3244-86-U Salvatore Di Cesare, Complainant V. Retail, Wholesale and Department Store Union, Local 414, Respondent v. Dom Group, Intervener
BEFORE: Patricia Hughes, Vice-Chair.
APPEARANCES: Salvatore Di Cesare on his own behalf; James Hayes, Frank Reilly, Robert McKay and Loretta May for the respondent; M. Failes and B. Pearce for the intervener.
DECISION OF THE BOARD; May 29, 1987
This is a complaint under section 89 of the Labour Relations Act ("the Act") in which the complainant, Salvatore Di Cesare, asserts that the Retail, Wholesale and Department Store Union, Local 414 ("the union" or "Local 414") has breached its duty towards him as set out by section 68 of the Act.
Section 68 states:
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 complaint states that Mr. Di Cesare filed grievances on March 19, 1986 and in September 1984 to which he had not received replies by the date of application. It also states that the union "failed to represent [the complainant], while acting in an arbitrary manner negotiating a settlement with Mr. Grocer" in that he was laid off while employees in Aylmer and Stratford with less seniority were working. The remedies requested are reinstatement, compensation for lost wages and benefits and reinstatement to the executive board of the union.
Mr. Di Cesare indicated orally that he believed the union had breached section 68 of the Act by removing him from the executive board of the union when he was terminated as a Dominion store employee in March 1986. The store at which he was working was closed on May 30, 1986, apparently one of the last of the Dominion stores to close. I ruled that I had no jurisdiction to inquire into whether Mr. Di Cesare should have been removed from the executive board since that is a matter internal to the union and does not extend to Mr. Di Cesare's relations with his employer: Sylvia Colalillo, [1982] Rep. July 1066; Ontario Hydro, [1980] OLRB Rep. July 1039; Thomas Beck, [1985] OLRB Rep. Jan. 14. (Nor does Mr. Di Cesare make any allegation of intimidation or coercion: Frank Manoni, [1981] OLRB Rep. Dec. 1775.)
At the hearing, Mr. Di Cesare also alleged that he should have been given the benefit of clause 2:12 of the collective agreement between the union and Dominion Stores Limited. That clause is a "super seniority" clause which gives preference to the members of the negotiating committee and union officers. He said that he had filed a grievance that he had been laid off contrary to clause 2:12, but there was no evidence of such a grievance before the Board. Nor did that allegation form part of the complaint. I ruled that insofar as the complainant intended this matter to form a distinct allegation it was untimely; however, to the extent that it formed part of the general complaint arising out of the Mr. Grocer settlement, I was prepared to hear evidence on it.
The union provided a copy of the March 19, 1986 grievance. This was a group grievance alleging "unjustified lay-off'. This grievance relates directly to the "Mr. Grocer settlement" referred to below and was disposed of by the union pursuant to that settlement. I return to that issue below.
The September 1984 grievance (of which no copy was before the Board) was in relation to a notice received by Mr. Di Cesare that he would be laid off in November 1984. He was not laid off at that time but became an A Clerk. He had been a B Clerk, a position paying $1.05 more an hour. He subsequently filed another grievance in November about that drop in position and loss in pay. A letter dated December 27, 1984, to A. Player of the union from J. A. Farmers, Personnel Manager of Dominion Stores for the relevant area, indicates in response to that grievance that "the company is in agreement to pay the Clerk 'b' wage rate from November 12, 1984 up to present". Mr. Di Cesare agreed that that grievance was resolved. Accordingly, this complaint is dismissed insofar as it relates to the September 1984 grievance.
That leaves the March 19, 1986 grievance. In effect, Mr. Di Cesare's complaint is that the union did not take him or his situation into account when it reached the settlement with Dom Group Ltd., among others. That settlement was the culmination of intensive litigation and discussion arising out of the conversion of many of the Dominion grocery stores into franchises known as "Mr. Grocer" stores. Although the Board issued two decisions in which it issued related employer declarations in relation to the franchise arrangement, in which the Mr. Grocer stores were supplied by Willett Foods Limited, a subsidiary of Dominion (Penmarkay Foods Limited et al, [1984] OLRB Rep. Sept. 1214 and R. P. K. C. Holding Corporation, [1986] OLRB Rep. June 828), the other franchisees were not bound by those decisions. The union's response to that situation was set out by the Board in Willett Foods Limited, c.o.b. as Mr. Grocer, Dom group Ltd. et al (unreported, February 2, 1987):
The union's reaction was predictable. In order to protect its position and that of its unemployed members, the union launched unfair labour practice, successor rights, and related employer proceedings against each and every known franchisee, as well as Willett and Dominion. The union also filed numerous grievances against individual franchisees, alleging that those franchisees were bound by the Dominion agreement (either as related or successor employers). The union asserted that the franchisees were required to employ their workers in accordance with the terms of the agreement, and pay the specified wages and benefits. Where the particular franchisee had not maintained the pre-existing employee complement, the grievance demanded that the discharged workers be reinstated to their former jobs and compensated for their lost wages. Nor was this the end of the problem. Some current Mr. Grocer employees intervened in the proceedings to oppose the union's related employer/successor rights application, and, in addition, filed applications to terminate the union's bargaining rights at particular locations. The union s response, inter alia was that these employees should never have been employed in the first place, and therefore had no status to intervene or seek termination of the union's bargaining rights. (Emphasis in original)
A variety of parties embarked on what the Board in Willett Foods, supra, called "a proceeding of prodigious proportions". The complexity of that matter is described in the Willett Foods decision. The Board indicated that the union, no more than the other parties, welcomed that proceeding:
From the union's perspective, complete success before the Board would, in all likelihood, only be a necessary prerequisite for an even more protracted and laborious series of arbitration hearings. It was by no means clear, just whether or how the union could establish the entitlements of particular employees vis a vis one or more of the franchisees. The process could take years, and the potential recovery was uncertain, because there were, potentially, hundreds of competing employee claims which would have to be litigated and weighed in light of the employees' obligation to mitigate their losses and seek alternative employment. (Emphasis in original)
Although settlement was attempted, it was unsuccessful until Loblaw Companies Limited agreed to purchase Mr. Grocer conditional on the resolution of all outstanding labour relations and collective bargaining questions. The resulting settlement was contained in the Willett Foods, supra, decision and was described by the Board as follows:
The solution that the parties have devised is ingenious and novel in some respects, but it is one which they all affirm and unanimously urge the Board to endorse. We see no reason why we should not do so. Indeed, while it is not really necessary for us to express any opinion, one way or the other, we are inclined to observe that the proposed settlement represents a reasonable, practical, and (we hope) workable compromise of all of the competing union, employer, and employee claims. For this, all counsel are to be commended.
The result of all of this for Mr. Di Cesare was that he found himself without a job, although he had worked for Dominion for about twelve years. (He subsequently obtained other employment and he is now on the waiting list for a position at a Mr. Grocer store.) When he was made an 'A' clerk, he testified, he was told by union officials that it might take a year or two for these matters to be resolved. But in March 1986, there was an indefinite lay-off notice for his whole store. Nevertheless, he still had hope that the union would help him and he would be rehired by Mr. Grocer. He was "shocked", he said, to see in the paper that a deal had been made between the union and the other parties. He received a call from Tom Collins, a union official, who told him :'you won't be forgotten"; however, the last time he heard from Mr. Collins, it was to hear that the agreement had been "endorsed" by the Board.
Mr. Di Cesare feels that the union did not fight for the Dominion employees but was concerned only for the new members it had gained through the Mr. Grocer franchises. He believes he had been a model for other employees but he received nothing in return, "not even a consideration''.
In Mr. Di Cesare's view, the union should have fought to get preferential treatment for union officers and shop stewards in the new collective agreement. He believes the union had tried (unsuccessfully) to give special treatment to a local president in the sale of Dominion to A & P, but he adduced no evidence of that. He also believes the union should not have accepted the settlement but should have obtained protection for senior employees. He would have continued the litigation to the end. In addition, he contends that the union did not communicate adequately with him about what was happening and suggests he was not told the truth.
The question before me is not whether Mr. Di Cesare should have kept his job. It is not whether the union should have pursued an agreement or course of action which would guarantee Mr. Di Cesare a job. It is not whether the union reached the best agreement or whether there was something better to be had. The question is, rather, whether in its negotiations with the parties involved in this complicated affair, in the way it approached the litigation and in its reaching of the settlement, the union acted in a manner which breached its duty to Mr. Di Cesare as required by section 68 of the Act.
Mr. Donald Collins, the union's Canadian Director, was actively and extensively involved in the proceedings resulting in the Mr. Grocer settlement from the fall of 1982 to today. Mr. Collins testified about the complexity of the proceedings and about the union's overwhelming concern that it could end up with a "paper success" but no money. He stated that the union's initial position was that the Dominion collective agreement be honoured, requiring Mr. Grocer employees to be displaced by former Dominion store employees. The grievances relating to the lay-offs were part of the negotiations. The union became aware, as time passed, that Dominion was disposing of its assets; it appeared to the union that there would be little of Dominion left by the end of this process. The union considered it had little choice but to reconsider some of the firm positions it had taken. In the end, the union was able to negotiate only certain benefits for former Dominion employees, including advertisements in the newspapers notifying them that they could apply for jobs at Mr. Grocer, a fund from which they could seek compensation and a collective agreement which the union considered inferior to the one it had had with Dominion.
Mr. Collins stated that the union conceded the issue of the reinstatement of former Dominion employees because the franchisees would not have entered the agreement without such a concession. Rather than engage in lengthy and expensive litigation with a strong possibility of a paper victory at best, the union agreed to the Mr. Grocer settlement.
The union filed a grievance dated October 19, 1984, that the terms and conditions of employment of persons employed at certain Mr. Grocer stores were governed by the collective agreement in effect between the union and Dominion. Because of the proceedings before the Board, the union sought an adjournment of the arbitration proceedings; that adjournment was granted: Dominion Stores Limited (Weatherill) (July 8, 1986). By clause 2 of the Mr. Grocer settlement "the Unions [various locals of the Retail, Wholesale and Department Store Union, including Local 414] hereby withdraw any and all grievances filed under collective agreements between the Unions and Domgroup alleging violations of such collective agreements by Domgroup and/or the Participating Franchisees relating to the Business [the franchise business carried on in Ontario by the Mr. Grocer division of Willett Foods Limited]". Domgroup agreed to pay the union $7 million, in part to pay former Domgroup employees.
I am satisfied that the union attempted to reach the best settlement it could under the circumstances. Union decisions often have a negative impact on a particular group of employees but that does not automatically mean that the union has breached its duty under section 68: Dufferin Aggregates, [1982] OLRB Rep. Jan. 35. In this case, the union believed abandoning grievances involving former Dominion store employees, including Mr. Di Cesare was necessary to the settlement. The overall cost of pursuing this particular problem would have been too great. The union had to balance gains and losses. That no doubt seems harsh to Mr. Di Cesare, but such a result in itself does not contravene section 68.
There was some evidence that the communication of the settlement by the union to the employees, or at least to Mr. Di Cesare, was somewhat wanting. Even if that is the case, communication after the relevant decisions have been made in the circumstances of this case does not constitute a violation of section 68 (Cf. Jean Liebman, [1986] OLRB Rep. June 753).
Accordingly, this complaint is dismissed.