Ontario Labour Relations Board
2173-00-U Doug May, Applicant v. Retail, Wholesale Canada Canadian Autoworkers Division, Responding Party v. The Great Atlantic & Pacific Company of Canada, Limited, Intervenor.
BEFORE: Bram Herlich, Vice-Chair.
APPEARANCES: Doug May on his own behalf; Robert Gibson, Mike Langdon and Joanne Murphy for the responding party; Peter Chauvin, Lith Martell and Janice Carney for the intervenor.
DECISION OF THE BOARD; August 10, 2001
Decision
This is a complaint filed pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as amended (the “Act”) alleging that the responding party (the “union”) has violated section 74 of the Act.
The alleged misconduct of the union arises out of an agreement it entered into with the intervening employer (“A&P” or the “employer”).
For some time the employer had operated a retail food store in Hamilton as a “Superfresh” store. Employees in this and numerous other stores were covered by the terms of a collective agreement called the “New Dominion Stores” agreement.
In a process which culminated in or about August, 2000, the Hamilton store at which the applicant was and continues to be employed, was converted from a “Superfresh” store to a “Barn” franchise operation. The conversion (and there appears to have been more than one store so converted) was subject to negotiation between the union and the employer.
The result of those negotiations was that the employees of the Hamilton store were no longer covered by the terms of the “New Dominion Store” collective agreement, but rather were now to be covered by a new collective agreement negotiated by the union. Employees of the Hamilton store were advised and consulted in that process and, ultimately, ratified the terms of the new collective agreement.
That process has already been the subject of a complaint filed by five employees, including the instant applicant. In a decision dated May 9, 2001 the Board (differently constituted), following a consultation, dismissed that complaint. Thus, issues regarding the propriety of the new collective agreement and the process which resulted in it have already been the subject of a legal determination involving the very same parties before me in the instant matter.
There is, however, an issue regarding the application to Mr. May of the terms of the transition to the new collective agreement which, although perhaps adverted to briefly in the prior complaint, was not explicitly the subject of the Board’s deliberation in that matter.
Employees who were affected by the changeover of store banners and collective agreements were provided with options. For example, employees who had a sufficient amount of seniority were permitted, if they preferred not to continue to work under the new collective agreement (the terms of which, at least in some respects, were less favourable), to use their seniority to bump into positions at other stores still covered by the “New Dominion Stores” collective agreement.
Employees facing a rate reduction under the new agreement were offered further options. They could elect between two “severance” payments. One permitted them to retain employment in the new store at the reduced rate. Another more generous payment was available to those who opted not to continue their employment at the reduced rate. At the risk of repetition, eligibility for either of these last options was restricted to employees facing a rate reduction under the new agreement.
The applicant claims that he was entitled to and ought to have received the severance payment for employees continuing to work at the store. Alternatively, he asserts that he was misled by the employer into believing he would receive such a payment and that in reliance on that assurance made expenditures (a home satellite dish and other home improvements) he would not otherwise have contemplated. In either event, he believes the union ought to advance a grievance to arbitration on his behalf to vindicate his claim.
Before proceeding further, it is important to note what the Board typically does and does not do in the context of unfair representation complaints.
The prototypical unfair representation complaint involves, as does the instant one, a challenge to the union’s decision not to advance a grievance through the grievance procedure and/or to arbitration.
But while the instant parties, as many parties in such cases do, focused submissions on the merits of the applicant’s grievance (in this case a grievance had been initially filed but the union opted not to proceed with it), that is not, strictly speaking, congruent with the Board’s focus in these cases. It is not the Board’s function to act as a proxy or replacement for the arbitration process. Thus, it is unnecessary for the Board to determine the merits of any particular grievance. The issue for the Board to determine is whether the union’s decision not to pursue the matter was reasonable. Thus, even if the Board might otherwise be persuaded that a grievance is meritorious, it does not necessarily follow that a union’s decision not to advance it is unlawful. So as long as the union can demonstrate some reasonable basis for its decision, the Board will likely not interfere.
For reasons which I now provide, there can simply be no doubt that the union acted reasonably in the instant case.
In the events described to me, there is no doubt that both the union and the employer made some mistakes. However, a (perhaps cynical) observer might conclude (and it is certainly a conclusion which would be open to an arbitrator) that the applicant did everything he could to attempt to capitalize on those errors.
The applicant was and continues to be classified as a “Deli Operator”. However, when an information sheet (which would demonstrate which classifications would and would not be facing rate reductions) was provided to employees in May, 2000, no listing was included for Deli Operator. There was a listing for “Deli Manager” which indicated an existing rate of $16.45 and a future rate under the Barn agreement of $16.25. Thus, it would have been clear that any person holding the classification of Deli Manager would have been entitled to claim a severance payment. However, the applicant was (and still is) a “Deli Operator”. His rate at that time (May 2000) was $15.95. His rate under the new agreement was to rise to $16.25.
Despite the omission of Deli Operator from the listed classifications on the information sheet, it is difficult to comprehend how the applicant, who knew his rate was $15.95 and would be $16.25 could, for even a moment, have believed he would be entitled to a severance payment by virtue of a rate reduction.
Individual meetings were held with employees to review their transition options. The applicant attended such a meeting on June 14, 2000. In attendance were representatives of both the employer and the union. At that meeting the applicant was presented with three options, two of which included the severance payment options available only to employees facing a rate reduction. The company representative at that meeting was Janice Carney. Ms. Carney had no previous association with the particular store in which the applicant had worked and had no direct knowledge of the applicant or his classification. The applicant, at the meeting, took no steps to correct the apparent misapprehension of the employer as to his entitlement