Ontario Labour Relations Board
[1983] OLRB Rep. December 2030
File No.: 1540-83-U Date: December 13, 1983
Between: Carlos Garcia, Louis Hackl, Jose Cuerdo, Adrian Ghirardi and Jorge Menegotti, Complainants, v. United Steelworkers of America, and Inglis Ltd., Respondents
Before: R. D. Howe, Vice-Chairman.
Appearances: Carlos Garcia, Jose Cuerdo, Jorge Menegotti and L. Hackl for the complainants; Keith Oleksiuk and Mike Hersh for the respondent trade union; Terrance R. Olmstead and Julian Kingsley for the respondent company.
DECISION OF THE BOARD; December 13, 1983
1This is a complaint under section 89 of the Labour Relations Act in which the complainants allege that they have been dealt with by the respondent United Steelworkers of America (referred to in this decision as the "union") contrary to the provisions of sections 68 and 69 of the Act. In particular, they allege that certain grievances were arbitrarily withdrawn by union officials, and request from this Board a direction that those grievances be referred to arbitration.
3The complainants are all employees of Inglis Ltd. (referred to in this decision as the "company") who are classified as tool and die makers. From time to time they have been called upon by the company to perform some maintenance work of the type normally performed by the company's millwrights. While the evidence is somewhat vague concerning the particulars of such work, it appears that the performance of maintenance work by tool and die workers generally occurred during periods in which there was more maintenance work to be performed than could be readily performed by the company's millwrights, or during the summer shutdown period.
4In April of 1982 the company notified the complainants that they would be laid off from April 26 to May 7 inclusive. On April 23, 1982, the complainants grieved their forthcoming layoff. In their grievance, the complainants expressed their desire to exercise (what they perceived to be) "their seniority rights under the Collective Agreement to work in the Maintenance Dept. for the duration of the layoff", and demanded "full compensation for all monies lost" in the event they were "refused the right to work in the Maintenance Dept." In support of their position, they referred to the following provisions of the April 1, 1980 to March 31, 1983 collective agreement between the company and the union (on behalf of its Local 2900):
Article 2 - General Understanding and Purpose
2:01 The purpose of this Agreement is to set forth formally, the rates of pay, hours of work and the working conditions that have been agreed upon, along with procedures for dealing with grievances and complaints and to promote orderly and peaceful relations between the Company and its employees.
Article 32 - Layoff Procedure
32:01 Step 1 by Department.
Where circumstances require a reduction in the working force, seniority shall be the guiding factor. The employee will be given a job at his current rate, or failing this, any job he is willing and able to do held by an employee with less seniority.
32:02 Step 2 by Seniority Unit.
If the employee's seniority cannot be exercised in the department, he will then exercise it in the seniority unit as a whole under the criteria set out in 32:01 above.
32.03 An employee displaced from his job as a result of the above procedure shall similarly exercise his seniority to be kept in employment, unless his seniority is sufficiently low that he may be laid off in any layoff then taking place in his seniority unit.
32:04 The words "Seniority Unit" as used in this and other Articles of this Agreement refer to the seniority units as defined in Clause 24:01.
(Plantwide Layoffs)
32:05 When it is necessary to reduce the overall working force in a seniority unit by layoff, such layoff will begin with the employees of lowest seniority in the seniority unit, and employees will be laid off in inverse order of seniority. Probationary employees will be the first to be laid off.
32:06 In a transfer due to a layoff, the employee shall receive no less than his former rate for at least two (2) weeks.
Article 34 - By-Passing of employee
34:01 (a) The only departure from laying off in such order will be made in cases where the work remaining to be done in a seniority unit, at the time of the layoff, cannot be done by employees remaining, in which case, an employee or employees of lower seniority in the seniority unit may be retained in employment and by-passed in the layoff.
(b) The Company will discuss all such cases with the Union and every effort will be made to keep such cases to a minimum, but the Company may, following discussion, by-pass such employees and the Union may grieve thereon, if agreement cannot be reached that the services of such employees are essential to the Company's operation at that time.
34:02 (a) In the event of a dispute involving the by-passing of an employee in layoff, the Company will grant for reasonable cause a trial period of up to ten (10) working days to an employee of greater seniority affected by the layoff whom the Union claims can do the job. The Company will acquaint the employee with such information as is normally required to do the job, including the procedures followed and the materials used.
(b) In the event that an employee is given a trial period and is not successful in convincing the Company that he can do the job satisfactorily, the employee will be placed on a job by the Company, held by an employee with lower seniority.
34:03 In the event that the job for which an employee has been by-passed is temporarily discontinued, he may be assigned to other work for a maximum of three (3) working days.
If the employee has not returned to the by-passed job within a period of three (3) working days, he shall be laid off without notice and placed on the Recall List in order of his seniority.
While performing a by-passed job the employee who has been maintained out of seniority may not accept another permanent job while there are employees on the Recall List with greater seniority who are able and willing to do the job.
5In its first step reply to that grievance, the company denied the complainants' request (to bump into the maintenance department) on the ground that none of the complainants had a "Provincial Government Ministries [sic] of Colleges & University [sic] Certificate of Qualification for a Millwright". The grievance was then referred to the second step of the grievance procedure. The company's second step reply is contained in the following letter dated May 17, 1982 from J. W. Kingsley, Manager of Manufacturing Engineering Services, to A. Sobie, the Chief Steward of Local 2900:
L. Hackl and J. Cuerdo who attended the second stage grievance meeting made the point that they had worked in the Maintenance department previously. They could not quote firm dates, but gave a range of years from 1973 to 1975. Personnel records were checked but there are no entries to confirm their statements.
Prior to the grievance being written, discussion had taken place between certain Tool makers and the General Foreman of the Maintenance department. I. McCreadie had made it abundantly clear that a prime requisite for any person employed by Inglis as a millwright was that the person must hold the Provincial Government Ministries of Colleges and Universities Certificate of Qualification for a Millwright.
This is noted under Factor 2 of the Job Classification of Millwright. A copy of the Job Classification sheet is attached.
Job Description Classifications which constitute the Co-operative Wage Study (C.W.S.) Manual, are referred to under Article 43 (wages) of the Collective Agreement. Article 43:01 states that "the Manual is incorporated into this agreement as Appendix 'A' and its provisions shall apply as if set forth in full herein''.
This clearly shows that there was no violation of the Collective Agreement, and therefore this grievance is denied.
6Article 43:01 of the aforementioned collective agreement provides:
43:01 The Co-operative Wage Study (C.W.S.) Manual for job Description Classification and Wage Administration, dated May 28, 1986 (herein referred to as "the Manual") is incorporated into this Agreement as Appendix "A" and its provisions shall apply as if set forth in full herein. Reference in the Manual to such jobs as trade or craft, assigned maintenance, clerical or technical, group leader, testing or inspection, learner, apprentice, instructor, shall not of itself establish existence of such jobs in the operations of the Company or determine that such jobs are within or are not within the jurisdiction of the bargaining unit.
7With the exception of Carlos Garcia's grievance dated August 17, 1982 (which will be considered in the next paragraph of this decision), the other grievances which form the subject matter of the present complaint pertain to various other periods of time during which the complainants allege that they should have been permitted to bump into the maintenance department. Those other grievances were also denied by the company on the ground that the complainants lacked the required certificate of qualification for a millwright.
8On August 17, 1982, Carlos Garcia filed the following grievance with the company:
I was asked to repair baseplate of press in press room. I objected on the grounds it was millwrights work and I did it under protest. The company had on a previous occasion refused me the right to bump into maintenance when I was laid off.
The settlement requested by Mr. Garcia in that grievance was:
The company to cease this harassment and make up their mind whether I am capable of doing this type of work and settling my previous grievance honestly.
It is clear from the evidence as a whole that Mr. Garcia filed that evidence (with the assistance of his steward, Eric Holt) in an attempt to support his layoff grievance with "recorded written evidence" concerning the incident described in the (August 17, 1982) grievance. Mr. Garcia did not expect or intend it to be processed beyond the first step of the grievance procedure or to form the subject matter of separate arbitration proceedings. Mr. Garcia was, at all material times, content to have that grievance "lie dormant" after being filed at step one. Thus, having regard to all the evidence, the Board finds that the fact that the union did not further process that grievance was based upon its (correct) understanding of Mr. Garcia's motivation for filing it, and does not, in the circumstances of this case, constitute a breach of any provision of the Labour Relations Act.
9The complainants' layoff grievances were subsequently processed by the union to the third step of the grievance procedure. The company's third step reply is contained in the following letter dated December 7, 1982 from T. R. Olmstead, the company's Industrial Relations Manager, to Mike Hersh, the President of Local 2900:
With the introduction of the CWS program it is understood that a job is classified based on the requirements as described under the twelve factor sub sections.
One of the jointly agreed minimum requirements to hold a permanent Millwrights position is an Ontario Certificate of Qualification as a Millwright.
While all of the grievors are certainly "skilled tradesmen" and are capable of performing many of the duties assigned to the millwrights, they have not qualified as a millwright under either the CWS classification or under the Ontario Government Certificate of Qualification program and are therefore not eligible to hold this position at Inglis.
Some of the grievors have worked under the previous job description of Maintenance Man prior to October 15, 1976 when the present classification was introduced, however, the prerequisites changed at that time.
The grievors claim that they are being asked to do Millwright's work is not necessarily so. Many tasks in Maintenance are not clearly defined and as such it is impossible to classify them as anybody's work. To the best of my knowledge, the grievors are not being asked to work outside of their classification.
For all of the above reasons these grievances must be denied.
One or more of the complainants were present at each step of the grievance procedure and union officials duly informed the complainants of each of the company's answers to their grievances.
10Mr. Hersh has been the President of Local 2900 for approximately one and a half years. Before that he held a number of other positions with the Local, including vice-president, chief steward, steward, and negotiating committee member. As part of his investigation into the merits of the complainants' grievances, Mr. Hersh conferred with the members of the Co‑operative Wage Study ("C.W.S") Committee concerning the millwright job descriptions contained in the C.W.S. Manual (incorporated into the collective agreement by reference in Article 43:01, as set forth above). Three of the members of that committee are union members who "took a year to go to school" for the purpose of familiarizing themselves with the Co‑operative Wage Study Manual and its implementation. Their responsibilities include preparation of job descriptions, such as that pertaining to millwrights.
11Mr. Hersh's investigation confirmed that the millwright job description adopted by the company, with the consent of the union, on October 15, 1976, included an "Ont. Cert. of Qualif. for a Const. Millwright" as part of its "employment training and experience" requirements. The members of the C.W.S. Committee were of the opinion that the complainants' grievances would not be successful because none of the complainants held such a certificate. It was their opinion that, in view of the incorporation by reference of the C.W.S. Manual, and the jointly agreed upon requirement of a millwright's certificate, the complainants would not be found by an arbitrator to be "able to do" a millwright's job, within the meaning of Article 32 of the collective agreement.
12Mr. Hersh also discussed the complainants' grievances with the stewards, who (along with Mr. Hersh himself) were sympathetic to the complainants' position as they felt that it was wrong for the company to call upon the complainants to perform millwrights' work on some occasions and then deny them any opportunity to bump millwrights in cases of layoff. Thus, union officials vigorously argued in favour of the complainants' position at each step of the grievance procedure but, unfortunately for the complainants, their position was consistently rejected by the company.
13After receiving the company's third step reply, the union processed the complainants layoff grievances to arbitration, in accordance with the provisions of the collective agreement. At that time there were approximately 200 unresolved grievances outstanding between the respondents. Since it had long been the practice of the respondents to consider and resolve outstanding grievances during the course of collective bargaining, the union grievance committee met in December of 1982 to consider which of the outstanding grievances were "weak" and which of them were "strong" grievances which they would "stick with" in the forthcoming negotiations for a new collective agreement. At a union meeting held on January 27, 1983, the membership unanimously approved a package of union bargaining proposals which included a proposal that all outstanding grievances be resolved prior to ratification.
14During the ensuing negotiations, the respondents each established a subcommittee to consider and resolve outstanding grievances. Those subcommittees initially spent a day going over each of the grievances individually. They then met two or three more times to consider various proposals for resolving the grievances. The complainants' layoff grievances remained unresolved until the "very end" when, following discussions with the main negotiating team and following rejection by the company of a union proposal that each of the complainants' be compensated for twenty hours' lost wages, the complainants' grievances were withdrawn as part of a final package in which thirty-three grievances were resolved in favour of the union and the balance (including the complainants' grievances) were withdrawn. In agreeing to withdraw the complainants' grievances, union officials considered their merits and concluded that the grievances would not succeed at arbitration in view of the C.W.S. millwright job description which had been jointly agreed upon by the union and the company, and in view of Article 43 of the Agreement which specifically incorporated the C.W.S. Manual by reference.
15While Mr. Hersh was of the view that the union could not win the complainants' grievances at arbitration, he candidly told the Board that the union might have been able to win some of the other grievances that were withdrawn during negotiations. However, while he "wasn't happy to drop them", he "couldn't see keeping the people on strike for them" when the membership had already been on strike for six weeks. (The strike commenced on April 7, 1983 and continued until mid May).
16At the union ratification meeting, Mr. Garcia questioned Mr. Hersh about the status of his layoff grievances. Since Mr. Hersh "didn't feel it was the time to go over all 200 grievances", he told Mr. Garcia that he would be happy to discuss the disposition of his grievances later on. In support of that position, he noted that it had never been the union's practice to discuss at ratification meetings the details of disposition of individual grievances because "people don't want to hear about 200 grievances; they want to hear about what took them out on the street". Mr. Hersh also noted the impracticality of discussing at a ratification meeting the merits and settlement details of hundreds of individual grievances. (Approximately 700 grievances were resolved in the round of negotiations which preceded the 1980-83 collective agreement.)
17Following that ratification meeting (at which the majority voted in favour of ratifying the settlement), Mr. Hersh provided the stewards with detailed information about the respondents' grievance settlement agreement and instructed them to explain that information to employees in their respective areas. The complainant Louis Hacki subsequently met with Mr. Hersh and had an amicable discussion with him concerning the disposition of the complainants' grievances. At Mr. Hackl's request, Mr. Hersh provided the following written explanation to all of the tool and die workers on or about June 15, 1983:
Tool Room Employees
Dear Brothers of Department 822
In response to your request concerning grievances #374,387,390 and 394 - 82, I shall express to you the opinions of the C.W.S., Grievance, and Negotiating Committees.
Your concern about performing elements of the Millwright's job description on a number of occasions in the past was well documented by Brothers Hackl, Cuerdo and Garcia at different stages of the grievance procedure. This is a legitimate complaint, and on that basis the grievances mentioned above were processed and pursued through three (3) stages right up to Negotiations.
As you are aware, the General Membership Meeting of January 29, 1983 gave the Negotiating Committee the prerogative to settle all outstanding grievances prior to a new contract being ratified. This is not necessarily the best manner in which to handle grievances, but given the backlog of grievances (close to 200) and the slowness and inefficiency of the arbitration procedure, we had little choice.
At meetings with the Company during Negotiations, we once again asked that senior employees of the Tool Room be compensated for all monies lost due to not being called in to perform Millwright's jobs held by junior employees during the Work Share Program. Our arguments were those I have referred to above, namely, that you have been directed to perform certain elements of the Millwright's job procedure in the past.
But after much discussion among ourselves, and weighing the opinions of the C.W.S. and Grievance Committees, the Negotiating Committee felt that this was as far as we were willing to go with these grievances. Consider the following:
1./ As agreed to by both the Company and the Union members of the C.S.W. Committee, Factor 2 of the job classification for a Millwright states that he/she must hold an Ontario Certificate. No Toolmaker came forward with such a certificate. Had the Company called in a Toolmaker during the Work Share Program to perform a full Millwright's job, then all the Millwright's [sic] would have had a grievance far more legitimate than yours.
2./ Your desire to cross Trades with these grievances is totally contrary to the principle that you have been at the forefront of upholding in the past, that is, that each Trade be clear demarkated [sic] and that there be no crossover.
I do not claim to be an expert on these matters, but those with more experience than I, concur with my comments. I hope this answers your inquiries.
Fraternally yours,
(signed) Mike Hersh
President Local 2900
U.S.W.A.
The veracity of that information was confirmed by Mr. Hersh in his candid and credible testimony before the Board in respect of the present complaint.
18In his evidence before the Board, Mr. Hersh observed that although the complainants' grievances had been withdrawn, the union had made it clear to the company that tool and die makers were not happy about being called upon to perform millwrights' work in order to meet the company's needs, when they were not, in turn, eligible to bump millwrights to meet their own needs during layoffs. He further indicated that the union is prepared to duly process any future grievances which the tool and die makers may wish to file with respect to being required by management to perform millwrights' work. The evidence also establishes that during the course of negotiations, the respondents' representatives discussed the undesirability of accumulating grievances at the end of a collective agrement, and agreed to modify the grievance procedure in an effort to avoid recurrence of that situation.
19As indicated above, the complainants allege that the union has contravened sections 68 and 69 of the Act. If section 69 has any application where, as in the present case, "hiring hall" operations are not in question, then the reach of that section is, at best, no greater than that of section 68. (For a discussion of the application of section 69 see, generally, Joe Portiss, [1983] OLRB Rep. July 1160). Accordingly, the Board will proceed to consider whether the complainants have established a contravention by the union of section 68, which 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.
20There is no evidence whatsoever before the Board of any bad faith or discrimination by the union in its representation of the complainants, nor is it possible to conclude on the facts set forth above that the union has acted in a manner that is arbitrary. The thorough attention given to the complainant's grievances by Mr. Hersh and other union officials does not reflect the type of "not caring", reckless, capricious, perfunctory, or grossly negligent approach proscribed by section 68. (For a discussion of the ambit of the term "arbitrary" in the context of section 68 of the Act, see, for example, I.T.E. Industries, [1980] OLRB Rep. July 1001, and Bedard Girard Ontario Limited, [1981] OLRB Rep. Oct. 1318. See also Brown, The "Arbitrary", "Discriminatory" and "Bad Faith" Tests Under the Duty of Fair Representation in Ontario (1982), 60 C.B.R. 412, at pp. 440-448.)
21The Board has consistently held that section 68 of the Act does not require a union to carry any particular grievance through to arbitration simply because a grievor so desires. Moreover, it is well established in the Board's jurisprudence that it is not the function of the Board, in applying section 68, to "second guess" a union decision not to arbitrate a particular grievance (or grievances). A union is not required to be correct in its assessment of the merits of a grievance; it is sufficient if union officials have directed their minds to the grievance and arrived at a reasoned judgement about what to do, after assessing the various relevant considerations, including how critical the subject matter of the grievance is and how much validity the grievance has. The Board has also held that a procedure which ties grievance negotiations to the negotiation of a new collective agreement in order to provide underlying urgency for compromise and rational discussion is not inherently unfair or arbitrary, but rather is one legitimate (although, as recognized by the respondents, by no means necessarily the most desirable) procedure for preventing the administration of a collective agreement from becoming bogged down in a quagmire of unresolved disputes. (See, for example, Nick Bachiu, [1975] OLRB Rep. Dec. 919.)
22In the present case, union officials duly directed their minds to the merits of the complainants' grievances and concluded, after carefully investigating the grievances and consulting with members of the C.W.S. Committee, that they would not be successful at arbitration. Under the pressures of collective bargaining in the context of a six week strike, the union bargaining committee, mandated by the membership to resolve all outstanding grievances through collective bargaining, pressed the company to allow the grievances (in whole or in part), but without success. Faced with the alternative of an even longer strike, the bargaining committee, after duly considering the merits of the complainants' grievances, decided (not unreasonably) that it was in the best interests of the membership as a whole to withdraw the grievances in question as part of a package in which the company agreed to favourably resolve 33 other grievances.
23Having regard to all the evidence and the submissions of the parties, the Board finds that the respondent trade union did not contravene sections 68 or 69 of the Labour Relations Act.
24For the foregoing reasons, this complaint is hereby dismissed.