Ontario Labour Relations Board
File No.: 0299-00-U Date: December 13, 2000
Between: Michele Mauro, Applicant v. Teamsters Canada, Local Union No. 230, Responding Party v. Innocon Inc., Intervenor.
Before: Patrick Kelly, Vice-Chair.
Appearances: Michele Mauro, Rosa Mauro and Maria Mauro appeared on behalf of the applicant; J. David Watson, Ron Burns and Frank Marrano appeared on behalf of the responding party; Erin R. Kuzz and John Wray appeared on behalf of the intervenor.
DECISION OF THE BOARD
1This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (“the Act”), alleging a violation of section 74 of the Act.
2Section 74 of the Act states:
- 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.
3This matter proceeded by way of consultation on November 8, 2000.
4There were two preliminary issues raised at the outset of the consultation. Innocon Inc. (“the company”) objected to being named as a responding party in an application of this kind, and requested that it be struck as a responding party and listed as an intervenor. The Board agreed with that position, pointing out that an employer cannot be found in violation of section 74. Accordingly, the style of cause is amended by adding the company as an intervenor and deleting the company as a responding party.
5The second preliminary matter concerned the applicant’s objection to the filing on November 2, 2000 of an amended response by the responding party (“the union”) and materials in support of that response. The applicant (also referred to as “Mr. Mauro”) stated that the union’s attempts to file the amended response and materials violated the Board’s Rules of Procedure. In response to the Board’s query regarding any resulting prejudice to the applicant, the applicant’s representative referred to the applicant’s “language barrier”, and claimed the applicant’s inability to comprehend the materials as the basis upon which the Board should refuse to allow the late filing. The Board declined to do so. The amended response contained minor changes, and the materials filed in support were not overly voluminous or complicated. The applicant has demonstrated that, regardless of his command of English, he has been able to respond to the union’s initial response, and to the Board’s prior decisions (of May 19, 2000 and June 7, 2000) in this matter directing him to respond to a number of the union’s allegations. The applicant was unable to show that he would be prejudiced by the union’s recent filings. Consequently, the Board permitted the union to rely upon the November 2, 2000 amended response and materials in support.
The Facts
6With the assistance of the Board, the parties to this matter agreed that a number of material facts were either agreed or not in dispute. These are set out below.
7The applicant was employed as a mechanic with the company. He was a member of the bargaining unit for which the union held bargaining rights. The applicant had been provided with a copy of the applicable collective agreement and understood its significance.
8The applicant was retired in July of 1999 pursuant to the company’s practice of retirement at age 65. The applicant was aware of that practice when he turned aged 65 on July 21, 1999. Subsequently, he received a pension from the company, some or all of which ended up in a locked-in RRSP. He claimed that prior to reaching age 65, he contacted his union about eligibility for a severance package or employment beyond age 65, but that the union’s response was inadequate, and did not address his concerns. The application contains no information concerning the specifics of the pre-retirement contact with the union, and no further particulars were offered at the consultation. Counsel for the union stated that the union had no knowledge of any such contact. The applicant failed to make any attempt to satisfy the Board that there was specific pre-retirement contact between the applicant and the union for the purpose of dealing with his concerns about retirement. I therefore decline to make any finding on this point in favour of the applicant’s position.
9What is clearly not in dispute is that the applicant met with the union on November 8, 1999. At the meeting, Mr. Mauro let it be known that he wanted and needed to return to work. The matter was left with the union. It claims that it made inquiries of the bank holding Mr. Mauro’s RRSP to see if there was any possibility of some relief in the form of cash flow for the applicant. Mr. Mauro disputes that allegation. He does not dispute, however, that the union contacted a representative of the company to inquire about possible contract work for Mr. Mauro. He also did not dispute the union’s claim that one of its representatives, Mr. John Burt, tried to find other sources of employment for Mr. Mauro through the intervention of Mr. Burt’s personal friend.
10Mr. Mauro and Mr. Burt met on March 21, 2000 at which time the applicant’s concerns about continued employment with the company and severance pay were discussed. Again, the matter was left with the union for follow-up. On March 27, 2000 Mr. Burt telephoned Mr. Mauro and informed him of discussions he had had with the union’s lawyer concerning Mr. Mauro’s concerns about being forced to retire at age 65. Mr. Burt also spoke about a legal article he had received from the lawyer on the subject of mandatory retirement. That article, and the facsimile page bearing the lawyer's letterhead were filed with the Board. The applicant did not dispute the union’s version of events as set out in this paragraph, but did claim that the union should have provided the applicant with a copy of the article at or around the time of the March 27 discussion. In any event, the outcome of the March 27 conversation was that the union declined to take any further action on Mr. Mauro’s concerns as a result of the legal advice it had obtained.
11There have been two instances in which the company has maintained a relationship with bargaining unit employees after they reached age 65. In both cases, the employees in question retired in the usual manner at age 65, ending their employment. They then set up their own businesses and obtained contracts for service with the company. One of the employees obtained only one such opportunity, while the other was more fortunate and enjoyed the benefit of several such contracts.
Decision
12The applicant has failed to establish that the union violated section 74 of the Act. At no time did the applicant demand that a grievance be filed on his behalf. The applicant’s representative argued that the union had an obligation to advise Mr. Mauro of his right to file a grievance. That presupposes that the union knew Mr. Mauro felt aggrieved by the time his employment came to an end. The applicant did not attempt to establish that fact. Even if it had been established that Mr. Mauro felt aggrieved, it does not necessarily follow that the union had to advise the applicant of the grievance option. That is due in part at least to the fact that the applicant did not identify the basis under which the collective agreement had been allegedly breached. Nor did he establish that basis in this application.
13By his own admission, the applicant had a copy of the collective agreement, which contains a comprehensive grievance procedure, and he knew of the company’s long-standing practice of retiring employees at age 65. During the consultation, the applicant’s representative suggested that the applicant’s difficulty with English should be taken into account in determining whether the union had a higher obligation to him. That assertion was never previously pleaded, but in any event, if Mr. Mauro had wanted to raise concerns with the union about his understanding of the collective agreement or the company’s policies, he could have done that through the intervention of the union representative, Mr. Frank Marrano, who shared his first language. The union cannot be expected to speculate about members’ concerns if those concerns are not voiced, whatever the first language of the complainant.
14Not only did the union not engage in conduct that was arbitrary, discriminatory or in bad faith, it made more than reasonable efforts in all the circumstances to assist the applicant. The union met with Mr. Mauro on at least two occasions. Its representative made informal attempts to find the applicant alternative employment. The union sought legal advice concerning the applicant’s complaint of forced retirement, although it would appear that there was no obligation to do so. That legal advice confirmed what the union had thought to be the case i.e. that Mr. Mauro’s complaint had no basis for success.
15For all these reasons, the application is dismissed.
“Patrick Kelly”
for the Board