0164-00-U Gord Gottscheu, Applicant v. Society of Energy Professionals, Responding Party v. Ontario Power Generation Inc., Intervenor.
BEFORE: Stephen Raymond, Vice-Chair.
APPEARANCES: Gordon Gottscheu on his own behalf; Victoria Reaume and Andre Kolompar for the respondent; S. Margot Blight and Ivars Starasts for the intervenor.
DECISION OF THE BOARD; October 23, 2000
1This is an application pursuant to section 96 of the Labour Relations Act, 1995 (“the Act”) alleging that the responding party, The Society of Energy Professionals (hereafter “the Society”) has violated section 74 of the Act.
2A consultation was held on October 18, 2000.
Facts
3The applicant, Mr. Gord Gottscheu (hereafter “Mr. Gottscheu”) is an employee of the intervenor, Ontario Power Generation Inc. (hereafter “OPGI”). In October 1998, he accepted a rotational position as an Integrated Improvement Program Work Week Leader (“the rotational position”). A rotational position is a temporary position designed to provide an employee an opportunity to perform a higher-rated position for a period of time to further the employee’s career development. Mr. Gottscheu’s rotational position is within the jurisdiction of the collective bargaining agreement entered into between the Society and OPGI and Mr. Gottscheu paid union dues to the Society.
4The Society and OPGI negotiated an Incentive Pay Plan (“the Plan”). This negotiation occurred during the term of the collective agreement between the parties. The Plan is designed to provide extra compensation to certain members of the bargaining unit if stipulated criteria are met. During the negotiation of the Plan, the Society took the position that all of its members, including those in rotational positions, should be included in the Plan. OPGI disagreed.
5The Plan was negotiated in stages. The first Letter of Understanding was dated October 29, 1999. That letter set out the basic criteria for the Plan. That Letter of Understanding was amended twice – once on October 29, 1999 and again on January 12, 2000. On January 12, 2000, the parties set out criteria for participation in the Plan including that employees in rotational positions would not participate in the Plan.
6Mr. Gottscheu states that sometime between October 29, 1999 and January 12, 2000 he formed the understanding, based on confirmation from one or both of the parties to the Plan, that employees in rotational positions would be included in the Plan.
Issue
7Is there a violation of the trade union’s duty of fair representation when the Society is unable to negotiate coverage in the Plan for employees in rotational positions?
Argument
8Mr. Gottscheu takes the position that the Society has not represented him fairly in that he was not part of the Plan, that he was a dues-paying member of the bargaining unit and, as such, he should have been able to participate in the Plan. Mr. Gottscheu also takes the position that he and other similarly situated employees were included initially in the Plan and that persons in positions such as his were subsequently excluded from the Plan and that the exclusion was arbitrary and discriminatory.
9The Society states that it represented Mr. Gottscheu and other similarly situated employees fairly and that although it was unable to secure the benefit that Mr. Gottscheu desired (inclusion in the Plan) that does not mean that the Society violated its obligation pursuant to section 74 of the Act.
10The Society relies upon Board jurisprudence for the proposition that a trade union does not violate the Act when it secures a benefit on behalf of some, but not all, of its members. In The Corporation of the City of Thunder Bay [1983] OLRB Rep. May 781, the Board stated at page 809,
The fact that a union may be required in bargaining to make a hard decision that has a serious economic impact on individuals, up to and including the loss of their jobs, cannot 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 employees 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. From the earliest decisions interpreting section 68 of the Act the Board has recognized the need for unions to have the latitude to make decisions that may favour certain employees at the expense of others. …
11The Society states that there is no difference between its duty to employees in negotiating a collective agreement and its duty to employees when negotiating a letter of understanding relating to Incentive Pay during the currency of a collective agreement. In either case, it may have to give something up for one group of workers in order to secure a benefit for other members.
12OPGI states that the Society has not violated the Act. It states that there are many employees in the same position as Mr. Gottscheu and that it took the position in the negotiation of the Plan that employees in rotational positions would not be eligible to participate in the Plan. OPGI disputes the fact that Mr. Gottscheu was covered by the Plan and then negotiated out of the Plan. It says that inclusion in the Plan was not determined until the Letter of Understanding on January 12, 2000 was finalized.
Decision
13Mr. Gottscheu has not set out in his application any facts which would support a finding that the Society has violated the Act. The allegation against the Society is that it secured the benefit of Plan participation for some, but not all, members of the bargaining unit. The Society tried to obtain the agreement of OPGI that all members of the bargaining unit would participate in the Plan. It was unable to do so. When a trade union fails to secure an employment benefit on behalf of some of its members, it does not violate its duty of fair representation. There must be more to the facts than a bald allegation that if the trade union was able to negotiate the benefit for some of its members then it should have negotiated it for all of its members. Here there is nothing more than that bald allegation. While it may, indeed, have been troubling for Mr. Gottscheu to understand that he was covered by the Plan only to find that he was not covered, I find that the parties did not clarify which the employees were covered by the Plan until January 12, 2000.
14Without an allegation that the exclusion of the employees in rotational position was motivated by some arbitrary, discriminatory or bad faith motive, there can be no violation of the Act.
15The Board orally dismissed this application at the conclusion of the consultation. That ruling is hereby affirmed.
“Stephen Raymond”
for the Board