1008-00-U Local 375 of the United Brewers Warehousing Workers and the following individuals Tom Horsley, Karen Gores, Jim Hoffman, Dennis Porteous, Gerry Cook, Alan Eaglesham, Jim Elliot, Dave Anderson , Applicants v. United Brewers Warehousing Workers’ Provincial Board, United Food and Commercial Workers International Union , Responding Party v. Brewers Retail Inc, Intervenor.
BEFORE: Timothy W. Sargeant, Vice-Chair.
APPEARANCES: W. A. Harrison for the applicant; Cynthia Watson and John Montgomery for the responding party; Dirk Van de Kamer for the intervenor.
DECISION OF THE BOARD; November 28, 2000
This is an application brought pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging that the responding party has breached section 74 of the Act.
Brewers Retail Inc, (the “employer”) is engaged in the sale and distribution of beer and beer related merchandise throughout the Province of Ontario. There has been a long established relationship with the responding party (the “union”) for approximately fifty years.
The union represents approximately 5500 employees in the bargaining unit, for basically employees employed at the employer’s distribution centres and retail stores in Ontario.
The current collective agreement was effective April 19, 1999 and runs to December 31, 2001.
One of the issues discussed in negotiations leading up to the current collective agreement was the employer’s concern with the consolidation of its operations, so that it would be better able to compete in the market place.
As part of the negotiations the parties agreed to the following letter that is contained within the collective agreement.
For regular employees who are affected by consolidation(s), the company is prepared to do the following:
Voluntary severance of 2.5 week per year of service to a maximum of 50 weeks reduced by 3.% per month for every month over the age of 63, will be offered to those regular employees in areas that are affected by distribution centre consolidation. Six months after the consolidation is complete, employees will have a period of two months to elect voluntary severance. Voluntary severance opportunities will be limited to the number of employees not accommodate in numbers 2, 3, and 4 below.
Full time positions that remain in such an area will be offered to the remaining effected regular employees on a seniority basis.
Full time vacancies that exist or are created in the new, consolidated distribution centre will be offered to the remaining affected employees on a seniority basis.
Transfers to full time vacancies outside the area of the affected employees and outside the consolidated distribution centre will be offered to the remaining affected regular employees on a seniority basis.
Those remaining affected regular employees who do not have fill time positions after implementation of steps 1 through 4, will be offered work on the basis of 40 hours over six days including split shifts in their area, including in retail stores, in order to access 40 hours in a week.
When a vacancy occurs in an area that was affected by consolidation, an employee originally employed in that area, who transferred to another area under these conditions, will be offered a transfer back to the declared vacancy according to seniority, for the duration of this agreement.
Postings for classified jobs in the new distribution centre will not be completed until the consolidation is complete.
The transferring employee will retain his/her existing seniority on the seniority list of the area to which he/she has been transferred.
The company and the union agree to have ongoing dialogue with the designated committees to handle items of concern to either party.
It is understood that this letter shall form part of the Collective Agreement.
In around January 1998, the first consolidation had been announced. The letter of January 21, 1999 was the resulting agreement of the parties as to how to deal with employees affected by the consolidation. The position of the Provincial Board of the Union going into negotiations had been that there should be a dovetailing of seniority and that positions should be offered on a seniority basis vis-à-vis the locations to be consolidated.
To manage the integration of employees effected by any consolidation and the implementation of the March 21, 1999 letter, as the positions available would arise at different times (i.e. be staggered), the employer and the union agreed on a balloting system which in their view would have the effect of dovetailing seniority. Every potentially affected employee received a ballot wherein they could identify their choices and prioritize as between the available positions and locations.
This complaint is brought by employees in Brampton. In their view the balloting system allowed employees from other locations, in this case especially employees from the Oakville location, to transfer to the Brampton location and affect the seniority of employees located at the Brampton location. In the applicants view such procedure was contrary to both the collective agreement provisions and the letter of March 21, 1999.
The applicants are of the view that the affected employees ought to have been transferred to the Brampton location based on least seniority first. In other words the employees at Oakville first should have bumped more junior employees at Oakville, so that the most junior employees at Oakville would have then been moved to Brampton and offered positions according to their seniority.
The employees at Brampton filed approximately eight individual grievances and one policy grievance relating to this issue. The employer denied these grievances and the Provincial Board Executive declined to pursue the matter to arbitration. In the Provincial Board’s view, after obtaining a legal opinion, pursuing a grievance to arbitration would fly in the face of the negotiated agreement between the parties. Further the Provincial Board felt it should not pursue an arbitration which in its view would undermine the overall seniority rights of its membership.
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 this situation the union was faced with a difficult decision as to the method of integrating employees into different locations who were affected by a consolidation. No matter which method it choose, some employees would be understandably upset. Though understanding the disappointment of the applicants, the Board will not interfere or second guess a decision of a union in such instance, unless it is convinced that the Union had been arbitrary, discriminatory or acted in bad faith. As the Board has stated in Dufferin Aggregates [1982] OLRB Rep. Jan 35 at page 39:
“The fact that a union may be required in bargaining to make a hard decision that has serious economic impact on individuals, up to and including the loss of their jobs, cannot in and of itself make that decision unlawful. That kind of decision is, moreover, not unusual. In making collective agreements it is practically impossible for the unions to avoid making decisions that benefit one class of employee at the expense of another. For example when a union opts for more wages rather than better pension provisions it benefits its younger members rather than the older ones. Trade-offs of that kind are the everyday stuff of collective bargaining… There is nothing inherently unlawful in a union making a decision that favours a group of employees over another.”
In this instance the Board does not find that the responding party’s interpretation of the collective agreement is unreasonable. Given the facts as pleaded, there is nothing pleaded which would lead the Board to conclude the applicant has a reasonable chance of success. The pleadings just do not establish that the union has acted arbitrarily, discriminatorily or in bad faith as those terms have been interpreted by the Board
The Board has a discretion under section 96 as to whether to consider
an application and as to whether it proceeds to hearing. The act specifically relieves the Board of the requirement to hold a hearing where it is alleged that section 74 of the Act has been breached.
- Accordingly in the circumstances the Board exercises its discretion and dismisses the complaint
“Timothy W. Sargeant”
for the Board