Ontario Labour Relations Board
[1988] OLRB Rep. March 274
1789-87-U Michael Burkett, Mario Reale, Brian Price et al, Complainants v. Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees Local 647, Respondent v. Ault Foods Limited, Intervener
BEFORE: Judith McCormack, Vice-Chair.
APPEARANCES: Arnold Bruner, Gordon Brian Price, Michael Burkett, Mario Reale and Frank Lu for the complainants; Douglas J. Wray, Milt Aylwin and Randy Doner for the respondent; Peter Thorup, Scott McDonald and Ernest Cousins for the intervener.
DECISION OF THE BOARD; March 15, 1988
This is a complaint under section 89 of the Labour Relations Act in which it is alleged that the respondent violated section 68 by endtailing the seniority of a number of employees entering a bargaining unit from another bargaining unit, rather than dovetailing the two seniority lists. The complaint was heard over the course of three days~ at the end of which the Board dismissed the complaint giving oral reasons. At that time, the Board advised the parties that more formal reasons would issue at a later date.
This case involves a series of transactions which resulted in the intermingling of several different groups of employees. In April of 1981, the intervener, Ault Foods Limited purchased Dominion Dairies Limited which operated under the trade name of Sealtest. This purchase included three facilities, one on Walmer Road, and another on Berkeley Street and a third on Garyray Drive. Employees working at these three plants were represented by the respondent by virtue of one collective agreement covering all three plants. Under that agreement, seniority was determined by virtue of five different seniority lists relating to different crafts. Ault continued to operate the three facilities until 1985. In the meantime, in September of 1983, Ault purchased Silverwood Dairies, which included two facilities, one located on Lawrence Avenue in Don Mills and another located on Dupont Street in Toronto. Employees at both locations were represented by the respondent and covered by one collective agreement. In late October of 1983, the Dupont Street facility was closed and a number of employees from that plant commenced working at the Don Mills facility. The seniority of those employees was dovetailed with that of the Don Mills employees.
In 1985, Ault announced the closure of the former Sealtest Walmer Road plant. Operations at the Walmer Road plant were phased out over a period of approximately one year. At that time, Walmer Road employees were given a number of options, including bumping into positions at the former Sealtest Garyray and Berkeley Street plants (although such positions were extremely limited), early retirement, termination with severance pay, or working at the former Silverwood Don Mills facility. For those employees who chose to go to the Don Mills plant, their seniority was endtailed rather than dovetailed with that of the Don Mills employees, with the result that the Walmer Road employees were offered less desirable jobs on less desirable shifts, and they continue to be more vulnerable to lay-offs.
The instant complaint was brought by a number of Walmer Road employees who argue that the decision to endtail their seniority was arbitrary and discriminatory given that it placed them at a disadvantage vis-a-vis the other groups of employees and that it was made in a context where the seniority of other employees had been dovetailed. Section 68 provides 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.
The Board has long recognized that it is inevitable that unions will be faced with hard choices with respect to the competing interests of different groups of employees. As a result, the Board has been cautious about substituting its own hindsight for the attempts of unions to accommodate the diverse interests and claims of the employees they represent in the context of negotiations with an employer. (See for example, Dufferin Aggregates, [1982] OLRB Rep. Jan. 35; The Great Atlantic and Pacific Company Limited, [1983] OLRB Rep. Oct. 1654.) As the Board noted in Dufferin Aggregates, supra, "[t]here is nothing inherently unlawful in a union making a decision that favours one group of employees over another". The Board has thus allowed unions considerable latitude in making choices in this regard, partly in recognition of the fact that there may be no right or wrong answer in some circumstances, but rather a series of equally problematic alternatives.
This case highlights that kind of dilemma. It cannot be said that the decision to endtail the seniority of the Walmer Road employees was inherently unfair or that dovetailing itself is more / appropriate or reasonable. As the Board has noted previously, some inequities or unfairness may attach to either method of integrating seniority lists (see William Geddes, [1984] OLRB Rep. Feb. 233). And it is inevitably a situation where some employees will always be disadvantaged by and dissatisfied with whichever approach is taken. In this case, the Walmer Road employees were not covered by the collective agreement governing the Don Mills facility, but rather by the agreement covering what were formerly the Sealtest operations. As a result, they had no legal right under that agreement to transfer or bump into the Don Mills facility, let alone to have their seniority at the Walmer Road plant recognized at the Don Mills plant. However, it was obvious that both the respondent and the intervener were concerned about the Walmer Road employees, many of whom had worked at that location for many years. As a result, the respondent and the intervener negotiated a separate transition agreement on October 3, 1985 which provided for the options described above. While it is evident that the provisions of that agreement fell short of what the complainants desired, it is also clear that it provided for a number of improvements above and beyond the limited rights they had under the Walmer Road collective agreement. Indeed, ultimately, the Walmer Road employees were given some credit for their seniority in the Walmer Road plant, and in addition were ranked on the seniority list in seniority order as between themselves, although junior to the Don Mills employees. In addition, their seniority was recognized at the Don Mills plant for the purposes of vacation and pension entitlement. A number of other provisions and conditions were agreed upon to ease the transition of employees and to minimize to the extent possible the economic consequences of the Walmer Road plant closure on employees.
It is apparent that a great deal of the bitterness and sense of grievance on the part of the Walmer Road employees stems from the fact that the former Silverwood Dupont Street employees had their seniority dovetailed when they were transferred into the Don Mills plant earlier. The complainants also pointed to a long line of collective agreements which were predecessors to the collective agreement covering the Walmer Road plant and which included a provision for the dove-tailing of seniority where businesses were purchased or merged.
However, it is difficult to say that the union's decision in this context was arbitrary, discriminatory or made in bad faith. It is evident that the Walmer Road employees had very different legal rights from the Dupont employees with respect to the Don Mills facility as a result of the fact that the latter were covered by the Don Mills collective agreement and the former were not. As a result, the differential treatment of these two groups can be explained by the fact that they were differently situated with respect to their legal claims on positions at the Don Mills plant. The fact that predecessor agreements to the Walmer Road agreement contain provisions which essentially allowed the employees of purchased dairies to bump into the Walmer Road plant was of little assistance to the Walmer Road employees with respect to their legal rights vis-a-vis the Don Mills plant and the collective agreement covering that plant, even if such a provision had been retained.
A number of ingredients went into the respondent's decision to endtail the Walmer Road employees' seniority, including their legal position, the employer's position (originally, the employer wanted to pick and choose only those employees it wished to retain without reference to seniority) and the views of both the Walmer Road employees and the Don Mills employees with respect to the integration of seniority. It should be noted that there were more employees at the Walmer Road plant than there were at the Don Mills facility, and that the decision to endtail was not simply a question of political expediency. Having had the opportunity to hear extensive evidence in this regard, I find there was nothing improper about the factors the respondent considered, or the manner in which the decision was made.
The complainants argued that the general policy of the local had been dovetailing, and that in this sense, the endtailing of their seniority was discriminatory. However, the evidence before me indicates that for various reasons, and in various circumstances, different groups of employees have had their seniority both endtailed and dovetailed in the past, and it cannot be said that the endtailing of the Walmer Road employees' seniority was a departure from the local's general approach. The complainants were also concerned that four employees at the Walmer Road plant had apparently received both severance pay upon leaving the Walmer Road plant and jobs at the Don Mills plant. It was evident, however, that this was an anomaly relating to a one time mistake made by the intervener, the consequences of which the intervener decided to absorb rather than requiring repayment from employees.
It may well have been that the respondent could have communicated more frequently
and more clearly with employees throughout this process. However, as a result of the, combination of the efforts of the complainants, the respondent and the intervener, I am satisfied that employees in fact were kept informed of events as they unfolded.
There is no doubt that serious consequences to employees flowed from the closure of the Walmer Road plant and the endtailing of their seniority. In addition, it is not hard to understand their frustration and their view that they have been wronged. However, it was apparent from the material before me that both the respondent and the intervener were attempting to make the best of a bad situation, and there was no evidence suggesting that the endtailing decision was arbitrary, discriminatory or made in bad faith. As a result, I concluded that the respondent's conduct in this context could not be considered a breach of section 68, and dismissed the complaint.
In view of my decision on the merits of this case, I advised counsel that I found it unnecessary to address two preliminary objections with respect to delay and abuse of process made by the respondent and the intervener.