2471-99-U Romeo P. Fournier, Applicant v. Local 6500 United Steelworkers of America District 6, Responding Party v. Inco Limited, Intervenor.
BEFORE: Timothy W. Sargeant, Vice-Chair.
DECISION OF THE BOARD; January 5, 2000
This is an application brought pursuant to the Labour Relations Act, 1995 (the “Act”) that the responding party has breached section 74 of the Act.
The responding party requests that this application be dismissed without a hearing as it submits the application fails to disclose a case for the order sought.
The remedy requested is as follows: “I request that I be paid the $25,000.00 pension incentive and all cost incurred in the process of this application”.
The underlying facts are not in dispute. Without going into extensive detail, it is apparent that in the fall of 1997 the employer announced that it would be reducing its work force by approximately 2,000 employees by January 1, 2000.
This led to a series of negotiations between the union and the employer, one of the issues being discussed was a “Safety Net Fund”, the purpose of which was to prevent layoffs.
Through further discussions this Safety Net program was extended by a Special Safety Net Initiative Agreement. The features of this agreement dealt with an early retirement proposal that would allow 110 employees to retire on or before June 30, 1999 with a $10,000.00 incentive. This incentive was later increased to $25,000.00.
The Union was aware that the Safety Net Fund would not have enough money in the fund to pay all of the employees who might be interested in the package. Two methods for selection were considered;
(a) seniority; and,
(b) years of employment with pay (“YEWP”);
The decision was made by the union in discussion with the employer to apply seniority as a method of selection as opposed to YEWP.
Herein lies the applicant’s concern. Had the Union negotiated YEWP as the selection method, the applicant would have qualified for the $25,000.00 incentive. However, as the applicant had a break in continuous service (he had quit the service of the employer for approximately one year in 1970) he did not qualify for the incentive based on the seniority test (he was ranked as 468 out of 556 applicants).
The applicant was upset that the seniority method had been chosen to determine the eligible candidates. He spoke to the President of Local 6500 to seek support for his position and allegedly was told “that I would not have the Union’s support since they had participated in the decision determining what criteria was to be used as the incentive cut-off and had chosen Continuous Service”.
The application goes on to state:
“I informed him that the precedent for pensions and anything pertaining to pensions has always been based on YEWPs and that there was no precedent otherwise. It is inappropriate to change the rules in the middle of a game. He then stated that since we go with Continuous Service for everything other than pensions they decided to go with Continuous Service for the incentive offer. As far as he is concerned I have no fight and the Union would not fight this issue. I also called and spoke to Mr. Wayne Fraser, Area Coordinator, Northeast Ontario, District 6 and he agreed with Mr. Patterson”.
The application further alleges “Local 6500 of the USWA has successfully fought through collective bargaining for prior service to be counted for pensions. They have agreed that pensions be based on YEWPs so that an employee with 30 YEWPs is eligible to a full pension regardless of his/her age. Pensions and anything pertaining to pensions have always been based on YEWPs and not on Continuous Service. I feel that the Union and its duly elected officers have a responsibility to adhere to the Collective Bargaining Agreement. They were acting in bad faith when they arbitrarily agreed to use Continuous Service as the employee ranking criteria for awarding the incentive packages”.
Section 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.
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.
In this situation the union was faced with a difficult decision as to the method for selection for eligibility for the incentive. No matter which method it chose some employees would not be eligible. Though understanding the disappointment of the applicant, the Board will not interfere or second guess such a decision 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 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 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.”
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