Reasons for decision

Parrish & Heimbecker, Limited,

complainant,

and

Maritime Employers Association,

respondent,

and

International Longshoremen’s Association, Local 1654,

certified bargaining agent.

Parrish & Heimbecker, Limited,

complainant,

and

Maritime Employers Association,

respondent,

and

International Longshoremen’s Association, Local 1654,

employer.

The panel of the Canada Industrial Relations Board (the Board) was composed of Ms. Allison Smith, Vice-Chairperson, and Messrs. André Lecavalier and Gaétan Ménard, Members.

Counsel of Record

Mr. Robert W. Weir, for Parrish & Heimbecker, Limited;

Mr. John Mastoras, for Maritime Employers Association;

Mr. Ronald A. Pink, Q.C., for International Longshormen’s Association, Local 1654.

These reasons for decision were written by Ms. Allison Smith, Vice-Chairperson.

I. General Descriptions of the Complaints

[1] Parrish & Heimbecker, Limited (P&H) filed two Complaints with the Board against the Maritime Employers Association (the MEA or the Employer Representative) pursuant to section 97(1) of the Canada Labour Code (Part I–Industrial Relations) (the Code). P&H alleges that the MEA has violated the duty of fair representation (DFR) that it owed to P&H under section 34(6) of the Code. The first Complaint bears Board file no. 32767-C and was filed on September 28, 2018. The second Complaint bears Board file no. 32891-C and was filed on January 16, 2019.

[2] Given that the two Complaints are based on similar facts and allege similar violations, the Board decided, as per section 20 of the Canada Industrial Relations Board Regulations, 2012, to consolidate the two proceedings and informed the parties of its decision to do so on January 24, 2019.

II. The Parties and Certification in the Longshoring Industry

[3] Section 34 of the Code deals with certification in the longshoring and other industries. Section 34(1) grants the Board the power to determine, for employees engaged in the longshoring industry:

34 (1) ... that the employees of two or more employers actively engaged in the industry in the geographic area constitute a unit appropriate for collective bargaining and [the Board] may, subject to this Part, certify a trade union as the bargaining agent for the unit.

[4] When the Board issues an order for a geographic certification, it must then order the employers of the employees in the bargaining unit to choose a representative pursuant to section 34(3).

[5] Pursuant to section 34(5), that employer representative:

34 (5) ... shall be deemed to be an employer for the purposes of this Part and, by virtue of having been appointed under this section, has the power to, and shall, discharge all the duties and responsibilities of an employer under this Part on behalf of all the employers of the employees in the bargaining unit, including the power to enter into a collective agreement on behalf of those employers.

[6] The International Longshoremen’s Association, Local 1654 (the ILA) is the certified bargaining agent for a unit of employees employed as longshoremen in the Port of Hamilton (POH) described as:

all employees of the employers in the longshoring industry in the Port of Hamilton employed as longshoremen, save and except the employees of St-Lawrence Warehousing Limited operating as Seaway Terminals who are represented by the International Union of Operating Engineers, Local 793, and who are represented by Teamsters’ Local Union No. 938 and Teamsters’ Local Union No. 879 for bulk cargo activities.

[7] The MEA is the designated Employer Representative for employers of employees represented by the ILA in the POH.

[8] P&H is an integrated agribusiness encompassing grain trading, flour milling, feed milling, farming and food production. P&H has terminals in a variety of Canadian ports, including the POH.

[9] The MEA and the ILA are parties to a collective agreement which binds the ILA, its members and member employers in the POH. At the time that the present Complaints were filed, on September 28, 2018 and on January 16, 2019, the most recent collective agreement between the parties ran from 2010 to 2017; however, the terms of that collective agreement were in force at the time of the events described herein. Further, at the time that the Complaints were filed, the MEA and the ILA were engaged in collective bargaining for a renewal collective agreement. The Board understands that a renewal collective agreement was negotiated and subsequently ratified.

III. Background to the Present Complaints

[10] On July 1, 2018, P&H ordered labour from the ILA to load grain onto a ship.

[11] At approximately 9:45 a.m. on July 1, 2018, and while there was only one ILA member on board, a spout accident occurred resulting in significant damage to P&H’s vessel. P&H estimates its damage to be in the range of one million dollars.

[12] From July 6 to 12, 2018, P&H conducted an investigation into the accident. It states it learned of the 2:40 Practice during the course of its investigation.

[13] At its most simple, the 2:40 Practice involves the organization of staffing for shifts and allows each employee dispatched to a grain vessel to two hours and forty minutes where they are not performing duties on the grain vessel during an eight-hour shift. A given eight-hour shift is broken up into three segments of two hours and forty minutes. The shift commences with only two employees. Two hours and forty minutes into the shift, the third employee arrives to commence work. When this third employee arrives, one of the two employees who had originally commenced the shift leaves for two hours and forty minutes. Following passage of the second instalment of two hours and forty minutes, the member who left after the arrival of the third member returns to the ship and the other employee who first commenced the shift leaves and does not return. The Board understands that once dispatched, the three employees decide amongst themselves the order in which they will take their respective two-hour-and-forty-minute periods where they are not performing duties on the grain vessel.

[14] The 2:40 Practice is not provided for in the collective agreement. It is a long-standing practice that has been agreed to between the MEA and the ILA and that it was in place before P&H began operations in the POH.

[15] The ILA states that there is no requirement that all three dispatched employees be on-site at all times.

[16] The MEA states that correctly followed, the 2:40 Practice ensures that two employees are on duty at all times during a shift.

[17] There are five MEA Employers in the POH, of which three are grain companies subject to the 2:40 Practice.

[18] P&H states that the 2:40 Practice violates the collective agreement.

[19] P&H also states that the 2:40 Practice treats it and other grain industry members of the MEA in a discriminatory fashion as it only applies to employees dispatched to an MEA member employer engaged in the grain industry.

[20] P&H argues that this discriminatory and unequal treatment of employers in the grain industry demonstrates that it and other grain handlers have not received the same bargain as the other MEA member employers and that the MEA meaningfully represents some employers better than others.

[21] According to the MEA, it learned of the accident on July 7, 2018 when it was copied in an email from the ILA to P&H. It also states that it then left a message with P&H that same day asking for particulars of the accident.

[22] Having completed its investigation, P&H determined that the 2:40 Practice was in violation of the collective agreement and also caused the accident. It decided to file a grievance against the ILA, copying the MEA, on July 19, 2018, alleging that:

The Union has authorized and/or supported and/or encouraged and/or condoned and/or had knowledge of its members dispatching, scheduling and taking rest periods contrary to the relevant articles of the collective agreement. The Union has upheld and supported shirking of work and incompetence in violation of section 2.09 of the Collective Agreement.

[23] The ILA responded on the same day, refusing to recognize P&H’s grievance as it had not been filed through the MEA, the Employer Representative, as in the system contemplated by section 34 of the Code, it is the Employer Representative and not individual employers who have a relationship with the union, in this case, the MEA and the ILA.

[24] Also on July 19, 2018, the MEA began its own investigation of the accident.

[25] On July 20, 2018, P&H wrote to the MEA seeking permission to pursue the grievance against the ILA directly. P&H also requested the MEA’s position on the merits of the grievance.

[26] The MEA responded to P&H on July 27, 2018, noting the following:

At this point, we have been given very little information in relation to the accident of July 1, 2018 and related issues. I would ask that you please share the accident report, video, and all other related information with us in this regard. We will of course review it all and discuss next steps.

Typically, filing a grievance against the ILA is not necessarily our first approach to resolving a problem. Additionally, it may be that disciplinary action is appropriate in relation to the employee who may have engaged in some form of misconduct. As well, and as you have known for some time, the issue around two hour and forty minute breaks is customary in our Port and P&H has been aware of this practice for quite some time. In any event, the important piece here is that we ensure all information is available to the MEA so that we may determine next steps in consultation with P&H.

[27] There were further emails exchanged between the MEA and P&H, but it appears that the information regarding the accident was not shared at that time.

[28] The MEA and P&H did not meet until August 21, 2018, where P&H showed Mr. Joe Walsh, the MEA’s Labour Relations Representative, video footage of the accident, but a copy of the video was not provided to the MEA. The MEA states that the video footage clearly demonstrated that Mr. Kyle Vaudin caused the accident. Mr. Walsh advised P&H that discipline was warranted, but that the MEA does not typically hold the ILA responsible for damages arising from an employee’s misconduct. Mr. Walsh also advised P&H that the MEA would provide a formal opinion on the grievance following receipt of P&H’s investigation report. P&H provided the report to the MEA on September 4, 2018.

[29] The MEA advised P&H on September 6, 2018 that it would not be pursuing a grievance against the ILA. It also advised that it would administer the appropriate discipline against the ILA members involved in the July 1, 2018 accident on P&H’s ship:

After having met with you and Mr. Gardner to discuss the events of July 1, 2018 and after having reviewed your investigative findings, it is indeed apparent that the accident was the result of negligence on behalf of Mr. Kyle Vaudin. Mr. Robert Layne is also partially to blame for having left the worksite without permission. Mr. Vaudin and Mr. Layne are therefore subject to appropriate measures of discipline to be administered by the MEA.

Advancing a grievance against the Union in the manner proposed is problematic in many respects. First, it is the inherent role of management to supervise and manage the labour. This role is clearly defined in Article 2.02 of the collective agreement. To suggest otherwise would make it extremely difficult to get any traction with an arbitrator. Second, the provisions cited from the collective agreement do not confer any co-management role to the Union. It is simply their duty to supply the ordered labour. Third, it is an approach that would have a damaging effect to the long-term relationship with any union. The MEA and our Port of Hamilton employers endeavour to maintain open collaboration with the Union rather than to foster a “transactional” relationship. For these reasons the MEA will not pursue the proposed grievance against the Union.

Furthermore, the MEA cannot consent to P&H having carriage of the grievance. This would create a type of industrial environment contrary to what Section 34 of the Canada Labour Code was designed to avoid. The MEA is responsible to provide equal and fair representation to all employers in the Port of Hamilton and this would be considered a direct abandonment of that obligation.

[30] P&H was advised of the specific discipline imposed on the ILA members in a meeting with the MEA on September 28, 2018.

[31] Mr. Vaudin, who was the sole member on the ship at the time of the spout accident, was issued a 90-day unpaid suspension, which was not grieved by the ILA. The MEA states that it originally sought to terminate Mr. Vaudin; however, discussion between the MEA and the ILA resulted in agreement on the 90-day unpaid suspension for Mr. Vaudin.

[32] Mr. Robert Layne, who had left the P&H ship to use nearby restroom facilities, was issued a one-week unpaid suspension, which was not grieved by the ILA.

[33] The third employee, Mr. Alex Balan, had not arrived on-site at the time of the accident as he was not yet required to begin performing duties in accordance with the 2:40 Practice. No discipline was imposed on Mr. Balan by the MEA.

[34] While P&H was pursuing the Complaint it had filed with the Board on September 28, 2018 (Board file no. 32767-C), the MEA and the ILA were engaged in collective agreement negotiations. P&H states that despite having told the MEA that there was no manning needed for its self-unloader ships, the MEA nevertheless agreed to the removal of an exemption for grain products. That exemption had been set out in Article 11.02 of the collective agreement and exempted self-unloader ships from the requirement to be staffed by ILA members.

[35] P&H also raised concerns regarding having not received from the MEA a copy of the bargaining positions document that was reviewed with the employers on January 8, 2019 and not having its inquiries into that responded to in a timely manner.

[36] On January 30, 2019, the ILA membership ratified a tentative collective agreement.

IV. Issues to be Determined

[37] Based on the pleadings before the Board, the Board has identified the following issues to be determined:

1. Has the MEA acted arbitrarily and in bad faith because it knew about the 2:40 Practice violations of the collective agreement and failed to stop them?

2. Has the MEA acted arbitrarily and in bad faith by refusing to pursue a grievance on behalf of P&H pertaining to the July 1, 2018 spout accident?

3. Has the MEA engaged in discriminatory conduct as the 2:40 Practice only applies to member employers engaged in the grain industry who are therefore treated differently than other member employers?

4. Has the MEA behaved arbitrarily in its investigation of the July 1, 2018 spout accident?

5. Has the MEA engaged in bad faith conduct in recent collective bargaining as a direct result of hostility and animosity with P&H?

6. That the Board find and declare that the conduct by the MEA was in violation of the DFR that the Code imposes;

7. That the Board direct that the grievance proceed against the ILA for violations of the collective agreement;

8. That the Board declare that P&H has carriage of the grievance against the ILA;

9. That the Board issue an Order requiring the MEA to uphold and enforce the collective agreement in accordance with its statutory duty to represent all employers in the POH, including P&H;

10. Citing/relying on the broad discretion of the Board to award damages under section 99(2) of the Code, and as it is of the view that there is a direct causal link between the MEA and the breach of the collective agreement, P&H requests that the Board order damages against the MEA for:

V. Positions of the Parties on the Issues to be Determined

1. Has the MEA acted arbitrarily and in bad faith because it knew about the 2:40 Practice violations of the collective agreement and failed to stop them?

a. P&H

[38] P&H states that the MEA knew about the 2:40 Practice violations of the collective agreement and failed to stop them. In particular, it states that the 2:40 Practice contravenes the labour requirements and break provisions of the collective agreement. It states that the MEA knew that the collective agreement required three ILA members for loading ships, noting that Article 13.04(i) provides that basic loading of a vessel with one spout will have three employees being “called to work on the vessel including a working leader who will organize and direct the work of all union members involved in loading the vessel.”

[39] It also notes that Article 13.09 sets out the frequency and duration of meal breaks and that Article 3.13 provides that no employee shall leave the workplace without arranging to do so in a prescribed manner.

[40] Despite the existence of these collective agreement provisions, P&H states that the MEA condoned the 2:40 Practice whereby each of the three scheduled ILA members takes a two hour and forty minute break during the shift. For P&H, this Practice is in breach of the collective agreement.

[41] P&H states that having only one ILA member on board violates the collective agreement and is the cause of the damages it suffered. P&H states that had two or three ILA members been on board, the July 1, 2018 accident would not have occurred, as a spotter would have seen and prevented the spout accident.

[42] It states that the 2:40 Practice exists only as a verbal agreement between the ILA and the MEA and that neither party advised P&H of the 2:40 Practice. P&H states that Mr. Brad Wallaker, P&H’s General Manager, Ontario Terminals, first learned of the 2:40 Practice when interviewing an ILA member on July 6, 2018 and first learned of the MEA’s condonation of it when Mr. Walsh told him about the 2:40 Practice. It states that while it began operating in the POH in 2008, it was only in April 2018 that it began hiring ILA labour directly to load vessels.

[43] It states that the ILA’s assertion regarding the parties having certainty that agreements are final and bind individual employees and employers is disingenuous, as it is impossible for P&H to have certainty when there are unwritten “side deals” between the MEA and the ILA, which P&H has not been informed about and which it states completely supersede the collective agreement provisions regarding the number of ILA members on a vessel, and break and meal provisions.

[44] P&H states that the fact that the MEA entered into a verbal agreement with the ILA to not enforce the terms of the collective agreement is a clear demonstration of bad faith. It states that the MEA, through agreeing to the 2:40 Practice, misrepresented that the terms of the collective agreement would determine the break provisions to which ILA members would be bound.

b. The MEA

[45] The MEA states that Article 13.04(i) requires the dispatch of three employees to a grain ship, but does not require three employees for loading a ship. The MEA states that the 2:40 Practice provides that there are always two employees on duty at any given time and, once dispatched, the three employees decide amongst themselves the order in which they will divide up the three sections of two hours and forty minutes.

[46] It states that managing the workforce rests exclusively with P&H management in accordance with Article 2.02(a) of the collective agreement.

[47] The MEA states that the 2:40 Practice is not provided for explicitly in the collective agreement, but that it is a long-standing, consistent and uncontested past practice that was implemented in the POH to address the unique labour requirements in the environment of precarious seasonal employment. The MEA states that the 2:40 Practice supplements the terms of the collective agreement. It notes that the MEA and the ILA have applied the 2:40 Practice to grain companies for years, predating P&H’s arrival in the POH in 2008.

[48] The MEA states that until the issue of tightening up break times was raised by P&H in November 2017, no grain company had previously challenged the 2:40 Practice. This, it states, is confirmation that P&H knew of the 2:40 Practice long before the specific accident giving rise to these Complaints.

[49] The MEA states that the 2:40 Practice does not violate the collective agreement. It has complied with the 2:40 Practice as it is required to do absent renegotiation of the applicable collective agreement.

[50] It states that none of the grounds referenced as arbitrary conduct in P&H’s Complaint make out any conduct that would violate the MEA’s DFR. There is no evidence that the MEA’s compliance with the 2:40 Practice was in conflict with P&H’s interests in relation to the grievance. It was not the 2:40 Practice that caused the accident, but Mr. Vaudin’s negligence and Mr. Layne’s unauthorized departure.

c. The ILA

[51] The 2:40 Practice is long-standing and was agreed to between the MEA and the ILA. It was in effect before P&H began operations at the POH. The ILA states that the 2:40 Practice has been practised openly with every employer to which it might apply and that, to its knowledge, no MEA member had raised any concerns until these present Complaints. It also states that it is not aware of any safety concern arising from the 2:40 Practice.

[52] The ILA states that there is no requirement for the MEA to grieve the 2:40 Practice in order to fulfil its DFR. It submits that the MEA has met its DFR by ensuring that severe discipline was imposed against the employees involved in the July 1, 2018 accident. The ILA notes that it has not grieved the imposed discipline and it remains on the employees’ records.

[53] The ILA notes that Article 13.04 of the collective agreement provides that at least three employees will be dispatched to load a single-spout vessel. The 2:40 Practice is then implemented by the three dispatched members. The ILA states that the 2:40 Practice is beneficial to employees as they are provided expedited eight-hour shifts.

[54] It states the MEA members at the POH have a complement of employees sufficient to provide continuous loading of vessels and therefore suffer no operational detriment.

[55] The ILA states that agreeing to the 2:40 Practice does not constitute arbitrary representation on the part of the MEA. It describes the 2:40 Practice as a balance struck between itself and the MEA whereby the employees benefit from more desirable shift times, while the MEA members’ operations continue uninterrupted through an eight-hour shift. It states that P&H has brought nothing forward to suggest that the 2:40 Practice was agreed to without consideration of MEA member interests.

[56] An MEA member disagreeing with a term or condition of employment at the POH does not mean that the MEA has represented the member arbitrarily.

[57] The ILA states that the 2:40 Practice was not agreed to with ill-will or hostility toward P&H. The 2:40 Practice applies equally to all MEA members to which it might apply, and the simple fact that P&H is not in favour of the 2:40 Practice does not mean that its existence constitutes bad faith representation.

2. Has the MEA acted arbitrarily and in bad faith by refusing to pursue a grievance on behalf of P&H pertaining to the July 1, 2018 spout accident?

a. P&H

[58] P&H states that the MEA refused to advance the grievance against the ILA, noting that the MEA’s position is that P&H should have been supervising the labour on board its vessel and that pursuing a grievance would damage the long-term relationship between the MEA and the ILA. This, P&H states, is despite the MEA admitting that ILA members were negligent and the existence of collective agreement violations by the ILA.

[59] The MEA has not given sufficient consideration to P&H’s interests and has put its own interests ahead of P&H’s interest in pursuing its losses.

[60] P&H states that it has been deprived of the most just and obvious legal forum to recover its damages since the MEA failed to pursue the grievance. It states that if the Board fails to intervene, it will have limited recourse to recover its damages other than to consider commencing civil action against the responsible individuals and those who knew of and condoned the 2:40 Practice.

[61] P&H states that it is concerned that the MEA is in a conflict of interest given its role in condoning the breaches of the collective agreement.

[62] It also states that the MEA’s refusal to pursue the grievance may be motivated by hostility and ill-will toward P&H as a result of a DFR complaint that P&H had brought against the MEA in 2014.

b. The MEA

[63] As Employer Representative, the MEA states that it is responsible for bringing grievances against the ILA on behalf of MEA members. It is only the MEA and not the individual MEA member employer who has ownership of a grievance, and it is the MEA who has the ultimate discretion to pursue a grievance against the ILA.

[64] The MEA indicates that it reviewed P&H’s investigation report, the investigation notes of Mr. Jim Reeve, Business Agent for the ILA, and its own investigation results and determined that the accident was as a result of Mr. Vaudin’s negligence and Mr. Layne’s unauthorized absence from the workplace. The MEA states that it was clear that neither Mr. Balan nor the ILA had committed any violation of the collective agreement.

[65] The ILA duly dispatched three employees to P&H’s ship in accordance with Article 13.04(i) of the collective agreement, and Mr. Balan was properly not performing duties at the time of the accident. The MEA states that the ILA’s obligations did not extend to ensuring that the employees remained on board throughout their shift: that responsibility rests with P&H management pursuant to Article 2.02 of the collective agreement.

[66] The MEA advised P&H of these conclusions on September 6, 2018. The MEA also advised P&H that it would administer the appropriate discipline to Mr. Vaudin and Mr. Layne, but that it would be inappropriate to pursue the grievance as it is the inherent role of management to supervise and manage labour, that the ILA’s role is restricted to supplying the labour and that advancing a grievance would have a damaging effect on the long-term relationship with the ILA. The MEA notes that it is its decision as to whether to refer a grievance to arbitration and not that of an individual member employer.

[67] The MEA also refused to permit P&H to have carriage of the grievance as it states that would violate its obligations as the Employer Representative.

[68] The MEA states that there is no evidence that it arbitrarily put its interests ahead of P&H’s. It repeatedly sought information from P&H regarding the accident, and P&H resisted cooperating. There is no evidence to establish a non-caring attitude toward P&H’s interests by the MEA.

[69] The MEA’s conclusion that Mr. Vaudin and Mr. Layne violated the collective agreement does not take away from its good faith determination that a grievance should not be pursued, noting that the ILA cannot be held responsible for employee misconduct. The MEA has not put itself in a conflict of interest with P&H by complying with the 2:40 Practice. The MEA has never exhibited any hostility or ill-will toward P&H. The MEA’s refusal to pursue the grievance being a barrier to P&H recovering its losses does not inherently create a DFR violation; P&H does not have an absolute right to arbitration.

[70] The MEA states that the thorough investigative process and reasoned conclusions underlying its decision demonstrate only the utmost of good faith on its part in discharging its DFR. The maintenance of harmonious relations with the ILA was properly considered, given that the ILA was not at fault in the accident.

c. The ILA

[71] The MEA, as the Employer Representative in the port-wide certification system, along with the ILA, are responsible for negotiating, interpreting and applying the collective agreement. P&H, as an individual employer, is bound by that collective agreement. The ILA states that the MEA is statutorily mandated to administer collective agreements as it deems appropriate. That P&H disagrees with the MEA’s approach does not mean that the MEA’s decisions were made in bad faith. The ILA states that these Complaints must be resolved in a manner that maintains the integrity and effectiveness of the geographic certification system contemplated by section 34 of the Code. It notes that the system depends on a single spokesperson for all employers engaged in longshoring in the POH. It further states that all decisions made by the ILA and the MEA regarding negotiating, interpreting and administering the collective agreement must be binding on all of their respective members.

[72] It is the MEA who exercises exclusive authority to file or not file grievances against the ILA and to adjudicate or settle grievances. The ILA notes that an employer representative does not breach section 34(6) by adopting an interpretation of the collective agreement that differs from that of an employer it represents.

[73] The MEA’s decision not to pursue a grievance was reasonable, was not arbitrary or in bad faith and was not a DFR violation. The MEA undertook a reasonable view of the situation and explained its rationale for not pursuing a grievance in its September 6, 2018 letter to P&H, noting that it is management’s responsibility to supervise labour and that the ILA does not co-manage the workplace. The MEA identified discipline for the misconduct as the appropriate course of action.

[74] The ILA notes that P&H has not provided any evidence in support of assertion that the MEA has acted with hostility toward it due to its previous DFR complaint in 2014.

3. Has the MEA engaged in discriminatory conduct as the 2:40 Practice only applies to member employers engaged in the grain industry?

a. P&H

[75] P&H states that the 2:40 Practice treats it and other grain industry members of the MEA in a discriminatory fashion as it only applies to employees dispatched to an MEA member employer engaged in the grain industry.

[76] P&H argues that this discriminatory and unequal treatment of employers in the grain industry demonstrates that it and other grain handlers have not received the same bargain as the other MEA member employers and that the MEA meaningfully represents some employers better than others.

[77] P&H notes that the Board has established that a practice can still be discriminatory if it does not treat all members equally for reasons that are arbitrary or unreasonable, so the MEA’s position that the 2:40 Practice is not discriminatory as it applies to the majority of employers is flawed.

b. The MEA

[78] The MEA denies that P&H is experiencing any differential treatment relative to other MEA employers.

[79] There are five MEA Employers in the POH, of which three are grain companies subject to the 2:40 Practice.

[80] The MEA states that P&H has failed to make out discriminatory treatment within the meaning of section 34(6) of the Code: it has failed to explain whether and how the application of the 2:40 Practice to P&H and other grain companies is illegal, arbitrary or unreasonable.

[81] The MEA notes that the Board has previously held that not every instance of differential treatment is considered discrimination.

[82] It also notes that no human rights considerations are engaged; there is no arbitrariness as the 2:40 Practice is long-standing and, until this Complaint, unchallenged rule, policy or rationale; and it is not unreasonable as it bears a fair and rational relationship with the decision to exempt grain ship employees from the break provisions under the collective agreement.

[83] There is no suggestion that the MEA agreeing to the 2:40 Practice is discriminatory. The 2:40 Practice applies to all individual employers who are bound by the collective agreement where the 2:40 Practice might apply.

[84] The 2:40 Practice does not constitute discriminatory representation by the MEA toward P&H or other grain-handling Employer Members.

c. The ILA

[85] Not all differential treatment constitutes discrimination in violation of the DFR. The ILA states that P&H does not provide any explanation as to how the 2:40 Practice might be considered differential treatment for reasons that are illegal, arbitrary or unreasonable.

[86] The ILA notes that the 2:40 Practice is a long-standing and uniformly applied distinction and no MEA member who handles grain is exempt from it. It states that allowing employees to engage in the 2:40 Practice is a reasonable compromise whereby employees benefit from more desirable work schedules and MEA members benefit from continual moving of grain.

[87] Finally, it notes that it is not unreasonable to conclude that a practice applicable to the majority of MEA members is not discriminatory.

[88] The application of the 2:40 Practice to grain-handling companies does not meet the definition of discriminatory representation as contemplated in section 34(6) of the Code.

[89] The ILA states that there is a cogent labour relations purpose to distinguish between grain handlers and other companies operating at the POH, noting that the majority of the MEA’s member employers handle grain and are therefore subject to the 2:40 Practice.

4. Has the MEA behaved arbitrarily in its investigation of the July 1, 2018 spout accident?

a. P&H

[90] P&H asserts that the MEA’s failure to engage in a timely investigation is arbitrary in that they admit to being aware of the accident on July 7, 2018, but expressed a non-caring attitude in not commencing their own investigation until July 19, 2018. P&H states that it is unacceptable that it took almost two weeks for the MEA to begin the investigation.

[91] It notes that the MEA’s investigation consisted of interviewing only Mr. Vaudin and Mr. Layne, a level of investigation that fell below the acceptable standard, given the numerous parties involved and since the MEA relied on this minimal investigation to conclude that pursuing a grievance against the ILA would be inappropriate. P&H states that as P&H’s representative, the MEA had an obligation to conduct its own investigation, not rely on P&H’s investigation.

[92] P&H states that the MEA had no intention of pursuing any relief on behalf of P&H as a result of the accident.

b. The MEA

[93] The MEA states that it did not learn of the accident until Mr. Walsh was copied in an email from ILA President Mr. Rick Smith to P&H’s Mr. Wallaker on July 7, 2018. Following receipt of this email, Mr. Walsh left a voicemail for Mr. Wallaker requesting P&H’s position on the July 1, 2018 accident.

[94] Mr. Reeve advised Mr. Walsh of challenges that he had been encountering in the investigation in that Mr. Vaudin had provided confusing and inconsistent answers to questioning and that P&H was refusing to let the ILA view its video footage of the accident. Following their July 10, 2018 phone call, Mr. Reeve provided Mr. Walsh with a copy of his investigation notes. Also on July 10, 2018, Mr. Smith wrote to Mr. Wallaker, copying Mr. Walsh, regarding P&H’s failure to respond to the ILA’s repeated calls and emails offering assistance with the investigation.

[95] Later on July 10, 2018, Mr. Wallaker and Mr. Walsh spoke. The MEA states that Mr. Wallaker merely conveyed that the accident was “very serious” and had caused “a lot of damage.” Mr. Wallaker also inquired about the history of the 2:40 Practice, which Mr. Walsh reminded him was a long-standing common practice that had applied since before P&H entered the POH. Following that conversation, the MEA states that Mr. Walsh provided Mr. Wallaker with the ILA’s dispatch and training records as well as a copy of Mr. Reeve’s interview notes.

[96] The MEA states that given P&H’s refusal/failure to share any information, the MEA commenced its own investigation into the accident on July 19, 2018. Mr. Walsh spoke to Mr. Vaudin first, and then he spoke to Mr. Layne.

[97] Mr. Walsh did not speak with Mr. Balan, as he was properly not performing duties on the grain vessel at the time of the accident.

[98] The MEA states that its investigation was timely. It responded to the accident immediately upon learning of it from the ILA on July 7, 2018 and Mr. Walsh left a message with Mr. Wallaker that same day asking for particulars of the accident. Thereafter, Mr. Walsh repeatedly followed up with Mr. Wallaker seeking particulars of P&H’s investigation.

[99] The MEA states that while awaiting P&H’s response, it proceeded to interview the employees involved and conferred with the ILA. P&H and the MEA met on August 21, 2018, where the MEA was shown video footage of the accident. The MEA states that it was not until September 4, 2018 that P&H finally shared its investigative findings with the MEA. Two days later, on September 6, 2018, the MEA communicated its determination to P&H.

[100] The MEA states that there is no legal requirement for it to duplicate the efforts of P&H and the ILA in order to discharge its DFR obligations. Reliance on P&H’s and the ILA’s findings to supplement its own investigation was eminently reasonable.

[101] The MEA notes that despite P&H’s unresponsiveness to its requests for information, it continued to find a way to investigate and hear P&H’s side of the story.

c. The ILA

[102] The ILA states that the MEA took appropriate action which resulted in discipline of the employees responsible for the accident. It notes that P&H has not suggested that the MEA’s investigation resulted in inadequate or incorrect conclusions, but that the MEA did not file a grievance after concluding its investigation.

[103] The ILA states that the appropriate response to misconduct is discipline, not the filing of a grievance.

[104] The conclusion reached by the MEA was the same as that reached by P&H, and the MEA’s conduct in investigating the accident does not give rise to a breach of the MEA’s DFR.

5. Has the MEA engaged in bad faith conduct in recent collective bargaining as a direct result of hostility and animosity with P&H?

a. P&H

[105] P&H states that the MEA acted in bad faith during the most recent round of collective bargaining and that the MEA’s conduct was a direct result of hostility and personal animosity with P&H.

[106] Article 11.01 of the collective agreement that was in place at the time that the present Complaints were filed provides for two ILA members, a Walking Boss and a Utility Man, to staff self-unloader ships for “Bulk Articles.” As a result of the exemption for grain products contained in Article 11.02 of the collective agreement, P&H states that ILA members did not staff P&H self-unloader ships under that collective agreement, if ever.

[107] P&H states that on January 8, 2019, during the most recent round of collective bargaining, the MEA conceded to the removal of the exemption for grain products under Article 11.02. It states that in pre-bargaining meetings with MEA member employers in November 2017, Mr. Wallaker expressly told the MEA that there was no manning needed for self-unloader ships at the P&H facility. Further, P&H states that all three grain companies told the MEA at a meeting on January 8, 2019 that the manning proposal for self-unloaders was unfounded.

[108] P&H states that the MEA’s concession on the removal of the exemption for grain products in Article 11.02 in circumstances where the grain handlers do not require manning for self-unloading vessels is another example of arbitrary and discriminatory treatment of P&H and the other grain handlers by the MEA. It states that the concession is arbitrary because grain handlers will incur additional costs and will be required to use labour that had not been required in the past, which is entirely unnecessary to grain handlers’ operations and globally competitive businesses.

[109] P&H further states that the MEA has refused to provide it with a copy of the bargaining positions document that was reviewed with employers on January 8, 2019 and that email requests for same have gone without response or acknowledgement. While P&H states that it was not aware of Mr. Walsh’s absence, it presumes that his email was monitored in his absence and yet it took two weeks to receive a response to its inquiry regarding obtaining a copy of the bargaining positions document. It states that this lengthy delay without any form of acknowledgement is unacceptable.

[110] P&H’s final Reply submissions take issue with both the MEA’s and the ILA’s characterization of the Board’s decision in Rideau Bulk Terminal Inc., 2011 CIRB 608, which concerned Rideau Bulk Terminal Inc.’s self-unloading operations and the ILA’s jurisdiction with respect to same.

[111] It states that the MEA’s suggestion that it has demonstrated good faith representation in parallel proceedings is inconsequential.

[112] P&H also states that, contrary to the MEA’s submissions, it did raise objections to the draft bargaining proposals at the November 20, 2017 meeting, noting that Mr. Wallaker reiterated P&H’s positions that no manning is required for self-unloading vessels. It also states that all three grain companies argued at the January 8, 2019 meeting that the manning proposal for self-unloaders was unfounded. Therefore, P&H states that the MEA was not acting pursuant to the consensus of the grain companies as stated in its submissions.

b. The MEA

[113] On January 30, 2019, the ILA membership ratified a tentative renewal collective agreement, which included adjustments addressing the manning of self-unloader grain ships. These adjustments, which included both additions and deletions to the terms of the previous collective agreement, were a compromise arrived at between the MEA and the ILA.

[114] The MEA explains that there initially was uncertainty surrounding the ILA’s jurisdiction over self-unloading operations. It states that this uncertainty was resolved by the Board in Rideau Bulk Terminal Inc., supra, in which the Board clarified that self-unloading operations constitute longshoring work. As a result, the MEA and the ILA felt that they would have to clarify certain collective agreement terms. The MEA states that contractual changes made pursuant to developments in the law cannot give rise to a DFR violation.

[115] The MEA states that it invited its member employers to meet with it in September 2017 in preparation for bargaining. As a result of discussions, the MEA listed “Establish language for a self-unloader in grain” in its draft bargaining proposals document.

[116] The MEA states that member employers met with it on November 20, 2017 for a pre-bargaining meeting to discuss the draft bargaining proposals and that P&H did not raise any objections during this meeting.

[117] The new language negotiated resolves ambiguity around proper staffing levels for self-unloading operations. The MEA acknowledges that the bargaining processes involved give-and-take for both it and the ILA.

[118] It further states that it has an obligation to act in the best interest of all employers in the POH.

[119] It notes that its success in shielding the grain companies from the full manning requirements of Article 11.01 also shows due regard for the grain companies’ interests, so P&H’s allegations of arbitrary conduct lack merit.

[120] The MEA states that P&H also provides no particulars in support of its bald assertion that the MEA’s agreement to replace Article 11.02 with Article 13.04(iv), which now provides that self-unloader manning will be staffed by one Working Leader, resulted from hostility and personal animosity with P&H. The MEA notes that neither of the other two grain companies has objected to this or inferred any improper motive on the part of the MEA.

[121] The MEA notes that it has demonstrated its good faith representation of P&H in other proceedings relating to manning requirements.

[122] Regarding P&H’s request for the bargaining positions document, the MEA states that it distributed copies of the document at the January 8, 2019 meeting at which member employers were advised that they would not be able to leave the meeting with the copies, but could attend at the MEA’s office to review the document at any time. It states that this measure was undertaken to maintain confidentiality and labour relations privilege during continued collective bargaining. Mr. Wallaker arrived late to this meeting and initially missed the explanation. He was offered a chance to copy out by hand the personal notes that he had made on his copy of the document before he left the meeting, and the MEA states that it explained its need to maintain confidentiality to him.

[123] Finally, the MEA notes in response to P&H’s allegations that Mr. Wallaker’s inquiries regarding obtaining copies of the document went unanswered and unacknowledged that Mr. Walsh has been on a leave of absence since prior to the January 8, 2019 meeting and could therefore not respond to Mr. Wallaker’s January 10, 2019 email. The MEA did provide a response to Mr. Wallaker’s email on January 21, 2019, reiterating its reasons for refusing to provide copies of the document to all MEA member employers. This, it states, is not bad faith conduct as alleged.

c. The ILA

[124] The MEA’s conduct in the current round of bargaining does not constitute arbitrary or discriminatory representation.

[125] The ILA notes that P&H takes issue with a tentative bargain made between the MEA and the ILA that is one part of bargaining a new collective agreement. The ILA states that its agreement to exempt vessels that have failed inspection from the mandatory call hours is a significant gain for the MEA’s grain-handling members. The exemption from call hours would mean that the cargo could be redistributed more quickly and the vessel would sit idle for less time. The cost-savings associated with decreased delays is likely to outweigh the increase in labour costs that grain handlers will incur as a result of the requirement that self-unloading vessels be staffed while unloading.

[126] The ILA states that this agreement is one part of the broader negotiations for a new collective agreement.

[127] The ILA states that it is well within the statutory authority of the MEA and it is not a violation of the DFR for it to negotiate the call hours agreement.

[128] The MEA is tasked with ascertaining and realizing the interests of its members, who will not always agree with one another. The ILA states that a simple disagreement as to the best achievable outcome at negotiations among MEA members does not necessarily disclose arbitrary or discriminatory representation.

VI. Remedies Requested

[129] Across its two Complaints, P&H requests the following remedies:

1. all damages related to the cost of repairing the spout;

2. economic losses occasioned for the delay during the period the spout was being repaired; and

3. the wages and premiums paid to any ILA member who was not working during his or her two-hour-and-forty-minute break in violation of the collective agreement dating back to April 2018.

6. That the Board find and declare that the MEA, in conceding the exemption in Article 11.02 of the collective agreement, is in violation of the DFR that the Code imposes.

VII. Analysis

[130] Prior to providing its analysis on the issues to be determined, the Board will first address two preliminary issues. First, the MEA’s preliminary objection regarding the timeliness of P&H’s Complaints or parts thereof and second, P&H’s request for an oral hearing.

A. Timeliness

[131] The MEA has raised the issue of timeliness, stating that P&H’s Complaint, or parts thereof, is out of time and that the calculation of time should have begun when P&H should have known about the 2:40 Practice.

[132] The MEA states that Mr. Wallaker raised the issue of tightening up break times in a meeting on November 20, 2017. It also states that in an August 1, 2018 letter, which was provided to the Board, P&H stated that it was not formally aware of the 2:40 Practice prior to the July 1, 2018 accident. The MEA states that this suggests that P&H had at least an informal awareness of the 2:40 Practice prior to July 1, 2018. It also states that it is inconceivable that P&H had no knowledge of the 2:40 Practice until July 1, 2018.

[133] Finally, the MEA states that a reasonably diligent organization in P&H’s position ought to have become aware of the 2:40 Practice shortly after entering the POH in 2008. It states that while P&H had contracted its “ship side” longshoring work to Great Lakes Stevedoring (GLS), another MEA employer, P&H ought to have known that GLS was implementing the 2:40 Practice on P&H’s ships.

[134] P&H states that Mr. Wallaker did not know about the 2:40 Practice until during the investigation into the July 1, 2018 accident. It states that while it has been in the POH since 2008, it only started using ILA labour in April 2018, as it previously contracted its “ship side” longshoring work to GLS, so it would not have known about the 2:40 Practice.

[135] It states that it learned for the first time through the Responses of the MEA and the ILA in Board file no. 32767-C that the 2:40 Practice exists only as a verbal agreement between the MEA and the ILA.

[136] P&H states that it would be “a great leap” for the Board to conclude that it had knowledge of the 2:40 Practice based on Mr. Wallaker’s alleged comments regarding tightening up break times in November 2017.

[137] From these facts, namely that the 2:40 Practice is not written in the collective agreement and that P&H previously contracted out its “ship side” longshoring work to GLS, another MEA employer, the Board is unable to determine that P&H knew or ought to have known of the 2:40 Practice prior to its investigation of the spout accident. Furthermore, the MEA’s explanation surrounding the “tighten[ing] up [of] break times” does not sufficiently clearly relate to the 2:40 Practice to convince the Board that P&H was actually referring to that Practice as opposed to general break provisions provided in the collective agreement. The Board will therefore give P&H the benefit of the doubt and consider the merits of the Complaints.

B. P&H’s Request for an Oral Hearing

[138] The Board, pursuant to section 16.1 of the Code, may decide any matter before it without holding an oral hearing, even if a hearing has been requested. In such cases, the Board determines the complaint on the basis of the written representations of the parties and supporting documentation. It is, therefore, in the best interest of the parties to file full, accurate and detailed representations in support of the issues being raised and their respective positions pertaining to those issues.

[139] P&H states than an oral hearing is required. In doing so, it cites the Board’s decision in Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Cooney Transport Québec Inc., 2008 CIRB 411 (Cooney Transport), in which the Board stated at paragraph 3 that it would not normally hold a hearing unless “there are issues of credibility or other important labour relations purposes that require it to hear the parties in person.”

[140] In its October 29, 2018 Reply in Board file no. 32767-C, P&H states that the Complaint requires a hearing as evidentiary and credibility issues are present. Specifically, P&H submits that the Board should make a determination regarding: whether the 2:40 Practice is a break or paid time off; when P&H became aware of the 2:40 Practice; the “credibility” of the MEA’s justification for the 2:40 Practice; and whether the MEA discriminated against P&H and other grain handlers when it implemented the 2:40 Practice.

[141] It also states that the Responses of the MEA and the ILA in Board file no. 32767-C raise a number of questions which P&H states can only properly be answered with a full hearing, such as: issues relating to the interpretation of the 2:40 Practice; the circumstances that led to its creation and its rationale; the circumstances surrounding the spout accident; the MEA’s investigation into the accident; and the circumstances surrounding the discipline of the ILA members involved in the accident.

[142] P&H also states that it would require the production of all communications between the ILA and the MEA respecting the accident and the 2:40 Practice.

[143] While the Board continues to follow the general principle set out in Cooney Transport, supra, regarding the holding of oral hearings, the Board also notes the decision of the Federal Court of Appeal (FCA) in Grain Services Union (ILWU-Canada) v. Freisen, 2010 FCA 339, in which the union challenged the decision of the Board to revoke its certification. The union argued that the Board had erred in determining the merits of its preliminary objection in the revocation application without hearing evidence and calling cross-examination on contradictory affidavit evidence on an essential matter of fact.

[144] The FCA held that:

[23] The discretion of the Board under section 16.1 of the Code is very wide, but it is not absolute. Our Court has determined that this section does not authorize a breach of the duty of procedural fairness by permitting the Board to dispense with an oral hearing in circumstances where this would deny a party a reasonable opportunity to participate in the decision-making process: Communication, Energy and Paperworkers Union of Canada v. Global Television (Global Lethbridge, a Division of CanWest Global Communications Corp.), 2004 FCA 78, 318 N.R. 275 at para. 23; Amalgamated Transit Union, Local 1624 v. Syndicat des travailleuses et travailleurs de Coach Canada, 2010 FCA 154, 403 N.R. 341 at para. 18.

[24] Our Court has also found, in the context of a complaint of unfair representation under section 37 of the Code, that the mere fact that evidence is contradictory does not automatically warrant an oral hearing before the Board absent other compelling reasons. Indeed, since many credibility issues will almost unavoidably arise in a labour relations context, section 16.1 of the Code would potentially be deprived of effect if it were otherwise interpreted and applied: Nadeau v. United Steelworkers of America, 2009 FCA 100, 400 N.R. 246 at para. 6; Guan v. Purolator Courier Ltd., 2010 FCA 103 (CanLII) at para. 28; see also in a different legislative context Vancouver Wharves Ltd. v. International Longshoremen’s and Warehousemen’s Union, Ship and Dock Foremen, Local 514 (F.C.A.) (1985), 60 N.R. 118.

[25] I am of the view that the same principle applies in this case concerning a revocation of certification under section 38 of the Code. In order to successfully challenge the decision of the Board not to hold an oral hearing in such circumstances, it must be demonstrated not only that contradictory evidence was before the Board, but that the resolution of this contradictory evidence was essential to the outcome of the decision and that no other evidence could reasonably support the decision of the Board.

[145] The Board notes that certain issues identified by P&H as having evidentiary and/or credibility concerns do not properly fall under the Board’s jurisdiction in a section 34(6) matter. For example, making a determination on whether the 2:40 Practice is a “break” or “PTO” would involve the Board interpreting the 2:40 Practice. As explained further herein, it is not the Board’s role to make such an interpretation in the context of a section 34(6) complaint. The Board has already made a determination on the timeliness of the Complaints and is giving P&H the benefit of the doubt in this regard. Therefore, the Board does not need to hear further evidence concerning when P&H learned of the 2:40 Practice.

[146] Regarding the “credibility” of the MEA’s justification for the 2:40 Practice and the determination of whether the 2:40 Practice is discriminatory within the meaning of the Code, the Board is satisfied that it can proceed with its determination based on the written record. While P&H speaks of the “credibility” of the MEA’s justification, the Board is of the view that this determination does not require an assessment of the credibility of a witness but rather of whether the decision to apply the 2:40 Practice is in breach of the MEA’s DFR. In the context of section 37 complaints, the Board routinely makes determinations on whether a union breached its DFR when it made certain decisions without holding an oral hearing. The Board does not see why it should deviate from its usual practice in this case.

[147] Concerning the remaining issues, P&H states that the MEA’s and the ILA’s Responses raise questions that need to be addressed with a full hearing. However, it does not explain why these issues could not be addressed by the written record, and it has not explained why not holding an oral hearing to address these issues would amount to a breach of procedural fairness. The Board further notes that P&H replied to the issues raised by the MEA and ILA Responses, that the MEA and the ILA then each filed a Sur-Reply and that P&H filed a Sur-Sur-Reply in addition to a second Complaint (Board file no. 32891-C), to which the MEA and the ILA each filed Responses and then P&H filed a Reply. As such, the parties had a chance to provide their full submissions to the Board on these additional issues.

[148] Finally, the Board is of the view that it is not part of its role in the context of a section 34(6) complaint to make a determination on the interpretation of the 2:40 Practice, on the circumstances that led to the spout accident and on the adequacy of the discipline imposed on the ILA members. For the remaining issues raised in the Complaints, the Board is satisfied that it can make its determination based on the voluminous written record.

C. Duty of Fair Representation and Section 34 of the Code, Generally

[149] Section 34 of the Code creates an exceptional labour relations regime adapted to the longshoring industry. When a geographic certification is in place, an employer representative is deemed to be an employer and takes on the duties and responsibilities normally performed by an employer under Part I of the Code on behalf of individual employers, including the power to enter into a collective agreement:

34 (5) An employer representative shall be deemed to be an employer for the purposes of this Part and, by virtue of having been appointed under this section, has the power to, and shall, discharge all the duties and responsibilities of an employer under this Part on behalf of all the employers of the employees in the bargaining unit, including the power to enter into a collective agreement on behalf of those employers.

[150] As a check on the powers given to the employer representative, the employer representative owes a DFR to the employers covered by the geographic certification when it discharges its duties and responsibilities under Part I of the Code:

34 (6) In the discharge of the duties and responsibilities of an employer under this Part, an employer representative, or a person acting for such a representative, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employers on whose behalf the representative acts.

(emphasis added)

[151] The Board is only aware of three decisions pertaining to section 34(6) having been issued: see Quebec Ports Terminals Inc., 2008 CIRB 410 (QPT 410); Quebec Ports Terminals Inc., 2015 CIRB 765 (QPT 765); and Parrish & Heimbecker, Limited, 2015 CIRB 786 (P&H 786). Decisions in those matters have nonetheless provided guidance as to the scope of the Board’s jurisdiction and the nature of an employer representative’s DFR to its members. In QPT 765, supra, the Board noted:

[70] The duty of representation of an employer association is not an issue that the Board has addressed very often. There are few decisions relating to complaints filed against an employer representative under section 34(6) of the Code. However, the fundamental principles applicable to section 37 complaints must, by analogy, be applied in this case, with the appropriate adjustments of course. At least, that is what the Federal Court of Appeal ruled in Quebec Ports Terminals Inc. v. Canada (Labour Relations Board), [1995] 1 F.C. 459; (1994) 175 N.R. 372; (1994) 29 Admin. L.R. (2d) 189; and (1994) 95 CLLC 210-010 (FCA, file no. A-1584-92).

[71] In that matter, QPT, the complainant in the matter now before the Board, challenged the designation of the MEA as the “employer representative.” One of the arguments presented by QPT was the lack of a community of interest among the employers concerned. The Federal Court of Appeal dismissed QPT’s application and explained the powers and obligations of the employer representative as follows:

If the employers cannot agree, the Board has a legal duty under subsection 34(4) of the Code to select the “employer representative.” The latter “shall be deemed to be an employer.” “By virtue of having been appointed under this section,” it is then invested with the necessary powers to discharge all the duties and responsibilities of an employer under Part I of the Code on behalf of all the employers of the employees in the bargaining unit, including that of entering into a collective agreement “on behalf of those employers,” that is, in place of them and on their account. ... If Parliament had not intended to create a special statutory system, why would it have imposed on the “employer representative” in subsection 34(6) [as am. idem] a duty to fairly represent all those affected by its bargaining, when the Civil Code contains its own means of redress against an agent who goes beyond his instructions? Why would it have thus codified the Civil Code in the Canada Labour Code? One cannot help being struck by the parallel that exists between subsection 34(6), dealing with the employer, and section 37, dealing with the union. In the case at bar it was entirely reasonable for the Board to conclude that the employer representative, deemed to be the employer, possessed a power similar to that of the bargaining agent, namely that of negotiating the collective agreement.

(pages 473–474; emphasis added)

[72] In Quebec Ports Terminals Inc., 2008 CIRB 410, another Board decision involving QPT and the MEA, the same parties as in the instant case, the Board summarized principles that apply to the duty of fair representation of an employer representative. In that matter, the Board found that the MEA had not violated section 34(6) of the Code when it had entered into specific agreements for one of its members. While the Board dismissed the complaint as untimely, it stated the following concerning the merits of the complaint:

[39] That being said, just as the union must not breach its duty of fair representation toward the employees that it represents, the employer representative must not act in a manner that is arbitrary, discriminatory or in bad faith toward the employers that it represents.

[40] The employer representative has the authority to negotiate on behalf of the employers that it represents and it has the right to decide which contract proposals to submit and which negotiation strategies to use to promote the employers’ interests. Just as the union that represents employees, the employer representative is not required to consider the wishes of individual members; not considering the individual contract proposals of all the members—for example, accepting conditions that disadvantage certain employers—does not per se constitute a violation of section 34(6) of the Code, as long as the employer representative’s decisions are made rationally, and the representative recognizes and takes into account the rival interests of all the employers that it represents (see Bugay, 1999 CIRB 45; and Soulière, 2002 CIRB 205, regarding the union’s duty of fair representation).

(emphasis added)

[152] While the Board’s case law pertaining to section 34(6) may be limited, the Board has consistently noted that an employer representative’s DFR under section 34(6) is similar to a union’s DFR under section 37 of the Code (see QPT 410, supra; QPT 765, supra; and P&H 786, supra).

[153] The Supreme Court of Canada set out general DFR principles in its 1984 decision in Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509:

The following principles, concerning a union’s duty of representation in respect of a grievance, emerge from the case law and academic opinion consulted.

1. 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.

2. 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.

3. 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 its consequences for the employee on the one hand and the legitimate interests of the union on the other.

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

5. 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.

(page 527)

[154] As with a DFR complaint by a member against a union, the scope of the Board’s jurisdiction in assessing whether an employer representative has fulfilled its DFR obligations is limited. That said, there are important differences between sections 37 and 34(6).

[155] Section 37 sets out the DFR obligation for a union and provides:

37 A trade union or representative of a trade union that is the bargaining agent for 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 with respect to their rights under the collective agreement that is applicable to them.

[156] Section 34(6) sets out the duty of employer representatives and provides:

34 (6) In the discharge of the duties and responsibilities of an employer under this Part, an employer representative, or a person acting for such a representative, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employers on whose behalf the representative acts.

[157] The case law recognizes that the appointment of an employer representative has a similar effect to the certification of a bargaining agent which then entails a similar obligation towards the employers included in the geographic certification.

[158] However, the scope of the DFR in sections 37 and 34(6) is not identical. While section 37 speaks specifically of “rights under the collective agreement,” section 34(6) speaks of “the discharge of the duties and responsibilities of an employer under this Part.”

[159] Like in a section 37 DFR complaint, the nature of the analysis that the Board undertakes is focussed on the conduct of the employer representative, as is made clear by the language of section 34(6): “shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employers on whose behalf the representative acts” (emphasis added). Therefore, a member employer may only complain that an employer representative’s conduct in the discharge of its duties and responsibilities was arbitrary, discriminatory or in bad faith toward a member employer.

[160] As is the case in a section 37 DFR complaint against a union, the Board’s role in evaluating a DFR complaint of a member employer against an employer representative is to review the employer representative’s process in its handling of its members’ concerns. The Board’s role is not to assess the correctness of the employer representative’s decision or act as an appeal body of that decision.

[161] P&H has raised concerns about arbitrary, bad faith and discriminatory behaviour by the MEA. The Board therefore reminds the reader of how it has defined those concepts in the context of section 37 DFR complaints.

[162] Arbitrary conduct has been defined by the Board in Blakely, 2003 CIRB 241:

[31] Arbitrary conduct has been described as arising where a union makes no inquiry or only a perfunctory or cursory inquiry into an employee’s grievance, or where a union demonstrates a non-caring attitude towards an employee’s interests. The term encompasses gross (as opposed to simple) negligence and includes a reckless disregard for a member’s interest (see William Campbell, [1999] CIRB no. 8; Joe Grasky et al., [2001] CIRB no. 115; and Vergel Bugay et al., [1999] CIRB no. 45; 57 CLRBR (2d) 182; and 2000 CLLC 220-034).

[163] The Board also had the following comments on arbitrary conduct in McRaeJackson, 2004 CIRB 290:

[30] It is arbitrary to only superficially consider the facts or merits of a case. It is arbitrary to decide without concern for the employee’s legitimate interests. It is arbitrary not to investigate and discover the circumstances surrounding the grievance. Failure to make a reasonable assessment of the case may amount to arbitrary conduct by the union (see Nicholas Mikedis (1995), 98 di 72 (CLRB no. 1126), appeal to F.C.A. dismissed in Seafarers’ International Union of Canada v. Nicholas Mikedis et al., judgment rendered from the bench, no. A-461-95, January 11, 1996 (F.C.A.)). A non-caring attitude towards the employee’s interests may be considered arbitrary conduct (see Vergel Bugay et al., supra) as may be gross negligence and reckless disregard for the employee’s interests (see William Campbell, [1999] CIRB no. 8).

[164] In Bugay, 1999 CIRB 45, the Board noted the following regarding discriminatory conduct:

[34] As for the notion of discrimination, the definition provided by the Nova Scotia Board in the case of Daniel Joseph McCarthy, [1978] 2 Can LRBR 105, has been recognized by several labour relations boards. That definition, adopted by our Board in Clarence Hynes et al. (1988), 75 di 39; and 88 CLLC 16,056 (CLRB no. 708), is as follows:

In our opinion the word “discriminatory” in this context means the application of membership rules to distinguish between individuals or groups on grounds that are illegal, arbitrary or unreasonable. A distinction is most clearly illegal where it is based on considerations prohibited by the Human Rights Act, S.N.S. 1969, c. 11, as amended; a distinction is arbitrary where it is not based on any general rule, policy or rationale; and a distinction may be said to be unreasonable where, although it is made in accordance with a general rule or policy, the rule or policy itself is one that bears no fair and rational relationship with the decision being made. The classic example is a rule excluding all applicants with red hair from some position.

(page 108)

[165] The Board has described bad faith conduct in many decisions and has indicated that it occurs where the union, in its representative capacity, acts dishonestly or deceitfully. In Blakely, supra, the Board offered the following description of bad faith conduct:

[33] Bad faith conduct has been described as arising in circumstances where a union acts fraudulently, for improper motives, or out of personal hostility or revenge. In James H. Rousseau (1995), 98 di 80; and 95 CLLC 220-064 (CLRB no. 1127), the Board stated:

“Bad faith” refers to a subjective state of mind or conduct which has been motivated by ill-will, hostility, dishonesty, malice, personal animosity, political revenge, lack of fairness or impartiality, lack of total honesty such as withholding information, flagrant dishonesty such as lying, or sinister purposes. ...

[166] Finally, the Board notes that the onus lies with the Complainant, P&H, to prove that the requisite DFR has not been fulfilled.

[167] As noted previously, there have been few complaints to the Board brought under section 34(6), and the Board is only aware of three decisions pertaining to section 34(6) having been issued. Given the nature of the allegations raised by P&H in these present Complaints, the Board will be drawing from its decisions on section 34(6) as well as from general concepts in its section 37 DFR case law to assist it in its determinations in these Complaints.

D. Application of the Law to the Facts in the Present Complaints

[168] With those general principles regarding the DFR under section 34(6) in mind and having set out the Board’s definitions of arbitrary, discriminatory and bad faith conduct, the Board will turn to the specific issues that must be determined in this matter.

1. Has the MEA acted arbitrarily and in bad faith because it knew about the 2:40 Practice violations of the collective agreement and failed to stop them?

[169] P&H argues that the 2:40 Practice was established in contravention of the labour requirements and break provisions of the collective agreement. It further argues that because of the application of the 2:40 Practice, it suffered the spout accident and resulting damages. It argues that by condoning the 2:40 Practice, the MEA violated the collective agreement, and it is the 2:40 Practice itself that led to the spout accident. P&H argues that the MEA therefore acted arbitrarily and in bad faith.

[170] As indicated above, the Board’s role in a section 34(6) complaint is to assess the employer representative’s conduct in its representation of member employers. However, this does not extend to determining whether the employer representative violated the collective agreement. Doing so would require the Board to interpret the collective agreement, which is beyond the scope of the Board’s jurisdiction in a section 34(6) complaint.

[171] Similarly, the Board’s role is not to determine whether the application of the 2:40 Practice resulted in the spout accident and is thus the cause of the damage to P&H’s vessel.

[172] However, the Board will look at whether or not the MEA acted arbitrarily or in bad faith because it agreed to the 2:40 Practice with the ILA and continues to agree to its application.

[173] In assessing the applicability of a union’s DFR in the context of amending collective agreements or agreeing to change terms and conditions of employment that are outside of the collective agreement, the Board has held that, provided that the union’s conduct in the process is free of arbitrary, discriminatory and/or bad faith conduct, a union and an employer are not precluded from either modifying terms of a collective agreement during its term or agreeing to provisions beyond its scope (see Blakely, supra, at paragraph 42; and Randhawa, 2010 CIRB 487, at paragraph 41 (application for reconsideration dismissed in Randhawa, 2010 CIRB 516)).

[174] This is as a direct result of a union’s exclusivity as the bargaining agent.

[175] The Board sees no reason why this same principle should not be applied to an employer representative chosen under section 34 in the longshoring industry.

[176] The Board accepts that the 2:40 Practice is not set out in the collective agreement. However, this fact alone does not render it arbitrary. The Board also accepts that the 2:40 Practice is a long-standing and agreed-upon Practice negotiated between the MEA and the ILA, the two appropriate entities to do so. The Board also accepts that the 2:40 Practice has been in place in the POH since before P&H arrived in 2008.

[177] P&H has not presented any evidence that the MEA, in continuing to apply the 2:40 Practice that it long ago agreed with the ILA to do in the POH, has failed to consider P&H’s interests or been motivated by fraud, improper motives or personal hostility thus showing either arbitrary or bad faith conduct.

[178] The 2:40 Practice allows the employees to work more desirable shifts, while allowing continuous loading during the eight-hour shift as there are no meal or coffee breaks supposed to be taken when the employees are on-site. Therefore, the 2:40 Practice provides benefits to both the employees and employers and balances the interests of the employees and those of the member employers to whom it applies.

[179] No evidence has been presented to suggest that other member employers, including grain companies, raised concerns with or objected to the 2:40 Practice. Further, there is no evidence of failure on the part of the MEA to consider the interests of member employers, including grain companies, in deciding to continue applying the 2:40 Practice.

[180] Finally, there is no evidence that the decision to apply the 2:40 Practice to grain companies was directed against P&H’s interests.

[181] The Board is unable, based on its review of the fulsome pleadings filed in these matters, to find that the MEA acted arbitrarily or in bad faith by agreeing to and continuing to apply the 2:40 Practice which it previously negotiated with the ILA.

2. Has the MEA acted arbitrarily and in bad faith by refusing to pursue a grievance on behalf of P&H pertaining to the July 1, 2018 spout accident?

[182] The MEA, as the exclusive Employer Representative of employers in the POH, has the sole discretion to decide whether or not to pursue a grievance. The question, in the context of these Complaints, is whether that decision was made arbitrarily or in bad faith.

[183] In QPT 765, supra, the union filed a grievance against Quebec Ports Terminals Inc. (QPT), a member employer, alleging that it violated the collective agreement by not using checkers for specific work being carried out by it. QPT claimed that no checking work was being performed. However, the employer representative, the MEA, agreed with the union that the work being carried out by QPT fell within its interpretation of checking work, for the purposes of the collective agreement.

[184] Following the first day of arbitration, the employer representative decided to settle the grievance through a settlement agreement with the union. QPT asked the Board to find that the MEA had failed to fulfil its DFR in the matter of the grievance and that it had acted in an arbitrary and discriminatory manner that amounted to bad faith. QPT also asked the Board to find that the MEA had exceeded the powers conferred on it by law by arriving at an agreement that went beyond the scope of a grievance and the content of the collective agreement and by asking an arbitrator to approve it in an attempt to give it legal force. QPT asked the Board to void the agreement which had been approved by the arbitrator.

[185] The questions that were before the Board in QPT 765, supra, related to a grievance filed against a member employer for violation of the collective agreement and to the employer representative’s duties. In other words, the facts of the case were similar to those that the Board normally sees in section 37 complaints, such as instances where a union agrees with the employer’s interpretation of the collective agreement and comes to a settlement with the employer to which the employee then objects. The Board therefore relied on its section 37 case law by analogy and noted the following with respect to scrutinizing decisions made by an employer representative:

[96] A union’s representation of employees and, by analogy, an employer representative’s representation of member employers, involves rights under the collective agreement and, as a consequence, considerable latitude on the part of the MEA in this case in determining how those rights should be applied. As in McRaeJackson, supra, the Board considers that, to the extent that the employer representative investigated a grievance, put its mind to its merits in light of all the circumstances, and made a reasoned judgment about its possible outcome, there is no cause for the Board to intervene.

[186] Applying the Board’s section 37 case law principles, the Board found that the employer representative had considered the grievance, conducted a meaningful investigation and decided to settle the grievance based on a legal opinion and the interests of all of its members. It concluded that the employer representative had not breached its DFR by settling the grievance with the union.

[187] In P&H 786, supra, the union alleged that the employer, P&H, was using its own staff to perform longshoring work covered by the collective agreement. P&H disagreed that the work at issue fell under the collective agreement. However, the employer representative was in agreement with the union and decided to settle the grievance by accepting a settlement agreement. P&H alleged that by accepting the settlement agreement, without its consent and in spite of its objections, the employer representative had breached its DFR under section 34(6) of the Code.

[188] The issues before the Board in P&H 786, supra, were also similar to issues that arise in section 37 complaints. The issues essentially revolved around the interpretation of the collective agreement and an employer representative’s right to the carriage of a grievance, which includes the ability to come to a settlement with the union. Accordingly, the Board applied its section 37 case law to the facts of the case and found that the employer representative had the right to settle the grievance without the consent of the member employer and found no breach of the Code.

[189] In short, the Board does not second-guess or sit in appeal of a union’s decision on referring grievances to arbitration, nor will it substitute its own opinion for the union’s on whether to refer a grievance to arbitration (see Sapra, 2010 CIRB 533; Adams, 2012 CIRB 637; and Cheema, 2008 CIRB 414).

[190] In these present Complaints, P&H’s allegation that the MEA acted arbitrarily and in bad faith by refusing to pursue the grievance against the ILA concerning the July 1, 2018 accident is similar to the key issues that the Board considered in QPT 765, supra, and P&H 786, supra, namely that the employer representative in each of those complaints came to a resolution with the union that the respective member employer did not support.

[191] The Board notes that the MEA, once it became aware of the accident, sought to gather information from both P&H and the ILA. It also interviewed the two employees who were or should have been on board at the time of the accident. It reviewed the ILA’s interview notes, met with P&H, reviewed video footage of the accident and reviewed P&H’s investigation report, once received. Having considered the information and having determined that the conduct of Messrs. Vaudin and Layne had caused the accident, and noting that under the applicable collective agreement it is management’s inherent role to supervise and manage labour and that to suggest otherwise would not get traction with an arbitrator, the MEA decided that the most appropriate resolution was to impose discipline that it and the ILA consider serious on Messrs. Vaudin and Layne. The MEA’s decision and rationale was clearly explained to P&H in the MEA’s September 6, 2018 letter. The letter also noted that pursuing the grievance would have a damaging effect on the MEA’s relationship with the ILA.

[192] The Board finds that the MEA investigated the circumstances surrounding the accident, made its determination as to its cause and chose a course of action which it considered appropriate in the circumstances. For the Board, this shows that the MEA turned its mind to the matter and made a reasonable assessment of the case.

[193] While P&H is disappointed with the MEA’s decision not to pursue the grievance concerning the July 1, 2018 accident, in the Board’s view, P&H has not presented evidence that the MEA only superficially considered the facts or merits of pursuing the grievance relating to the accident, nor did the MEA fail to make a reasonable assessment of what had transpired on July 1, 2018. The Board is not convinced that the MEA acted arbitrarily in the circumstances.

[194] There is also no evidence to suggest that the MEA’s decision not to pursue the grievance did not consider P&H’s interests.

[195] P&H states that the MEA’s refusal to pursue the grievance may be motivated by hostility and ill-will toward P&H as a result of a DFR complaint that P&H had brought against the MEA in 2014. However, the Board notes that P&H did not provide any evidence to support this allegation. There is similarly no evidence of ill-will, hostility, dishonesty or personal animosity such that bad faith conduct could be found in relation to the MEA’s decision not to pursue the grievance to arbitration.

[196] P&H’s allegations regarding the nature of the MEA’s investigation are more fully addressed later in this decision.

3. Has the MEA engaged in discriminatory conduct as the 2:40 Practice only applies to member employers engaged in the grain industry?

[197] P&H submits that applying the 2:40 Practice to only the grain industry member employers in the POH treats it and other grain industry member employers in a discriminatory manner. For P&H, the unequal treatment of member employers in the grain industry demonstrates that the MEA meaningfully represents some employers better than others. Furthermore, P&H states that the Board’s decision in Bayers, 2008 CIRB 416, stands for the proposition that a practice can still be discriminatory if it does not treat all members equally for reasons that are arbitrary or unreasonable.

[198] The MEA submits that P&H has failed to make out discriminatory treatment within the meaning of section 34(6) of the Code: it has failed to explain whether and how the application of the 2:40 Practice to P&H and other grain companies is illegal, arbitrary or unreasonable.

[199] The ILA notes that not all differential treatment constitutes discrimination in violation of the DFR. It states that P&H does not provide any explanation as to how the 2:40 Practice might be considered differential treatment for reasons that are illegal, arbitrary or unreasonable.

[200] Based on the parties’ pleadings and the documents and case law provided in support thereof, the Board finds that the 2:40 Practice applies to all employers in the POH who are engaged in grain handling and that it applies to those three employers uniformly and without exemption.

[201] The Board therefore recognizes that the three grain-handling employers have a practice applied to them which the other two POH employers do not. However, the Board finds that P&H has not met its burden of proving that the 2:40 Practice is discriminatory because it only applies to employers in the POH who are engaged in grain handling.

[202] P&H does not explain how applying the 2:40 Practice is illegal, arbitrary or unreasonable.

[203] The 2:40 Practice is based on a rationale whereby the grain handlers have the benefit of continuous loading during the eight-hour shift as employees should not take meal or coffee breaks while they are on board and employees benefit from more desirable work schedules. This effectively balances the interests of the bargaining unit employees with those of member employers in the grain industry. The MEA’s decision to agree to the application of the 2:40 Practice cannot be said to be unreasonable as it allows for this balancing.

[204] The Board finds that there is no evidence that the 2:40 Practice applying to the grain-handling employers at the POH is discriminatory, meaning illegal, arbitrary or unreasonable.

4. Has the MEA behaved arbitrarily in its investigation of the July 1, 2018 spout accident?

[205] P&H states that the MEA failed to engage in a timely investigation and expressed a non-caring attitude by not beginning its investigation for almost two weeks after learning of the July 1, 2018 spout accident. It is also critical of the vigour of the MEA’s investigation as it relied on information from P&H’s own investigation.

[206] In McRaeJackson, supra, the Board underlined an employee’s duty to cooperate with their union in the context of grievances:

[15] The union’s duty of fair representation is predicated on the requirement that employees take the necessary steps to protect their own interests. Employees must make the union aware of potential grievances and ask the union to act on their behalf within the time limits provided in the collective agreement. They must cooperate with their union throughout the grievance procedure, for example by providing the union with the information necessary to investigate a grievance, by attending any medical examinations or other assessments.

[16] Employees must follow the union’s advice as to how to conduct themselves while the grievance process is underway. Employees must attempt to minimize their losses, for example by seeking new employment if they have been dismissed, or attending retraining if this will increase their chances of re-employment.

[17] If an employee is neglectful in any of these regards, a claim before the Board will likely be unsuccessful (see Jacques Lecavalier (1983), 54 di 100 (CLRB no. 443)).

[207] The Board is of the view that the same duty may be applied to the employer representative and member employer relationship in the context of section 34(6) by analogy.

[208] While P&H states that the MEA did not commence its investigation into the matter until July 19, 2018, it did not refute the MEA’s position that Mr. Walsh left a message with Mr. Wallaker on July 7, 2018, the same day that the MEA first learned about the spout accident from the ILA as P&H had not informed the MEA of such. Messrs. Walsh and Wallaker spoke on July 10, 2018. P&H also did not refute the MEA’s statement that Mr. Walsh repeatedly followed up with Mr. Wallaker, seeking particulars of P&H’s investigation, which the MEA did not receive until September 4, 2018. In short, despite its allegations that the MEA did not move quickly in its investigation, the Board finds that P&H did not always return MEA and ILA communications promptly, in spite of its duty to cooperate with the MEA in its investigation.

[209] P&H argues that the Board’s decision in Lang, 2017 CIRB 848, stands for the proposition that the investigation and effort to represent a complainant must meet an acceptable standard (see paragraphs 134–136). It states that the MEA’s level of investigation fell below the acceptable standard, particularly since the MEA’s investigation consisted of only interviewing Messrs. Vaudin and Layne.

[210] In assessing a section 37 complaint, the Board does not assess or make findings pertaining to the merits of an employee’s grievance. The Board may, however, “review the facts of a grievance in order to understand whether the union’s investigation reflected the worthiness and seriousness of an employee’s case” (see McRaeJackson, supra, at paragraph 12). The Board notes that in a DFR complaint, its role is to review the union’s conduct in handling a matter and not to review the outcome achieved.

[211] Further, in the context of investigations, the Supreme Court of Canada noted the following in Noël v. Société d’énergie de la Baie James, 2001 SCC 39; [2001] 2 S.C.R. 207:

50 The concepts of arbitrary conduct and serious negligence, which are closely related, refer to the quality of the union representation. The inclusion of arbitrary conduct means that even where there is no intent to harm, the union may not process an employee’s complaint in a superficial or careless manner. It must investigate the complaint, review the relevant facts or seek whatever advice may be necessary; however, the employee is not entitled to the most thorough investigation possible. The association’s resources, as well as the interests of the unit as a whole, should also be taken into account. The association thus has considerable discretion as to the type and extent of the efforts it will undertake in a specific case. (See Adams, supra, at pp. 13-20.1 to 13‑20.6.)

[212] The MEA obtained and reviewed information from the investigations of both P&H and the ILA, including watching P&H’s video footage of the accident in an August 21, 2018 meeting with P&H. It interviewed both Mr. Vaudin and Mr. Layne regarding the accident as they were the two ILA members who should have been on board the vessel at the relevant time. Mr. Reeve’s investigation notes set out his conversations with Messrs. Vaudin and Balan as well as with Mr. Nick Thompson, P&H’s Vessel Loading Room Operator. P&H’s investigative findings summarized its interviews with Messrs. Vaudin, Layne and Balan as well as several staff from the vessel, a security guard and Mr. Thompson.

[213] The Board finds that the MEA’s investigation was not arbitrary. It allowed it to understand the circumstances surrounding what had happened that day using information from the various parties involved. For the Board, it was not inappropriate for the MEA to use information obtained by P&H and the ILA to supplement its own investigation. In fact, P&H, the MEA and the ILA all arrived at the same conclusion regarding what had happened. The parties may disagree on the role that the existence of the 2:40 Practice may have played in the accident, but that is not relevant to the Board’s determination of the issue of whether the MEA’s investigation was arbitrary.

[214] The Board cannot find any conduct on the part of the MEA that suggests that its investigation was only perfunctory, cursory or superficial (see Blakely, supra; and McRaeJackson, supra). The Board finds no arbitrary conduct on the part of the MEA pertaining to its investigation of the July 1, 2018 spout accident.

5. Has the MEA engaged in bad faith conduct in recent collective bargaining as a direct result of hostility and animosity with P&H?

[215] P&H states that the MEA engaged in bad faith conduct in the most recent round of collective bargaining.

[216] P&H states that the MEA’s conceding to the removal of the Article 11.02 exemption for grain products during bargaining in January 2019 is another example of arbitrary and discriminatory treatment of it and other grain handlers, adding unnecessary costs and manning for the grain handlers.

[217] In section 37 complaints, the Board has long held that in the context of collective bargaining, a union’s decisions are owed deference. The Board noted the following in its decision in Connolly et al. (1998), 107 di 120; and 45 CLRBR (2d) 161 (CLRB no. 1235):

... the general attitude towards union decisions in the context of the negotiation of collective agreements is one of deference to union discretion. The union does not control the content of what is negotiated. It is the result of mutual accommodation with the employer. This must be taken into account when considering complaints involving the duty of fair representation in a bargaining context.

...

... in adjudicating fair representation claims concerning negotiations, the Board will not attempt to assess whether the union has achieved the best or most equitable balance or whether the bargain obtained had a comparative advantage. Nor will the Board attempt to assess whether the union obtained the best possible agreement with the employer or whether the union should have bargained harder. If the process and the result of the decision are free of improper motive and evince some objective justification, the union will have fulfilled the duty of fair representation (Peter G. Reynolds et al., supra).

...

It may well be that the solution that the union came up with did not meet with the approval of all of the employees in the bargaining unit. The process of collective bargaining almost inevitably results in the disappointment of certain employees (G. Len Larmour et al., supra, at pages 121; and 415; and Claude Paquet, supra, at pages 161; and 14,353). However, employee dissatisfaction with the bargaining strategies and the choice of bargaining demands will not, in itself, constitute grounds for a complaint under section 37.

(pages 136, 141 and 142; and 178, 184 and 185)

[218] The reasoning in Connolly et al., supra, was followed in Bugay, supra, in which the Board noted more succinctly:

[41] With respect to collective bargaining itself, unions are generally subject to a minimal level of scrutiny. They are considered to have a broad discretion in fashioning bargaining demands that may disregard the wishes of individuals or minority groups. They may trade off subjects they believe to be appropriate, including individual grievances, or agree to terms and conditions that adversely affect individuals or groups of employees. …

...

[43] While a union is prohibited from distinguishing between employees on illegal, arbitrary or unreasonable grounds, it frequently finds itself in a conflicting situation where a policy that gives preference to one group will impact negatively on another group and vice-versa. Given the virtual impossibility of negotiating proposals that are satisfactory to all the employees in the unit, the acceptable approach is to assess the process involved. Where the union takes employees’ concerns into consideration and has a cogent labour relations reason for agreeing to terms that distinguish between members or groups of employees of a bargaining unit, the union will not be found to have discriminated in a representational sense (see M. Kaye Joachim, “The Meaning of ‘Discrimination’ in the Duty of Fair Representation” (1999), 7 C.L.E.L.J. 91).

[219] The Board sees no reason to deviate from this approach of assessing the process involved in collective bargaining in the context of a section 34(6) complaint.

[220] While P&H indicates that it, and the other two grain-handling member employers, did raise objections regarding certain bargaining proposals at a meeting that occurred prior to bargaining, the Board notes that under section 34(5), an employer representative has an obligation, “by virtue of having been appointed under this section, … [to] discharge all the duties and responsibilities of an employer under this Part on behalf of all the employers of the employees in the bargaining unit, including the power to enter into a collective agreement on behalf of those employers.” The employer representative represents all employers. It is trite to say that negotiations are a give-and-take process. Not all members, and in this case not all member employers, will agree with one another on specific proposals, priorities and/or outcomes. The parties at the negotiating table will have to make trade-offs and compromises with each other to get a deal that they can live with and recommend to their respective stakeholders.

[221] The MEA indicated that its negotiating strategy was based on its interpretation of Rideau Bulk Terminal Inc., supra, a previous decision of the Board which concerned self-unloading vessels, which it viewed to be a valid labour relations concern that needed to be addressed. The MEA, as the exclusive representative of employers in the POH, is free to make those types of decisions.

[222] The new manning provision contained in Article 13.04(iv) applies to all grain-handling employers and not just to P&H. The Board has carefully reviewed the parties’ pleadings and finds that there is no indication that the removal of Article 11.02, which had provided for an exemption from certain manning requirements for grain products, and the addition of Article 13.04(iv), which provides that a Walking Leader will staff self-unloader ships to oversee unloading of grain, was done in bad faith. Of note, the new provision applies to all grain industry employers and not just P&H.

[223] While P&H stated that the MEA refused to provide it with the bargaining positions document and failed to respond to its email inquiries respecting same in a timely manner, the Board accepts that Mr. Wallaker arrived late to the January 8, 2019 meeting and missed the explanation regarding the copies being retained by the MEA following the meeting to protect confidentiality and labour relations privilege. This was explained to Mr. Wallaker, and he was offered a chance to copy the handwritten notes that he had made.

[224] Mr. Wallaker’s January 10, 2019 email to Mr. Walsh requesting a copy of the bargaining positions document was responded to on January 21, 2019 by the MEA’s Director of Industrial Relations, Mr. Jean-Sébastien Barale. Mr. Barale’s email reiterated the reasons why the document was not being distributed and noted that the employers present at the January 8, 2019 meeting had been informed of Mr. Walsh’s indefinite absence from work. The Board finds that the MEA’s position regarding not distributing the document is not unreasonable and was explained to Mr. Wallaker before he requested the document from Mr. Walsh, who was absent from the workplace indefinitely. Finally, in the circumstances of Mr. Walsh’s absence, the Board does not see the slight delay in response as being an indication of bad faith.

[225] Based on the pleadings provided by the parties, the Board is not able to find any evidence that the MEA has done anything improper. The Board is not able to find any evidence of hostility, animosity and/or bad faith on the part of the MEA toward P&H in the recent round of collective bargaining, which the Board understands to have resulted in a collective agreement ratified on January 30, 2019.

VIII. Conclusion

[226] For the reasons set out above, the Board has found the following with respect to the issues being determined:

1. The MEA has not acted arbitrarily and in bad faith because it knew about the 2:40 Practice and continued to apply it.

2. The MEA has not acted arbitrarily and in bad faith by refusing to pursue a grievance on behalf of P&H pertaining to the July 1, 2018 spout accident.

3. The MEA has not engaged in discriminatory conduct by agreeing to or applying the 2:40 Practice to member employers engaged in the grain industry.

4. The MEA did not behave arbitrarily in its investigation of the July 1, 2018 spout accident.

5. The MEA has not engaged in bad faith conduct in recent collective bargaining, nor is there any proof of hostility and animosity toward P&H.

[227] The Board finds that P&H has not met its onus to prove that the MEA violated its DFR obligations under section 34(6) of the Code. The Board therefore dismisses P&H’s Complaints.

[228] This is a unanimous decision of the Board.

 

 

 

 

	____________________ Allison Smith Vice-Chairperson
____________________ André Lecavalier Member		____________________   Gaétan Ménard Member