Ontario Labour Relations Board
File No.: 0673-01-U Date: November 27, 2001
Gary Sabo, George Welsh and Ken Hanson, Applicants v. CAW Local 4268 and Canadian Waste Services Inc., Responding Parties.
Before: Harry Freedman, Vice-Chair.
Decision of the Board
1Gary Sabo, George Welsh and Ken Hanson (the “applicants”) are employees of Canadian Waste Services Inc. (“Canadian Waste”) in a bargaining unit represented by CAW Local 4268 (“Local 4268”). The applicants became employed by Canadian Waste on April 14, 2000 after it had acquired certain assets and employees of Browning Ferris Industries (“BFI”). Although not specifically stated in the application, it appears from the material filed by the responding parties that the applicants, while employed at BFI, were in a bargaining unit represented by the Teamsters Union. Mr. Sabo had 15 years’ seniority at BFI; Mr. Welsh had 26 years’ seniority there and Mr. Hanson had 1½ years’ seniority with BFI before beginning their employment with Canadian Waste. The applicants were placed at the end of the Local 4268 seniority list, with a seniority date of April 14, 2000 (but in order of their seniority with BFI) when they started working for Canadian Waste.
2The applicants filed this application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as am. alleging a violation of section 74. The applicants are required to state in their application all of the facts that support their claim that their union acted in a manner that was arbitrary, discriminatory or in bad faith in representing them. The response filed on behalf of Local 4268 submits that this application should be dismissed without a hearing because of undue delay in making the application and because the facts alleged in the application do not make out a prima facie case. The Chair of the Board authorized me to sit alone to determine this matter pursuant to section 110(14)(a) of the Act.
3The applicants included a letter as part of their application in which they indicate the basis for their complaint and identify the persons involved in it. They assert that prior to the transaction by which they became employees of Canadian Waste, they had questioned their employer (BFI) about what their seniority status would be at Canadian Waste and got no answer from either BFI or their union (Teamsters). After the transaction, they say they were told by the President of Canadian Waste and other officials of Canadian Waste that they would be bringing their seniority with them.
4The applicants assert they learned a month after they started working for Canadian Waste that they were at the bottom of the seniority list. They have tried clear up the matter and keep getting different stories from the different people involved. They also assert that other workers who have been involved in “buy-outs” by Canadian Waste have kept their seniority and have been dovetailed on to the seniority list.
5Canadian Waste filed response to the application in which it noted that the applicants had been advised that they would retain their seniority for purposes of vacation etc. but because the CAW represented approximately 50 employees already, the applicants would go to the bottom of the seniority list. Canadian Waste indicated that it had no issue with dovetailing the seniority list, but recognized that the CAW objected to it in the circumstances.
6The National Automobile, Aerospace, Transportation and General Workers Union of Canada and its Local 4457 (CAW Local 4457) filed a response to this application. It is unclear whether “Local 4457” is a typographical error since later in the response, there is reference to the president of CAW Local 4268. In any event, I am satisfied to treat the response filed by CAW Local 4457 as being filed on behalf of Local 4268.
7With respect to the request by Local 4268 to dismiss this application on the basis of delay, Local 4268 indicates that the applicants came into the CAW bargaining unit on April 14, 2000 and “knew or ought to have known the terms of their transfer prior to that time.” The applicants in their application assert that although they made inquiries of their former employer and their union (the Teamsters, not the CAW) they were not given any information. The applicants allege they learned about their placement on the seniority list about a month after having started with Canadian Waste. When their placement on the seniority list came to their attention, they contacted Local 4268 and Canadian Waste to rectify the situation and were unsuccessful. The application does not indicate when they realized that their position on the seniority list would not be changed, but it is apparent that their inquiries would have continued for a significant period of time after they realized they had been placed at the bottom of the seniority list. Indeed, the response filed on behalf of Local 4268 states that the National Representative responsible for Local 4268, Dave Tilley, advised the applicants of the CAW’s position with respect to their seniority: their service with BFI would be recognized for vacation and pension, they would be grandfathered in their positions and they would be placed at the bottom of the Canadian Waste seniority list. The response indicates that Mr. Tilley advised the applicants that they should have been informed about the terms and conditions of their transfer to Canadian Waste by their former bargaining agent. The response also states that the conversation between the applicants and Mr. Tilley with respect to these matters “took place some eight months following the transfer on April 14th”.
8As this application was filed in May, 2001, less than six months after the conversation the applicants had with Mr. Tilley in which Local 4268 made it clear to the applicants what its position was with respect to their seniority standing at Canadian Waste, I am not satisfied that the applicants have unduly delayed in proceeding with their application. The motion by Local 4268 to dismiss this application on the basis of undue delay is therefore dismissed.
9Turning next to the submission by Local 4268 that the application does not disclose a prima facie case, the essence of the allegation by the applicants is that Local 4268 did not recognize the applicants’ seniority with their prior employer when they entered the Local 4268 bargaining unit, although Canadian Waste recognized their previous service with BFI for purpose of vacation etc. The applicants do not suggest that Canadian Waste has disregarded their length of service with BFI for any purpose related to compensation or benefits. The applicants’ complaint relates solely to their placement on the seniority list and the potential impact that placement may have in the future on their job security should their employer be required to make selections among the bargaining unit employees based on their seniority.
10The applicants have alleged that there was a “buy-out” of BFI by Canadian Waste. As a result of that transaction they ceased being employees of BFI and became employees of Canadian Waste within an existing bargaining unit where approximately 50 employees represented by Local 4268 were employed. Those incumbent Canadian Waste employees had seniority dates ranging from February 22, 1973 to June 29, 1998 at the time the applicants became employees of Canadian Waste. The applicants submit that employees in the past who have come from other companies to Canadian Waste due to “buy-outs” by Canadian Waste have had the seniority they accumulated at those other companies recognized within the CAW bargaining unit. They say that Local 4268 should do the same thing for them. (It would appear that Mr. Hanson, with only 1½ years of accumulated seniority at BFI as of April 14, 2000, would have been placed at the bottom of the Local 4268 seniority list in any event.)
11Local 4268 indicates in the response filed on its behalf that the applicants were “grandfathered” on the routes that they had while they were at BFI and that their service with BFI for purposes of vacation entitlement, pensions etc. would be recognized by Canadian Waste. Local 4268 submits that recognizing the applicants’ accumulated seniority with BFI would allow the applicants to displace CAW bargaining unit employees and thereby adversely affect the existing employees of Canadian Waste who have been represented by the CAW. It submits that by “grandfathering” the applicants on their routes, it has given some recognition to the applicants’ accumulated seniority since higher seniority employees in the Local 4268 bargaining unit cannot displace them from their routes.
12Underlying the applicant’s complaint appears to an assumption that they have some right to have the seniority they accumulated while working for BFI and in a bargaining unit represented by the Teamsters Union transferred with them when they commenced their employment with Canadian Waste. It appears to me that the applicants misconceive the source of seniority rights and the role of a trade union in protecting those seniority rights. A trade union under section 74 of the Act must represent all of the employees in the bargaining unit. It has no obligation to any person before that person enters the bargaining unit. Thus, a trade union has no obligation under section 74 of the Act to take steps to protect the seniority rights of individuals who are not yet employees in the bargaining unit they represent. The applicants, in essence, became new employees of Canadian Waste when they began working for Canadian Waste after April 14, 2000. Local 4268 and Canadian Waste agreed to “grandfathering” protection of the applicants’ jobs (presumably so that they could continue doing the work they were doing for BFI prior to April 14th) to ensure that members of Local 4268 with greater seniority would not displace them on their routes. Canadian Waste and Local 4268 also agreed that the applicants’ length of service with BFI was recognized by Canadian Waste for purposes of vacations and pensions and presumably other benefits tied to an employee’s length of service that have no impact on other bargaining unit employees. Local 4268 did not, however, agree with Canadian Waste to treat the applicants’ accumulated seniority with BFI as seniority within the Local 4268 bargaining unit because Local 4268 did not want the applicants to have the right to displace current members of Local 4268 and thereby adversely affect them. In my view, Local 4268 had no obligation or duty under the Act to recognize the seniority accumulated by the applicants while they were employed by a different employer in a different bargaining unit represented by a different union.
13The Board discussed seniority principles and a trade union’s duty under the Act to employees who are coming into a bargaining unit it represents in Woodbridge Foam Corp., unreported, Board File No. 1293-94-U, decision dated October 25, 1995, Q.L. cite [2000] O.L.R.D. No. 5477. At paragraph 4 the Board commented on the notion of seniority in the following terms:
Seniority is a trade union right. It does not subsist in common law, nor in employment law. A worker normally acquires seniority rights within a particular bargaining unit as a consequence of his/her membership of, or contribution to, a union for a particular period of employment.
Thus, it is clear that the applicants had no seniority rights in relation to the Canadian Waste bargaining unit represented by Local 4268 before April 14, 2000. Only the employees who were in that bargaining unit immediately prior to the applicants becoming employed by Canadian Waste had any seniority rights in the Local 4268 bargaining unit. The Board elaborated on those principles at paragraph 26 when it wrote:
Seniority rights are acquired by membership within a bargaining unit, they are not acquired by employment with a particular employer. Working for the same employer gives no seniority rights. The rights are acquired by working within a particular bargaining unit. Presence within a bargaining unit, and membership of the union which negotiates for the employees within that unit, are what give an employee status to acquire seniority rights.
At paragraph 28 of that decision the Board pointed out that persons outside of the bargaining unit do not have some claim to the benefit of seniority rights accorded to employees within the bargaining unit:
There is no entitlement on the part of workers outside of a particular bargaining unit to the seniority rights which prevail within it. The facts of membership within the same union, within the same local and employment by the same employer do not address the generative core of the employees' seniority rights. Those rights vest only while an employee is employed within a particular bargaining unit.
14While it was certainly open to Local 4268 to recognize some greater seniority rights for the applicants in relation to the other employees in the bargaining unit, it chose not to do so on the basis that it did not wish to adversely affect the current CAW bargaining unit members. Local 4268 did, however, provide some protection for the applicants by agreeing to allow them to remain on the routes they had occupied prior to becoming employed by Canadian Waste and thereby insulating them from being displaced by more senior bargaining unit employees. In addition, Local 4268 agreed that the applicants’ length of service with BFI would be treated as service with Canadian Waste for purposes of compensation and benefits. In my view, Local 4268 was entitled to make those decisions as long as it had a bona fide reason for doing so. The response filed by Local 4268 provided such a reason.
15The Board in Woodbridge Foam Corp. discussed its approach to reviewing the sorts of decisions trade unions must make regularly that may affect one group of employees at the expense of another at paragraph 31:
The Board does not readily interfere with internal decisions made by unions, particularly when they involve a balancing of interests between different groups of employees within the union. That is because the Board respects the importance of self-governance in labour relations. A democratic society is characterized, in part, by the promotion of self-governance and the non-interference of public authorities, like the Board, in self-governing organizations, unless there are compelling reasons to do so. The Board will scrutinize union decisions to ensure that they are not in violation of the Act, but it will not interfere unless it is satisfied that no legitimate trade union purpose is being served by the particular decision of the union concerned.
See also Dufferin Concrete Products, [1983] OLRB Rep. Dec. 2014; Great Atlantic and Pacific Tea Company Limited, [1986] OLRB Rep. Apr. 485; and Dufferin Aggregates, [1982] OLRB Rep. Jan. 35.
16Local 4268 sought to have this application dismissed on the grounds that it did not disclose a prima facie case for the relief requested. The applicants’ allegations suggest that their interests were disregarded by Local 4268 when they commenced employment with Canadian Waste. In my view, some explanation from Local 4268 was required. Local 4268 provided that explanation and Canadian Waste in its response also provided some context for Local 4268’s decision. In particular, Canadian Waste pointed out that it too had advised the applicants that they would continue to do the jobs they had done in the past but that there were no guarantees in employment in their industry. The applicants also alleged that other employees who joined Canadian Waste after a “buy-out” had their prior seniority recognized but Local 4268 did not do that for them. Local 4268 says it has no knowledge of what had happened in respect of the three “buy-outs” referred to by the applicants but also points out the applicants were treated in the same way as the employees in the Hamilton Division of Canadian Waste following the merger with Waste Management Industries. I cannot say, looking at the allegations in the application itself, without regard to anything that either Canadian Waste or Local 4268 said in response, that it is clear and obvious that there is no reasonable likelihood that a violation of the Act can be established, particularly if Local 4268 had been the bargaining agent when the employees from those other “buy-outs” joined Canadian Waste.
17The Board in Corporation of the County of Brant, [2000] OLRB Rep. Nov./Dec. 1106 dismissed a motion to dismiss an application for failing to disclose a prima facie case because the allegations in the application, on their own and without regard to the explanations provided by the other parties, established a violation of the Act. The Board in that case described the test for determining whether an application has made out a prima facie case at page 1108:
…a responding party that seeks to have the Board dismiss an application before the hearing on the grounds that the application fails to set out a prima facie case for a violation of the Act must satisfy the Board that there is no reasonable likelihood that the applicant can establish a violation of the Act based on the allegations it has made in its application, or in the words of the Supreme Court of Canada, that it is “plain and obvious” that the allegations in the application do not disclose a violation of the Act.
See also J. Paiva Foods Ltd., [1985] OLRB Rep. May 690 where the Board set out the test at page 691 as follows:
The Board’s discretion to dismiss a complaint on the grounds that it does not disclose a prima facie case should only be exercised in the clearest of cases, that is, when the Board is satisfied that there is no reasonable likelihood that a violation of the Act can be established on the facts as alleged.
The Board in Corporation of the County of Brant explained the process it undertakes after examining the allegations in an application to see if they pass the threshold of a prima facie case at page 1109:
This application, in my view, at the very least, requires an explanation from the responding party for its refusal to hire Mr. Vining. (The responding party has done so in its detailed response to the application.) Although a response may provide the complete answer to the application, the Board, when deciding whether to dismiss an application for failure to establish a prima facie case, must assume all of the facts alleged in the application are true. The Board cannot have regard to the factual assertions and denials contained in the response.
Therefore, I am compelled to dismiss the request made by Local 4268 to dismiss this application for failing to establish a prima facie case.
18Although I have dismissed the motion by Local 4268 to dismiss this application on the grounds of delay and no prima facie case, I am not yet satisfied that any useful purpose would be served by having the applicants pursue this case when it appears from the material filed by the responding parties that there is little, if any, likelihood of the applicants establishing that Local 4268 did not have bona fide or legitimate reasons for making the decision to have the three applicants who entered the Canadian Waste bargaining unit for the first time in April 2000 placed at the end of the seniority list. Section 96 of the Act confers discretion on the Board to determine whether it will inquire into any complaint alleging a violation of the Act. See Brant Haldimand-Norfolk Catholic District School Board, [2001] OLRB Rep. March/April 292 where the Board wrote at page 301:
Under section 96(1) of the Labour Relations Act, the Labour Relations Board has a discretion whether or not to inquire into any application or complaint (see generally Dhanota v. UAW Local 1285 and Sheller Globe of Canada Ltd. (1983), 83 CLLC ¶14,052 (Ontario Div. Ct.)). The fact that a complaint is filed, does not mean that the Board is obliged to enquire into it. Rather, the Legislature has given the Board a discretion in this regard; and in the exercise of that discretion, the Board looks at such factors as: any delay in filing the complaint; whether the case makes out an arguable case for a breach of the provisions of the Act relied upon by the complainant; the likelihood of success; the nature and utility of any remedy that might flow; the cost implications for the parties and the public; whether, overall, some statutory or labour relations purpose would be served by the litigation exercise; and so on. It is important for the Board to expend its limited resources in a manner that is consistent with the objects of the statute (see section 2 of the Act), and that is sensitive to labour relations realities.
Before determining whether to exercise the discretion under section 96 of the Act to refuse to inquire into this complaint alleging a violation of the Act, I think it appropriate to provide the applicants with an opportunity to make any submissions they consider advisable with respect to whether this matter should proceed further. In other words, it appears from the material filed that Local 4268 made a bona fide determination to place the applicants, who as new employees of Canadian Waste and therefore without any seniority rights in the Local 4268 bargaining unit, at the bottom of the seniority list. In order to have this matter proceed further, 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.
19Therefore, the Board directs the applicants to file their submissions with the Board and to deliver those submissions to the responding parties within twenty days of the date of this decision, that is, on or before December 17, 2001. The responding parties need not file any submissions in response to the applicants’ submissions unless directed to do so by the Board. The Board will determine whether to exercise its discretion on the basis of the material before it after the expiry of the time for filing submissions.
20This panel of the Board remains seized with this matter.
“Harry Freedman”
for the Board