[1998] OLRB REP. MARCH/APRIL 246
2305-97-U Charles Tovey, and all persons signatory to Petition for Seniority, Applicants v. C.A.W. Local 222, Responding Party v. Mackie Automotive Systems (Whitby), Intervenor
BEFORE: Gail Misra, Vice-Chair.
APPEARANCES: Charles Tovey; Bill Joyce and Bill McLaren for the applicants; Lorna J. Moses, Mike Shields, Robert E. St Jules, Ray Bint, Vivian Terrelonge, Ron Boiuin, Shannon Dewitt, for the responding party; Clifford J. Hart, John Miller and Dawn Hillis for the intervenor.
DECISION OF THE BOARD; March 2, 1998
This is an application made pursuant to section 96 of the Labour Relations Act, /995, alleging a breach of section 74 of the Act. A consultation was held regarding this matter on February 19, 1998. As Mackie Automotive Systems (Whitby) attended the hearing as an intervenor, the style of cause is hereby amended to include it as a party.
The applicants complain that the C.A.W. Local 222 (the '~union") has breached its duty of fair representation by agreeing with Mackie Automotive Systems (Whitby) (the "employer" or "Mackie") to add to the seniority list persons hired through temporary service agencies. Pursuant to the understanding reached, once a temporary employee has worked for 90 or more days at Mackie, that person becomes a Mackie employee, and his/her seniority is calculated from the day he/she started being assigned to Mackie. The effect of this agreement has been that about six temporary employees who had been placed at Mackie for some time have been granted seniority ahead of other persons who had already been employees of Mackie on the seniority list. The applicants claim that the union made this agreement with the employer outside of the collective agreement, without the knowledge of the membership, and in breach of section 74 of the Act. They further allege that although one of the applicants had filed a grievance regarding this situation, the union withdrew the grievance.
The union argues it has not breached its duty of fair representation. It states that the union negotiated the issue of employee status for the temporary employees in the last round of bargaining. which culminated with a new collective agreement being reached in May 1997. The proposed collective agreement was ratified by the membership of the union. With respect to the grievance which the applicants claim was improperly withdrawn, the union states that it considered the grievance, but in light of its recent negotiations and the new language of the collective agreement, the union determined it could not proceed with the grievance to arbitration, and therefore withdrew it. A majority of the committee considering that issue voted for withdrawal.
The employer submitted that in the course of the last round of negotiations the workplace parties also settled three other grievances regarding the issue of seniority for temporary employees. The union had agreed to the resolution of those grievances based on what it had negotiated for the new collective agreement. Therefore, it is argued that the union's withdrawal of the applicants' grievance is consistent with the union's position during negotiations, and with the language negotiated.
Mr. Tovey et al. state that while the members voted to ratify the new collective agreement, they did not realize the ramifications of the new language, and that it may result in temporary employees getting seniority over permanent Mackie employees. The applicants believe that had the membership realized the implications of the changes to the language of the agreement, they may not have ratified the contract. It would appear that since Mackie had been in a period of rapid growth there had been extensive hiring of staff, in addition to the use of temporary employees assigned through employment agencies. Thus, when the temporary employees were granted seniority, some placements on the seniority list were by way of leap frogging over 100 Mackie employees. The applicants complain that the temporary employees had not had to pay union dues for all their tenure, while the Mackie employees who have been displaced did. The union states that the employer has paid the union for all union dues which would be due for the temporary employees who have now been added to the Mackie payroll. The applicants nonetheless take issue with this because they claim the temporary employees themselves never had to pay the union dues.
The applicants seek as a remedy an order from the Board that an employee's seniority date shall be the actual date of hire by Mackie, and that that order be made retroactive. They also seek costs.
In reaching my decision I have considered the submissions of the parties, all of the documentation relied upon by the parties, and the Board's jurisprudence in section 74 complaints.
In the first collective agreement between the union and Mackie, reached in May 1994, the relevant Seniority and Temporary Help provisions were as follows:
ARTICLE 12 - SENIORITY
12.01 An employee shall be regarded as a probationary employee until he/she has been in the employ of the Company for ninety (90) calendar days during any twelve (12) consecutive months. After completion of the above probationary period, the employee shall then be assigned a seniority date as of his/her most recent date of hire.
ARTICLE 13 - TEMPORARY HELP
13.02 Such Temporary employees shall not be allowed to work more than eighty-nine (89) consecutive days in regular production operations, or thirty (30) consecutive work days in Rework operations. They shall not be permitted to gain seniority status with the Company.
In November 1995 a grievance was filed by Bill Joyce, one of the applicants, complaining that the employer had violated Article 13 by allowing five temporary employees to gain seniority status. It would appear that the parties settled that matter and agreed that temporary employees would be considered employees of Mackie beginning on the 90th day of their employment. No seniority would be counted from before that point. This was the prevailing regime until the last round of negotiations.
In 1997 the workplace parties negotiated a new collective agreement to be effective from May 26, 1997 to May 25, 2000. The language of Article 12 was amended, and the Temporary Help provision was removed in its entirety. The relevant portion of Article 12 now states:
ARTICLE 12-SENIORITY
12.01 An employee shall be regarded as a probationary employee until he/she has worked a total of sixty (60) days in any twelve (12) month period. After the completion of the probationary period, the employee shall be assigned a seniority date as of his/her first day worked, providing seniority has not been broken as per Article 12.05.
On May 26, 1997 the union bargaining committee sent a "CAW Bargaining Report" to all of the members informing them that a new tentative agreement had been reached and that the bargaining committee was recommending the settlement unanimously. Explanatory notes were provided regarding each of the changes to the previous language. Among other things, the notes indicate that the probationary period has been reduced from 90 calendar days to 60 days worked, and that the temporary help language has been deleted from the collective agreement. Nothing in the notes tells the membership that the union had agreed that once a temporary employee has passed what would be a probationary period for a regular employee, that employee would become a regular employee and would have his/ her seniority run from the date the employee started at Mackie. No submissions were made about the conduct of the ratification meeting and what information may have been provided at that time, but Mr. Tovey claims that had the members known about this matter, they would not have ratified the contract. The majority of the bargaining unit ratified the new agreement.
The day after the ratification meeting, on May 27, 1997 Mr. Tovey filed a grievance claiming that temporary employees were being given their seniority in the manner outlined above in paragraph 11. He did not know that this was what the union had negotiated. He also claimed that the employer had paid the back union dues for these individuals who had now got onto the seniority list.
The employer responded to the grievance stating that there had been no violation of the collective agreement and that this issue had been discussed in negotiations. The bargaining committee met to discuss Mr. Tovey's grievance and decided that based upon the union's negotiations, and the language of the collective agreement, it served no purpose for the grievance to proceed any further. The committee therefore withdrew the grievance and informed Mr. Tovey of the decision in August 1997. It was in early August 1997 that Mr. Tovey became aware of the union's negotiations regarding this matter, and that it had in fact agreed to have temporary employees placed on the Mackie seniority list from those employees' original date of coming to work at Mackie.
Mr. Tovey then circulated a petition regarding the seniority issue, and this application was subsequently filed on September 22, 1997.
Section 74 of the Act 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.
In its decision in Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, the Board considered the content of the duty under section 74:
Section [74] requires that each trade union decision be grounded on a consideration of relevant matters, free from the influence of irrelevant considerations. The requirements that a trade union not act in a manner which is in bad faith protects the legitimate expectation that an individual employee's bargaining agent will act honestly and free of any personal animosity toward him. The requirement that a trade union not act in a discriminatory manner protects against the making of distinctions between employees and groups of employees on bases which have no relevance to legitimate collective bargaining concerns. "Bad faith" and "discriminatory", therefore, test for the presence, in the process or results of union decision-making, of factors which should not be present. "Arbitrary", on the other hand, describes the absence in decision-making of those things which should be present. A decision will be arbitrary if it is not the result of a process of reasoning applied to relevant considerations. The duty not to act arbitrarily requires a trade union to turn its mind to the matter at hand.
The Board has accepted the argument made by applicants that where a union's decision results in significant employment detriment to an employee whom it represents, that decision ought to attract careful Board scrutiny (see for example Retail Wholesale Canada Canadian Service Sector Division of the United Steelworkers of America, Local 1688 (Ontario Taxi Union) and Blue Line Taxi Co. Limited, Unreported, Board File Nos. 1455-94-U and 1637-94-U, Feb. 21, 1997). In that case the Board stated that the more serious the consequences of the union's decision on the interests of its members, the greater is its responsibility to ensure that it does not act rashly.
On the other hand, the Board has also expressed the view that in assessing how unions perform their duties, it is unrealistic and unreflective of the nature of these organizations, to impose legalistic notions of "due process" on them since unions are not composed of lawyers.
It is with these principles in mind that I have reached my decision in this matter. The union, as the bargaining agent for the employees of Mackie, has both the authority and the obligation to bargain with the employer. It is generally accepted that the union's duty is to bargain provisions for the benefit of its members, although the interests of each individual member may not be met, and the union has the right to decide what may be best in all of the prevailing circumstances. This case is troubling because the union knowingly bargained about giving temporary workers seniority rights which the union knew or ought to have known would displace existing members' seniority rights. It was certainly entitled to do so, but it then failed to inform the members that it had bargained an understanding which could result in some bargaining unit members losing their place on the seniority list. The union asked the members to ratify the collective agreement it was recommending, told them that the temporary worker provisions were gone, and that there were changes to the probationary period, but left out the information about the impact of the changes to these provisions.
Further, the union provided the Board no explanation for why it failed to inform the membership about the potential effect on the seniority list, or even of its rationale for reaching this understanding with the employer. The Board therefore has nothing before it to assist it in understanding in what context the decision was made, or what the competing interests may have been.
Seniority is an important right which unions negotiate for in the collective bargaining process. It can give employees some rights or protections in the event of a layoff or recall from a layoff. It may also have other ramifications, in the context of job postings or in the exercise of bumping rights. It is therefore not surprising that such a large number of members of this union have expressed their concern and disenchantment with their union's negotiation of a deal giving the employees of other employers seniority rights which may displace the seniority rights of persons who had been hired by Mackie, and who have had to pay union dues during their tenure as Mackie employees. It is also not surprising that these applicants have seen the union's silence on this issue at the crucial time of ratification of the new collective agreement as a breach of trust.
In the circumstances of this case, and in the absence of any explanation from the union, I find that the union's conduct falls short of the statutory standard and was arbitrary. In my view the union should at the very least have given the members enough information so that they could have known that they should have asked questions about the implications of the changes to Articles 12 and 13. This is not to say that a union has to spell out to its members each and every aspect of changes it has negotiated in a new collective agreement. However, it is not too stringent a standard to set to suggest that a bargaining agent should provide enough information to allow for informed debate and decision-making, especially with respect to matters which may be of significance to the job security of members.
I find no breach of section 74 in the union's handling of Mr. Tovey's grievance. The union accepted the grievance, considered it in light of what it had negotiated, and decided in a democratic manner not to pursue it. Mr. Tovey was informed of the withdrawal of his grievance, and of the reasons thereof. In these circumstances there is no breach of the duty of fair representation, as a union has the right to decide what grievances it wishes to pursue, so long as in reaching that decision it does not act arbitrarily, discriminatorily, or in bad faith.
The remedy the applicants are seeking is not available to them at the Board. In any event, since I am of the view that the union had the right to negotiate what it did, and my only concern is with what the union told or did not tell the members, it is difficult to envisage an effective remedy. In the circumstances a declaration is in order, and, for the reasons outlined above, the Board therefore declares that the union has breached section 74 of the Act.