John Barrieau v. Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 141, 2000 CanLII 12192

BEFORE: Timothy W. Sargeant, Vice-Chair.

APPEARANCES: John Barrieau for the applicant; Marisa Pollock for the responding party; Landon Young and Dan Robichaud for the intervenor

DECISION OF THE BOARD; March 23, 2000

1This is an application brought pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging that the responding party breached sections 74, 75 and 79 #’s 7, 8 and 9 of the Act.

2By decision dated November 10, 1999 the Board determined, “The only statutory provision that will be in issue is section 74 of the Labour Relations Act, 1995. There are no facts pleaded that would support a possible breach of the other provisions cited in the application and the application is dismissed insofar as it asserts a breach of them”.

3A hearing was held on March 16, 2000. The basis of the complaint concerns the announced closure of the employer’s warehouse in London in the year 2000. As a result the union posted a notice to its members announcing a meeting to be held on Sunday, April 11, 1999 at which a lawyer representing the Teamsters would be present, as well as a Mutual Group representative. The purpose of the meeting was to inform employees concerning issues such as pension and severance pay.

4The collective agreement between the parties continued in force until June 1, 1999 and automatically thereafter for annual periods of one year unless either of the parties notified the other party in writing of its desire to amend the agreement two months prior to its expiration.

5The collective agreement contains clauses dealing with the severance pay. The union leadership felt in these circumstances that it would be best not to give notice to amend the collective agreement but have it extended one year automatically. Though the meeting of April 11, 1999 was not called to vote on the matter of reopening the collective agreement, the union agrees that informal discussions on this issue occurred at the meeting and that “a show of hands was taken to determine whether the members present favoured or not the union reopening the collective agreement on the issue of termination and severance pay”. The show of hands supported the position of the leadership.

6It is also agreed that because of work schedules certain employees were unable to attend the meeting. Though efforts were made by the employer, if requested, to allow full-time employees to attend the meeting, for the purpose of this decision the Board is prepared to accept as a fact that not all employees (especially part-timers) were allowed by the employer to leave this regular work schedule to attend the meeting of April 11, 1999.

7The applicant submits the union should have given a vote to all its members on the issue of whether the collective agreement should have been reopened. The applicant contends that a notice outlining that such a vote was to be conducted should have been posted so that all members would have been given an opportunity to express their wishes and arrange to be present. By not doing so, the union has denied its members the right to express their wishes on a very important issue. The applicant obviously personally felt that the collective agreement should have been reopened and better conditions negotiated for the employees in regards to severance and other benefits.

DECISION

8Section 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.

9In this instance the applicant appears to be complaining about the union’s internal process of how the leadership notified the members of the meeting of April 11, 1999, how the meeting was conducted and the fact that a “show of hands” vote was held on the issue of whether the union should give notice to the employer to bargain a new collective agreement. There is nothing in the Act that requires the union to even hold a vote on such an issue. Thus, this seems to be an issue of how the union conducted itself in relation to its members.

10Regarding section, 74 the Board has found that “this Board has no specific authority under the Act to undertake any sort of watchdog role over a union’s internal process under its constitution and by-laws” (Mario Moreira, [1980] OLRB Rep. July 1039). Also in Arthur Joseph Roberts, [1974] OLRB Rep. Mar. 169, the Board stated:

… the duty of fair representation owed by a trade union to an employee under section 60 [now section 74] of the Act does not contemplate controlling the manner in which a trade union conducts its affairs with its elected officials whether they be on the payroll or not. The case law indicates that the propriety of a trade union’s behaviour vis-a-vis its members is governed by its constitution and by-laws and the procedural remedies provided therein. And recourse must be made by an aggrieved member to the governing rules provided under the constitution for relief. The safeguard provided by the controlling supervision of the courts are his assurance that these rules will be implemented fairly and impartially. (See White v Kazych (1951), 1951 CanLII 373 (UK JCPC), A.C. 585; Lee v Showmans Guild (1952), All. E.R. 1175; Orchard v Tunney (1957), 1957 CanLII 57 (SCC), S.C.R. 436; 8 D.L.R. (2d) 273; Jurak et al v Cunningham (No. 1) (1959), 1959 CanLII 340 (BC SC), 20 D.L.R. (2d) 377; Jurak et al v Cunningham (No. 2) (1959), 1959 CanLII 341 (BC SC), 20 D.L.R. (2d) 381; Gee v Freeman et al (1958), 1958 CanLII 258 (BC SC), 26 W.W.R. 546).

11However, even assuming the action complained of does not solely involve the union’s internal processes, and accepting the applicant’s factual recitation, the Board finds that such facts do not establish that the union’s actions were either arbitrary, discriminatory or in bad faith within the meaning of section 74. 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 member without cogent reasons, “bad faith” has been interpreted to refer to actions or decisions motivated by hostility, ill-will or other improper considerations.

12In this situation the union was faced with the difficult issue of a closure of a facility. Though understanding the disappointment of the applicant, the Board will not interfere or second guess a decision of a union unless it is convinced that the union had been arbitrary, discriminatory or acted in bad faith. As the Board has stated in Dufferin Aggregates [1982] OLRB Rep Jan 35 at page 39:

“The fact that a union may be required in bargaining to make hard decision that has serious economic impact on individuals, up to and including the loss of their jobs, cannot in and of itself make that decision unlawful. That kind of decision is, moreover, not unusual. In making collective agreements it is practically impossible for the unions to avoid making decisions that benefit one class of employee at the expense of another. For example when a union opts for more wages rather than better pension provisions it benefits its younger members rather than the older ones. Trade-offs of that kind are the everyday stuff of collective bargaining… There is nothing inherently unlawful in a union making a decision that favours a group of employees over another”.

13In this situation the decision of the union not to reopen the collective agreement but to have such agreement automatically renewed under its terms is a reasonable decision and one the Board will not interfere with.

14For all the above reasons the Board dismisses this application.

“Timothy W. Sargeant”

for the Board