[1982] OLRB Rep. August 1199
0525-82-U George Papadamou, Applicant, v. Canadian Union of Operating Engineers & General Workers Local 101, Respondent, v. Silverwood Dairies, a Division of SilverWood Industries Limited, Intervener
BEFORE: R.O. MacDowell, Vice-Chairman.
APPEARANCES: G. Papadamou for the applicant; V. McManus, M. O'Malley and A. Spooner for the respondent; and G.J. Weir and D. Booth for the intervener.
DECISION OF THE BOARD; August 23, 1982
- This is a complaint under section 89 of the Labour Relations Actalleging a breach a section 68 of the Act. That section reads as follows:
"68. 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 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 complainant, George Papadamou, alleges that in February 1974, the respondent union ("the CUOE") failed to properly represent him, with the result that he lost seniority credits to which he should have been entitled. Upon a consideration of the material before the Board, it is apparent that his allegation against the CUOE can have no application to February 1974. His claim, if any, relates to an agreement concluded between the CUOE and the intervener ("Silverwoods") in or about October 31, 1980.
The Board must note at the outset that the evidence before it, in this matter, is far from satisfactory, and, in consequence, the Board has had considerable difficulty ascertaining the facts. Neither the CUOE nor Mr. Papadamou was represented by counsel and Mr. Papadamou had no real knowledge or understanding of the transactions leading up to his employment by Silverwoods and what appeared to him to be an unfair loss of accrued seniority rights. The union was also of little help — content in its own mind that it had not acted unfairly. The Board in this case has been left very much to its own devices in respect of both the facts and the law.
The chain of events leading to the present application began sometime in 1974 when Silverwoods acquired control of Valleyview Dairies Limited ("Valleyview") which then had facilities on Pape Avenue in Toronto. The name and separate legal identity of Valleyview were apparently preserved, but, from a practical point of view, after 1974 the company seems to have been operated as a division of Silverwoods. Valleyview kept at least some of its own routes and employees, but it operated from shared facilities with Silverwoods. The com plainant was one of approximately 8 or 9 Valleyview employees who, in 1980, worked out of the Silverwoods' Dupont Street location. There is no evidence that by 1980 there were any other Valleyview employees.
The Valleyview employees were represented by the Teamsters' Union and had their own bargaining unit and collective agreement. There is no concrete evidence as to the agreement's coverage, or its terms. The agreement was not put in evidence. The employees of Silverwoods are represented by the CUOF. In 1980, their collective agreement covered the company's Toronto operations which included two separate plants: one on Norseman Street, and the other on Dupont Street. In the two plants, there were a little over 200 bargaining unit employees. At Dupont Street however, there was also the above-mentioned "bubble" of 8 or 9 employees working for Valleyview Dairies Limited with their own union, (the Teamsters), bargaining unit and collective agreement. That is how things stood in early 1980.
On or about March 1, 1980, Silverwoods completed transactions by which it acquired from the Borden Company Limited ("Borden's") certain milk and ice cream production and distribution facilities in various parts of Ontario, which it intended to rationalize and integrate with its existing operations. Since both companies had a variety of bargaining relationships with various unions, these events sparked a series of successor rights applications as the unions involved sought to protect or clarify their bargaining rights (see Board File Nos. 1235-80-R, 1902-80R, 0912-80-R, 0356-80-R and 0674-80-R). The details of these other applications are not relevant here, save to illustrate that situation in Toronto was by no means unique.
The applications of particular relevance to this case are Board Files 0356-80-R and 0674-80-R cross-applications under section 55 by the Teamsters and the CUOE respecting Borden's Don Mills plant. It will be noted that Valleyview Dairies Limited is not a named respondent in this application nor therefore, could it or its employees have been directly affected by the outcome.
The Board found that the acquisition of the Borden facilities constituted a sale of a business within the meaning of section 63 (then section 55) of the Act, and further that there was an intermingling of employees within the meaning of section 63(6). Silverwoods indicated that it intended to close down the Borden plant in Don Mills and to fully integrate its operations with Silverwoods existing facilities, transferring such former Borden employees as might be needed to its own plants on Dupont and Norseman Streets. In the circumstances, the Board determined that there should be only one bargaining unit encompassing all of Silverwoods plant operations in the city, and that there should be a representation vote to determine whether the Teamsters or the CUOE should be the employees' bargaining agent.
A representation vote was conducted and the CUOE won. At the time, the CUOE questioned the right of the Valleyview employees to vote — as it appears it certainly should have done because their employer was neither named nor involved in the proceedings — however, as it turned out, the CUOE won by a sufficient margin that the issue was never put before the Board for its consideration. Accordingly, the Board decision does not deal with or affect the small Valleyview/Teamsters group at Dupont Street.
According to the CUOE, the situation thereafter was in a state of considerable confusion and flux — not least because the Don Mills plant was both closed and subsequently reopened. The immediate problem was to determine how to deal with the accretion to the bargaining unit of the remaining Borden's employees, and to sort out their routes and work functions so that the company's ongoing organizational changes could be accommodated with the existing bargaining relationships. The parties negotiated arrangements for severance pay for those Borden's employees who would not be retained, and agreed that for seniority purposes, those employees who were kept on, whether at the Don Mills location or elsewhere in the Silverwoods organization, would have bargaining unit seniority dating from March 2, 1980, the day they had become employees of Silverwoods by virtue of the operation of section 63 of the Act. As among themselves (since they all would have the same commencement date), it was decided that conflicting seniority claims would be resolved with reference to their years of service with Borden's.
As the Board has already pointed out, the successor rights declaration did not affect Valleyview or the pocket of bargaining rights which the Teamsters still retained at the Dupont Street location; however, it appears that Silverwoods concluded that the time was ripe to remove this anomaly by transferring the few employees involved to its own employment rolls. Again, the Board notes the paucity of evidence about any of this. It is clear however, that the transfer created precisely the same issues as for the Borden employees, except that the accretion to the CUOE unit did not come about as a result of a Board order modifying the bargaining unit, and the numbers were much smaller. But the problem of integration was the same. So was the parties' solution. The CUOE and Silverwoods agreed that the former Valleyview employees would also be given a seniority date of March 2, 1980, and put on the same footing as the new employees from Borden's. Once more, in order to resolve any conflicts among employees with the same entry date (March 2, 1980), it was decided that reference would be made to the employees' previous years of service with Valleyview. Thus for the former Borden's and former Valleyview employees, seniority consisted of two components: March 2, 1980, the date they became or were deemed to have become employees of Silverwoods; and their actual years of service with their former employer.
Mr. Papadamou claims that he had no knowledge of this arrangement, although it is difficult to understand why this might be so. In the 18 months since it was concluded, seniority lists have been posted on the employee bulletin boards on numerous occasions; moreover, at the time, the agreement was also posted and included in a newsletter sent to all employees. On the other hand, the grievor may not have been able to read it, or appreciate its significance. No objection has ever been taken by any former Borden's employee. Apart from the present complaint, no objection has ever been taken by any former Valleyview employee. This complaint arises because the complaint bid for a more desirable route and lost out to a former Borden's employee who had more seniority (i.e. with Borden's. since both he and the complainant had the same nominal entry date on Silverwoods' employment rolls).
At the time of the transactions leading to the Board's successor rights determination and Silverwoods' subsequent decision to transfer the Valleyview employees from the subsidiary to its own employment rolls, the CUOE and Silverwoods were bound by a collective agreement which ran from April 1, 1979, until March 31, 1981. Thus, the business acquisition and any associated dislocation occurred right in the middle of the ' parties' collective agreement. A further collective agreement, running from April 1, 1981, to March 31, 1983, was negotiated after a six week strike in the summer of 1981.
The complainant contends that upon becoming an employee of Silverwoods, he should have been credited with his full Valleyview seniority instead of being treated as a new employee. ln his submission, he has been wrongfully deprived of the benefits of six years of service. The evidence, however, is that he suffered no loss in wages, pension benefits or of course, employment, and that for the calculation of benefit entitlements, his total accumulated seniority is in fact used. He was not treated in all respects as a totally new employee. For some purposes Silverwoods and the CUOE were prepared to recognize his years of service with the subsidiary company. But there is no doubt that in some respects, such as the allocation of desirable routes, the timing of vacations, and lay-offs, he is worse off than would have been the case if his years of service with Valleyview had simply been "dove-tailed" with those of the Silverwoods employees were "end-tailed" for some purposes. It is perhaps ironic to note that if the former Valleyview and former Borden's employees had both been given "dove-tailed" rather than "end-tailed" seniority rights under the CUOE collective agreement, Mr. Papadamou would still have lost the competition with the former Borden's employee. In any event, it is the complainant's position that it was a per se breach of the duty of fair representation to treat him like a new employee "off the street" rather than recognizing and giving credit for his full years of service with a Silverwoods subsidiary.
II
Situations where two bargaining units are amalgamated can give rise to difficult representation questions especially when a single trade union is the bargaining agent for both groups of employees and is called upon to balance the claims of members who are potentially in conflict. In such circumstances, it is by no means clear that the section 68 duty of "fair representation" can be satisfied by simply acceding to the views of, or protecting the interests of the majority. But that is not the situation here. Mr. Papadamou and his fellow Valleyview employees were never represented by the CUOE, nor were they ever part of its bargaining unit not even by virtue of a decision of the Ontario Labour Relations Board, which held only that the Borden's employees became employees of Silverwoods' as at the date of the sale, and that the appropriate long term bargaining structure should encompass all Silverwoods employees in the Municipality of Metropolitan Toronto. The Valleyview employees were employed by a subsidiary of Silverwoods, and became employees of Silverwoods quite apart from the Borden's transaction or the Board's decision in that matter. Their position is not much different from that of any other group of new employees who happen to be hired at the same time. Until they actually became employees of Silverwoods, they had no rights whatsoever under the CUOE collective agreement, and no right to demand that the CUOE represent them. The arrangement respecting their entry into the CUOE unit actually gave them more rights than they would have had if they were treated totally as new employees. Mr. Papadamou's complaint, however, is that he was not given the papadamou's complaint, however, is that he was not given the same rights as a Silverwoods' employee in the CUOE unit. He argues that he should have been treated as if he were a Silverwoods' employee all along.
The Board notes that there is a respectable body of arbitral opinion which suggests that the concept of "seniority" is rooted in the bargaining unit itself, and does not accrue to persons outside the unit as an inchoate right which becomes crystallized on their entry into the unit. (See the opinion of Professor Laskin, as he then was, in Re Federal Wire and Cable 3 UMAC 276 (1960).) On this view, managerial persons or other employees outside the bargaining unit do not "heap up" seniority rights which they can use if for one reason or another they become members of the bargaining unit. To so hold, would ignore the sacrifices which the bargaining unit employees themselves actually sustain to achieve the various rights and privileges which their seniority gives them. In Laskin's view, it is anomalous to suggest that an outsider should automatically partake of these benefits without actually having participated in the sacrifices which made them possible. The situation of the complainant here is even weaker for, prior to being an employee of Silverwoods, he was not represented by the respondent at all, or even employed by the intervener. He was employed by a different employer, under a different collective agreement in a separate bargaining unit, represented by another trade union. There is no reason why years of service accumulated while working for Valleyview should automatically entitle the complainant to equivalent status as a Silverwoods' employee, in the CUOE unit, under the CUOE agreement.
The evidence before the Board is insufficient to determine whether, on balance, the complainant is better or worse off by the series of the transactions which made him an employee of Silverwoods and a part of the CUOE's bargaining unit. According to the evidence, he did not lose his job, or suffer a loss of wages or other tangible economic benefits, although, his position relative to Silverwoods established employee complement may well have been inferior. On the other hand if he had remained employed by Valleyview, his job horizons would never have extended beyond the Valleyview bargaining unit which, on the evidence, encompassed no more than about 9 employees. By being integrated into the Silverwoods labour force, he now has job opportunities open to him which would not otherwise have been available. And, because we have no evidence of the conditions which the complainant enjoyed prior to and after the merger, we are in no position to say that, on balance, his position is inferior. Superficially, at least, it appears that while he has less seniority than he had in the small Valleyview bargaining unit, he can exercise those rights over a broader range of jobs than might otherwise have been available. And certainly, when the CUOE negotiated the terms of entry into its bargaining unit of persons previously employed by another employer and represented by another bargaining agent, I do not see any error in principle in deciding that, for some purposes, such new employees would have rights calculated with reference to their actual seniority in the bargaining unit rather than some artificially constructed seniority based upon years of service to another employer, in another bargaining unit, represented by another trade union.
In all of the circumstances of this case and on the basis of the evidence before us the Board cannot conclude that the respondent union has breached section 68 of the Act in its representation of the complainant.
The complaint is therefore dismissed.