[1999] OLRB REP. JANUARY/FEBRUARY 90
0929-94-U William Stevenson et al., Applicant v. Local 222 CAW (John Caines, Chairperson, John Kovacs, President), Responding Party v. General Motors of Canada Limited, Intervenor
Duty of Fair Representation - Unfair Labour Practice - Retirees formerly employed by large automobile manufacturer alleging that union violated its duty of fair representation by misrepresenting their eligibility for "benefits" under new agreement with employer and by treating the applicants differently from other employees permitted to apply for enhanced retirement benefits despite having been laid off - Application dismissed
BEFORE: Pamela Chapman, Vice-Chair.
APPEARANCES: Allan W Furlong for the applicant; Frank Luce for the responding party; David Bannon and Elizabeth Campin for the intervenor.
DECISION OF THE BOARD; February 18, 1999
This is an application under section 96 of the Labour Relations Act, 1995 ('the Act') alleging a violation of section 74 by the responding party union ('the union').
This application has a long and unusual history, and it is appropriate to review it here given the length of time it has been before the Board.
The application deals with events which occurred in 1992 and 1993, at the Oshawa plant operated by General Motors ("GM"), where employees are represented by the responding party union ("Local 222"). When it was filed on June 16, 1994, there were 157 applicants, all of whom had been employed at the plant and were members of the bargaining unit prior to their retirement. Forty-two (42) of the applicants withdrew from the case in September 1997.
The responding party and intervenor took the position in their responses to the application that the Board should dismiss the proceedings for delay, and because the allegations did not disclose a prima facie case of any violation of the Act. This preliminary motion resulted in a Board direction that the applicants file additional particulars of their complaint, which occurred in October 1997. In a decision dated January 31, 1995 the Board ruled that the complaint would not be dismissed for delay and that the applicants had made out a prima facie case, except in one respect. On February 27, 1995 the applicants requested a reconsideration of the decision to dismiss that part of the case relating to unemployment insurance benefits, and the decision on the reconsideration issued on October 10, 1995.
On March 23, 1995 the Board held a pre-hearing conference with the parties, at which time the possibility of mediating a resolution to the dispute was discussed, and a number of remedial issues were explored.
On January 12, 1996, counsel for the applicants wrote to the Board asking that a mediation session be scheduled, and the Board offered a number of dates in April and May, 1996. These dates were rejected by letter dated February 29, 1996, and the Board offered a number of dates in June 1996. On May 13, 1996 counsel for the applicants wrote to the Board advising that the parties had decided to meet to discuss settlement without the assistance of the Board, and asking that no hearing be scheduled until requested. The application was therefore adjourned sine die.
On March 25, 1997, the applicants requested that a hearing be scheduled, and proposed a number of dates in May 1997. When the Board advised that these dates were not available, counsel for the parties agreed on dates in September 1997 which the Board was able to accomtnodate.
A consultation, pursuant to section 99 of the Act, was held on September 23, 1997, and the Board reserved its decision. This is not common on consultations, which are often decided immediately be way of oral judgement, but having regard to the history of the proceedings, the complexity of the facts which were presented to the Board, the number and length of the documents relied upon, and the unique issues raised under section 74, the Board concluded that a written decision with reasons ought to be provided.
Having carefully reviewed all of the pleadings, the documents filed, and having regard to the submissions made by the parties, I have concluded that the application must be dismissed. The following are my reasons.
THE FACTS
General Motors operates a number of plants in Ontario in which cars and trucks are manufactured, and the CAW represents thousands of employees in these plants, including employees at the Oshawa plant who are in Local 222. The CAW and GM are parties to a number of collective agreements, including the Master Agreement, a Local Agreement, and supplemental agreements including a pension plan. The master and local agreements have three year terms, and were renewed in 1987, 1990 and 1993; the pension plans are for six years and were renewed in 1987 and 1993. 11. This case takes place against a background of massive restructuring and downsizing in the auto industry beginning in the late 1980's. It is not disputed that as a result of these challenges the CAW negotiated, in 1990 and thereafter, significant contract language regarding notice of layoffs, plant closures, income security, access to retirement, and greater pension benefits. In particular, the parties negotiated "Document 12", entitled "Job Security" which formed part of the collective agreement in 1990.
In 1992, in the face of further permanent job losses, the parties entered into a Memorandum of Understanding dated February 27, 1992 entitled "Non Trades Reduction of Manpower Requirements". The purpose of this agreement was to liberalize access and provide incentives to retirement, and to encourage older workers to permanently leave the work force with a degree of security in order to allow other, perhaps younger workers, with younger families, to retain the security of active employment. It is not disputed that this was the goal of the CAW in entering into the agreement, and it is not asserted that this was an improper motive or one that violates the Act.
The February Memorandum of Understanding established a special department into which employees who were close to retirement age could be transferred, in order that they might be laid off in an order which would otherwise be out of seniority. Employees who elected to make this transfer would then be laid off and would be eligible to receive unemployment and supplementary unemployment benefits (U.I.C. and SUB, respectively) for a two year period until they were eligible for retirement. During the two year period, pension credits would continue to accumulate, increasing the value of the retirement benefit, and workers also received the increase in the level of pension benefits negotiated in the 1993 agreement, as this increase came into effect before they actually retired (during the period of the layoff). This retirement incentive was known as the "1.9" or "Grow into retirement" plan.
Meetings were held to discuss the details of the 1.9 plan in the main hall of the local union building, and they were attended by many of the applicants in this case. During these meetings union representatives told those present that employees committing to retirement pursuant to this plan would receive benefits negotiated in the 1993 agreement. The union takes the position that these comments meant that the employees on lay off would get the benefit of any increase in the level of pension benefits that might be negotiated, as they would not yet have retired. The applicants claim that they understood that they would get "everything" negotiated into the new agreement, including any new retirement incentives, although they do not generally assert that they had retirement incentives specifically in mind at the time of the meetings.
Employees who chose to enroll in the 1.9 plan had to sign irrevocable directions concerning their transfer into the special department, and the applicants in this case all signed such directions before the end of March 1992. The last layoff pursuant to the plan took place in February 1993.
Two further retirement incentives were negotiated by the parties in 1993. Under the "$250" plan, employees eligible to retire, excluding those already enrolled on the 1.9 plan, would be paid a supplement of $250 per month on top of the regular pension amount. Employees enrolling in this plan had to retire immediately. Finally, in September 1993 the parties negotiated the "$35,000" plan which is the focus of this application. Under the terms of this agreement, employees who were eligible to retire were paid a lump sum retirement allowance of $35,000. Employees who had previously enrolled on either the 1.9 or $250 plans were not permitted to apply for this allowance.
After the $35,000 plan was announced, a number of the applicants attempted to apply for the retirement allowance and were not permitted to do so. They then attended at various union meetings and demanded an explanation as to why they were not eligible for the new package. They asked the president of Local 222 to file a grievance concerning the refusal of the company to permit their application, and he refused to do so, explaining that he understood and accepted that they were not eligible to apply pursuant to the terms of the agreement. After several further efforts to convince the union to support them in their quest to receive the $35,000 benefit, the applicants filed the present complaint.
THE DECISION
There are a number of aspects to the applicants' complaint, and I will attempt to deal with them in turn, as well as to review some of the parts of the case as it was originally framed which were amended in light of facts which were revealed to the applicants during the course of these proceedings.
When the application was filed, it was asserted that the applicants were in fact eligible for the $35,000 retirement allowance, having regard to the terms of the collective agreement, and thus it was a part of the complaint against the union that it had failed to take this position with the employer. By the time the consultation was held, counsel for the applicants advised the Board that the ineligibility of the applicants was conceded. The applicants were not permitted to apply for the incentive because their layoffs occurred after September 14, 1993, contrary to the language of the 1993 agreement.
The applicants do claim, however, that the union should have facilitated them being put in a position to apply for the benefit. As discussed in more detail below, the applicants assert that a number of people who were not actively employed at the time that the incentive was negotiated were allowed to return to active duty in order to be eligible to apply. They argue that the union should have ensured that they too were allowed to return to work, which would have permitted them to apply and, given their seniority, likely would have resulted in them qualifying for the benefit. As this relates to the argument which was made concerning discriminatory treatment, this position will be reviewed in more detail below.
The applicants also did not seriously pursue the position at the consultation that the union had violated the Act by failing to bargain a plan which would have provided for their eligibility. It is important to note in this regard that the $35,000 plan came into existence through bargaining for the master collective agreements with the "Big 3" automakers, and was in fact bargained first for employees at Chrysler and then carried over into the agreement with GM. Certainly no facts were pleaded by the applicants which would support a claim that the failure of the union to bargain successfully for a plan which would have been available to a broader group of employees, and in particular to the applicants in this matter, was arbitrary, discriminatory or in bad faith.
Instead, the case focused to a large extent on the alleged misrepresentations made by the union to the applicants concerning their eligibility for "benefits" under the new agreement. It is not necessary to reproduce here all of the various statements which are alleged to have been made by union officials to large gatherings of interested employees, and individually to employees who spoke to pension representatives and other union officials with questions and concerns. Suffice it to say that in general, what is alleged to have been said in virtually all of these cases was something like "you will get everything under the new agreement".
The union takes the position that statements like these have to be understood to mean "you will get everything you are entitled to under the new agreement". For example, it asserts, if the union had negotiated a wage increase for employees in a particular classification, surely no employee in a different wage class would expect to get that raise. The particular benefit which was anticipated to be of some value to the employees taking the 1.9 program was the increased pension benefits which were in fact negotiated and which the applicants in this matter received, which they would not have been eligible for had they retired immediately, as did, for example, persons on the $250 plan and on the $35,000 plan. Other benefits which the agreement provided to employees in active employment, including the possibility of applying for the $35,000 retirement allowance, if otherwise eligible, would not be available to those employees who had elected to be laid off under the terms of the 1992 Memorandum of Understanding.
In any event, there is no suggestion that at the time these comments were made the union had any knowledge that a further retirement incentive, and one which would be perceived by these employees as a more desirable option, would eventually be bargained. It is not disputed that the $35,000 retirement allowance was bargained in September 1993, long after these statements were made to employees considering their right to enroll in the 1.9 plan by the end of March 1992.
One particular representation made by the union is troubling because it does seem to suggest that the employees on the 1.9 plan would be eligible to receive the $35,000 retirement allowance. In October 1993 a notice signed by the Local 222 Shop Committee Chairperson was posted and circulated, announcing the $35,000 pension incentive plan. This notice contains the following statement:
All members are eligible to apply for the $35,000 pension incentive as long as they are eligible to retire, even those who previously applied and have yet to retire on the previous pension incentive package, as well as anyone who retired on or after September 14th, 1993. It is not the intent to take away anything from anyone who has already been approved for one of the previous $250.00 per month or "grow into" retirement on or after ratification of the 1993 agreement.
This statement was never really explained by the union, and it is not clear whether or not the shop chairperson was misinformed about eligibility for the benefit, or whether his statements are not intended to apply to the persons who took the 1.9 plan. Certainly the notice is unclear.
Whatever the meaning of these statements, it cannot be said that they constitute conduct by the union which violates the Act. First of all, the notice in question was circulated long after the applicants enrolled in the 1.9 plan and were laid off, so it cannot be said to have influenced their actions to their detriment. There was a suggestion at some point in the proceedings that the alleged misrepresentations by the union concerning the employees on the 1.9 plan getting "everything" in the agreement played a role in their support for ratification of the agreement, but the notice signed by the shop chairperson was circulated after the agreement was ratified. While it is understandable that the applicants might have been misled by reading this notice into believing that they were eligible, and frustrated once they learned that they were not, such a misstatement by a union official, absent any suggestion of improper motive within the meaning of section 74 of the Act, does not breach the duty of fair representation.
There is only one allegation, made by one individual, that a union official made specific reference to further retirement incentives when he discussed what benefits would accrue to persons laid off on the 1.9 plan under the new collective agreement, before that individual took the 1.9 package. As with the statements made by the shop chairperson, though, there is no allegation that this statement was made for any improper purpose, that the union official had any knowledge that a better package would indeed be negotiated, or that he was anything other than misinformed. This conduct, even if proved, falls far short of establishing any violation of the Act.
The other main concern of the applicants is the claim that other employees were treated differently and permitted to apply for the benefit despite having been laid off. A large number of individuals claimed to have been given this opportunity were identified, and GM provided details of the employment situation of virtually all of them. In each case, the employees, while not on active duty during at least some of the period in question, were in a different situation than the employees in the present case in that their leave from the workplace could be reversed. In most cases these employees were on sick leave; some were laid off due to medical restrictions.
Another group of employees who had applied for the $250 plan at the time that the $35,000 plan was announced but had not yet been laid-off were permitted to apply for the later plan, in accordance with the language of the agreement.
None of the examples of discriminatory treatment provided by the applicants were cases of employees in their situation that is already laid off pursuant to an irrevocable direction, being permitted to return to the plant in order to be eligible to apply for the $35,000 incentive. There is also no suggestion as to what the union should have done in order to facilitate such a return, having regard to the irrevocable directions signed by the employees, nor that the union was aware of any of the employees who are alleged to have been returned to work, or indeed of the desire of various of the
applicants to return in order to apply for the benefit. Having regard to all of these facts, I cannot conclude that the facts alleged by the applicants, even if proved, would establish any discriminatory treatment by the union contrary to the Act.
There is one final aspect of the case that should be considered. The responding party and the intervenor both argued that no remedy could or should flow to the applicants even if a violation of the Act were to be found, as the benefits the applicants undeniably received pursuant to the 1.9 plan they all retired under were at least as valuable as the $35,000 retirement allowance they seek to be paid. Certainly any calculation of damages in this case would be complex, as the applicants received U.I.C. and SUB benefits, got the value of a period of time off work, and received a pension that was more valuable because they were able to continue to collect pension credits during the period of the layoff and got the higher level of pension benefits when retiring after the new collective agreement came into place. These amounts, some of which are difficult if not impossible to quantify. would have to be set off against the retirement allowance, but of course one would also have to consider the fact that the applicants would presumably have had to return to active duty to be considered, making them eligible for full salary for some period. GM performed these calculations for a number of the applicants and in each case sought to demonstrate that if the applicants had somehow been able to apply for the $35,000 benefit they would have in fact been worse off than they were receiving the earlier retirement incentive.
It is also important to note that the funds available under the $35,000 plan were not unlimited, and that eligibility depended on seniority. While the applicants were clearly likely to have qualified for the plan, this cannot be said for certain as it would depend on exactly who else applied and how many allowances were ultimately granted.
In all of the circumstances, I am satisfied that even if the facts pleaded by the applicants were proven, and many of them are disputed, it could not be established that the union in this case violated section 74 of the Act. The frustration of the applicants at having made a choice that they now feel was a bad one is understandable, but there is no evidence that the union was acting in bad faith, or was arbitrary or discriminatory, when it negotiated the various retirement incentive plans offered to employees or in its handling of the process of advising and assisting employees who chose to apply. Having consulted with the parties within the meaning of section 99 of the Act, the application is therefore dismissed.