1166-99-U Yuksel Yaylalier, Applicant v. International Union of Operating Engineers Local 796, Responding Party v. Maple Leaf Sports & Entertainment Ltd., Intervenor.
BEFORE: Caroline Rowan, Vice-Chair.
APPEARANCES: Yuksel Yaylalier for the applicant; Peter Yemen and Don Knibbs for the responding party; Tracy McPhee for the intervenor.
DECISION OF THE BOARD; May 16, 2000
The style of cause is hereby amended to reflect the correct name of the responding party: "International Union of Operating Engineers Local 772".
This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”), in which the applicant, Yuksel Yaylalier, alleges that the union, International Union of Operating Engineers Local 772 (the “union”), violated section 74 of the Act. The applicant generally complains about the union’s failure to pursue his seniority grievance to arbitration. In his grievance, he seeks “reinstatement” of his seniority ranking ahead of a fellow co-worker, Mr. George Sarris. A consultation was held to hear and decide this matter.
Since neither the applicant nor the union was represented by counsel, I indicated at the outset of the consultation that, although there is no requirement that persons appearing before the Board retain counsel, persons appearing on their own must bear any risks involved with so doing. I then confirmed that the parties understood the consultation process and heard from each of the parties with respect to both the facts and their respective positions.
Facts and Respective Positions
The applicant commenced his employment with Maple Leaf Gardens Ltd. (now Maple Leaf Sports & Entertainment Ltd.) (the “employer”) on or about January 7, 1988. The applicant and Mr. George Sarris are both employed as shift engineers. Mr. George Sarris originally commenced his employment with the employer on or about September 28, 1987. As such, the applicant’s seniority was ranked behind that of Mr. Sarris, when the applicant first started working for the employer in 1988.
On or about June 1, 1990, Mr. Sarris took another job with Molson Breweries for approximately three days. The union’s understanding is that Mr. Sarris stopped working for the employer on a Friday and commenced his new job at Molson Breweries that weekend. On Monday of the following week, Mr. Sarris called management at the employer’s operations to ask if he could come back to his position as shift engineer. Apparently, his new job at Molson Breweries had not turned out to be what he had anticipated. As no one had yet been hired to replace Mr. Sarris, the employer agreed that he could come back to work in his former position. Mr. Sarris returned to work for the employer on or about June 6, 1990.
The applicant takes the position that Mr. Sarris was reinstated to employment on the basis that his seniority would commence from the date of “rehire”, being on or about June 6, 1990 (“Date of Rehire”). No seniority list was, however, posted in the workplace until November 1996, more than six years later.
In 1996, the applicant became a union shop steward. In that capacity, he asked the employer to post a seniority list in the workplace. The employer did so on or about November 7, 1996 (the “1996 list”). That list referred to Mr. Sarris’ seniority date as September 28, 1987, his original date of hire (“Date of Hire”). The applicant took the position in 1996, and in this proceeding, that the 1996 list is in error in two respects. Firstly, he states that it incorrectly cites Mr. Sarris’ seniority date as his original Date of Hire, and secondly, that it fails to note that Mr. Edward Smith, another employee, was an engineer’s helper, not a shift engineer. The applicant states that he immediately advised management of these two errors at the time the 1996 list was issued and asked management to produce a corrected list.
The next seniority list was posted in the workplace on or about April 21, 1997 (the “1997 list”). That list, according to the applicant, correctly notes that Mr. Edward Smith was an engineer’s helper and that Mr. Sarris’ seniority date was June 7, 1990, his Date of Rehire. Mr. Sarris did not grieve his adjusted seniority ranking following the posting of the 1997 list.
On or about March 13, 1999, the employer posted a further seniority list in the workplace (the “1999 list”). The 1999 list also notes Mr. Sarris’ seniority date as his Date of Rehire. Shortly after the 1999 list was posted in the workplace, Mr. Sarris filed a grievance in March 1999 concerning his seniority ranking (“Mr. Sarris’ grievance”), in which he requests that the 1999 list be corrected to reflect that he is senior to the applicant. He maintains that his seniority date should reflect his original Date of Hire in September 1987.
The applicant takes the position that Mr. Sarris’ grievance was prompted by the employer’s proposed (and/or rumoured) restructuring plans in or about 1999, which would apparently result in a substantial reduction to the wages of which ever one of Mr. Sarris or the applicant has the lesser seniority. In this regard, the applicant notes that Mr. Sarris did not grieve at anytime after the 1997 list was posted, despite the fact that that list also indicates that Mr. Sarris’ seniority date is his Date of Rehire in 1990.
The applicant was personally involved throughout the grievance procedure in respect of Mr. Sarris’ grievance in his capacity as union shop steward. A grievance meeting was held with management and other representatives of the union including the applicant on or about March 19, 1999 to discuss Mr. Sarris’ grievance. At that meeting, representatives of management indicated to the union that the employer could find no documentation to support that Mr. Sarris had left its employ at any time. It was therefore the employer’s position that Mr. Sarris’ seniority should be restored to September 28, 1987, his original Date of Hire as requested in his grievance. On or about July 6, 1999, management sent a letter to Mr. Fred Newy, the union’s business agent, confirming the employer’s position in writing. Mr. Sarris’ grievance was ultimately settled on the basis that his seniority date would be restored to September 28, 1987, his original Date of Hire.
This settlement and subsequent restoration of Mr. Sarris’ seniority prompted the applicant to file a grievance of his own on or about July 14, 1999, in which he claims that Mr. Sarris’ seniority ranking should remain behind his own (the “applicant’s grievance”). Shortly thereafter, the applicant also filed this application with the Board on or about July 19, 1999. In support of his position, the applicant relies on a shift engineer log book entry dated “June 1”, which notes that “George left for Carlings” as well as a number of letters written by various co-workers and management representatives, who all worked for the employer on or about June 1990. These letters all, generally speaking, note the particular author’s recollection that Mr. Sarris left the employer’s employ for a brief period and was then subsequently “rehired” by the employer.
The union, however, refused to proceed with the applicant’s grievance. The union explains that it made a decision to settle Mr. Sarris’ grievance and it subsequently refused to proceed with the applicant’s grievance following a thorough review of the merits of their respective positions. In this regard, the union indicates that it reviewed the documentation put forward by the applicant including a copy of the log book and the letters signed by co-workers and management representatives in support of the applicant’s contention that Mr. Sarris “quit” and was later “rehired”. It also considered the language of the collective agreement, which calculates seniority on the basis of “length of continuous service within the bargaining union” and the fact that the employer could find no records to support a break in Mr. Sarris’ service.
The union concluded that the applicant’s position for a superior seniority ranking was unlikely to succeed, since, in its opinion, there was not “clear and cogent evidence” of a break in Mr. Sarris’ service with the employer. Although the union pointed to a number of problems it perceived with the documentary evidence relied upon by the applicant, it conceded that its opinion was, in large measure, influenced by the fact that the employer had no personnel records to substantiate that Mr. Sarris’ service had ever been interrupted. In all of the circumstances, the union determined that an arbitrator was unlikely to abridge Mr. Sarris’ seniority as requested in the applicant’s grievance.
In or about September 1999, Mr. Peter Yemen, Business Manager for the union, advised the applicant of the union’s decision not to proceed with the applicant’s grievance. Because the applicant advised that he disagreed with the union’s decision, Mr. Yemen offered to have the union’s counsel review the applicant’s grievance. On or about October 26, 1999, the applicant wrote to Mr. Yemen accepting this offer. The applicant asked Mr. Yemen to have union counsel review his grievance file. The union complied with this request and subsequently received an opinion from its counsel dated December 1, 1999. This opinion, generally speaking, concludes that the union’s settlement of Mr. Sarris’ grievance with the applicant’s knowledge and prior input constituted a lawful amendment between the parties to the collective agreement. Mr. Yemen indicated to the Board that the union would have referred the applicant’s grievance to arbitration if its counsel had recommended that it do so.
At the consultation in this matter, the applicant confirmed that he did, in fact, communicate to the union both his position that Mr. Sarris’ seniority date should reflect his Date of Rehire and the basis for his position on this issue. He did so prior to the settlement of Mr. Sarris’ grievance. The information provided to the union at that time included some of the same written documentation provided to the Board, which on its face suggests that Mr. Sarris did, in fact, quit his employment with the employer on or about June 1, 1990 and that Mr. Sarris was subsequently “rehired” shortly thereafter.
The applicant maintains that his position on the issue of Mr. Sarris’ seniority ranking is correct and therefore that Mr. Sarris’ seniority should be abridged. As such, the applicant claims that the union breached its duty of fair representation under section 74 of the Act by failing to pursue his seniority grievance. By way of remedy, the applicant is asking that the Board direct the union to refer his grievance to arbitration.
Decision
Section 74 of the Act provides 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.
The Board’s case law with respect to the obligation imposed on trade unions under section 74 of the Act makes clear that this provision does not require trade unions to take every grievance to arbitration. In fact, the Board has commented that the mere fact that the union has not processed a grievance to arbitration does not constitute a prima facie case of a violation of section 74. In Perino Smith, [1991] OLRB Rep. July 912, the Board made the following comments regarding the obligations imposed by section 68 [now 74] of the Act as it relates to the union’s decision about whether or not to process a grievance to arbitration:
The Board has made it clear in many cases that what is required of a union in relation to a decision on whether or not to take a grievance to arbitration is that it turn its mind to the problem and consider it in a manner free from irrelevant considerations and arbitrary, discriminatory or bad faith behaviour. See, among others, the case of Domenic Gattellaro, [1987] OLRB Rep. June 844 at paragraph 9 where the Board said:
Section 68 of the Labour Relations Act does not require that a trade union carry a grievance through to arbitration merely because the grievor wants it to do so. Unless the collective agreement gives the grievor that right, it is for the union to decide whether or not to take a grievance to arbitration. Section 68 requires that the union make that decision in a manner which is not arbitrary, discriminatory or in bad faith. It does not provide an appeal to the Board from the union's decision. The question for the Board is not whether the union's decision is the one which this Board would have made in the circumstances, it is whether the union's decision is the result of a process of reasoning grounded on a consideration of relevant matters and free from the influence of irrelevant ones: see Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, 6 CLRBR (NS) 134, at paragraphs 36 to 39. The Board has recognized that considerations relevant to a decision whether or not to press a grievance to arbitration include the merits of the grievance and likelihood of its success, the financial commitment involved in proceeding to arbitration and the claims or interests of other individuals or Groups within the bargaining unit who may be affected by the arbitration proceedings and their possible results: see Catherine Syme, [1983] OLRB Rep. May 775 at paragraph 120.
The Board has also noted on a number of occasions that union officials cannot be expected to exhibit the skill, ability, training and judgement of a lawyer when assessing the merits of a grievance (see for example, Catherine Syme, supra).
There is no suggestion on the facts of this case that the union’s decision to settle Mr. Sarris’ grievance in the manner in which it did and its refusal to pursue the applicant’s subsequent seniority grievance was, in any way, motivated by bad faith or ill-will toward the applicant. Further, there is no suggestion that the union, in so doing, acted in a manner that was discriminatory within the meaning of section 74 of the Act as, for example, might arise if the union had taken the opposite position in similar circumstances involving other bargaining unit employees. The issue in this case therefore centers on whether or not the position taken by the union with respect to Mr. Sarris’ seniority ranking vis-à-vis the applicant was “arbitrary” within the meaning of the Act.
The union explains that its position with respect to Mr. Sarris’ seniority ranking was, in large measure, influenced by the fact that the employer could find no employment records to suggest that Mr. Sarris’ “service” had ever been interrupted. The employer’s personnel records presumably did not disclose the types of documents one would normally expect to find if Mr. Sarris had been reinstated to employment on the basis that he had been “rehired”. For example, a letter of resignation, a record of employment, internal “change of status” personnel forms, if any, or other personnel records indicating an interruption in benefit coverage and subsequent reinstatement of benefits coverage. On the other hand, the applicant provided for the union’s consideration documentation to suggest that Mr. Sarris was employed elsewhere for a period of three days and that he was absent from the workplace for a period of approximately six days.
The evidence put forward by the applicant could arguably support a conclusion that Mr. Sarris’ “service” with the employer was interrupted and was not therefore “continuous” within the meaning of the collective agreement. The absence of any internal personnel records confirming that the employer treated that employee’s brief absence from the workplace as a “break in service” for seniority purposes is, however, also a relevant consideration and could arguably lead to the opposite result.
As noted by the authorities cited above, the issue before the Board is whether the union’s assessment was made “arbitrarily” within the meaning of the Act and not whether or not the Board would have reached a different conclusion based on the facts before it. The union in this case made its assessment in favour of preserving rather than abridging Mr. Sarris’ seniority after having been fully apprised of the relevant facts including the evidence relied upon by the applicant in support of his position. Having done so, the union concluded that an arbitrator was unlikely to find a “break in service” for seniority purposes in view of the absence of employer records and despite the evidence of Mr. Sarris’ absence from the workplace for a period of approximately six (6) days in June 1990. Although the Board sympathizes with the applicant’s predicament, the Board is nonetheless unable to find that the union acted “arbitrarily” within the meaning of the Act.
For all of these reasons, the application is dismissed.
“Caroline Rowan”
for the Board