1169-00-U Dale Craig, Marie Bennardo, Charles Milson, Doug May and Richard Marcott, Applicants v. CAW, Local 414 of the National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Responding Party v. The Great Atlantic & Pacific Company of Canada, Limited, Intervenor.
BEFORE: Timothy W. Sargeant, Vice-Chair.
APPEARANCES: Charles Milson, Marie Bennardo, and Doug May for the applicants; Jeffrey Andrew Mike Langdon, Joanne Murphy and Chris Connor for the responding party; Peter F. Chauvin, Lith Martell and Janice Carney for the intervenor.
DECISION OF THE BOARD; May 9, 2001
1This is an application brought pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as amended (the “Act”) alleging that the responding party has breached section 74 of the Act.
2A consultation was held on May 2, 2001.
3The intervenor (“A&P”) operated a retail food store (Store #340) at 1147 Barton Street, Hamilton. This Store is one of a number of stores which prior to August of 2000 was covered by a collective agreement between the responding party (the “Union”) and A&P which agreement expires July 7, 2001 (the “Dominion Collective Agreement”).
4A&P and the Union have a long history of collective bargaining and have developed a very professional and sophisticated relationship over the years.
5Store #340 was operating as a Superfresh Store in April of 2000. In that month Mr. Zakrzewski, Vice-President, of Labour Relations had approached the Union Local Director, Mr. Mike Langdon, that A&P was concerned that this location was not going to remain competitive and that changes were necessary.
6In 1997 A&P had acquired The Barn, a retail food enterprise servicing the Niagara Area. A&P had determined that Store #340 would be more competitive under The Barn banner and thought this would be a way of keeping Store #340 viable. To operate under The Barn banner, A&P required new terms and conditions of employment.
7In order to preserve jobs, Mr. Langdon agreed to negotiate new collective terms which would be applicable to The Barn franchises including Store #340.
8A proposed collective agreement was finalized concerning The Barn franchises and the terms of such agreement were put to the members of Store #340 on May 28, 2000. Two pieces of literature were handed out at the meeting as well as the proposed agreement. One piece of literature outlined three options relating to the conversion of Store #340 a Barn operation. The three options were:
employees could exercise certain bumping rights under the terms of the Dominion Collective Agreement;
employees who faced a rate reduction as a result of the termination and elected to terminate their employment would receive enhanced severance pay over and above that provided by the Employment Standards Act and;
if any employee elected to stay with The Barn and had a rate reduction such employee would receive a partial severance pay package.
The specific terms of the entitlement were set out in the literature. The second piece of literature outlined the major changes in the proposed collective agreement from these provisions in the Dominion Collective Agreement.
9It should be noted that Store #340 under the Dominion Collective Agreement was listed as a “B” store. The “A” stores under such agreement are considered more competitive and operate under certain more favourable terms than the less competitive “B” stores.
10Further there is no issue that certain of the monetary terms and benefits under the proposed The Barn Collective Agreement are less favourable than those contained in the Dominion Collective Agreement, even for “B” stores.
11At the meeting held on May 28, 2000 it was agreed that no vote would be taken and that employees would be given an opportunity to review the documents presented at the May 28, 2000 meeting.
12A further meeting was scheduled for June 4, 2000. A discussion ensued and at the end of the discussion those present voted 37-11 in favour of accepting the proposed The Barn Franchise Collective Agreement and the three options offered.
13All the applicants at the time of ratification were employed at Store #340.
14The applicants submit that the Union should not have taken Store #340 out of the Dominion Collective Agreement. In the applicants’ view the Union should have let Store #340 remain under the Dominion Collective Agreement until the expiry of that agreement in July of 2001. At that time the full membership of around 5600 would have an opportunity to consider the proposals for Store #340. The applicants allege that Mr. Langdon had no right to bargain The Barn proposed agreement, but that under the Dominion Collective Agreement such negotiations should have been done by a duly appointed bargaining committee. It is further alleged that all members, not just members of Store #340 should have voted on the proposed The Barn agreement as certain bumping rights offered under the proposal could affect other employees covered by the Dominion Collective Agreement. It is alleged that the Union did not properly consider the problems and concerns of the applicants when it negotiated The Barn Franchise agreement.
15The Union submits that it had a choice to make when approached by the Company. It could have refused to negotiate new terms and then quite possibly be faced with a closure of Store #340. A&P had closed other non-competitive stores. While the applicants may not agree that the Store #340 was not competitive, the Union felt for the benefit of its members at Store #340 and to preserve jobs it would be more beneficial to negotiate The Barn Collective Agreement. It thus negotiated and achieved enhanced severance pay entitlements for certain of its members. It is submitted that the Union has not violated section 74 of the Act in its dealings in this matter.
Decision
16Section 74 of the Act states:
- 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.
17The terms “arbitrary”, discriminatory” and in “bad faith” have been considered by the Board on a number of occasions. The Board has stated that only conduct which can be described as implausible, so reckless as to be unworthy of protection, unreasonable, suspicious or negligent will amount “arbitrary” conduct. The term “discriminatory” has been interpreted to refer to the disparate treatment of bargaining union members without cogent reasons. “Bad faith” has been interpreted to refer to actions or decisions motivated by hostility, ill-will or other improper considerations.
18In this situation the Union was faced with an approach by the employer who it had established relationships with, that Store #340 needed changes to become viable. The Union had no reason to distrust the employer and acted for what it considered would be for the benefit of a majority of its members at Store #340. Though understanding the disappointment of the applicants, the Board will not interfere or second guess such a decision unless it is convinced that the Union had been arbitrary, discriminatory or acted in bad faith. As the Board has stated in Dufferin Aggregates [1982] OLRB Rep. Jan 35 at page 39.
“The fact that a union may be required in bargaining to make a hard decision that has serious economic impact on individuals, up to and including the loss of their jobs, cannot in and of itself make that decision unlawful. That kind of decision is, moreover, not unusual. In making collective agreements it is practically impossible for the unions to avoid making decisions that benefit one class of employee at the expense of another. For example when a union opts for more wages rather than better pension provisions it benefits its younger members rather than the older ones. Trade-offs of that kind are the everyday stuff of collective bargaining… There is nothing inherently unlawful in a union making a decision that favours a group of employees over another”.
19Though the above decision is distinguishable on its facts, the same kind of rationale would be applicable to these circumstances. The Board, in this instance, sees no reason to second guess the union’s conduct. The union allowed its members at Store #340 an opportunity to review the proposed collective agreement and turn down the proposal. The majority accepted. The Board thus finds that the Union did not act arbitrarily, discriminatory or in bad faith as those terms have been interpreted by the Board. The Board is further of the opinion that Mr. Langdon’s actions in meeting with the Company to negotiate a new collective agreement for The Barn Franchises were reasonable given the situation and did not breach section 74 of the Act. It is to be noted that it was not the Dominion Collective Agreement that was being renegotiated.
20For all the above reasons, the Board exercises its discretion and dismisses this application.
“Timothy W. Sargeant”
for the Board