[1986] OLRB Rep. October 1429
2396-85-U Don Roe, Dave Noble, Dan Dailey, Dale Smythe and Gary Crack, Complainants, v. United Steelworkers of America on behalf of Local Union 5595, Respondent
BEFORE: Ian C. Springate, Alternate Chairman.
APPEARANCES: Gerald Bouchard, Terry Davey, Don Roe, Dave Noble, Dale Smythe and Gary crack for the complainants; Michael Gottheil, Les Woodcock and Cyril White for the respondents.
DECISION OF THE BOARD; October 9, 1986
1The names of the complainants appearing in the style of cause of this complaint are amended to read: "Don Roe, Dave Noble, Dan Dailey, Dale Smythe and Gary Crack". The name of the respondent is amended to read: "United Steelworkers of America on behalf of Local Union 5195".
2This is a complaint under section 68 of the Labour Relations Act, which provides as folIows:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
The parties filed with the Board an agreed statement of fact with respect to certain matters not in dispute. Both parties also called evidence to supplement the agreed statement of fact.
At all relevant times the respondent trade union represented employees of the Tube Division of The Algoma Steel Corporation, Limited in Sault Ste. Marie. The complainants, who were laid off by the company, object to the fact that the grievance committee of the union refused to process grievances related to their layoffs. The result of such grievances, if successful, would have been the reinstatement of the complainants and the layoff of certain other, more senior, employees. The union's grievance committee continued to refuse to process the grievances not withstanding the fact that a majority of union members attending a membership meeting voted in favour of the grievances being processed to arbitration.
The events giving rise to these proceedings commenced in June 1985. At that time, the company had openings for five or six employees as tester crewmen. The collective agreement bind-in on the company required that the vacancies be posted for five days, and that preference for the positions be given to senior employees capable of performing the work. The company did not, however, post the vacancies. Had the company done so, it is possible, although far from certain, that Mr. Randy Brooks and certain other employees (the "Brooks group") would have applied for the positions. It appears to be common ground that if members of the Brooks group had applied and other more senior employees had not, they would have been awarded the jobs. As it was, the Brooks group did not know of the openings and did not apply. The company placed more junior employees in the vacancies. It appears that at least some of these junior employees were newly hired to fill the vacancies. In October of 1985 the company laid off the Brooks group. If the Brooks group had been working as tester crewmen, they would not have been laid off.
On or about October 24, 1985 Mr. Brooks complained to Cyril White, the President of Local 5595, about the fact that he was being laid off while more junior employees continued to be employed as tester crewmen. Mr. White replied that the collective agreement permitted such a result if the junior employees had been promoted into the tester crewmen positions as a result of a job posting. Mr. Brooks advised Mr. White that there had not, in fact, been such a job posting. Mr. White then contacted Dave James, the company's employee relations officer. Mr. James confirmed that the tester crewman position had not been posted. Mr. White asked that the company now post the positions. The company did so. The Brooks group went into the plant and applied for the positions. The company awarded the Brooks group the positions without even waiting for the expiry of the five-day posting period under the collective agreement. It appears that no one else applied for the positions in response to the posting. With the return to work of the Brooks group, the more junior employees who had become tester crewmen in June were laid off. It is these laid-off junior employees who are the complainants in these proceedings.
On or about October 25, 1985 Mr. White was telephoned by Mr. Paul McLean, a steward who works on the tester line, and by Mr. Gerry Bouchard, the then chairman of the Local's grievance committee. Both Mr. McLean and Mr. Bouchard took the position that the complainants had become "established" in the tester crewmen positions and hence could not be replaced by more senior employees. Mr. White then telephoned Mr. John Dunlop, a general foreman, and suggested that the company reverse the situation back to what it had been previously. Mr. Dunlop replied that he did not have the authority to make such a change. On October 28, 1985, the issue was raised by the Local union's executive when meeting representatives of the company's employee relations department on another matter. The Local's executive suggested that the company's action in laying off the complainants and awarding the tester crewmen positions to the Brooks group might have been in error. The company's representatives denied that such was the case. The company explained that it had violated the collective agreement in June by failing to post the tester crewmen vacancies, and that the new posting was the only way to correct the violation. The Local's executive then agreed that the company's position was, in fact, correct.
It was not the Local's executive that actually decided on the processing of grievances. Rather, this was left to a grievance committee. The grievance committee met on October 30, 1985. It appears that at the time only one of the complainants had actually filed a grievance with respect to his layoff. However, the matter was considered by the committee on the basis that the other complainants would file grievances if the decision of the grievance committee favoured them. Mr. Bouchard, who earlier had advanced the complainants' position in his discussions with Mr. White, chaired the grievance committee meeting. This was the last grievance committee meeting attended by Mr. Bouchard as a result of his having earlier submitted his resignation from the committee. Mr. Fred Schmitt, the incoming grievance committee chairman, was also present and participated in the meeting. The situation concerning the complainants was discussed at some length. Mr. Bouchard spoke in favour of the union supporting the complainants' position over that of the Brooks group. By way of a four-to-one vote, however, the committee decided not to proceed with the complainants' grievances. The one dissenting vote came from Mr. Bouchard. When being cross-examined with respect to the meeting, Mr. Bouchard agreed that the other committee members had felt that the failure of the company to post the tester crewmen positions in June had been improper and accordingly the complainants could not properly have been established on the job. Mr. Bouchard also readily agreed that the matter involved having to decide between the competing interests of two groups of employees.
In instances where the grievance committee has turned down an employee's grievance the union has had a practice of allowing the employee to raise the matter at a general membership meeting. This had been the practice at least since 1979. Mr. Bouchard testified that in one instance where the grievance committee had decided not to arbitrate an employee's grievance, a general membership meeting decided the grievance should proceed to arbitration. The union then referred the grievance to arbitration, although prior to the actual arbitration hearing, the union, with the consent of the grievor, settled the matter with the company.
It was the evidence of Mr. Schmitt, the incoming chairman of the grievance committee, that following the decision of the committee not to proceed with the complainants' grievances, Mr. Bouchard indicated that the matter would be raised at the next general membership meeting. According to Mr. Schmitt, "He [Mr. Bouchard] said he would stack the next membership meeting and would have us proceed with it." When cross-examining Mr. Schmitt, Mr. Bouchard, who represented the complainants in these proceedings, unsuccessfully tried to get Mr. Schmitt to agree that Mr. Bouchard had not made the statement in question. Subsequently, when Mr. Bouchard gave reply evidence on behalf of the complainants, he did not deny that he had made the statement.
Following the meeting of the grievance committee on October 30, 1985, Mr. Schmitt telephoned each of the complainants to advise them that the grievance committee had decided not to support their position, and to explain the reasons for the decision. Mr. Schmitt also advised the complainants of their right to raise the matter at a general membership meeting.
The next regular union general membership meeting was held on November 18, 1985.At the meeting, Mr. Schmitt reported on the grievance committee's decision not to process the complainants' grievances. Mr. Bouchard then made a formal motion that the complainants' grievances be processed through the various stages of the grievance procedure to arbitration. The union was approved by a majority of the members present.
The grievance committee next met on November 25, 1985. At the committee's request Mr. Les Woodcock, a union staff representative, was in attendance. Upon being advised of the facts of the case, Mr. Woodcock indicated that in his view the committee had correctly decided not to process the complainants' grievances. When testifying in these proceedings, Mr. Woodcock indicated that in his view the union would not want the complainants' grievances to succeed for if they did, it would take the backbone out of the seniority article in the collective agreement. At the November 25th meeting the grievance committee again decided not to process the complainants' grievances. Mr. Schmitt testified that in reaching this conclusion the committee members took into account the result of the vote at the general membership meeting, but nevertheless felt they could not process the grievances since the company's action had not been in violation of the collective agreement. Following this meeting, Mr. Schmitt phoned the complainants to advise them of the committee's decision.
On November 26 1985 Mr. Woodcock was telephoned by Mr. Bruce Noble, a Sault Ste. Marie lawyer, who indicated that he had been approached by certain employees who were concerned about the decision of the grievance committee not to process the complainants' grievances. Mr. Noble also indicated that consideration was being given to filing a complaint against the union. Mr. Noble proposed that the dispute be resolved by processing to arbitration grievances from both the complainants and the Brooks group, and then "let the chips fall where they may". Mr. Woodcock responded that the union could not take such an approach and still retain its credibility.
On December 4, 1985 Mr. Bouchard met with Mr. Woodcock and argued that the grievance committee was obligated by the vote at the membership meeting to process the complainants' grievances to arbitration. Mr. Bouchard also indicated that steps had been taken to obtain the forms on which a complaint could be made to the Board. Mr. Woodcock replied that he would investigate the matter further. On December 9, 1985 Mr. Woodcock discussed the matter with Mr. Andy Lavoie, the union's regional representative. Mr. Lavoie advised Mr. Woodcock that in his view the complainants' grievances were contrary to the collective agreement, and notwithstanding the motion passed at the November 18th membership meeting, should not be processed to arbitration.
The next general union membership meeting was scheduled for December 10, 1985. On or about December 9th the Local's executive met with Mr. Woodcock to discuss the possibility of a motion being made at the membership meeting to rescind the motion passed at the November 18th meeting. Because such a motion would require two-thirds support, Mr. Woodcock indicated that such a motion would likely be defeated, and should not be attempted. On December 9th Mr. Woodcock also discussed the complainants' grievances with Mr. Schmitt, the grievance committee chairman. The agreed statement of fact states that at this time "Mr. Woodcock and the Grievance Committee were confident that the complainants' grievances were without merit".
Mr. Woodcock addressed the December 10, 1985 membership meeting. He stated that since the tester crewmen vacancies had not been posted in June, in his view the complainants' grievances were without merit. At least one of the employees present stated that he had recalled seeing a posting for the tester crewmen vacancies. Mr. Woodcock indicated that if this.had been the case, he would support the complainants' grievances and urge that they be processed to arbitration. He also stated that he would ask the company to check the possibility that there had in fact been a posting. The following day Mr. Woodcock contacted Mr. James, the employee relations officer. Mr. Woodcock advised Mr. James that someone had recalled seeing a posting in June. Mr. James indicated that he would discuss the matter with the general foreman of the finishing department, who would definitely know whether or not this had been the case. Mr. James subsequently called Mr. Woodcock back and assured him the vacancies had not been posted.
Given the unsettled situation, Mr. Schmitt had taken the precaution of obtaining the company's consent to an extension of the time limits under the collective agreement for processing the complainants' grievances. In a meeting with the grievance committee on December 16, 1985, Mr. Woodcock indicated that no additional extensions to the time limits should be sought. At the same meeting, the grievance committee decided to drop the matter of the complainants' grievances once and for all.
As the Board has indicated in a number of previous decisions, section 68 of the Act does not give an employee an automatic right to have his grievance arbitrated. What the section requires is that the union direct its mind to the relevant considerations and make a good faith determination as to whether or not to go to arbitration. In making this decision the union is entitled to consider factors beyond the merits of a particular grievance. In Dixie Canada Inc., [1984] OLRB Rep. Sept. 1179 a union refused to arbitrate the grievance of an employee who contended that he should not have been "bumped" out of his job by a more senior employee, because the senior employee had less skill and ability than he. Under the terms of the applicable collective agreement, seniority was to be the governing factor only if the ability and experience of two employees was equal. The union's decision not to go to arbitration was based, in part, on a general practice of promoting seniority over ability and experience. The Board, reasoning as follows, concluded that this was not a violation of section 68.
This Board would note that the instant case does not involve what has been termed the "tyranny of the majority" but is really a choice between two individuals, although each individual "represents" a view of article 15(4) which would affect others in the bargaining unit. The union, in opting for seniority rights as between two top-rated employees, was making a reasoned decision based on its view of the best interests of the bargaining unit as a whole. Union support for seniority clauses - or the interpretation of seniority clauses in the direction of giving greater weight to seniority over other factors - is hardly novel. Moreover, it is not for this Board to second guess the union's choice provided the relevant factors and competing interests are considered. The union candidly characterized the other interest, i.e. ability and experience, as one which is generally supported (and sought after) by management. This assertion is also neither novel nor indicative of impropriety on the union's part. Thus, in light of all the evidence and submissions by the parties, and in view of the principles underlying the duty of fair representation, the Board finds that section 68 of the Act has not been violated.
There is also a group interest in the settlement, or a decision not to arbitrate, a grievance even where it is reasonable to conclude that the grievance might succeed at arbitration. This Interest was discussed as follows by the British Columbia Labour Relations Board in Rayonier and I.' 4/A. Local 1-217, [19751 2 Can. LRBR 196:
"While a grievance may originally be brought by one individual, it is not unusual for it to involve a conflict with other employees as well as with the employer. Occasionally, this is true even in the facts of a particular case, but more often it arises from the implications of the general interpretation of the agreement upon which the particular grievor is relying. By necessity, a collective agreement speaks obliquely to many new and unforeseen problems arising during the course of its administration. Rather than relying on the arbitrator's interpretation of the vague language of the agreement drafted a long time ago, it is normally more sensible for the parties to settle that type of current problem by face-to-face discussions in the grievance procedure, with the participation of those individuals who are familiar with the objectives of the agreement and the need of the operation and are thus best able to improvise a satisfactory solution. Again, if the employees are to have the benefit of this process and of the willing participation of the employer in it, the law must allow the parties to make the settlement binding, rather than allowing a dissenting employee to finesse it by pressing his grievance to arbitration. As Archibald Cox put it: 'Allowing an individual to carry a claim to arbitration whenever he is dissatisfied with the adjustment worked out by the company and the union treats issues that arise in the administration of a contract as if there were always a 'right' interpretation to be divined from the instrument. It discourages the kind of day-to-day co-operation between company and union which is normally the mark of sound industrial relations - a dynamic human relationship in which grievances are treated as problems to be solved and contract clauses serve as guideposts. Because management and employees are involved in continuing relationships, their disposition of grievances and the arbitrator's rulings may become a body of subordinate rules for the future conduct of the enterprise ... 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 of 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 tribunal.' Cox, Law and the National Labour Policy, at pp. 83-88."
In the instant case it is clear that the grievance committee concluded that the complainants' grievances were without merit. While the correctness of this decision may be debatable, there is nothing in the evidence which suggests that the decision was motivated by bad faith or discriminatory considerations, or that the committee members acted arbitrarily by not considering the relevant issues. Initially the committee members did not consider the implications associated with the grievances being successful at arbitration. Subsequently Mr. Woodcock did consider the implications and was concerned that, if successful, the complainants' grievances would weaken the seniority provisions in the collective agreement. This concern was clearly a factor in Mr. Woodcock's view that the complainants' grievances should not be processed. Mr. Woodcock's views on the matter likely influenced the decision of the grievance committee not to change its mind about going to arbitration. As already indicated, however, there is nothing inherently improper in considering other relevant matters in addition to the likelihood of success at arbitration. Accordingly, I have no hesitation in concluding that the decision of the grievance committee not to proceed to arbitration was not a result of unlawful considerations.
The remaining question is whether the grievance committee's continuing refusal to go to arbitration in the face of the motion passed at the November 18, 1985 membership meeting amounted to a breach of section 68. The representative of the complainants contended vigorously that it did. The representative of the union acknowledged that the grievance committee's decision was somewhat unusual and placed an onus on the union to justify the committee's action. However, he contended, the evidence revealed such a justification.
In his final submissions Mr. Bouchard for the complainants did not contend that the union had discriminated against the complainants. However, having regard to Mr. Bouchard's testimony concerning an incident where the grievance committee had processed a grievance following a vote at a general membership meeting in favour of it doing so, I feel the matter to be worth a brief comment. As the Board noted in the Douglas Aircraft Company of Canada Ltd. case, [1976] OLRB Rep. Dec. 779, the prohibition against discrimination in section 68 is designed to prevent distinctions in treatment between individual employees or groups of employees which are not supported by cogent labour relations reasons. In the instant case the evidence indicates that the grievance committee based its decision not to proceed with the complainants' grievances notwithstanding the vote at the membership meeting on the basis of relevant labour relations considerations. As for the earlier case referred to by Mr. Bouchard, I was not advised as to the facts of the case. Accordingly, I do not know the relevant merits of the grievance, or whether the grievance, if successful, might have impacted on other employees or affected the manner in which the seniority provisions in the collective agreement were to be interpreted. The complainants have not, in other words, demonstrated that the two situations were sufficiently alike that the different approach of the grievance committee in the instant case indicates discrimination.
It is not suggested, nor does the evidence indicate, that the grievance committee acted in bad faith when deciding not to follow the results of the vote at the general membership meeting. Accordingly, the issue is whether the committee's conduct in not following the wishes of a majority of the members in attendance at the meeting acted arbitrarily. A refusal by the grievance committee to consider the results of the vote at the membership meeting might well have been arbitrary in the sense of ignoring a relevant consideration. However, in this case it is clear that the grievance committee did consider the results of the vote. Having done so, it concluded that it still would be inappropriate to proceed with the grievances.
The constitution of the union was not put in evidence. Further, no other evidence was led as to which body within the union properly had the final say on the question of what grievances were to go forward. What is clear is that the grievance committee and Mr. Woodcock understood that the membership vote was advisory only and that the committee had to make the ultimate determination. After the November 18th membership meeting, the grievance committee remained of the view that the complainants' grievances lacked merit. They consulted with a staff representative who advised them that the grievances should not be proceeded with notwithstanding the vote at the membership meeting. After taking these considerations into account as well as the results of the membership vote, the committee concluded that it would not be appropriate to proceed with the grievances. I am satisfied that the process they followed in reaching this decision was not arbitrary.
At the hearing, the complainants for the first time raised the argument that they were entitled to one week's pay in that they were laid off, and the Brooks group put in the tester crewmen positions, prior to the completion of the 5 days posting period required by the collective agreement. The company may or may not have been in violation of the collective agreement in this regard. However, in that the complainants did not raise this issue with the union prior to these proceedings, it cannot be said that in representing them with respect to this matter the union acted arbitrarily, discriminatorily or in bad faith.
Having regard to the foregoing, this complaint is hereby dismissed.