[1984] OLRB Rep. August 1133
0667-83-U Timothy W. Smith and William Morton, Complainants, v. Toronto Joint Board Amalgamated Clothing & Textile Workers Union Local 141 4J, Respondent, v. Group of Employees, Objectors
BEFORE: R. O. MacDowell, Acting Alternate Chairman.
APPEARANCES: Timothy W Smith and William Morton on their own behalf Paul Cavalluzzo and Jack Matraia for the respondent; Ross Drake for Xerox of Canada Ltd.; James Fyshe for the objectors.
DECISION OF THE BOARD; August 9, 1984
This is a request for reconsideration of a decision of the Board dated December 19, 1983, which was heard together with a new but related complaint under section 89 of the Labour Relations Act. In order to appreciate the issues in these two proceedings, and their relationship to each other, it is necessary to review what the Board has already decided.
The complainants, Timothy W. Smith and William Morton, are employees of Xerox Canada Inc. They are represented for collective bargaining purposes by the Amalgamated Clothing & Textile Workers Union Local 1414. On July 28, 1983, they filed a complaint against their Local Union alleging a contravention of section 68 of the Act. That section reads as follows:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent trade union of the council of trade unions, as the case may be.
The complaint raised a number of concerns. One of them was that as a result of advice given to the complainants by a union official, or relayed to them from their Local union president through that union official, they lost their position on the company's seniority list. They were told that a transfer to another part of the company's operations would have no effect on their seniority. Acting on that advice, they accepted a transfer to another plant. But the advice was wrong. The two plants have separate seniority lists. Employees cannot "splice together" their years of service at the two locations — a fact which they learned to their chagrin when they were subsequently laid off and had to look for job openings back in the location where they had worked before. And, upon their return, they could not claim credit for the time worked at the second location.
In the complainants' view, they had suffered a double penalty: a loss of their jobs at the second plant, and an inferior position at their original location. The complainants' position was that, but for the union's erroneous advice, they never would have accepted a transfer. They never would have lost their position on the seniority list. Their "plant seniority" and their years of service would be the same. The complainants sought an order from the Board to put them in the same position as they would have been in had there been no bad advice and no consequent transfer to the company's second location.
A hearing in this matter was scheduled for July 26, 1983. The union got notice of the hearing. It did not appear. The Board proceeded in the union's absence, and heard the complainants' evidence.
After the hearing, but before the Board had issued a decision, the union sought to have the proceeding reopened for the purpose of soliciting further evidence — in effect, a request for a hearing de novo. On October 20, 1983, the Board scheduled a further hearing to allow the union to explain why it had not attended the first one, and to make submissions on its request for a new hearing. This request was opposed by the complainants.
The Board was not persuaded that it should reopen the case and conduct a hearing de novo. The reasons for that conclusion are set out in the Board decision, and need not be repeated in detail here. It suffices to say that, in the Board's view, the union did not establish sufficient grounds for granting a rehearing. It was admitted, for example, that the two union officials involved with the complaint, had not even bothered to read it carefully, or the notice of hearing. They had also assumed, quite unreasonably, that the case would be settled short of a formal hearing.
The complainants established a prima facie case. It was uncontradicted. They won. They requested a restoration of their seniority in order to put them in the position they would have been in had the union not tendered the bad advice on which they had acted to their detriment. The Board agreed:
The complainants' loss is tangible but, at this stage, not financial. This is not a case in which the Board should embrace the principles in Radio Shack, [1979] OLRB Rep. Dec. 1220, and try to calculate some monetary compensation based upon the work opportunities which the complainants may lose as a result of their loss of seniority. In my view, the most appropriate remedy is simply to direct that the union and Xerox rectify the complainants' position on the seniority list to put them in the position why would have been in had they never transferred to the distribution centre; that is, had they never received the bad advice upon which they acted to their detriment. The Board directs that the complainants be credited at the manufacturing centre with their full company seniority, just as if they had never left.
In response to a later request for reconsideration and clarification of this decision the Board commented:
The purpose of the Board's remedial order was, insofar as possible, to put the aggrieved employees in the position that they would have been in had their trade union not contravened section 68 of the Act. The breach of the Act consisted of a misrepresentation to the complainants upon which they acted to their detriment. They left the manufacturing centre and transferred to the distribution centre — a transfer which the Board found, on the evidence before it, would not have occurred had they not been badly advised. Having left the manufacturing centre, of course, they were no longer accumulating "plant seniority" at the manufacturing centre. Their plant seniority is less than it would have been had they not transferred, by the amount of time that they spent at the distribution centre. In the Board's view, it seemed most appropriate to simply direct the union and Xerox to rectify the complainants' position on the seniority list to put them in the position they would have been in had they never been transferred to the distribution centre at all. To do that, it is only necessary to add to their existing plant seniority the time which they spent at the distribution centre since, had they not transferred there, their plant seniority would have been greater by this amount. If the complainants had only worked at the manufacturing centre, their plant seniority and company seniority would be the same and, this was the result that the Board sought to achieve. While this may well result in some change in their relative position on the seniority list, it is necessary to put the employees in the position that they would have been in had there been no breach of the Act by their union and it is preferable to trying to determine some monetary sum to compensate them for the loss of plant seniority or to remaining seized for months or perhaps years to see whether the potential detriment actually crystallizes.
Having regard to the foregoing, the Board directs that the complainants' plant seniority be rectified so that it will include their total years of service at the manufacturing centre and the distribution centre.
It is this aspect of the Board's decision which sparked the latest request for reconsideration and a new complaint against the respondent trade union. (Board File 3063-83-U)
The Board's remedial order had the effect of putting the complainants in a higher position on the seniority list than they had before the complaint. It put them where they should have been but for the union's error. It did not remove or diminish anyone else's seniority, but by changing the complainants' position, it did mean that relative to others they would have a better claim than they had before, to any rights or benefits under the agreement contingent upon seniority. More job security is the most obvious benefit (although there is no evidence that any layoff is contemplated which would "cut deep enough" to give the complainants any real advantage), however, in addition, there are also lesser benefits, such as an enhanced access to favourable shifts, temporary promotions, and so on. The precise impact of the rectification of the complainants' seniority cannot be determined, but there is no doubt that they have gained something from their complaint and may continue to do so in the future. For example, one of the complainants has already received a temporary work assignment which he would not have received before.
The current request for reconsideration is made by the group of employees who are now one notch lower on the seniority scale because of the complainants' change in position. When the complainants transferred out of the plant these individuals notionally moved up one notch and when the Board restored the complainant's lost seniority they notionally moved down again. These employees have not actually lost any seniority, of course, but their relative position is marginally inferior to what it was before, and, as in the case of the temporary work assignment
mentioned above, at least one of their number will lose something which he would have had, but for the rectification of the complainants' seniority position. These employees claim that they have been adversely affected by the Board's decision and argue that before the Board made any decision affecting the complainants' position on the seniority list, it should have stopped the hearing and given all of the employees notice so that they could make submissions on remedy. They rely upon the decisions of the Supreme Court of Canada in Re Hoogendoorn and Greening Metal Products and Screening Equipment Co. (1967), 1967 CanLII 20 (SCC), 65 D.L.R. (2d) 641; and the Ontario Court of Appeal in Re Bradley and Ottawa Professional Fire Fighters Association 1967 CanLII 160 (ON CA), [1967] 2 O.R. 311, 63 D.L.R. (2d) 376. They request a rehearing or, in the alternative, a reconsideration of the remedy question.
The related complaint addresses the same employees' concerns from another angle. That complaint alleges that the way that the union handled the first section 68 complaint was itself "arbitrary" and a breach of its section 68 duty of fair representation. It is asserted that the union negligently and unnecessarily forfeited the opportunity to present a "winning defence". The case was needlessly lost and, as a result, a number of employees represented by the union found themselves, in relative terms, in a poorer position on the seniority list. The second complaint seeks to rectify the consequences flowing from this lost opportunity. Of course, if the Board were to grant a new hearing in the first case or substitute some remedy which does not affect the other employees in the bargaining unit, the second complaint would be academic.
The particular circumstances of this case may be a little unusual, but the question it raises is a more general one: who has a right to be notified and to participate in an unfair labour practice proceeding, in addition to those whose statutory rights are clearly and directly in issue. The Labour Relations Act does not provide a clear answer. The rules and forms contemplate general notice to employees when representation questions are raised (certification applications, termination applications, successor rights applications, etc.), but they do not contemplate any general notice in unfair labour practice complaints. The Act does not give any precise guidelines for identifying potentially interested parties who should be given notice because of the kind or extent of their potential interest in the proceeding, or its possible result. Neither does the Statutory Powers Procedures Act. Nor does either statute address the question of whether notice to one party — here, the union, the immediate respondent and the employees' statutory bargaining agent — avoids the necessity of specific notice to persons allied in interest to the party (again, the union in this case) whose statutory rights are directly in issue.
This problem is not unique to the present circumstances. It could arise in many unfair labour practice situations — indeed, perhaps in most. It will be remembered that the employees' character and conduct are not in issue. They did not lose any seniority in any absolute sense. They are affected only relatively because the complainants, their fellow employees, regained seniority which they would have had had there been no breach of the Act. That scenario could arise in a number of cases.
Suppose, for example, that some employees had been discharged or laid off because of their trade union activity. If their unfair labour practice complaint were successful, they would in all likelihood be reinstated without loss of seniority or other employment benefits. But their return to the bargaining unit and the seniority list would inevitably affect the relative position of all employees below them on the seniority list. Should those affected employees be given notice so that they could appear with their employer to defend against the complaint, or perhaps to argue that the Board should not exercise its discretion under section 89(4) of the Act to direct the aggrieved employees' reinstatement? And what of the replacement of illegally discharged employees by "new hires" who in all likelihood will be terminated if the aggrieved employees are reinstated? Are they to be entitled to notice of the unfair labour practice proceeding and a separate right to participate? Given that the Board is dealing with collective bargaining situations, it is difficult to conceive of many cases where employees could not assert some right to participate, based upon the potential affect upon them that a Board remedial direction might have. Thus, in the instant case, even if an award of damages were made against the Local union, this could be said to prejudicially effect the employee members of the Local who would ultimately have to make good on the compensation claim from their own pockets. Would those employees have a separate right to representation?
This problem is not a new one, of course, either before this Board or the Courts. In our complex economic society, it is not at all unusual that the results of particular litigation will have serious economic ramifications beyond the immediate parties to the dispute. Competitors, suppliers, and employees may all be vitally interested in the outcome. In the case of employees, for example, a decision which significantly impinges upon the way in which their employer does business, may result in the loss of their jobs. But this does not give them status to intervene in a contract action or one involving a patent or trade mark. The Courts in this context would hold that they are merely "commercially or incidentally rather than directly or legally affected". (See West gate v. Sudbury Rand Mines Limited (1940) O.W.N. 258 and the cases cited therein.)
This Board has adopted the same approach in Napev Construction Limited and Vepan Leaseholds Limited, [1976] OLRB Rep. March 109. In that case (to simplify a bit) the Bricklayers' union sought to enforce compliance with a provision in its collective agreement requiring an employer to hire only union members or, alternatively, to engage subcontractors who were themselves under a contractual obligation to hire union members. The purpose of this clause was to give union members a preferred right to existing job opportunities. The inevitable result of the proceedings before the Board, and the real object of the complaining trade union, was to force the respondent employer to sever its subcontract with a company which did not hire members of the union, and to either hire union members directly, or subcontract to another company with the appropriate union connection. For the employees of the existing contractor who were not members of the Bricklayers' union, the intent of the proceeding was clear: their jobs were "on the line". If Napev/Vepan was in breach of its contractual obligations they would be put out of their jobs. Accordingly they sought to intervene in the proceedings to support the position of the principal employer. They were unsuccessful. The Board held that they were only commercially or incidentally affected, even though the inevitable result of the proceeding before the Board would be a repudiation of the subcontract and a loss of jobs. An application for judicial review of this decision was dismissed.
I do not suggest that the situation in Napev is precisely parallel to the situation of the employees in the instant case. But neither is it the same as the position of the employees in Hoogendoorn or Bradley, who successfully sustained their right to notice and separate representation in the arbitration proceedings there under consideration.
In Hoogendoorn, an employee refused to authorize the deduction of union dues which the terms of his collective agreement made a compulsory condition of employment. When Hoogendoorn failed to authorize or remit the required dues, and the employer refused to discharge him, the union took a grievance to arbitration alleging a breach of the collective agreement. The hearing, at which the employee was unrepresented, resulted in an award directing the employer to notify the employee that he must execute and deliver a dues deduction authorization form within seven days or face dismissal. Hoogendoorn complained that there had been a denial of natural justice. The Court agreed. The majority of the Court (Hall, J., Spence, J., and Cartwright, C.J.C. — Ritchie, J. and Judson, J. dissenting) concluded that the whole purpose of the proceeding was to secure Hoogendoorn's discharge. It was not merely an abstract interpretation of a collective agreement clause of general application, nor was the union cast in the role of neutral arbiter of an established scheme of contractual rights. It was clearly ranged in interest against one of the individuals for whom it was the statutory bargaining agent. Thus, Hoogendoorn was entitled to notice and the right to participate.
The fact that Hoogendoorn's discharge was the sole object of the arbitration proceeding and that his bargaining agent was adverse in interest, figure prominently in the majority decision of the Court. Cartwright C.S.C. commented:
The reason that I differ from the result [of the minority members of the Court] is that I am unable to regard the arbitration which was held as anything other than an inquiry as to a single question, that is, whether or not the employer was bound to discharge the appellant.
After discussing the then recent Ontario Court of Appeal decision in Bradley, the Hall J., writing for the majority, went on to say:
I agree that this represents the actual situation as it developed. I think the learned arbitrator correctly understood what he was adjudicating upon, namely, Hoogendoorn's continued employment and nothing else. His proper understanding of his function in the ad hoc arbitration proceeding led him inevitably to ordering Hoogendoorn's dismissal. The arbitration proceeding was unnecessary as between the union and the company. Both fully understood and agreed that the collective agreement required Hoogendoorn to execute and deliver to the Company a proper authorization form for deduction of the monthly union dues being paid by members of the union. Both the company and the union wanted him to do so. The arbitration proceeding was not necessary to determine that Hoogendoorn was required so to do. Both knew he was adamant in his refusal. The proceeding was aimed at getting rid of Hoogendoorn as an employee because of his refusal either to join the union or pay the dues. It cannot be said that Hoogendoorn was being represented by the union in the arbitration proceeding. The union actively took a position completely adverse to Hoogendoorn. It wanted him dismissed.
I can come to no other conclusion but that in the circumstances of this case it was improper for the learned arbitrator to proceed as he did in Hoogendoom's absence.
I might note, parenthetically that one must be careful to consider the precise situation which was before the Court for its consideration. There is no suggestion, for example, that if a union is prosecuting the grievance of an employee claiming unjust discharge, all the other employees in the unit of lesser seniority are entitled to notice and to participate, simply because, if the grievor is reinstated to his former position on the seniority list, their relative position will be marginally different. If that were so, every simple discharge grievance could become a multiparty proceeding.
- In Bradley, the Ontario Court of Appeal had before it a case in which an employer had promoted a group of employees and their union had filed a grievance alleging that the promotion was not in accordance with the terms of the collective agreement. The union took the position that another group of employees should have received the promotions instead. An arbitration board agreed with the union's position, and directed that the employees who were initially promoted should be replaced by the grievors, who, in the arbitrator's view, should have been promoted if the terms of the agreement had been properly followed. The Court of Appeal decided that the incumbent employees were entitled to individual notice and separate representation when their union was taking a position adverse in interest to their own. The Court commented:
The present case is one of first impression in this Court. the principle of its decision may be stated as follows: Where two employees or two groups of employees covered by the same collective agreement compete for benefits thereunder which are accorded by the employer to one or to one group only and the disappointed employee or group invoke the grievance machinery to seek redress and their case is taken to arbitration by their bargaining agent (the union party too the collective agreement), it is reversible error on certiorari for the arbitrator to make an award in their favour which strips the other employee or group of the benefits in question if the latter have not been given timely notice that the benefits conferred upon them by the employer would be brought directly into question at the arbitration hearing and might be lost as a result thereof.
A collective agreement is a unique legal institution because, despite the generality of its terms as part of a bargain made between a representative union and an employer, its existence and application result in personal benefits to employees who are covered by it. Once it is accepted, as it must be, that the benefits running to employees may differ according to job classification or seniority ranking (to take two illustrations), and that the representative union is put to a choice between employees who competed for the same preferment as to which it will support against a different choice made by the employer, substantive employment benefits of particular employees are put in issue and they are entitled to protect them if the union will not.
It will be seen that the situation in the instant case differs in at least two critical respects. In the first place, the objecting employees here are not opposed in interest to their bargaining agent in respect of the substantive legal issue before the Board — the application of section 68 of the Act to the union's conduct. Their interest is precisely the same as the union's on this point, despite the fact that, as it turned out, the union did not come forward with the "winning defence" that the employees might have expected. Secondly, the object of the complainants' section 89 complaint was not to diminish any rights of their fellow employees contingent upon their accumulated years of service, but rather to assert rights which the complainants argued they would have had under the same collective agreement, but for the improper conduct of their union bargaining agent. '[his would not result in the discharge of anyone (as in the case of Hoogendoorn) or in the removal of anyone from his existing position (as in the case of Bradley). The rights of their other employees were not and are not directly in issue — even though the restoration of the complainants' loss of seniority may result in some improvement in their relative position vis-a-vis other employees, in any future competition for seniority-related benefits under the collective agreement.
If this case were to be decided solely on a common-law basis, it might be argued that the objecting employees are only commercially or incidentally, as opposed to directly or legally affected by the Board's decision to restore the complainants to the seniority status they would have had but for the union's breach of the Act. But I do not think it is necessary to decide this case on that basis. It suffices to say that it was the conduct of the employees' bargaining agent which was put in issue, and it was that conduct which directly resulted in an adverse change in the complainants' seniority status relative to that of their fellow employees. In this sense, the other employees in the bargaining unit were the "beneficiaries" of the improvident actions of their bargaining agent which the Board ultimately found to be in breach of section 68 of the Act. By the same token, they are the "losers", to the same degree, when the Board determined that the complainants had been dealt with improperly, and directed that the complainants should be restored to the position they would have been in, had they not acted upon the union's bad advice. It seems to me that in both cases — as winner" and "loser" —the objecting employees find themselves in the position of supporting the actions of their bargaining agent, with whom they are allied in interest, and whose conduct is directly in issue in a section 68 complaint. In the circumstances therefore, I do not think that each of these employees is entitled to separate notice and representation in the complainants' section 68 complaint. It was sufficient to give notice to the union which had the responsibility of defending the conduct which resulted in a windfall (if minor) benefit to some of the employees whom it represents, and a detriment to the complainants. Notice to the employees' statutory bargaining agent — the respondent — was sufficient notice to the employees themselves. If through error or inadvertence, the union did not take the opportunity to defend its position that is a burden which must be shared by both the union and its members.
For the foregoing reasons, the request for reconsideration is dismissed. The employees are, of course, still free to pursue their own complaint against their bargaining agent for the way in which it represented their interests in the earlier proceeding before the Board.