Appearances:

Fair Representation -- s. 151(1) — Where applicable — Union to give due and fair consideration to minority interests — Collective bargaining to be narrowly viewed where used as sheild against fair representation complaint — Opportunity for democratic participation of members required.

In August, 1993, University of Alberta employees working in the Provincial Laboratory were transferred to the University of Alberta Hospitals ("UAH").  On accepting employment with UAH, the transferred employees became members of the Health Sciences Association of Alberta ("HSAA").  By way of a Letter of Understanding entered at that time, it was agreed that the seniority of the transferred employees would be recognized by the parties.

In later collective bargaining, HSAA and the Alberta Hospital Association ("AHA") entered into a Memorandum of Agreement which revised the method for calculating seniority.  Seniority would thereafter be calculated on the basis of hours worked, rather than date of employment.  Previous seniority would be converted from years into hours.  The memorandum was ratified by membership in April, 1994.

Initially, transferred employees were credited with 7 3/4 hours per day for seniority calculation purposes.  In fact, they had worked 7 hours per day.  By agreement with HSAA, UAH recalculated transferred employees' seniority based on 7 hours per day, reducing their seniority by about 200 hours per year. The transferred employees filed an application for an order directing HSAA to cease and desist the breach of its duty of fair representation, and for an order restoring seniority.

HSAA argued that the duty of fair representation did not extend to collective bargaining.  It categorized its discussions with UAH, regarding the seniority of the transferred employees, as bargaining and not subject to s. 151(1).  The Board agreed the duty of fair representation did not apply to collective bargaining, but disagreed that the discussions with UAH constituted collective bargaining under s. 1(a).

The Board found that HSAA failed in its duty of fair representation. It held that collective bargaining must be viewed narrowly when used as a shield to protect against a duty of fair representation complaint.  The opportunity for democratic participation by affected members, requisite in collective bargaining, was not provided by HSAA.  Discussions were not entered into on behalf of the collective membership, and were prejudicial to the interests of the transferred employees.  As well, at the time of discussions, the collective agreement had been concluded and was in effect.

The Board concluded that the Letter of Understanding entered at the time of transfer provided for a "seamless transfer of seniority rights," unaffected by the later collective agreement.  While it did not find malfeasance on behalf of HSAA, the Board directed that HSAA immediately cease and desist the breach of its duty of fair representation.  It further directed HSAA and UAH to restore full seniority to the transferred employees.

¶ 1      Mark L. Asbell, Vice-Chair:      This application involves a duty of fair representation complaint brought by 44 employees of the University of Alberta Hospitals (the "UAH") against the Health Sciences Association of Alberta ("HSAA"). The 44 employees (the "Complainants") were all former employees of the University of Alberta ("U of A") employed at the Provincial Laboratory of Public Health for Northern Alberta ("Provincial Laboratory").

¶ 2      The Complainants and HSAA entered an Agreed Statement of Facts and the Board Officers' Report by consent. The facts are undisputed and disclose the following.

¶ 3      On August 1, 1993 the U of A transferred the operation of the Provincial Laboratory to the UAH.  The U of A Board, UAH, Non-Academic Staff Association ("NASA," the union representing the Complainants at the time) and HSAA entered into a Letter of Understanding addressing each parties' obligations with respect to the employees involved.

¶ 4      The parties agreed that employees employed with the Provincial Laboratory who accepted employment with the new employer would have their seniority recognized by HSAA.  The parties agreed that seniority would be calculated in accordance with the collective agreement then in force between NASA and the University of Alberta.

¶ 5      The Letter of Understanding, dated July 2, 1993, reads in part:

¶ 6      Seniority and service in the NASA and U of A collective agreement reads:

      1.28 Service means cumulative employment of an employee.

¶ 7      The transfer became effective August 1, 1993. NASA provided its seniority lists to HSAA the same day.

¶ 8      Around this time, HSAA was preparing for negotiations as the provincial collective agreement, to which UAH is also a party, had expired on March 31, 1993.  One of the concerns HSAA heard from their membership was the method of calculation of seniority for full-time and part-time employees.  Under HSAA's existing agreement, full-time employees accrued seniority based on their date of employment and part-time employees based on hours they worked.

¶ 9      During negotiations, HSAA sent regular updates to the membership, including the transferred employees from the U of A.

¶ 10      At the time of these negotiations, HSAA was aware that employees transferred from the U of A working at the Provincial Laboratory had previously worked a 7 hour day as opposed to the 7 3/4 hour day they now worked and always worked by the UAH employees.  HSAA first became aware of the differential in daily hours at the beginning of discussions involving the transfer of employees from the U of A to UAH

¶ 11      On March 28, 1994  the Alberta Hospital Association ("AHA") and HSAA signed a memorandum of agreement. HSAA sent a letter to all members affected by provincial negotiations on March 31, 1994.  The letter included a detailed summary of the negotiations, articles agreed to and instructions about the ratification process.  Additionally, the letter included the following changes to seniority provisions.  Neither the letter nor memorandum of agreement addressed the differential in daily hours between the UAH employees and those transferred from the U of A.

¶ 12      The memorandum of agreement included Letter of Understanding #2 about Retroactive Seniority Calculations.  It reads:

¶ 13      The employees ratified the memorandum of agreement on April 28, 1994.  HSAA signed the collective agreement containing Letter of Understanding #2 on August 23, 1994 and the AHA did the same on October 11, 1994.

¶ 14      The first seniority lists were circulated to the employees in July, 1994 based on 2022.75 hours per annum. When several employees at UAH questioned the hours of the transferred employees from the Provincial Laboratory, Ms. Lynette McAvoy, a Labour Relations Officer for HSAA, met with Mr. Mark Johnson of UAH to discuss the method of calculation of seniority hours utilized by UAH in reaching its seniority list.  This meeting occurred in mid-October, after the expiry of the time limit provided for in Letter of Understanding #2. Ms. McAvoy questioned Mr. Johnson as to whether UAH had taken into account that the transferred employees from the U of A had previously worked only a 7 hour day as opposed to 7 3/4 hours.  Mr. Johnson did not provide an immediate answer but subsequently informed Ms. McAvoy that UAH based its decision on 2022.75 hours per annum.  The UAH arrived at this figure using a 7 3/4 hour per day base for all employees, including those transferred from the U of A working at the Provincial Laboratory.

¶ 15      In light of this, HSAA concluded that as the employees transferred from the U of A had previously worked 7 hour days, their calculations for seniority should be based on this amount.  As such the calculation used for their seniority should be 1827 hours per annum rather than 2022.75 hours per annum.

¶ 16      On October 25, 1994 Ms. McAvoy sent a letter to Mr. Johnson confirming their discussions about the calculations for seniority of those employees transferred from the U of A.  This information was also provided to Ms. Rita Vickers as the local representative for the Provincial Laboratory employees. Ms. Vickers told Ms. McAvoy that she was not happy with the decision but she did not pursue it further with Ms. McAvoy.

¶ 17      In January 1995, a new seniority list was posted. Calculations were the same as those on the earlier list based on 2022.75 hours for all employees including those in the Provincial Laboratory.

¶ 18      On March 27, 1995 UAH, after consultation with HSAA, sent letters to the Provincial Laboratory employees changing the seniority and indicating their seniority would be based on 1827 hours per annum.  This had the effect of reducing the number of hours of seniority credited to the various Complainants.

¶ 19      The Complainants contacted HSAA and requested that HSAA arrange with UAH to restore full seniority entitlement provided for under the collective agreement.  HSAA refused to do so.

¶ 20      The Complainants now seek a cease and desist order as well as an order that HSAA and Ms. McAvoy take all necessary steps to reinstate their lost seniority and do whatever else is necessary to make them whole.

¶ 21      Unions owe a duty of fair representation to their members pursuant to section 151(1) of the Code.  This section reads:

¶ 22      HSAA states it was faced with a situation where 53 former employees of the Provincial Laboratory joined 187 other employees already with UAH.  Given that the two groups calculated seniority differently, HSAA took the position that the fairest way to proceed was to base seniority on hours worked per annum.  Therefore, the former employees of the Provincial Laboratory had their seniority based on 1827 hours per annum, while other employees had their seniority based on 2022.75 hours per annum.  HSAA considered itself caught between a rock and a hard place.

¶ 23      In achieving this end, HSAA considered the discussion about seniority in Letter of Understanding #2 attached to the collective agreement to be ambiguous in relation to the transferred employees from the U of A. Specifically, HSAA considered the reference to "continuous employment" in paragraph 2 of Letter of Understanding #2 to be unclear.  It reads in part:

¶ 24      Continuous employment in HSAA's opinion only applied to employees continuously employed by UAH and did not address the transferred employees' service before the transfer.  As such, HSAA considered it well within its right to negotiate a clarification in regards to the transferred employees.   The Complainants allege that HSAA has failed to represent them by asking or demanding that the UAH do something detrimental to these employees which is contrary to the collective agreement and contrary to the earlier July 2, 1993 merger/seniority letter of understanding.  Seniority in Letter of Understanding #2 was based on 2022.75 hours per annum.  There was an element of rough justice in this number as the collective agreement does not specify a 7 3/4 hour day which was used as the base number for the 2022.75 hours per annum.  Rather the figure was arrived at through an assumption based on all paid hours including hours worked, holidays, overtime and call backs.  While this is calculable for the UAH employees, the former U of A Provincial Laboratory employees were not paid a differential for shift work nor daily overtime, despite regularly working 30 minutes to 1 hour a day over and above their regular 7 hour shifts.  Thus, they claim, a calculation based on actual hours worked is unfair.

¶ 25      The Complainants take the further position that Letter of Understanding #2 attached to the collective agreement was meant to ensure a "seamless transfer" and that "continuous employment" clearly included service and employment while in the employ of the U of A.

¶ 26      Both the Complainants and HSAA know the union was in a difficult position.  The Complainants readily acknowledge the rationale behind HSAA actions.  Notwithstanding this, the Complainants state HSAA still owes them a duty of fair representation.  They claim HSAA's decision adversely affected them and they were not given an opportunity to address their concerns.  It was an administrative decision without any consultation, general meeting or vote.

¶ 27      The Board's role in duty of fair representation complaints is not to substitute its decision for that of the union.  The Board's Information Bulletin #18 describes the content of the duty of fair representation as follows:

¶ 28      Unlike some other jurisdictions in Canada, a unions' duty of fair representation to its members in Alberta arises only with respect to employee rights contained in the collective agreement.  No such duty exists for matters arising from or out of collective bargaining.

¶ 29      The Complainants argue this matter arises out of the collective agreement.  They suggest the Canada Labour Relations Board specifically addressed this matter as it relates to seniority in Brian J. O'Connor v. Canadian Air Line Pilots Association et. al, (1991) 85 di 78, Board File: 745-3506, Decision no. 871 (H.R. Jamieson, Vice-Chairman). The Canada Board held that the method of determining seniority which influences rights flowing from a collective agreement is a subject that comes within the scope of the duty of fair representation complaint if the process is contained in the union's constitution, by-laws or other internal process.  At pages 82 and 83, the Board stated:

¶ 30      HSAA did not argue that the method of determining the seniority position on the list can be separated from the seniority rights included in the collective agreement.  There can be little dispute that seniority and its computation are rights that fall under the collective agreement.  Here, however, the method of determining the seniority position appears to have changed as a result of discussions between the bargaining agent and the employer.  The issue becomes whether this is collective bargaining and, if so, whether the union still owes a duty of fair representation to its members for matters arising out of the discussions.

¶ 31      The Complainants acknowledge that in Alberta the duty of fair representation does not extend to collective bargaining.  This is confirmed in Gallagher and Lougheed v. Hotel Employees Local 47 et al, [1992] Alta.L.R.B.R. 460; reversed in part [1993] Alta.L.R.B.R. 287 (Q.B.); Board upheld on review [1994] Alta.L.R.B.R. 333 (C.A.).  At pages 480 and 481 of the original decision, the Board stated:

¶ 32      The Complainants contend this application is not restricted by the principle outlined in Lougheed and Gallagher as this is not a matter involving collective bargaining.  They note HSAA and UAH based their original calculations for seniority purposes in the collective agreement at 2022.75 hours per annum.  This figure was included in the memorandum of agreement and ratified by the membership.  Following these collective negotiations, and pursuant to the terms of the collective agreement, UAH completed its seniority list and compiled the employees' placing on that list.

¶ 33      The Complainants argue what happened next cannot amount to "collective bargaining."  By confirming letter dated October 25, 1994, almost six months after the ratification of the memorandum of agreement and outside the term set for any amendment to the seniority list, Lynette McAvoy of HSAA raised concerns with Mark Johnson of UAH about the seniority list. Only then did HSAA request that UAH re-calculate the seniority list basing the Complainants' past service on 1827 hours per year rather than the 2022.75 required in the letter of understanding.  UAH did not immediately comply, instead posting an updated seniority list in January 1995 continuing to base seniority on 2022.75 hours per annum for all employees including those transferred from the U of A.  Only after further consultation with HSAA did UAH send out a revised seniority list on March 27, 1995 based on 1827 per annum for the former employees of the U of A.

¶ 34      What is "collective bargaining" and why is a union protected against duty of fair representation allegations arising out of collective bargaining?

¶ 35      Both "collective bargaining" and  "collective agreement" are defined in section 1 of the Code.  The sections reads:

¶ 36      From these definitions, we conclude that in its broadest sense collective bargaining means

¶ 37      The rationale for the Code's protection of a union against a duty of fair representation complaint while bargaining is that a union, when bargaining, is acting on behalf of a collective identity.  A union represents a large number of interests and concerns, many of which conflict even in the best of times.

¶ 38      Further, our Code is based on the rights and opportunities of individuals to express their views through a democratic vote.  The democratic ideals expressed in the legislation allow individuals to vote on matters of interest to them, thereby (by intent at the very least) enabling them to voice their approval or disagreement with the issue at hand.  The opportunity to vote, as in any democratic entity, enables an individual to have a say   to give voice to their concerns.  In any democratic process, when put to a vote, one side wins and others lose.  But at least a voter has the right to express their point of view.  A person who votes but whose side or issue fails at least had the opportunity to sway others and express their interest.

¶ 39      In the collective bargaining schematic utilized by HSAA and most other unions, such opportunity for its members to express their choice is made available through the negotiation and ratification process.  Article VII, of HSAA's Objects and Bylaws sets out its negotiation and ratification procedure.  This Article reads:

¶ 40      It is clear from a review of HSAA's Objects and Bylaws that collective bargaining, from the Union's own perspective, entails not only negotiation with a view to the conclusion, revision or renewal of an agreement in writing containing terms or conditions of employment, but also that any memorandum of agreement reached be first vetted by the Labour Relations Conference and then ratified by the membership.  The process provides an opportunity for members to provide input and have discourse on topics or issues of concern.  Its a fair and equitable opportunity open to all affected members.

¶ 41      It is this process which is protected against duty of fair representation complaints.  This is not the process which is before us now, however.

¶ 42      In the situation before us, the collective agreement including the seniority calculations had already been negotiated, vetted, approved and ratified.  Almost one year after reaching agreement on the collective agreement, Ms. McAvoy, on behalf of HSAA convinced UAH to amend its seniority list to comply with HSAA's new calculations.

¶ 43      Although the discussions between Ms. McAvoy and Mr. Johnson could be seen to fall within the general definition of "collective bargaining" as outlined above as they were negotiations, between UAH and HSAA with a view to the revision of an agreement in writing containing terms or conditions of employment, we are of the opinion that collective bargaining, when used as a shield to protect against a duty of fair representation complaint, must be viewed narrowly as opposed to broadly.  To view collective bargaining in its broadest context could cover virtually all discussions involving changes or potential changes to a collective agreement, letter of understanding or side deals of any description between a union, its members and the employer. This is surely not what was intended by the Legislators. Likewise, the form of discussions engaged in by Ms. McAvoy and Mr. Johnson cannot be the form of collective bargaining the Legislators intended to protect a union from with respect to a union's duty of fair representation.

¶ 44      When examining "collective bargaining" for these purposes, at the very least collective bargaining must be interpreted to include that the bargaining agent is acting on behalf of its collective members in a fair and equitable manner.  The union cannot act in an exclusionary, arbitrary or discriminatory manner towards a minority of its members.  The union must allow or give these members the opportunity to express their wishes.  To do otherwise is not equitable nor can the union be said to be acting on behalf of its collective membership.

¶ 45      This was not collective bargaining within the context meant to be protected against duty of fair representation complaints.  There was no possibility for employee input.  There was no democratic opportunity for members to express their wishes.  We are satisfied that this was not "collective bargaining" in the context protected in the Code.

¶ 46      In Donna Burton v. HSAA, [1995] Alta. L.R.B.R. 310, the Board examined the fairness of the union's actions. In Donna Burton, the Board heard that historically HSAA had reinstated seniority for former members moving back into the bargaining unit.  However, as a result of cutbacks in the health industry, more and more former members were moving back into the unit from management positions.  To address this problem, HSAA developed a new policy whereby it would no longer reinstate seniority.  This policy, however, came into effect too late as far as the complainant in that case was concerned as the union refused to  make the policy retroactive.  In dismissing the duty of fair representation complaint the Board stated at page 315:

¶ 47      In Donna Burton, the Board found no violation of the union's duty of fair representation even though HSAA was "between a rock and a hard place."  Donna Burton, however, is the flip side of what is before the Board here.  In that case, HSAA realized it had conflicting interests and embarked upon a mechanism of addressing the problem.  It consulted its membership, then implemented the solution but "(did) not make the decision retroactive as this would  be unfair to those members who had relied on its prior practice."  HSAA's decision in Donna Burton did not impose the wishes of the majority upon the minority.  The decision did not trample rights nor unfairly affect others.

¶ 48      In the case before us now, however, HSAA failed to consult with its membership; failed to investigate how their decision would affect others; failed to consider other options; failed to disclose its actions to those affected; failed to consider all relevant matters or even investigate into other relevant matters; took one side's opinion over another while being in possession of superficial facts and without concern for the other side's interests; failed to perform a thorough investigation of all the facts, and imposed its decision retroactively.  It failed to apply the collective agreement, negotiated and ratified by all employees, to all employees.

¶ 49      Despite the fact HSAA knew before the transfer of these employees to UAH that they worked different hours from those employed at UAH, it chose not to address the issue during negotiations for the collective agreement.  Rather, it waited until after the memorandum of agreement had been negotiated, ratified, signed and the deadline passed for changes before it acted upon the differential.  If, in fact, HSAA did not view the transfer as including a "seamless transfer" of seniority rights, it should have dealt with the issue during negotiations for the collective agreement.  The fact they chose not to negotiate a differential during collective bargaining indicates HSAA either considered the seniority to be seamless or it simply missed the issue entirely and attempted to rectify it after the fact.

¶ 50      Either way, the manner in which the Union demanded and received a change to the Complainants' seniority status is the epitome of arbitrariness.  Having said this, however, we have no doubt HSAA did not intend to cause any impropriety or wrongdoing.  As everyone acknowledged, HSAA truly was between "a rock and a hard place."  Seniority issues pitting one group of members against another are very often "no winners" for unions.  No matter what they do or how they handle the situation, one group of members will always feel aggrieved by the union's actions and decisions.  In light of this and HSAA's lack of intent to cause harm, we find no evidence of bad faith or malfeasance.  This, however, does not negate HSAA's obligations or duty.

¶ 51      In situations involving a merger of one group of employees into another, (more frequently seen in successorship situations), unions must proceed with great caution to ensure they do not   unwittingly, inadvertently or otherwise   take one group's position over another's without due and fair consideration.  This situation is rife for abuse, especially when emotions are running high because of real or perceived threats to employees positions.  In such situations unions must make themselves aware of minority interests and provide fair and reasonable opportunity for all concerned.   For all these reasons, we find HSAA has violated its duty of fair representation.  With respect to the complaint against Ms. Lynette McAvoy, we are satisfied she was performing her duties under the supervision and complete control of HSAA.  Her actions must be viewed as those of an employee of HSAA operating with its full consent and authority.  We are not prepared to find any violation of the Code by her.

¶ 52      As these complaints were originally filed on June 16, 1995, we recognize much may have changed at the work site and, therefore, we may not be aware of all the pertinent information necessary to adequately address this matter. Notwithstanding this, however, and especially because all parties acknowledge that HSAA is facing competing interests and may be unable to properly address this matter without the Board's input, we order the following:

¶ 53      We reserve jurisdiction with respect to any and all other damages which may have arisen with respect to these Complainants as a result of HSAA's failure to properly represent its members.

QL Update:  970423
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