Giuseppe Brundia et al. v. Teamsters Union Local 879, and Teamsters Union Local 938

[1982] OLRB Rep. May 766

1347-81-U; 1356-81U Giuseppe Brundia, Donald Pye, Russel Spotton, Lawrence Ozzard, Gruliano Mior, Martin Parent, Robert Morris, Ilias Kottaras, George Haralampous, Chris Silver, James Millar, Robert Shorten and Leslie McBean, Complainants, v. Teamsters Union Local 879, and Teamsters Union Local 938, Respondents, v. Softley Cartage Limited and Donline Haulage Inc., Interveners; Softley Cartage Ltd., or Donline Haulage Employees, Complainants, v. Teamsters Union Local #938 and #879 (Donline Haulage and Softley Cartage Ltd., employers), Respondents

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members H. Kobryn and F. W. Murray.

APPEARANCES: Howard Levitt, Chris Silver and Ilias Kottaras for the complainants; Ken Petryshen, Charles Thibault and Joe Contardi for the respondents,' Robert Howard and Brad Grant for Softley Cartage Limited; no one for Donline Haulage Inc.

DECISION OF THE BOARD; May 26, 1982

1. This is a complaint under section 89 of the Labour Relations Act, alleging that the respondent trade unions have dealt with the complainants contrary to the provisions of section 68 of the Act. Section 68 reads:

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 complaint arises out of the acquisition in November 1980 of the remaining assets of Donline Haulage Inc. (hereinafter referred to as "Donline") by Softley Cartage Limited (hereinafter referred to as "Softley"), and the resultant determination of seniority rights of the employees of each company with respect to those of the other. The Teamsters Union in a broad sense holds the bargaining rights for employees of both companies, but it is Teamster practice to have bargaining rights in the hands of a particular Local, depending upon the geographic location of the company's terminal. Donline's terminal was in Mississauga, and accordingly, its employees were represented by the "Toronto" Local, 938. Softley, on the other hand, operated from Milton, and its employees were represented by the "Hamilton" Local, 879. Both companies were in the aggregate-hauling business.

3. The evidence establishes that the business of Donline had been on the decline for some time. While this type of business always drops off dramatically in the winter months, Donline for the first time in 1980 underwent substantial layoffs in the summer-time. This was evident to the respondent Local 938, who receives a monthly dues check-off from the employers it has contracts with, and in particular to the business agent Jim White. Mr. White first heard in November 1980 of the intentions of Donline to sell out to Softley. Mr. white was anxious to have a meeting with the companies and Local 879, representing Softley employees, to discuss arrangements for the transfer of Donline employees to Softley. It was his intention to achieve an agreement whereby the seniority of employees between the two companies would be fully "dovetailed", i.e., every employee would be placed on a merged seniority list according to the full seniority he had accumulate with either company.

4. The meeting took place on December 9th. Donline employees had already received from their former employer the following letter:

As of November 21, 1980 management has agreed to transfer the operation of the business to Softley Cartage Limited.

Softley Cargae officially took over the operation on November 17, 1980.

This firm for the time being will still be operating under the name of Donline Transport Inc.

We will release all vacation pays up to November 16, 1980 on Wednesday November 26, 1980. All vacation pays after this date will be paid by Softley Cartage Ltd.

The payroll and benefits will be transferred to Softley as of November 17, 1980 according to the Union Agreement.

The management sincerely thanks each one of you for the tremendous efforts and dedication you have shown during your employment with this firm.

We are sure you will continue to work with the same enthusiasm with the new employer and we will strongly support you.

Donline employees continued to work out of the Mississauga yard, and were paid by Softley cheques. They were being dispatched by the Softley dispatcher, sometimes for Softley customers, and their tires were being changed by the Softley tireman. In mid-November, Donline had so me 10 to 15 drivers working, and by early December, that was down to 5 or 6. As drivers were laid off, they received separation notices bearing the name "Softley Cartage Limited".

5. The meeting of December 9th was attended by representatives of both Locals, and of Softley. Jim White was present for Local 938, Joe Contardi and Len Schultz for 879. Both Locals at this point thought that the two companies were being merged, and had considered on their own the provisions in both collective agreements which might have a bearing. Article 9 of the Donline agreement deals with "Mergers", and provides:

ARTICLE 9

MERGERS

Section 9.1

If the Company acquired by way of purchase or in any other manner, the business or undertaking of any other employer and such operations are merged the seniority of all active employees will be dovetailed including those employees who are off work due to sickness or injury. If the Company acquiring the business or undertaking does not require all the employees after the merger, lay off will commence at the bottom of the dovetailed active seniority list and such employees will remain on the active seniority list for purpose of recall.

Section 9.2

In the event any of the Companies affected by the merger have laid off employees prior to the merger, the seniority of those employees on lay off will be dovetailed. Such employees will be on the inactive seniority list. If the merged Company subsequently requires additional employees preference will be given, subject to the recall provisions of Article 8, first to those laid off employees on the active seniority list, then to those employees on the inactive seniority list in accordance with their seniority and qualifications. If and when an employee who is on the inactive seniority list is recalled and reports for work in accordance with this Article, his original seniority will be dovetailed with the seniority of the active employees.

Section 9.3

In the event that the preceding paragraphs in the opinion of either party fail to provide adequate protection of seniority rights at the time of purchase, and merger, then the seniority of the employee in the combined operations shall be determined by agreement between the successor Company and the Local Union or Unions concerned. If mutual agreement is not reached, the conditions outlined in Article 10.1 and 10.2 will apply.

This clause only bound Donline, however, in the event that it purchased a business, or expanded, and the Local Unions correctly concluded that the clause had no application to the present situation. That conclusion is not now being contested by counsel for the complainants. The respective legal position of the two groups of employees, therefore, fell to be determined by the seniority clause in the purchasing company's (i.e., Softley's) collective agreement. The evidence is that seniority rights in the trucking industry are terminal-wide only. This means that no employee transferred from one terminal to another (even within the company) has the right to come on the terminal seniority list over an employee already at the terminal. Rather, the transferring employee is placed at the bottom of the seniority list. Consistent with this practice, Article 9.03 of the Softley agreement reads:

Seniority among the drivers in the driving force shall be branch wide at Milton, Ontario.

It is clear, therefore, that from a legal point of view, no former employee of Donline transferring from the Mississauga operation to the Softley operation at Milton would have the right to be "dovetailed" (or placed ahead of any existing Softley employee) on the Softley seniority list. This was an extremely important protection from the perspective of Softley employees, because Softley was a newer company than Donline. Virtually all of the Donline employees had longer service with Donline than Softley employees had with Softley, and there were more Donline employees on their own seniority list than Softley had trucks. In these particular circumstances, a "dovetailing" of the seniority lists would have meant an immediate layoff of virtually all of the Softley employees, and this consequence was fully apprehended from the start by all parties, including the complainants.

6. Notwithstanding the lack of any legal support for the concept of "dovetailing" under the collective agreements, both Charles Thibault, the President of Local 938, and Joe Contardi, the President of Local 879, testified that it was their practice when two companies merged to try to recognize the seniority of employees at both companies in a manner that was fair and equitable. This meant that employees from the disappearing company would be afforded the opportunity to dovetail into the purchaser's seniority list to the extent that actual jobs moved across. That is, the transferring employees would be permitted to follow their jobs, but not to take jobs away from existing employees of the purchaser. Mr. Thibault and Mr. Contardi were both aware, however, of situations where one company simply acquired the licences of another failing company, and no actual work moved across. In such cases, no dovetailing was justified or permitted.

7. The company was represented at the December 9th meeting by Mr. Grant, one of its owners, and Mr. Howard, the company's solicitor. Mr. Contardi of Local 879 asked the company what was happening. He said his members (the Softley employees) had heard about Donline employees being paid on Softley cheques, and were becoming concerned about their own rights. The company responded that it was only managing the Donline operation until it could be phased out and its assets sold. The company indicated that it felt no dovetailing of employees was warranted, and asked what the position of the Unions would be if the two companies merged. Mr. Contardi responded that the Union would be looking at dovetailing, and then began to question the company further about how much work would actually be going over. The company explained that only two or three of Donline's customer contracts were continuing, and that the rest had been eliminated because of lack of revenue. The company estimated that there would be work for three to five men. The Unions then asked for a recess in order to discuss the matter amongst themselves. Mr. Contardi expressed his concern to Mr. White what the number of jobs not be over-estimated, as he had to justify the number being dovetailed to his own men. Mr. Contardi stated that, based on what the company had said, he could buy the number "five". Mr. White said that that sounded fair. The Unions then reported their consensus to the company, and the company said it would think about it.

8. Mr. White reported back to Mr. Thibault, the President of Local 938, the results of the meeting. Mr. Thibault had known for some time that Donline was in financial trouble, because it was continually late with its dues remissions, notwithstanding the hefty penalty clause in the collective agreement. But he was aware that there were 10 to 15 members at work for Donline during the month of November, and he had difficulty understanding how the number "five" was arrived at. He accordingly directed White to set up another meeting.

9. The second meeting took place on December 15th. Mr. Grant and Mr. Howard again attended for the company, Mr. Thibault, Mr. White and Mr. Contardi for the Unions. Mr. Schultz was tied up elsewhere in negotiations. Again the company outlined its plans for phasing out the Donline operation, this time with Mr. Thibault asking the question. After listening to the company's explanation of how many contracts remained, and how many Donline trucks were being scrapped or sold, he too was prepared to accept the figure of "five" for dovetailing purposes. The company then asked for a fuller explanation what the Union had in mind by 'dovetailing". Mr. Contardi explained that each employee would go on the seniority list according to his natural seniority with either company. He added that some employees would be unhappy, but that was the way it was. The company was concerned that the five Donline employees would go to the top of the Softley seniority list, as, Mr. Contardi acknowledged, was he. The remaining Donline employees had by this time been temporarily laid off, and only 5 or 6 drivers were still working at Softley. The immediate effect of even the limited dovetailing being discussed for the combined operation would thus have been to put all of the remaining Softley employees temporarily on the street. The company asked whether the seniority list could be dovetailed by alternating, i.e., one Softley employee and then one Donline employee, etc. Mr. Contardi replied that that was not the way it was done. The company then asked for a recess.

10. When the meeting resumed, the company asked the Unions what their position would be if Softley put the Donline operation into a shelf company called "Rideau Cartage". Mr. Thibault replied that the Donline collective agreement would have to follow the work. It should be noted here that the Donline agreement was substantially better for employees than the Softley agreement in a number of respects, including rates of pay. The company said that it would consider its options and let the Union know its decision at a later date.

11. In early January the Teamster Locals were contacted by the company and told that it had elected to go "the Rideau route". It advised that the Donline operation would be carried on through Rideau Cartage Limited, and that all of the terms and conditions of the Donline collective agreement would be honoured. It advanced the hope that Rideau would gradually build itself up to the point where even more employees would be needed than actually remained on the Donline recall list, and promised that all Donline employees would be recalled as needed in strict accordance with that list. While both Mr. Thibault and Mr. Contardi acknowledged before the Board that this provided no assurance that work would actually be built up in Rideau, they felt that this undertaking by the company was the best that the Donline employees could hope for in a bad situation. It offered at least a prospect of recall for all of them.

12. It did not, however, work out that way. Only 3 to 5 of the former Donline employees were recalled into Rideau from January through March, according to the dues remissions which Mr. Contardi looked at, 7 in April, 9 in May and 14 in August. The latter figure appears to be a result of a telephone call from Mr. Grant of Softley to Mr. Schultz, the business agent, requesting additional men for the vacation period. Schultz conferred with Contardi, and then suggested to Mr. Grant that the Donline employees be recalled first. The company apparently did this, through Rideau. Finally, in late September of 1981, when the old Donline's licence expired, all of the former Donline employees were permanently laid off. To that point, the company at all times had continued to honour the Donline collective agreement when employing former Donline employees, and all of the employees recalled by Rideau, although performing the same work as Softley men, were paid at the higher rate. The company at one point in the spring had asked Mr. Schultz whether he would consider negotiating a single collective agreement when the two collective agreements expired in 1982. Mr. Schultz simply replied that the would be retiring before then, and that the company would have to discuss that with the new man. There was no indication from the company that it was the matter of seniority rights which it was looking to re-negotiate, and any attempt to do so would, of course, have required the same balancing of employee interests which took place in December 1980.

13. When Rideau first began operating in January of 1981, it used a terminal taken over from Motorways Ltd. in Stoney Creek. Before long, however, the Donline trucks were being operated out of the Milton yard, alongside Softley trucks, and on most if not all of the Softley jobs. The complainants throughout have placed great emphasis on this "intermingling" of the two groups of employees. Their evidence, however, clearly establishes only that Donline employees and trucks were being used to perform work on Softley contracts, and not the reverse. Mr. Kotteras, for example, testified that he believed he worked on every job that Softley had. The only clear reference to Softley drivers performing work for a customer of Donline was in relation to KVN Contractors, but the evidence of Mr. Schultz establishes the KVN had always been a customer of Softley Cartage as well. For the reasons given earlier, this factual issue is irrelevant to the seniority rights of the complainants, from a legal point of view, but the Board would note that if Donline work was in fact being taken over by Softley drivers in a manner beyond that articulated by the complainants in their evidence, there is no allegation that the officials of either Local were made aware of it. While Mr. Thibault, Mr. White and Mr. Schultz all indicated that the company had sole discretion as to what, if any, work was to go to Rideau, Mr. Contardi appeared to express a more credible view of the "understanding" with the company when he surmised in his evidence that "if we had a clear-cut case of Donline work going to Softely, we could have got into an argument [with the company]". As indicated, however, no such cases were articulated before the Board.

14. In April, the Donline employees finally called a meeting amongst themselves, and attempted to file a grievance over the fact that the "junior" men were working. The Union steward, Bill Woods, was at the meeting, and as one of the most senior of the former Donline employees, was one of the few employees there who was actually working (for Rideau). Mr. Woods reluctantly agreed to put in the grievance, but would not sign it. He was quoted by more than one of tie complainants as saying that he was still working, and "didn't want to make waves". The 8rievance began with the words: "As employees of Softley... ", and was returned by Mr. Woods a few days later. He said that the Company refused to accept it, because the men were not employees of Softley. The evidence of Mr. Schultz is that he met with the company over the grievance, and that the company did in fact refuse to accept it. Mr. Schultz then went to Mr. Contardi for guidance, and Mr. Contardi suggested that it be re-filed in all of the company names (i.e., Donline, Rideau and Softley) to make sure that the company had to accept it. Mr. Schultz testified that he told Mr. Woods to pass that on to the complainants. The complainants testified that they were told by Woods only that the grievance was refused because they were not Softley employees. Mr. Woods himself failed to testify.

15. There was also a statement attributed to Mr. Grant, at a heated meeting with Softley employees concerned about losing their own jobs, to the effect that the company had to take the Donline employees on, but that they would make it so difficult for them, they wouldn't last. There is no evidence, however, that this statement (even assuming that the respondents could do anything a bout it) was communicated by any of the complainants to a responsible trade union official. It appears that Softley was in fact hiring new employees at some point while Donline employees remained on layoff. The complainants acknowledge, however, that the respondents were unaware that this was happening, because Softley was deliberately letting these people go just before they completed their probationary period and had to join the Union. The Board accepts that from the beginning of Rideau's operation, it looked to the respondents like the company was essentially living up to its undertaking. Recall to Rideau was undoubtedly slow, and the work irregular, but in the winter of 1981, essentially the same conditions pertained at Softley. Mr. Schultz did on occasion talk to former Donline employees working at the Milton terminal in March and April. He simply confirmed from them that recalls to Rideau were proceeding in order of seniority, and that they were being paid at the Donline rate. Mr. Schultz was aware that Softley was using brokers from time to time, but this was when all of Softley's equipment was already engaged. The situation with Donline/ Rideau, who were in the process of selling off obsolete equipment from the start, was different in Mr. Schultz's view from an active Teamster employer divesting itself of its equipment for the sole purpose of converting to brokers. The latter situation, he confirmed, would call for a "heart to heart" talk with the employer, but not the situation which Softley was in with Donline. Mr. Schultz also testified that he did not consider it unusual to have two companies operating out of the same terminal, but with separate seniority boards. He testified that the Grants had on occasion done just that with another of their related companies, John Grant Haulage, albeit on a more temporary basis.

l6. Reviewing the evidence as a whole, it becomes apparent that the respondent trade unions, and in particular Local 938 who initially held the responsibility for the complainants, concluded in December that little could be done for the former employees of Donline. Their years of service, their seniority rights, and their established relationship with management all rested with Donline, and Donline was gone. Softley owed nothing to these employees on either a legal or loyalty basis, and in light of their obligations to the drivers who had built up their own company, was clearly not disposed to doing anything which would prejudice the rights of those existing employees, or its relationship with them. It had not taken the Softley employees long to recognize the threat which the purchase of Donline posed to them, and the pressure on their employer began at once. When Softley decided (unfortunately, from its point of view, after adding some of the Donline employees to the Softley payroll) to avoid the problem with its own drivers by setting up Rideau, the last lever that the respondents (Local 938 in particular) had for applying moral suasion was gone. The two corporations and respective "employers" remained legally identifiable as separate entities. There was in fact no "merger 'in the sense on which the respondents had based dovetailing in other situations. Softlcy continued to apply the higher collective agreement to all former Donline employees to the extent they were employed, and this is the most that an application to the Labour Board under section 1(4) ("related employer") or even 63 ("sale of a business") could achieve. Contrary to the submission of the complainants, there is nothing in either the language or spirit of section 63 which would cause the Board to alter the language in a collective agreement to affect the seniority rights of one group of employees over another. Cf. Bermay Corporation, [1980] OLRB Rep. Feb. 166; and consequent arbitration in Bermay Corporation, 1981 CanLII 4388 (ON LA), 30 LAC (2d) 402. Section 63 is concerned with the preservation of bargaining rights; it simply permits the Board, to that end, to declare which if any existing collective agreements still apply, or to amend the "definition of the bargaining unit" in those collective agreements where necessary to avoid an overlap. Here there was nothing in the terms of either of the collective agreements which would have enhanced the seniority claims of the Donline employees at Softley. Rather, what language was relevant clearly supported the Softley employees on the seniority issue.

17. Reviewing the respondents' conduct in the context of section 68 of the Act, the Board has noted in Dufferin Aggregates, [1981] OLRB Rep. Jan. 35:

18. There is nothing inherently unlawful in a union making a decision that favours one group of employees over another.

Indeed, as that decision notes, unions are required to do that all the time. This becomes particularly evident where, as here, one company goes out of business and another company acquires its assets, and the interests of the respective groups of employees are pitted squarely against each other. In the present case, the unions in fact had very little decision to make. Local 938 did its best to negotiate an equitable amount of protection for the Donline people, and Local 879, to its credit, was prepared to take the political heat in justifying that arrangement to its own members. But no Softley employee could have its rights altered under the collective agreement without the company's consent, and the company was not prepared to let that happen. There was simply no viable legal avenue available for either respondent to pursue.

18. The complainants argue that their bargaining agent should have taken the "neutral" step of putting the matter before some third party for determination anyway. But that would not have been a "neutral" step. The Teamsters were the bargaining agents for the Softley employees as well, and the company was taking the position that no basis existed for the dovetailing of Donline employees. The only way that the issue could come before a third party was for the trade unions to advocate a position that was contrary to the company's. This would mean taking a position which favoured Donline employees over Softley employees. Given the patent legal justification for the position of the Softley employees under their contract, and the unlikelihood therefore of any success for Donline employees to come out of such a confrontation, the respondents were not prepared to pursue such a course.

19. A similar situation arises for a trade union every time it is faced with a grievance over, e.g., job posling. In William Almas, Board File No. 1059-80-U, released November 19, 1980, the Hospital employer had awarded a promotion to Mr. Almas, and a more senior man grieved. On the facts, the Union supported the senior man's position, and persuaded the Hospital to change its award. Mr. Almas then grieved. The Union, of course, declined to pursue Mr. Almas' grievance, and Mr. Almas came to the Labour Board. He argued that the union was not entitled to "settle" the other man's grievance; that the only "fair" thing to do was to let a third party decide. The Board noted:

20. .. . By settling rather than proceeding to arbitration with either his or Mr. Barker's grievance, the complainant argues, the respondent prevented the matter in dispute from being determined once and for all.

21. The misconception underlying this argument is the assumption that the final determination of an issue can only be achieved by third-party arbitration. But while this might be a politically "safer" approach for a union to adopt in certain circumstances, a union owes it to its members to turn its mind to the merits of a particular grievance, as it did here, and to attempt to achieve a "final determination" by way of a proper and freely-negotiated settlement with the employer. Only in this way can the greater proportion of disputes under a collective agreement be resolved short of the more expensive and time-consuming process of arbitration, and credibility with the employer be maintained. As was pointed out in the seminal case of Vaca v. Sipes, (1967) 386 U.S. 1971, the model for the statutory provision now contained in our own Act: "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".

22. Here, as with seniority grievances generally, the dispute included the competing interests of two employees in the bargaining unit. Obviously the respondent could not support both. The grieving employee, for the reasons cited above, has no absolute right to have the matter proceed to arbitration for determination (even though a settlement may be contrary to his interest: see Nick Bachiu, [1975] OLRB Rep. Dec. 919, at paragraph 12) and clearly the employee who is competing in interest has no right to veto a settlement either. If it were otherwise, a trade union would be likely to have the settlement of a seniority grievance vetoed by one or the other of the competing employees no matter what it proposed. The duty of fair representation in this situation requires the respondent to honestly turn its mind to the provisions of the collective agreement and the evidence available, and to press for the resolution which it objectively feels is in accordance with the collective agreement (see e.g., the E. B. Eddy case, [1977] OLRB Rep. Nov. 762, at paragraph 19). This the respondent did. See also Rowntree-Maclntosh, [1977] OLRB Rep. April 211, for a case similar to the present.

23. In Dufferin Aggregates, supra, the Board further defined the limitations on its own role in reviewing the decisions of a trade union when faced with conflicting interest among its members:

24. The Board must obviously use great care in assessing what is and what is not objective justification for a union's decision, particularly a decision relating to choices as to the allocation of goods in condition of scarcity. In my view it would be clearly inappropriate for the Board to substitute its own view for the union's by simply asking itself whether it would have acted differently. To do that is to substitute one subjective standard for another, and not to consider the issue of objective justification. The appropriate standard to be adopted by this Board is not unlike that expressed by the Court in the judicial review of the decisions of arbitrators: the Board should ask not whether the decision is right or wrong or whether it agrees with it rather it should ask whether it is a decision that could reasonably be made in all of the circumstances, even if the Board might itself be inclined to disagree with it. Used in this sense "reasonable" must mean by the rational application of relevant factors, after considering and balancing all legitimate interests and without regard to extraneous factors.

25. Given the countervailing interests of the Softley employees, the extent to which the Softley employees were already insisting on the protection of those interests, the resistance of the company to even the limited compromising of those rights which the respondents had themselves proposed, and, most importantly, the absolute lack of any viable legal ground to support the claims of the complainants, it is impossible for the Board to conclude that the respondents did not meet the standard articulated above in passively accepting the company's decision to operate Donline on a separate seniority basis through Rideau. As the Board pointed out in Dufferin Aggregates, seniority rights expressly set forthin the collective agreement are in the nature of "vested" rights, and in the context of the duty of fair representation, are not lightly interfered with. In the present case, it was the Softley employees who enjoyed these contractual rights, and it must be borne in mind that the respondents were required to meet the demands of section 68 with respect to that group of employees as well. The Board does not find the respondents' decision not to "take on" the company, in all the circumstances, to constitute a violation of section 68 of the Act.

26. The witnesses who testified for the respondent lacked neither experience nor intelligence, and the Board considers it highly unlikely that they did not perceive that the Rideau arrangement offered little or no protection to the former Donline employees, particularly once the remaining three Donline contracts had expired. Rather, they appear to have concluded that the fate of the former Donline employees did in fact lie in the hands of the company, and that they had nothing more promising to rely upon than the good faith of the company itself. This was a conclusion which the respondents arrived at after a consideration of the relevant factors, and, as indicated, is not one which could objectively be characterized as unreasonable. As the parties moved farther away from the time of the sale, the respondents may have had some cause on the information presented to them to question whether such good faith was being demonstrated towards the Donline employees. But they still had no legal ground on which to mount a challenge, and as less and less of the ongoing work became attributable to exclusively Donline Customers, the original basis for compromising the legal

rights of Softley employees was diminished. The Board cannot, in the circumstances, find the respondents' continued acceptance of the status quo to be in violation of section 68.

23. Neither does the Board find that it was essential in this case for the respondents to have asked the employees involved for direction, as counsel for the complainants argues, prior to initially formulating their own position. To be a fair process, both groups of employees would have had to have been consulted, and it was not a difficult feat, in the circumstances, to surmise what the wishes of the respective groups would have been. Given the inevitable conflict, thi5~ was the kind of decision that the respondents ultimately had to take the responsibility for themselves. Once having ascertained, on the relevant factors, the respective rights of the two groups, it was up to the respondents whether to seek consultation or not. The Board is satisfied that in failing to consult in this case, the respondents did not deprive themselves of access to any relevant factors which may have affected their determination. For the same reasons, the Board does not find the suggestion that the result ought to have been "ratified" by the employees to be tenable either. The respondents in that event would have been faced with the same dilemma of competing interests, and, as noted in the Dufferin Aggregates case, supra, would not have been entitled to simply rely on "majority rule" to justify its action. This case must be carefully distinguished from the Clifford Renaud decision, [1976] OLRB Rep. Jan. 9b7, where the Board simply noted that if the trade union was relying upon the ratification of its action at an employee meeting, it must be prepared as a starting point to demonstrate that adequate notice of such meeting was given to the employees affected. The Board would note as well that the efforts of the respondents to find work elsewhere for the former Don] me employees, also a source of complaint, do not relate to the representation of these employees "in a bargaining unit", and cannot in and of itself support a violation of the duty contained in section 68 (no issue under section 69, the "referral" section, arises in these proceedings;.

24. The Board has, however, to this point set out the facts only as they relate to the perspective of the respondent trade unions. The complainants, however, had a different perspective. They were privy to the matters transpiring between the company and the respondents~ and to the respondents' process of decision-making, only to the extent that the respondents took the steps to communicate such. And it is only in this aspect of the case that the respondents have opened themselves to criticism.

25. That aspect of the situation in fact appears to have been inadequately handled by the respondents from the start. After Donline was shut down in December, a question appears to have arisen as to which Local Union was actually the bargaining agent for these former Donhine employees. Many of them were on "withdrawal" from 938, being on layoff, and had not yet been recalled into the Milton bargaining unit which 879 represented. They began, naturally, by calling the respondent Local 938, and specifically Jim White, who had always been their business agent at Donline. Mr. White was able to offer very little to these employees by way of answers, and appears to have been unduly influenced by the fact that certain of the employees had expressed to him their interest in receiving severance pay. Mr. White in fact took Mr. Silver, a spokesman for the complainants with whom Mr. White had numerous telephone conversations, down to the Employment Standards Branch at one point, and was "surprised" to learn that the bulk of the employees were interested not in severance pay, but in getting their jobs back. Mr. White shortly thereafter advised Mr. Silver, and others, that they were now the concern of Local 879. When these employees telephoned Local 879, and advised of White's direction, they were told by the business agent there, Mr. Schultz, that it was a matter for Local 1938. They reported this back to White at 938, only to be rebuffed again. It is not clear from the evidence how long this went on, but it appears that it may have been for at least the better part of a month, with employees being bounced back and forth between Locals as much as five or six times. When Schultz finally did accept the out-of-work Donline employees as 879's responsibility, he engaged in a verbal joust with Mr. Silver which only added to the complainants' sense of alienation. On the evidence the Board is satisfied that Mr. Silver told Mr. Schultz he recognized the position Mr. Schultz was in, having the Softley employees on his back as well, but that Mr. Silver and the other Donline employees had no alternative but to fight for their jobs. Mention had already been made of the complainants going to the Labour Board. Mr. Schultz told Mr. Silver they could go "wherever the hell they wanted", but that he would fight them all the way — that there was no way they were coming into the seniority list. It would appear that the only explanation which Mr. Schultz gave for his position in that call or any other calls was that the complainants were not Softley employees, and that they would be recalled into Rideau as work became available, in accordance with their Donline seniority.

26. The evidence establishes that many, many calls and visits were made by the complainants to the offices of the two respondents from December 1980 to April or May of 1981, trying to ascertain from the respondents what was happening and why. Mr. Thibault, the President of local 938, was aware of these calls, but thought that the business agent, Jim White, was handling the situation. He also indicated that since the work was now in the Local 879 jurisdictional area, he felt he had fulfilled his responsibility to the men by having Jim White put them in touch with 879. Mr. Contardi, the President of 879, also was aware of the abundant phone calls to Mr. Schultz, but he too believed that the business agent was on top of it. He acknowledged on cross-examination that "maybe we were wrong, maybe we should have called meeting", but felt from all of the telephone contact with Len Schultz that the men must have been adequately informed. Mr. Schultz, for his part, together with Mr. White, indicated he believed the steward (Bill Woods) would be keeping the men informed. The evidence of the complainants is that they were getting nothing from Mr. Woods. They testified further that he was a weak steward and they had no confidence in him, and were only dealing with him as a formal step in getting matters before the respondents. Mr. Schultz denies ever refusing to attend a meeting with Donline employees and Local 938, but the Board finds on the evidence that he was in fact asked to do so by at least one of the complainants, and said he had nothing to say to them. Mr. Schultz testified that the employees were "automatically" told what their rights were when he advised them that the company was operating two separate companies and two seniority boards, and that they had no right to be on the Softley board. He testified further that he did not feel that he was responsible for any of the Donline employees until they actually began working in his jurisdiction, other than to ensure that recall was by seniority, and the collective agreement rate was paid.

27. Care must be taken here to distinguish from the evidence what the complainants were in fact told by the respondents, was opposed to what it was they really wanted to hear. With respect to Rideau, for example, the complainants generally admitted to far less awareness of that company in their evidence-in-chief than they were able to sustain in cross-examination. Yet being advised that they were "Rideau" employees, and would be recalled to "Rideau" if and when that company had work for them, hardly provided a response to the employees' legitimate question. To tell them simply that they were "Rideau" employees, and not "Softley" employees, was merely to confirm to them that they were losing their jobs. They already knew that. What these employees wanted to know from their Union was how, in the face of the earlier indications and subsequent intermingling with Softley employees, they had ceased to be employees of "Softley" and were suddenly employees of 'Rideau". They wanted to know why men junior to them in service were still working at Softley, while they themselves were on the sLreet. They wanted to know what efforts their Union had made on their behalf, and why it could not do more.

28. The peculiar feature of this case is that the respondents had the answers to all of those question. As the Board outlined earlier, the respondents had done all that the duty of fair representation required of them, and more. They had not only turned their minds fully (and correctly) to what were the respective legal positions of the two groups of employees and of the employer, but had attempted to negotiate for Donline employees a measure of seniority protection which went beyond that. They knew, from their extensive discussions with the company, how and why "Rideau" came into the picture, and the impact that that was to have on the situation at hand. They knew that the provisions of the Donline agreement upon which the group of employees were relying did not assist them, and that the collective agreements in fact unequivocally supported the position being taken by Softley itself. They knew that the Labour Relations Act provided no recourse to the Board to change that. Yet, on the evidence, the Board finds that none of these explanations were provided to the employees who were legitimately seeking them. What is the effect of that?

29. In considering that question, the Board would note that a failure by a trade union to meet reasonable standards of communication with aggrieved employees that it represents, at least in terms of the efforts that it makes, can operate to the trade union's prejudice in a number of significant ways. A failure to consult may, in the first place, cut the trade union off from relevant facts or questions which it is the trade union's duty to consider in order to meet the non-"arbitrary" standard of the duty of fair representation. Or the mere unwillingness of lack of effort to communicate, if unreasonable, may in itself point in the direction of conduct which is arbitrary, discriminatory or in bad faith, and cause the Board to view with particular attention the actual level of representation afforded by the trade union. And short, even, of these possibilities, such conduct on the part of a trade union may involve it in lengthy and expensive proceedings before the Board which, through just a little more care in communicating, could conceivably have been avoided. Mr. Silver, a complainant in the present case, for example, testified: "We're not stupid. If we'd have been given a reasonable explanation, we probably would have walked away. But after a while, it began to look dirty up till then we believed in these people [the Teamsters]. . . ". Whether or not the complainants would have walked away, we'll never know. But at the very least, a simple account of the steps by which the respondents had acted would have permitted the present complainants a more realistic basis to assess with counsel their own chances of success, prior to litigating this matter before the Board.

30. That, however, is as far as the respondent's omissions take us in the present case. The respondents did in fact represent the complainants vis-a-vis their employer as fully as section 68 could require, and the Board has found as a fact that no information or assistance could have been gleaned from consultation with the complainants which would reasonably have altered the result in this particular case. There has been, accordingly, no violation of the' statute on the part of the respondents, and the complainants are not entitled to any relief.

31. Counsel for the complainants argues, nonetheless, that the complainants should be awarded their costs of this action, as a form of damages, in light of the explanations which the respondents could have given but failed to give to the complainants short of litigation. Counsel relies on the Board's recent decision in Suzanne Hebert- Vail/ant, [1981] OLRB Rep. June 623, in support of this request for costs/damages. That case, however, stands very much on its own facts, and in any event, did not award costs in any form with respect to the section 68 proceeding itself. While the Board has already indicated its view of the respondents' conduct from the point of view of communications with the complainants, that conduct, for the reasons given, does not in itself establish a violation of the Act. Neither does the Board find in this case sufficiently overriding considerations to depart from its normal policy of not awarding costs (see Radio Shack, [1979] OLRB Rep. Dec. 1220), particularly since the complainants' action has, when all is said and done, proven to be unsuccessful.

32. The Board finds that this application must be dismissed, and does so.