1196-99-U Jack Patterson, Applicant v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 707, Responding Party; Ford Motor Company of Canada Limited, Intervenor.

BEFORE: Patrick Kelly, Vice-Chair.

APPEARANCES: Mr. Patterson, Mike McArg, John Sacco and Louis Bernard for the applicant; John B. Lang, Frank McAnally and Dave Tremblay for the responding party; Scott Morey, Alex Brat and Lisa Kozma for the intervenor

DECISION OF THE BOARD; March 14, 2000

1. This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging violations of sections 54 and 74 of the Act.

2. The section 74 matter was set down for a consultation which took place on December 21, 1999. At that time, I advised the applicant (“Mr. Patterson”) and the responding party (the “union”) that the section 54 matter would have to be dealt with in the context of a hearing, and to the extent Mr. Patterson wished to have that matter heard, he should inform the Registrar.

3. Mr. Patterson was not represented by counsel. I advised him that, while he was entitled to represent himself, he assumed the risk of so doing in a legal proceeding that impacts the rights, interests and obligations of the parties concerned.

The Facts

4. While there was some level of disagreement between the parties concerning some of the factual underpinnings of this case (and I will identify these where appropriate), the facts material to a determination of the issues are not in dispute.

5. Mr. Patterson commenced employment at the Niagara Glass plant of the intervenor, Ford Motor Company (“Ford”) on January 17, 1966. He was a member of the bargaining unit represented by Local 1054 of the same national union which is a party to this proceeding.

6. As a result of Ford’s announced closure of the Niagara Glass plant, Mr. Patterson accepted what is known as the company’s “preferential hire option” under its “Job and Income Security Program” (also referred to as “the Program”) as outlined in the Master collective agreement between the parties, and began his employment at the Oakville Assembly plant on December 13, 1993. At that point he became a member of Local 707 of the same national union.

7. Mr. Patterson remains employed at the Oakville site.

8. At the time of the Niagara Glass plant closing announcement, there were five bargaining units covered by the Master collective agreement, including the Niagara and Oakville sites. Each unit was certified separately and had its own local union within the National union, and its own respective seniority list. As of the date of the consultation, there remain four bargaining units, following the closing of the Niagara Glass plant.

Issues

9. The issue in this case is the difference between the applicant and the union regarding the interpretation of the Program as outlined in the current 1996 Master collective agreement. The Program is set out in a lengthy series of letters and statements attached to but not forming part of the collective agreement between the parties. The Program covers two eventualities: the closing of Ford’s stand-alone and multi-plant sites, and the prospect of permanent job loss as a consequence of Ford’s restructuring actions.

10. In the event of a stand-alone plant closing, such as the Niagara Glass plant, employees of the plant are presented with a number of options including early retirement, “special early retirement”, and layoff. Employees who elect layoff have further options, including resort to Ford’s voluntary termination of employment program (“VTEP”), and in the event the employee declines the VTEP, the offer of employment at other company facilities (“preferential hire option”). In the instant case, Mr. Patterson chose the preferential hire option in 1993 when the Niagara Glass plant closed.

11. As indicated, the second component of the Program deals with permanent job loss. The portion of the Program on permanent job loss is extensive, but for the purposes of this matter it is sufficient to set out the first several parts of the letter appearing at page 407 of the 1996 Master collective agreement:

PERMANENT JOB LOSS

In the event management decide that that workforce reductions resulting in permanent job loss as a consequence of restructuring actions cannot be accomplished in a timely and efficient manner through normal attrition, the following steps will be taken, separately for skilled trades and non-skilled employees and for skilled employees, by trade:

(1) Employees who have not attained seniority will be placed on layoff;

(2) If the number of separations that can be accomplished through implementation of (1) above is less than the number of jobs that will be lost, employees at any age who have 28.1 or more years of creditable service will be offered the opportunity to: (a) retire immediately, if eligible for regular early retirement, and receive the retirement allowance; or (b) if not eligible to retire immediately, or if option (2) (a) is not chosen, be placed on layoff with eligibility for regular SUB. If at any time of workforce reduction there are employees with less than one year of seniority at work, step 2(b) will not apply. If the number of employees who accept this offer, combined with the number of employees separated or scheduled for separation under (1) above, exceeds the number of jobs that will be permanently lost, this offer will be implemented in seniority order for accepting employees until the combined number of actual and scheduled separations equal the number of jobs lost.

12. The dispute in this case revolves around the words “in seniority order” in paragraph 2 of the letter referred to above. The union takes the view that in the event of a workplace reduction at the Oakville site, the order of eligibility for the entitlements listed in the letter is determined by plant seniority. Mr. Patterson is of the opinion that the order of eligibility for the entitlements allowance must be based upon company-wide seniority. Thus the dispute between the parties is not concerned with Mr. Patterson’s right to participate in the Program, but rather the extent to which he can use his seniority to assert his place at the Oakville plant in the employee line-up for the severance options in the event the plant ever faces permanent job loss. Mr. Patterson claims that he was under the impression that when he accepted the preferential hire option in 1993, the only limits on his company-wide seniority were with respect to job promotion and layoff at the Oakville site. In such cases, he argued, he would have only plant seniority, but in all other situations, company-wide seniority would apply. Mr. Patterson maintains that he was told by union officials that his “benefits” would not be affected by the move to Oakville. Mr. Patterson takes the position that the term, “benefits”, includes within its meaning the protections of the Program referred to above, and also includes eligibility criteria for access to the Program.

13. The union’s refusal to interpret the Program in the manner Mr. Patterson claims it always has been and should be interpreted is the basis for the complaint in this matter. The union, Mr. Patterson claims, has adopted a position in respect of the Program that is arbitrary and discriminatory as that interpretation relates to him as an employee affected by company downsizing. On the other hand, Mr. Patterson does not claim that the other limitations on his seniority - to which the union agreed - pose any section 74 liability for the union. For example, Mr. Paterson agreed that the union was not acting improperly in allegedly having agreed with Ford that the employees accepting the preferential hire option were restricted to plant-wide seniority when it came to competing for positions or being laid off in the new plant into which they transferred.

14. Mr. Patterson also acknowledged that, in response to his formal inquiries years after the transfer to Oakville, the union had explained its position regarding the interpretation of the Program to him. The Board notes that there was substantial correspondence between Mr. Patterson and the union on the issue.

15. Mr. Patterson pointed out to the Board various provisions of the collective agreement which apply to his terms and conditions of employment, and which reveal that, for all intents and purposes, he is treated as an employee with company-wide seniority. Thus, for example, his vacation entitlement is based upon his full service with Ford. So too is his “excused absence allowance”. The union acknowledged that Mr. Patterson’s claims in this regard were quite correct, and in its pleadings, the union referred the Board to a letter of intent created in 1993 that remains in the 1996 Master collective agreement. This letter reads:

… employees placed in a new plant shall have date-of-entry seniority in that plant, but this will not break an employee’s seniority for the purpose of such plans as the vacation with pay, holiday pay, jury duty pay, supplemental unemployment benefits or retirement plans where company, rather than plant, seniority is taken into account.

16. Having acknowledged the extent of Mr. Patterson’s entitlements as a preferential hire, the union maintained that its interpretation of the relevant provisions of the Program and of the application of seniority within that Program is reasonable and unassailable. A number of arguments were advanced to support that proposition.

The Board found the most compelling of these to be the existence of a further letter in the collective agreement which reads as follows:

October 18, 1993

Mr. B. Hargrove

National President

National Automobile, Aerospace and

Agricultural Implement Workers

Union of Canda (CAW-Canada)

205 Placer Court

Willowdale, Ontario

M2H 3H9

Dear Mr. Hargrove:

During the recently concluded negotiations, the union expressed concern regarding seniority employees who are laid off as a result of a restructuring action which results in permanent job losses, who secure employment through the preferential placement procedures at other plants covered by the Agreement and within five years of the original layoff date are again indefinitely laid off without expectation of recall.

The company agrees that under circumstances the employees will be given the option to remain on layoff from the last facility where they were employed or to exercise their rights relative to the options under the job and income security program that were available to them at the time of the original layoff.

Yours very truly,

FORD MOTOR COMPANY OF CANADA, Limited

D. J. McKenzie

Vice President

Employee Relations

17. Counsel submitted that if Mr. Patterson’s argument concerning the application of company-wide seniority were to be accepted, this letter of understanding would have been completely unnecessary, and in fact, it would have created a contradiction in the collective agreement. Obviously, counsel submitted, the parties to the collective agreement knew what they had intended with respect to the Program, and by including the letter of understanding relating to the five-year protection period, signaled clearly that seniority would operate on a plant-wide basis for the purpose of implementing the Program.

Decision

18. Mr. Patterson made no claim at the consultation that, prior to making his decision to move to the Oakville plant, he ever asked his union specifically whether he could exercise company-wide seniority in the event he became eligible again to participate in the Program. He and the other employees considering the Oakville option did ask a lot of questions, but not that one. Nor did the union ever advise Mr. Patterson that he would be able to exercise company-wide seniority if the Program should be offered again in Oakville. At best, Mr. Patterson was informed by the union that the move to Oakville would have no negative impact on his benefits. He

was also informed of the limitations on the use of his company-wide seniority in Oakville, in job posting and layoff situations. Mr. Patterson claims that when he made his decision to go to Oakville, he understood he could exercise company-wide seniority as he had done in the Niagara Glass plant should the Program be offered again. He says that he would not have considered the preferential hire option had he known the way the union would interpret the letters of understanding dealing with the Program.

19. Mr. Patterson started raising concerns about the interpretation that both Ford and the union gave to the application of seniority in 1998. The union turned its mind to the issue, and made its position known to Mr. Patterson, a position that is rooted in a reasonable interpretation of the Program’s provisions as set out in the letters attached to the collective agreement. The union and Ford negotiated that collective agreement and understood how seniority would apply under the Program. The letter outlined in paragraph 16 above demonstrates that they never intended company-wide seniority to be available to preferential hires, for the purpose of claiming the Program’s offer ahead of other bargaining unit employees with greater plant-wide seniority, but lesser company-wide seniority. That letter of understanding would make no sense if Mr. Patterson’s interpretation were even arguably correct. Having considered the issue, it cannot be said the union acted arbitrarily in respect of its representation of Mr. Patterson.

20. The Board is also unable to find that the union acted in bad faith. The union did not attempt to misrepresent any of the consequences of accepting the preferential hire option available to Mr. Patterson or his co-workers at the time they were considering the alternatives in 1993. Mr. Patterson may well have inferred certain things after being assured that his benefits would not be impacted, but the union cannot be faulted for his having formed those assumptions.

21. Did the union discriminate against Mr. Patterson? There are sound labour relations reasons for limiting the use of company-wide seniority by employees entering a bargaining unit for the first time. Mr. Patterson implicitly recognized this when he accepted the limitations on the use of his seniority with respect to job posting and layoff at the Oakville site. He did not claim that the union was in any way liable for having agreed to these limitations. Moreover, the union’s and Ford’s position on the interpretation of their collective agreement makes sense from the point of view of the downsizing objective that gave rise to the job security program. It is understandable that Mr. Patterson adopted a view of the collective agreement that would maximize his interests as a preferential hire. However, the union did not violate section 74 by adopting the position it did concerning the limitations on the use of seniority by preferential hires who would otherwise be eligible to participate in the Program. The distinction it made between preferential hires and incumbent bargaining unit employees was a rational one from a labour relations perspective, and thus not discriminatory.

22. For all these reasons, the application is dismissed. Having dismissed the application it is unnecessary to deal with the union’s further argument that Mr. Patterson’s application was filed prematurely.

“Patrick Kelly”

for the Board