Lia Andrews v. Union of Needletrades, Industrial and Textile Employees, AFL-CIO-CLC, 2000 CanLII 12504

Lia Andrews v. Union of Needletrades, Industrial and Textile Employees, AFL-CIO-CLC

File No.: 1890-99-U Lia Andrews, Applicant v. Union of Needletrades, Industrial and Textile Employees, AFL-CIO-CLC, Responding Party.

BEFORE: Anthony Brown, Vice‑Chair.

APPEARANCES: Raymond A. Goddard and Lia Andrews for the applicant; Tim Bartkiw, Al Trewin, Linda Coltman and Lucille Brewer, for the responding party.

DECISION OF THE BOARD; July 26, 2000

1This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging violation of section 74.

2A consultation was held on March 28, 2000 and July 6, 2000.

Background

3The applicant, Lia Andrews, was employed by Xerox Canada Ltd. (“Xerox” or “the company”) as a tester/assembler and was at all material times a member of the responding party (the “union”). On May 30, 1999 Ms. Andrews was elected as one of several union stewards on the day shift. According to Article 6.06 of the collective agreement between the union and Xerox, a union steward has “super seniority” in the event of lay-off.

4Article 6.06 states as follows:

Employer agrees to grant preferential seniority rights to the Union Executive and Stewards. These preferential seniority rights shall apply only in the case of lay off. The members of the Executive Committee and Area Stewards shall be the last employees to be laid off because of lack of work provided they are qualified and able to fulfill the job requirements of the work available and inversely the first to be recalled to work. Preferential seniority rights will also apply to the Negotiating Committee six (6) months prior to the expiration of the Agreement up to the date of ratification provided they are qualified and able to fulfill the job requirements of the work available and inversely the first to be recalled to work.

5The company was engaged in a round of lay-offs that affected over one hundred employees. As a steward, Ms. Andrews was protected from lay-off while on the day shift. The company did not consider her protected against a transfer or “bump” from the day shift to the afternoon shift. The company gave her notice of transfer to the afternoon shift as of April 19, 1999. On April 19^th she reported to the afternoon shift and was given one week’s notice of lay-off.

6Ms. Andrews formed the opinion that she should not have been transferred to the afternoon shift, and on April 8, 1999, she grieved her transfer. She believed that her position as a steward protected her against being transferred. She also grieved her subsequent lay-off, on the basis that she should not have been on the afternoon shift and should have been protected from lay-off.

7The union takes the position that her position as “steward” did not protect her from the transfer and that, because she was not a steward on the afternoon shift, she was not protected against being laid off in accordance with her seniority.

8Because the essence of Ms. Andrew’s complaint is that the union did not consult her adequately about the handling of her grievance or about its merits, the Board decided to hear viva voce evidence about what communication occurred between Lia Andrews and her union representatives.

The Evidence

9Lia Andrews testified that on May 31, 1999, the day after she was elected union steward, she was informed by Ms. Coltman that arrangements would be made to send her for training along with the other elected stewards on April 11 and 12, 1999. She found Linda Coltman to be abrupt and angry.

10Ms. Andrews testified that verbal notice of her transfer to the afternoon shift was given to her on May 31, 1999. She stated that after receiving this notice, she asked Ms. Coltman about why she was being transferred. She stated that Ms. Coltman told her she was waiting to hear from a lawyer about the transfer and that, later that day, Ms. Coltman told her that the union’s lawyer had advised that the transfer was “legal”. Ms. Andrews’ recalled that her conversation with Ms. Coltman about her contact with the lawyer occurred before the grievance was filed on April 8, 1999, and that Ms. Coltman refused to give her the lawyer’s phone number.

11Ms. Andrews stated that a few days after she filed her grievance on April 8, 1999, Ms. Coltman told her that the company had denied the grievance and that she asked Ms. Coltman: “What’s next?” Ms. Coltman replied that she would speak with the union’s business agent, Al Trewin. Ms. Andrews recalled that Ms. Coltman informed her that the grievance would be withdrawn. She stated that Ms. Coltman and other union officers did not discuss the grievance with her. She further stated that she has no recollection of Ms. Coltman telling her after April 8, 1999 that Ms. Coltman would be seeing a lawyer about the grievance.

12Ms. Andrews admitted that at some point prior to filing her lay-off grievance on April 26, 1999, Ms. Coltman gave her the phone number of Pat Sullivan, then Director of the union’s Ontario Joint Council. Ms. Andrews left Ms. Sullivan a telephone message. Ms. Sullivan left her a return message. Ms. Andrews stated that she made no further attempts to call Ms. Sullivan.

13Ms. Andrews stated that she reported for the afternoon shift on April 19, 1999 and was given one week’s notice of lay-off. As there was no work for her to do, she was immediately sent home with pay for the week. She filed a second grievance on April 26, 1999, which she had a friend convey to Ms. Coltman. The lay-off grievance alleged that Ms. Andrews should have been protected from lay-off by reason of being a union steward. Ms. Andrews stated that she did not call Ms. Coltman about the second grievance. She stated that the union should have contacted her.

14Linda Coltman was the President of the Local at the material time and as such had responsibility for handling grievances. She stated that Ms. Andrews was elected as a union steward for the day shift. The sign-up sheet for the election was filed with the Board and it clearly indicates “day shift”. The afternoon shift held separate elections for its stewards. Ms. Coltman stated that stewards are elected for either the day or afternoon shift and do not take their status as steward if they are transferred to the other shift. The number of stewards on a shift is determined by a ratio according to how many employees are on the shift.

15After the election of stewards on May 30, 1999, Ms. Coltman arranged for training for the successful candidates, including Ms. Andrews. Ms. Coltman denied that there was any animosity in her discussion with Ms. Andrews immediately after the election. She stated that when Ms. Andrews was notified verbally of her transfer to the afternoon shift, she informed Ms. Andrews that she would not be a steward on that shift and that the “steward” position did not protect her against being bumped to the afternoon shift. She stated that Ms. Andrews was upset about being bumped to the afternoon shift.

16Ms. Coltman stated that over 100 people were laid off after January, 1999. The lay-offs were according to seniority and mostly affected the afternoon shift. When the afternoon shift loses too many people through this process, it becomes necessary to transfer employees from the day shift.

17Ms. Coltman stated that on April 5, 1999, Ms. Andrews told her that she wanted to file a grievance about the transfer. Ms. Coltman called Mr. Wood, a past president of the Local to find out how the collective agreement had been interpreted in the past. Ms. Coltman stated that Mr. Wood confirmed that Article 6.06 did not protect against a transfer and informed her about a situation in the past in which this same interpretation of the agreement had been used. Ms. Coltman stated that she also spoke with Al Trewin, the union’s business agent about the interpretation of the collective agreement.

18Ms. Coltman stated that when Ms. Andrews filed her grievance on April 8, 1999, she told Ms. Andrews that she would take the grievance to management (human resources). She explained that this kind of grievance is not taken to the grievor’s immediate supervisor and instead goes directly to the Human Resources Department. On April 8, 1999, the Human Resources Department notified Ms. Coltman that the company denied the grievance. Ms. Coltman stated that she then spoke with Ms. Andrews and informed her of what the company had said. She also informed Ms. Andrews that the grievance did not “look good” but she would speak with Al Trewin and Pat Sullivan about the matter and that they would decide whether to get a legal opinion.

19Ms. Coltman stated that at some point after April 8, 1999, she saw Al Trewin and Pat Sullivan about the transfer grievance, at Ms. Sullivan’s office. At this meeting, they discussed how the collective agreement should be interpreted and the past practice. Ms. Coltman stated that Pat Sullivan indicated that the grievance should be withdrawn but that a legal opinion should also be obtained.

20Ms. Coltman stated that she informed Ms. Andrews that the grievance would be withdrawn but that she would nevertheless be seeking a legal opinion. Ms. Andrews was upset and Ms. Coltman gave her Ms. Sullivan’s phone number.

21According to Ms. Coltman, it is not the Local’s usual practice to obtain a legal opinion. Ms. Coltman categorically denied obtaining a legal opinion before the grievance was filed, contrary to Ms. Andrew’s understanding of events.

22Ms. Coltman stated that, on April 19, 1999, she spoke with the union’s legal counsel and obtain a verbal opinion that the transfer grievance was unlikely to succeed, given that the protection for union stewards only covered lay-off. Ms. Coltman stated that only after obtaining this opinion did she withdraw the grievance. She stated that she subsequently gave Ms. Andrews a “pink copy” of the grievance form, indicating that it was withdrawn.

Submissions

23Ms. Andrews asserts that the union treated her in a manner that was arbitrary, discriminatory or in bad faith, contrary to section 74 of the Act. In particular, she asserts that the Local president Linda Coltman failed to keep her informed about the status of her transfer grievance and did not adequately consult her prior to withdrawing that grievance. With respect to the second grievance, Ms. Andrews states that it was withdrawn by the union immediately after she filed it, without informing or consulting her and without ascertaining her views on the merits of the grievance. She submits that these grievances should have proceeded to arbitration. She argues that she was never “laid off” from the afternoon shift because, on the day she reported to work on that shift, she was sent home without taking up duties. She argues that never really left the day shift, where she was protected from lay-off.

24The union submits that Ms. Coltman, as Local President, properly investigated the facts surrounding the transfer grievance and ascertained that the collective agreement did not protect Ms. Andrews from a transfer to the afternoon shift. Before forming this opinion, she consulted the past president of the Local, the union’s business agent and the Director of the Joint Council. She also obtained a verbal opinion from the union’s lawyers as to the proper interpretation of the collective agreement. The union asserts that it explained to Ms. Andrews, that she was not protected by the collective agreement. The April 26, 1999, lay-off grievance was based on the same complaint as the first grievance and was therefore withdrawn without further processing. The union rejects the applicant’s argument that she was never actually laid off.

Decision

25Based on the evidence, the Board is satisfied that the union did not violate its duty of fair representation under section 74 of the Act. Section 74 states:

74. 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.

26The Board is satisfied that Ms. Coltman properly investigated the transfer of Ms. Andrews to the afternoon shift and came to the bona fide conclusion that the transfer was permitted by the collective agreement and that Ms. Andrews’ status as a steward applied only to the day shift. Prior to withdrawing the grievance, Ms. Coltman spoke with senior union officials, the past president and with a member of the union’s law firm.

27Ms. Coltman was under no obligation to give Ms. Andrews the phone number of the union’s lawyers. She did, however. give Ms. Andrews the phone number of Pat Sullivan. Ms. Andrews admitted that she never got back to Ms. Sullivan after receiving a voice message from her. Ms. Andrews also admitted that she made no attempt to call Ms. Coltman about her second grievance. To some extent, she shares responsibility for any deficiency of communication between herself and the union.

28In my view, Ms. Coltman could have done a better job keeping Ms. Andrews informed about the transfer grievance. Communication between Ms. Coltman and Ms. Andrews appears to have been largely comprised of short snatches of conversation, rather than a proper meeting. It is not altogether surprising therefore that Ms. Andrews felt shut out of the process. This impression was probably reinforced when the union indicated that it would not correspond with her lawyers, and when Mr. Trewin inadvertently failed to respond to a letter from her about her grievance.

29However, assuming this to be true, it falls well short of what is required to show a violation of section 74. There is insufficient evidence that Ms. Andrew’s grievances were treated in a perfunctory, capricious or cavalier fashion, or that she was in any way singled out or discriminated against. It is also obvious that the April 26, 1999 grievance was based on the same alleged contravention of the collective agreement as the first grievance. There was no need for a second investigation or legal opinion.

30As mentioned previously, Ms. Andrews argues that she was never laid off. She argues that she never actually worked on the afternoon shift and accordingly did not leave the day shift (where she had super-seniority against lay-off). She argues that the union never gave her the opportunity to explain this position as a reason to go ahead with the grievance. Even if the facts supported this somewhat imaginative argument (which was not mentioned on the grievance form itself), the union’s alleged failure to consult Ms. Andrews as to the merits of her grievance was, at worst, a mistake. It is well-established that mere negligence on the part of a union is insufficient to establish a violation of section 74. In Catherine Syme, [1983] OLRB Rep. May 775 the Board stated:

20. Section 68 requires a trade union to act fairly, inter alia, in the handling of employee grievances. But it does not require a trade union to carry any particular grievance through to arbitration simply because an employee wishes that this be done. A trade union is entitled to consider the merits of the grievance, the likelihood of its success, and the claims or interests of other individuals or groups within the bargaining unit who may be affected by the result of the arbitration. The trade union must give each grievance its honest consideration, but so long as the arbitration process involves a significant financial commitment and has ramifications beyond the individual case, a trade union is not only entitled to settle grievances, in many cases it should do so. And, as has been pointed out in a number of cases, in assessing the merits of a grievance a trade union official – especially an elected one – cannot be expected to exhibit the skills, ability, training and judgement of a lawyer.

31It is also well-established in Board jurisprudence that a union is not obliged to proceed with a grievance to arbitration merely because a grievor wants it do so. In Balford Lindsay, [1989] OLRB Rep. March 264, the Board stated:

20. … Unless the collective agreement gives the grievor that right, it is for the union to decide whether or not to take the grievance to arbitration. Section 68 [now section 74] requires the union to make that decision in a manner which is not arbitrary, discriminatory or in bad faith. It does not provide an appeal to the Board from the union’s decision. The question for the Board is not whether the union’s decision is the one which this Board would have made in the circumstances, it is whether the union’s decision is the result of a process of reasoning grounded on a consideration of relevant matters and free from the influence of irrelevant ones: see Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, 6 CLRBR (NS) 134, at paragraphs 36 to 39. The Board has recognized that considerations relevant to a decision whether or not to press a grievance to arbitration include the merits of the grievance, the likelihood of its success, the financial commitment involved in proceeding to arbitration and the claims or interests of other individuals or groups within the bargaining unit who may be affected by the arbitration proceedings and their possible results: see Catherine Syme, [1983] OLRB Rep. May 775 at paragraph 20.

32For the foregoing reasons, the application is dismissed.

“Anthony Brown”

for the Board