0282-00-U Kimberly Ann Partridge, Applicant v. International Brotherhood of Teamsters, Local 647, Responding Party v. Nestlé Canada Inc., Intervenor.

BEFORE: Timothy W. Sargeant, Vice-Chair.

APPEARANCES: Karry Brooks for the applicant; Mike McCleary for the responding party; John Saunders for the intervenor.

DECISION OF THE BOARD; October 20, 2000

1This is an application brought pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) that the responding party has breached sections 74 and 79(8) of the Act.

2A consultation hearing was scheduled for October 5, 2000. It was evident the parties could not settle their differences, and as a result a hearing on the merits ensued.

3From the evidence presented and argued it is evident that there were two issues of concern:

(a) the handling of a grievance of the applicant by the union. Such grievance was dated September 26, 1999 and filed on behalf of Ms. Kim Partridge;

(b) the conduct of the union at a ratification meeting held on March 27, 1999.

4The issue in both matters concerned seasonal employees. Pursuant to the collective agreement signed on March 27, 1999 there are three types of employees: 1) full-time; 2) part-time and 3) seasonal. The recognition clause of this collective agreement excludes “Seasonal employees engaged during the Peak Production Period”.

5There is no issue that Ms. Partridge was a seasonal employee employed during the Peak Production Period. Further the collective agreement provides that “Full-time and Part-time Employees shall only have access to the grievance procedure after they have served the appropriate probationary period”.

6Prior to the negotiation of the last collective agreement signed in March 27, 1999, there had been different provisions in the collective agreement regarding seasonal employees.

7Ms. Partridge had commenced work as a seasonal employee in mid February of 1999. She was let go at the end of August 1999. It was during the last set of negotiations which concluded on March 27, 1999 that not only had the terms and conditions regarding seasonal employees been amended, but also that the rate of pay to seasonal employees working in the Peak Period had been substantially reduced.

8Though Ms. Partridge does not contest that she was let go at the end of August, she wished to obtain full-time or part-time employment with the employer. She was upset when individuals with what she alleged had less seniority were recalled prior to her for such work opportunities. This had led to the grievance dated September 26, 1999.

9The grievance itself was initially denied by the union steward as not being a valid grievance. Ms. Partridge was not happy with this answer and took the matter to the executive board of the union. The executive board considered the matter on October 19, 1999 and told Mr. Cerqua the business agent of Local 647 to investigate the grievance. Mr. Cerqua reviewed the grievance, reviewed the collective agreement, talked to the stewart who had initially denied the grievance and referred to Brown & Beatty. He concluded that there was not a lot of merit in the grievance but that it should be processed. The company denied the grievance of November 11, 1999. By letter to the company the union processed the grievance to the third step. At a third step meeting with the company on December 15, 1999 the grievance was discussed. The employer took the position that seasonal employees had no right to grieve and had no seniority rights. By letter dated December 15, 1999 the employer denied the grievance. Mr. Cerqua sought a verbal legal opinion and was advised that the chances for success of this grievance were very limited. This opinion was later verified in writing dated February 2, 2000. By letter dated December 21, 1999 to the company, the union withdrew the grievance. On February 16, 2000 written notification was sent to Ms. Partridge from the union that the “union has decided not to proceed any further with the above noted grievance”.

10It was Ms. Partridge’s evidence that the union had not communicated with her of the steps it was taking after she had brought the matter to the executive board. According to her testimony she did not know that the union has processed the grievance and that it had proceeded to a third step. She had not been notified of the third step meeting; in fact she had no communication from the union after she had brought the matter to the executive board until receiving the letter dated February 16, 2000.

11In relation to the ratification meeting held on March 27, 2000 Ms. Partridge had been upset that seasonal employees had difficulty in entering the meeting. The ratification meeting had obviously been a boisterous meeting, with the chair of the meeting eventually calling a vote. The vote had been 163 in favour of ratification, 82 against with four spoiled ballots. Ms. Partridge’s concern, supported by Ms. Brooks was that the changes in the provisions to seasonal employees in the proposed collective agreement had not been adequately explained; or in the alternative that misleading statements had been made and that the seasonal employees had not been given a fair opportunity to vote on the contract.

12It was clear from the evidence that at the meeting the union was concerned that only employees be allowed to vote. There were many new employees that were not known to the union stewards or officials. In these circumstances the union allowed people into the meeting who could meet one of the following criteria:

(a) be on the check-off list provided by the employer;

(b) be on the telephone list of employees with SIN numbers that the union had compiled based on the available information it had;

(c) having a union card;

(d) having a pay stub, and

(e) being personally known by a union steward or official.

These criteria applied to all employees whether full-time, part-time or seasonal.

13It is conceded that the union never communicated that such criteria would apply prior to the date of the meeting. As a result a long line formed as credentials were checked. If an individual could not meet such criteria, he/she was informed, as there was a lengthy delay, that such individual could go home and return with the necessary documentation. In fact the meeting scheduled to start at 9:00 a.m. did not start until 11:00 a.m. It appears that in any event six seasonal individuals did get into the meeting who did not present appropriate criteria. These six seasonal individuals were allowed to participate in the discussion but not allowed to vote. Seasonal employees such as Ms Partridge (who had her pay stub), her husband (who originally was denied entrance, but returned with a pay stub) and others who met the criteria were allowed into the meeting, allowed to fully participate and allowed to vote.

14Based on the testimony presented, there was only evidence of one instance of one seasonal employee who had been denied entrance and who had not returned. There was no evidence of any other seasonal employee being denied entrance to the meeting or being denied the right to participate in the meeting.

15Ms. Partridge and Ms. Karry both felt that questions concerning the proposed agreement had not been answered and that the meeting had been rushed. Ms. Karry had even spoken to the Chairperson that as a result she was “going to take it to the Labour Board”. She was told “do what you have to do”. In fact Ms. Karry never did raise a complaint with the Board.

Decision

16I propose to deal first with the complaint that the union has breached section 74 of the Act.

17Section 74 of the Act states:

74. 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.

18In order to establish that a union has contravened section 74 of the Act, an applicant must demonstrate that the union’s actions are:

1. “arbitrary” – that is, flagrant, capricious, totally unreasonable, or grossly negligent [see, for example, I.T.E. Industries Limited, [1980] OLRB Rep. July 1001]; or

2. discriminatory” – that is, based on invidious distinctions without reasonable justification or labour relations rationale; or

3. “in bad faith” – that is motivated by ill-will, malice, hostility or dishonesty.

In assessing a complaint, the Board considers whether the actions of the union fall into one of these three categories. Mistakes or misjudgements by the union are not illegal under the Act. Further, the fact that a grievance does not go to arbitration does not, in itself, establish any arguable breach of the Act.

19The Board will not interfere or second guess a decision of a union unless it is convinced that the union has been arbitrary, discriminatory or acted in bad faith.

20While one can readily understand the frustration of the applicant in this instance given the new terms and conditions for seasonal employees, the evidence is clear that the union processed her grievance to the third step even though it thought it was a weak grievance. The interpretation of the collective agreement by the union is a reasonable interpretation given the language of the relevant sections of the collective agreement. While the union may have in an ideal world communicated more fully with the applicant, the evidence in this instance just does not establish that the union’s actions were in any way arbitrary, discriminatory or in bad faith within the meaning of section 74 of the Act.

21In relation to the application brought pursuant to section 79(8) of the Act, without commenting on the criteria established by the union, the evidence just does not establish a breach of this section.

22Section 79(8) of the Act states:

79. (8) All employees in a bargaining unit, whether or not the employees are members of the trade union or of any constituent union of a council of trade unions, shall be entitled to participate in a strike vote or a vote to ratify a proposed collective agreement or memorandum of settlement.

23In this instance there is only evidence of a possible single individual who did not return to the ratification meeting after initially being denied entrance. There is no evidence by that individual as to whether or not such individual was ultimately denied any opportunity to vote. The overwhelming evidence is that individuals were allowed to vote at the meeting. There just is not any direct evidence of any employee being denied an opportunity to vote, having requested the opportunity to vote. Though six individuals were denied an opportunity to vote, the Board did not hear form such individuals. There is no evidence that they were in fact employees or that they had requested an opportunity to vote and been denied. Further the Board is not persuaded by the evidence that a full discussion of the issues did not take place at the ratification meeting. At some point it is understandable that the Chair would vote for a call on the contract. The Board, therefore, finds on the evidence presented that no breach of the Act occurred at the ratification meeting.

24In the circumstances the board is not prepared to find a breach of section 79(8) of the Act.

25For all the above reasons this application is dismissed.

“Timothy W. Sargeant”

for the Board