Patty Konkle v. Tridon Employees' Union, 1986 CanLII 1465

[1986] OLRB Rep. November 1533

3181-85-U Patty Konkle, Complainant, v. Tridon Employees' Union, Respondent

BEFORE: Patricia Hughes, Vice-Chairman.

APPEARANCES: Brent Foreman and Patty Konkle for the complainant; C. Hillmer and Joyce Chadbolt for the respondent.

DECISION OF THE BOARD; November 14, 1986

1. This is an application under section 68 of the Labour Relations Act ("the Act") in which the complainant, Patty Konkle, alleges that the respondent union ("the union") contravened sec­tion 68 by failing to pursue her grievance relating to the extent of her seniority for purposes of lay­off.

2. The complainant, Patty Konkle, began working for Tridon Limited ("Tridon" or "the company") in May, 1976, at its Oakville location as an accounts payable clerk (Tridon also has a Burlington location). On August 27th, 1984, as a consequence of dissatisfaction with her salaried position, she transferred to the bargaining unit and became a machine operator in the plant. She was laid off from February 1985 until June 1985 and again in August 1985 for two weeks. At a union meeting held on November 23, 1985, Ms. Konkle became aware that she might be laid off again. She looked at her collective agreement and, as a consequence of Article 6.06 of the collec­tive agreement, believed that her seniority in the plant should include the time she spent in her sal­aried position. She discussed the matter with her union representatives who were of the belief that that article did not apply to her. The union did file a grievance on behalf of Ms. Konkle on January 24th, 1986, but subsequently withdrew it. When she believed that she was not receiving any satis­faction from the union, she brought this application under section 68 of the Act.

3. Section 68 of the Act 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 union of the council of trade unions, as the case may be.

4. It is particularly important in light of the issue in this application (that is, the interpreta­tion of a clause of the collective agreement), that my task be understood clearly. It is not my responsibility to interpret the collective agreement. It is not my responsibility to determine the merits of any grievance filed on behalf of Ms. Konkle. It is my task to determine whether or not the union has acted in a way which contravenes section 68 of the Act, that is, whether the union has acted in a manner which is discriminatory, in bad faith or arbitrary. Insofar as the complainant did not pursue any allegation of discrimination, I must decide whether the union has acted in bad faith or arbitrarily towards Ms. Konkle.

5. It is now well established that the test in section 68 cases is not whether the union made the "right" decision in not acting in accordance with the complainant's wishes, but whether the union acted reasonably in doing so. A union is by definition a collective entity and while the interests of the individual members, as individuals, cannot be ignored, they must be assessed in con­junction with the interests of and the union's obligations to the collectivity.

6. A union will be considered to have acted in an arbitrary manner if its officials have acted capriciously, unreasonably or, put another way, if they have failed to direct their minds to the complainant's concerns: Diamond "Z" Association, [1975] OLRB Rep. Oct. 791; De Havilland Aircraft of Canada Ltd., [1979] OLRB Rep. Oct. 933; Leonard Murphy, [1977] OLRB Rep. March 146. The union is allowed to be wrong in its judgment, and even negligent, but it cannot dis­miss a complainant's request out of hand, nor can a course of conduct be "so reckless to be unwor­thy of protection": CUPE, Local 1000, [1975] OLRB Rep. May 444; Royal Ontario Museum, [1980] OLRB Rep. Jan. 106. As the Board said in Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067 at paragraph 38:

Where it is difficult to see a rational pathway between the facts and circumstances said to have been taken into account and the interests said to have been balanced on the one hand, and the result on the other, then there arises a rebuttable presumption that the decision was arbitrary.

A union does not act in an arbitrary manner merely by failing to file a grievance; section 68 does not require that a union file a grievance in every case, but it does require that its decision not to file one has been taken after consideration of relevant factors and is not based on irrelevant factors.

7. In Leonard Murphy, supra, the Board stated that bad faith requires evidence of union hostility towards the grievor or motivation by factors extraneous and counter to legitimate bargain­ing concerns. The outer limits of this head of section 68 was set out in Steinberg's Ltd., [1972] OLRB Rep. May 423, at paragraph 12:

We are not concerned here with whether or not [the union's conclusion that they could not win the grievance was] a correct decision. As was said by the Board in Rutherford's Dairy Limited, [1972] OLRB Rep. (March), '... a union may make a mistake in the manner in which it repre­sents employees; however, if that mistake was made in good faith and without mala fides, it can­not be found that the union has violated the provisions of section [68 The section does not impose an absolute duty on the union to carry every grievance filed by an employee through to the arbitration process.

8. Both counsel agreed that the Board's decision in Dufferin Aggregates, [1982] OLRB Rep. Jan. 35, applies to this case. In that case, the Board stated, as it has elsewhere, that

9. Under the Labour Relations Act ... decisions [which have a serious economic impact on individuals] 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....

10. 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.

But the Board also takes the view that the union is required to go through a process of balancing the rights of individuals or of a specific minority of employees and those of the majority of employ­ees. That is the issue which is at the forefront of this case. To summarize what has already been said, the test (as enunciated in Dufferin Aggregates, at paragraph 37) is as follows:

The Board should not ask 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 'reason­ able' must mean by the rational application of relevant factors, after considering and balancing all legitimate interests and without regard to extraneous factors.

9. In the Dufferin Aggregates case, supra, at paragraph 28, the Board indicated the impor­tance of seniority rights to an employee:

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 abrogrates 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.

While in the instant case, the complainant did not actually possess seniority rights which were then abrogated by a union decision (her position being that she should have been acknowledged to pos­sess them), her seniority rights were at issue and the union's interpretation of the relevant clause in the collective agreement and its decision not to pursue a grievance on behalf of the complainant, has the result of leaving the complainant with low seniority and high vulnerability to layoff. Coun­sel for the union concedes that where such a right is involved, the union has a particular obligation to act in an appropriate manner on behalf of the complainant. However, it must be understood that the interest competing with those of the complainant also involves seniority rights, the senior­ity rights of persons who were already members of the bargaining unit when the complainant trans­ferred from salary to the bargaining unit position.

10. The collective agreement states that it is between Tridon Limited and Tridon Employ­ees' Union, "a union representing those other than salaried employees and supervisors". The rele­vant clause in the collective agreement reads as follows:

6.06 Company seniority will remain unaffected in any employee transfer.

In brief, the complainant's position is that this clause means that the time she spent in the salaried position should have been carried by her into her bargaining unit position, so that she began her time in the bargaining unit with 8-1/2 years seniority. The complainant argues that because she was not placed on probation when she transferred to the bargaining unit, earned the full rate immedi­ately and began paying union dues immediately, and also carried with her her benefits and vaca­tion time, that the employer was in fact considering that she was carrying her seniority. The union takes the position that these benefits enjoyed by the complainant were as a consequence of her service with the company, not as a consequence of any seniority and that all of them (except vaca­tion and perhaps some benefits) were a special privilege granted to Ms. Konkle by the employer because of her lengthy service. This view is supported by the testimony of Heather Crowe, Tridon's Personnel Administrator at Oakville, who interviewed Ms. Konkle for the salaried position. The union's position is that Article 6.06 applies only to bargaining unit employees and refers to company-wide seniority as opposed to departmental seniority. Thus an employee in a particular department, while being laid off in that department, may then "bump" an employee in another department who has less company-wide seniority. In other words, company seniority applies to the time spent in the bargaining unit in all departments, while departmental seniority applies to the time spent in the particular department, which of course in many cases would be less than the com­pany seniority enjoyed by the employee.

11. Another provision of the collective agreement which is relevant is Article 6.07 which indicates that an hourly-rated employee, or member of the bargaining unit, who transfers to the salaried group has twelve months to decide whether or not he or she wish to return to the bargaining unit. When the employee returns to the bargaining unit, his or her seniority is that 'accumu­lated prior to the transfer to the salaried group'. Such an employee would not acquire or accumu­late seniority while in the salaried position. Read in conjunction with section 6.06, Article 6.07 sug­gests it is not unreasonable to interpret Article 6.06 in the manner articulated by the union.

12. Ms. Konkle testified that when she met with representatives of management to discuss her transfer, there was no discussion of seniority. However, Ms. Crowe's evidence is that she did raise the matter with Ms. Konkle because she did not want to see Ms. Konkle laid off after the time she had spent with the company. She said Ms. Konkle replied that she would be earning more in the bargaining unit and it would be worth the risk. Ms. Konkle also testified that she told the union about her interpretation of Article 6.06. The union representatives she spoke to, including the President of the union, Ron Billings, the Vice-President at the Oakville plant, Joyce Chadbolt, and other representatives, were of the view that Article 6.06 did not apply to Ms. Konkle's situa­tion. However, Joyce Chadbolt got in touch with the union's lawyer to seek an opinion about the meaning of Article 6.06. On the basis of the letter received from the lawyer, the union decided that for purposes of lay-off Ms. Konkle was entitled only to her seniority since she began working in the bargaining unit. Ms. Konkle filed a grievance on January 24th and the union initially pursued that grievance, by passing it along to management. Shortly thereafter, however, the union discovered that the employer would accept the grievance, contrary to its expectations and previous discussions with Dan Krzewski, the company's Director of Human Resources, and the union retrieved the grievance. Mr. Krzewski apparently stated that the grievance would be accepted on the condition that the union agreed not to grieve on behalf of any employees who were moved down the senior­ity list by the placement of Ms. Konkle on the list, a condition unacceptable to the union. Ms. Konkle was informed that the union was not going to pursue the matter, but it was not explained to her that the grievance was filed and withdrawn because the company indicated it would accept the grievance. No other grievance ever was filed on behalf of Ms. Konkle. However, the union did pursue the matter in other ways, by seeking precedents of employees who had transferred from sal­aried to bargaining unit in order to see how their seniority had been treated. They found no exam­ples of employees who had transferred from salaried to bargaining unit and had taken their sala­ried service into the bargaining unit as seniority.

13. With respect to the allegation that the union has acted in bad faith, I find no evidence which will support an allegation that the union has acted in a hostile manner towards Ms. Konkle. She admitted that many of the conversations with Mr. Billings, Ms. Chadbolt and other union rep­resentatives, were normal conversations, with no hostility, although she indicated that at times other conversations involved a certain amount of exasperation or annoyance. I do not consider that annoyance or exasperation equate to bad faith or hostility and I find none in the way in which the union treated Ms. Konkle.

14. The real issue, therefore, is whether or not the union acted in an arbitrary manner. I find the union's interpretation of the collective agreement to be reasonable, and certainly not "per­verse" in the sense that it could be called arbitrary. However, that does not end the matter, but is one factor in considering the nature of the union's treatment of Ms. Konkle. In obtaining a legal opinion about the interpretation of the clause and about various options available to it, the union has gone a long way to rebutting any allegation that it has acted in an arbitrary manner. While it may not always be the case that a legal opinion is such that it assists the union in this way, in this case the opinion is far from perfunctory and set out options, one of which was chosen by the union. The importance of obtaining a legal opinion is indicated by the Board in George Lazenkas, [1983] OLRB Rep. Jan. 72 where it said:

Acting in accordance with its usual practice, the union submitted the grievance to its legal coun­sel, and, based upon this advice, decided not to pursue the grievance to arbitration. It has been recognized by the Board on previous occasions that this type of consultation can resolve in the union's favour any allegation of breach of section 68 insofar as the processing of grievances is concerned

15. The letter dated January 15th, 1986, from A. M. Hillmer to Ron Billings, President, Tridon Employees' Union, indicates Mr. Hillmer's view of the way in which arbitrators have approached the question of an employee's seniority when the employee is transferred from a posi­tion outside the bargaining unit to one inside the unit. In that letter, Mr. Hillmer states that where an employee is employed outside the bargaining unit and subsequently transfers into the bargain­ing unit, "the cases are divided. In the absence of Collective Agreement language to the contrary, we feel the trend is to allow employees to retain and use non-bargaining unit seniority when they enter the bargaining unit". However, Mr. Hillmer then examines the collective agreement between Tridon and the union to indicate that there is language throughout the agreement which distin­guishes between employees in the bargaining unit and non-bargaining unit employees and between years of service and seniority. The letter then concludes that

the Collective Agreement and the case law relevant to this matter supports, on balance, the proposition that seniority for the purpose of layoff, recall, promotion and transfer is seniority accumulated while employed within the bargaining unit. We do not see the existing collective agreement language, which clearly shows the intention of the Union and the employer, allowing an arbitrator to come to any other logical conclusion.

[emphasis in original]

The letter suggests that the experience of other employees, if there are any employees in the same situation, might be useful and in fact the union did investigate whether or not there were other employees in the same situation as Patty Konkle.

16. In a subsequent letter, dated January 15th, 1986, Mr. Hillmer brings the union's atten­tion to an arbitration award which is supportive of the union's position. He then goes on to set out ways in which the matter might be approached. One option, if Patty Konkle alleges improper lay­off, would be to pursue the grievance as it would pursue any grievance. At that time, "[tihe discus­sion should focus on the merits of the matter in such a manner as the context allows given the Union's and the employer's position". He also suggests that the matter might go before a general membership meeting. He raises the possibility that Ms. Konkle might bring a section 68 complaint under the Labour Relations Act. Finally, Mr. Hillmer suggests one option is to settle the grievance between the union and the employer, allowing Ms. Konkle to use her total service by making a "without prejudice" decision, but goes on to "caution against this approach as it will result in another bargaining unit employee being laid off who has greater bargaining unit seniority than Patti Konkle". After considering these various options, Mr. Hillmer indicates that probably the preferable approach would be to pursue the grievance. As already indicated, the union did in fact decide to pursue the grievance, but on the understanding that the employer would reject it. Instead, the employer indicated that it would accept the grievance on condition that no other griev­ances arising out of this resolution of Ms. Konkle's grievance would be filed by the union. This condition the union refused to accept.

17. In this situation, the union was faced with a choice of harming the interests of Ms. Kon­kle or of other employees; it could not settle this matter without there being a detrimental effect on someone. If the union pursued the grievance and was successful, Ms. Konkle's seniority would increase by over 8 years and she would no doubt bump someone on the seniority list. Thus other employees would be laid off before Ms. Konkle would be laid off, even though all their time had been spent in the bargaining unit and they had been paying union dues. (If the union were unsuc­cessful in pursuing the grievance, of course, Ms. Konkle would feel that everything had been done that could be done and she and other employees would be in the same position as if the union had not filed a grievance.) If the union did not file a grievance, Ms. Konkle would be subject to early lay-off (and has apparently been laid off since this hearing first began). It is clear that the union weighed these two approaches. Ms. Konkle admitted on cross-examination that Mr. Billings told her that he had two people with rights and if he helps one, he hurts another and that he has to choose. She agreed that he said that but she said "I had a right to look out for number one". Nor, it seems, was the union entirely without sympathy for Ms. Konkle. Ms. Chadbolt testified that she did consider whether it would be possible for Ms. Konkle to return to the salaried unit and thereby remove herself from the layoff list.

18. The issue was discussed at several union executive meetings and at several meetings in which representatives and members of the executive were present. The legal opinion was available for the executive to make a decision and the facts of the case were put before both the representa­tives and the executive. The executive and representatives voted not to proceed with the grievance. The matter was never taken to a general membership meeting, Gay Murphy, a Burlington union representative at the relevant time, testified that the union did not generally take such matters to the general membership meeting. Nor did Ms. Konkle attend any of these meetings in order to put her own case. Ms. Murphy did indicate that if Ms. Konkle had asked, she would have been able to meet with any of the committees, but it is not clear that she was ever informed of that. With respect to the opinion letter, Ms. Konkle was given a copy of it but no one attempted to explain it to her. The union representatives understood that she had sought legal advice herself by that time.

19. Ms. Konkle's counsel submitted that the union did not attempt to balance the interests of Ms. Konkle and of the other members of the bargaining unit. I have found that such a balancing was attempted. He also argued that Ms. Konkle never received a reasonable answer from Mr. Bill­ings. I find that the union's position was clear. Ms. Konkle's counsel further argued that the union's approach amounted to a unilateral change to the collective agreement because the provi­sion clearly means what Ms. Konkle says it means, but in my view, this is not an appropriate way to view the matter. The clause is not clear on its face, although when seen in the context of the entire collective agreement, I find greater support for the union's interpretation than for Ms. Kon­kle's interpretation. Accordingly, it can equally be argued that the union was in fact supporting the stat us quo, not attempting to amend the agreement. On the other hand, counsel argues that if the provision is ambiguous, the union should have attempted to clarity the meaning of article 6.06 at arbitration by using Ms. Konkle's grievance as a "test case"; even if that is so, a failure to select that route does not in itself constitute a contravention of section 68. This is all the more the case when the union's position appears to follow past practice and has support in arbitral decisions.

20. Considering all the efforts the union made with respect to Ms. Konkle's concern about the extent to which she enjoyed seniority, I find that it has not breached section 68 of the Act and the complaint is hereby dismissed.