Ontario Labour Relations Board
0501-00-U Unionized Members of Hanmer Bus Lines Reina Connors, Liliane Eden, Elise Gribbon, Joyce Guenette, Lise Jones, Andree-Anne Labelle, Suzanne Lamontagne, Susan Legendre Denise Little, Patricia O'Gorman, Therese Paquin, Gaye Sviezikas, Jeannine Villeneuve (Brunette), Debbie Doncaster, Monique Guay, Jackie Despatie, Gail Ross, Marg Howe, Joan Laliberte, Jeannette Mousseau, Applicant v. Canadian Union of Public Employees and C.U.P.E. Local 895, Responding Party.
BEFORE: Gail Misra, Vice-Chair.
APPEARANCES: Joyce Guenette and Suzanne Lamontagne for the applicants; Mark Gallina, Anna Sweet, Bob Cullens, and John Marcuccio for the responding party.
DECISION OF THE BOARD; November 23, 2000
This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) claiming violations of section 74 of the Act.
A consultation was held on November 21, 2000 to address the matter. As the applicants were not represented by counsel, the Board explained the process of a consultation to them.
The applicants claim that the responding party (“CUPE” or the “union”) failed to represent them in their dealings with their employer contrary to section 74 of the Act. Section 74 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.
A number of complaints are made. It is alleged that the union did not take to arbitration approximately 90 grievances filed by the bargaining unit between September 1995 and January 1998, and that CUPE had told the applicants that it would send those cases to arbitration. Further, it is alleged that the union failed to file a claim or grievance with the employer for termination pay for seven employees of Hanmer Bus Lines Inc. (“Hanmer”), their employer, when that company shut down in June 1998. The next allegation is that the union failed to pay nine strikers strike pay for the first two weeks of a strike at Hanmer, although it did pay seven others for this period. The applicants further claim that the union should not have called off the strike in February 2000 but should have kept paying the strikers strike pay until November 2000 when the Board issued its decision dismissing the union’s sale of a business application. The applicants allege that the union has breached its duty of fair representation as it did not provide them with a proper audited statement of the strike account. Finally, the applicants complain that they had asked to be made life members of the union and to date have not been made life members.
In order to understand this application it is necessary to have some context. The union has held bargaining rights for the part-time employees of Hanmer Bus Lines Inc. since 1974. It has never represented the full-time employees of the company. Local 895 of the union is an amalgamated local that included six workplaces, including Hanmer.
Hanmer operated a business which included providing school buses and drivers to local public and separate school boards. The union only represented the part-time employees of the company at Valley East, outside of Sudbury. In September 1995 Hanmer changed the bus routes and method of counting hours in such a manner that there was ostensibly more work for the full-time employees and less for the members of the bargaining unit. Some layoffs ensued. Many grievances were filed in response to this change and these constitute the bulk of the 90 or so grievances that the applicants are complaining about. The grievances, as noted earlier, were filed between September 1995 and around January 1998.
As so many grievances had been filed the union decided to take a number to arbitration at once. An arbitration board chaired by Arbitrator Marcotte was to hear a number of the “work of the bargaining unit” grievances. The arbitrator suggested that three of the group of grievances go forward as representative and so one policy and two individual grievances were heard. The arbitration took many days of hearing and eventually in June or early July 1998 the board of arbitration issued its decision (“the Marcotte award”). The union was successful in all three grievances. The decision stated that most of the company’s full-time drivers were in fact working within the scope of the bargaining unit during the 1995-96 school year. The union was awarded union dues for work that should have been done by bargaining unit members but which the employer had given to its allegedly full-time employees. The company was also ordered to follow the job posting procedures in the collective agreement for all bus runs.
Hanmer announced on June 26, 1998 that it would cease operations immediately for economic reasons and that it would not seek renewal of its transportation contracts with the school boards. On July 8, 1998 it sent notices to all its employees indicating that effective June 26, 1998 it had permanently discontinued its operations.
The union continued to correspond with the employer in attempts to collect the damages awarded in the Marcotte decision. Although it did finally receive the union dues owed, there was no further correspondence from Hanmer after late September 1998. At that point it appears that the corporation was legally dissolved and thus Hanmer no longer existed.
The litigation around the grievances was not all that was going on in this period of time. The collective agreement between the union and Hanmer had expired in December 1997. When the parties began bargaining the employer was seeking significant concessions and dramatic changes to the collective agreement. The negotiations were unsuccessful and the bargaining unit went on strike as of April 14, 1998.
By April 14, 1998 there were only seven persons remaining in the bargaining unit. Nine employees had been laid off approximately one year before, and one employee had been terminated from employment in January 1998. Since employees had recall rights for two years after layoff and since the terminated employee had a grievance filed and proceeding, it appears that all 17 persons who had been in the bargaining unit at one time participated in the strike.
Although CUPE normally only pays strike pay to those persons who had been employees at the time the strike commenced, the local union representatives convinced the National union to pay strike pay to all of the 17 persons on the picket line. The strike went on from April 14, 1998 until February 18, 2000, for twenty-two months, and the union paid all strikers $200 a week during that time. As has been noted above, Hanmer no long existed after September 1998. The union had hoped that the company would be resurrected in some other form and that it would be able to seek successor rights. Both the local and the national union conducted nation-wide corporate searches to try to find out if the principals of Hanmer had started another company. They had no success.
CUPE filed a successor employer application against a company that had purchased some buses from Hanmer. In November 2000 the Board issued a decision dismissing the union’s application.
I turn now to the specific allegations made by the applicants.
Allegation that union did not pay nine strikers for first two weeks of strike pay:
The applicants claim that the local membership voted in favour of payment of strike pay for the first two weeks of the strike to those who had been on strike. According to the applicants eight workers were paid but nine were not. The union states that seven workers were paid and ten were not. The applicants claim this is a breach of section 74 of the Act.
The union argues that the Board has no jurisdiction to address this matter as it is an internal union issue. However, the union gave an explanation for the distinction being made between the strikers. As had been alluded to earlier, CUPE policy is that only employees get strike pay during a strike. Therefore, when the motion was passed to pay strikers for the first two weeks of the strike, only employees at the time the strike began were paid. Any laid off or terminated employees were not eligible to be paid.
The Board finds that this is an internal union matter related to the union’s constitution and rules, and as such the Board has no jurisdiction to review it. Section 74 of the Act is designed to ensure that a trade union represents the interests of its members in a manner that is not arbitrary, discriminatory or in bad faith. It refers to the representation of employees in their dealings with their employer. The payment or non-payment of strike pay has nothing whatsoever to do with the representation of employees in respect of their relations to their employer.
In any event, even if the Board had jurisdiction, it would not have found that the union had been arbitrary or discriminatory in its treatment of those persons who did not receive the two weeks of strike pay. Clearly non-employees have no right to receive strike pay at all. It took the local’s intervention with the National union to get non-employees strike pay. However, since the first two weeks of a strike are not normally paid, even for employees, it would have required further intervention to allow payment to non-employees. The union was well within its rights to decline to seek further payments for non-employees in the circumstances.
For all of the above reasons, this allegation is dismissed.
Allegation that the union should have continued paying all strikers strike pay until the Board rendered its decision regarding the successor employer application in November 2000:
In January 2000 the union determined finally that it appeared that Hanmer was not going to start up in business again and that it should call an end to the strike. The local representatives of the union met with the strikers in January and advised them that as of February 18, 2000 the strike would be officially called off and strike pay would no longer be paid.
The applicants believe that the union breached its duty of fair representation by deciding to call off the strike in February 2000 when the Board case regarding a possible successor employer had not yet been determined.
When to call a strike and when to officially end a strike are decisions to be made by a trade union. These are not decisions that the Board involves itself in, except to the extent that it may be called upon to review the legality of a strike. In this instance there is no doubt that the strike had been legally called in April 1998.
The union does not owe the strikers any duty to maintain a strike simply because the strikers want to continue to receive strike pay. Indeed, it is surprising that the union continued to support the strike for as long as it did given that the employer had gone out of business in June 1998 and that the corporation had been dissolved around September 1998.
On the basis of the foregoing, there is no foundation for the applicants’ allegation of a breach of section 74 in the circumstances, and this allegation is therefore dismissed.
Allegation that the union has failed to provide the applicants with an audited statement regarding the strike account:
The applicants claim they have asked the union to provide them with an audited statement of the Hanmer strike account, and that the union has not provided them with one that is acceptable to them. They claim this is in breach of section 74 of the Act.
The union has provided the applicants with a statement of income and expenses for the strike account. By a letter dated April 17, 2000 Mr. Bob Cullens, the General Vice President of the local, advised Ms. Anna Sweet, the National Representative for the union, that the trustees of Local 895 had audited the books related to the strike at Hanmer. They found everything to be in proper order and outlined both in the letter and in the “Final Report of Strike” all income and expenditures related to the strike.
The applicants have been provided with a copy of these documents, but feel they are inadequate. It is somewhat unclear what the problem is. What is clear from the documents is that this union paid out to these strikers $281,200 during the Hanmer strike. It also paid out about $21,000 in expenses related to the strike.
As has been noted above, the Board has no jurisdiction to address the internal working of a union. Section 92 of the Act requires a trade union to, upon request, provide a member of the union with a copy of its audited financial statement to the end of the last fiscal year. It is expected that such a financial statement will have been certified as a true copy by the union’s treasurer or other officer responsible for the handling and administration of the union’s funds. That is the extent of what the Act mandates.
The applicants were not seeking that type of statement. Nonetheless, the union provided them with a statement that the trustees of the union had approved regarding the spending of monies during the strike. The Board has neither the authority nor the inclination in these circumstances to order the union to do anything more. This allegation is therefore hereby dismissed.
Allegation that the applicants’ request for life time memberships in the union has not been granted:
The applicants claim that they had asked at a general membership meeting of the local for life memberships in the union. They claim that it is a breach of the union’s duty of fair representation that they have not been given such memberships.
The Board notes that the grant of lifetime membership is an internal union matter that has nothing to do with representation of employees’ interests in relation to their employer. As such, the applicants have to take up their concern with the union itself. This allegation is therefore dismissed.
Allegation that the union failed to take 90 grievances to arbitration:
The applicants allege that the union had filed about 90 grievances between 1995 and 1998 that it did not proceed with to arbitration. It is alleged that the general membership of the local had voted to have these grievances go to arbitration, but that when the union called off the strike in February 2000 it indicated to the applicants that all outstanding grievances were being dropped. The applicants allege that the union has failed in its duty of fair representation in regards to these grievances.
The union disputes the number of outstanding grievances and believes there were approximately sixty grievances. Nonetheless, it concedes that there were a large number of outstanding matters. The vast majority of them were related to the employer’s decisions regarding the transfer of bargaining unit work to the full-time non-union drivers. The union decided early on that it would wait for the Marcotte award before proceeding with any other cases as they all generally raised the same issue. As has been noted earlier, the cases before the Marcotte panel took a long time to hear, and a decision only issued in June 1998.
As soon as the employer was aware of the Marcotte decision it decided to cease operations, and by September 1998 wound up the company entirely. The union was therefore left in the position of having no employer against which to enforce the collective agreement or proceed to arbitration. It states that it simply had no option at that juncture and could not proceed to arbitration with any more grievances.
The Board, in considering a union’s actions in a duty of fair representation complaint regarding grievances, has consistently held that a union does not have to proceed to arbitration with each and every grievance that is filed by its members. What the Board considers is whether the union fairly considered the grievance and made an honest and good faith assessment of the issues raised in the grievance. A union can decide not to take a grievance to arbitration if it believes that the grievance has little merit or if it believes that a decision in the grievance may not set a precedent that is helpful to the union. It can consider the costs associated with going to arbitration, and the effect on other bargaining unit members of proceeding to arbitration.
In this case this unit of employees, over a two and a half year period, filed an inordinate number of grievances about the employer’s decision to essentially remove some work from the bargaining unit. The union took the first group of grievances to arbitration and made the decision to await resolution of that group before proceeding with any other grievances. In the Board’s view this was a reasonable decision to make. This was a small bargaining unit that was generating so many grievances that raised the same issue over and over again. It is completely understandable that the union determined it was sensible to await the outcome of the grievances before the Marcotte panel before it spent significant amounts of its other members’ resources to send between 60 and 90 grievances to grievance arbitration. It was entirely reasonable for the union to believe that once the Marcotte decision issued it may resolve the vast majority of the remaining grievances.
The Board notes further that the applicants never complained to the Board before this application was made in May 2000 that their grievances were not being processed on to arbitration. They concede that the union had advised them that it was awaiting the outcome of the grievances before the Marcotte panel, and they were apparently prepared to accept the union’s decision in that regard. The Board is satisfied that the union could not have foreseen that Hanmer would close its business when it got the Marcotte decision. It is therefore unfair in hindsight to say that the union should have been sending all of the grievances to arbitration before the company shut down.
The applicants seem to hold the view that the union should, even with the demise of Hanmer, be sending all of their grievances to arbitration. That is a ludicrous proposition. There is no employer any longer, and has not been since late June 1998. It makes no sense to force a union to convene an arbitration panel in 90 cases when there is no employer to proceed against.
Ms. Joyce Guenette, the applicants’ representative, was particularly concerned that the union had not taken her termination grievance to arbitration. It appears that Ms. Guenette was terminated from employment in January 1998. A grievance was filed on her behalf and the union also filed an application with the Board claiming a breach of section 50 of the Occupational Health and Safety Act (the “OHSA”). The employer advised the union that it could not proceed in two venues and asked it to choose one. After discussion with Ms. Guenette the union determined to withdraw the OHSA application and to proceed by way of grievance arbitration. Shortly thereafter, the union chose its nominee to the board of arbitration. However, the employer would not name its nominee. Eventually the union applied to the Minister of Labour in April 1998 to have an employer nominee appointed. The employer finally appointed its own nominee, and the two nominees were to choose a chair for the grievance arbitration panel.
However, on April 14, 1998 the strike commenced and the nominees took no further action. Ms. Guenette’s grievance was therefore held in abeyance. It is not uncommon for parties to stop processing grievances during a strike. In this case, as has been noted earlier, the strike continued for almost two years and during that time the employer shut down its business. As with the other grievances, it is hardly surprising that in the circumstances the union could not take Ms. Guenette’s grievance to arbitration.
Upon a review of all of the circumstances of this case the Board cannot find that the union has breached its duty of fair representation by failing to take to arbitration the many grievances filed by the applicants and their colleagues. The union filed grievances, considered the merits of the grievances, made some strategic decisions about how to proceed given the huge number of grievances about the same matters, and in good faith hoped that the Marcotte award would help determine most of the outstanding grievances. It could not have known that the employer would close its business when the union was successful before the Marcotte panel. After Hanmer closed its business the union could not proceed with the grievances since there was no employer against which to seek redress.
For all of the above reasons the Board is satisfied that CUPE has not breached its duty under section 74 of the Act in the manner in which it has represented the applicants.
Allegation regarding the union’s failure to pursue termination pay for the applicants:
The final area of the applicants’ complaint is that the union, after the demise of the company, did not file a grievance seeking termination pay for the applicants. The applicants therefore claim that the union failed in its duty to represent them.
It appears that the applicants raised the issue of termination pay with union officials in the aftermath of the company’s demise, and certainly by September 1998. They raised it again in September 1999. The applicants believed the union should have seized the employer’s assets at the time that Hanmer went out of business.
The union states, and the applicants do not dispute, that the applicants never asked the union to file a grievance regarding this matter. In any event, the union points out, this was a bargaining unit that had no trouble filing its own grievances as is obvious from the 60 to 90 grievances mentioned earlier, all of which were generally filed by the stewards of the bargaining unit. Everyone from the bargaining unit was on the picket line on strike, so there was an ability for a steward to file a grievance had the applicants wanted to do so.
Furthermore, the union argues that it could not have filed a grievance for termination pay in any case. This is because it was not conceding that the relationship with the employer was over and the bargaining unit remained out on strike. Either the applicants were employees in a bargaining unit that was on strike, or they were terminated and there was no longer a strike. As has been noted above, the strike continued until February 2000, and even then the applicants did not want the strike to be called off.
By the time that the strike was called off in February 2000, the employer had been defunct for about 1.5 years. The Board is satisfied that the union could not have pursued termination pay with the employer at that juncture as there was simply no one to approach.
The Board is further satisfied that the applicants never asked the union to file a grievance for termination pay in the aftermath of the closure of Hanmer. It is difficult to hold the union responsible when the applicants themselves, through their stewards, had been filing numerous grievances up to that point. If they had wanted to file a grievance, it was open to them to do so.
That being said, the Board is of the view that there would have been significant dissonance between the union position that it was still striking the employer and that the employees who were on strike had been terminated. Either they were still employees on a legal strike, or they had thrown in the towel and accepted that since the employer had become defunct, they had been effectively terminated. What these applicants did was to take the weekly strike benefits for almost two years, complain that the strike was being called of in February 2000, and then subsequently ask why the union had not got them termination pay a year and a half after the employer had closed its business.
The applicants claim that the union should have seized the employer’s assets in order to ensure that they could get termination pay. The union had no legal basis upon which it could have ‘seized the assets’ of the employer, and the applicants can assert none. The Board therefore finds that it was unreasonable for the applicants to have expected that the union should have done so in July 1998.
For all of the reasons already articulated, the Board cannot find that the union breached its duty of fair representation.
It appears to the Board that the applicants had unrealistic expectations of the union. They expected the union to maintain the strike and to keep paying them strike pay when there was no prospect that the employer was reopening its business. Then, having collected strike pay for almost two years, and for at least a year and a half after their employer went out of business, they wanted to know why they were not getting termination pay. Furthermore, knowing that Hanmer had ceased operations altogether, they expected the union to take their 90 grievances to arbitration notwithstanding that there was no employer.
This was a small bargaining unit of part-time employees to begin with, and was a very small one comprised of just seven people by the time the unit went on strike. Nonetheless, the union had supported the bargaining unit in its filing of between 60 and 90 grievances in a two and a half year period prior to the strike. CUPE had taken grievances to arbitration on behalf of the bargaining unit. Once the strike commenced, it both supported the addition of non-employees to the compliment of strikers and paid all 17 persons $200 a week in strike pay. Even after the employer went out of business two months into the strike, the union continued to support the strike. It went to significant lengths to try to find out whether the company was opening again in some other guise. When it felt it might have a successor employer, it filed an application with the Board to pursue that avenue. All through this, and for 22 months, the union paid the applicants and their colleagues strike pay, and union officials met with the striking workers to keep them informed. It is difficult in these circumstances to see what more this union could have done for the applicants and their colleagues.
Having reviewed all of the applicants’ allegations, the Board cannot find that the union violated its section 74 duty to the applicants. Having heard all of the parties’ submissions and reviewed the documentation provided, the Board has no hesitation in saying that this union went beyond what it had to do to represent the applicants and their colleagues well in highly unusual circumstances. For all of the reasons already articulated, this application is hereby dismissed.
“Gail Misra”
for the Board