0279-00-U Angelo Oddi, Applicant v. I.C.P. Workers Independent Union, Responding Party v. International Comfort Products Corporation (Canada), Intervenor.
0543-00-U George Aitchison, Applicant v. I.C.P. Workers Independent Union, Responding Party v. International Comfort Products Corporation (Canada), Intervenor.
BEFORE: Brian McLean, Vice-Chair.
DECISION OF THE BOARD; November 6, 2000
These two applications are applications under section 96 of the Labour Relations Act, 1995 (the “Act”) in which it is alleged that the responding party trade union (the “union”) has violated section 74 of the Act.
The responding party has requested that the Board dismiss these applications without a hearing or consultation because they do not disclose a prima facie breach of the Act. This decision deals with the responding party’s request.
The applicants were employees of the intervenor International Comfort Products Corporation (Canada) (the “company”). They are represented in their employment relationship with the company by the union.
The facts which gave rise to these applications are not in dispute. The company once employed several hundred employees. However, by 1998 the company only employed approximately 10 employees who were actively at work. The company also employed a number of employees who were on leave. The applicants have been employed with the company for many years. However, both of the applicants were injured in a work-related incident and have been off work for many years. In particular, Mr. Oddi was injured at work and has been in receipt of Workers Compensation benefits since February 12, 1990. Mr. Aitchison has been off work and in receipt of Workers Compensation benefits since 1989.
There is no suggestion by either of the applicants that they could ever return to work even if work were available for them to do, which as we shall see, it is not.
On February 8, 2000 the company terminated the employment of the two applicants and 9 other employees who had been in receipt of disability or Workers Compensation benefits for a lengthy time. The company advised the employees that their employment had been terminated because of “frustration of contract” arising out of their lengthy absence from work with no prospect of return.
The union filed grievances on behalf of all of the employees. The union is a small union with very limited resources and accordingly, it sought legal advice regarding its chances of success if it were to proceed to arbitration with the grievances. Counsel provided a lengthy opinion letter (which is before the Board and was provided to the applicants at the time) which gave the union a less than 50% chance of succeeding at arbitration. However, counsel specifically advised the union that it was not considering whether certain arguments, discussed more fully below, could be successful.
The union circulated the opinion to the employees, including the applicants. There was some suggestion that counsel had missed a letter of understanding which arguably applied. The union contacted counsel and asked whether the existence of the letter of understanding changed his views. He said it did not, because in his view, it did not apply.
Based on the legal advice, the union decided not to proceed to arbitration with the grievances. However, rather than just withdraw the grievances, the union went to the company and asked for greater group health protection for the affected employees. Eventually, the company and the union settled the grievances on the basis that the company would continue most benefit coverage until March 1, 2000 and drug benefits until August 2000.
The applicants were dissatisfied with the resolution. The applicants commenced these applications in April and May 2000. The applicants’ dissatisfaction was heightened when the company, as had been rumoured for some time, advised the union and the employees on July 27, 2000 that the company would be closing its operations entirely effective November 30, 2000. The applicants believe that their employment was terminated so that the company could avoid paying them severance pay.
Decision
Section 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.
In their original applications, the applicants cite no reason why the union’s conduct violated section 74 of the Act. However, subsequently, in their material filed in opposition to the union’s motion that these applications be dismissed without a hearing, the applicants’ position has been made clearer.
The applicants are obviously dissatisfied with the union’s decision to settle their grievances. However, dissatisfaction is not enough. The applicants must allege conduct which, if found to be true, would be arbitrary, discriminatory or in bad faith. The Board has, on many occasions, considered an allegation that a union’s decision not to proceed with a grievance violates section 74 of the Act. For example, in Catherine Syme, [1983] OLRB Rep. May 775, the Board stated at paragraph 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.
The applicants say, in effect, that the union was arbitrary because it did not consider arguments open to it when it made its decision to settle the grievances. In particular, counsel’s opinion letter specifically stated that it did not consider the merits of the individual employee cases, whether there might be arguments under the Workers Compensation Act or the Ontario Human Rights Code which might apply, or finally, any argument based on estoppel.
With the exception of the estoppel argument, there is no suggestion by the applicants that had the union sought legal advice regarding those arguments it would have come to any different result. This is not surprising since there appears to be nothing in either of those statutes which requires that an employer keep employees on its rolls when there is no prospect of them ever returning to work. In saying this, I do note, however, that at the time the union made its decision not to proceed, it was unaware for certain that the company would be closing its operations.
That leaves the applicants’ argument that the union’s decision not to investigate an estoppel argument was arbitrary, discriminatory or in bad faith. The applicants’ position is supported by a statement made by the past president of the union, Alfredo Vulcano, which was filed with the Board. In that statement, Mr. Vulcano first asserts that the union was not following the proper grievance procedure. In my view, this is not relevant since there is not, and could not be, any suggestion that any alleged failure to further the grievance procedure properly prejudiced the rights of the applicants. However, Mr. Vulcano also asserts that at the 1996 negotiation for a renewal collective agreement “the executive [union] was concerned about the policy pertaining to people on disability leave as it applied to Great West Life”, (i.e. they were cutting them off). Mr. Vulcano goes on to assert that “the company agreed not to “go after any of these people on disability leave”.
One of the difficulties with the applicants’ position is that even by Mr. Vulcano’s statement, the discussions at negotiations surrounded employees on long-term disability under Great West Life and the fact that they were being cut off, presumably from receiving benefits. There appears to be no such discussion surrounding employees on Workers Compensation benefits.
More importantly, there is no suggestion in the application regarding when these efforts were made by Mr. Vulcano. Rule 38 of the Board’s Rules of Procedure require that an applicant allege when and where alleged improper conduct is said to have occurred. Even so, it is apparent from Mr. Vulcano’s statement that the union meeting must have taken place in May at the earliest, after the union and the company had settled the applicants’ grievances.
The Board appreciates the anxiety felt by the applicants at having perhaps (and I emphasize the word “perhaps”, it not being at all clear that the applicants have lost anything, besides maybe a few months of benefit coverage) lost a right to some payment on the termination of their employment. However, it is apparent from the undisputed facts in all of the statements filed that the union carefully considered the merits of the applicants’ grievances and settled the applicants’ grievances after obtaining legal advice. Those settlements were based on all the information available to it at the time, and there was accordingly nothing improper about its actions. The fact that the applicants have new information after the settlement, including the fact that the plant is closing, cannot have been considered by the union. Moreover, the applicants had an opportunity to raise the issues which they raised in their application, but they never did so prior to the grievances being settled.
For all of the foregoing reasons, these applications are dismissed.
“Brian McLean”
for the Board