. White arranged a meeting with the complainant, Mr. Beneteau, and some others. At that meeting the union's position was explained to the complainant and Mr. Beneteau said that he had the impression that the complainant was satisfied with the explanation. She denied ever saying she was satisfied.
It should be pointed out that the complainant was specifically informed of her right to proceed further in the grievance procedure and of her rights under the union's constitution. At no time did she pursue these avenues.
On November 2, 1981, when the grievor had a meeting with Mr. Beneteau, it is clear that Mr. Beneteau left that meeting believing that the complainant had accepted the union's interpretation and was only concerned because, in her view, she had not really been returned to the status quo. The Board accepts his evidence that, at that meeting, she gave him two typewritten documents (Exhibits 2A and 2B), and the Board can appreciate that anyone reading the passage:
"I am not contending that the job be awarded to me as an applicant, since I was on layoff and unable to apply for same job.",
would conclude that the complainant was accepting the return to the status quo. The Board can also appreciate that anyone reading the rest of the two documents would have some difficulty ascertaining whether the complainant was satisfied or not. In any event, she took no steps to try to have her grievance proceed through the grievance procedure, and her silence in that regard would tend to reinforce the view that she was satisfied with the answer.
On November 9, 1981, the complainant did write to Mr. Robert White, the union's Canadian director, who forwarded her letter to Mr. M. White for reply. He replied in December (Exhibit 1), setting out at length the reasons for the union's actions and again informing her of her right to go to the membership if she was not satisfied with the union's actions.
The union's duty is set out in section 68 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."
It is clear that this case is one where both the union and the employer acknowledge that there had been an error made by the employer in the interpretation of the collective agreement. It cannot be seriously argued that a union should not point out such an error to an employer when the rectification of the error would result in some degree of personal hardship or loss to an employee. I do not consider that a union is in breach of section 68 when it acts to correct a mistaken interpretation of the collective agreement. The duty of representation in section 68 was not intended to keep a union from acting as guardian of the collective agreement.
The complainant's counsel stressed that Ms. Paquette's complaint should not have been pursued because it was untimely. There is no evidence before me to suggest that the union regarded it as timely. That may have been an error in judgment on the part of the union; however, that would not of itself suggest behaviour which was arbitrary, discriminatory or in bad faith. In any event, the employer never raised the issue of the timeliness of any potential grievance, and it is up to the employer to raise the matter of timeliness. It's failure to do so could have been construed as a waiver of those procedural requirements of the collective agreement.
Once the error was acknoweldged by the employer, it proceeded to reach an agreement with the union concerning the most acceptable way to rectify the situation. It is impossible to fault the union for entering into those discussions and for reaching an agreement satisfactory to both parties to the collective agreement. At that stage of the proceedings, it was not a case of the union arbitrarily choosing the interests of one employee over another, but rather, a case of the union attempting to preserve the integrity of the collective agreement in the interest of the bargaining unit as a whole.
If there is fault to be found, it is in the manner in which the complainant was represented at the grievance meeting. The Board does not fault the decision to have someone other than Mr. Bailey represent the complainant; however, it is clear that Ms. Beaudoin felt inadequate and uncomfortable in her role, and that the complainant felt unrepresented. It is unfortunate that this occurred, but it would not have itself been fatal to the success of the grievance had the grievance progressed through the grievance procedure and thence to arbitration. There is no evidence to suggest that the complainant was ever discouraged from pursuing any of the remedies available to her through the grievance procedure. There is no evidence of any refusal to process a grievance or of any refusal to provide access to the union's internal review procedures.
All things considered, the Board must conclude that there is no evidence from which it can conclude that the union failed in its duty of representation toward the complainant. That is not to say that the complainant's position should not be sympathized with to some extent. It would be impossible not to acknowledge that, even though there has been no violation of the Act, she would naturally feel somewhat confused and perhaps even betrayed by what occurred.
For all the reasons set out herein, the complaint is dismissed.```