Ontario Labour Relations Board
[1987] OLRB Rep. June 844
2354-86-U Domenic Gattellaro, Complainant v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 222, Respondent V. Cadbury Canada Marketting Inc., Intervener
BEFORE: Owen V. Gray, Vice-Chair.
APPEARANCES: Domenico Gattellaro for the complainant; Steve Nimigon and John Sinclair for the respondent; Jim Michie for the intervener.
DECISION OF THE BOARD; June 30, 1987
- In this proceeding, Domenic Gattellaro complains under section 89 of the Labour Relations Act ("the Act") that the respondent has dealt with him contrary to section 68 of the Act, which provides:
- 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.
In the complaint he filed with the Board, Mr. Gattellaro named "UAW LOCAL REPRESENTATIVES John Sinclair, Robert Peters, Tony MacTese" as respondents. At the time of the events which gave rise to this complaint, those individuals were officials of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 222 ("the local union"), the union party to the collective agreement which governed Mr. Gattellaro's employment by Cadbury Schewppes Powell Inc. ("Cadbury"), now known as Cadbury Canada Marketting Inc., at its Whitby plant at the relevant time. This complaint was understood by all concerned to be a complaint against the local union, and the title of this proceeding has been amended accordingly. The complaint was defended by an official of the Canadian Auto Workers. Although all parties to this matter seem to have proceeded on the assumption that that union or one of its locals should be treated as successor to the obligations of the respondent under the Act with respect to Cadbury employees in the bargaining unit covered by the collective agreement, that question was not raised for determination in these proceedings.
- Mr. Gattellaro has been employed by Cadbury since September 1978. He began as a production worker. He was moved to a maintenance job in 1981. He remained in that job until May 1986. At that point, Cadbury had decided to eliminate one such position. The choice of whom to lay off was between Mr. Gattellaro and another less senior employee. Article 9.01 of the collective agreement provided:
9.01 In case of reduction of the work force or a lay-off (for a period of longer than two (2) days) the following procedure will apply:
a) Probationary employees will be laid off first;
b) The most junior employee will be laid off first provided those remaining have the merit and ability to perform the work. Where merit and ability are approximately equal, the employee with the greater seniority will be entitled to the preference.
Cadbury decided that the two candidates should take a written test to determine merit and ability. tyIr. Gattellaro cannot read or write English. He protested that he should not be required to take a test. Tony Maltese and Norm Bassett, two union committeemen, told him that he had to take the test and that if he had some complaint about the test he should wait until he knew the results tefore raising it. Mr. Gattellaro took the test with the assistance of a management person who read him the questions and recorded his answers and in some instances, Mr. Gattellaro testifies, also told him what answers to give.
- After administering the test, Cadbury decided that the junior maintenance employee I ad greater merit and ability than Mr. Gattellaro. The junior employee remained in maintenance; Mr. Gattellaro was moved to a production job. At Mr. Gattellaro's request, a grievance in the following terms was filed on April 22, 1986:
VIOLATION OF COLLECTIVE AGREEMENT. WE DISPUTE THE COMPANY'S USE OF A WRITTEN TEST TO DETERMINE AN EMPLOYEE'S MERIT AND ABILITY.
After this grievance had proceeded through the grievance process, the local union decided it would not be taken to arbitration. Mr. Gattellaro was put back on maintenance work during the July 1986 plant shutdown, but was returned to production work after three weeks. On August 13, 1986, he again grieved that his seniority rights had been violated. The company answer at the first step of the grievance procedure was this:
This grievance has already been dealt with previously. Domenic is not a member of the present maintenance crew but has recently been offered work with the maintenance department as a temporary assignment. This does not entitle him to remain permanently.
At the second step, the company's answer was to the effect that Mr. Gattellaro's transfer from maintenance to production in May 1986 had not violated the collective agreement. The local union decided not to take this grievance to arbitration.
As I have already noted, Mr. Gattellaro does not read or write English. He testified with the assistance of an interpreter. He says it is difficult for him to express himself with the company and the union. He had difficulty expressing himself in these proceedings. As best I can make of it, his complaint rests on two propositions: that his employer has no right to require an employee to take a test to decide whether he will lose his job, and that the choice between the two maintenance employees in April or May 1986 should have been made purely on the basis of seniority. The basis for the first proposition is Mr. Gattellaro's belief that it has never been done before. The basis of the second proposition is not clear.
A major component of the union's behaviour about which Mr. Gattellaro complains is U at John Sinclair, the local union president, told him that his grievances against the use of the test could not go ahead because Mr. Gattellaro had agreed to take the test. He understands Mr. Sinclair to have said it was a mistake to have written the test. As he only wrote the test because other uaion officials told him he had to do so, Mr. Gattellaro argues, either they or Mr. Sinclair must have made a mistake. He argues that this mistake cost him a job which was more desirable than