Gazarek v. Service Employees’ International Union, Local 210
2924-99-U John Gazarek, Roland DeTurek, George Reid Jr., Greg Reynolds & Jeremy Legue, Applicant v. Service Employees’ International Union, Local 210, Responding Party v. Chatham-Kent Health Alliance, Intervenor.
BEFORE: Timothy W. Sargeant, Vice-Chair.
DECISION OF THE BOARD; January 14, 2000
This is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) alleging that the responding party has breached section 74 of the Act.
The applicants allege the following:
“The Applicants are former employees of the Chatham General Hospital and former members of the Union. They left their employment and the Union for various reasons prior to June, 1999. The Union did not negotiate a collective agreement from about 1990 until June, 1999 In June 1999 the collective agreement was signed, granting retroactive pay increases to the employed members but not to former members who were not then employed. Applicants say that the Union did not act fairly in disregarding their interest and acted in bad faith for the benefit of their current members to the detriment of the Applicants as past members.
Both the intervenor and the responding party submit this application should be dismissed as the application does not establish a prima facie case.
The responding party concedes that there was no entitlement to retroactivity for the applicants. On this point the relevant language of the collective agreement provides:
“All employees in the bargaining unit as of the date of ratification June 29, 1999 are entitled to retroactivity of wages on the basis of wage increase times on hours paid since April 1, 1996”.
It is clear from the pleadings that bargaining for the collective agreement in question was a lengthy process, involving 25 meetings between October 1998 and May 7, 1999. The collective agreement was ratified on or around May 7, 1999
Section 74 of the Act provides:
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.
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 members without cogent reasons “Bad faith” has been interpreted to refer to actions or decisions motivated by hostility, ill-will or other improper considerations.
Retroactivity is never guaranteed and always is a matter of negotiation. Retroactivity may take many forms. The clause dealing with retroactivity in this instance is by no means unique or unusual. Though understanding the disappointment of the applicants, the Board will not interfere or second guess such a decision unless it is convinced that the union has 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 a 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 agreement 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 than that 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.”
In this instance given the facts as pleaded, there is nothing pleaded which would lead the Board to conclude the applicant has a reasonable chance of success. The pleadings just do not establish that the union has acted arbitrarily, discriminatorily or in bad faith as those terms have been interpreted by the Board.
The Board has a discretion under section 96 as to whether to consider an application and as to whether it proceeds to hearing. The Act specifically relieves the Board of the requirement to hold a hearing where it is alleged that section 74 of the Act has been breached.
Accordingly in the circumstances the Board exercises its discretion and dismisses the complaint.
“Timothy W. Sargeant ”
for the Board