Date: 20080123
Docket: A-250-07
Citation: 2008 FCA 27
CORAM: LÉTOURNEAU
J.A.
SEXTON
J.A.
PELLETIER
J.A.
BETWEEN:
HARVEY THIEN
Applicant
and
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION,
SHIP & DOCK FOREMEN LOCAL 514 -and-
WESTERN STEVEDORING LIMITED -and-
WATERFRONT FOREMEN EMPLOYERS' ASSOCIATION
Respondents
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
The Issue
[1]
The
applicant challenges by way of judicial review a decision of the Canada
Industrial Relations Board (Board) which dismissed his complaint pursuant to
section 37 of the Canada Labour Code, R.S.C. 1985, ch. L-2 (Code).
According to the applicant, his Union violated its duty of fair representation
by refusing to represent him in the grievance procedure pertaining to his
entitlement to a retirement allowance.
[2]
The issue
is whether the Board’s decision was patently unreasonable as a result of a
double failure by the Board. The first consists in the Board’s omission to deal
satisfactorily with the applicant’s request for an oral hearing (see paragraph
31 of the applicant’s memorandum of fact and law).
[3]
The second
is the Board’s failure to examine whether the Union violated its duty of fair
representation when the Union did not:
a) appropriately
address the complexity of the issue raised by the applicant (ibidem, at
paragraph 30);
b) assess
the additional complexity pertaining to the structure of the longshore industry
(ibidem, at paragraph 33);
c) address
whether termination by one employer within a group of employers severs all
entitlements, including those concerning possible employment and dispatch with
other employers (ibidem, at paragraph 34); and
d) consider
whether there was any significance in the applicant’s continuing union membership
to retirement.
[4]
The
applicant also contended that the Board erred in law and made erroneous
findings of fact when it found that the applicant was seeking a ruling on the
merits of the Union’s decision: ibidem, at paragraph 29.
[5]
At the
hearing, counsel for the applicant insisted particularly on clause 6.02 of the
collective agreement dealing with Credited Service. His submission in this
respect was that the Union failed to assess the rights
of the applicant under that section which, he says, survive the applicant’s
termination of employment. This failure or omission amounted to a violation of
the duty of fair representation.
[6]
Before I
address the applicant’s grounds of judicial review, I need to relate some of
the facts which led to these proceedings and summarize the decision of the
Board.
The Facts
[7]
The
applicant was an employee of the second respondent in the present proceedings,
i.e. Western Stevedoring Limited. On July 21, 1997, his employment was
terminated for cause, such being that he had deliberately misled his employer
and the Trustees of the Waterfront Foremen’s Welfare Plan (Trustees) with
respect to his disability and ability to work: see applicant’s record, volume
1, at page 13 the letter terminating the employment dated July 21, 1997.
[8]
The
following month, the applicant’s Union initiated a grievance disputing the
termination of the applicant’s employment. The Union reviewed the grievance and a legal
opinion that it sought on the issue. On November 20, 1997, it informed the
applicant that it would not be proceeding with the grievance.
[9]
In this
respect, the applicant filed a complaint with the Board pursuant to section 37
of the Code. The complaint was dismissed. A complaint filed by the applicant
before the Canadian Human Rights Commission was also dismissed.
[10]
In May
2004, the applicant applied for a retiring allowance under the provisions of
the Retiring Allowance Agreement (RA Agreement) between the Union and the
Employers’ Association. On August 12, 2004, he was found to be ineligible by the
Trustees because he was not employed at the time of retirement as required by
the RA Agreement. The section reads:
RETIRING ALLOWANCE
AGREEMENT
This Agreement between
the Companies collectively known as the Waterfront Foremen Employers’
Association (WFEA) and the International Longshore and Warehouse Union (ILWU),
Ship and Dock Foremen, Local 514, is effective from January 1, 1993.
1. Eligible
Members
There
are two categories of Eligible Members, both of whom must be employed under
the terms of the WPEA/ILWU Collective Agreement at the time of their retirement.
[Emphasis added]
[11]
Pursuant
to the Trustees’ refusal, the applicant filed a grievance claiming entitlement
to the allowance. The Union sought legal advice on the
merits of the applicant’s grievance. The legal opinion was to the effect that
the applicant had no chance of success whatsoever because his employment had
been terminated for cause six years earlier. On the basis of that information
and its review of the facts surrounding the grievance, the Union informed the
applicant that it would not represent him. Hence, the applicant’s complaint to
the Board pursuant to section 37 of the code.
The decision of the Board
[12]
The Board
recited the facts and reviewed the jurisprudence governing a complaint that a
union has violated its duty of fair representation. At pages 4 and 5 of its
decision, the Board summarized the essential principles applicable to such
complaints. Then it proceeded to apply these principles to the facts of this case.
[13]
It
dismissed the applicant’s complaint essentially on the basis that he had not
provided sufficient facts to establish a violation of the duty of fair
representation. I reproduce the following two paragraphs found at page 6 of the
Board’s decision which represent the reasons for its dismissal of the
complaint:
Based on the
criteria noted above, the Board has analyzed the facts submitted and the positions
of the parties and finds that the complainant did not provide sufficient facts
to establish that the respondent union has violated its duty of fair
representation.
In this
case, the union and its counsel were well aware of the complainant’s situation
and were of the opinion that a grievance could not be successful, given the
wording of the collective agreement. The fact that the complainant disagrees
with the union’s interpretation of the collective agreement is not sufficient
for the Board to find that the union has violated section 37 of the Code,
especially if the union has not acted with discrimination, arbitrariness or in
bad faith and even if the union’s decision could have been erroneous (see Yvonne
Mistura, supra). Most of the arguments presented by complainant’s
counsel in this case appear to be directed at the merits of the grievance rather
than the manner in which the grievance was handled by the union. As the Board
has stated in numerous past decisions (see Fred Blacklock et al., supra;
and Marinus Van Uden, supra) section 37 of the Code does not
provide an avenue for appealing a union’s decision or a forum for resolving a
difference of opinion between a complainant and its union on the interpretation
of a collective agreement provision.
Analysis of the applicant’s submissions
on judicial review
The Union’s failure to address the
issues mentioned in paragraph 3 a) to d) of these reasons
[14]
The Board
was called upon to decide a straightforward issue which fell within its field
of expertise. As I look at the applicant’s complaints in this judicial review
proceeding, most of them go much beyond the question of whether or not the
Union breached its duty of fair representation when it refused to represent the
applicant in his grievance pertaining to his entitlement to a retirement
allowance. They involve considerations relating to the merits of both the
Trustees’ decision denying him entitlement to the retirement allowance because
he was no longer employed, and the employer’s decision to terminate the
applicant’s employment.
[15]
It is not
disputed that the employer’s decision terminating the employment was final and
binding at the time the applicant made his application for a retirement
allowance. Yet, in my respectful view, the applicant seeks to circumvent or
ignore these two decisions when he requires his Union to consider whether employment was terminated
or not in view of the fact that the longshore industry consists of multiple
employers and that the applicant continued his union membership. In any event,
the applicant provided no evidence that he worked for any other employer,
member of the Association, after the termination of his employment.
The Union’s
failure to consider the clause relating to Credited Service
[16]
This
brings me to the argument based on the Credited Service. I reproduce clause
6.02 relied upon by counsel for the applicant and underline the relevant
portions:
6.02 Credited
Service
(a) Credited
Service is granted after an Employee becomes a Member, and is used to
calculate the amount of pension to which a Member may become entitled.
(b) A
Member shall be granted a year of Credited Service for any year of Waterfront
Service, after he becomes a Member:
(i)
in which he worked for a minimum of 800 hours, or was employed for a
period of not less than 7 months, under the terms of a Collective Agreement; or
(ii) during
which he was a full-time Union official; or
(iii)
during which he was in receipt of time loss benefits under the Waterfront
Foremen’s Welfare Plan, in which case such time will be counted as employment
for the purpose of (i) above;
(iv)
during which he was absent and in receipt of Workers’ Compensation time
loss benefits for the absence, in which case such time up to a maximum of
36 months will be counted as employment for the purposes of (i) above;
(v)
while in receipt of Canada Pension Plan Disability
monthly
benefits for a majority period in a calendar year;
(vi)
during which he was absent because of his participation in an educational or
training program which the Trustees, in their discretion, have determined to be
of benefit to the waterfront industry. The period of Credited Service granted
with respect to participation in educational or training programs may in no
event exceed 24 months.
[Emphasis added]
[17]
The
applicant was found to be disabled under the Canada Pension Plan and by
the Workers’ Compensation Board of British Columbia after his dismissal from employment.
However, his entitlement to disability benefits was retroactive to a date prior
to that dismissal.
[18]
The
applicant’s contention is that the Credited Service survived his termination of
employment and that, therefore, he was entitled to the retirement allowance.
His Union should have considered that in assuming its duty of fair
representation. Failure to do so amounts to a violation of that duty.
[19]
I must say
that it is far from obvious to me that, in the absence of evidence of bad faith
or misconduct, a simple omission to consider clause 6.02, in and of itself,
entails a violation of the duty of fair representation.
[20]
In
addition, it is a debatable issue that the Credited Service survives the
termination of the applicant’s employment. Such a conclusion is not an obvious
one, nor is it one that is foregone. It requires an interpretation of the RA
Agreement and the collective agreement.
[21]
Furthermore,
a reading of clause 6.02 shows that the purpose of the clause is to ensure that
an employee will not be penalized if he suffers a break in service as a result
of, among other things, disability or his participation in an educational or
training program. Indeed, clause 6.02(k) stipulates that “No person shall
receive benefits from this Plan and the Longshore Plan in respect of more years
of Credited Service than are included in the benefit calculation for a Member
who has no breaks in service”.
[22]
Finally,
clause 6.02, as it appears from subparagraph (a), relates to the computation of
the years of service, not to the entitlement to the pension. Subparagraph (a)
clearly states that Credited Service “is used to calculate the amount of
pension to which a Member may become entitled” (emphasis added).
Entitlement is determined by clause 1 of the RA Agreement previously cited.
Whatever the adjudicative authorities under the Canada Pension Plan or the B.C.
Workers’ Compensation Board decided in relation to the disability of the
applicant, his entitlement to the retirement allowance remains governed by the
agreement negotiated between the Union
and the Employers’ Association, in this case the RA Agreement.
[23]
Counsel
for the Union conceded that there is in the correspondence no express reference
to clause 6.02 and the Credited Service. However, he submits that that issue
was implicitly considered in the legal opinion which analyzed the merits and
the chance of success of the applicant’s grievance. He referred us to the
following considerations at pages 74 and 75 of the Applicant’s Record, volume
1:
In this case Mr. Thien’s
employment relationship was brought to an end through the action of the
employer. The Collective Agreement clearly recognized the employer’s management
right to discharge employees for just cause. We are therefore of the opinion
that no arbitration board could possibly reach a conclusion that Mr. Thien’s
employment had not been terminated.
We have also considered
the question of whether Article 19(3) of the Collective Agreement would result
in any different conclusion. That article deals with the calculation of
creditable years of service for vacation pay purposes and allows “due
consideration” to be given for “broken service” on account of sickness, injury
or other reasonable causes.
In our opinion the
concept of “broken service” cannot influence a determination of whether a
person is employed at the time of their retirement. Broken service would
typically apply where a person maintained an employment relationship but was
not actively employed due to layoff, illness or leave of absence.
Article 19 of the
Collective Agreement can therefore not overcome the fact that Mr. Thien’s
employment was terminated prior to the time of his retirement.
[Emphasis added]
[24]
The conclusion
that “the concept of broken service cannot influence a determination of whether
a person is employed at the time of their retirement” is consistent with clause
6.02(a) which refers to the amount of pension “to which a Member may become
entitled” and with section 1 of the RA Agreement which says that, in order
to be eligible to the allowance, the Member must be employed at the time of
retirement (emphasis added).
[25]
In
conclusion, I think that the applicant’s allegations of failure on the part of
his Union to address issues a) to d),
previously mentioned, and the issue of Credited Service are not substantiated. Therefore,
there was no failure on the part of the Board to examine whether the Union
violated its duty of fair representation.
The applicant’s demand for a hearing
[26]
The Board
is not bound to hold a hearing according to section 16.1 of the Code. In the
case at bar, it concluded that the material provided was sufficient to enable
it to decide the section 37 complaint. I see no error in the Board’s decision
which requires or justifies the intervention of this Court.
Whether the Board erred in law or in fact
when it found that the applicant was seeking a ruling on the merits of the Union’s decision
[27]
I am not
clear what this complaint addresses. The Union’s decision was a decision not to
represent the applicant. The Board’s conclusion was on a different issue. The
Board was of the view that most of the applicant’s arguments appeared to be
directed at the merits of the grievance rather than the manner in which the
grievance was handled by the Union: see page 6 of the Board’s
decision.
[28]
The
applicant has not shown that this conclusion was erroneous, whether in fact or
in law.
Conclusion
[29]
For these
reasons, I would dismiss the application for judicial review with costs to both
respondents.
“Gilles
Létourneau”
“I
agree
J. Edgar Sexton J.A.”
“I
agree
J.D.
Denis Pelletier J.A.”
Email this Content