Brian Poole v. Power Workers’ Union, CUPE Local 1000-CLC, 2000 CanLII 2073

Ontario Labour Relations Board

File No.: 0575-00-U Date: November 2, 2000

Between: Brian Poole, Applicant v. Power Workers’ Union, CUPE Local 1000-CLC, Responding Party v. Ontario Power Generation Inc., Intervenor.

Before: D. L. Gee, Vice-Chair.

Appearances: Sheryl L. Johnson, Brian Poole, Ken Woodful, Dennis Healy and Brad Sinclair, for the applicant; John Munger and Al Acorn for the respondent; S. Margot Blight, Jason Fitzsimmons and Barbara Foreman for the intervenor.

Decision of the Board

1The style of cause is hereby amended to reflect the correct name of the responding party: “Power Workers’ Union, CUPE Local 1000-CLC”.

2This matter is an application pursuant to section 74 of the Labour Relations Act, 1995 (the “Act”).

3The application was filed by Mr. Poole on his own behalf and on behalf of five other individuals. At the consultation, the Board was advised that two of the six individuals were no longer participating.

4In brief, a vacancy notice was posted on August 31, 1998 for 14 First Line Manager Assistant – Mechanical positions (the “FLMA positions”). The four applicants were, following an interview process, awarded positions. The Power Workers’ Union (“PWU”) received complaints from four union members concerning the manner in which the positions were filled. PWU conducted an investigation to determine if the complaints were valid. PWU concluded that there were a number of flaws with the selection process and filed a grievance on behalf of the four individuals who had complained. Following the filing of the grievances, 10 further individuals complained to PWU about the selection process. The four individual grievances were later converted into a grievance on behalf of all PWU members.

5The grievance was scheduled for arbitration. The fact of the filing of the grievance and its scheduling for arbitration was know to the applicants.

6The PWU and Ontario Power Generation Inc. (the “employer”) entered into discussions. The employer had some concerns about the manner in which the vacancies were filled including the fact that some of the positions had not been filled within four months of the posting as required by the Collective Agreement. The employer felt that some of the appointments might be vulnerable. Eight of the positions were filled by individuals who, at the time they were placed in the positions, were already operating in an FLMA equivalent position at Bruce or Pickering. Their movement into the position of FLMA was a lateral transfer. The PWU’s position with respect to lateral transfers is that such individuals should not be required to reprove their qualifications. In keeping with PWU’s position on lateral transfers, PWU asserted that the eight individuals who were laterally transferred from FLMA equivalent positions should not have to reprove their qualifications. Thus, an agreement was reached that the six positions that had been filled by individuals from Darlington who had done the job in a stepped up fashion in the past would be re-run.

7The applicants found out about the settlement when Mr. Poole overheard someone talking on the phone. Mr. Poole chose not to participate when the positions were re-run. The remaining three applicants did participate but were not successful.

8The applicants submit that the union’s handling of this matter was superficial and reckless with respect to their interests. The applicants assert that the filing a grievance on behalf of the original four individuals who complained to the union about the process by which the jobs were filled, and seeking remedial relief that the grievor be selected to the position, demonstrates that PWU was arbitrarily siding with the grievors. The applicants submit that the PWU did not give them an opportunity to respond to the grievance or to provide their version of the facts to PWU. As a result, the applicants assert that they were not given due process. The applicants all assert that the PWU’s conduct will have a detrimental impact on their career progression, pension income and self-esteem.

9Section 74 states as follows:

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.

10The onus is on the applicant to establish a breach of this section.

11The interpretation of section 74 of the Act has received considerable interpretation by the Board. In Savage Shoes Limited, [1983] OLRB Rep. Dec. 2067, the Board stated:

36. Section 68 [now section 74] requires that each trade union decision be grounded on a consideration of relevant matters, free from the influence of irrelevant considerations. The requirement that a trade union not act in a manner which is in bad faith protects the legitimate expectation that an individual employee’s bargaining agent will act honestly and free of any personal animosity toward him. The requirement that a trade union not act in a discriminatory manner protects against the making of distinctions between employees and groups of employees on bases which have no relevance to legitimate collective bargaining concerns. “Bad faith” and “discriminatory”, therefore, test for the presence, in the process or results of union decision-making, of factors which should not be present. “Arbitrary”, on the other hand, describes the absence in decision-making of those things which should be present. A decision will be arbitrary if it is not the result of a process of reasoning applied to relevant considerations. The duty not to act arbitrarily requires a trade union to turn its mind to the matter at hand. (emphasis added)

12Mere errors of judgment, mistakes, or negligence, do not constitute breaches of section 74:

… this Board does not decide cases on the basis of whether a mistake may have been made or whether there was negligence, nor is the standard based on what this Board might have done in a particular situation after having the leisure and time to reflect upon the merits. Rather, the standard must consider the persons who are performing the collective bargaining functions, the norms of the industrial community and the measures and solutions that have gained acceptance within that community. … (Ford Motor Company of Canada Limited, [1973] OLRB Rep. Mar. 519, at paragraph 40).

13In deciding whether or not to pursue a grievance, the Board has recognized that the union may properly take into account various factors, such as the likelihood of success, the financial commitment involved, and the claims or interests of other individuals or groups within the bargaining unit who may be affected:

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.

21. These considerations are equally applicable to the settlement of disputes arising out of collective agreements. But there is an importance difference. Unlike most parties in civil matters, the trade union and employer are bound together in a relationship which will subsist so long as the employees continue to support the union and the employer remains in existence. That relationship, despite its adversarial aspects and legal veneer, is neither wholly adversarial nor strictly legal. It is essentially an economic partnership in which both parties must be concerned about the ongoing relationship and the equitable resolution of disputes which occasionally arise. Like a successful marriage, a productive bargaining relationship depends upon the development of a spirit of co-operation and compromise. Regardless of the arguable importance of any particular grievance, it will inevitably be only one of many which the parties will be required to resolve during the currency of their relationship; and, if either party obstinately adheres to an unreasonable position, or continually presses trivial claims, the entire settlement process could be undermined, and their long-term relationship prejudiced. …

(Catherine Syme, [1983] OLRB Rep. May 775).

14Although the Syme’s case involved the factors relevant to a decision whether to pursue a grievance to arbitration, similar factors are relevant to a decision whether to file a grievance.

15Balancing the competing claims of bargaining unit members is one of the most difficult tasks faced by a union.

19. In evaluating the union’s conduct against the duty imposed by section 69 [now section 74], the Board must bear in mind that section 69 “does not require that a trade union champion every employee grievance or complaint”, but only that it “put its mind to the issues involved and make a good faith decision as to whether or not a matter is worthy of pursuing”: Boise Cascade Canada Ltd., [1982] OLRB Rep. July 981. In fleshing out these obligations in the present context, the Board is aware of the fact that posting grievances are among the most difficult for a union to manage. Unlike “standard” discharge grievances, posting grievances require the union to broker a variety of competing interests, including those of the grievors’ and the successful candidates. The extent to which a union will be able to “mediate” a particular result will depend upon a good faith assessment of these factors in light of the particular collective agreement provision in issue. (Anwar Chaudri v. Canadian Union of Public Employees/Ontario Hydro Employees’ Union, Local 1000 (unreported OLRB decision, December 10, 1993))

16Issues surrounding posting grievances typically require a trade union to make a difficult choice between supporting an employee who complains about the process by which a job was filled or supporting the successful candidate. No matter which choice the trade union makes one of its bargaining unit members will be displeased. If it advances the grievance, the union faces rebuke from the successful candidate. If it refuses to advance the grievance, the union faces rebuke from the unsuccessful candidate.

17In the present case, four individuals complained to the PWU about the process by which the FLMA positions were filled. PWU conducted an investigation that confirmed basis for the complaints. Grievances were filed following which 10 more individuals complained about the process. In discussions with the employer, the employer conceded that there may have been a problem with respect to at least some of the positions. PWU held the view that those who were laterally transferred into the FLMA position should not have to reprove their qualifications and thus did not seek to have those positions re-run. PWU and the employer agreed to re-run the remaining six positions. There is no allegation that anyone within the PWU was somehow prejudiced against the applicants herein or predisposed to harm one or more of the applicants. PWU did not speak directly to the applicants and seek their input, information and assistance. PWU did not keep the applicants informed of developments.

18I am not satisfied that PWU has violated section 74 of the Act. While it may have been prudent for PWU to seek the applicants’ input, the PWU did conduct an investigation that was sufficient to establish that the complaints it received from the four individuals concerning the selection process were well founded. Having satisfied itself of such, I am not persuaded that PWU’s failure to seek the applicants’ input is a violation of the Act.

19This matter is hereby dismissed.

“D. L. Gee”

for the Board