Gary Sabo, George Welsh and Ken Hanson v. CAW Local 4268 and Canadian Waste Services Inc.
File No.: 0673-01-U Date: December 24, 2001
Applicants: Gary Sabo, George Welsh and Ken Hanson Responding Parties: CAW Local 4268 and Canadian Waste Services Inc.
Before: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD
1The Board, by decision in this matter dated November 27, 2001 dismissed the motions made by Local 4268 to dismiss this application on the grounds of delay and no prima facie case. Nevertheless, the Board noted at paragraph 12 that "Local 4268 no obligation or duty under the Act to recognize seniority accumulated by the applicants while they were employed by a different employer in a different bargaining unit represented by a different union." The Board directed the applicants file further submissions with respect to whether this matter should proceed further and stated that the applicants "must, at the very least, allege facts that would, if proved, establish that Local 4268's explanation for its decision to place them at the bottom of the seniority list was not bona fide and that its decision was arbitrary, discriminatory or made in bad faith."
2The applicants filed several letter from individuals who had been employed by companies that were purchased by the intervenor. They all indicated that at the time of the purchase by the intervenor, the intervenor's employees were not represented by a trade union. The employees working in the business (Laidlaw Waste) purchased by the intervenor were represented by the CAW and the Canadian Waste and Laidlaw Waste employees had their seniority dovetailed. In my view, that makes perfect sense since Canadian Waste was purchasing a unionized business at a time when its own employees were not represented by a trade union and the CAW sought to have the employees it represented dovetailed with the existing unrepresented employees. That is not the situation that was faced by the applicants since they were hired by the intervenor when there was an established bargaining unit and trade union in place. They also refer to the acquisition of another employer, Waste Management, and how those employees came to be dovetailed. It appears that the employees of Waste Management were also in a bargaining unit represented by the applicant. Dovetailing the seniority of employees who are represented by the same union is not surprising. The applicants also referred to the purchase of Philips Waste by the intervenor. That acquisition occurred when neither Philips Waste nor Canadian Waste had employees represented by a trade union. The employer was free to determine how it would treat the employees' seniority.
3More importantly, the applicants only point to the consequences of the transactions that took place. The fact that the CAW agreed to dovetail its members does not necessarily lead to the conclusion that the CAW was acting arbitrarily or discriminatorily in its treatment of the applicants. They say that the CAW is discriminating against them because they're members of the Teamsters, but have alleged no facts on which they base that allegation other than the fact that their seniority was not dovetailed. In my view, that is insufficient to cause the Board to inquire into the matter.
4The responding party was free to determine that new employees coming into its bargaining unit would be placed at the bottom of the seniority list. When dovetailing occurred in the past, the circumstances were different; in two cases, the purchaser (Canadian Waste) was a non-union employer where the employees who joined it were unrepresented in one case and represented by the CAW in the second. The third example is where members of the applicant worked in a business acquired by the intervenor and their seniority was dovetailed. The fact that the applicants' seniority was not dovetailed, in the absence of any other factual assertions on which a claim of arbitrary or discriminatory treatment could be based, is not sufficient to cause the Board to inquire into this matter further.
5Therefore, I am satisfied that no useful purpose would be served by having this matter litigated further. The applicants were new employees of the intervenor who came to work in the bargaining unit represented by the responding party as a result of a transaction between the intervenor and the applicants' former employer. The responding party placed them at the bottom of the seniority list (but did arrange some protections for them, as discussed in my earlier decision in this matter). The applicants did not have a right under the Act to have their seniority dovetailed in the responding party's bargaining unit. The applicants have not asserted any additional facts on which one could find that the responding party acted towards the applicants by making the decision it did about their seniority in a way that was arbitrary or discriminatory.
6The Board, in the exercise of its discretion under section 96 of the Act, refuses to inquire into this complaint because no useful labour relations purpose would be served by doing so. This application is dismissed.
"Harry Freedman"
for the Board