2818-99-U Terry Skanes and George MacDonald, Applicants v. C.A.W. Local 707, Responding Party.
BEFORE: Timothy W. Sargeant, Vice-Chair.
APPEARANCES: Terry Skanes for the applicant; L.N. Gottheil, Frank McAnally, David Tremblay and Ted deLuca for the responding party.
DECISION OF THE BOARD; August 30, 2000
This is an application brought pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging that the responding party has breached section 74 of the Act.
The essence of the dispute between the parties concerns the interpretation of the collective agreement between the Ford Motor Company of Canada, Limited and the National Union, C.A.W. as it applies to Scheduled Paid Absence (SPA) and Excused Absence Allowance (EAA).
The facts are not really in dispute. The applicant was scheduled on a SPA for the week of November 1, 1999. The Company scheduled a shut down for three days in this week. While there is some difference between the parties as to the characterization of this shutdown, [i. e. whether it is called a temporary layoff or merely a layoff pursuant to Article 15.30 of the Collective Agreement (which allows the company to lay off for a period of three days without regard to seniority)], there is no dispute that there was a three day shutdown in the area where the applicant normally works. The applicant took the view that in such circumstances he should not have to serve his SPA but could instead take such three days as an EAA and then be able to reschedule his SPA.
On this point Article 26.13(f) of the Collective Agreement states:
(f) If an employee is laid off either temporary or indefinite when the employee’s SPA week occurs, the employee’s hours will revert to EAA. Scheduling and payment will be in accordance with the provisions of section 26.06(d) of the Collective Agreement.
The union’s position is that an employee may reschedule his SPA, and elect EAA, only if the shutdown is for a weekly period. In other words SPA may only be reassigned in weekly periods.
Evidence was led by its union that SPA had been negotiated in 1993. It is a special program designed 1) to have members receive more time off and 2) to create more jobs. According to the evidence given by the union, the employer was agreeable to SPA if such SPA could be predictable. Thus the SPA in question had to be scheduled well in advance, had to be in whole week periods, and could not be traded or transferred by an employee. It was also the union’s evidence that the company did agree that if shutdowns occurred for a weekly period the employee could choose to take his SPA or could choose to assign such time to his EAA. However, this option was only discussed in terms of weekly periods. Anything less would cause, in the union’s view, great difficulty for the employer in assessing predictability and as a result create scheduling problems. This in turn would damage the credibility of the SPA program and the company’s future acceptance of such program.
The applicant took a different view. In his opinion the language was clear in the Collective Agreement that once an employee was laid off temporally (which he asserts he was) then in accordance with the Collective Agreement if such layoff occurs “when the employee’s SPA week occurs, the employee’s hours will revert to EAA”.
On first hearing of the three day shutdown the applicant had immediately approached the acting steward, who advised him he had no case and referred him to the plant chairman. The plant chairman reviewed the matter with the applicant and again advised him he had no case but that he was free to go over his head.
The applicant attempted to notify the president of the Local who never did return the applicant’s call. However, the applicant did phone the union office again and did speak to the vice-president. The applicant stated that the vice-president did contact the applicant’s committeemen and the president. Subsequently the committeemen did contact the applicant and advised the applicant that he had no case.
The applicant phoned the Local president again and received no response. He then left a message for the national representative. The national representative did call back and there ensued a ninety minute conversation. Though there are differences in the recollection of the parties as to the precise conversation, it is obvious that a lengthy debate did take place on the issue of layoffs, SPA and the applicant’s position. Certainly at the end of the conversation it was clear that the national representative did not support the position of the applicant.
All these contacts occurred between November 1, 1999 (when the applicant became aware of the three day shutdown) to November 11, 1999 the day of the conversation with the national representative.
The applicant then tried to reach the president of the Local again. There was no response. He contacted his committeemen who relayed a message to the vice-president and was subsequently told by the committeemen that “everybody knows”.
In summary there is no question that the applicant immediately made his position known to the union. It is equally clear that each union steward or representative that he approached disagreed with the applicant’s position.
In relation to Article 26.13(f) of the Collective Agreement it is the union’s position that the words “when the employee’s SPA week occurs” in the Article makes it clear that such Article is referring to “weekly periods”. Such interpretation in the union’s submission is supported by other language in Article 26 of the Collective Agreement.
The applicant submits that the union was arbitrary in that it is obvious from the Collective Agreement that his position is correct. By first arguing that it was not a “temporary layoff” the union is being negligent in that it is clear such layoff was a temporary layoff and covered by Article 26.13(f) of the Collective Agreement. The union should have pursued his complaint and filed a grievance. The applicant also felt that the leadership was arbitrary in that it was ignoring his complaint. It was always the applicant that was pursuing the union representatives – rather than the representatives coming to him. In fact the Local president had never replied to his messages as he should have done.
Counsel for the union submitted no breach of section 74 of the Act had even been remotely established. The evidence shows quite clearly that the union responded to the issue raised by the applicant and made the applicant aware of its position. At least four union representatives talked to the applicant and informed him he had no case. In a large bargaining unit the Local president is not obligated to answer every call. Clearly the applicant had been told the president was aware of his position. Further the national representative, a higher ranking position, had personally discussed the issue with the applicant for over ninety minutes on the telephone. In any event, on this issue, the union’s interpretation of the Collective Agreement is plausible and reasonable. The SPA Program is important to the union and of benefit to the members. It is imperative, therefore, that the union’s understanding with the employer of how the Program is to operate be maintained. In all the circumstances this application should be dismissed.
DECISION
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.
The terms “arbitrary”, “discriminatory” and in “bad Faith” have been considered by the Board on a number of occasions. The Board has stated that only conduct which can be described as implausible, so reckless as to be unworthy of protection, unreasonable, suspicious or negligent will amount “arbitrary” conduct. The term “discriminatory” has been interpreted to refer to the disparate treatment of bargaining union members without cogent reasons “bad faith” has been interpreted to refer to actions or decisions motivated by hostility, ill-will or other improper considerations.
While the applicant may not agree with the union’s interpretation of the Collective Agreement, and while it is not the Board’s function to determine whether the union’s interpretation is correct, the Board nevertheless finds that the union’s interpretation is certainly not unreasonable and has sound policy considerations supporting such view. Though understanding the disappointment of the applicant, the Board will not interfere or second guess a union’s interpretation of a collective agreement unless the Board is convinced that such interpretation is implausible or unreasonable. In this instance the Board finds that the interpretation of the Collective Agreement by the union is both plausible and reasonable.
Having found that the union’s interpretation is both plausible and reasonable, the fact that the union does not agree with what the applicant feels is an obvious interpretation of the collective agreement, cannot be considered to be arbitrary, within the meaning of section 74 of the Act.
Having considered the evidence, there is nothing to suggest that the union has acted contrary to section 74 of the Act. The applicant’s position was reviewed by a number of union representatives on numerous occasions. Though the applicant may not have liked what he heard, from the union representatives, there is just no evidence to support the submission that the applicant was ignored. The union just does not agree with the applicant’s position and with good reason.
In conclusion the Board finds that the union has not acted arbitrarily, discriminatorily or in bad faith within the meaning of section 74 of the Act.
For all the above reasons this application is dismissed.
“Timothy W. Sargeant”
for the Board