Gabriella Tatangelo v. CUPE Local 1750
1950-98-U Gabriella Tatangelo, Applicant v. CUPE Local 1750, Responding Party, v. Workplace Safety and Insurance Board, Intervenor.
BEFORE: Timothy W. Sargeant, Vice-Chair.
APPEARANCES: Gabriella Tatangelo for the applicant; John Elder, Carol Heffenden and Paul Pynkoski for the responding party; Elizabeth Kosmidis and Steve Jackson for the intervenor.
DECISION OF THE BOARD; February 21, 2000
1This 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.
2The complaint arises out of a redundancy notice given to the applicant on May 13, 1998. At the time the applicant was a Multimedia Producer in the Policy and Communications Division, Creative Services Branch.
3During this period of time a major reorganization was taking place within the employer’s organization. This resulted in a number of redundancy notices being issued to bargaining unit employees.
4Prior to the redundancy notice given the applicant, the Workplace Health and Safety Agency (WHSA) was disbanded by the government. This resulted in the absorption of certain services of WHSA by the employer. Relevant to this matter was the transfer of two employees to the Policy & Communications Division in the positions of Writer/Producer and Director/Videographer. The union had made an agreement with the employer that the two persons transferred from WHSA could transfer to the employer directly and that the jobs of Writer/Producer and Director/Videographer did not have to be posted. These transfers occurred in January of 1998. The job descriptions for these two positions are dated March 11, 1998.
5Up to the summer of 1998 a job evaluation process had been taking place. Also, collective bargaining has been taking place. The collective agreement was ratified in July of 1998. The new agreement apparently allowed an appeal process for an employee dissatisfied with his/her evaluation. At the relevant time, the Service Multimedia Producer’s job was evaluated at 865 points, as was the Writer/Producer’s job. The Director/Videographer’s job was evaluated at 870 points. The applicant’s job was evaluated originally at 855 points. The applicant appealed this evaluation, which apparently resulted in an unpleasant session between management, union and the applicant in regards to the evaluation. The appeal occurred sometime in July of 1998. One of the applicant’s concerns was that new equipment transferred from WHSA that she had been trained on, but had never used in her job, had not been included in the job evaluation. She was concerned that certain other functions had also not been included, and that the union had not supported her position in seeking to include such functions. Apparently, the Vice-President of the employer in her area disagreed with the applicant’s position. The Vice-President was of the view that at the time of the applicant’s redundancy, such functions and equipment had not formed part of the applicant’s job, and was not a requirement of the job. In regards to the use of the new equipment the applicant agreed but stated this was only because the two new people had come on board and she had not been given an opportunity to operate the new equipment. The end result of the applicant’s job evaluation appeal was that her job was re-evaluated to 860 points.
6The parties agreed that in accordance with the collective agreement, on a redundancy an employee may only displace an employee at an equal or lower level, but may not displace an employee at a higher level. The applicant was concerned that her job had not been evaluated to a higher level so she would be able to displace the two employees who transferred from WHSA.
7There is no question that from the moment the applicant received her redundancy notice, she was upset and tried to have the union grieve the matter. In her view the two jobs that transferred in from WHSA should have been posted so that she would have had an opportunity to bid on the jobs. Her understanding was that if a transfer from WHSA would affect a employee then it should be posted. Her position was that the two employees transferred were now doing the jobs she had previously performed before the redundancy and thus she had been affected as the employment of these two employees had led to her redundancy. She thus attempted to have the union grieve the matter.
8Without detailing with all her attempts, the applicant continually tried to convenience the union to file a grievance on her behalf. She was frustrated many times at what she felt was a lack of sympathy and prompt action by the union. She thus had written the President of CUPE, Local 1750, and when he did not reply, the Assistant Regional Director of CUPE setting out her concerns.
9The applicant was upset, as what she viewed as unfair treatment. She had been doing the job for seventeen years. She could not understand why she was not given an opportunity to at least bid for the two new jobs, as in her view with a little training she would have been able to perform such jobs easily with her background. In her view the union had never adequately explained to her, though she continually sought an answer, of why the union had allowed the two new employees to come into the department with less seniority, to jobs that were not posted, with the result that she had been declared redundant. She testified that though she was ultimately notified that the union would not file a grievance on her behalf, she had never been told that her position had no merit. Though the union had indicated to her that it had tried to convenience the employer to change its mind outside the grievance procedure, she had never been a part of these purported meetings. She admitted that she had been told by the union that the employer was restrained by budgetary concerns and would not alter its position. She also admitted that the union had told her that she should look for other alternatives with the employer. Again, when so notified by the union, the applicant had told the union she wanted to grieve, but as stated before the union ultimately told her, that it would not file a grievance on her behalf. Though she asked for the union position in writing, she never received such a letter.
10The applicant eventually did exercise her rights under the collective agreement and was placed in the position of appeals administrator at the same salary level.
11Ms. Carol Heffenden gave evidence on behalf of the union. In the years between 1979 and present Ms. Heffenden had occupied a number of positions in Local 1750 including President. At the time of this matter, Ms. Heffenden was Chief Steward .
12She admitted that the applicant had approached her with the applicant’s concerns. She had attempted at three different meetings with the employer to find out about the rationale behind its decision, and attempted to persuade the employer to change its position in regards to the applicant. She had first met with the Vice-President of Communications, had a follow up meeting with the Manager of Labour Relations, and a further follow up meeting with the Director of Human Resources.
13The employer had not changed its mind. The employer cited budgetary concerns as the reason for the redundancy notices. Four employees were affected in the applicant’s area including the applicant. The employer’s position was that it needed the higher evaluated positions to perform the necessary work, and thus had declared the lower evaluated positions as redundant.
14Ms. Heffenden and another union official had talked to the applicant on a number of occasions informing her of the employer’s position.
15Ms. Heffenden testified that the union decided not to file a grievance on behalf of the applicant, because it felt that pursuant to management rights, it is the employer’s prerogative to decide who is redundant in a budgetary cutback. It is the employer who determines who it needs to retain in order to do the necessary work. In this instance as the positions retained were evaluated higher than the applicant’s position, and in accordance with the collective agreement the applicant had no right to displace higher evaluated employees. Thus the union determined that the employer had not breached the collective agreement in relation to the applicant and thus decided not to file a grievance on her behalf. With regard to not requiring a posting of the two jobs (i.e. Writer/Producer and Director/Videographer), the union had well prior to the redundancy given notice to the applicant, agreed with the employer that such jobs need not be posted as no employee at the job levels of the new positions would be affected. Concerning the job evaluation process, the union had appeared with the grievor at the appeal process. Eventually the evaluation had been upgraded as a result of the appeal.
16The applicant argues that she has been treated unfairly by the union. It never should have permitted the two new jobs to come into her area without a posting. By allowing this, the union has treated the applicant unfairly in that the applicant, an individual with seventeen years seniority, was not given an opportunity to bid on such jobs and/or be trained for such jobs. Consequently and as a result of this union action, she had been declared redundant in the job she had performed for seventeen years, and which was now being performed by employees with far less seniority. The applicant asks that this issue be sent to arbitration.
17The union, supported by the employer, submits that in these circumstances the union has not breached section 74 of the Act. It had acted on behalf of the applicant in trying to persuade the employer to change its mind on at least three separate occasions. It had honestly determined that the applicant did not have the basis for a grievance and this conclusion was a reasonable and supportable decision. In relation to not requiring the posting of this two new jobs, the union had made an agreement with the employer on this issue. Such agreement was well before the redundancy notice to the applicant and at that time it could not have been in any of the parties contemplation that this would in some way affect the applicant’s position. The decision to agree that the positions need not be posted on the closing of WHSA was a decision a union was entitled to make and reasonable in the circumstances Further the union would be estopped from raising a grievance on the failure to post these positions, having agreed with the employer that the positions need not be posted. The union and the employer thus submit that this application should be dismissed.
DECISION
18Section 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.
19In order to establish that a union has contravened section 74 of the Act, an applicant must demonstrate that the union’s actions are:
“arbitrary” – that is, flagrant, capricious, totally unreasonable, or grossly negligent [see, for example, I.T.E. Industries Limited, [1980] OLRB Rep. July 1001]; or
“discriminatory” – that is, based on invidious distinctions without reasonable justification or labour relations rationale; or
“in bad faith” – that is motivated by ill-will, malice, hostility or dishonesty.
In assessing a complaint, the Board considers whether the actions of the union fall into one of these three categories. Mistakes or misjudgements by the union are not illegal under the Act. Further, the fact that a grievance does not go to arbitration does not, in itself, establish any arguable breach of the Act.
20The Board will not interfere or second guess a decision of a union unless it is convinced that the union has been arbitrary, discriminatory or acted in bad faith.
21While one can understand the frustration of the applicant in this instance, having been declared redundant after 17 years of service and seeing other employees with less seniority perform the work she used to perform, the Board nevertheless cannot conclude that the Union has breached section 74 of the Act.
22The employer determined that in a budgetary cutback it would keep higher evaluated jobs and declare lower evaluated jobs redundant. Of necessity employees retained will perform the former duties of the lower evaluated position, as well as performing duties in their classification. The transfer of the employees into the position of Director/Videographer and Writer/Producer occurred well before the redundancy notice given the applicant and were into higher ranked positions. Based on the collective agreement between the parties, it is clear than an employee may not bump into a high rated position. Further the agreement between the employer and the union to allow two employees from a disbanded agency to come into higher evaluated positions was reasonable and one the union was entitled to make. The evidence in this instance just does not establish that the union’s actions were in any way arbitrary, discriminatory or in bad faith within the meaning of section 74. Further the evidence is clear that the union had tried on at least three occasions to change the employer’s mind. The union’s ultimate decision not to grieve this matter but to try and resolve the matter outside the grievance procedure is entirely reasonable in the circumstances.
23For all the above reasons this application is dismissed.
“Timothy W. Sargeant ”
for the Board