Ontario Labour Relations Board
File No.: 3197-99-U Date: February 28, 2000
Between: Reginaldo Silva, Joao Silva, Teresa Tavares, Olga Ferreira, Joao Carvalho, Applicants v. Industrial Wood & Allied Workers of Canada, Local 700 (IWA-Canada Local 700), Responding Party v. Janus Flooring Corporation, Intervenor.
Before: Christopher J. Albertyn, Vice-Chair.
Decision of the Board
1The style of cause is hereby amended to reflect the correct name of the responding party: "Industrial Wood & Allied Workers of Canada, Local 700 (IWA-Canada Local 700)".
2This is an application under section 96 of the Labour Relations Act, 1995 ("the Act") in which the applicants claim that the responding trade union ("the union") has violated section 74 of the Act.
3Janus Flooring Corporation is properly cited as "the intervenor".
4The complaint by the applicants is that the union concluded an agreement with the intervenor ("the employer") under which employees were required to work a 10-hour shift. That, the applicants say, is in violation of the collective agreement between the union and the employer. The context in which the agreement was reached appears to have been the following. The collective agreement between the union and the employer provided for a shift schedule with a 40-hour work week of 8 hours a day, i.e. 5 days on, 2 days off. The employer wished to increase production to meet increased demand and sought the union's agreement to permit it to work a 40-hour work week of 10-hour days, i.e. 4 days on, 3 days off. The union canvassed employee attitudes to the change and found that the workers generally favoured the original 5-day shift of 8 hours a day. The union advised the employer accordingly and refused to accede to the shift change.
5To meet the increased demand the employer introduced a night shift. Each employee was required to work night shift on one week each month. The introduction of the night shift was in compliance with the collective agreement; the employer had that entitlement.
6After the introduction of the night shift a petition was circulated among employees by those opposed to working night shift. Many workers signed the petition, which was presented to the union.
7The union responded by scheduling a special meeting of employees on December 18, 1999 to discuss the shift scheduling issue. A motion to retain the 5-day a week, 8 hours per day shift schedule was put to the meeting and defeated by a vote of 21 against to 6. That meant that the alternative faced by the employees was to accept the employer's proposal of 10-hour shifts, 4 days a week. The meeting resolved that a secret ballot would be held by the union among all of the employees affected, to determine the issue.
8The choice put to employees in the secret ballot was whether they would like to retain the 5 days a week, 40 hours per week, 8 hours a day schedule (which involved night shift on one week each month) or whether they were prepared to accept the employer's original proposal of having the 4-day 40-hour work week of 10-hour shifts. The secret ballot was held on December 21, 1999. A majority of employees voted in favour of the latter proposal.
9The union informed the employer of the outcome of the secret ballot, and soon thereafter negotiated and concluded a Letter of Understanding, which amended the collective agreement and provided for the 4 days a week, 10 hours per working day shift arrangement.
10The applicants are in the minority group who are opposed to the new 10-hour shifts. They complain that the union has violated section 74 of the Act by agreeing to the new shift arrangement. The union responds by contending that their complaint does not constitute a prima facie case and it should be dismissed without the necessity of a hearing.
11Unions are frequently called upon to make difficult choices affecting the members of the bargaining units they represent. They must at times choose between competing and contradictory positions which different groups of workers hold. Within broad limits, there are no hard and fast rules as to how unions should make those choices; many factors will influence their resolution of the competing or conflicting demands of the workers in the bargaining units concerned. One method for determining which choice to make is to have the employees vote on the question, as occurred in this instance. Majority rule is a legitimate basis for determining a contested issue, provided there is no oppression of the minority in the process of determining the majority, nor in the result of the vote.
12Section 74 of the Act requires that unions do not act in a manner which is discriminatory, in bad faith or arbitrary in relation to any employee they represent. In this case the applicants complain that the union has breached the collective agreement which affects them by concluding the Letter of Understanding described above. That is not an accurate portrayal of what occurred. The Letter of Understanding was not a breach of the collective agreement, but a variation of it, concluded by the parties to the collective agreement, after the union obtained ratification of the change by a majority of the employees in the bargaining unit who voted on the issue.
13There is no suggestion of bad faith on the part of the union. The complaint is that the union should not have agreed to the 10-hour shift schedule. There is no suggestion of arbitrariness by the union — the union clearly addressed itself carefully to the issue, taking note of the changing attitude of the employees to the shift schedules. There is also no suggestion that the union discriminated against any group of employees. No group of employees was treated unequally or in some way differentially as a consequence of the acceptance of the 10-hour shift arrangement. All employees are subject to the same new shift system, and they are affected in the same way. That outcome is the result of a ballot in which a majority of the employees indicated that they prefer the new shift system to that which obtained previously under the terms of the collective agreement.
14Accordingly, there is nothing in the application to suggest that the union has violated section 74 of the Act. The application discloses no prima facie case. The application is therefore dismissed.
"Christopher J. Albertyn"
for the Board