Ontario Labour Relations Board
Parties: Michel Cyr, Complainant, v. Mine Mill Union Local 598, Respondent, v. Falconbridge Limited, Intervener
Before: R. O. MacDowell, Vice-Chairman.
Appearances
Michel J. Cyr on his own behalf Elizabeth McIntyre, Ed Leger, Jim Sheehan and Michele O'Connor for the respondent; Richard Thompson for the intervener.
Decision of the Board; August 12, 1983
- This is the complaint of Michel Cyr who alleges that the respondent union has contravened section 68 of the Labour Relations Act. Mr. Cyr contends that the union's established policy of giving special consideration to disabled workers discriminates against healthy employees, like himself, and is unlawful. Section 68 reads 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.
The facts are not substantially in dispute. Mr. Cyr is one of approximately 1700 bargaining unit employees employed by Falconbridge Nickel Company Limited in its operations in Sudbury, Ontario. These employees, including the complainant, are represented by the respondent trade union. Their terms and conditions of employment are prescribed in a collective agreement which is renegotiated from time to time. That collective agreement contains a job posting procedure so that employees interested in promotion can make application or "bid" for the job.
The agreement requires that promotions be awarded on the basis of an employee's seniority and ability, and there is no question that the clause is one of general application which, by its terms, should apply to all employees in the bargaining unit. But that is not how it has been applied in practice. For more than twenty-five years the union and employer have agreed to waive the strict requirements of the collective agreement in the case of a limited number of jobs which could be done by disabled workers who would otherwise be unemployed altogether. These "restricted" or "light duty" jobs are not posted at all. They are offered to senior employees who would be incapable of doing anything else. As a result, able-bodied individuals like the complainant are denied certain work opportunities to which they might otherwise be entitled if the terms of the collective agreement were strictly applied.
The evidence establishes that at the present time there are about 90 employees working in restricted duty jobs which, over the years, have not been posted. For the most part, the incumbents are employees with considerable seniority who would otherwise be unemployable. The evidence further establishes that if these employees were forced to rely upon either their disability pension entitlement or workers' compensation payments, many of them would face severe financial hardship. But that is not the complainant's concern. He was quite candid in his submission to the Board that these individuals should be put out of their jobs even if they have no disability pension. His position is that the collective agreement should be applied in accordance with its terms and if there are to be any exceptions they should be spelled out expressly.
The complainant has been an employee for approximately ten years, but he only found out about the disability policy recently, when he learned that the job of switchman had not been posted and that the incumbent in that position got the job because of his disability. It is interesting to note that this employee has more than fourteen years seniority, so that even if the job had been posted the complainant would not have been the successful applicant. The complainant asserts, however, that he is interested in the principle of equal treatment and equal application of the agreement. He argues that even if he were not successful, his rights under the agreement should be vindicated.
On or about April 26, 1983, Mr. Cyr approached his Local shop steward to discuss his concerns. He demanded that the steward file a policy grievance on his behalf, demanding that: the company revert to the strict terms of the agreement, post the switchman's job, and discontinue its practice of giving preference in some cases to disabled employees. At first, the shop steward refused, since the grievance would result in the recision of an arrangement with the company which had been in place for more than twenty-five years. Eventually, however, the union did agree to entertain Mr. Cyr's grievance — in part, it would appear, because he threatened to file a complaint with this Board if the union did not do so.
Mr. Cyr's demand that the union and employer abandon their established policy respecting disabled workers provoked considerable discussion. Neither the union nor the company was enthusiastic about rescinding a long-established practice designed to help disadvantaged union members - notwithstanding the terms of the collective agreement. That practice had been in place for years, had a valid humanitarian purpose, and was well accepted by the local membership. It had never been seriously questioned before.
The company's operations in Sudbury are divided functionally into three divisions (mines, services, and plant), and geographically into an eastern and western section. There is a "chief steward" assigned to each division in each geographic location (for example, chief steward - mining - east). Thus that there are six chief stewards in all. Below them there is a network of stewards in various parts of the employer's operation who are responsible for the "first line" administration of the collective agreement and the adjustment of problems on the job. In each of the eastern and western sections, the stewards and the chief stewards meet on a regular basis. Those meetings provided one of the several forums for discussion of Mr. Cyr's complaint.
On or about May 2nd, the three chief stewards in the eastern group, together with about twenty-five shop stewards from their section, met and, inter alia, discussed Mr. Cyr's position. Those who attended were unanimously of the view that the union should adhere to its established policy. The western stewards group also discussed the matter. They were of the same opinion - although there was some concern about how the policy should be maintained in face of the language of the agreement and Mr. Cyr's challenge. On May 4, 1983, the executive board of the union, consisting of its elected officials, also discussed the matter. They reached the same conclusion. On the same day, there was a "rank and file" membership meeting where the issue was debated. At the meeting there was a consensus that there should be no alteration of the status quo. Mr. Cyr was present and participated in that debate.
Mr. Cyr's grievance was dropped at the third stage. The decision not to proceed to arbitration was taken by the arbitration committee which includes the six chief stewards who were both aware of, and participated in, the discussions which have been outlined above. They saw no point in proceeding further with the matter.
The decision to drop his grievance was communicated to the complainant, who was advised that, in accordance with the union's usual practice, the decision of the arbitration committee would be put before the membership for ratification at the next regularly scheduled union meeting. Ordinarily, the decision of the arbitration committee is accepted without debate, but from time to time, discussion from the floor has resulted in further consideration being given to a member's grievance. Mr. Cyr was extended that opportunity. He did not attend the meeting. The disposition of his grievance came up, as he had been told it would, and the membership affirmed the arbitration committee's position.
Does the evidence disclose a breach of section 68 of the Labour Relations Act? In my view the answer is clearly no. There is no arbitrariness, discrimination or bad faith in the processing of Mr. Cyr's grievance. On the contrary, the grievance was entertained, processed to the third step and discussed at some length and at various levels by a variety of union officials. Subsequently, Mr. Cyr's position was raised and rejected at a union membership meeting and he chose not to seek further reconsideration at a subsequent membership meeting following the arbitration committee's final decision to drop his grievance. There was nothing cursory, perfunctory, or improper in the way that his grievance was handled.
Nor is there anything illegal about the union's agreement with the company that compliance with the job posting provisions of the agreement would be waived in the case of certain job openings suitable for disabled workers. In my view this is a perfectly reasonable and laudable effort by the union and the employer to recognize and accommodate the needs of these disadvantaged individuals. The effect may be to confer a benefit to which they might not be entitled under the strict terms of the collective agreement, but this is not the kind of invidious "discrimination" to which section 68 of the Labour Relations Act is directed. The seniority provision itself "discriminates" in the general sense that it gives a greater chance of promotion to persons with more years of service, and if the union is entitled, as it is, to create certain rights for senior employees through the collective bargaining process, it is equally entitled to limit those rights where there are good collective bargaining reasons for doing so. Such reasons clearly exist here, and I see no reason to interfere with an aspect of "the bargain" which has been in place for decades and is clearly acceptable to the union and its members.
It is said by the complainant that any limitation on the application of the job posting provisions ought to appear in the language of the collective agreement itself. I cannot accept that submission. It might have been wiser for the parties (and certainly would have been a complete answer to this aspect of Mr. Cyr's complaint) if the parties had a formal letter of understanding that efforts would be made to assist disabled employees. However, I do not think it is necessary or even desirable that every facet of the complex web of understandings which make up a collective bargaining relationship must be reduced to writing and form part of the collective agreement. If the parties do not do so they risk misunderstandings but, in the circumstances of this case, I cannot find that there is anything illegal about the union's failure to include in the collective agreement an accepted policy of some twenty-five years standing which appears to have been well known to almost everyone except the complainant.
For the foreoing reasons, this complaint is dismissed.