2236-00-U Arline Deacon, Applicant v. Canadian Union of Public Employees, Local 79, Responding Party.
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: Arline Deacon representing herself; J. James Nyman and Derek Lue for the responding party.
DECISION OF THE BOARD; July 11, 2001
This is a complaint pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”). The applicant alleges that the Canadian Union of Public Employees Local 79 (Local 79) has breached its duty of fair representation to her.
The applicant (Mrs. Deacon) worked for approximately 10 years in the Parks and Recreation Department of the Borough of East York (East York). She was represented by the Canadian Union of Public Employees, Local 416 (Local 416). The applicant was to turn 65 years old in September 1998. On July 6, 1998 Mrs. Deacon wrote to her employer indicating that she would like to work 6 months past her 65th birthday. She understood that the personnel practices of East York permitted such extensions and that at least one employee in her area was approaching her 68th birthday. Mrs. Deacon got no response until early September 1998 when she was advised that she had to retire on her birthday, which was at that point about a week away. Mrs. Deacon was upset with the response and with the short notice. Mrs. Deacon outlined in her detailed notes of events that she tried on numerous occasions to contact her steward at Local 416 but either got no response to her calls or was advised that he was too busy to meet with her. Mrs. Deacon did not want to leave work. Her employer proposed to pay her to the end of September, but not require her to come into work. Mrs. Deacon continued to attend work, tried to reach her union steward and to get some understanding from her employer about why she could not extend her retirement date. Mrs. Deacon said that when she finally spoke to her union steward, he advised that the union would not support her claim. Mrs. Deacon continued to seek a meeting with the union.
Mrs. Deacon ultimately completed a grievance form, and retained her own counsel to try to get answers from both the employer and the union. In requesting an extension of her retirement date, Mrs. Deacon relied on an excerpt from the Borough of East York which permitted its council to grant extensions, on the recommendation of the Department Head. In its response, the City of Toronto noted that the downsizing target in the department where Mrs. Deacon worked exceeded 200 in 1998 and in order to help a achieve that target, the department head would be recommending no extensions of employment beyond age 65. Further, the employer advised that it was not aware of any extensions having been granted since 1985, and that the older employees still working had been re-hired on a casual or part-time basis. Mrs. Deacon was told that she could in future, apply for available positions.
In November 1998, a National Representative to the Canadian Union of Public Employees wrote a detailed letter to Mrs. Deacon, setting out his understanding about the law surrounding mandatory retirement and the union’s assessment that applying the law to the circumstances of her case, a grievance would be unsuccessful. Mrs. Deacon remained unsatisfied. She believes that she has been dealt with unfairly by both the employer and the union. She contends that she did not get adequate notice of the requirement to retire at age 65, and when she did make a request for an extension, she got incomplete answers from the employer and Local 416. Mrs. Deacon thinks that Local 416 should have sat down with her and her employer and negotiated some arrangement that would have allowed her to continue working or compensate her for the short notice of retirement she received.
It is important to note that these events were happening against a backdrop of huge change for both the employer and the trade unions representing employees. As of January 1, 1998, East York no longer existed, and had by statute been made part of the City of Toronto. This massive restructuring with attendant dislocation, potential downsizing and just plain uncertainty and confusion no doubt accounted for a significant amount of what happened to Mrs. Deacon.
Even more important for this case, as a result of the provisions of the Public Sector Labour Relations Act, bargaining units in the municipalities that made up the new City of Toronto were reconfigured, and representation votes were held to determine which unions would represent the amalgamated bargaining units. Local 416 lost the right to represent the employees. The Canadian Union of Public Employees, Local 79 (Local 79) won the vote, and as of January 1999, represented the employees in the bargaining unit into which Mrs. Deacon would fall if she were still employed.
On May 25, 1999, Local 79 filed a grievance on Mrs. Deacon’s behalf, complaining about her requirement to retire at age 65. As counsel for Local 79 pointed out at the hearing, Local 79 had no legal obligation to represent Mrs. Deacon or launch a grievance on her behalf. She had ceased to be an employee of the City of Toronto some months before Local 79 had any obligation to represent her. Further, Local 79 was not a “successor trade union” to Local 416 within the meaning of the Act. Instead, Local 79 and Local 416 were rival unions, who waged a campaign for the right to represent employees in the amalgamated bargaining unit. Local 79 won.
However, Local 79 counsel explained it felt it had an obligation to the whole of the new bargaining unit, and to that end collected up all the old grievance files from Local 416 and proceeded to review them and file grievances in the name of Local 79. Counsel said that in the spring of 1999, about 1000 grievances were awaiting 3rd step meetings, at a time when both Local 79 and the City of Toronto were engaged in difficult collective bargaining for an agreement that would cover the amalgamated bargaining unit. Not surprisingly, progress in both areas was slow.
In October 2000, the applicant filed this complaint. A step 3 meeting has since been held. The City is prepared to pay the applicant $1,000.00. Local 79 is prepared to accept that. Mrs. Deacon is not.
Counsel for Local 79 explained that the union does not think that Mrs. Deacon’s case, at law, is likely to be successful, and has provided an opinion to that effect. Counsel put it bluntly; the union does not believe that the grievance has any merit. Moreover, at a time when the City of Toronto is downsizing, the union is unwilling, in the interests of all of its members, to pursue the request for post-retirement employment for an employee entitled to retire with an unreduced pension. However, Local 79 denies that it has done nothing for Mrs. Deacon. It undertook to file a grievance, when it had no obligation to do so; it met with the employer; and it has secured a $1000.00 settlement that it available to Mrs. Deacon no matter the outcome of this complaint. Mrs. Deacon maintains that the $1000.00 is still unacceptable and that Local 79 should have sat down with her and the employer and found an arrangement that would have permitted her to work.
Decision
- Counsel for Local 79 specifically indicated that it did not want this case decided on the basis that Local 79 had no legal obligation to represent Mrs. Deacon. That