Frost v. C.E.P. Local 279, 2000 CanLII 2845

Ontario Labour Relations Board

1021-99-U Rick Frost, Henry Erkkila, Mark Lisi, Applicants v. C.E.P. Local 279, Responding Party v. Provincial Papers Inc., Intervenor.

BEFORE: Anthony Brown, Vice-Chair.

APPEARANCES: David Potinteau, Dave Frost, Rick Frost and Henry Erkkila for the applicants; Mary MacKinnon and Bill Joblin for the responding party; G. L. Firman and Joseé Levesque for the intervenor.

DECISION OF THE BOARD; November 9, 2000

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

2. A consultation was held on April 27, 2000.

3. At the consultation, the Board dismissed a motion by the responding party (‘the union” or “Local 279”) that the application should be dismissed on the ground of undue delay.

4. The facts are relatively straightforward.

5. CEP Local 279 was formed as a result of a 1997 merger agreement by CEP Local 40 and CEP Local 239.

6. In 1995, the intervenor’s predecessor hired about 30 new employees and assigned them all to Local 239. Local 40 objected to all of these assignments being given to Local 239 and 5 employees were consequently reassigned to Local 40 effective July, 1995. The applicants are three of the persons affected by the transfer and were actually hired in May, 1995. The other two persons are no longer employed by the intervenor. The letter confirming the transfer of the five employees, dated June 5, 1995, states:

As a result of agreement among the executive of CEP Local 40, CEP Local 239 and the Company, the following new hires will be allocated to the CEP Local 40 membership without prejudice or precedent:

• five persons (including the applicants) are listed along with their effective engagement dates in May, 1995.

7. In April, 1997 the company was purchased by Roland Cascades. One condition of the sale was that the CEP Locals merge into one bargaining unit. Therefore, in November, 1997, representatives of Locals 40 and 239 attended mediation/arbitration sessions to work out the details of the merger. The law firm of Cherniak, Allen was retained to help resolve seniority issues arising from the merger. It was agreed that for purposes of permanent lay-off, separate Local 40 and Local 239 bargaining unit seniority, as established at the merger date, would apply until October 31, 2002, such that lay-offs, bumping rights, and recall rights would be exercised solely within the previous respective Local jurisdiction. On or after November 1, 2002, and subject to any collective agreement negotiated with the employer, full dovetailed seniority will apply for permanent lay-offs, such that lay-offs, bumping rights and recall rights will be exercised within the jurisdiction of the merged local. For all other purposes such as job postings and temporary lay-offs, separate Local 40 and Local 239 bargaining unit seniority apply until February 1, 1998 and thereafter dovetailed seniority within the merged local will apply.

8. In a letter dated December 4, 1997, the mediator/arbitrators sent a letter outlining their award to the presidents of Local 40 and Local 239. The award incorporated the merger agreement. The award contains a footnote to the effect that “those employees who had seniority within both locals would be credited with the longer of the two seniorities. Thus a person with ten years of seniority in Local 239 and four years of seniority in Local 40 would be considered to have ten years of seniority in a dovetailed list.” It was agreed that for most purposes seniority would be dovetailed effective February 28, 1998. Only in the case of permanent lay-off would “prior unit” seniority be a factor.

9. In or about March, 1999, the executive of Local 279 were informed that the seniority of the applicants had not been properly calculated because their seniority with Local 40 and 239 had been stacked. Local 279 raised this with the employer, with the result that the seniority of the applicants was reduced.

10. In May, 1999, one of the applicants (Mr. Frost) raised the seniority “stacking’ issue at a regular meeting of Local 279 membership and was informed that seniority only includes membership in one local. At some point in 1999, the applicants asked verbally if a grievance would be filed on their behalf. The union asserts that it informed the applicants that it would not file a grievance because the Local wanted to abide by the merger agreement.

Submissions

11. From the applicants’ perspective, the fact that in 1995 they were originally hired into Local 239 instead of Local 40 was an administrative error. They were ultimately transferred to Local 40, not by choice, but as a result of a decision made by the employer. They submit that it was agreed that the five affected employees would not be penalized in any way, retaining all the seniority from their hire date. They distinguish their situation from one in which an employee voluntarily transferred from one local to the other. The applicants seek “reinstatement of seniority, full redress, lost earnings, reimbursement of expenses”. The applicants also allege that the union has shown a pattern of discriminatory behaviour against members who were formerly in Local 40. Three letters (from Richard Nakonechny, Russell Moore and Rick Frost) were filed indicating dissatisfaction with the treatment of certain employees under the seniority provisions in or about September, 1999.

12. The union asserts that its request to the employer to readjust the applicants’ seniority was to comply with the merger agreement. It asserts that the applicants’ “stacking” issue was raised both at a special meeting of the Local membership and then again in May, 1999 at the aforementioned general meeting of Local 279. It asserts that the union executive met at length to consider the matter and decided not to proceed with a grievance because the applicants’ request for stacking was inconsistent with the merger agreement. The executive did not meet with the applicants. The union submits that its executive had to consider that granting the applicants’ request would mean adjusting the seniority of the other members of the union.

The Law

13. Section 74 states:

14. 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.

15. In Savage Shoes Ltd. [1983] OLRB Rep. Dec. 2067, the Board described a union’s duty under section 74 [then section 68] this way:

16. Section 68 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.

Decision

15. The issue in this application is whether or not the union executive treated the applicants in a manner that was arbitrary, discriminatory or in bad faith, contrary to section 74. In my view, if the executive members of Local 279 had summarily dismissed the applicants’ complaint about their seniority without adequately understanding or investigating the problem, then there may have been a violation of section 74. It is evident, however, that the issue was discussed at the general meeting of Local 279 in May, 1999 and the union executive met to discuss the issue in camera. The executive was aware of the issue and it was not essential that it meet with the applicants.

16. The union executive came to the opinion that the applicants’ request to readjust their seniority would conflict with the merger agreement. There is no evidence before the Board that the executive was motivated by bad faith toward the applicants. The merger agreement and arbitration award are complex documents and were no doubt arrived at as a result of compromises on both sides. It is understandable that Local 279 would not, in 1999, wish to re-open the agreement.

17. The Board’s role is, of course, not to decide whether the merger agreement permits the applicants’ to stack their seniority, but rather to examine the conduct of the union in respect of the representation of its members as provided by section 74. It is well-established in Board jurisprudence that the conduct of a union official need not meet a standard of perfection; unions are entitled to make mistakes. Therefore, even if the union misinterpreted either the merger agreement or the terms of the transfer in 1995, this would not constitute a violation of section 74 without evidence showing that the union’s interpretation was completely unreasonable or untenable. There is no evidence that the union acted in a capricious or frivolous manner, or that it discriminated against the applicants by singling them out. (The allegations of a pattern of discriminatory behaviour by the union against former Local 40 members stand no light on the union’s treatment of these applicants.

18. Seniority is, in principle and practice, of obvious importance. Nevertheless, the Board recognizes, particularly in instances where a union must attempt the often difficult task of harmonizing different seniority lists, that individual interests must sometimes be weighed against the collective interest of the general membership. The union is entitled to consider the interests of the whole membership in its deliberations, as well as its ongoing relationship with the employer. Even if the merger agreement is in fact contrary to the applicants’ individual interests, the union’s decision to enter into and abide by that agreement is not in itself evidence of a violation of section 74.

19. For the foregoing reasons, the Board finds that the responding party did not violate section 74 of the Act.

20. One of the submissions of the responding party is that the entire issue is an internal union matter and the application should not even be considered by the Board. I have some difficulty with this assertion, but having already found that section 74 was not violated, it is not necessary for me to decide the point. I merely add that the union’s refusal to file a grievance is understandable given that the applicants’ issue arises more from the interpretation of an internal union agreement than a collective agreement (although one affects the other). It would have been rather difficult for the union to grieve a seniority placement that accorded with what the union itself had asked for.

21. The application is dismissed.

“Anthony Brown”

for the Board