[1994] OLRB Rep. May 532
2909-93-U Rheal V. Dionne, Norton Smith, Robert Taylor, Robert Hastie and John A. MacDonald, Robert Burgon, and 91 persons listed on Appendix "A", Applicants v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) and its Local 199 (St. Catharines) and its Local 1973 (Windsor), Responding Parties v. General Motors of Canada Limited, Intervenor
BEFORE: R. 0. MacDowell, Alternate Chair.
APPEARANCES: Rheal Dionne, Robert F. Taylor, Norton Smith, Gord McKenna and Barb Shugan for the applicants; Frank Luce, Sym Gill, Ted Sendzik and Nick Dzudz for the responding parties; Karen Weinstein, Elisabeth Campin, Bob Towey and Jim Magarrey for the intervenor.
DECISION OF THE BOARD; May 24, 1994
The title of this proceeding is amended to include "Robert Burgon" as an applicant, and "CAW - Local 1973 (Windsor)" as a responding party. This amendment is made pursuant to the applicants' request, and the Board ruling of March 11, 1994. I should note, however, that there was no evidence from Mr. Burgon, nor any direct evidence touching CAW Local 1973.
The reference to the "persons in Appendix A" is included for the purpose of completeness. It is not necessary to list their names individually.
For ease of reference I will refer to the responding party as "the union" and the intervenor as "GM" or "the employer".
II
This is an application under section 91 of the Labour Relations Act alleging that the union has contravened section 69 of the Act. That section 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.
In order to establish a breach of section 69, a complainant must show that the union's conduct has been:
(a) "arbitrary" - that is, capricious, reckless, flagrantly wrong or grossly negligent [see: ITE Industries, 11980] OLRB Rep. July 1001]; or
(b) "discriminatory" - that is, involving invidious distinctions without reasonable labour relations justification; or
(c) motivated by "bad faith" - that is, ill-will, malice, hostility, or dishonesty.
Section 69 governs the way in which a trade union is obliged to represent employees. Section 69 imposes no obligation on employers, nor can an employer breach section 69. General Motors became a party to this proceeding because it might be affected by the remedy - although GM's position is that the Board has no jurisdiction under section 91 to make an order affecting its rights. In GM's submission, the reference in section 91(4) to "persons" required to take corrective action, is only to persons who have contravened the Act, and, as noted GM cannot contravene section 69.
The applicants claim that they have been misled by the union in relation to the early retirement options available to them. They seek compensation in the amount of $35,000.00 each, which is the amount they assert they would have been entitled to receive if the union had acted properly.
Applicants Taylor and MacDonald claim that the union contravened the Act when it failed to vigorously pursue a "grievance" alleging a breach of the collective agreement.
Mr. Dionne complains that the union should have guided him through the remedies available to him under his union's constitution, and should be paying the applicants' lawyer in this proceeding.
A hearing in this matter was held, in Toronto, on May 4th and May 5th, 1994. The union and GM were represented by counsel. The applicants were not. Mr. Dionne explained that, despite their number and the size of their claim, the applicants could not afford to retain counsel. He indicated that they were prepared to proceed on their own.
All of the parties had the opportunity to call witnesses, and tender documents in support of their positions, and in assessing the relative credibility of those witnesses, I have taken into account suc factors as: the clarity, consistency, and overall plausibility of the testimony when subjected to the test of cross-examination; the firmness of the witnesses' recollections; the ability of the witnesses to resist the tug of self-interest or self-justification when framing their answers; and what seems most probable in all the circumstances.
In my view, much of the conflict in the evidence is attributable to faulty memory or misunderstanding rather than mendacity. However, to the extent that it is necessary to choose, I prefer the evidence of the union witnesses whenever there is a material conflict with that of the applicants.
Much of the background is not in dispute.
III
With the exception of Mr. Burgon, the applicants are all employees of General Motors who have worked at its St. Catharines plant for many years. The union is their collective bargaining agent. The most recent collective agreement at St. Catharines expired in September 1993.
In the last few years, GM has been involved in a process of restructuring in order to meet competitive pressures. One of the effects of that restructuring has been the permanent lay-off of hundreds of employees, at St. Catharines, and elsewhere. Those lay-offs are typically administered in accordance with employee seniority.
One of the effects of a strict seniority system is a preference for older workers over younger ones, who might have greater family responsibilities. Accordingly, the union and GM began to explore alternative ways to reduce the labour force so that the "downsizing" could be accomplished as painlessly and equitably as possible. One of the ways of doing that was to encourage voluntary early retirement.
Employees have been able to take early retirement since at least 1990. However, between late 1992 and the fall of 1993 the union and the company developed three additional options, referred to in these proceedings as the "1.9 plan", "the $250 plan", and the "$35,000 buy out". These plans become available when there is a "triggering restructuring event", resulting in the prospect of permanent lay-offs.
The details of these various options are contained in the documents filed with the Board, and need not be reproduced here. It is suffices to say that each plan was designed to encourage employees to leave the work force. Each plan had different features, which might be more or less attractive to particular employees, depending upon their seniority, wage rates, classification, pension credits, entitlement to supplementary unemployment insurance benefits (SUB), what they might wish to do after leaving GM, and so on. And each plan had a feature that was later to prove critical to the applicants in this case: once the employee had signified his/her choice, completed the required documentation, and waited the prescribed "cooling off period"~ the decision became irrevocable. The employee could not thereafter change his/her mind. S/he was obliged to depart on the agreed upon terms.
Senior employees were not required to accept any of these options. But if they chose to do so, the decision could not later be rescinded. And once the choice had been made, employees could not switch options - even if they later came to regret their choice, or some new incentive program was proposed.
I should also note, parathetically, that there were some limitations on the number of employees who could take particular options, and other limitations on the time for doing so. One employee's choice could affect the options available to others; and if the option was not taken up within the prescribed time, it might no longer be available.
The applicants do not really dispute that the documents they signed purported to make the choice final, binding, and irrevocable. Nor do they dispute that GM has maintained that position throughout, and has insisted that employees adhere to the particular decision that they have made. Employees were not permitted to belatedly change their minds. There is no allegation that the company ever suggested otherwise. There is no evidence that the union and GM ever agreed or ever intended that employees could revoke their written applications, switch choices, or reject an agreement upon a particular plan in favour of another or later one. Once the choice was made the employee was locked in.
In November 1992 when the "1.9 plan" was offered the union held information meetings to advise employees of its features and answer any questions that they might have. Company officials were also present to explain the terms of the plan. The union subsequently made SUB representatives and pension representatives available for individual consultations. Quite a number of employees took advantage of this opportunity to canvass the options and discuss their personal circumstances.
Employees were advised that their decision was an important one because they were being asked to consider "the rest of their life". Employees were told to carefully consider their situation, because this particular opportunity might not be available in the future. By the same token, employees were warned that if they "opted in" their choice would become irrevocable. Employees were advised to make a personal decision in consultation with their spouses, advisors, etc., and not to be unduly influenced by the choices made by other employees. No employee was forced to accept the incentive, and all employees had an opportunity to think about it.
In November 1992 no one knew that another incentive program would become available a few months later. In consequence, no one was told that if they opted for the "1.9 plan" they could switch to any new plan that might come along later. In November 1992 there was no discussion about the "$250 plan", since this opportunity had not yet been established.
In May 1993 the company and the union agreed upon what the parties described as the "$250 plan". This new arrangement was influenced by developments in the United States, and a growing awareness that existing plans did not provide sufficient incentive for employees to leave the work force. The $250 plan was different from the 1.9 plan and remained open for eligible employees until August 1993.
As before, there were meetings to explain the details, and union and company representatives were available to consult employees on an individual basis. As before, employees were urged to carefully consider their personal circumstances because the decision was important and would be irrevocable once made. And as before, there was no discussion of any other options. The "$35,000 buy out" had not yet been devised.
During the course of the discussions about the 1.9 and the $250 options, the applicants were asked to consider their future. In doing so, some of them asked questions about their future pension entitlement and how it might be affected by future collective bargaining. Information was provided based upon rates negotiated in the existing collective agreement; however, employees were also assured that they would receive whatever PENSION INCREASES were bargained in the new collective agreement which was to be re-negotiated in September - October 1993.
Despite the applicants' testimony to the contrary, I find that they were not told that they would have a right to participate in any new early retirement options that might emerge from negotiations. Nor were they told that they could discard the plans that they had irrevocably selected in favour of any new plan which might be developed. They were only told that if pension rates increased as a result of collective bargaining, that increase would be passed along to them. Prior to September 1993 (i.e. after the $250 option had closed) no one knew that there would be a third alternative: the so-called "$35,000 buy out".
The CAW and the automobile companies engage in what is known as pattern bargaining. The union selects one company as the target for intensive negotiations, and once a settlement has been reached, the other companies are expected to fall in line. In 1993, the target company was Chrysler. Bargaining began in earnest in July 1993.
The union went into the Chrysler bargaining with a general demand for improvements to the job security package. There were no detailed demands in this regard. A number of issues were discussed, and eventually Chrysler agreed to a "cash buy out" as an additional incentive to early retirement/voluntary severance of employment.
GM adopted the same mechanism some weeks later. The sum of $35,000 represents the average projected payment to eligible employees.
There was no intention to make this option available to GM employees who had already agreed to leave the labour force in accordance with other early retirement incentives. The new buy out terms do not extend to those employees. Nor did the union or employer ever tell the applicants that they did, or would.
I do not doubt that some of the applicants may have believed that they were entitled to participate in the new option, because of the way in which it was described in an article in a union newspaper. There may have been some confusion. Others apparently linked the enhancement of their pension benefits (to which they were entitled and which did flow from the 1993 round of bargaining, as expected) with the new buy out option that emerged from the same bargaining but to which they were not entitled. And, no doubt, the applicants believe that they should be entitled to the new option which, in some cases, is more attractive to them than the one which they selected in late 1992 or mid 1993. But I repeat: there was never any intention to make the $35,000 buy out available to persons who had already agreed to leave the work force on other arrangements; nor was there any promise, undertaking, or representation prior to bargaining that any new option would be available to persons in the applicants' position.
Having considered the evidence tendered by the applicants, I am satisfied that there was no "misrepresentation" - innocent, or otherwise.
I need not decide whether the views of particular applicants are the result of mistake, misunderstanding, or wishful thinking. I need only find, as I do, that there was nothing arbitrary or discriminatory in the way that the applicants were represented. Nor was there any bad faith.
Their main contention, therefore, must be rejected.
IV
The Taylor/MacDonald "grievance" arises from the effort of these employees to cancel their agreement to take the 1.9 option, after the date for rescission had passed.
In or about December 1992 Ted Sendzik, a pension representative tried to persuade the company to allow Mr. MacDonald and Mr. Taylor to withdraw their application for early retirement despite the passing of the deadline for doing so. The company refused - pointing out that the document the employees had signed was clearly stated to be irrevocable. As a result of this rebuff, MacDonald and Taylor signed grievances alleging that the company's action was a breach of the collective agreement.
Peter Watson, a union "committee person" received the grievances. However, Watson advised the two employees that the grievances "would not fly". He said that the grievances did not make out a breach of the collective agreement.
Watson also advised the employees that, in the circumstances, it was unwise to file a grievance that was without merit, and that he would not do so. MacDonald agreed to that course of action and, at the time, Taylor did not object. Later, though, Taylor complained that the grievance was not being processed; and he now asserts that Watson's action was a breach of section 69 of the Act.
Later lobbying has resulted in the resurrection of these grievances so I will be somewhat circumspect in my comments about them. There was no evidence to indicate that Watson was "wrong" in his conclusion that the grievances were without merit. There was nothing to indicate that the company's refusal to exceed to the employee's request constitutes a breach of some provision of the collective agreement, and thus a proper foundation for a grievance. There is nothing to demonstrate that Watson's conclusion was "discriminatory" or "arbitrary" and no evidence that it was undertaken "in bad faith". There is, in summary, nothing to establish that Watson's decision constitutes a breach of the Act - although, of course, Mr. Taylor does not agree with it.
Mr. Taylor's position is based upon a misunderstanding of the union's obligation, both in general, and under section 69 of the Act. Mr. Taylor asserts that a union official is obliged to accept and process any grievance, regardless of its merits. Mr. Taylor asserts that under section 69, a union official is required to proceed through the grievance procedure, even if s/he thinks the grievance has no merit and does not disclose a breach of the collective agreement. But Mr. Taylor is wrong, - as the Board noted in Catherine Syme, [19831 OLRB Rep. May 775:
Section 68 [now 69] requires a trade union to act fairly, inter alia, in the handling of employee grievances. But it does not require a trade union to carry any particular grievance through to arbitration simply because an employee wishes that this be done. A trade union is entitled to consider the merits of the grievance, the likelihood of its success, and the claims or interests of other individuals or groups within the bargaining union who may be affected by the result of the arbitration. The trade union must give each grievance its honest consideration, but so long as the arbitration process involves a significant financial commitment and has ramifications beyond the individual case, a trade union is not only entitled to settle grievances, in many cases it should do so. And, as has been pointed out in a number of cases, in assessing the merits of a grievance a trade union official - especially an elected one - cannot be expected to exhibit the skills, ability, training and judgement of a lawyer.
Most collective agreements contain a grievance procedure to which resort must be made before a matter can proceed to arbitration. The grievance procedure involves several stages of pre-arbitration discussion in which (as in the present case) the parties seek to amicably resolve their differences. As in the ordinary civil litigation process, it may be in the interests of both parties to seek an "out of court" settlement which is more modest than either of them might have obtained had they been entirely successful before an adjudicator. A settlement is a compromise solution which avoids the costs and uncertainties of litigation, and where it appears that the claim is without legal foundation or cannot be proved it makes little sense to proceed further.
These considerations are equally applicable to the settlement of disputes arising out of collective agreements. But there is an important difference. Unlike most parties in civil matters, the trade union and employer are bound together in a relationship which will subsist so long as the employees continue to support the union and the employer remains in existence. That relationship, despite its adversarial aspects and legal veneer, is neither wholly adversarial nor strictly legal. It is essentially an economic partnership in which both parties must be concerned about the ongoing relationship and the equitable resolution of disputes which occasionally arise. Like a successful marriage, a productive bargaining relationship depends upon the development of a spirit of cooperation and compromise. Regardless of the arguable importance of any particular grievance, it will inevitably be only one of many which the parties will be required to resolve during the currency of their relationship; and, if either party obstinately adheres to an unreasonable position, or continually presses trivial claims, the entire settlement process could be undermined, and their long-term relationship prejudiced. It can hardly further mutual trust and respect if union and management officials are required to spend needless hours discussing inconsequential or unfounded grievances. As a practical matter, a rigid insistence on one's "strict legal rights" or an insistence on proceeding to arbitration with doubtful claims is likely to provoke a response in kind, and yield only short term gains. As a matter of good judgement, and in the interests of sound industrial relations, a trade union should make reasonable efforts to settle grievances early in the process. I do not think there is any justification for processing obviously groundless claims simply because an individual employee demands his "day in court". Such position not only represents a waste of the employees' money in counsel and other fees associated with the arbitration process, but could also prejudice the ongoing and informal resolution of disputes, short of arbitration, where there might well be some contractual basis for the union's claim.
There is nothing improper or illegal in the way that the union responded to the MacDonald/Taylor grievances.
1 turn, then, to Mr. Dionne's complaints.
V
Under the Labour Relations Act a trade union can become the exclusive bargaining agent for employees in a defined bargaining unit, and once the union is established the employees cannot bargain with their employer on their own. They are part of a group that bargains collectively through the trade union as bargaining agent. On the other hand, section 69 of the Act provides a counterweight. Under section 69, the union must represent the members of the bargaining unit in a manner that is neither arbitrary, discriminatory or in bad faith.
The duty of fair representation applies to the way in which the union represents employees in their relationship with their employer. Because the employees cannot bargain on their own, the union must represent them fairly. However, section 69 does not regulate the relations of employees to each other, or to their union as an organization. It does not regulate internal union affairs.
Matters such as elections, qualifications for office, dues, internal hierarchy, appeal procedures, and so on, are not governed by the Labour Relations Act. They are regulated by the union s constitution. That constitution cannot diminish an employee's statutory rights, but those constitutional rights are not statutory. Nor may constitutional claims be pursued under section 69 or before the Board. Section 69 governs the way in which the union represents employees vis-a-vis their employer - not the way it conducts its internal union affairs.
Mr. Dionne claims that in his 30 years as a union member he has never received a copy of his union constitution He concedes however that he never asked for one.
Mr. Dionne also complains that the union should have explained the constitution to him and outlined the procedure by which aggrieved members could pursue an appeal. But there is no evidence that Mr. Dionne was misled about such options, and there is ample evidence of communications and meetings to explain to Mr. Dionne and others that they were mistaken in their belief that they could participate in the $35,000 buy out plan. The union tried to explain that the latest "buy out" was not open to those who had already taken other options. The negotiated terms did not apply to such persons, nor could they switch options now. The union tried to explain that the only pension enhancement flowing from the 1993 bargaining was an increase in rates. This was what union officials were referring to prior to the negotiations in the fall of 1993. However, Mr. Dionne rejected that explanation and filed this complaint.
These matters do not fall within the ambit of section 69; and, in any event, do not disclose any of the elements outlined in section 69.
In so finding, of course, I make no comments upon the rights (if any) which Mr. Dionne or others may still have under the union constitution.
VI
- For the foregoing reasons, this complaint is dismissed.