0840-01-U Sean Robert Steven Keating, Applicant v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 636, Responding Party v. TRW Chassis Systems Intervenor.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; August 3, 2001
1This is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) in which the applicant alleges that his bargaining agent has violated the duty of fair representation set out in section 74 of the Act. The issue between the parties in this application focuses on a very narrow legal issue. While there are some factual differences between Mr. Keating and his bargaining agent, the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 636 (the “Union”), the essential facts are not in dispute. The Board finds that it is possible to dispose of this matter without a hearing as contemplated by section 99 (3) of the Act.
2Mr. Keating was employed by Kelsey Hayes Canada Limited at its Beards Lane Plant. Kelsey Hayes Canada Limited was purchased by TRW Chassis Systems (“TRW” or “the Employer”). For many years, until 2000, Kelsey Hayes or TRW also operated a plant called the “Eureka Foundry” plant. Employees at both plants were represented by the CAW under separate collective agreements. The Eureka Foundry plant has been sold by TRW recently.
3Mr. Keating was appointed Steward in his plant in 1999. This is a position specified in the collective agreement. There is a provision for what the parties call “super seniority” (Article 9.12). The effect of this “super seniority” is to protect those who held specified union officers from layoff. Those positions are Plant Chairperson, Committeeperson, Steward, President, Vice-President, Financial Secretary, Time Study Steward, and Recording Secretary.
4On December 17, 2000 Mr. Keating was told he would be laid off. Not surprisingly, he took the position that he ought not to be laid off as he was protected by the “super seniority” clause. He filed a grievance which was denied by the Employer. Mr. Keating was recalled and then laid off indefinitely on February 11, 2000. He did not file a grievance in respect of that lay‑off. Presumably he felt that the issue was the same as the one in the first grievance. However, the fact is that he never filed a grievance against his indefinite lay-off.
5The Union refuses to take this grievance to arbitration. Its position is this. The language in the “super seniority” clause was copied in 1993 from the Eureka Foundry agreement. There were no stewards at the Beards Lane Plant at that time. There were persons who played a somewhat similar role called “alternate committeeperson”. In the 1998 negotiations the name of this position was changed to “Steward”. The position of the Union and the Employer is that this was a name change only, and that neither turned their minds to the effect that this change had on Article 9.12.
6Mr. Keating, understandably, asserts that he has a right under the strict wording of Article 9.12 not to be laid off. He states that his rights are defined in the collective agreement and he should be entitled to rely on them at the point where he needs them. If one focused solely on his concerns, one would have to agree.
7However, the Union must of necessity focus on more than Mr. Keating's concerns. In keeping with its obligation to provide the best representation to the entire bargaining unit, it must also have regard to how it conducts itself in dealing with the Employer. A union-employer relationship is necessarily adversarial. Each side represents interests which can be entirely opposed to the other. However, parties who approach this relationship as one of total, all-out warfare, are likely in the end to do considerable damage to their own interests as well as to those of the opposite side. The extent to which parties can identify a common ground which satisfies or at least accommodates the interests of both sides will dictate how profitable the relationship is for both of them. That is not to say that the relationship is necessarily a comfortable or a cozy one. Conflict is frequently necessary to demonstrate or determine the parameters within which the interests of each side must be accommodated. And finally, there will be some disputes in the form of litigation over what it is that the parties have actually agreed to.
8One of the surest ways of developing a relationship characterized by constant conflict and a rigid insistence on every single advantage one side has, is to introduce an element of dishonesty into it. Here the Employer says that the change in a name from “alternate committee person” to “Steward” was simply a name change with no substance to it. The Employer says it did not consider the impact of this change on article 9.12. The Union says that the same is true for them. Assuming this to be true, if the Union were to refer the grievance to arbitration, there might be some benefit to Mr. Keating (assuming the grievance is successful and arguments about latent ambiguity were to fail) but there would be a negative impact on the relationship between the Employer and the Union, and on the Union's ability to act to the benefit of all members of the bargaining unit. If the Employer came to the conclusion that it had been dealt with dishonestly, it would likely in future press any advantage it had, regardless of how unnecessary, unfair, or dishonest their position might be. The Union's ability to effectively represent the members of the bargaining unit would be negatively affected in the long term. The downward spiral to a poisoned labour-relations relationship, which is unproductive and unprofitable for both parties, would begin.
9The Board has recognized that the Union is entitled to weigh the impact on its relationship with an employer of a decision to proceed to arbitration: Marcia Robertson, [1990] OLRB Rep. August 886, at paragraph 18 and William Spencer Green, [1991] OLRB Rep. Feb 191. The Supreme Court of Canada in Gagnon v. Canadian Merchant Service Guild and Laurentian Pilotage Authority 1984 CanLII 18 (SCC), [1984] 1 SCR 509 stated:
“2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.
- This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance, taking into account the significance of the grievance and the consequence to the employee on the one hand and the legitimate interest of the union on the other.(emphasis added)”
The basis of the union’s decision with respect to the grievance he did file would have applied equally to any subsequent grievance Mr. Keating might have filed. This fact means that the Union’s analysis would apply first to the temporary layoff, and ultimately to a layoff which represented the termination of the applicant’s employment. Generally, in such a situation the weight to be given to an employee’s interests is greater than most grievances: Centre Hospitalier Regina Ltee. v. Labour Court, 1990 CanLII 111 (SCC), [1990] 1 SCR 1330. On the other hand, there is no question that if the Union were to proceed and succeed at arbitration, it would have secured a benefit for Mr. Keating that it did not bargain for and that it knew it had not bargained for. While it may be that rarely can a union refuse to take a grievance leading to the termination of employment for the sake of maintaining its relationship with the employer, in this case the Union was justified in doing so. It has simply decided not to pursue a dishonest case to the possible benefit of Mr. Keating and to the detriment of the bargaining unit. In the circumstances of this case, its decision not to do so is not a violation of section 74.
10Another consideration is the purpose of Article 9.12. It is not a clause of general application, nor is it for the benefit of certain named individuals. Its purpose is to protect the Union, in the person of its officers, whoever they may be, from time to time. If the Union determines that the protection it has bargained for itself does not include the application of Article 9.12 to cover the position of Steward, that, in the abstract, is a decision for the Union to make provided it does so honestly, and not for reasons tainted by arbitrary, discriminatory or bad faith motives.
11The only factual question is whether the Union's motivation is as it has described it, or whether there is some other motivation being masked by its response. Mr. Keating does not allege any bad faith or personal discrimination against him based on some other motive. In the application, he states that he was told the Union's position, as it is set out in the Union’s response, initially by the president, Russ Gerrie, at a grievance committee meeting, and again at the Local 636 executive board meeting. He was told the same thing by Ron Joyal, the National Representative at bargaining.
12In response to the Board's decision of July 3rd, 2001, Mr. Keating adds only that:
(a) the collective agreement was amended in 1998 by a vote of the entire membership of the bargaining unit, and that further changes should only be made in the same manner and
(b) Article 42.01 prevents midterm amendments of the collective agreement.
Neither of these submissions is a correct statement of the law. Parties to a collective agreement may amend anything other than the term of the agreement during its currency. The manner in which an amendment to a collective agreement is made may be evidence pointing to bad faith, discrimination or arbitrariness. However, the Board does not supervise the internal affairs of a trade union, even assuming that there is something in the Union's by-laws which requires an amendment to a collective agreement to be effected only by a vote at a membership meeting. However, the Union’s position is that it does not regard its position as a “change” to the collective agreement, merely the correct application of what the parties agreed to.
13In a case where an employee's job is at stake, the Board is reluctant to accept a simple assertion by one side as to why words found in a collective agreement should be applied in a manner which appears to be at variance with their plain meaning. However, nothing would be served by holding a hearing or consultation in this matter. Mr. Keating does not seriously dispute what the Union says was its motive. In the application, this is the only reason he cites for the union's refusal to carry forward his grievance. He does say in subsequent filings that he believes that some of the membership in 1998 believed that the change to the name of “alternate committeeperson” had more significance than just change of name. He does not provide any factual basis for this assertion. Even if this was his personal belief, and that of some others in the bargaining unit, that does not contradict what the Union says, and its witnesses would say at a hearing, as to what happened in bargaining during the 1990s. Accordingly, to require parties to come to the Board to testify verbally to the same facts that they have set out in writing would serve no purpose, where, as here there appears to be no dispute about the facts and no reasonable basis for such a dispute.
14On the basis of the facts disclosed in this application, and those set out in the responses which are not disputed by Mr. Keating, there is no violation of section 74. This application is dismissed.
“David A. McKee”
for the Board