Reasons for decision
Mario Soulière et al.,
complainants,
and
Association of Postal Officials of Canada,
respondent,
and
Canada Post Corporation,
employer.
CITED AS: Mario Soulière et al.
Board File: 22317-C
Decision no. 205
November 29, 2002
Complaint of unfair labour practice filed pursuant to section 97(1) of the Canada Labour Code, Part I, alleging violation of section 37 of the Code.
Unfair labour practice - Duty of fair representation - Negotiation of a collective agreement - The complainants allege that their union negotiated their terms and conditions of employment with the employer in a discriminatory manner, thus breaching the duty of fair representation - The complainants, who are sales representatives, are upset that the union complied with the employer’s request to modify the classification system without all the conditions that could affect their wages being written down - The Board confirms that the duty of fair representation applies not only to the grievance and arbitration procedures contained in the collective agreement, but also to the negotiation and renewal processes of the collective agreement - When collective bargaining is an issue, the Board must consider the union’s conduct according to three criteria, that is, whether the union fulfiled its institutional role in representing all its members, whether employee rights within the regime of collective bargaining were appropriately protected, and whether critical job interests such as seniority, discipline and job security were considered in the collective bargaining process - The Board is satisfied that the union fulfiled its institutional role in representing all its members - The union consulted the sales representatives, held a meeting and appointed a sub-committee to obtain their opinion - Holding a separate ratification vote for the sales representatives is not a realistic expectation - A lack of interest during the consultation process cannot serve as basis for alleging that the union’s conduct was arbitrary, once the letter of understanding was signed, or for challenging its decision to accept the employer’s conditions - The complaint is dismissed.
The panel of the Board was composed of Ms. Michele A. Pineau, Vice-Chairperson, sitting alone pursuant to section 14(3)(c) of the Canada Labour Code (Part I - Industrial Relations) (the Code).
A hearing was held in Montréal on May 14, 15 and 16, 2002.
Appearances
Mr. Yves Denis, for the complainants;
Mr. George Rontiris, for the respondent; and
Mr. Marc Santerre, for the employer.
I - Nature of the Complaint
[1] This is a complaint of unfair labour practice filed on July 3, 2001, by Mr. Mario Soulière on behalf of himself and 118 other complainants (the complainants) pursuant to section 97(1) of the Code, alleging violation of section 37 of the Code by their union, the Association of Postal Officials of Canada (the union or the APOC).
[2] The complainants allege that their union negotiated their terms and conditions of employment with the employer, Canada Post Corporation (the employer or Canada Post), in a discriminatory manner, thus breaching the duty of fair representation as provided by the Code.
II - Parties’ Position
[3] The complainants work for Canada Post in the sales group as sales representatives in the Montréal region and the Quebec District. All the sales representatives in Canada (including the complainants) make up about 10 percent of the members represented by the union. On April 18, 2001, the union advised its members that it had reached an agreement in principle with the employer to renew the collective agreement, and it distributed a newsletter outlining the highlights of the agreement.
[4] The complainants allege that they learned, for the first time through this newsletter, that the union had negotiated a new job classification for the sales representatives. They contend that amendments to the team and individual incentives are not as favourable as the benefits granted to the other union members.
[5] The complainants’ written submissions as stated below clearly outline their allegations:
Last April 18, we received a newsletter from the APOC (Appendix A) related to the agreement in principle between Canada Post and the Association. The newsletter outlined the highlights of the agreement, and we were invited to an information meeting, which would take place on April 23.
It was through this newsletter that we learned that our association had agreed that the members working in the sales community were to be part of a new classification. This change also included amendments to wages and to team and individual incentives, whereas other members were not affected. We were all the more amazed to receive this news because the issue was never raised in any way whatsoever with the concerned people. We had many concerns, and the meetings held by the APOC did not reduce these fears. We were puzzled by the process followed by the APOC throughout these negotiations. Concerns about injustice, discrimination and dishonesty began to root. We realized that no serious consultation on this issue had taken place, either before or during the bargaining process.
Therefore, a first letter (Appendix B) was sent on May 10 to the APOC’s President by Mr. Jean Simard on behalf of all Quebec District representatives, and I sent another letter (Appendix C) on behalf of Montréal Area representatives.
Those letters clearly set out our position on the agreement in principle, the dubious process followed during the negotiations and the fact that it was discriminatory that a majority of members unaffected by the changes had decided, through a vote, on what would happen to 10% of the membership without any prior consultation. Our union’s duty of fair representation had just been cast aside.
The responses we received to our letters (appendices D and E) reassured no one. It seems that the union found it fair and clearly sufficient that three sales representatives (arbitrarily chosen by the APOC’s President) be appointed to a subcommittee whose role was merely to advise the negotiating team. A little weak as a duty of fair representation for a such an important issue and which will have a major impact on us.
Finally, during the week of May 15, all members of the APOC received documents (Appendix F) concerning a general vote. These documents were similar to Appendix A, in which we were requested to vote on clauses that were unclear to the sales representatives, but interesting to the majority of the other APOC members.
(translation)
[6] Accordingly, the complainants are upset that the union complied with the employer’s request to modify the classification system without all the conditions that could affect their wages being written down. They allege that the sales figures and territories are not sufficiently determined to implement a new wage policy. They believe that the information on which the new classifications are based is not only inexact but also confused. According to them, the union was naive in agreeing to such changes at the bargaining table on the sole basis of the employer’s promises. The complainants submit that the union’s conduct was therefore arbitrary in their regard.
[7] The complainants also submit that the car plan that was renegotiated is less favourable to them than the previous one, and is therefore detrimental to them.
[8] The complainants ask that the Board order the union to represent them fairly and to hold serious consultations directly with them, with retroactive effects to April 18, 2001. In these circumstances, the complainants believe that the results of the general vote on the proposed agreement should be declared invalid. In addition, they ask that they be reinstated to the classification levels in effect prior to the new collective agreement.
[9] The union argues that the alleged facts do not demonstrate that it acted in a manner that was arbitrary, discriminatory or in bad faith towards its members. The union submits that it has always tried to obtain the best terms and conditions of employment and the best possible wages for all its members. It contends that it is not always possible nor practical to achieve this goal, given the diversity in the bargaining unit. Thus, the proposed collective agreement is negotiated and presented to the members as part of an overall package, and ratification votes held among all the members. It adds that it is not an option to divide up a proposed agreement so that only members directly affected may vote on specific clauses. Moreover, most other bargaining agents follow the same practice.
[10] The union’s National President, Mr. John Barrowclough, explains that, in 1993, the Canada Labour Relations Board (CLRB), the predecessor of the current Board, reviewed the bargaining units at Canada Post. In its interim decision, the Board found that the sales representatives, who were then represented by the Public Service Alliance of Canada (PSAC), would henceforth be part of APOC’s bargaining unit. At that time, Canada Post had begun discussions with APOC in order to implement a wage plan comparable to that of the public sector, to improve, among other things, incentive awards.
[11] During the 1994 negotiations, Canada Post offered a wage plan, which included wages paid on a commission basis and incentive awards. However, the parties did not agree on issues of managing performance appraisals, sales territory structure and the accounting of revenue generated by clients in some territories. Nevertheless, those discussions resulted in a letter of understanding being incorporated into the collective agreement, making the implementation of such a program possible in the future.
[12] During the 1996 negotiations, an agreement on incentive awards for all union members (Letter No. 1) - the Corporate Team Incentive Plan - was incorporated into the collective agreement. That agreement was, however, subject to any other specific agreement that might be negotiated for the sales group. Given that no agreement was reached on the issue of wages paid on a commission basis, the letter of understanding was renewed.
[13] The Corporate Team Incentive Plan was renewed during the 1998 negotiations, and the Corporate Individual Incentive Plan was added. Yet again, these incentive programs were subject to a future agreement on separate incentives for the sales group. Letter No. 2 was renewed once more, but Canada Post advised that it was holding out for a separate wage plan for the sales group, and that the issue would definitely be addressed at the next negotiations.
[14] The 1998 negotiations were also the beginning of a new style of collective bargaining for these parties, based on a win-win approach to bargaining, referred to as “interest-based negotiations.” In following the principles of this approach, the union invited the Vice-President of Sales and other Canada Post directors to meet with its Executive Committee members to discuss problems that existed during the three-year period before the agreement was renegotiated. One of these meetings was held in Montréal in June 2000 and two members of the union, as representatives of the sales group, were invited to attend in order to allow the executive committee to better understand the sales representatives’ point of view on existing problems.
[15] At that meeting, the issue of the classification system was raised by Canada Post’s Vice-President, whose position was that the classification system and incentives that applied to other APOC members were inappropriate for the sales representatives, since they had been designed for supervisors, heads and officials who supervise other employees and whose work depend on the volume of mail. Despite the discussion topic, this meeting appears to have attracted little interest on the part of the Montréal region and Quebec District sales representatives.
[16] In order to better understand what is at stake, it is useful to know that the wage plan applicable to the sales representatives had three levels: AP2, AP3 and AP4. These levels combined, without any distinction, the skills and duties of sales, service and call centres, which are in communication with the sales representatives who travel and deal with service calls.
[17] In anticipation of the 2001 negotiations, the union’s National President appointed a subcommittee that would advise the negotiating committee on the processes set up by Canada Post over the past six years to deal with the problems related to sales territory structure and revenue accounting. Three sales representatives from the Vancouver, Ottawa and Toronto regions were chosen. Two union members from the Montréal region declined the invitation to participate on the subcommittee.
[18] In order to obtain relevant information, the subcommittee was given access to the Mercer database on territory management. The members examined that information and compared various economic models in regard to territories. The subcommittee met with Mr. Tom Tyce of Mercer Chicago, who gave a presentation on the evolution of sales groups and the broader economic considerations. The subcommittee members also had access to some of the employer’s data, which they could verify. The union’s legal counsel had a comparative survey done of salaries in the sales field.
[19] During the negotiations, the union electronically sent all sales representatives a survey on these issues. The results were given to the subcommittee. The National President testified that the response rate was 33%, which he thought was very satisfactory.
[20] As planned, the 2001 negotiations were run according to the interest-based approach, and resulted in a proposed collective agreement, which included, among other things, clauses related to a classification system and incentive awards for the sales group. The new classification system has four levels: Sales 1 to 4. The call centre employees are now Sales 1 level. The employees performing marketing duties are Sales 2 level. The service representatives who travel are Sales 3 level and, lastly, sales representatives who travel are Sales 4 level.
[21] According to the new collective agreement, the complainants went from the AP3 level, with a maximum salary of $53,304, to Sales 4 level, with a maximum salary of $56,130. In addition, the corporate team and individual incentives were increased; from 6.25% for meeting targets up to 8.25% for exceeding them, to new maximums of 9% and 16% respectively.
[22] In agreeing to this proposal from the employer, the union considers that two classification systems provide sales representatives with very advantageous conditions. Three other bargaining units at Canada Post also have more than one classification system within the same unit.
[23] The union indicates that it is neither usual nor desirable to divide the ratification vote into groups, when there is only a single collective agreement that applies to everyone. The new provisions that apply to the sales representatives were predictable in view of the discussions initiated seven years ago and the position taken by the employer in the last negotiations.
[24] The union submits that the complainants’ interests were very well represented by their colleagues on the subcommittee who share the same responsibilities as the complainants. The union emphasizes that it raised the “what if” hypothesis at the bargaining table so that the changes to the sales representatives’ wages would be postponed until all the necessary data to implement the changes was available. The union admitted that this understanding is not in the collective agreement, but that it is a verbal agreement. The union was satisfied with such a verbal agreement, since collective agreement debriefing sessions across the country were held jointly with the employer.
[25] The union explains that during the debriefing in Montréal, the sales representatives were more suspicious of the data then available for implementing the new systems and the employers’ ability to produce such data than they were of the systems themselves.
[26] The union alleges that the complainants are ahead, whatever the outcome of the issue. In the event that Canada Post does not have all the data, the sales group employees will get the same pay increments as other bargaining unit members. In the event that the data needed for changing the system becomes available, the complainants are also ahead, since they are being paid more than the rest of the bargaining unit, that is, from 7 percent to 10 percent more.
[27] Finally, the union emphasizes the improvement in labour relations at Canada Post, in particular, because of the interest-based negotiation approach used in negotiating the last two collective agreements. It submits that the results speak for themselves. It argues that in any case, the complaint is premature, since it was filed before the classification system was implemented and before the information needed for implementation was available.
[28] The union rejects the complainants’ arguments that the new car plan is less favourable than the previous one. It explains that the employer was inflexible on the issue because the plan applies to the corporation as a whole.
[29] Lastly, the union argues that it must have a certain leeway to negotiate the best agreement possible in relation to all its members. It must be able to make choices, considering the employer’s position and the available alternatives. It considers that it fully complied with the provisions of section 37 of the Code.
[30] For its part, the employer submits that the new classification system was discussed during the last three negotiations and that no complaint was filed on the changes to be made to the collective agreement. The employer argues that it is in his interest to negotiate a system satisfactory to the APOC’s members, since Canada Post substantially depends on the revenues generated by this area to ensure its profitability. It argues that the Board must respect the agreements concluded between the union and the employer, even if they are verbal, and allow the parties to benefit from the advantages resulting from the new organizational climate.
III - Analysis
[31] The bargaining agent’s duty of fair representation is found in section 37 of the Code:
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.
[32] That duty arises from the exclusive power conferred on a union to act as spokesperson for all employees in a bargaining unit. This power has been described in many Board decisions, and the standard test was set forth in Canadian Merchant Service Guild v. Guy Gagnon et al., [1984] 1 S.C.R. 509. In that judgement, the Supreme Court set out the following principles:
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.
...
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)
[33] The great majority of unfair labour practice complaints filed pursuant to section 97(1), alleging contravention of section 37 of the Code, submit that the union did not adequately represent the complainant during the grievance procedure, or that it refused to refer the grievance to arbitration. Rarely does the Board have to examine the duty of fair representation in collective bargaining. Before the decision in George Cairns et al., [1999] CIRB no. 35; and 2000 CLLC 220-012, was rendered, the Board was reluctant to interfere in complaints related to the outcome of collective bargaining, considering, rightly or wrongly, that its authority to review in that regard was very limited.
[34] In Gordon Parsley et al. (1986), 64 di 60; 12 CLRBR (NS) 272; and 86 CLLC 16,018 (CLRB no. 555) (pages 68; 281; and 14,153), the CLRB restricted the application of section 37 to operative agreements, while in George Harris et al. (1986), 68 di 1; 15 CLRBR (NS) 328; and 86 CLLC 16,059 (CLRB no. 597) (pages 9; 337; and 14,523), the CLRB found that section 37 applied during negotiations even if the collective agreement had not expired. In Peter G. Reynolds et al. (1987), 68 di 116; and 87 CLLC 16,011 (CLRB no. 607) (pages 126-128; and 14,107-14,108), the CLRB apparently restricted the application of that section by ruling that the duty of representation, contrary to the grievance and arbitration procedures, continues to apply even when the collective agreement has technically expired.
[35] However, in George Cairns et al., supra, the Board decided that its supervisory role with regard to the union’s duty of representation at collective bargaining should be just as visible as with regard to the duty of representation during the grievance process. The reconsideration panel in George Cairns et al., [2000] CIRB no. 70, further determined that section 37 should be given a broader interpretation by considering the particular context of the labour relations and the Code’s provisions.
[36] The labour and management communities reacted strongly to the Board’s position until the Federal Court confirmed both the original panel’s decision ordering the reopening of an appendix to the collective agreement on three issues, and the reconsideration panel’s decision on the broad interpretation that should be given to section 37.
[37] With this background in mind, let us examine how the Board described the union’s role in its original decision (George Cairns et al. (35), supra):
[105] The Board’s jurisdiction to review a union’s actions is therefore very narrowly focussed. The Board’s interest is in the union’s process and not in whether the union came to the right decision. As a cornerstone of its jurisprudence, the Board has continuously maintained that a union is entitled, without interference, to exercise its judgment in representing its membership. It is therefore not up to the Board to interpret the collective agreement or any other collateral agreement that might ensue. Having said this, it is safe to assume that when a union signs a collective agreement, it has sought its intended effects, and the representations made to the membership must not distort the intended effect of the agreement.
[106] The duty of fair representation has both a procedural and a substantive component. The substantive component attaches to the effect of the union’s actions, the consequences of which could be arbitrary, discriminatory or in bad faith, even though they appear to be legitimate, for example when they result in the exclusion of a particular group from the benefits of the collective agreement. On the other hand, procedural violations include decisions made by the bargaining agent that adversely affect the interests of an individual or minority group of employees as the result of a process that is tainted by hostility, ill-will, discrimination or bad faith. Thus, it is essential that both the process and the substance of the decision be free from arbitrariness or bad faith.
[107] The duty of fair representation may also be assessed by a three-pronged test. Has the union fulfiled its institutional role in representing all its members? Were employee rights within the regime of collective bargaining appropriately protected? Were critical job interests such as seniority, discipline and job security suitably considered in the collective bargaining process?
[108] In the first test, the union need not achieve particular results or even achieve the outcome it set out as its goal in the first place. It should also be made clear that putting a vote to the membership is not wrong per se. What is key, however, is that the vote must be carried out in a context that is fair and free of discrimination and that proposals put to the membership are the subject of due thought and consideration of its membership, including the minority.
...
[110] While there is nothing unlawful about a union favouring a group of employees over another, and recognizing that a union has a great deal of latitude in making decisions, the union must nevertheless reasonably weigh all relevant factors. Reasonable means rationally applying relevant factors after assessing and balancing all legitimate interests. The issue is not whether a decision is right or wrong, or whether the union could have decided differently. Rather, the union must ask itself whether its decisions are reasonable having regard to all circumstances.
[111] Where critical interests are at stake, the union must even more seriously turn its mind to the circumstances of those who in all likelihood will be adversely affected by its decision. It has been said that seniority is “the most valuable capital asset of an employee of long service” (see Summers and Love, “Work Sharing as an Alternative to Layoffs by Seniority” (1976), 124 U. of Pa. L.R. 893, at page 902, as quoted in Dufferin Aggregates, supra).
[112] As the defender of this most important principle, the union cannot afford to take a careless or casual attitude when continuing employment is at stake. As representative of the bargaining unit as a whole, it has a duty to achieve a certain fairness between all groups. Its position and decisions must not be seen as giving undue advantage to one group over another or allowing extraneous interests to cloud the issue. The Board has consistently found that the bargaining agent will be held to a much stricter standard where the career path of an employee may be seriously jeopardized and its actions more closely scrutinized than in other cases.
[113] The weighing of interests and the ultimate choices are without a doubt highly political and will inevitably be influenced by competing preferences, values and viewpoints. However, the union will be judged on whether it approached the issue objectively and acted responsibly towards all its members. It must take a reasonable view of the problem and thoughtfully assess the various and conflicting interests.
(pages 36-38; and 143,144-143,145)
[38] The reconsideration panel had the following to say in Georges Cairns et al. (70), supra:
[63] It is important that in the present matter, the Board take care to ensure that section 37 is given meaning in its statutory context, in consideration of the facts of the present case and industrial relations considerations. In VIA Rail Canada Inc. (1998), 107 di 92; 45 CLRBR (2d) 150; and 99 CLLC 220-010 (CLRB no. 1233), the CLRB noted that while the collective agreement had technically expired, its essential content continued in force pursuant to the freeze provisions of the Code until effective negotiations to resolve the very outstanding issues now in dispute had been concluded. It is very doubtful, if in these circumstances, and in the context of the other relevant statutory provisions, including section 50 of the Code, the Board’s concern about the ensuing negotiations could ever be reasonably construed as a concern with the negotiation of an agreement outside of the Board’s proper jurisdiction. Importantly, on the evidence now before the reconsideration panel, it is impossible to conclude that the anticipated effective negotiations have occurred. On this basis alone, this aspect of the request for reconsideration should be refused.
[64] The reconsideration panel is, nevertheless, also of the view that the decision of the initial panel in the instant case is in keeping with the appropriate interpretation to be given to section 37 of the Code. Workplace relationships in federal industries in Canada are generally, at the present time, founded on the expectation that the rights under applicable collective agreements are of a continuing nature. The notion that seniority rights, essential working conditions, the right to employment and other rights of minority employees already in existence under one collective agreement could be arbitrarily and conclusively terminated by a collective agreement supported by a narrow majority and that any inquiry by the Board as to whether this was done fairly would be prohibited by section 37's wording appears to this Board to be inconsistent with a reasonable interpretation of that section of the Code in the light of its statutory context as is indicated by the authorities cited above. The present Board does not feel that it can apply the present Code in a manner to so limit its jurisdiction on the basis of the text of section 37 in its statutory context. The argument on authority that the Board should so limit its jurisdiction appears therefore to the reconsideration panel to be without merit as the authorities do not appear to provide the unequivocal support contended for such a position. More importantly, it appears that no such intention to limit the scope of the Board’s inquiry is manifest in the text of the section itself.
(pages 29-30)
[39] For its part, the Federal Court of Appeal in VIA Rail Canada v. Cairns, [2001] 4 F.C. 139, concurred with those two decisions in the following terms:
[52] Section 37 imposes upon a union a duty to fairly represent its members in the representation of the rights that they have acquired by virtue of the collective agreement that is applicable to them. This does not necessarily relieve the union from such a duty outside the term of a collective agreement. Indeed, once notice of collective bargaining has been given, the terms or conditions of employment or any right or privilege of the employees in a bargaining unit are frozen by paragraph 50(b) until the parties gain the right to strike or lockout in accordance with section 89 [as am. by S.C. 1998, c. 26, s. 39; 1999, c. 31, s. 157]. The statutory freeze would have no meaning unless those terms, conditions, rights or privileges which are its object have a source...
...
[54] VIA and the BLE argue that extending the duty of fair representation to collective bargaining offends the principle of free collective bargaining. They argue that such an extension would destroy the necessary give and take of contract negotiations by restraining the union from bargaining away any existing rights. I disagree. The existence of a duty of fair representation does not preclude a union from making concessions with respect to existing rights or privileges of its members in order as part of the bargaining process. What it does do, is to require that the union, in making those concessions not act in a manner that is arbitrary, discriminatory or in bad faith during the collective bargaining process.
[55] To hold otherwise would be to allow a union to simply put off dealing with controversial matters such as the crewing initiative in this case, so as to address them with the employer during collective bargaining instead of during the term of the collective agreement. While dealing with the matters during the term of the collective agreement would give rise to a duty under section 37, delaying negotiations would shelter the union from scrutiny under section 37. In my opinion, an interpretation that allowed such a result would be irrational and absurd.
(pages 166-168)
[40] The principles that emerge from these citations suggest that the duty of fair representation applies not only to the grievance and arbitration procedures contained in the collective agreement, but also to the negotiation and renewal processes of the collective agreement. In both cases, the Board gives unions a long leash with regard to decisions affecting its members. In matters of grievance and arbitration, the Board is very meticulous when examining a union’s actions in relation to the complainant’s interests.
[41] However, when collective bargaining is at issue, the Board must consider the union’s conduct according to other criteria, which are as follows (see George Cairns et al. (35), supra):
[107] ... Has the union fulfilled its institutional role in representing all its members? Were employee rights within the regime of collective bargaining appropriately protected? Were critical job interests such as seniority, discipline and job security suitably considered in the collective bargaining process?
(pages 37; and 143,144)
[42] In the present matter, the Board is satisfied that the APOC fulfiled its institutional role in representing all its members. Among other things, the union consulted the sales representatives by holding at least one meeting in Montréal in order to get their opinion, and by appointing a subcommittee that advised the negotiating committee. The complainants have not presented any evidence as to the subcommittee’s incompetence or its inability to represent their interests. Their only objection stems from the fact that there was no representative from the Montréal region or the Quebec District. However, two of them, having been invited to participate, declined the invitation. In fact, the complainants were unable to prove that the new classification system or the new incentive awards were detrimental to them. They rather objected to the fact that they were not receiving the same benefits as the other members of the unit. The Board understands from the complainants’ statements that the union should have waived the conditions of the classification system and the incentive awards, given their uncertainty at the time the collective agreement was signed. This uncertainty, in their opinion, jeopardized their current wage level, and inferred that they did not receive the same benefits as the postmasters and supervisors.
[43] This situation is appreciably different from that in George Cairns et al. (35), supra, where the bargaining agent’s goal was that VIA conductors were ensured separation conditions, thus guaranteeing continued employment for its traditional members, the locomotive engineers at VIA and CN. In that matter, the mandate of the subcommittee created by the BLE was to set out the severance conditions and assist the conductors through this process. Even where the conductors were able to qualify as locomotive engineers, their ranking at the bottom of the seniority lists gave them no assurance of long-term employment.
[44] Mr. Barrowclough raised the fact that Montréal region and Quebec District sales representatives did not attend consultation meetings held to attract their interest on wage issues. This lack of interest cannot serve as basis for alleging that the union’s conduct was arbitrary, once the letter of understanding was signed, or for challenging its decision to accept the employer’s conditions or even for challenging the ratification process.
[45] Holding a separate ratification vote for the sales representatives is not a realistic expectation, for this kind of action would jeopardize the entire proposed collective agreement for all other members. To prevent the signing of a collective agreement in order to satisfy a dissenting group in the bargaining unit is not in the interest of constructive labour relations.
[46] When the Board reviewed the units on October 31, 1996, it found that there was a community of interest between the sales representatives’ unit and the postmasters’ unit sufficient for them to be governed by the same collective agreement. Further, it is completely appropriate for the union to negotiate particular terms and conditions within the collective agreement, provided these take into consideration the interest of members from another group. However, the Board will not allow that these specific conditions exclude some employees from the certified unit or that employees form a separate group in order to prevent the renewal of a collective agreement.
[47] To the contrary, the Board notes that the complainants’ rights were adequately protected, given the union got the employer to commit not to implement the new classification system as long as all the necessary data on territory structure and on performance appraisals for incentive awards purposes were not available. Having a “safety net” in case it would not be possible to implement the new systems, the complainants have at least the same salary-related benefits as the other members of the bargaining unit.
[48] Finally, no evidence supports the fact that the new classification system jeopardized or affected in any way crucial job interests such as seniority, discipline and job security. The complaint must also be dismissed on this issue.
[49] In light of the above, the Board finds that the complainants have not discharged the burden of proof in support of their complaint. The complaint is therefore dismissed.