Ontario Labour Relations Board

[1983] OLRB Rep. December 1947

0667-83-U Timothy W. Smith and William Morton, Complainants, v. Toronto Joint Board Amalgamated Clothing & Textile Workers Union Local 1414J, Respondent

BEFORE: R. O. MacDowell, Vice-Chairman.

APPEARANCES: Tim Smith and William Morton on their own behalf Paul Cavalluzzo and Jack Matraia for the respondent; Ross Drake for Xerox of Canada Inc.

DECISION OF THE BOARD; December 19, 1983

1. This is a complaint under section 89 of the Labour Relations Act. The complainants, Timothy Smith and Bill Morton, contend that they have been dealt with by the respondent trade union contrary to 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 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 complainant was filed on July 28, 1983. In accordance with its usual practice, the Board immediately fixed a date for a hearing, and, at the same time, appointed a Labour Relations Officer to meet with the parties to endeavour to effect a settlement of the matters in dispute between them. On July 5, 1983, copies of the complaint and notice of hearing were served upon the respondent union, and upon Xerox Canada Inc., the complainants' employer. The date fixed for the hearing was July 26, 1983.

3. When this matter came on for a hearing before the Board on July 26, 1983, the complainants appeared in order to support their allegations. No one else appeared. The Board waited for a period of time in order to determine whether the respondent union was simply late in arriving, then, as a matter of courtesy, directed the Labour Relations Officer to attempt to contact the respondent's officials by telephone. Frank Aquino, an organizer and part-time business agent for the respondent, conveyed a message to the Board through the Officer that: he was unaware that the hearing was going to proceed, that he was preparing to go on vacation, that he could not attend the hearing that day, and that he requested an adjournment.

4. That request was vigorously opposed by the complainants. In their submission, the union had proper notice of the complaint and the hearing, the case had not been settled, and there was no reason or excuse for the union not being there. The complainants argued that the union's response to the Board proceeding showed the same careless indifference that they said they had encountered in their own dealings with the respondent.

5. There being nothing before the Board but the above-mentioned telephone message, the request for an adjournment was denied and the hearing proceeded as scheduled. Mr. Morton and Mr. Smith were the only ones present to give evidence, and that evidence was, of course, neither contradicted nor subject to cross-examination. Some two weeks later the Board received the following letter from counsel for the respondent:

We act as counsel for the Amalgamated Clothing & Textile Workers Local 1414J. We have been advised of the following.

Some time in June 1983, Mr. Smith filed the foregoing complaint. As a result of this Labour Relations Officer David Dunn attended at the union offices at 33 Cecil Street, to deal with the matter. During the discussions with Messrs. Matraia and Aquino he left Board documentation, including a notice of hearing. After some discussions with Mr. Dunn, it was believed by Mr. Matraia that the' matter had been settled. He advised Mr. Dunn that the complainant had not filed an appropriate grievance and that he should file a grievance to deal with his complaint. This was subsequently done on July 8th. Because Mr. Matraia felt that the matter had been settled, neither he or Mr. Aquino read the Board documents. Therefore, they did not see the notice of hearing which had been set for July 26th 1983.

The next action upon which my clients were advised of the situation was on the morning of July 26th. This was during the vacation shutdown of the union. Mr. Aquino was called at home on his holidays by Mr. Dunn and advised of the hearing. Mr. Aquino asked for a postponement but apparently this was denied.

In light of these circumstances, on behalf of our client we apologise to the Board for not appearing on July 26th and not defending the case. If at all possible we would seek leave of the Board to re-open the hearing in order to provide a defence which we feel will dispose of the case on its merits. We understand the problem which these circumstances have created. However, our client honestly believed the matter was resolved and as a result did not read the notice of hearing.

If you have any questions or comments concerning this matter please do not hestitate to contact me. To save time we have forwarded a copy of this letter to the complainant Mr. T. Smith.

In view of this letter, the Board scheduled a further hearing to permit the respondent to show cause why the proceeding should be re-opened for the reception of further evidence - in effect, a request for a hearing de novo.

6. The second hearing was held on October 20, 1983. This time, the employer appeared, and the union also appeared with counsel and witnesses. The complainants appeared to oppose any re-opening of the matter. The Board heard the evidence of Jack Matraia, the union business agent, and Frank Aquino, both of whom gave an explanation for the union's non-appearance at the first hearing. That explanation follows.

7. Jack Matraia has been manager of the respondent's Toronto Joint Board for about five years. He first learned of the allegations against the union when he was served with the complaint and notice of hearing on or about July 5, 1983; however, according to Matraia he did not look at the documents with which he had been served. There was a brief discussion with the Labour Relations Officer in which they canvassed whether the filing of a grievance might resolve the complainants’ concerns, and the Officer indicated that he would put that proposition to the complainants for their consideration. Either that day or the next, Matraia called Ivor Quirola, the president of Local 1414J (the complainants’ Local), to discuss the filing of a grievance on the complainants' behalf. Matraia testified that he was assured by Quirola that a grievance would be filed.

8. Some time in the week of July 13th, Matraia made efforts to contact the Labour Relations Officer to determine the status of the outstanding unfair labour practice complaint, but, apparently, he was unable to do so. No efforts were made to speak to any other official of the Board and, in particular, its Registrar, who could have advised Matraia whether or not the matter had, in fact, been settled. Nor was there any effort to contact the complainants prior to the begining of Matraia's holiday on July 15, 1983. Matraia first learned of the hearing on August 11, 1983, after he had returned from vacation.

9. Matraia concedes that, as an experienced union official, he is generally familiar with the Board’s processes - although, as in the present case, the union is typically represented by its lawyers. Over the years he has filed a number of section 89 complaints and is familiar with the settlement process and the role of the Labour Relations Officer. Matraia further concedes that typically such unfair labour practice cases are resolved by a written settlement, usually followed by a Board decision endorsing that settlement or granting leave to withdraw the complaint. Here there was no written settlement, nor even any confirmation that there was a settlement.

10. Matraia's evidence is confirmed by Frank Aquino, who was present when the complaint and the notice of hearing were served. Like Matraia, he did not read the documents, but had the impression that the filing of a grievance would resolve the problem. Aquino testified that he worked for the entire week ending July 22nd and, some time during that week, received a message to call the Labour Relations Officer. Attempts to do so on Thursday, July 21st, were unsuccessful and were not repeated. Again, no effort was made to speak to the Registrar or any other official of the Board, or to contact the complainants. Moreover, prior to going on holiday Aquino received the following memo from Ivor Quirola, dated July 13, 1983:

Grievance 83-15 is filed by Messrs. Tim Smith, Bill Morton and Pat Montoni.

You claim that prior to being transferred from CMC-T to ODC you and the other two members above listed have consulted with the union rep Linda Coltman regarding your seniority status.

The information you received at that time was that company seniority would govern in the event of a layoff and that all that you would be losing by making the transfer would be the opportunity for promotion.

My understanding is you want reinstatement of plant seniority held at CMC-T prior to the transfer to ODC. Furthermore you claim this grievance is put against the union. Considering all the above, my response is as follows:

a) Based on the facts presented, I do not consider a grievance but an invalid complaint about a misrepresentation by a Union representative.

b) The Union representative you mentioned was not a Union elected official or an Area Steward representing the Union, therefore I consider that you don't have a valid complaint.

c) On Art. 6.02 of the Collective Agreement it is clearly stated that Plant seniority for ODC and CMC-T will be treated as separate plants. Therefore when you transfer to ODC, your plant seniority at CMC-T is terminated.

d) In the event of layoff Plant seniority is the seniority used and not Company seniority as it was suggested by Linda Coltman.

I hope this issue is resolved by my response and explanation, but if you need further explanation please contact me.

11. Whatever else may be taken from this memo, it is clear that, at least at that stage, the complainants’ problem was not going to be resolved by a filing of a grievance because the Local union president did not consider this to be warranted. Indeed, Quirola appears to characterize the complainants’ allegation as one of "misrepresentation by a union representative" - as in part, it is. Counsel for the union points out that it would have been open to the complainants to appeal Quirola’s decision. But no one told the complainants that.

12. Aquino, is a trade union organizer who regularly appears in proceedings before the Board. He too is familiar with section 89 complaints, the way in which they are processed, and the way in which they are usually resolved. Like Matraia he should have known that, failing settlement, there would be a hearing; and the Quirola memo removed the basis for settlement.

13. The union argues that there has been no intention to impede or frustrate the Board's proceedings, nor would there be any substantial prejudice should the Board decide to re-open this case and hear it de novo. In the union's submission, its officials have made a bona fide mistake, which was compounded by vacation scheduling, and they should not now be denied the opportunity to put their evidence before the Board. The complainants take the position that the union's submissions do not disclose a sufficient basis for re-opening the hearing and, in effect, canvassing issues which the union had a full opportunity to address had it appeared at the original hearing.

14. I agree with the complainants' position. I do not think it is open to a party properly served with a complaint and notice of hearing to claim that it has made a "bona fide mistake", when, on the evidence, its officials did not even bother to read the material with which they were served, let alone consider its implications. Assuming, for the moment, that a plea of "mistake" would be sufficient to justify a new hearing, there must surely be some reasonable basis for it. Here there is none. The union officials concerned are generally familiar with the Board's processes and, had they taken the trouble to read the complaint and notice of hearing, they would have realized that the complaint would proceed to a hearing on July 26th unless it was settled before that. But, not only was there no settlement, there was no reasonable basis for the conclusion that there had been a settlement. No one ever told Matraia or Aquino that the case was settled and they made only minimal efforts to determine the status of the case. It is not for this Board to speculate on what they might have done, but it is apparent that had they contacted the Registrar of the Board, or the complainants, or even considered the memo from Quirola of July 13, 1983, it would have been clear that the case was not settled. Yet they did none of these things. If the circumstances of this case were grounds for a hearing de novo, no proceeding before the Board would ever be final and the expeditious resolution of applications and complaints would be substantially undermined.

15. For the foregoing reasons then, the request for reconsideration and a re-hearing must be dismissed.

II

16. The complainants’ allegations are two-fold:

a) that the union acted improperly when it renegotiated the terms of the collective agreement so as to remove the contractual basis for a grievance which the complainants had filed;

b) that the trade union acted improperly when one of its officials advised the complainants that a transfer from one part of the bargaining unit to another would have no, or limited effect on their seniority rights under the collective agreement, when, in fact, the transfer resulted in a forfeiture of their accumulated seniority rights.

It will be convenient to deal with each of these allegations in turn. Such evidence as there was, largely related to the first aspect of the complaint, but, as will become apparent, it is the second allegation which is more troublesome.

17. The complainants, Timothy Smith and William Morton have both been employed by Xerox Canada Inc. for some years. Originally, the company operated a single plant in Mississauga. Its manufacturing division and distribution centre shared the same premises. Some time in 1982, the distribution centre was separated from the manufacturing division and moved to its own premises about five miles away. The two separate plants remain part of a single bargaining unit, covered by one collective agreement; however, to facilitate administration of that agreement, what was once one local of the Amalgamated Clothing & Textile Workers Union has been divided into two: Local 1414J, covering the manufacturing division, and Local 1414H, covering the distribution centre.

18. In March of 1983, the complainants were working in the distribution centre, but because of a reduction in work were faced with the option of a layoff or a transfer to job openings in the manufacturing division. Not surprisingly, they chose the second option, and transferred to the manufacturing division. That is where they are presently working.

19. The manufacturing division operates on a multiple shift basis, with shifts being allocated on the basis of seniority. Upon a perusal of the collective agreement, the complainants discovered that, in contrast to other sections governing the benefits of seniority, the allocation of preferential shifts was apparently based on company-wide seniority. In effect, the complainants could rely upon their total length of service, wherever accumulated, to bid for desirable day shift jobs. That is what they sought to do.

20. When the complainants drew attention to Article 5.13 of the agreement, both the union and the employer expressed surprise. Archie Nesbitt, the president of Local 1414H, and Rod Campbell, the business agent for the two Locals, both told the complainants that the reference to company seniority was a misprint or error which did not reflect the intention of the parties. With the separation of the manufacturing division and the distribution centre, and their relocation in separate premises, the parties had decided that, except for company-wide benefits, there should be separate seniority lists. At the most recent set of negotiations, they had tried to carry this intention into effect, revising the language of the agreement as required. The complainants were told that Article 5.13 had been inadvertently overlooked during this process of revision, and that the allocation of shifts was intended to be based upon the employees' seniority in the manufacturing division only. The complainants do not dispute that this was indeed the case, or that Article 5.13, as written, does not reflect the parties' agreement.

21. Once the anomaly in the collective agreement had been identified, the union scheduled a special meeting so that the members of both locals could discuss the matter. Notice was given and, according to the complainants, the meeting was attended by ninety-five per cent of the membership of both Locals. It might be noted that the membership of Local 1414J, the manufacturing division, is about twice as large as that of Local 1414H, the distribution centre.

22. According to the complainants, the debate at the meeting was active and sometimes heated. The members of Local 1414J were upset about the potential effect of the error since they anticipated more transfers into the bargaining unit (not only from the distribution centre, but perhaps elsewhere) which could upset the established shift distribution. Ivor Quirola, the president of Local 1414J, proposed that the collective agreement be amended to remove the anomaly so that the agreement would read as its drafters intended. The recent transferees into Local 1414J and the members of Local 1414H who might find themselves in that position proposed that the agreement should remain as it was. The complainants, of course, were in the latter group. Archie Nesbitt, the president of Local 1414H, supported their position - not least because the complainants had expressed dissatisfacation about the quality of representation which they had received from him and had warned Rod Campbell, the business agent, that if their view was not supported they would make a complaint to the Ontario Labour Relations Board.

23. The complainants did not stay for the vote. Sensing that they represented a minority view, they walked out of the meeting together with a number of other members of Local 1414H. They were subsequently advised, as they expected, that the membership had voted to rectify the agreement. They do not suggest either that they were denied an opportunity to express their views or that the contending positions were not fully debated. The complainants argue that the ex post facto revision of the collective agreement was in itself illegal.

24. I do not agree. It is admitted that the collective agreement, as written, does not reflect the consensus reached at the bargaining table, nor is there anything inherently arbitrary or discriminatory in the form of language which would have appeared in the collective agreement, but for the inadvertent error of the union and employer in recording what they had agreed upon. All that the union and employer have done is to rectify that mistake so as to put the complainants in the position that they would have been in had the error not occurred. Moreover, before doing so, the union officials consulted the membership which, the complainants concede, affirmed that course of conduct. Given the complexity of collective bargaining, transcription errors of the kind apparently present here are bound to occur from time to time and I do not think that it can be considered a breach of section 68 of the Labour Relations Act, when a trade union, acting in good faith, merely seeks to rectify the situation. On this branch of the complainants' case then, there is no basis for concluding that the union has acted in a manner that is arbitrary, discriminatory, or in bad faith.

III

25. The second branch of the complainants’ case poses greater difficulty. But, again, it is necessary to sketch in some of the background.

26. The complainants were originally employed in the manufacturing division which, as I have already noted, shared the same premises with the distribution centre until some time in 1982. In or about March, 1981, the complainants were contemplating a lateral transfer to more attractive positons in the distribution centre. At the time, this was merely a move from one job to another within the same plant.

27. Before making the transfer, the complainants discussed the matter with Linda Colt-man, a friend of theirs whom they described as a shop steward. The complainants testified that Ms. Coltman had been a steward for a couple of years and had been elected by a segment of the Local membership. At this point, according to Bill Morton, the Local union had not yet been divided in two.

28. Ms. Coltman is alleged to have said that if the complainants transferred to the distribution centre, they would lose their accumulated seniority for the purposes of any future promotions in the distribution centre, but that in the event of a layoff, their whole company seniority would prevail. The complainants also testified that Ms. Coltman told them that she had received this advice from Archie Nesbitt, the Local union president, and had been assured that company-wide seniority would prevail in the event of a layoff. But when the complainants faced the prospect of layoff in 1983, they were advised that it was their plant seniority, not their company seniority which would be the governing factor, and, on that basis, they were displaced from their jobs at the distribution centre. Upon their return to the manufacturing division, they were told by Ivor Quirola, the Local union president, that they had also forfeited any seniority previously accumulated while working in their former position in manufacturing. Thus, upon their return to the manufacturing division they were treated for some purposes just like a new employee - even though they never left the bargaining unit or severed their employment with Xerox.

29. The complainants do not contend that Ms. Coltman intentionally misled them. On the contrary, they attribute her advice to a lack of familiarity with the new collective agreement which had just been negotiated a short time before. The complainants testified that the practice prior to this collective agreement had indeed been based upon company-wide seniority, but that these provisions had been changed shortly before the complainants were considering the transfer. Mr. Morton indicated that, at the time, printed copies of the new collective agreement were not yet available and that Ms. Coltman was not directly involved in the bargaining process. He speculates that she must have been unfamiliar with the extent of the recent changes and that such enquiries as she may have made were either inadequate, or the source of her error. Accordingly, there is no question of improper motive, hostility, dishonesty, discrimination, or bad faith.

30. The complainants' request for a transfer was accepted in the spring of 1981, and when the distribution centre moved to its new location, the complainants moved with it. There they remained until March of 1983, when a reduction in work eventually required a transfer back to the manufacturing division where they had been before. The complainants testified that it was the prospect of a layoff which, for the first time, brought to their attention that their "bumping" rights were contingent upon their plant rather than their company seniority. Between March, 1981 and March, 1983, they had not had occasion to consider their relative seniority position or the consequences of a layoff. The complainants maintain that if they had known that a transfer would increase their exposure to layoff, they would never have accepted it.

31. The complainants argue that Ms. Coltman made a material misrepresentation which amounts to "arbitrary" action and a breach of the Labour Relations Act for which the union is responsible. The complainants assert that they acted upon this misrepresentation to their detriment and seek a remedy before this Board. They seek a direction to revise their seniority date so as to reflect what it would have been had they not accepted a transfer to the distribution centre. The complainants are not now out of a job, nor are future layoffs imminent, but they fear that in any future layoff, they may be put in a less advantageous position. Whether these fears will be realized or not, is, at this point, entirely speculative.

32. What the complainants are concerned about is a loss of seniority rights which, they say, flows directly from the bad advice which they were given by a union official. Had they not been told by Ms. Coltman that their full company seniority would prevail in the event of cutbacks, they would never have accepted a transfer and would not now be in a position where (it is said) their plant seniority in the manufacturing division is extremely limited. Nor is there any doubt that seniority is a critical collective bargaining concept. In Re Tung-Sol of Canada Ltd., (1964), 1964 CanLII 1021 (ON LA), 15 L.A.C. 161 (Reville), the board of arbitration had this to say at p. 162:

Seniority is one of the most important and far-reaching benefits which the trade union movement has been able to secure for its members by virtue of the collective bargaining process. An employee's seniority under the terms of a collective agreement gives rise to such important rights as relief from lay-off, right to recall to employment, vacations and vacation pay, and pension rights, to name only a few. It follows, therefore, that an employee's seniority should only be affected by very clear language in the collective agreement concerned and that arbitrators should construe the collective agreement with the utmost strictness wherever it is contended that an employee's seniority has been forfeited, truncated or abridged under the relevant sections of the collective agreement.

Indeed, the vast majority of arbitration awards hold that where an employee has served in the bargaining unit, is transferred, or promoted out of it, but continues in the employ of the same employer, then seniority dates from the time of original employment unless the wording of the agreement clearly indicates otherwise. This is so even if the person is promoted out of the plant, or transferred to another branch as supervisor, or where the promotion to the supervisory position occurred before the bargaining unit was even organized. Arbitrators have recognized the importance of seniority rights and have been disposed to preserve and protect them unless there is very clear language in the collective agreement which compels some alternative approach. It will be seen, therefore, that on this basis there is little support for Ivor Quirola's assertion that when the complainants transferred to the distribution centre they forfeited their accumulated "plant seniority" in the manufacturing centre. That is not what the collective agreement says, nor is it consistent with the way in which arbitrators would approach the question. Quirola's view, if not clearly wrong, is certainly dubious. It is one thing to say that the complainants cannot splice together seniority acquired at each location, it is quite another to suggest that they have forfeited what they had already accumulated. The union's adherence to that interpretation magnifies the potential consequences to the complainants of their transfer to the distribution centre - a transfer which, on the evidence, would not have occurred but for the bad advice which they received from their shop steward.

33. In interpreting section 68 of the Act, the Board has not applied an unduly onerous or unrealistic standard. It is recognized that union officials will occasionally make mistakes - particularly since lower level union officials are typically elected by their fellow employees to serve on an unpaid part-time basis. They cannot be expected to exhibit the skill and judgment of a trained solicitor, nor should this Board readily engage in second-guessing a process of decision-making that resides at the heart of the administration of the collective agreement. Section 68 was not intended to transform honest errors, carelessness, or even negligence into a public wrong potentially subject to quasi-criminal sanctions. Had the Legislature sought to impose a negligence standard upon trade unions it could easily have done so by appropriate language. But it did not, nor has this or any other labour relations board interpreted the duty of fair representation in this way. On the other hand, the Act does prohibit conduct which is 'arbitrary", and in particular cases it may be difficult to draw the line between conduct which is simply wrong or negligent, and conduct which is "reckless", "flagrant", or "con­sistent with a non-caring attitude", to use some of the phrases mentioned by the Board in Walter Princesdomu and Canadian Union of Public Employees Local 1000 - Ontario Hydro Employees Union, [1975] OLRB Rep. May 444. The focus is not so much on the correctness of the union's decision, but on the process of decision-making; and as a practical matter where a union's decision appears to be both wrong and affects a critical job interest of the aggrieved employee, the Board will take a hard look at how the union went about its task. In the absence of some explanation as to what it considered, the Board might well conclude that an error - not in itself offensive - results from a failure to actually turn its mind to the grievor's position, the consideration of wholly extraneous factors, or some other matter which might indicate arbitrariness. To this extent then, section 68 does impinge upon the quality or adequacy of representation, and the merits of a union's decision will be a factor to be weighed in determining whether its actions were "arbitrary".

34. What then of the circumstances in this case? The grievors have suffered a loss of seniority. That loss is tangible even though it may not yet be financial, and it resulted from advice from a union official which the complainants' characterize as "wrong". Moreover, this characterization is supported by the current position of a more senior union official who suggests not only that the earlier advice was erroneous, but also that when the complainants acted upon it they forfeited seniority rights which they had already accumulated. Even that decision seems difficult to sustain on the language of the collective agreement or the established arbitral jurisprudence, but the point is that the Board has no direct evidence at all about the way in which Ms. Coltman conducted herself, whom she consulted, the extent of her enquiries and so on. Accordingly, there is no evidence before the Board to indicate the quality of the union's decision-making or to explain why or how it came to a conclusion or tendered advice upon which the complainants relied to their detriment. Nor is there any way that the complainants could reasonably be expected to know about the internal workings of the union which led to their present dilemma.

35. In the absence of any explanation from the trade union, and in the circumstances of this case, I do not think the Board would be warranted in drawing fine distinctions between mere negligence, serious negligence, and "arbitrary" conduct. There is sufficient evidence before the Board to establish a prima facie breach of section 68 of the Act and in the absence of an explanation from the respondent, the Board finds that a breach of section 68 has in fact been established. I turn now to the question of remedy.

36. As I have already noted, both the respondent trade union and Xerox were served with a copy of this complaint - the latter, not because there was any allegation against it, but because it could potentially be affected by any remedy the Board might be asked to fashion. However, although duly served, neither party chose to appear at the hearing.

37. The complainants' loss is tangible but, at this stage, not financial. This is not a case in which the Board should embrace the principles in Radio Shack, [1979] OLRB Rep. Dec. 1220, and try to calculate some monetary compensation based upon the work opportunities which the complainants may lose as a result of their loss of seniority. In my view, the most appropriate remedy is simply to direct that the union and Xerox rectify the complainants' position on the seniority list to put them in the position they would have been in had they never transferred to the distribution centre; that is, had they never received the bad advice upon which they acted to their detriment. The Board directs that the complainants be credited at the manufacturing centre with their full company seniority, just as if they had never left.

38. The Board will remain seized in the event that there is any difficulty in implementing this remedial direction.