3395-99-U Roy K. Windsor, Applicant v. Ottawa Newspaper Guild, Responding Party v. Ottawa Citizen, Intervenor.
BEFORE: Anthony Brown, Vice-Chair.
APPEARANCES: Roy Windsor and Tom Windsor for the applicant; Dougald Brown and Lois Kirkup for the responding party; Mile Komlen and Linda Ruhl for the intervenor.
DECISION OF THE BOARD; May 3, 2001
1This is an application pursuant to section 96 of the Labour Relations Act, 1995 ("the Act") alleging violation of section 74.
2The alleged violations of section 74 pertain to the failure of the responding party (“the union” or “the Guild”) to proceed with the applicant's grievances and with respect to the union’s treatment of part-time district supervisors as "second class citizens" compared to full-time district supervisors.
Factual Background
3The material facts are straightforward and mostly undisputed.
4The applicant was employed by the intervenor, the Ottawa Citizen ("the Citizen") from August, 31, 1988 to December 12, 1999 as a part-time District Supervisor to supervise newspaper carriers. As a part-time supervisor, he worked only when scheduled or called in, and he was not guaranteed work. He was paid an hourly rate of $29.83 based on the salary paid to full-time supervisors.
5The responding party states that the Citizen had been steadily reducing the hours of part-time supervisors. When the Guild and the Citizen were negotiating a renewal of their collective agreement for the term July 21, 1997 to July 20, 2000, the Citizen proposed that part-time supervisors be reclassified from "C3" to a new classification of assistant part-time supervisor "C2" at a substantially lower hourly rate of $22.84 per hour.
6During the course of collective negotiations, this item was agreed to by the parties and ultimately ratified by the general membership. The Guild states that it was concerned that the part-time positions would disappear altogether, as eventually did happen in 1999. The part-time supervisors were given the choice of applying for positions at the new classification or resigning with severance pay under the collective agreement. The Guild subsequently convinced the Citizen to allow up to one year (to January 1, 1999) for the affected employees to make their choice, and those failing to accept a position at the lower classification were able to stay on at their old classification on the understanding that this may have a negative effect on severance entitlement. The applicant did not make his choice within the notice period stipulated; however, the Guild won him more time to elect. On December 28, 1998, the applicant elected not to resign.
7In the fall of 1999, the Citizen announced that district supervisors' jobs would be contracted-out in the Ottawa Metro area. The union grieved and warned the employer of a potential unfair labour practice complaint under the Act. Ultimately, the Citizen and Guild negotiated a memorandum of understanding about the contracting-out issue. Some full-time supervisors with seniority back to 1990 had been protected by a long-standing "no lay off" clause, and this gave the union some leverage to negotiate enhanced severance benefits for full-timers. However, part-time supervisors had no guarantee of work and were not protected against lay-off, and the Citizen did not agree to the union's request to offer them enhanced severance benefits.
8On November 26, 1999, the applicant submitted his letter of resignation effective December 12, 1999, and was given severance pay.
9In December 1999, the applicant attempted to have his union file three grievances. The first grievance was that, under the "transfer" provision in the collective agreement (Article 7.3), the applicant's salary should have stayed at the higher hourly rate. The second grievance was that the applicant was entitled to be scheduled and paid for full shifts and was entitled to a higher rate of pay when called-in for work on short notice. The third grievance concerned the calculation of the applicant's severance pay.
10The union did not process the grievances. The union states that its representative (Ms. Kirkup) discussed them with the applicant, and that it was aware of the surrounding facts. The union submitted the applicant's grievance request to its legal counsel for an opinion. A copy of the opinion was provided to the applicant. The opinion stated that the applicant's interpretation of the collective agreement in respect of the first and second grievance was not supported by the provisions of the agreement. The union was advised by counsel to investigate the severance calculation issue with the employer. Ultimately, the Citizen agreed to calculate the applicant's severance using his highest weekly salary over the previous 12 months as a basis for the calculation.
11The union came to the conclusion that the other grievances were unlikely to succeed. It considered that the change in classification from C3 to C2 as a result of collective bargaining was not a "transfer" but a “reclassification”, and the red-circling provision for transfers therefore did not apply. Secondly, the second grievance, claiming the right to work a full shift and to be paid an increased rate for unscheduled on-call time, was not supported by the provision in the collective agreement or by past practice.
Submissions
12To summarize, there are two complaints at the heart of this application. The first is that part-time district supervisors were treated as “second class citizens” by the union in the collective bargaining process. Their hourly salary was reduced by approximately $7.00 per hour when they were reclassified from C3 to C2 during bargaining, and they were not offered enhanced severance when their jobs were contracted out in 1999. The second complaint is in respect of the union’s decision not to proceed with the grievances.
13The union responds that the reclassification was a concession made in bargaining in order to save the part-time positions, and that the union in fact won a delayed implementation of the requirement to chose between applying for a C2 position or taking severance. It also obtained a waiver of the normal time lines for the applicant. In respect of the contracting out issue, the union states that it had no bargaining power to obtain enhanced severance for the part-timers because they were not protected by a “no lay off” provision and were not guaranteed work.
Decision
14The issue before the Board is whether the Guild violated section 74 of the Act.
15Section 74 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.
16In Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, the Board described a union’s duty under section 74 [then section 68] in this way:
- Section 68 requires that each trade union decision be grounded on a consideration of relevant matters, free from the influence of irrelevant considerations. The requirement that a trade union not act in a manner which is in bad faith protects the legitimate expectation that an individual employee’s bargaining agent will act honestly and free of any personal animosity toward him. The requirement that a trade union not act in a discriminatory manner protects against the making of distinctions between employees and groups of employees on bases which have no relevance to legitimate collective bargaining concerns. “Bad faith” and “discriminatory”, therefore, test for the presence, in the process or results of union decision-making, of factors which should not be present. “Arbitrary”, on the other hand, describes the absence in decision-making of those things which should be present. A decision will be arbitrary if it is not the result of a process of reasoning applied to relevant considerations. The duty not to act arbitrarily requires a trade union to turn its mind to the matter at hand.
17During collective bargaining for the 1997 – 2000 collective agreement, the union was faced with the difficult choice of whether to agree to the reclassification of part-time supervisors from C3 to C2. It is in the nature of collective bargaining that not every member of a bargaining unit agrees with the outcome. In Jerry Osadca et al v. SEIU Local 220 (unreported decision dated January 10, 2001) the Board recently had occasion to comment on its approach to section 74 complaints when a union has made a collective agreement which, although ratified by the majority of members, appears to some members as being unfair or discriminatory. The Board stated at paragraphs 11 and 12:
The Board has long recognized that trade unions are faced with tough collective bargaining choices, and that the Board should not readily “second guess” those choices. In Clifford N. Griffith, [2000] OLRB Rep. Jan. 63, the applicant complained that the union had “bargained away” his lead hand premium, to his detriment, and without prior notice to him. The Board found that the union had good reasons to seek a clarification of the circumstances when the lead hand premium was payable, with the result that the applicant was no longer entitled to receive it. The Board also cautioned against judicializing the bargaining process to the point where employees who might be affected by a bargaining proposal had the right to specific notice. The case provides an excellent example of the Board’s long experience in these matters and expertise in applying labour relations sense. The principles adopted by the Board in that case apply equally to the issues raised by the applicants in the case before me. At paragraphs 21 and 22 the Board wrote:
I will deal first with the allegations of arbitrary or otherwise inappropriate conduct on the part of the trade union. The applicant argued that the trade union had arbitrarily singled out the applicant. (I note that there are two lead hands and both were equally affected by the change in the collective agreement.) The basis for that assertion was that the trade union held a different philosophy regarding the lead hand position and premium. That is true. However, the fact of holding differing views on the merits of a proposal does not, of itself, warrant any finding of arbitrariness. It is expected that one may well find widely divergent views among members of a bargaining unit. It is the responsibility of the trade union to choose a particular path, often to the dismay and upset of some members. Where the interests of bargaining unit members are competing, the Board has said that so long as that path has some objective justification it will not interfere with the trade union's choice.
For example, in Dufferin Aggregates, [1982] OLRB Rep. Jan. 35, a majority of the bargaining unit transferred to itself work opportunities previously enjoyed by a minority. A majority of the bargaining unit authorized the negotiating committee to bargain a lay-off provision into the collective agreement. Shortly after the employer's acceptance of the proposal and renewing the collective agreement, lay-offs of junior members occurred. In response to a complaint by that minority, the Board stated:
34... The Board agrees with the view expressed by Professor Cox that a union transferring the job opportunities of a minority to a majority must be required to show some objective justification beyond the majority will. Predatory practices are not justified simply because they are implemented by a vote of the majority. To so conclude would be to eliminate any real protection to minorities, a result clearly inconsistent with the very origins of the duty of fair representation.
37…The Board must obviously use great care in assessing what is and what is not objective justification for a union's decision, particularly a decision relating to choices as to the allocation of goods in conditions of scarcity. In my view it would be clearly inappropriate for the Board to substitute its own view for the union's by simply asking itself whether it would have acted differently. To do that is to substitute one subjective standard for another, and not to consider the issue of objective justification. The appropriate standard to be adopted by this Board is not unlike that expressed by the Court in the judicial review of the decisions of arbitrators: the Board should ask not whether the decision is right or wrong or whether it agrees with it - rather it should ask whether it is a decision that could reasonably be made in all of the circumstances, even if the Board might itself be inclined to disagree with it. Used in this sense "reasonable" must mean by the rational application of relevant factors, after considering and balancing all legitimate interests and without regard to extraneous factors.
After commenting on how that case law applied to the facts before it, the Board continued:
This is not to say that the trade union could not have chosen a different option to pursue in response to its concern. It could have. However, as in Dufferin Aggregates (supra), I am loath to interfere with the substantive choices and decisions of a trade union where there is an objective justification for its position. I am satisfied that there was objective justification for the union's position and that the task of making those choices is best left to the trade union.
As emphasized in the quote in paragraph 33 above, the Board accepts that the union has the right to decide what may be best in all of the circumstances. The relationship is not one of individual agency as between the union and a member. The union is the exclusive bargaining agent for the members of the bargaining unit (writ large). Its determination as to appropriate proposals is subject as I have said to being able to obtain a successful ratification vote and a duty to act in a manner that is not arbitrary, discriminatory or in bad faith in its representation of members. There are no guarantees in a collective bargaining process. Had the proposal come from the employer there would likely have been little question. The fact that the union made the proposal is of no consequence in light of the objective concerns addressed by the proposal.
The Clifford N. Griffith case recognizes that the union’s obligations to represent the whole of the bargaining unit vest the union with the right to make decisions on behalf of the whole bargaining unit, subject to its duty of representation. In exercising that right to make decisions on behalf of the whole, the union will often disappoint individuals because the union’s choices will not be in their individual interests. Moreover, it is not the Board’s role to substitute its own decision for that of the union. So long as the union offers an objective justification for the choices that it makes, the Board leaves the difficult decision for the union to make.
18In the instant application, and having regard to the principles outlined above, the Board is satisfied that the Guild did not violate section 74 in the process of making salary concessions in respect of the part-time supervisors. The Guild was concerned that these positions would eventually disappear altogether, and two years later, they did. The union was able to obtain a delayed implementation of the requirement to choose between applying for a C2 position or resigning with severance. There is no indication that the union acted with an uncaring attitude toward the concerns of the applicant as a part-time supervisor. It simply made a difficult but justifiable bargain with the employer, with which the applicant disagrees.
19In respect of the applicant’s purported grievances, the Board is satisfied that the union understood the nature of the grievances, met with the applicant, and obtained a legal opinion which was shared with the applicant. The calculation of the applicant’s severance pay was resolved with the employer. The union decided that the collective agreement did not support the applicant’s interpretation respecting the other two grievances. There is no evidence before the Board that the union acted in a capricious manner in arriving at its conclusion, or that the union failed to turn its mind to a proper consideration of the issues. The union was not obligated to proceed with a grievance merely because the applicant wished it to do so.
20The Board finds that the Guild did not act in a manner that was arbitrary, discriminatory or in bad faith in respect of the applicant, and therefore did not violate section 74.
21This application is dismissed.
“Anthony Brown”
for the Board