[1997] OLRB REP. MARCH/APRIL 210
2763-96-U Group of Employees Represented by Rene Dubeau, Leo Kelly, Eugene Weber and Bruce Cook, Applicants v. National Automobile, Aerospace and Agricultural Implement Workers of Canada (CAW - Canada) and Local No. 222 CAW Responding Party v. General Motors of Canada Limited, Intervenor #1, Peregrine Oshawa Inc. and Peregrine Windsor Inc., Intervenor #2
BEFORE: Janice Johnston, Vice-Chair.
APPEARANCES: C. J. Abbass, R. Dubeau, Eugen Weber, Leo Kelly and Bruce Cook for the applicants; L. N. Gottheil, Tony Leab, Bert Rovers, John Graham and Don Whalen for the respondent party; David Bannon, Jim Cameron and Elisabeth Campin for the intervenor #1; R. N. Nero for the intervenor #2.
DECISION OF THE BOARD; March 17, 1997
I. This is an application pursuant to section 96 of the Labour Relations Act, 1995, (the "Act") alleging a violation of sections 44, 74 and 79(7)-(9). The application was filed on behalf of 657 individuals.
- The relevant sections of the Act read as follows:
- (1) A proposed collective agreement that is entered into or memorandum of settlement that is concluded on or after the day on which this section comes into force has no effect until it is ratified as described in subsection (3).
(2) Subsection (I) does not apply with respect to a collective agreement,
(a) imposed by order of the Board or settled by arbitration;
(b) that reflects an offer accepted by a vote held under section 41 or subsection 42(l); or
(c) that applies to employees in the construction industry.
(3) A proposed collective agreement or memorandum of settlement is ratified if a vote is taken in accordance with subsections 79(7) to (9) and more than 50 per cent of those voting vote in favour of ratifying the agreement or memorandum.
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.
(7) A strike vote or a vote to ratify a proposed collective agreement or memorandum of settlement taken by a trade union shall be by ballots cast in such a manner that persons expressing their choice cannot be identified with the choice expressed.
(8) All employees in a bargaining unit, whether or not the employees are members of the trade union or of any constituent union of a council of trade unions, shall be entitled to participate in a strike vote or a vote to ratify a proposed collective agreement or memorandum of settlement.
(9) Any vote mentioned in subsection (7) shall be conducted in such a manner that those entitled to vote have ample opportunity to cast their ballots. If the vote taken is otherwise than by mail, the time and place for voting must be reasonably convenient.
- (4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of,
(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of;
(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of; or
(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally.
At the hearing scheduled to deal with this matter, counsel for the responding party, the National Automobile, Aerospace and Agricultural Implement Workers of Canada (CAW - Canada) and Local No. 222 CAW (the "union" or the "CAW") brought a motion to dismiss this application on the basis that the application does not make a prima facie case for the remedies requested. Counsel for Intervenor #1, General Motors of Canada Ltd. ("G.M.") adopted the submissions of counsel for the union with regard to the motion to dismiss for failure to make out a prima facie case and joined in the motion. In addition, counsel for G.M. requested that the Board exercise its discretion pursuant to section 96(4) and decline to inquire into this complaint, as in his view, there was no labour relations purpose to be served by continuing with the hearing and delving into the allegations which have been made. Counsel for Intervenor #2, supported the motions which had been brought to dismiss this application on both grounds.
For the purposes of dealing with the preliminary motions, I have assumed that the facts claimed by the applicant both orally and in writing are true and provable. This application, as outlined in the pleadings and as clarified at the hearing deals with the following situation.
Prior to the commencement of the recent set of negotiations between GM and the CAW for the renewal of the Master Agreement and the Local Seniority Agreement, GM announced its intention to sell the Windsor Trim and the Oshawa Fabrication plants (the "Fab" plant). In the spring of 1996 there was talk amongst the Oshawa workers of the sale of the Fabrication plant and the possible loss of seniority rights by the Fab plant workers. In answer to this talk the Shop Committee put out a message on May 8, 1996, indicating that there would be no loss of seniority and confirming that in the event of a sale, the Fab Plant workers would continue to have their plant wide seniority rights as set out in the Local Seniority Agreement. This message reads as follows.
This leaflet is being circulated to answer the countless rumours and totally untrue versions of what your rights are in a worst-case scenario of the Fab Plant being sold.
Contrary to what you may have heard, there are no petitions circulating in the South Plant to take away your rights.
As your elected representatives now, and in the upcoming 1996 negotiations, we will not be part of any bargaining that takes away the seniority rights of the Fabrication Plant members-or for that matter, any seniority member in Oshawa.
If the Company was allowed to separate any plant, all the membership in Oshawa would be affected and suffer by any type of permanent reduction. Seniority is the foundation of our Union.
Your rights under Document 12 of the Master Agreement clearly identify Oshawa as a multi-plant site. Under a closure or restructuring event Document 12 refers to the reduction in force provisions. Paragraph 58 of the Master Agreement identifies seniority rights and where they are exercisable, referring to the Local seniority rules.
The Local seniority rules identify your flow in paragraphs 7 through 16 of the Local Seniority Agreement. There is no question in the interpretation of your rights: you very clearly have the right to flow.
First and foremost, our Number One objective will be to overturn and reverse any decision surrounding the intended sale of the Fabrication Plant. You the Fabrication Plant members-have our full support on this very important issue.
In Solidarity, Your Shop Committee
The collective agreement between G.M. and the union expired on September 14, 1996. The union went on strike on October 2, 1996. On October 22, 1996 the media reported that a tentative deal had been reached and that a ratification meeting would take place on October 23, 1996. No information as to the nature or content of the proposed collective agreement nor any written notice of the date, time or place of the ratification meeting were given or made available to the GM individual bargaining unit members prior to the ratification meeting on October 23rd, 1996, other than as reported by the media. It was not suggested that the applicants in this case did not have actual notice of the meeting nor was it suggested that they did not attend the meeting. It was not disputed that the turn out for the meeting was above average.
It is not necessary to set out in detail the terms of the changes to the collective agreement which were to be ratified. Suffice it to say that despite the best efforts of the union, the sale of the Oshawa Fab plant was not prevented. Accordingly, the employees of the Fab plant were terminated by G.M. and became employees of the purchaser. However, this termination was softened by a multi-page agreement between the union and G.M. which among other things, gave the Fab plant employees the right over the terms of this collective agreement and the next collective agreement (normally three year agreements) to become re-employed by G.M. without loss of seniority. In addition, there was a buy-out option and the continuation of most benefits.
At the ratification meeting on October 23, 1996, a brochure outlining the highlights of the agreement was distributed. The first five pages of this brochure are attached to this decision as appendix “A”. The two critical portions of this brochure are found in page 4 & 5 and read:
The union has achieved a major breakthrough on outsourcing. In past agreements we have developed programs that limit layoffs and provide income security for our members. In this round of bargaining we have gone further. We have successfully curtailed the company’s right to outsource our jobs.
Going into bargaining the union promoted the concept of work ownership – protecting the work which we have historically done.
At GM, we had the additional problem that the company had already announced – prior to the opening of negotiations – the proposed sale of the Windsor Trim and Oshawa Fab plants. The sale of these two plants was not reversed, but as we explain elsewhere, we were able to get unique and very important protections for the affected workers.
Sale of Oshawa Fab
Every worker will have a chance to return to GM Oshawa plants.
1,875 Document 12 buy-outs city-wide (unused are banked).
GM back-up payer if new owner can't meet benefit, pension, insurance, or income security commitments (through to 2005).
Pensions: Service at GM, plus the first nine years of service at the new company, at the same rate as someone retiring at GM in same circumstances.
Full GM benefits at retirement.
1,280 Document 12 buy-outs (unused are banked).
It is acknowledged that the applicants received this brochure at the meeting. It was not disputed that at the ratification meeting every member had the opportunity to ask questions and seek clarification regarding the proposed settlement.
Prior to the vote being conducted, various individuals, including Mr. Buzz Hargrove spoke at the meeting. Mr. Hargrove told the assembled workers that over the next six years every Fab plant employee would have the right to return to the G.M. Oshawa plants or accept a buy-out. This was an accurate description of what had been agreed to.
Counsel for the applicants argued that by not specifically telling the employees of the Fab plant that their employment with G.M. had been terminated, the union misrepresented the settlement that had been agreed to between G.M. and the union. Counsel took the position that because they were not told that their employment with G.M. had been terminated by the sale of the Fab plant, the applicants assumed that they would remain employees of G.M. Given that the employees had been told by the union (in the May shop committee message) that it intended to reverse the sale and would protect the seniority rights of the Fab plant employees, unless told to the contrary the Fab plant workers were entitled to assume that this was still the case. Had they known that their employment had been terminated, subject to various terms and conditions, the applicants would not have voted in favour of ratifying the proposed collective agreement.
The applicants' counsel took the position that the union intentionally misled the Fab plant employees as to the nature of the settlement reached with G.M. to ensure that the new collective agreement was ratified. In his view, the Fab plant employees should have been told that according to the settlement, their employment with G.M. was terminated. By not telling the Fab plant employees that their employment was terminated, the employees at the ratification meeting did not have sufficient information upon which to cast an informed ballot. In counsel's view, the union cannot keep the contents of the amended collective agreement secret and still comply with section 79. Counsel suggested that section 44 of the Act requires that a proposed collective agreement be ratified pursuant to section 79 of the Act before it will have any effect. If section 79 is not complied with, the collective agreement has no force and effect. In this case, as the employees did not have sufficient information for an informed vote, and the information they were given was not accurate, the vote is nullified. In addition, because the union officials were dishonest and acted in bad faith, they violated section 74 of the Act.
Counsel for the applicant argued that by using the local media to inform the employees of the ratification meeting, the union failed to give appropriate notice pursuant to section 79 of the Act. In his view, the length of the notice, the content of the notice and the means of publishing the notice were insufficient to meet the requirements of the Act. In addition, he suggested that pursuant to section 79 of the Act, the union is required to provide, in advance of the meeting, the memorandum of settlement which it seeks to have ratified. In the alternative, the union must provide the individuals who attend the meeting with sufficient information and time so as to enable those who are opposed to the recommended settlement an opportunity to mount a campaign against the settlement before the vote.
Counsel for the applicants took the position that had the applicants been told that the sale had gone through and that their employment had been terminated, they would not have had a case before the Board.
By way of remedy, the applicants requested:
That the Board find that Respondents have breached section 74 of the Act.
That the Board find that the ratification vote held on October 23rd, t996, to ratify the proposed collective agreement between the Respondents and GM was not conducted in accordance with section 79 (7) to (9) of the Act.
That the Board find that the proposed collective agreement between the Respondents and GM has not been ratified as required by section 44 of the Act and is of no effect.
That the Board order the Respondents to conduct a ratification vote of the proposed collective agreement in accordance with section 79 (7) to (9) of the Act.
That the Board order the Respondents to compensate the Applicants for the losses sustained as a result of the Respondents breach of its duty under section 74 of the Act.
Such other relief as the Board considers appropriate.
It is not necessary to set out the submissions made by counsel for G.M. and counsel for the union. Both counsel provided me with extensive and helpful submissions and directed me to relevant jurisprudence. I have taken these submissions and the jurisprudence into account in deciding the two motions.
Decision
- For the reasons that follow, I am of the view that as this application fails to make out a prima facie case for the remedies requested, it is appropriate to exercise my discretion pursuant to section 96(4) of the Act to decline to inquire further into this complaint. The Board's Rules of Procedure provide in Rule 24:
Dismissal without a hearing
- Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing. In its decision, the Board will set out its reasons. The applicant may within twelve (12) days after being sent that decision request that the Board review its decision.
- In The Coalition of Laid-off Workers, [1990] OLRB Rep. Oct. 1019 the Board in dealing with an allegation that the union had deliberately misled and misinformed the membership stated:
- There is no doubt that the complainants have alleged certain matters which, if proven, might arguably constitute breaches of section 68 of the Act. For example, when the complainants allege that the respondent union “deliberately mislead [sic] and misinformed each member that did sign any authorization forms provided by the respondent union reps" (see paragraph 8, supra) they make an allegation which might arguably constitute a breach of section 68, provided material facts in support of that allegation are proven. What material facts have been alleged we accept as true. But there are not sufficient material facts to support this allegation. The complainants were directed to indicate, for example, the names of any individuals who are alleged to have made misrepresentations, the statements that were made, and the circumstances under which they were made. They failed to file those particulars. What we are left with a mere assertion that the complainants were misled or misinformed. These re not material facts on which we can conclude that an arguable breach of section 68 has been pleaded. And insofar as Mr. Ellison and Mr. Hinds are concerned, since they negotiated their own settlements, there are not even assertions of how the union might not have represented them fairly.
In other words, as in the case before me, it is not sufficient to simply allege misrepresentation, dishonesty and bad faith on the part of the union, the applicant must also provide sufficient material facts to support such an allegation. Therefore, the test applied in determining whether or not a particular case discloses a prima facie case has been described by the Board as "where there is no reasonable likelihood that a complaint can succeed on the facts as alleged" (see The Coalition of Laid-off Workers, supra at par 20 and the cases cited therein) or "where the allegations are insufficient to render reasonable or arguable a conclusion that the Act has been breached" (see Caravelle Foods, [1983] OLRB Rep. June 875 at page 881), the applicant has failed to make out a prima facie case for the remedies requested.
In this case, there is no dispute that the union members who attended the ratification meeting were provided with a written summary of the tentative agreement, that certain union officials, including Buzz Hargrove, spoke and elaborated on the deal and what these officials said. There is no dispute regarding what was said, the dispute is about what was not said. What this case comes down to, after a day and a half of submissions, is that based on what they had been told in May, five months earlier, and based on what they read and were told at the ratification meeting, certain individuals came to certain erroneous conclusions.
Based on what they were told, the applicant's concluded that their employment with G.M. would not be terminated. It is clear that no one specifically told them this, it was simply a conclusion that they came to. Counsel for the applicants asserts that the individuals affected by the sale of the Fab plant should have been told that their employment was terminated. That the union should have used these specific words. Hindsight is a wonderful thing. In retrospect I am sure the union wishes it had used those specific words. However, they did not. At the end of the day, there is not a single material fact to support the applicant's allegation that the union acted in bad faith, was dishonest, or intentionally misled the Fab plant employees. Clearly they did not choose the words to describe the effect of the sale that the applicants would have had them use. But they did accurately describe the agreement that had been reached. The union cannot be faulted or held responsible for the fact that some individuals made assumptions and based on these assumptions came to an erroneous conclusion. To succeed in a claim that section 74 of the Act has been violated, the applicants must prove that the union failed in its duty to fairly represent them and acted in a manner that was arbitrary, discriminatory or in bad faith. After having considered this case as described both orally and in writing, there are no material facts to support a violation of section 74 of the Act.
Section 44 of the Act requires that, before it will be given any effect, a proposed collective agreement must be ratified by a vote taken in accordance with section 79 of the Act. Section 79 of the Act deals with both strike votes and ratification votes. Section 79 requires that both types of votes be conducted: by secret ballot; that all employees, whether or not members of the trade union shall be entitled to participate in the vote; that the vote shall be conducted in such a manner that those entitled to vote have ample opportunity to cast their ballots; and that if the vote taken is otherwise than by mail, the time and place for voting must be reasonably convenient.
Although it was initially claimed otherwise, it became apparent at the hearing and was conceded by counsel for the applicant that there was no issue with regard to the notice that the ratification meeting would take place and where it would take place. In other words, the union members knew about the meeting and when and where it would take place. The issue raised by counsel for the applicants, is whether there is an obligation on the union in conducting ratification votes to tell its members in advance of the meeting and in written form, the contents of the proposed settlement that the union is seeking to have ratified. The answer to this question must be no. Nowhere in section 79 is this obligation set out and the practical difficulties which such a requirement would impose are enormous. It cannot be, especially in the circumstances of this case where 13,000 employees in Oshawa are on strike, that the legislature intended the union to disseminate this kind of information to its membership with the delays this might entail, as a prerequisite to holding a ratification meeting. It makes no sense to read into section 79 a requirement for the union, in this case where the collective agreement is extremely lengthy and complex, to keep its membership out on strike for what could be several more days, with the consequential economic losses, to enable it to provide written information to its membership regarding the contents of the proposed change to the collective agreement.
However, having said that, it is also my view that either inherent in section 79 of the Act, or as a part of its duty to fairly represent its members pursuant to section 74 of the Act, the union must give its membership, at the ratification meeting, accurate information with regard to the proposed settlement. There is no magical formula that must be met. but the membership must be given sufficient information so as to enable a reasonable person to vote in an informed manner on the proposed changes to the collective agreement. In the case before me I am satisfied that the union met this obligation. They provided a written brochure outlining the changes, in a format that has been used by them for many years. This information was orally supplemented by representatives of the union at the ratification meeting. As I have already noted, the information that was given was accurate. The difficulty in this case is that the applicants appear to have come to unintended conclusions. However, as I have already concluded, the union cannot be faulted for this. There are no material facts to support the conclusion that there was a misrepresentation of the proposed deal or that the union was dishonest. There has been no violation of section 79 of the Act.
Accordingly, for all of the reasons outlined, it is not appropriate to inquire further into this matter and I decline to do so. This application is dismissed.