[1999] OLRB REP. SEPTEMBER/OCTOBER 880
3908-98-U Herbert Pickett, Applicant v. Retail Wholesale Canada, Canadian Service Sector Division, United Steelworkers of America, Local 414, Responding Party v. Royal Doulton Canada Limited, Intervenor
BEFORE: Harry Freedman, Vice-Chair and Board Members J.A. Rundle and R. R. Montague.
DECISION OF THE BOARD; September 10, 1999
This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c.l as amended, (the "Act") alleging violations of sections 74, 76 and 75 of the Act and seeking an order that the responding party represent the applicant in accordance with the terms of the collective agreement. Both the responding party and the intervenor submit that the application should be dismissed on the grounds of undue delay in making the application and because the applicant was not an employee in the bargaining unit represented by the responding party and therefore the responding party had no duty under the Act to represent the applicant in his employment relationship with the intervenor. The responding party also submits that the application fails to disclose any facts which, if proved, would establish that it violated the Act.
There are no facts alleged which suggest that the responding party is engaged in the selection or referral of persons to employment pursuant to a collective agreement. Therefore, there is no basis for the Board to find a violation of section 75 of the Act and this application, insofar as it alleges a violation of section 75 is hereby dismissed. Similarly, there is nothing in the material submitted with the application which alleges that the responding party had sought by intimidation or coercion to compel the applicant to become or refrain from becoming a union member or to refrain from exercising any rights under the Act or performing any obligation under the Act. Thus, there is nothing in the application upon which the Board could find that the responding party violated section 76 of the Act, and the application, insofar as it alleges a violation of section 76 is hereby dismissed.
There remain for consideration the allegations that the responding party's conduct amounted to a violation of section 74 of the Act. Section 74 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."
The application claims that the applicant had worked for the intervenor at various times in 1994, 1995, 1996 and 1997 for sufficient consecutive periods of time so as to have him come within the bargaining unit described in the collective agreement between the responding party and the intervenor. The applicant alleges that the intervenor hired him on a series of written contracts of three months' duration during those years. He alleges that he had worked longer than three consecutive months from time to time and that the responding party was aware of his situation. The applicant sought to have the union file a grievance on his behalf and he had understood that a grievance had been filed but was subsequently dropped. The applicant claims that, according to the language of the collective agreement between the responding party and the intervenor, he was an employee in the bargaining unit.
Included with the application was correspondence from counsel for the responding party in which he outlined the basis on which the responding party determined that it would not proceed with a grievance dealing with the applicant's status. The collective agreement (excerpts of which were appended to the application) provided that "persons regularly employed for not more that 24 hours per week and students employed during the school vacation period" were persons who were excluded from the bargaining unit. The collective agreement also permitted employees outside of the bargaining unit to perform bargaining unit work provided the extent of the work excluded employees performed did not "displace or prevent the recall of full time bargaining unit employees."
The applicant asserts that he was, in fact, a bargaining unit employee because he worked for more than 24 hours per week doing bargaining unit work. The application also states that the applicant "believes that the Unions [sic] position to remove the policy grievance was prejudiced, biased and unfair." There are no facts alleged to provide a basis for the applicant's belief. The applicant's belief, in the absence of some factual foundation which would lead to the conclusion that the responding party's decision was "prejudiced, biased and unfair", does not, in my opinion, provide a sufficient basis for concluding that the responding party violated the Act. Furthermore, the applicant's beliefs are not allegations of fact capable of being proved.
Both the responding party and intervenor filed material in response to the application. The applicant subsequently filed a reply to the material filed by the applicant and the intervenor. The responding party and intervenor objected to the Board considering the applicant's reply, as a reply is not contemplated by the Board's Rules of Procedure and the allegations made in the reply ought to have been made in the application.
With respect to the submission made to dismiss the application on the basis that there was undue delay, we are satisfied that the timeliness objection raised by the responding party and the mtervenor ought to be dismissed. The applicant made an application against the responding party alleging a violation of section 74 of the Act earlier in Board File No. 2552-98-U. That application was dismissed by decision dated October 29, 1998 in which the Board stated: "The application is accordingly, dismissed, with leave to the applicant to file a new complaint that complies with the requirements of the Rules. [emphasis added] The present application was filed in February, 1999. The Board's earlier decision did not fix a time within which that new application had to be filed. Furthermore, it appears that the applicant was advised in March 1998 that the responding party was taking the position that the applicant was not an employee in the bargaining unit it represented. In these circumstances, at worst, the applicant made this application less than one year after the time that the responding party made clear its position with respect to the applicant's claim that he was an employee in the bargaining unit. In fact, the applicant had made an application earlier that resulted in the Board's decision of October 29, 1998. In all of these circumstances, the Board is not prepared to dismiss the application as being untimely.
While the application is not untimely, we are satisfied that it does not make out a prima facie case for the relief it seeks. As pointed out earlier, the applicant stated he believed that the responding party's decision not to proceed with a grievance in which he claimed that he had become a bargaining unit employee was prejudiced, biased and unfair. There are no factual allegations contained in the application that support those conclusions or beliefs. More importantly, however, the applicant's entire claim rests on his interpretation of the collective agreement, and in particular, his understanding of article 2 of the collective agreement.
Whether the applicant is an employee in the bargaining unit depends upon the meaning of section 2.1 of the collective agreement between the responding party and intervenor. The responding party and the intervenor are the parties who negotiated and settled upon the collective agreement. They are the ones who wrote the collective agreement and are the ones who can change the terms of the collective agreement at any time so that the language of the collective agreement reflects their shared understanding and intention. Section 5 8(5) of the Act provides that the parties to a collective agreement may at any time revise any provision of the collective agreement, other than a provision relating to its term of operation, by mutual consent. Within that legal framework, it becomes clear that the responding party and intervenor, according to the applicant's material, agreed between themselves that the recognition provision of the collective agreement, that is, the bargaining unit description contained in the collective agreement, did not capture the applicant's circumstances. The intervenor had treated the applicant as being outside of the bargaining unit and never subject to any of the terms of the collective agreement throughout his entire employment. Although the applicant, not unreasonably, believed that his hours of work in the years 1995, 1996 and 1997 averaged well over 24 hours a week during his periods of employment in those years, it is also clear that both the intervenor and responding party were always of the view that the applicant was not an employee in the bargaining unit.
The intervenor, in response to the responding party's policy grievance relating to the applicant's status, took the position that the applicant was a temporary employee and as such was not regularly employed for more than 24 hours per week. The responding party, by dropping that grievance, appeared to accept the intervenor's interpretation of the bargaining unit description. Thus, the parties to the collective agreement applied a meaning to the bargaining unit description in the collective agreement which resulted in the grievor, as a temporary employee, being excluded from the bargaining unit even though he performed bargaining unit work throughout his employment with the intervenor.
In our opinion, the parties to the collective agreement are free to agree upon both the description of the bargaining unit and the meaning of the words used in their description of the bargaining unit. An individual employee does not have standing under the Act to assert that he or she is an employee in a bargaining unit described in a collective agreement when the parties to the collective agreement have both agreed and understood that the employee is not in the bargaining unit and have always acted in accordance with that understanding.
This situation may be contrasted with the circumstances considered by the Canada Labour Relations Board in Teamsters Union Local 938 v. Massicotte et al, 80 CLLC ¶16,014; application for judicial review dismissed, 81 CLLC ¶14,084; (Federal Court of Canada), appeal dismissed, 82 CLLC ¶14,196 (S.C.C). In that case, the union and employer had testified that the complainant employee, as a part-time employee, was not in the bargaining unit, but the Board found that the employee paid union dues and that the wage rate for part-time employees was spelled out in the parties' collective agreement. As the Board noted, the bargaining unit description in the collective agreement did "not say that part-time employees are not covered by the agreement, it only says they are 'not otherwise covered by the terms of the Agreement'. Yet other terms do apply to part-time employees."
The applicant before us alleged that the intervenor had, from the moment the applicant commenced employment, negotiated a separate agreement with the applicant and that he had never received the protection or benefits provided to employees in the bargaining unit. Thus, it is clear that the intervenor had never treated the applicant as having been employed in the bargaining unit, and the responding party, by not proceeding with the grievance over the applicant's status, agreed that he was not an employee in the bargaining unit.
The Board, in Consolidated Fastfrate Limited, [1984] OLRB Rep. May 691 found that, despite the assertion of the employer and the union that the applicant, a part-time employee alleging a violation of what is now section 74 of the Act, was not covered by the collective agreement, the collective agreement (which was identical to the collective agreement considered by the Canada Labour Relations Board in Massicotte, supra,) extended union recognition to part-time employees. In that case, the Board wrote at page 705: "Where parties to a collective agreement agree, as they do on the facts before us, that it was never their intention to grant recognition or be recognized for a certain group of employees, the Board must have compelling evidence to lead it to a conclusion contrary to this position." The Board had, in that case, such compelling evidence presented to it.
The applicant asserts that he is an employee in the bargaining unit because he worked more than 24 hours per week when he worked for the intervenor. The intervenor and the responding party, according to the applicant, have never treated him as an employee in the bargaining unit because the applicant was always employed on a temporary basis. The parties to the agreement assert that "temporary employees" are not regularly employed and therefore do not come within the bargaining unit.
In our opinion, the parties to the collective agreement are free to arrange their relationship so that certain categories of employees are not within the bargaining unit. If their intention to exclude a category of employees from the bargaining unit is consistent with both the language of the collective agreement and their treatment of those employees, then those employees have no basis for claiming that the union that does have a duty under the Act to represent employees in the bargaining unit also has a duty to represent them. That is clearly what has happened to the applicant. Had the applicant alleged that some portions of the collective agreement had applied to him and that the position taken by the responding party and intervenor was a recent development adopted as a defence to the instant application, the result might well be different. The applicant has always been treated as someone who is outside of the bargaining unit despite his having worked, on a temporary basis, more than 24 hours per week. In these circumstances, we are satisfied that the responding party does not owe a duty of representation to the applicant under section 74 of the Act.
The preliminary objection raised by the responding party and intervenor is therefore allowed and this application is dismissed.