3373-99-U Paula Weaver, Applicant v. Julius Antal, International Association of Machinists and Aerospace Workers Local Lodge 171; Tony Claroni and Fleet Industries Ltd., Responding Parties.
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Paula Weaver and John Weaver on behalf of the applicant; Stephen Krashsinsk and Julius Antel on behalf of the union; Anthony Claroni on behalf of Fleet Industries.
DECISION OF THE BOARD; July 27, 2000
1The Board held a consultation into this application. At the conclusion of that consultation the Board rendered the following oral ruling:
DECISION
This is an application that the responding party, trade union, has violated section 74 of the Labour Relations Act, 1995 (the "Act").
Section 74 deals with the union's obligation to represent employees fairly.
In order to succeed in this kind of application the applicant must demonstrate that the union has represented her in a manner which is arbitrary, discriminatory or in bad faith. In other words, the applicant must tell the Board what the union did wrong contrary to section 74, and what they should have done instead.
It is important to note that applications under section 74 of the Act are not directed towards the company. The company can be a terrible employer but they cannot violate section 74 of the Act. It is only the union's conduct which is at issue.
In this case I have a great deal of sympathy for the plight facing the applicant. She is out of work through no fault of her own and was forced to file this application to have any chance of getting her job back.
The reason that the applicant is out of work makes the situation even more difficult. In 1988 an arbitrator rendered an award which effectively permitted the company to use employees to work overtime so long as they paid for the privilege. I have serious doubts whether that award was correct, although to be fair the facts before the arbitrator at that time were that there were three occasions during which the employer had violated the collective agreement. It is possible that the arbitrator would have come to a different conclusion had the facts been, as they are now, that the company has an extensive overtime practice even when employees are on lay-off. Regretably, the outcome of that award was that the company and the union understood that the company had the absolute right to schedule overtime as much as it desired so long as it paid employees on lay-off for the privilege. The result of this was that employees like Ms. Weaver, who were on lay-off, stayed on lay-off and it appears may have, at least arguably, lost their seniority rights.
Nevertheless, despite the Board's and the union's concerns about the correctness of the arbitrator's award, it became, as Mr. Krashinsky suggests, part of the collective bargaining climate between the parties. In particular, the award was the basis upon which a number of later collective agreements were settled in the future. I therefore, agree, albeit reluctantly, that the union would have had a very difficult time convincing an arbitrator to come to any other interpretation of the collective agreement.
The difficulty with the application, is that it does not allege, with one exception that I will get to, that the union did anything wrong in this case. In particular, it does not allege that the union's decision to settle the policy grievance was arbitrary, discriminatory or in bad faith. In fact, the applicant says the union was sincere in its efforts.
Even if I assume that the applicant made such an allegation, I have already stated, it would be difficult to argue that the union should have or even could have done anything differently. In any event, nothing in the application or what I have heard today suggests that the union was arbitrary, discriminatory or acted in bad faith.
That leaves the only argument raised by the applicant before me today which is that Ms. Weaver should still be an employee because she was entitled to receive payments while she was on lay-off. The problem here is that argument was not made in the application or at any time prior to the two days' consultation. In addition, the applicant has never filed a grievance to that effect. The Board's Rules require that a responding party is aware of the case it has to meet, by requiring that all allegations be set out in the application. Since this was not done in this case, I am unable to consider these arguments.
Therefore, for all of the reasons I have stated, I must dismiss the application. I reiterate the Board's sympathy with the applicant's situation, but I am unable to find, that the union is responsible for it.
2This decision confirms that ruling.
"Brian McLean"
for the Board