N. Ghermeck, M. Cochrane, et al. v. Teamsters Local 230, 1983 CanLII 784

[1983] OLRB Rep. December 2014

0500-83-U N. Ghermeck, M. Cochrane, et al, Complainants, v. Teamsters Local 230 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent, v. Dufferin Concrete Products - Toronto Division, Intervener #1, v. Teamsters Union, Joint Council No. 52, Intervener #2, v. Group of Teamsters Local Union 879 Employees, Intervener #3

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. H. Wightman and P. J. O'Keeffe.

APPEARANCES: R. W Kuszelewski, K. W V. Whitaker and A. Gargarella for the complainants; Harold F Caley and Bruno Teichmann for the respondent; G. Grossman, S. Corradetti and D. Smith for intervener #1; Norman L. Jesin and Charles Thibault for intervener #2; C. Hillmer and Allan Christie for intervener #3.

DECISION OF THE BOARD; December 19, 1983

1This is a complaint under section 89 of the Labour Relations Act, alleging that the

complainants have been dealt with by their trade union contrary to the provisions of section

68 of the Act. Section 68 provides:

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.

2The complainants are essentially the drivers employed by Dufferin Concrete Products (hereinafter "Dufferin") in its Toronto operations. Local 230, the respondent, is the Teamster Local with jurisdiction for the Toronto area, and has at all material times had a collective agreement with Dufferin covering the complainants. In 1976, Dufferin purchased the ailing yard of a company called KBM in Oakville, and continued to operate it on a reduced basis. Oakville is considered part of the Hamilton area for Teamster jurisdiction. KBM, therefore, had had its collective agreement for Oakville with the Hamilton Local, 879, and Dufferin continued to do likewise after the purchase. There were by 1982 approximately 20 drivers on the former KBM seniority list, averaging 25 years' service with the company.

3Dufferin had, to that point, been treating Oakville and the "Toronto area" separately, the latter being serviced by a single dispatch system from yards in Erindale, Rexdale, and Pickering. Early in 1982, however, the company announced its plans to close the Oakville yard permanently, and to treat Oakville and Toronto as a single "market" area. There was a history of drivers from one jurisdiction having to cross the Oakville/Toronto line from time to time, often with grievances from the other Local, and the company wished to eliminate this problem by combining all drivers into an integrated seniority list, and using a single dispatch system for all of what it viewed as the "Toronto" area.

4Local 230 and its members, however, strongly opposed such a move, and a confrontation developed between the Toronto and Hamilton Locals. When it became apparent that no consensus was about to be reached at the level of the Locals, Local 879 requested a meeting of the umbrella group for the area, Teamsters Joint Council No. 52. The meeting was convened on February 24, 1982, and was attended by the Executive Board of the Joint Council, the Executive of Locals 230 and 879, and stewards and other drivers from each Local. In the course of the discussion, Bruno Teichmann, President of Local 230, indicated he had been told by Dufferin that they were working on continuing the lease for the Oakville yard. Charles Thibault, the President of the Joint Council, asked, "Why are we here then", and the meeting adjourned.

5It soon became apparent, however, that the company's plans to close Oakville would be proceeded with, and a second meeting of the Joint Council was set up for April 22, 1982, at the request of Local 879. Essentially the same people were in attendance as at the first meeting. One of the complainants, Mr. Gargarella, attended this meeting as a Local 230 steward, and testified that Mr. Teichmann took the position that he had a contract with the men of Local 230 (i.e., the collective agreement), and could not agree to any "dovetailing" of seniority. Mr. Contardi, the President of Local 879, argued the contrary position, and the Joint Council Executive withdrew to consider the matter. When it returned, it said it would need to consider the matter further, and would advise of its decision. There was, we might note, a suggestion made by Mr. Kuszelewski in argument that Mr. Contardi himself attended and participated in the deliberations of the Joint Council. Whatever the Board might have said about that, we note that this is the first time such an allegation has been raised on behalf of the complainants, and we are satisfied that Mr. Kuszelewski’s suggestion in argument stems from a misreading of the testimony given by Albert Gargarella. The Board accordingly finds no basis for considering that allegation further.

6On May 3, 1982, the Joint Council came down with a decision in favour of dovetailing. Its decision read:

Dear Sir and Brother:

Seniority Dispute between Locals 879 & 230 as it applies to K. B. M. Concrete, a Division of Dufferin Concrete Products. .

After considering all of the evidence and positions submitted by the Locals at the Hearings conducted on February 24^th and April 22^nd, 1982, it is the unanimous decision of Joint Council No. 52 Executive Board that the seniority lists of KBM and DCP be dovetailed. For the purpose of this decision "dovetailing" means"

"recognizing individuals starting date with both Companies and weaving them together chronologically forming one seniority list".

The formula for dovetailing to be as follows:

(1) The establishment of an active seniority list dovetailing all present employees actively working.

(2) The establishment of an inactive seniority list dovetailing all inactive or laid off employees.

(3) Recall shall be by seniority; once recalled the employee's seniority shall be dovetailed on the active seniority list in accordance with his original starting date.

This decision is effective upon receipt of this letter, and the Locals should notify the Company of this decision forthwith.

If either Local have any questions concerning the interpretation of this decision you are invited to attend the next Joint Council Executive Board meeting at 2.30 p.m. on May 26th, 1982.

Please contact the writer if you plan to be in attendance.

Fraternally yours,

"Charles Thibault"

Charles Thibault,

President.

Mr. Gargarella and other Local 230 members angrily attended at Mr. Teichmann's office to question the decision, and Mr. Teichmann is said to have responded that that was the law of the land, and there was nothing he could do about it. Whether or not that was Mr. Teichmann's response at that point (and we find it more likely that Mr. Gargarella was confusing this occasion with Mr. Teichmann's remarks a year later), Mr. Teichmann did not accept the Joint Council's decision as final. The company apparently had begun to implement dovetailing at that point, and Mr. Teichmann insisted on a meeting with management and Local 879. At the meeting Mr. Teichmann let everyone know that his men wereextremely unhappy over dovetailing, and that grievances would be filed. The next day the union did in fact collect grievances from all of 230's men and filed them with the company. A group of Local 230 members, headed by a Mr. Latto, also retained a lawyer, Mr. Rinaldo, and lodged a section 89 complaint with the Labour Board against the company and the Joint Council. In the face of all of this, the company on June 25, 1982, issued a statement through counsel that it was pulling back its decision to dovetail.

7Meanwhile, Mr. Teichmann had on June 14th filed an appeal to the International of the Joint Council's decision. In that appeal, he challenged both the decision of the Joint Council on the issue of dovetailing itself, and the authority of the Joint Council to make that decision. The letter of appeal read:

June 14, 1982

Dear Sir & Brother:

We are enclosing copies of Collective Agreements between Teamsters Local Union No. 230 and Dufferin Concrete Products and a copy of the Letter of Understanding between Dufferin Concrete Products - Toronto Division and Teamsters Local Union 230 and Teamsters Union 879. We are also enclosing a copy of a recent "decision" of Joint Council No. 52. This matter involved the dovetailing of seniority lists with respect to members of Local 230 and Local 879 who worked for an employer in separate locations under separate Collective Agreements.

At the hearings before the Joint Council we challenged the jurisdiction of the Joint Council to deal with and consider this matter.

As a result of the Joint Council decision we are faced with the following:

(a) grievances by the employees affected (copies enclosed);

(b) complaints to the Ontario Labour Relations Board under Section 89 of the Act (copies enclosed).

We are also concerned about the possibility of a termination application.

By this letter we are requesting that you declare null and void the "decision" of the Joint Council referred to above, as there is no authority in the constitution for the Joint Council to make the "decision" it made. In order that you might be aware of all of the facts we are requesting a meeting with respect to this matter.

With best wishes,

Fraternally yours,

"B. A. Teichmann"

Bruno A. Teichmann

President

Mr. Teichmann further discussed the problem at the Canadian conference of Teamsters in Calgary, and was advised to get the matter to arbitration as quickly as possible. This was done by Mr. Teichmann, and a hearing date of September 20th was arranged.

8At the hearing before the arbitrator, however, a group of 879 men appeared with counsel, and took the position that the matter ought to be dealt with by the Labour Board, via the section 68 complaint which they had apparently just filed against local 230. The theory of that complaint was that since the 879 men had been briefly transferred into the 230 bargaining unit in May of 1982, Local 230 now owed a duty of fair representation to them as well. As a result, all counsel (including Mr. Rinaldo for the present complainants) agreed to use the day to attempt to work out a mutually-acceptable resolution to the matter, rather than attempt to proceed at that point before the arbitrator. Based on the discussion which took place, counsel for the company undertook to produce a draft agreement and circulate it to the other counsel for consideration by their principals. Counsel did that on September 21st. The proposed compromise would have granted the men from Local 879 a seniority date on Local 230's seniority list of January 1, 1977. The existing Local 230 members, however, through their own solicitor, Mr. Rinaldo, rejected that compromise on October 12th.

9A new arbitration date was then set up by Mr. Teichmann, being January 10, 1983. On November 23, 1982, a meeting was held for all of the affected drivers of Local 230, in order to further discuss the options available. Mr. Teichmann had Local 230's counsel there, Mr. Caley, and Mr. Renaldo was invited to attend as well to assist the members. Mr. Gargarella testified that Mr. Teichmann was pushing the January 1977 compromise. Mr. Teichmann's evidence, which we accept as more precise, is that he urged the members to adopt some form of resolution before the International had an opportunity to issue a decision on his appeal. Based on his knowledge of how similar situations had been dealt with in the past, and the importance that the International placed on seniority "as a Teamster", Mr. Teichmann anticipated that the International would not be sympathetic to Local 230's appeal. Mr. Teichmann accordingly felt it was in his men's best interest to try to pre-empt a ruling by the International, and urged that the grievances be processed to arbitration without delay. Mr. Gargarella acknowledged in his evidence, however, that the men were not in favour of any action being taken at that point, because, with the dovetailing having been withdrawn, they were pleased with the way matters stood.

10It turned out not to be Local 230's choice, however. The Local 879 group, through their own solicitor, brought the matter on before the Labour Board in December. Counsel for Local 230 argued that the matter ought to be allowed to proceed to the scheduled arbitration, and that the Board ought to decline to entertain the section 89 complaints. The Board preferred the arguments of the 879 members, however, and on December 21, 1982, ruled that it would deal with the unfair labour practice complaint. The Board subsequently granted an adjournment, to permit all interests or complaints to be consolidated in a single proceeding. Bound by this decision of the Board, Local 230 cancelled the arbitration hearing set for January 10th, and prepared to deal with the matter before the Board. Mr. Gargarella acknowledged in his testimony that the complainants (the 230 men) had no quarrel with the efforts of Local 230 to represent them to this point.

11Then on January 31, 1983, the International issued its decision, denying Local 230's appeal. The decision rejected Mr. Teichmann's argument that the Joint Council had no jurisdiction under the constitution, and further ruled that no appeal lay to the International in a collective bargaining matter of this kind. The decision read in full as follows:

Dear Sirs and Brothers:

This will advise that the General Executive Board, at its meeting held January 27, 1983, voted to dismiss the appeal of Local Union 230, in its entirety, with respect to dovetailing of seniority lists at Dufferin Concrele Products. Based upon the submissions of the parties, and the decision of the Joint Council, it is clear that this is not a jurisdictional dispute. This dispute over seniority concerns a collective bargaining matter within the meaning of Article XIX, Section 12(c) of the International Constitution. As such, there shall be no appeal from the decisions of the Joint Council. Hence, Local Union 230 must comply with the May 3, 1982, decision of Joint Council 52.

For your information, a report of the General Executive Board's findings is enclosed.

Fraternally yours,

"Ray Schoessling"

Ray Schoessling

General Secretary-Treasurer

The attached findings read:

Appeal of Local Union 230 From a Decision of Joint Council 52 Involving a Dispute Between Local Union 230 and Local Union 879

This case comes before the General Executive Board pursuant to an appeal filed by Local 230 from a decision of Joint Council 52, which had resolved a dispute between Local 230 and Local 879 by ordering the dovetailing of seniority lists at Dufferin Concrete Products.

On February 24 and April 22, 1982, the Executive Board of Joint Council 52 conducted hearings to resolve the seniority dispute between Locals 230 and 879 as it applied to K.B.M. Concrete, a division of Dufferin Concrete Products. After considering all of the evidence and positions submitted by the Locals at the hearings, the Executive Board of Joint Council 52 unanimously decided that the seniority lists of K.B.M. Concrete and Dufferin Concrete Products should be dovetailed. The Joint Council decision, dated May 3, 1982, set forth in specific detaiil a formula for dovetailing the seniority lists. The decision of the Joint Council also specifically directed that the decision would be effective upon receipt.

By letter dated June 14, 1982, Local 230 appealed the decision of Joint Council 52 to the General Executive Board. Brother Bruno A. Teichmann, President of Local 230, argued that Joint Council 52 had no authority or jurisdiction over this dispute and that the General Executive Board should rule the Joint Council decision to be null and void.

Although it has been suggested that this dispute is a jurisdictional dispute covered by Article XII, Section 12 of the International Constitution, judging from the submissions of the parties and the decision of the Joint Council, it is clear that this is not a jurisdictional dispute. With regard to the contention that the Joint Council had no authority to resolve this matter, the following portion of Article XIX, Section 12(c) of the International Constitution clearly covers this situation:

The appeals procedure provided herein is also available to and must be followed by any member, or former member who is aggrieved by any decision, ruling, opinion, or action of the Local Union membership, officers, or Executive Board, including collective bargaining matters. In the case of collective bargaining matters, there shall be no appeal from decisions of the Joint Council.

This dispute over seniority is clearly encompassed within the phrase "collective bargaining matters", as set forth in the above-quoted provision of the International Constitution. As such, the Constitution clearly specifies that "in the case of collective bargaining matters, there shall be no appeal from decisions of the Joint Council".

Accordingly, the General Executive Board dismisses this appeal in its entirety and directs Local 230 to comply with the May 3, 1982, decision of Joint Council 52.

12In light of this decision, Mr. Teichmann consulted with counsel as to the options left open to him. He considered the possibility of:

(1) complying with the decision of the International, as the final authority in the organization;

(2) launching Court action against the International and/or the Joint Council; or

(3) simply ignoring the decisions.

Mr. Teichmann concluded from the opinion he received from counsel that he could not be successful in a suit against the International or the Joint Council. As an officer of the Local Union, he also decided that he could not simply disregard the decisions of the governing authorities under his constitution and by-laws. He therefore concluded that Local 230 had no further alternative but to accept the ruling of the organization, and to formally request the company to implement it. This he did by letter dated February 18, 1983, a copy of which was sent to each member, along with a copy of the Joint Council and International's decisions. At the request of Mr. Teichmann, a further meeting was arranged with all counsel, including counsel for the group of Local 230 drivers, in a final attempt to work out a compromise. No such compromise was forthcoming, however, and the company once again proceeded with the implementation of a single "dovetailed" seniority system. The Local 230 members drafted grievances and submitted them to Mr. Teichmann, but Mr. Teichmann, after consultation with Local 230's lawyer, refused to file them with the company. It was the opinion of Local 230's lawyer that, having advised the company of the International's decision and instructed it to proceed with the dovetailing, Local 230 would be estopped from proceeding successfully with a grievance which challenged the company for dovetailing.

13Counsel for Local 230 clearly was correct that it was, at that point, too late to grieve. And Mr. Gargarella in his evidence conceded that the complainants were satisfied with the respondent's efforts up to the point where the International issued its decision. The critical question, therefore, is whether Local 230 failed in its duty of fair representation in concluding as it did to accept the decision of the International, and instructing the company to implement the ruling which the Joint Council had previously made.

14In support of his argument that the duty has been breached, counsel for the complainants cited a number of authorities which the Board has now reviewed. In particular, counsel points to the decision of the Board in Stephen Gormley, [1978] OLRB Rep. Feb. 143, wherein the Board noted at paragraph 18:

… The Board has repeatedly held that in order not to act in an arbitrary manner in the processing of a grievance, the union must direct its mind to the merits of the grievance and act on the available evidence. While the effective operation of the grievance machinery requires that unions also be allowed to consider factors beyond the merits of a particular grievance in deciding whether to process a grievance on to arbitration, considerations of this nature must have their roots in the welfare of the bargaining unit and the bargaining process and must not be based on irrelevant facts or principles.

Here counsel argues that the Local 230 drivers had a clear protection in Article 28.01 of their collective agreement against dovetailing, and that the majority interest of the bargaining unit required Local 230 to submit the matter to arbitration if the company's view of the matter was to dovetail. He maintains that the decisions and directions of the Joint Council to do otherwise were "irrelevant facts" for Mr. Teichmann to be influenced by, because no authority existed under the respondent's constitution or by-laws to permit the Joint Council or International to usurp the power of the Local Union, as bargaining agent, to exercise its own discretion with respect to what everyone has agreed was, in the language of the constitution, a "collective bargaining" matter. Counsel argues that, where the rights of the employees and the obligation of the Local trade union are clear, the Local union is not entitled to take into account matters of internal trade union 'administration" (i.e., the maintenance of order within the International), unless there is clear evidence that a refusal to abide by a particular decision of the International would lead to the total collapse of the organization.

15In assessing the complainants' argument, a number of observations should be made at the outset. While our ultimate decision would likely not turn on it, we do not accept counsel’s submission that protection of the complainants (against dovetailing) was "expressly" provided by Article 28.01 of the Local 230 agreement. That Article went into the collective agreement for the first time in the 1982 round of negotiations, after the present controversy had raised the issue, and read:

ARTICLE XXVIII - MERGERS

28.01 Where the Employer acquires by way of purchase or any other manner of disposition the business or undertaking of Canada Building Materials Company, Custom Concrete Limited, Dufferin Concrete Products - Toronto Division, Kilmer Van Nostrand Co. Limited, McCord & Company (Division of Standard Industries Ltd.), Premier Concrete Products (Division of Lake Ontario Cement Limited), Richvale Block and Ready Mix, Division of Canfarge Ltd. - Thornhill and Teskey Concrete Co. Ltd. within the geographic area of this Agreement, and the operations of the Employer and such other company are merged, and the employees are intermingled, and further providing that such other company has a provision identical in form with this provision, the seniority lists of the Employer and such other company with respect to members of the Union shall be dovetailed. If the Employer does not require all of the employees after the merger, lay-off shall commence from the bottom of the dovetailed seniority list.

For the purpose of clarity it is agreed that this provision shall have no application to or effect on the intended closure of the Oakville plant of Dufferin Concrete Products.

It could be credibly argued, on the one hand, that recognition of the need for such a clause in order to accomplish dovetailing indicates the lack of any opportunity for dovetailing otherwise. On the other hand, it could also be credibly argued that the collective agreement language prior to this amendment simply left a vacuum on the issue of dovetailing, and that the parties, having been sensitized to the potential problem by the present controversy, undertook to write an appropriate code of compromise to govern any future situation. The Article itself is expressly stated to have "no application to or effect on the intended closure" of the Dufferin Oakville plant, which arguably was tantamount to saying that the insertion of new language into the collective agreement was "without prejudice" to the situation already in litigation amongst the parties.

16In addition, counsel for the complainants made reference to the respondent acting contrary to the interests and the will of the "majority" of the bargaining unit. It is worth noting, in that regard, that the "duty of fair representation" evolved historically out of a concern to protect the interests of the minority, within a regime of legislated bargaining rights. See Vaca v. Sipes, (1967) 386 U.S. 371; Ford Motor Company of Canada Limited, [1973] OLRB Rep. Oct. 519, at paragraphs 37 ff.; Dufferin Aggregates, [1983] OLRB Rep. Jan. 35, at paragraph 34; Cox, Rights Under A Labour Agreement (1956) 69 Harv. Law Rev. 601. To the extent that the duty of fair representation has come to be extended in appropriate cases to the union's treatment of the majority of the bargaining unit, or of the unit as a whole, that class of case must be analysed in a different way from cases like Dufferin Aggregates, supra, upon which the complainants have relied. In that case the conflict arose between disparate interest groups within the bargaining unit, and a potential for the so-called "tyranny of the majority" is readily apparent. In this case, however, no conflict whatever existed within the bargaining unit that Local 230 represented. The conflict was between the Local 230 bargaining unit as a group, and the laid-off members of the bargaining unit for which Local 879 had held bargaining rights. Local 230, in other words, had no conflict within the group it felt it had to represent. Local 230 clearly recognized that, and single-mindedly pursued the interests and the wishes of that group, at least to the point where its appeals to the International had been exhausted. Its final decision to comply with the direction of the International was not based on any "balancing of interests" within the unit, but rather a reluctant acceptance of the constitutional authority of the International.

17The acceptance by the Local of that overriding authority, however, raises issues which cannot be dismissed lightly. The present case involved a classic conflict of interest between two Locals of the same International Union, and it is difficult at first glance to find fault with the parent organization, through the Joint Council of local unions established under its Constitution, for accepting the responsibility for determining and resolving this difficult issue. This is consistent, in fact, with precisely the kind of response by the Teamster organization as a whole which the Board observed critically was lacking in the Softley Cartage case, [1982] OLRB Rep. May 766, cited by the complainants. But one can readily visualize the issue arising in a very different context, where heavy-handedness or interference by an International in the execution by a Local Union of its statutory mandate as bargaining agent might well appear less constructive. (For a case at least touching on the ramifications of this issue, consider the decision of the Board in the International Association of Bridge, Structural and Ornamental Ironworkers Union, [1978] OLRB Rep. October 1487.) In assessing the proper application of the duty of fair representation to cases of this kind, it appears to us that the extent to which members of a locally-represented bargaining unit can be expected to be made subject to the direction of a higher authority within the union cannot be determined without regard to the purported basis for such authority. There is, in other words, a contractual element involved in the overall administration of a trade union (cf. Astgen v. Smith, 1969 CanLII 488 (ON CA), 7 D.L.R. (3d) 657 (Ont. C.A.), which, while not strictly determinative of the "duty of fair representation", is clearly not irrelevant to it.

18That is not to say that the Board will interpret the governing documents of the trade union itself with the object of determining whether the interpretation ultimately acted upon is the correct one. There may be a contractual issue between the parties in a case like this, but that is not the issue which arises under section 68. The only standard required to be met under section 68 is to satisfy the Board that the trade union has not acted in a manner that is "arbitrary, discriminatory, or in bad faith." In applying the section 68 standard of review to a trade union acting, e.g., pursuant to its interpretation of a collective agreement, the Board has not required the union to satisfy the Board that its interpretation was the correct one. That would, as the Board has noted, amount to substituting the Board's opinion for that of the designated bargaining agent. Rather, the Board looks to the actual merits of the matter at issue only as a step in the process of satisfying itself that the trade union has in fact "turned its mind" to the problem in an honest and real way, as opposed to acting in a manner that appears arbitrary or in bad faith. We find no basis for a higher standard being imposed on a Local Union under section 68 with respect to its own internal documents. We recognize as well that a bargaining agent in the position of a Local Union, as argued here, may have to weigh in its mind the possibility of a lawful trusteeship being imposed by its parent, and the effect that that might have on the furtherance of its members' interests. But either the Local or, in the event of such a trusteeship, the International, remains subject to the "duty of fair representation" to the members, no less with respect to the purported basis on which a decision affecting the members is made by someone other than the designated bargaining agent, as it does with respect to the quality of decision-making itself. To that extent, the reasonableness or supportability of the disputed interpretation of the constitution may, as in the case of collective agreements, provide relevant evidence of the breach or non-breach of the statutory standard.

19Here the respondent Local 230 itself challenged the authority of the Joint Council to render the decision that it did. Local 230 abandoned that position only after the International Executive Board had considered the issue and given written reasons for its interpretation. Those reasons found the general authority of the Joint Council to be implicit in the following words of Article XIX, section 12(c):

In the case of collective bargaining matters, there shall be no appeal from decisions of the Joint Council.

The specific jurisdiction of the Joint Council over "collective bargaining matters" is not anywhere in the governing documents defined, but the fact that such a plenary jurisdiction exists within this organization is a reasonable inference from the language referred to. Nor in reviewing the constitution of the International, the By-laws of Local 230, and the By-laws of Joint Council No. 52, can the Board find anything inconsistent with that broad interpretation given to section 12(c) by the International. And Article XV, section 6 provides:

All Local Unions within the jurisdiction of the Joint Council shall affiliate with the Joint Council, comply with its laws and obey its orders.

It is true, as the complainants point out, that Article VI, section 3, of the Constitution provides:

In any controversy with an employer not covered by a Local Union agreement, the Local Union shall make all reasonable efforts to settle the same through negotiation and, if it fails, through a fair arbitration tribunal.

and that Article 20(E)(2) of the Local's By-laws provides:

Every member, by virtue of his membership in the Local Union, authorizes his Local Union to act as his exclusive bargaining representative with full and exclusive power to execute agreements with his employer governing terms and conditions of employment and to act for him and have final authority in presenting, processing and adjusting any grievance, difficulty or dispute arising under any collective bargaining agreement or out of his employment with such employer in such manner as the Local Union or its officers deem to be in the best interest of the Local Union …

but the remaining language of both of those Articles convey the clear intent that these stipulations exist subject to the overriding authority of the International and its constitution. he Board can, therefore, find nothing in the ultimate acceptance by the respondent of the purported authority of the Joint Council which on its face could be described as arbitrary, discriminatory, or in bad faith. What of the Joint Council's decision itself?

20Courts in the United States have on numerous occasions been called upon to consider mergers and the integration of seniority lists in the context of the "duty of fair representation". oremost in the Court's consideration of the problem has been the recognition that there is no clearly "right" or "wrong" answer: whether the decision be for "end-tailing" or "dove-tailing", there will always be a group of employees within the union (as the present case demonstrates) adversely affected by and unhappy with it. he courts, accordingly, have shown a great reluctance to attempt to "second guess" the decision of the union, so long as the decision which the union itself has arrived at appears to be a rational one. Se Post ‘Vaca' Standards of the Union's Duty of Fair Representation: Consolidating Bargaining Units, Mathews, (1974) 19 Villanova L.R. 885; Fair Representation, the NLRB, and the Courts, Boyce (1978) University of Pennsylvania, Industrial Research Unit. In the leading case, Humphrey v. Moore, (1964) 375 U.S. 335, a decision to dovetail seniority lists was arrived at unanimously by a join appeal body (the Joint Conference Committee), made up equally of union and employer representatives, and established to deal with grievances under the Teamster Union's collective agreement. The decision was challenged in the Courts by the adversely-affected members of the bargaining unit (the acquiring company's employees) on the grounds that; (1) the union had breached its duty to represent the buyer's employees fairly; and (2) the Joint Conference Committee had exceeded its authority under the collective agreement by taking jurisdiction over the controversy. After deciding the jurisdictional question, the Court went on to state, at page 347:

The [JCC] was entitled ... to integrate the seniority lists upon some rational basis, and its decision to integrate lists upon the basis of length of service at either company was neither unique nor arbitrary. On the contrary, it is a familiar and frequently equitable solution to the inevitably conflicting interests which arise in the wake of a merger or an absorption such as occurred here.

Commenting similarly on the approach of the Courts, Timothy Boyce, in Fair Representation, The NLRB, and the Courts, supra notes at page 18 of his study:

If the union has had more than one rational alternative, Courts have found no violation, even if they would have decided differently. In La Turner v. Burlington Northern Inc. the union chose to dovetail two seniority lists. The Court held that, although another method for consolidating the rosters would have satisfied a larger number of the employees affected by the merger, the Court would not have substituted its view for those of the union. When the union's position is the result of a rational process, Courts have thus been willing to let the decision stand.

And further, at page 24, the author notes that the Courts, recognizing the unavailability of a solution which will satisfy everyone, have "disclaimed any competence or authority to choose which solution was best." See Truck Drivers Local 568 v. NLRB, (1967) 379 F 2d 137.

21In the present case, Mr. Teichmann himself was able to see the difficulty which the International would face in reconciling the conflicting claims of the Local 879 and Local 230 men, bearing in mind in particular the fact that both groups had built up their seniority as members of the same parent organization. As Mr. Teichmann put it, in his candid testimony:

"When it came down to it, I had to ask myself - what would I demand if Dufferin was sold to KBM? I would insist and expect that seniority be protected."

And further, in explaining why he anticipated that the ruling of the International would perpetuate the decision of the Joint Council:

"It appeared to me that an impartial person removed from the dilemma of representing one group or another, would quickly come to the same conclusion."

But Mr. Teichmann recognized that he was not an "impartial person", and, notwithstanding his practical assessment of the matter, functioned throughout, we find, solely as an advocate and protector of the interests of his own Local 230 members. Knowing that full dovetailing had been adopted by the Teamster organization in similar situations elsewhere, Mr. Teichmann did his best to negotiate a compromise for his members which would be viewed as fair and acceptable to everyone. Failing that, he did his best to advance the matter to arbitration before the International could rule. But his own men, through the latter half of 1982, were themselves reluctant that such a step be taken, and after that the Local 879 group, with their own section 89 complaint, made it impossible.

22Once the International had rendered its decision, the Board does not find it arbitrary or unreasonable for Mr. Teichmann to have concluded that his practical options had been exhausted, having regard to the supportable interpretation which the International had placed upon its constitution, and the lack of any apparent irrationality or denial of natural justice in the decision arrived at by the Joint Council. Neither, in terms of the rationality of the Joint Council’s decision itself, was it improper for Mr. Teichmann to be sensitive to the fact that both groups of drivers belonged to Locals of the same parent organization. In addition, mergers and acquisitions had become an issue of some concern in this industry, and it was not unreasonable for Mr. Teichmann to reflect on the possibility that, the next time the issue arose, it might be his own men out on the street looking for the support of the Teamster organization. For all of the foregoing reasons, the Board finds no violation of the section 68 standard to have been committed by the respondent.

23The complaint is accordingly dismissed.