Felix Charles v. Canadian Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers, Local 304
[1984] OLRB Rep. July 908
2668-83-U Felix Charles, Complainant, v. Canadian Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers, Local 304, Respondent
BEFORE: Robert D. Howe, Acting Chairman.
APPEARANCES: Romain W. M. Pitt for the complainant; John McNamee for the respondent.
DECISION OF THE BOARD; July 25, 1984
This is a complaint under section 89 of the Labour Relations Act in which the complainant alleges that he has been dealt with by the respondent (also referred to in this decision as the "Union") contrary to section 68 of the Act. In particular, the complainant contends that the Union breached section 68 by entering into a collective agreement which contained Certain layoff and truck capacity provisions which are alleged to be arbitrary or discriminatory.
In addition to his client, counsel for the complainant called as witnesses two other bargaining unit employees, Veira Mitchell and Victor Clark. The sole witness called by the respondent in these proceedings was Cameron Nelson, a lawyer who has been the respondent's elected business agent since March of 1978. The findings of fact contained in this decision are based upon my assessment of the relative credibility and reliability of the evidence given by those witnesses, having regard to such factors as the firmness of their respective memories, their ability to resist the influence of self-interest in giving their evidence, their recollections, the consistency of their evidence, their capacity to express their recollections clearly, and their demeanour. Although many of the facts are not in dispute, there are a number of conflicts between the testimony of the complainant and the testimony of Mr. Nelson. In resolving those conflicts, I have generally relied upon the evidence of Mr. Nelson, whom I found to be a candid and credible witness, rather than the evidence of the complainant, who gave contradictory evidence on a number of matters, displayed significant memory lapses, and gave portions of his testimony in such a manner as to raise serious questions concerning its accuracy and reliability. For example, the complainant initially testified that he attended the January 26, 1984 Union proposal meeting and objected to the provisions which form the subject matter of this complaint. However, under vigorous cross-examination by counsel for the respondent, he ultimately conceded that he left at or near the start of that meeting, and did not voice any opposition to the provisions in question at that time or at any other time prior to filing this complaint.
The complainant has been a dependent contractor tandem truck owner-operator in the employ of Dufferin Aggregates (also referred to in this decision as the "Company") since 1974. In July of 1978 the Union was certified as bargaining agent for the Company's dependent contractor owner-operators of tandem trucks. In the fall of 1978, the Union and the Company entered into their first collective agreement in respect of that unit. In negotiating that agreement, the Union concentrated on improving haulage rates and monetary conditions, and placed only secondary emphasis on job security. By the spring of 1980 when the Union was attempting to negotiate its second collective agreement with the Company, the situation had changed dramatically. Since the total amount of bargaining unit work had declined substantially, the major issue in those negotiations was job security. Since one of the reasons for that decline was the Company's increased use of independent trucking contractors operating tractor trailer units (larger than the tandem trucks operated by bargaining unit members), the Union attempted to negotiate a provision under which bargaining unit members would be guaranteed a certain percentage of the stone shipped from the quarry, or a minimum of five loads per day. It also attempted to negotiate language that would permit bargaining unit members to purchase tractor trailers for use in performing bargaining unit work. However, the Company refused to agree to any of those proposals despite a nine-week strike, which was largely unsuccessful due to the fact that the tractor trailers continued to haul loads from the pit during the strike.
At the time of certification there were 45 persons in the bargaining unit. However, by the end of the strike that number had fallen to 34. Article 4 of the (June 18, 1980 to December 31, 1981) collective agreement that was entered into following that strike provided for the establishment of a "drivers' list based on seniority", the number of drivers on which was not to exceed 34. Article 4 further provided as follows:
4.02 There shall be no layoff during the life of this Agreement, it being understood that the drivers will share available work in accordance with present practice.
During the term of that collective agreement, a continuing decline in bargaining unit work gave rise to pressure from members to reopen the collective agreement and revise it so as to permit the Company to lay off drivers. As a result, on August 14, 1981 the Union and the Company agreed to delete Article 4.02 as set forth above, and to substitute the following provision:
Should the Company find it necessary to lay-off members of the bargaining unit due to lack of work, it shall do so in reverse order of seniority. During periods of lay-off, the Company shall maintain a lay-off list of drivers and shall recall them in order of seniority when work becomes available. Recalls shall be effected by telephone call and, if necessary, by telegram or registered letter sent to the driver's last known address. The Company will also advise the Union when it intends to lay-off or recall a driver.
Almost immediately after that amendment had been ratified, the Company laid off a number of bargaining unit members, thereby reducing its bargaining unit work force to twenty drivers. In May or June of 1982, there were further layoffs which reduced the bargaining unit to sixteen drivers. Among the drivers laid off by the Company was the complainant, who in May of 198 1 had purchased for approximately $90,000 a new truck with a capacity of about 27 tons. The complainant's payments on that truck exceed $1,700 per month. He also pays additional amounts for fuel, tires, repairs, insurance, and licence fees.
The Union's mid-contract negotiation of a layoff provision in substitution for the aforementioned work-sharing provision gave rise to a section 68 complaint by five members of the bargaining unit who were adversely affected by it. (The present complainant was not one of those five persons.) That complaint (File No. 1373-81-U) was dismissed by the Board, differently constituted, in a decision dated January 18, 1982 (reported in [1982] OLRB Rep. Jan. 35). Since the parties to the instant complaint are in agreement that the principles set forth in that decision are also applicable in the present case, it is appropriate to quote from the Board's reasoning in that decision at some length:
Allocating work and wages, whether in scarcity or in plenty, is the central fact in any scheme of collective bargaining. The struggle between union and management over the division of profits in the form of wage and benefits settlements usually gets the bulk of public attention. The less visible question, however, of which employees will work and how much they will get is often no less important. It may generate as much heat inside the union ball as does the confrontation with the employer outside. That kind of internal union tension stands in high relief in the facts of this case.
There are those who maintain that it is inconsistent with the duty of a trade union to fairly represent individual employees for the union to take steps that will prejudice employees' vital job interests, including their job security. That view has generally been associated with the argument for an absolute right of individuals to have access to arbitration for such serious consequences as the loss of their employment. (See, e.g. Blumrosen, Legal Protections for Critical Job Interest; Union Management Authority Versus Employee Autonomy (1959), 13 Rutgers L. Rev. 631.)
The fact, however, that a union may be required in bargaining to make a hard decision that has a serious economic impact on individuals, up to and including the loss of their jobs, cannot of itself make that decision unlawful. That kind of decision is, moreover, not unusual. In making collective agreements it is practically impossible for unions to avoid making decisions that benefit one class of employees at the expense of another. For example when a union opts for more wages rather than better pension provisions it benefits its younger members rather than the older ones. Trade-offs of that kind are the everyday stuff of collective bargaining.
Under the Labour Relations Act such decisions are lawful so long as they are not arbitrary, discriminatory or in bad faith within the meaning of section 68 of the Act. In the knowledge that unions are commonly required to make hard decisions affecting their members, those words have been deliberately chosen by the Legislature to avoid undue interference in the internal affairs of trade unions. The Board's powers of review over union actions under the section go only to matters of representation, when the quality of representation falls below the limited threefold standard set out in section 68. The issue in these proceedings, therefore, is whether the union's decision to re-open the contract and effectively allow junior employees to be laid off was arbitrary, discriminatory or in bad faith.
There is nothing inherently unlawful in a union making a decision that favours a group of employees over another. From the earliest decisions interpreting section 68 of the Act the Board has recognized the need for unions to have the latitude to make decisions that may favour certain employees at the expense of others. As the Board put it in Ford Motor Co. of Canada Ltd. [1973] OLRB Rep. Oct. 519, in applying what was then section 60 of the Act (at pp. 5 25-26):
In practical terms the relationship between members of the bargaining unit and the trade union is one of majority control. The relationship is not strictly one of contract between employee members of the union and the union, but rather the relationship is such that the system created more closely resembles the Legislative process than a contractual relationship; see Cox, Rights Under a Collective Agreement, 69 Harv. L. Rev. 601 (1956).
Section 60 of The Labour Relations Act seeks to ensure that individual's rights are not abused by the majority of the bargaining unit; it is an attempt to achieve a balance between the individual interests and the majority interest by recognizing that the exclusive bargaining agent has a duty to consider all the separate interests in the performance of its obligations. The duty has been described as the duty of fair representation. The emphasis is on fairness — it is a duty to act fairly in the interests of all members of the bargaining unit, minority factions, as well as majority factions, individual employees, as well as the collective group, members as well as non-members, craft employees as well as industrial employees. It is not a duty which makes the union the guarantor or insurer for every situation in which an individual employee is aggrieved or adversely affected; rather, the statute attempts to have the union consider the position of all groups and to weigh the competing interests of minorities, individuals and other like groups in arriving at its decision.
In this case the complainants ask the Board to conclude that the decision to effectively eliminate the jobs of a minority is in itself a violation of the duty to fairly represent the members of the minority. Counsel for the complainants argues that the grievors had a contractual right and expectation to work out of the quarry over the life of the collective agreement and that to re-open the contract to undo that right is a violation of their vested rights inconsistent with the duty of fair representation.
As compelling as that argument may seem, in my view it does not assist the understanding of the issue to simply assert that the members of a minority have an absolute right to be protected against negative consequences to their job security. The collective agreement is a contract made between the employer and the union. They are the parties to it, and any benefits which it confers on individual employees are necessarily subject to the possibility of amendment between the parties. In this regard it should be recalled that a collective agreement is not "a bundle of individual contracts between employer and employee negotiated by the union as agent for the employees". (Syndicat Catholique des Employes de Magasins de Quebec, Inc. v. Compagnie Paquet Ltee, 1959 CanLII 51 (SCC), 18 D.L.R. (2d) 346; McGavin Toastmaster Ltd. v. Ainscough (1975), 1975 CanLII 9 (SCC), 54 D.L.R. (3d) 1 (S.C.C.))
That is not to say that a trade union can with impugnity disregard the interests of the employees it represents or take either a hostile or an indifferent attitude where employees' critical interests are at stake. In discharging its duty to fairly represent all of the employees in a bargaining unit a union must address its mind to the circumstances of those who may be adversely affected by its decision. It has a duty to weigh the competing interests of the employees it represents and make a considered judgment the procedure and results of which must be neither arbitrary, discriminatory nor in bad faith.
Counsel for the complainants submits that in this case the union has not properly balanced the interests of the two groups of employees involved. He argues that if the union cannot show that the marginal advantage which the union's decision gives the majority outweighs the disadvantage to the minority, it has violated the duty of fair representation. In other words, he maintains that the union must justify its decision, and absent such justification the Board should conclude that the union's action is in violation of the duty of fair representation.
The submission must be considered with great caution. To adopt that standard in an unqualified way risks placing the Board in the position of being the arbiter of the political correctness of a union decision. The weighing of competing interests and the ultimate choice as to which outcome is preferable is a highly subjective decision, inevitably influenced by the inherent values, viewpoints and preferences of the decision maker. In the collective bargaining context such choices are highly political, and to that extent unions are required to act as responsive political bodies.
In bargaining changes that affect the competing interests of employees a union has a two stage involvement: firstly it must be the forum for resolving the conflict between sometimes irreconcilable employee interests; secondly it must act as the spokesman for the interests that carry the day. Once the internal choice is made the union must approach the employer with the force and conviction of a body with a single voice. To view the union in this later stage as the antagonist of the minority is to misconceive the process. Professor Cox, in discussing the processing of grievances, usefully summarized this dimension of union activity as follows:
When the interests of several groups conflict, or future needs run contrary to present desires, or when the individual's claim endangers group interests, the union's function is to resolve the competition by reaching an accommodation or striking a balance. The process is political. It involves a melange of power, numerical strength, mutual aid, reason, prejudice, and emotion. Limits must be placed on the authority of the group, but within the zone of fairness and rationality this method of self-government probably works better than the edicts of any outside arbiter. A large part of the daily grist of union business is resolving differences among employees poorly camouflaged as disputes with the employer.
(Cox, "Rights Under a Labour Agreement", (1956) 69 Harv. L. Rev. 601 at 626-27.)
The weight of authority supports the view put forward by counsel for the complainants that special considerations attach to any decision by a union that alters or abrogates the job security of employees. That is especially true in relation to seniority rights. Seniority rights, built up over time, usually over a number of successive collective agreements, represent an employee's stake in critical interests such as promotion, pension rights and his rights of layoff and recall. The concept of seniority comes as close as any to approximating a form of industrial relations property right for the individual employee and its consideration by labour boards in fair representation complaints is particularly instructive.
The special consideration attaching to decisions affecting seniority in assessing the duty of fair representation was expressed as follows by the B.C. Labour Relations Board in B.C. Distillery Company Limited, [1978] 1 Can. L.R.B.R. 375 at 381:
…….The fact of the matter is that existing seniority clauses take on a much more compelling hue than other contract clauses. This is a good statement of the reasons why:
…….Seniority enables an employee to acquire valuable interests by his work, to capitalize his labour and obtain something more than a day's wages for his continued production. When seniority determines promotion rights, it gives the employee a claim to better jobs when they become available; when seniority determines the order of layoff, it provides the employee a measure of insurance against unemployment. Seniority does not guarantee that vacancies in higher rated jobs will be filled or that any jobs will be available; but by giving the senior employee priority when a choice is made as to who will be promoted or who will remain employed, seniority gives an employee an interest of substantial practical value. As Professor Aaron has pointed out, more than any other provision of the collective agreement. . . seniority affects the economic security of the individual covered by its terms, and it has understandably come to be viewed as one of the most highly prized possessions of any employee. Seniority may be the most valuable capital asset of an employee of long service.
Summers and Love, Work Sharing as an Alternative to Layoffs by Seniority, (1976) 124 U. of Pa. L.R. 893, at p. 902.
Employees in the plant know their position on the seniority list. They believe that they have earned the spot by their long service. They have firm expectations that that position will remain unaltered. Suppose then that the union and the employer negotiate a change in that clause, one which has the effect of re-shuffling positions on the seniority list. How does the adversely affected employee naturally perceive that contract change? He believes that the parties have simply taken a valuable asset belonging to him and given it to another employee. That perspective is most dramatic in a layoff situation in which the total number of jobs in the plant is being reduced:
In a layoff situation, however, seniority takes on an importance of a wholly different order, for it determines who shall continue to work and who shall not. That determination necessarily carries with it all the other employment rights ordered by seniority — overtime, shift preferences, promotions, and the rest. In addition, layoff may jeopardize or destroy other valuable rights attached to employment or accumulated by long service. Layoff may result in termination of group medical or life insurance which the employee cannot afford to continue individually. If the layoff continues long enough to terminate seniority the employee may lose the longer vacations, accumulated sick leave, longevity pay, and perhaps even pension benefits earned by length of service. When employees are confronted with mass layoffs, the symbolic and real importance of seniority is most compelling; deviation from the order of seniority is viewed as repudiation of 'vested right'. It deprives the senior employee not only of his security but of all other values he has earned by his length of service.
Summers and Love, pp. 904-905.
And for these pragmatic reasons, the law simply cannot take the attitude that because the union and the employer freely negotiated the original seniority clauses, they are also able to change that existing clause at will. As Professor Archibald Cox said: "When established seniority rights are changed the bargaining representative should be required to show some practical justification beyond the desire of the majority to share the job opportunities theretofore enjoyed by a smaller group" (Cox, The Duty of Fair Representation (1957), 2 Villanova L.R. 151 at p. 64.)
[Emphasis added]
This case involves the elimination of a work sharing guarantee in favour of a provision of layoffs by seniority. A work sharing provision is one of a number of means, like seniority, like provisions prohibiting the contracting out of bargaining unit work, or like classification schemes, whereby job security can be directly affected. It is obviously a fundamental provision in any collective agreement, expressing as it does the choice and expectation of the employees respecting the allocation of work in times of scarcity. Commonly associated with the garment industry, work sharing represents a choice made by employees that in the event of hard times they will share the shrinking volume of work available rather than sever some employees from their jobs for the benefit of the remainder. That approach is readily understandable among dependent contractors who, like the complainants, operate with substantial capital investments in markets that fluctuate both with the economy and with the seasons. A hauler is arguably less secure if he is subject to layoff and recall at the discretion of this employer than if he has a contractual guarantee of a place in the quarry.
Work sharing has deep and abiding importance for the employees who are under it. Because it impacts on job security it represents an employee interest just as critical as a seniority provision. Action by a union to change or eradicate a work sharing or no-layoff provision must, therefore, be viewed seriously and be judged by the same standards as a change in seniority provisions. That is particularly so where, as here, employees have had the security and benefit of such a provision through successive collective agreements. The impact in this case is more dramatic still: as dependent contractors the complainants do not contribute to the Unemployment Insurance scheme. For them the consequences of a layoff are particularly hard, and the analogy to a change in seniority ranking provisions is extremely close. The decisions of the courts and labour boards on the relationship between seniority and the duty of fair representation therefore deserve close analysis.
.... The Board agrees with the view expressed by Professor Cox that a union transferring the job opportunities of a minority to a majority must be required to show some objective justification beyond the majority will. Predatory practices are not justified simply because they are implemented by a vote of the majority. To so conclude would be to eliminate any real protection to minorities, a result clearly inconsistent with the very origins of the duty of fair representation (Steele v. Louisville and Nashville Railroad Company (1944), 15 L.R.R.M. 708 (U.S.S. Ct.).
More recent U.S. decisions have, like the decision of the B.C. Board in the B. C. Distillery case, supra, stressed that when a majority transfers to itself employment advantages previously enjoyed by the minority it must show some objective justification beyond the mere will of the majority. The case of Barton Brands Ltd. v. NLRB (1976) 529 F 2d 793; 91 LRRM 2241 (U.S. C.A. 7th Circuit) is an example. In the wake of the closing of one plant and the merger of two companies the union negotiated to alter seniority rights and endtail the seniority lists. Employees had initially voted for dovetailing when it was believed that a new plant would open. The union's endtailing negotiations began when it learned that the plan to open a new facility had been abandoned. The Court held that seniority rights, once established, cannot be expropriated simply for the benefit of the majority (at L.R.R.M. 2246):
In summary, since the established seniority rights of a minority of the Barton employees have been abridged by the 1972 collective bargaining agreement for no apparent reason other than political expediency, there seems to be sufficient grounds in this case to support the Board order.. .in order to be absolved of liability the Union must show some objective justification for its conduct beyond that of placating the desires of the majority of the unit employees at the expense of the minority.
(emphasis added).
In this case a majority of the union has transferred to itself work opportunities previously enjoyed by a minority. The issue then becomes whether the evidence discloses an objective justification for the union's action.
The Board must obviously use great care in assessing what is and what is not objective justification for a union's decision, particularly a decision relating to choices as to the allocation of goods in conditions of scarcity. In my view it would be clearly inappropriate for the Board to substitute its own view for the union's by simply asking itself whether it would have acted differently. To do that is to substitute one subjective standard for another, and not to consider the issue of objective justification. The appropriate standard to be adopted by this Board is not unlike that expressed by the Court in the judicial review of the decisions of arbitrators: the Board should ask not whether the decision is right or wrong or whether it agrees with it — rather it should ask whether it is a decision that could reasonably be made in all of the circumstances, even if the Board might itself be inclined to disagree with it. Used in this sense "reasonable" must mean by the rational application of relevant factors, after considering and balancing all legitimate interests and without regard to extraneous factors.
This was a crisis decision — like a decision about how to determine who will survive in an overcrowded lifeboat. If the union had decided to transfer work from the minority to the majority in a time of relative prosperity, where its obvious motive was to increase the already profitable position of some drivers at the expense of others, it would be difficult to avoid the conclusion that its decision was in violation of the duty to provide representation free of invidious favoritism. That is clearly not the situation. I am satisfied on the evidence that continued economic hardship forced the union's members to question and eventually reject the wisdom of the work sharing provision in their collective agreement. For them sharing the work, or more accurately, sharing the lack of it, was no longer a viable means of doing business as dependent contractors.
In reaching its decision did the union adequately balance the competing interests of the majority and the minority? In considering that question it is helpful to weigh the relative advantages and disadvantages of work sharing for all of the truckers. For them work sharing was not a guarantee against unemployment. Under the collective agreement as it stood before it was re-opened there was ample scope for attrition in the quarry. The only difference under work sharing as compared to under layoffs by seniority is that as the volume of work diminished attrition would be by order of poverty. Drivers with greater financial obligations would be less able to survive lean periods than those who owned their trucks outright. Under that system, given continual shrinkage, the poor would go first and the rich would go last.
The drivers were in a "no win" situation. Absent an upturn in the volume of business (in which case layoffs would not be a problem) someone was going to be hurt by the economic pressure. In these circumstances can the union be faulted for choosing an alternative by which those with the longest investment of service in the quarry should go last? The union was not content with the system which, in effect, gave the shrinking work in the quarry to those with the financial strength to bid for it. It chose instead to let seniority prevail. In asking whether the ultimate decision is one that could be reasonably made I do not see how the union can be faulted for preferring what a particularly helpful study has called a political mode of allocation over a market mode of allocation in a time of scarcity. (See Calabresi and Bobbitt, Tragic Choices, New York, 1978, at pp. 31-41).
This Board cannot conclude that in the difficult circumstances facing it, the union's decision to alter its system of work allocation was without objective justification. Without ignoring the hardship on the junior employees who were eventually affected by the union's decision, I must conclude that the decision to renegotiate the work sharing provision was one which the union was entitled to make in the circumstances, and that neither the motive nor the consequences of its decision violated its duty of fair representation. For reasons elaborated above, I am also satisfied that the procedure followed by the union was free of arbitrariness, discrimination or bad faith.
In 1983 the Union had another lengthy and difficult set of negotiations with the Company. In spite of the aforementioned layoffs, the amount of work available to the remaining sixteen members of the bargaining unit continued to decline. Thus, the Union's main goal in the 1983 negotiations was to find a way to keep those sixteen owner-operators busy enough to survive. In particular, the Union pressed for a guarantee of 1,000 loads per year per truck. The Company responded by offering much lower guarantees, combined with substantial reductions in rates. Ultimately, the conciliation process was exhausted and a strike was narrowly avoided. Although the collective agreement produced by those negotiations did not include any work guarantee, Company officials advised the Union that they were confident that they could keep the sixteen remaining drivers busy in view of the fact that the Union not only agreed to freeze the rates at their 1982 level, but also agreed that if the Company cut 15 per ton off the price of its product, the Union would match further Company reductions, up to a maximum of 20 per ton. As a result, the Company was able to offer its customers a price reduction of up to 55 per ton. Since the Union and the Company were both of the view that the price reduction would yield sufficient work to keep the sixteen employees who remained in the bargaining unit reasonably busy, they agreed to include in their collective agreement a no layoff provision identical to the original Article 4.02 as quoted above, thereby protecting those sixteen drivers from being laid off during the term of that agreement.
The 1983 collective agreement also addressed certain dispatching problems that had been encountered as a result of the variety of sizes of tandem trucks owned and operated by bargaining unit members. Those trucks fell into three categories: small tandems, used to haul loads of about 17 to 21 tons; small tri-axles, used for loads of 22 to 24 tons; and big tri-axles, used for loads of 27 to 30 tons. Those disparate sizes gave rise to a number of tensions among drivers. For example, owners of the larger trucks did not like it when a smaller truck was called out of turn at the request of a customer who wanted a smaller truck to deliver a 20 ton load. Other large truck owners would refuse to take smaller loads destined for residential backyards, since they took too long to deliver. In an effort to resolve some of those problems, the Union and the Company agreed to the following language:
4.03 Drivers will be called by unit, which means that the type and size of vehicle will not be stipulated. However, if the unit is deemed unacceptable by the dispatcher because of size or any other physical reason, that unit must return to the trucking poo1 and assume a position at the bottom of the list. Undersize loads will be offered to all vehicles in order of call. Any operator refusing an undersize load will then return to the bottom of the list. Under-loads will be compensated for at a rate equal to 20 tons or at the legal net weight of the driver and vehicle, whichever is the least.
The variance in truck sizes also caused tension within the bargaining unit because larger truck owners, such as the complainant, could afford to have their rates cut more than owners of the smaller trucks. Thus, persons such as the complainant wanted the Union to negotiate more substantial rate cuts than small truck drivers could afford to take if they were to continue to earn a living. Drivers with smaller trucks, on the other hand, favoured layoffs rather than rate cuts as a means of permitting senior drivers to weather downturns in business.
After that collective agreement was signed, the volume of work available to members of the bargaining unit increased substantially due to the Company's "competitive edge" which resulted from the aforementioned price reductions. To the total surprise of Cameron Nelson and the other persons who had been involved in negotiating the 1983 collective agreement, work available to bargaining unit members increased so substantially in November of 1983 that the Company recalled two of the laid off tandem truck drivers that month and three more in December. Thus, the active work force increased beyond the anticipated level of 16 and, as a result of the no layoff clause included in the agreement, could not be reduced when the volume of available work declined.
On January 16, 1984 the Union held a meeting in the drivers' shack at the quarry for the purpose of formulating bargaining proposals for the next collective agreement. All of the members of the bargaining unit were notified of this meeting by mail. When some of the senior members of the unit asked Mr. Nelson whether the more junior members who had been recalled from layoff would be permitted to attend, Mr. Nelson indicated that they would. It was Mr. Nelson's uncontradicted evidence that all such persons, including the complainant, had been informed that they were entitled to attend, speak, and vote at that meeting. Although the complainant was in the drivers' shack that afternoon, he left before the meeting commenced at 4:30 p.m. Approximately fourteen members of the bargaining unit attended that meeting, which was chaired by Mr. Nelson. Of those fourteen, thirteen were employees who had never been laid off by the Company. The members who were in attendance at that meeting levelled much criticism at Mr. Nelson for his failure to anticipate that a temporary upswing in work would lead to persons being recalled whom the Company would be unable to lay off again when the work fell off as it always did during the period from January to April. During the course of that meeting, a number of proposals were received from the floor, discussed at length and passed by a majority vote as "proposed amendments" to be put to the Company during the ensuing negotiation, including the following:
Proposal #1 Amend Article 4.02 to provide that "Should the company find it necessary to lay off members of the bargaining unit due to lack of work it shall do so in reverse order of seniority. During periods of lay off, the Company shall maintain a layoff list of drivers and shall recall them in order of seniority when work becomes available. Recalls shall be effected by telephone call and, if necessary, by telegram or registered letter sent to the driver's last known address. The company will also advise the Union when it intends to lay off or recall a driver."
It is understood, however, that the 16 truckers listed in Schedule A attached hereto shall not be subject to layoff during the life of the agreement.
Proposal #5 Provide for clarification of the company's needs with respect
to the size of trucks needed.
The Company agreed to proposal #1 during negotiations and it was therefore included in the Memorandum of Agreement signed by the Union and the Company on January 26, 1984, which Memorandum was subsequently ratified by the membership at a meeting which the complainant elected not to attend. The complainant, who was number seventeen on the seniority list, was not included in that protected group of sixteen. The rationale provided by the respondent with respect to the protection from layoff of the sixteen employees with the greatest seniority was that, unlike the other members of the bargaining unit, including the complainant, those sixteen had never been laid off by the Company in the past and, accordingly, properly considered themselves to be a core group of permanent drivers. Mr. Nelson further noted that it was that group of sixteen employees for whom the Company and the Union had attempted in 1983 to negotiate protection from layoff on the basis that the rate reductions which they were prepared to implement would provide adequate work for them. It was also his uncontradicted evidence that sixteen permanent drivers would provide the Company with sufficient flexibility to meet short term fluctuations in demand, and that the membership made that proposal in recognition of the fact that if there were too many trucks for the work available, none of the drivers could make a reasonable living. I also accept his evidence that although the thrust of the Union's proposal was the protection of a specified number of employees (sixteen) from layoff, a list of sixteen specific individuals was appended (as Schedule A) because the Union wanted the sixteen to be identified in order of seniority since it was also proposing certain revisions to the loading order, based on seniority. (Those loading order revisions do not from part of this complaint.)
As noted above, the disparity of truck sizes had been a continuing source of friction within the bargaining unit. Since the Company had suggested to the Union in previous negotiations that bargaining unit members should be concentrating on smaller trucks rather than trying to compete with (non-union) tractor trailers, the membership decided to seek clarification of the Company's needs in this regard. However, the Union bargaining committee was itself split over the issue of truck size. The chairman of the committee owned a small truck and was unwilling to continue making relatively greater financial sacrifices than the owners of larger trucks. The latter favoured rate reductions but were opposed to limiting their load or truck size. Ultimately, the compromise arrived at was that although drivers could continue to operate trucks with a capacity of more than 24 tons, and could at any time increase the capacity of their trucks to 24 tons, the maximum load to be loaded on any truck would be 24 tons, with the exception that truckers on the aforementioned list of sixteen whose trucks carried more than 24 tons would be allowed to continue to carry their normal tonnage, provided that whenever they replaced their trucks they would be required to reduce the capacity to 24 tons or less. The following language to that effect was included in the Memorandum of Agreement signed by the Union and the Company on January 26, 1984, which was to be effective from January 1, 1984 to December 31, 1984:
Add a new clause 4.03(a) to provide that "with the exception of trucks specified in paragraph 2 of this article the maximum load to be loaded on any truck will be 24 tons. It is understood and agreed that any driver may increase the capacity of their trucks to 24 tons at any time.
Truckers on the list of 16 whose trucks currently carry more than 24 tons will be allowed to continue to carry their normal tonnage provided that whenever they replace their trucks or equipment they will be required to reduce the capacity to 24 tons or less.
There is conflicting evidence concerning the number of bargaining unit drivers whose trucks' capacity exceeded 24 tons. Mr. Nelson negotiated the Memorandum of Agreement on the understanding that two of the sixteen (Schedule A) drivers had trucks with a normal tonnage in excess of 24. It was the complainant's evidence, on the other hand, that "five or six" of the sixteen had a tonnage capacity of over 24 and that he was the only other driver who had a truck of that capacity. Veira Mitchell, another bargaining unit member who testified before the Board in these proceedings on behalf of the complainant, stated that about seven of the drivers in the group of sixteen had trucks with a capacity of over 24 tons. Victor Clark, a third member of the bargaining unit who was called to testify by complainant's counsel, estimated that eight or nine of the sixteen had such capacity. Mr. Nelson testified that it was his understanding that there were trucks "outside of the sixteen" that were larger than 24 tons, including the complainant's and the truck owned by G. Kourelakos. (The complainant acknowledged that Mr. Kourelakos had owned such a truck but maintained that he had replaced it with another smaller truck in the summer of 1983.) Although Mr. Nelson assumed that there were more than those two, he conceded that a number of the other large trucks had gone to Florida during the strike and had not returned. The situation is made more complex by the fact that Mr. Nelson was testifying on the basis of how much the trucks were licensed to carry, while the complainant purported to testify on the basis of the weight which the trucks actually carried. Under the circumstances, it is not possible to determine the actual number of trucks involved. However, it is clear that at least two of the sixteen were given the privilege of continuing to carry loads of over 24 tons, which privilege was denied to the complainant by the terms of the Memorandum of Settlement. However, it is questionable whether the complainant has suffered any actual loss as a result of that amendment, since the limitation had apparently not yet been applied to him as of June 4, 1984 (the day on which the complainant concluded his testimony in this matter.) Mr. Nelson sought to justify the truck size language contained in the Memorandum of Agreement on the basis that it was a compromise intended to standardize and minimize divergence in an "attempt to end the inter-group warfare that went on".
In addition to a number of provisions which are not in issue in the present proceedings, the January 26, 1984 Memorandum of Agreement also contained the following new clause (4.02(a)):
The company will only recall trucks over the core group of 16 when business requirements necessitate.
After any period of 2 weeks when it becomes apparent that the daily trips for each driver has fallen below 5 loads/day consistently the Company will either lay off surplus trucks or advise the union representatives in the quarry of specific details concerning the upcoming trucking requirements which would indicate that the loads/truck/day would return to the minimum of 5 loads/truck/day within a one week period.
With respect to that layoff trigger of five loads per day, Mr. Nelson testified that the bargaining committee "wanted to establish something that was objective, not wholly at the discretion of the Company". It is clear from the evidence that the desirability of a standard of five loads per day had been the subject of frequent discussion among the members of the bargaining unit. Indeed, the complainant himself stated in cross-examination, "We've all been saying that for five years." It is also clear from the evidence that anything less than five loads per day could easily be handled by the sixteen drivers who would not be subject to layoff, as they were capable of carrying nine or ten loads per day. Mr. Nelson further testified that the level of five loads per day was "the Company's number as well as the Union's number". In response to the complainant's suggestion that a driver who consistently carried five loads per day would become rich, Mr. Nelson advised the Board that there was no realistic expectation that any of the sixteen drivers would consistently attain that level as during the first four months of the year business is always so slow that the amount of work available to each of the sixteen would be far less than five loads per day. Indeed, the evidence indicates that in the first four months of 1982 and 1983, the sixteen drivers in question averaged less than two loads per day. The evidence as a whole, including the evidence adduced by the complainant and the two other witnesses called by counsel for the complainant, supports Mr. Nelson's assertion that although the impugned layoff provision would result in only the protected sixteen persons being at work during the period from January to April, the work available during that slow period "would not be enough to keep them even a third busy".
Following ratification of the Memorandum of Agreement, the complainant was laid off by the Company on February 6, 1984. However, he was recalled in May, along with Veira Mitchell (who is number 18 on the seniority list), as a result of the usual seasonal increase in the Company's business.
Prior to filing the present complaint, Mr. Charles never at any time raised an objection to the Union's bargaining proposals or the terms of the Memorandum of Settlement that were unanimously ratified by the membership. Mr. Charles attended neither the proposal meeting nor the ratification meeting, and lodged no objections with Mr. Nelson or with any other Union official. Although Mr. Nelson candidly conceded that the complainant's attendance at the proposal meeting would not likely have fundamentally altered the thrust of those proposals, he suggested that it might have "toned down some of the proposals".
Having regard to all of the evidence, I am satisfied that the object and effect of the five loads per day layoff trigger, combined with the protection from layoff of the group of sixteen, is to ensure that the limited bargaining unit work that is available will be shared among a group small enough to make it viable over the full course of the year, but large enough to meet some short term fluctuations in demand for the Company's product. In this regard, I accept Mr. Nelson's evidence that the Union was sincerely attempting to negotiate job security provisions that would be fair to all drivers, so that the sixteen permanent drivers who remained would be able to make a reasonable living and those who would be subject to seasonal layoff would know that in advance, and have a reasonable opportunity to seek work elsewhere. As noted above, it was for those sixteen owner-operators that the Company and the Union attempted to negotiate protection from layoff in their 1983 collective agreement, on the basis that the rate reductions which they were prepared to implement would provide adequate work for them. It was not contemplated in those negotiations that demand would increase to such an extent as to necessitate recalls, thereby creating anew the problem of too many employees during the slow period of the year, with no mechanism for layoff. Thus, the evidence as a whole supports Mr. Nelson's assertion that by negotiating those provisions, the Union's bargaining committee was merely enshrining what it thought had already been attained in the preceding collective agreement. Having regard to all of the circumstances, I find that the respondent has shown objective justification for those amendments, within the principles set forth in the Dufferin Aggregates case, supra. However, no such justification has been shown for the amendment which purports to preclude the complainant from using his existing 27 ton truck to its full capacity (upon being recalled to active employment), while permitting those within the group of sixteen who have trucks with capacity in excess of 24 tons to continue using them to their full capacity. No objection was or could be taken to the provision which requires owner-operators to reduce their capacity to 24 tons or less whenever they replace their trucks or equipment, and permits them to increase the capacity of their trucks to 24 tons at any time. That provision is clearly intended to promote long-term homogeneity of truck size in the bargaining unit, with a view to eliminating or minimizing that factor as a source of friction in the bargaining unit. However, the provision which permits certain members of the bargaining unit to continue to use their existing trucks to carry more than 24 tons, while precluding others, such as the complainant, from doing so, cannot be viewed in the same light. Rather than promoting homogeneity, this provision creates a further source of friction by precluding some employees from using their existing vehicles to full capacity while permitting others to do so, notwithstanding the fact that their operating and other costs will tend to be similar, if not identical. Thus, that provision, if applied to the grievor, would make him a second class bargaining unit member from an economic point of view even after he had been recalled to active employment, with little or no concomitant benefit to the interests of the bargaining unit members as a whole. Under the circumstances, in the absence of any objective justification for this patently discriminatory clause, I find that the respondent contravened section 68 by negotiating it into the collective agreement.
The parties agreed that the Board should determine whether section 68 had been breached and, if so, remain seized of this matter for the purpose of determining an appropriate remedy in the event that the parties were unable to reach agreement with respect to that matter.
For the foregoing reasons, the Board hereby declares that the Union has breached section 68 in the manner described above. The Board remains seized of this matter for remedial purposes in the event that the parties are unable to resolve that aspect of the case.