[1986] OLRB Rep. July 938
1571-83-U; 1658-83-U Rocco Dicognito, Donald Y. Hsu, Louie Savoia, Wolfgang Hauffe, Robert Proulx, Wray Carter, Andy Giamos, and the other persons listed on Schedule "A" to the complaint in File No. 1571-83-U, Complainants, v. Local 414, Retail, Wholesale and Department Store Union, Roy Higson, Dan Garvey, Wayne Barrett, Mike Hunt, John Hudson, and Dominion Stores Limited, Respondents
BEFORE: D. E. Franks, Vice-Chairman.
APPEARANCES: David C. Moore, Allan Dixon and Rocco Dicognito for the complainants in File
No. 1571-83-U; Donald Y. Hsu for the complainants in File No. 1658-83-U; M. A. Hines and B.
Burden for the respondent company; Stanley Simpson and Dan Garvey for the other respondents.
DECISION OF THE BOARD; July 21, 1986
- By decision dated November 14, 1983 these two proceedings, both of which are complaints under section 68 of the Act, were consolidated. One complaint involves a number of grievors. The second complaint brought by Mr. Donald Hsu in large measure overlaps the other complaint; it does, however, differ from the group complaint in matters specifically relating to Mr. Hsu and I will deal with the matters relating to Mr. Hsu at the end of this decision.
PRELIMINARY REMARKS
The two complaints having been consolidated, the complainants were represented by Mr. Moore whereas Mr. Hsu acted on his own behalf. The respondent trade union and the respondent employer were also represented by counsel. Generally, the complaint deals with events that occurred in the initial stages of what was to ultimately become the substantial collapse of the Dominion Stores Limited retail enterprise. The employees affected by these complaints all work in the Dominion Stores warehouse at the West Mall and were all represented by the respondent trade union. These problems arise out of the first, of what became an extensive series of lay-offs, that went on as the proceedings were still in progress. At perhaps the mid-point of the proceedings it became abundantly clear to everyone that the remedy being sought by the grievors, namely, their reinstatement from the lay-off which they had suffered, was something which was completely beyond the reach of this tribunal. There having been numerous subsequent lay-offs by that time, it was clear that the subsequent lay-offs involved far more senior people than the present grievors. It would thus be impossible to order the reinstatement of employment of the present grievors in the face of the lay-offs of still more senior employees. Notwithstanding this lack of an effective remedy the proceedings continued.
This brings me to the first observation which I should like to make about these proceedings. The hearings in this matter went on for almost 40 days, in the course of which some 300 exhibits were entered. As I have noted there were three lawyers and Mr. Hsu participating in the proceedings, and by the termination of the hearings in this matter the case had ceased to resemble a typical hearing of the Ontario Labour Relations Board and had become a proceeding more closely resembling a Commission of Inquiry. It is I think important to take note of this because in many respects the hearing was, in and of itself, a remedy to the concerns underlying the matters before the Board. In the course of the proceedings, both the trade union and the employer made every effort to produce documents requested by counsel for the complainants. These documents were produced and examined and explained in great detail with what can only be described as commendable openness by both the employer and the trade union.
The next initial observation which I wish to make also arises from proceedings of such duration, but more specifically, where events are unfolding as the proceedings are running their course. That is the specific problem raised by hindsight. During the year and a half that these proceedings were on-going, there were more and more lay-offs taking place as the Dominion Store enterprise was indeed collapsing. Indeed, other aspects of this collapse were the subject of numerous other proceedings before other panels of this Board. What is important however, for these proceedings, is to note that these other events and other proceedings are irrelevant to the matters at hand. These proceedings focus on a very specific and somewhat narrow range of events and the conduct of the parties must be weighed at the time of those events and not in the light of subsequent events. Whether those subsequent events eventually prove the conduct of the parties to be right or wrong, is neither here nor there for the purposes of these proceedings. This indeed proved to be the most difficult part of examining the evidence and the arguments presented by counsel in the present case. Although I have in these preliminary remarks referred to subsequent and on-going events in evaluating the conduct of the parties at the times in question, I have tried to evaluate that conduct at its specific time and not in the light of subsequent events.
There is one further comment of a preliminary nature which I feel compelled to make. In the course of these proceedings it became apparent that at the root of these proceedings was a great deal of personal animosity between certain of the complainants and certain representatives of the respondent trade union. Such animosities are, of course, common in section 68 proceedings. They are however, like hindsight, totally irrelevant to the concerns of this tribunal. Certainly, they can never be a justification for the amount of time and money spent on these proceedings.
THE COMPLAINT
- The events giving rise to the present complaint occurred in the months of January, February and March of 1983. On January 24th, some 37 employees were laid off from Dominion Stores warehousing operations at 170 the West Mall and at 605 Rogers Road. That had been the first significant lay-off in memory. The major reason for the reduction was the ending of the nightshift at the West Mall warehouse because of a decrease in goods processed by the warehouse. At the time of the lay-off an arrangement was negotiated between the union and the employer concerning recall rights, and it is clear from the statements made by both the union and the company that, at the time, the impact of the lay-off was taken very tentatively. Indeed, there were statements about future efforts to re-employ the laid off people. At the time of the lay-off one of the grievors, Mr. Dixon, who was on the grievance committee, filed a grievance concerning the lay-off.
That grievance, the union subsequently refused to process, and it is that grievance which became, in a sense, the starting point of these section 68 proceedings.
It is impossible to emphasize the "newness" of this lay-off. There had not been a significant lay-off in the history of the warehouse and, as was commented in the evidence of some of the grievors in these proceedings, they had thought that they had a future of stable employment since there would always be a "food industry". Thus, it is fair to suggest that the idea of the lay-off itself was greeted by a number of the laid off employees with some very real suspicions.
Throughout these long proceedings nobody expressed this better than one of the grievors, Mr. Michael Baldesarra, in the giving of his evidence. Mr. Baldesarra had been employed by Dominion Stores since 1973 and a full-time employee since 1978. Sometime after the lay-off, pursuant to the agreement worked out between the respondent trade union and Dominion Stores, Mr. Baldesarra was called back to work for the occasional day. His evidence is that by mid-March he was working 37 1/2 hours a week at the Rogers Road operation on a regular basis. However, pursuant to the agreement between the company and the trade union, he was receiving the pay of a part-time employee and not getting the benefits of a full-time employee. He also noticed that there appeared to be a number of other laid off employees in roughly the same position as himself. This lead him and others to conclude that the lay-off itself was a sham and that it could only be explained as either a plot by the union and the company to get rid of "some troublemakers" or else it was a scheme by the company to deny some certain full-time employees their benefits as full-time employees. Further, the union was going along with this scheme to deprive the employees of these benefits.
It was this suspicion, as voiced by Mr. Baldesarra that something was wrong with the way the lay-off had been handled, which led to the initial filing of the section 68 complaint. Subsequently, as the case progressed and the "lay-off problem" was investigated the complaint broadened to include the previous round of negotiations which had concluded several months prior to the lay-off. This raised the more difficult question as to whether the union had violated section 68 in not proceeding against the respondent employer along the lines set out in the Consolidated-Bathurst, [1983] OLRB Rep. Sept. 1411, decision.
By the time the final argument was presented in the present case the complaint consisted of three elements. The handling of the lay-off, the matter of whether action should have been taken concerning the employer's conduct in the 1982 set of negotiations, and a more general complaint concerning the allegation by counsel for the complainants that the complainants had been effectively kept in the dark by the trade union. Under section 68 they were entitled to more information than they received at the time in question.
THE COMPLAINT AS IT RELATES TO THE LAY-OFF
As noted, this part of the complaint arises out of a number of grievances made by Mr. Dixon concerning the lay-off. Mr. Dixon who was at the time a member of the grievance committee was also being laid off. Clearly, in the matter before this Board he was chief amongst the grievors in the section 68 complaint. In both this complaint and in the grievances, Mr. Dixon represented a group of employees. Mr. Hsu, as a steward, also filed similar grievances. However, we will deal with that matter later on in this decision.
On the morning of January 10th, 1983 a meeting was called by the company with the union. There had been an indication on the Friday before that day that the meeting had to do with lay-offs. At the meeting, representatives of the company and the union discussed the intention of the company to give notices on that day, that effective January 24th, 1983, 37 people would be laid off from the West Mall operation. There was an extensive discussion about how various clauses in the collective agreement would operate. It was clear, however, that the company wanted the union present when the lay-offs were announced to the employees, both for the evening shift and the night shift. The lay-offs did not come as a surprise to Mr. Garvey, the business agent for the union servicing the warehouse operation. He had been aware that business was falling off in the retail stores. Indeed, it appears that a number of the employees in the warehouse were also aware that the tonnage being processed by the warehouse had in fact been decreasing in recent months.
The announcement by the company of the lay-offs lead to an extensive series of meetings immediately after the 10th of January. Mr. Dixon was part of these meetings as a member of the grievance committee. It was clear that since there had not been a lay-off of such a magnitude in many years, if at all, that the collective agreement did not specifically address the details of how such a lay-off was to be implemented. Throughout these meetings the union raised a number of concerns and the employer responded. It is a fair characterization of this series of meetings to say that the approach of both the employer and the trade union was that, given this new situation, there was a genuine concern by both parties to resolve the problem as best they could. The employer had to go ahead with the lay-offs, and the union attempted to protect the rights of those laid off as best they could. At the time of course neither party could have foreseen the extent to which subsequent lay-offs were to become a problem. At this point in time, the approach of both the company and the union to the resolution of the problem of the lay-offs was in the best spirit of a working collective bargaining relationship.
The result of these negotiations was an extensive agreement covering points that were either not in the collective agreement or which might be open to doubt under the collective agreement concerning how the lay-offs would be dealt with. By January 14th the union and the company had arrived at an eight point agreement, the main thrust of which was to give the laid off employees added protection above and beyond what existed in the collective agreement for laid off employees, particularly in the event that the lay-off was not permanent.
The union then called a meeting of the employees at the Queensway Lion's Club on January 16th. The intention of the union in calling the meeting was to explain the impact of the agreement of January 14th to the laid off employees and ultimately to have them ratify that agreement. That may have been the union's intention in calling the meeting; it certainly wasn't what happened at the meeting. The evidence as to what happened at the meeting is clear that very quickly the meeting broke down and became quite disorderly. In the course of that meeting, Mr. Dixon who had been party to the negotiations of the agreement under discussion, separated himself from the grievance committee. Then Mr. Hsu, a union steward also affected by the lay-off, addressed the meeting extensively. What is clear, however, is that although the meeting was not an orderly meeting, both Mr. Garvey and Mr. Barrett the secretary of the meeting, recorded in detail the concerns raised by the various employees at the West Mall concerning the lay-offs. These concerns were subsequently raised with the employer. In general the concerns raised by the membership at the meeting of January 16th fall into a couple of distinct categories. On the one hand, there were numerous suggestions made which would involve in effect re-negotiating the collective agreement with Dominion Stores, or would involve changes that Dominion Stores would not likely accede to during the term of a collective agreement. There were matters about specific provisions in the collective agreement which by and large had been addressed by the union in its discussions with the company, and thirdly, it appears there was a substantial element in the meeting that wanted the union to discriminate against the part-time employees which were also represented by the union.
Following the meeting of the 16th there was a subsequent meeting with the grievance committee, the negotiating committee and the union stewards and the company, at which both Mr. Dixon and Mr. Hsu were present, and in which a lot of the detailed considerations concerning the collective agreement were discussed.
Subsequent to the lay-off of the 24th of January both Mr. Dixon and Mr. Hsu presented group grievances concerning the conduct of the lay-off. Those grievances were, without exception, considered by the grievance committee and were abandoned in their early stages prior to the grievances being referred to arbitration. The origin of the section 68 complaint lies in the refusal by the union to press those grievances to arbitration. That refusal was made in the context of the agreement of January 14th referred to above, concerning rights for the laid off employees. Thus, although Garvey continued to caution the company there could still be grievances over the lay-off, it is clear that all of the grievances by Dixon and Hsu were considered by the union in light of the arrangement of January 14th. The question in this part then is whether the union in refusing to process those grievances on to arbitration violated section 68 of the Act.
In considering the handling of the grievances by the union I will first deal with what I consider to be one of the main undercurrents in these proceedings. It is clear that Dixon's battle over these grievances became a personal battle with the trade union officers. Mr. Dixon's view was and is that the grievances ought to have been pressed on to arbitration regardless of any arrangements between the company and the union. Dixon wanted to protect his job, and the jobs of others and, consequently led a campaign including this complaint to force the matter on to arbitration. I mention this campaign because it is quite incomprehensible to me that this complaint should include amongst the grievors certain part-time employees working at the time of the lay-offs. Clearly, one of Dixon's intentions was to displace those part-time employees in his grievance, and how they could in fact bring the present complaint to urge the union to seek their displacement via an arbitration is completely incomprehensible.
It is also necessary to directly raise the issue of this battle between Dixon and the trade union officers because I want to emphasize something that is completely clear on the evidence that was presented before me in these proceedings. Notwithstanding Dixon's campaign against the union officers and his sometimes ill-mannered behaviour in pursuing this campaign, there was not one bit of evidence either direct or indirect before me to conclude that in dealing with Dixon's grievance, this campaign was considered by the trade union officers or that it was a factor in any of their decision-making. There is no evidence before me of a "personal grudge" against Dixon.
In fact in assessing the evidence I must go further than that. It is my view of the extensive evidence presented on the consideration of these grievances that, notwithstanding the fact that Dixon tried the patience of the union committees when they came to their decisions with respect to Dixon's grievances, the committee was conscious of Dixon's position and consciously worked at not discriminating against Dixon or otherwise violating section 68 in considering the action to be taken by the trade union. In my view, the grievances were evaluated, considered and rejected giving Dixon every benefit of the doubt.
Clearly, the grievances were considered in light of the arrangement that the union and the employer had come to concerning how the laid off employees would be dealt with, and there is no doubt that a refusal to disturb that arrangement (there is some question as to whether there was actually an agreement on the matter) was a consideration by the union in refusing to process Dixon's grievances to arbitration. Consideration of such a matter is clearly not a violation of section 68 of the Act. The duty of fair representation set out in section 68 prohibits conduct by a trade union that is arbitrary, discriminatory or in bad faith. In fact, the origin of the duty of fair representation stems from the notion that the union that obtains bargaining rights for all employees in a bargaining unit is implicitly required not to discriminate against any of those employees in representing the employees in collective bargaining. It is trite to say that in evaluating whether or not a grievance ought to be taken to arbitration, the union is the bargaining agent for all of the employees in the bargaining unit and is therefore entitled to take into consideration this total representation of employees in the overall bargaining unit. (See, the Municipality of Metropolitan Toronto [1978] OLRB Rep. Feb. 143 at 147.) Section 68, however, addresses the relationship between the trade union and the individual and prohibits conduct which is arbitrary, discriminatory or in bad faith in relation to the individual complainants under that section. In the present case, there is not one bit of evidence of conduct by the union which can be described as arbitrary, discriminatory or in bad faith with respect to Mr. Dixon himself or his grievances or any of the laid off employees which are the complainants in the present case. With respect to the grievances arising out of the lay-offs, the evidence is clear that the union's grievance committee considered and evaluated every one of the grievances filed by Mr. Dixon and others and, indeed, put its mind quite specifically to the broader problem as to whether grievances could be laid with respect to the lay-off by Dominion Stores. Further, I would add that in my view they correctly rejected as either misinterpretations of the collective agreement or that the promoting of such grievances might lead to less than what they had already obtained from the employer, as a consequence of discussions over the handling of the layoff.
In the present case, I would comment even further that in any grievance that might have been brought concerning the lay-off, there is not any possible view of the facts that would lead one to conclude that this was a case where the company was trying to "put one over" on the trade union. On the evidence before me, I am compelled to comment that the company representatives as well as the union representatives acted fairly and in good faith with respect to what was to them a very nasty job that had to be done. In this regard one could comment that apart from the difficulty of finding a technical violation of the collective agreement upon which to bring a grievance over the lay-off, the case itself does not have a sense of outrage that might even lead an arbitrator (if one was lucky enough to find the right arbitrator) to create a remedy where there might not be one for other arbitrators.
There remains one other matter with respect to the lay-offs that must be dealt with. That is the perception referred to earlier that the employees who had been laid off were ultimately recalled and were working full-time with the decreased status of part-time. It should be pointed out that this perception of being treated as part-time is of some consequence to employees in this warehouse since the relationship between part-time employees and full-time employees is such that one does not get to be a full-time employee until one has in effect served a substantial period as a part-time employee. No doubt this history of treating employees in such a manner leads the employees to be very conscious of their status as part-time and full-time employees. Had this been the effect of the lay-offs, that is, had the lay-off merely been a sham, the net effect of which was to lower the status of a group of employees from full-time employees to part-time employees, then clearly the union's refusal to act on behalf of those employees (and thus implicitly engage in such an arrangement) could very well be the foundation of a section 68 complaint. This ground of the complaint does not arise out of any of the grievances filed by Dixon, but really emerges from the present section 68 complaint, although it may not have been adequately pleaded when the complaint originated. However, that is of no consequence since in these proceedings the employment of the laid off employees subsequent to the lay-off was delved into in great detail. Simply put, there is no basis in fact for that perception by the employees concerned. Clearly, they did get some work pursuant to the arrangement that was made on January 14th, but that work was not as much as they might have thought and there is no basis in fact for concluding that lay-off and subsequent employment of the laid off employees was a sham arrangement. In point of fact the company was simply living up to the arrangement it had made with the laid off employees and offering them available employment.
Sometimes of course there was an occasional week of what amounted to full-time employment. That does not indicate an attempt to lower the status of workers, it simply means that determining the number of employees to be laid off is a difficult and not exact problem and is indeed subject to a number of variables outside of the control of the employer.
THE CONSOLIDATED-BATHURST ISSUE
In September, 1983, the Board released its decision in Consolidated-Bathurst. The effect of that decision is to state that the Board will consider a remedy under section 89 of the Act where it is apparent that in discharging the duty under section 15 of the Act to bargain in good faith, a party to the bargaining misleads another party in order to obtain a collective agreement. The lay-off, as we have noted was announced on January 10, 1982. During the summer and fall of 1981 the union and the employer had engaged in a long and protracted session of collective bargaining for the renewal of a collective agreement. The collective agreement had been ratified on October 3rd and due to a series of technical problems, the actual document was not signed until December 17th. The detail of the late signing of the document is of course of no consequence in these proceedings. The relevant events are those prior to October 3rd.
Mr. Garvey had become the business agent representing the warehouse employees in the midst of those negotiations. At the end of September, 1982, Mr. Garvey took over from the on-going business agent, Mr. Hughes, at which time in the negotiations, the wording was substantially settled and the money issues were still outstanding. Mr. Garvey's evidence is that by this time he was already concerned with the decline in the Dominion Stores business activities. Mr. Garvey had come to the job of representing the warehouse employees from the job of representing people in the various retail stores. He was conscious that business was falling off in the stores and was therefore concerned that that would ultimately have an effect on the warehouse operation.
The trouble in the stores with the lack of the falling market share had of course been noticed by Dominion Stores. On November 19th, 1982 the president, Mr. Allan Jackson, was replaced by Mr. John Toma. The evidence of Mr. Donald Blair who was at that time Director of Labour Relations for Dominion Stores was that Mr. Jackson was not interested in closing down any of the Dominion Stores that were losing money. !~Ar. Toma, however, was. In November, 1982, under Mr. Toma's direction, Dominion Stores embarked on a plan to divest itself of certain of its stores by franchising "Mr. Grocer" stores. On November 23rd, 1982 Mr. Blair notified Mr. Don Collins, of the respondent trade union, that Dominion would be closing stores and franchising. Prior to franchising, these stores were supplied by the Toronto warehouse at the West Mall. The Mr. Grocer chain was to be supplied by the Willett warehouse in Kitchener, which was just coming on stream at about that time.
Clearly, in the discussions during 1982 to renew the collective agreement, there was no discussion of any impending lay-off or closures. The question is whether Dominion Stores had planned the franchising arrangement prior to the completion of negotiations in 1982. The evidence before this Board is quite clear that the proposed re-structuring of Dominion Stores was not a company policy nor even a contemplated company policy at the time of those negotiations. There had been a feasibility study of franchising, but it is clear that no decision had been taken on the matter and, indeed, prior to the change of president, the policy, if any, was against closing or divesting the various retail stores. The operative date then became November 19th, 1982, a date by which the negotiations for the renewal of the collective agreement had long since been concluded and ratified.
The evidence in the present case is, however, that Mr. Garvey at the time of the lay-off was clearly suspicious that the union had been mislead during its recent round of negotiations. Mr. Garvey raised this in the discussions with the employer over the lay-offs. He ultimately referred the matter in extreme detail to his lawyer and the opinion was that there was no case to be made before the Labour Relations Board following the principle in Consolidated-Bathurst.
The position taken by counsel for the complainants is that in effect the union ought to have brought the section 89 complaint alleging on the basis of Consolidated-Bathurst decision in any event. Clearly, that is simply not a correct view of what section 68 requires. Section 68 requires that the union address the problem and fairly consider the problem and act accordingly. In the present case, there is no question that Mr. Garvey and other representatives of the union were concerned about whether a section 89 case ought to be brought against Dominion Stores concerning their bargaining conduct in the 1982 round of negotiations. In so doing they discharged their duty under section 68 of the Act to the affected employees. Indeed, it is of note in the present case, that with regard to the bringing of such a section 89 complaint against the employer there are no extraneous considerations in the decision not to bring the case. That is to say, the decision not to bring such an 89 complaint against Dominion Stores was based solely on the decision that such a complaint would not succeed. Section 68 cannot be stretched to require the bringing of fishing expeditions before the Board under the aegis of section 15 of the Act.
MR. HSU'S COMPLAINT
The present case consists of two complaints which were, as we have noted above, consolidated. So far I have been dealing with matters raised primarily in the complaint made by Mr. Dixon. The other complainant is Mr. Don Hsu. In many respects the complaint concerning the refusal of the union to process grievances, the matter is identical to that discussed earlier in this decision in paragraphs 11 to 23 inclusive. The exception is that the difference between Mr. Hsu's complaint and Mr. Dixon's complaint, if any, does not appear to be personal animosity between Mr. Hsu and Mr. Garvey as appears in the other case. Indeed, Mr. Hsu appears to have made the company his target far more than the union.
However, Mr. Hsu's section 68 complaint is quite distinct from the other complaint in one very specific area. Mr. Hsu was a steward in the warehouse and his complaint before this Board is that as a steward he ought to have been allowed to pursue the grievance on his own as a representative of a group of employees in the warehouse.
The short and simple answer to that question is that such matters are not covered by section 68 of the Act. That is, section 68 deals with the employment relationship and not with the relationship to the trade union generally.
However, in the circumstances of this case, I feel compelled to comment in some detail on Mr. Hsu's problem. A trade union sets up its internal structures through its Constitution and By-laws and other such documents. If a trade union denies a steward the right to create factions within a trade union by being a group leader and acting as a group leader independently of the larger body, that conduct of the trade union in prohibiting such group activity is not in and of itself arbitrary or discriminatory or bad faith conduct. This is not to say that the rules can not be applied in a discriminatory manner and thus a violation of section 68 can occur. The point is that the rules, in and of themselves, do not necessarily create a violation of section 68 of the Act. In simpler terms such rules make sense in relation to the broader collective bargaining scheme. As I have noted above earlier, the trade union is required under our collective bargaining laws to bargain on behalf of all employees in a bargaining unit, and the fact that the trade union sets out a structure which
ultimately denies a steward the right to act on behalf of the group stems from the union's obligation to represent all of the employees.
- For Mr. Hsu the case "fighting the lay-off' was a matter of principle that Mr. Hsu was not prepared to abandon. While that may be quite admirable as an individual characteristic, as a steward in the union, Mr. Hsu was part of a larger organization and when that larger organization refused to allow Mr. Hsu the independence that he sought, the organization did not act towards Mr. Hsu in a way that was either arbitrary, discriminatory or in bad faith.
CONCLUSION
There remains to be considered one further matter raised by counsel for the grievors in the present case. That is the matter of keeping the union members in the dark. While it may very well be that keeping the members of a union in the dark may lead to a section 68 complaint, in the present case there is no factual basis for coming to such a conclusion. In the present case the members and laid off members of the union were communicated with by the union's grievance committee and its executive officers. They were not kept in the dark about anything. No doubt the animosity between certain of the grievors and the executive may have lead certain of the grievors to feel that they weren't being kept informed. However, I would point out that being kept informed does not include access to the psychological processes upon which decisions are based. It seems that they concluded they were not informed because they didn't like the answers they got.
For the foregoing reasons then, the complaints in all respects are dismissed.