2700-99-U Lyle E. Junkin, Applicant v. Canadian Union of Public Employees, Local 576 (CUPE 4000 Unit #1), Responding Party v. The Ottawa Hospital, Civic Campus, Intervenor.
BEFORE: Marilyn Silverman, Vice-Chair.
APPEARANCES: Lyle E. Junkin, the applicant on his own behalf; Mark Gallina, Jean‑Marc Bézaire, Wim Berst and Bruce Waller for the responding party; J. D. Sharp, Rob Jones and Jean-Francois Brunelle for the intervenor.
DECISION OF THE BOARD; July 17, 2000
This is an application filed under section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1 ('the Act') alleging a breach of section 74 of the Act.
The matter was heard in consultation on July 5, 2000. At the outset of the consultation, counsel for The Ottawa Hospital, Civic Campus (the “employer”) advised the Board that the factual basis for the application concerned the applicant’s contention that he should have received a certain position in preference to an employee who was successful in obtaining the position. Counsel for the employer advised the Board that the successful candidate for the posting, Richard Pilon (“Mr. Pilon”), was not in attendance at the hearing nor had he been given notice. Counsel for the Canadian Union of Public Employees, Local 576 (the “union”) advised the Board that Mr. Pilon had been notified of the hearing by it and produced a letter from the union to that effect. The letter was not drafted as a notice but rather in the form of notification that the union may need Mr. Pilon to attend on their behalf.
All parties agreed that they were prepared to have the matter continue without the attendance of Mr. Pilon. Although the letter forwarded by the union to Mr. Pilon does not constitute notice, I advised the parties that I would hold the consultation hearing in the absence of Mr. Pilon and that if his rights may in fact be affected in this decision we would reconvene on proper notice to him.
The facts are largely undisputed. The applicant, Lyle E. Junkin (“Mr. Junkin”) filed this application as a result of an agreement made between the union and the employer to reinstate the seniority of another employee, Mr. Pilon.
In July 1998 Mr. Pilon requested a leave of absence from the employer to accompany his wife to British Columbia to attend to a sick relative. The employer refused the leave on the basis of its interpretation of the leave of absence provisions of the collective agreement. Mr. Pilon resigned in August 1998 and left for 6 months. He returned in February 1999 and requested his job back. The union advanced the position that the leave of absence should not have been denied in the first place and that the refusal to grant the leave was in violation of the collective agreement. While both the employer and the union maintained their positions with respect to the interpretation of the leave provisions of the collective agreement they did enter into an oral agreement to credit Mr. Pilon his pre-leave seniority as though he had not resigned. The employer’s reason for doing this was not provided nor does it bear on a determination of this matter. The union’s motivation was that it was their position that Mr. Pilon should have been granted the leave of absence originally and so the resolution reached between it and the employer (apart from some issues regarding service credit) satisfied their concerns. Unfortunately this agreement placed Mr. Junkin in a position where Mr. Pilon was more senior to him and therefore was successful over him in a job competition in October 1999.
The union filed a grievance on Mr. Junkin’s behalf but withdrew it. The union asserts that it could not both abide by the agreement it made in restoring Mr. Pilon’s seniority and at the same time process a grievance on behalf of Mr. Junkin not being given the posted job. The two positions were inconsistent and the union felt that the agreement regarding Mr. Pilon would form a complete defence to Mr. Junkin’s grievance.
Mr. Junkin asserts that this action deprived him of the seniority standing which would have allowed him to succeed over Mr. Pilon in respect of the job posting for the position of transportation worker. Mr. Junkin contends that Article 9.03 of the collective agreement states that an employee loses all seniority rights once he or she resigns. The collective agreement is clear on this and it is not disputed by the parties. There is also no dispute that Mr. Pilon’s seniority was greater than Mr. Junkin’s once Mr. Pilon’s seniority was restored. There is equally no dispute that Mr. Junkin’s seniority is greater if Mr. Pilon’s seniority status had not been restored pursuant to the agreement between the union and the company.
The union’s position is that it entered into an agreement with the employer to restore the seniority of Mr. Pilon and that agreement was entered into with authority and in good faith. As such it could not amount to a violation of section 74 of the Act as it was not made in a manner that was discriminatory, arbitrary or in bad faith. Essentially, the union’s position is that although the agreement regarding Mr. Pilon had an undesirable effect in respect of Mr. Junkin, these are the decisions that a union sometimes must make.
Mr. Junkin also alleges that the union violated section 74 by not bringing his position to a general membership meeting as he requested. Although this request occurred after the filing of the section 74 the union did respond to it at the hearing. The union contends that Mr. Junkin’s situation and his request were considered at the union’s executive council meeting. The decision was taken at that meeting (and the minutes of the meeting bears this out) that the issue would be raised at the next general membership meeting. The minutes also indicate that if there were no quorum at the general membership meeting the decision of the executive would be final. That is what did occur at the next general membership meeting with the result that Mr. Junkin’s case was not dealt with any further by the union.
Mr. Junkin also asserts that the union representative he spoke to was inconsistent with respect to the union’s position in this matter. He also questions the veracity of the reason provided by Mr. Pilon for having to resign.
Having heard the submissions of the parties, I am of the view that the union’s actions do not violate section 74 of the Act as they do not fall within the category of conduct that is arbitrary, discriminatory or in bad faith. Section 74 provides as follows:
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 union’s conduct did have an undesirable consequence for Mr. Junkin. That is unfortunate and it is clear why he feels that the deal entered into by the union to restore Mr. Pilon’s seniority was not made in his interest. But that does not render that decision a violation of section 74. The union did what it thought was right in having Mr. Pilon placed in the position he would have been placed had the employer granted the leave of absence. This was consistent with the union’s stated position that the leave should have been granted to Mr. Pilon to begin with. That seemed a just and fair approach to the union at the time. It does not appear to me to be the wrong decision but even if it were wrong, it was not made in a manner that was arbitrary, discriminatory or in bad faith in relation to Mr. Junkin. The fact that Mr. Junkin would like the union’s decision to have been different does not in this case render the union’s decision a violation of section 74.
With regard to the allegation that the matter was not properly brought before the general membership meeting I find that the union’s actions did not violate the Act in any way. Its minutes bear out a reasonable approach and method to deal with the matter.
This application is dismissed.
“Marilyn Silverman”
for the Board