1918-00-U Reg Vachon, Applicant v. I.W.A. Canada, Local 2693, Responding Party.

1958-00-U Mickey Hurley, Applicant v. I.W.A. Canada, Local 2693, Responding Party

BEFORE: Mary Anne McKellar, Vice-Chair

APPEARANCES: Reg Vachon and Mickey Hurley for the Applicants; Wally Dubinsky and Bert Poulin for the Responding Party; Tom Moutsatsos and Jim Ramsay for Domtar Inc. Forest Resources

DECISION OF THE BOARD; November 7, 2001

Introduction

1These are applications under section 96 of the Labour Relations Act, 1995 (the Act) alleging that the I.W.A. Canada, Local 2693 (the Union) contravened section 74 of the Act. The applications were filed in late September and early October, 2000 and were scheduled for consultation on October 30, 2001.

2The applicants were not represented by counsel. The Board advised them that there was no requirement that the parties appearing before the Board retain legal counsel and that the Board often conducts hearings where one or more of the parties are not represented by legal counsel. The Board also advised the applicants, however, that consultations before the Board are legal proceedings and that the Board’s role is to adjudicate the issues in dispute. The Board cannot act as an advocate for or as an advisor to any party merely because legal counsel did not represent that party. To do so would be inconsistent with the Board’s role as a neutral adjudicator.

3The Board commenced by describing the consultation process, noting that the Vice-Chair plays a much more active role in a consultation than she would in a hearing in terms of questioning parties and their representatives, that the process involves determining what matters are in dispute and what are agreed, and that it normally does not involve testimony under oath. Finally, the Board indicated that the consultation would result in one of four outcomes:

• a decision not to inquire further into the application;
• the dismissal of the application;
• the granting of the application; or
• the scheduling of the matter for a full hearing before the Board.

4The Board noted that the applicants were in the employ of Domtar Inc. Forest Resources (“the Employer”) at the time of the incidents complained of in their applications. Although it did not file an intervention in these applications, counsel for the Employer wrote to the Board on October 17, 2001, indicating that he would be appearing on the Employer’s behalf at the consultation. Counsel did appear and was advised by the Board at the outset of the consultation that his ability to participate could be restricted as a consequence of the failure to file a timely intervention and pursuant to Rules 41 and 42 of the Board’s Rules of Procedure.

Nature of the Allegations

5The allegations relate to the Union’s failure to pursue the applicant’s grievances respecting the Employer’s refusal, following their layoff, to permit them to bump junior employees. There was little or no dispute about the facts giving rise to the grievances. Those facts are the following:

• The applicants were laid off from their positions as cook and machine operator;
• Both applicants had obtained the required government certifications to enable them to drive tractor trailers and had worked in that capacity for other employers;
• Neither applicant had ever driven trucks for the Employer;
• The applicants were laid off;
• The applicants had greater seniority than other employees who drove trucks for the Employer and who were not laid off;
• Article 12.03(a) of the collective agreement between the Employer and the Union permits laid off senior employees to bump junior employees and “transfer to a job for which [they] are qualified”.
• The applicants sought to bump into positions as truck drivers, but were denied;
• They approached the Union in late August and early September 2000 about filing a grievance on their behalf;
• Although grievance proceedings were commenced, they were not pursued to arbitration;
• The Union indicated that its decision not to pursue the grievances was premised on the “past practice” between the Employer and the Union of requiring employees to have previously performed a particular job classification for the Employer in order to be considered “qualified” under Article 12.03(a) to perform it and bump a more junior employee; and
• The Employer denied the grievances at each stage on the basis of this past practice.

6The applicant Vachon was the principal spokesperson for both applicants. He asserted that when he first spoke to the Union representative Bert Poulin about his grievance in late August, 2000, Poulin was enthusiastic about it. In particular, Vachon claimed that Poulin said nothing to him about the potential impact of “past practice” on the likely success of that grievance. Vachon further stated that he specifically asked if there were any policies or letters of understanding that qualified the provisions of the collective agreement and was told that there were none. Vachon claimed to have first heard about the “past practice” issue in a telephone call from Poulin in mid-to-late September, when Poulin indicated that the Union would not be proceeding with the grievances. Vachon’s best recollection was that this call occurred some eight or so days prior to his first contact with the Board by letter dated September 25, 2000.

7For his part, Poulin agreed that he did not immediately refer to the “past practice” issue when the grievances first arose. He also indicated that he did confirm that there were no written policies or letters of understanding qualifying Article 12.03(a). Once the Employer denied the grievance on the basis of past practice however, Poulin stated that he consulted with the Union president and that they determined together that there had indeed been a uniform past practice of permitting laid off employees to bump into only those jobs they had already performed for the Employer. Poulin admitted that this information was not immediately communicated by him to the applicants and attributed this to the fact that he had been away from work due to a death in his family. Poulin also agreed that when he did inform the applicants of the Employer’s reliance on past practice it was by way of a telephone conversation. Poulin did not recall when this conversation occurred, nor did he recall saying at that point that the Union would not be pursuing the grievances further, although he was quite sure he indicated that they had no chance of success. Finally, Poulin stated that the ultimate decision not to pursue the grievances was made by the Union president after the filing of the within applications and that it was not specifically communicated to the applicants.

8The Union filed its response to the applications on October 17, 2000. In this response the Union attached the grievances completed at each of the first three stages and the Employer’s responses thereto. Notwithstanding that all of them pre-dated the filing of the within applications, the applicants suspected that they had only been subsequently generated so that the Union might cover its tracks. These suspicions were not alleviated when the Union’s response also indicated that it was still deciding whether to proceed further with the grievance, and was awaiting a legal opinion on the matter, even though their recollection was that Poulin had earlier indicated that the grievances would not be pursued further. The opinion provided to the Union on November 10, 2000 stated that a review of arbitration awards confirmed the existence of an industry-wide past practice consistent with the Employer’s interpretation of Article 12.03(a), and noted that the Union had supported that interpretation in previous arbitration proceedings. The opinion recommended against proceeding further with the grievance.

9The applicants and the Union attended at a meeting with a Labour Relations Officer in January 2001, and the applicants subsequently forwarded to the Board, but failed to copy to the Union, a letter in which they set out examples of various scenarios which they submitted undermined the claim of uniform past practice with respect to the interpretation of “qualified”. At the consultation Vachon indicated that these scenarios were already known to the Union in any event. Poulin did not deny that this was the case, but suggested that they were irrelevant. These scenarios appeared to the Board to relate to the Employer’s practice of filling some vacancies without posting by assigning employees to jobs they had not previously performed for the Employer. None of them involved a situation in which an employee subject to layoff sought to bump a junior employee in a different classification, nor were the applicants aware of any situations in which this had occurred.

10It was clear at the consultation that the applicants were generally displeased with the Union’s pursuit of grievances against this Employer, and that this general displeasure coloured their view of the Union’s conduct with respect to their grievances and prompted these applications. The applications themselves, however, are grounded on the fact that the applicants received inconsistent information from the Union with respect to the status of their grievances and the likelihood of their success. The applicant Vachon was of the opinion that it was simply incredible that Poulin was not immediately aware of the uniform past practice asserted by the Employer, but there was no assertion that the past practice did not indeed exist or was not uniformly followed, or that Poulin or other Union representatives failed to consider its impact on the likely success of the grievances.

Section 74 and Related Caselaw

11Section 74 of the Act reads as follows:

74. A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

12In Kenneth Edward Homer, [1993] OLRB Rep. May 433, the Board wrote as follows with respect to the general ambit of the section 74 duty imposed on a trade union:

5. … In Canadian Merchant Service Guild V. G. Gagnon, 1984 CanLII 18 (SCC), [1984] 1 SCR 509 at page 527, the Supreme Court of Canada reviewed the principles applicable to a trade union’s duty of fair representation as follows:

6. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.

7. 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.

8. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of the consequences for the employee on the one hand and the legitimate interest of the union on the other.

9. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.

10. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.

13In Ford Motor Company, [1973] OLRB Rep. Oct. 519, the Board recognized that laypersons usually conduct the union's affairs and such persons may not have the skills or training of a lawyer:

This Board does not decide cases on the basis of whether a mistake may have been made or whether there was negligence, nor is the standard based on what this Board might have done in a particular situation after having the leisure and time to reflect upon the merits. Rather the standard must consider the persons who are performing the collective bargaining functions, the norms of the industrial community and the measures and solutions that have gained acceptance with that community. (at paragraph 40)

14Applying the above principles to the facts of this case, it is clear that the mere decision not to pursue grievances that the applicants wanted the Union to pursue does not constitute a contravention of section 74. Furthermore, there was no allegation that the Union’s conduct discriminated against the applicants vis-à-vis another class of employees, or was characterized by hostility or ill-will. This leaves the question of whether its conduct was arbitrary.

15Poulin asserted that the Union considered the merits of the grievance and inquired into the existence and uniformity of the past practice relied on by the Employer. The applicants were not in any position to deny this assertion. Furthermore, the applicants could not themselves point to any exceptions to the practice relied on. Indeed, regardless of whether Poulin told them that the grievance was unlikely of success (as he said), or told them it was being dropped (as they asserted), it is clear that by the time Poulin telephoned the applicants in mid-September, he had considered the merits of the grievance in light of the evidence of past practice. Although the Union had already concluded that the grievances were not likely to succeed, it was not unreasonable of Poulin, when faced with these applications, to ensure that that was the case. The opinion he obtained did confirm the Union’s assessment of the grievances.

16The applicants bear the onus of establishing that the Union failed to honestly consider the merits of the grievances based on relevant considerations and free of irrelevant ones, and make a decision to proceed based on that assessment. They did not satisfy that onus at the consultation, and the Board is of the opinion that no useful purpose would be served by scheduling a full hearing into this matter.

Order

17Having regard to the foregoing, the within applications are hereby dismissed.

“Mary Anne McKellar”

for the Board