Reginald Walker v. Local No. 1, Canadian Union of Public Employees, 1980 CanLII 872

[1980] OLRB Rep. October 1561

2193-79-U Reginald Walker, Complainant, v. Local No. 1, Canadian Union of Public Employees, Respondent, v. Toronto Hydro Electric System, Intervener.

BEFORE: M. G. Picher, Vice-Chairman.

APPEARANCES: E. Rovet for the complainant; C. M. Mitchell, B. Oldham and E. Tucker for the respondent, Wallace M. Kenny and Bryan Hughes for the intervener.

DECISION OF THE BOARD; October 21, 1980

1. This is a complaint filed under section 79 of The Labour Relations Act. The complaint alleges that the respondent (hereinafter referred to as CUPE, Local No. 1) breached its duty of fair representation pursuant to section 60 of the Act by its treatment of the grievor.

2. The grievor, Reginald Walker, has been an employee of the Toronto Hydro Electric System for 32 years. For the last 21 years he has worked as a foreman on a cable crew. For the purposes of this complaint all parties are agreed that Mr. Walker is an employee both within the meaning of the Act and within the meaning of the collective agreement between CUPE Local No. 1 and the employer. Mr. Walker has been a member of CUPE Local No. 1 since it was established in the sixties, as well as of its predecessor union.

3. Part of Mr. Walker's responsibilities involved supervising a classification of employees known as jointers during overtime work. Mr. Walker is a competent and hard-working employee. He is also firm and not popular in his approach to employees under his supervision.

4. On a weekend in late September, 1979, Mr. Walker was working the standby overtime shift. In the course of the shift he failed to call in a jointer named Lee to do overtime work. Lee grieved, claiming that he was entitled to be called in under the collective agreement. The Lee incident sparked a stormy reaction among the jointers, who communicated their displeasure to the executive of the union.

5. The executive of the union are predominantly jointers. Three of the four table officers of the executive board are jointers, including, Bernard Oldham, the president, who is a full-time executive officer on leave from his work duties, the vice-president, Eric Symes and the treasurer, Harold McLeod.

6. After the incident involving Lee, Mr. Oldham was advised by several of his fellow employees that jointers were threatening to walk off the job if something wasn't done about Walker. Mr Oldham then called a meeting of the jointer's section of the union for the evening of October 4, 1979. The meeting was held in the O.F.L. building, at 15 Gervais Drive, Don Mills, where the union's offices are located. Twenty-eight of the approximately thirty-five jointers in the bargaining unit attended. The clear purpose of the meeting was to put a stop to the irritant that Mr. Walker had become. The complainant, Mr. Walker, was not given notice of the meeting and did not attend.

7. Mr. Oldham chaired the union meeting and drafted a petition which was circulated and signed by all of the jointers present, including the president and the treasurer of the union. Four more jointers, including the union's vice-president, Mr. Symes, also signed the petition several days later. The petition was addressed to Mr. R. M. Bishop, Assistant General Manager of the Toronto Hydro-Electric Commission. It demanded that Mr. Walker be removed at once as a foreman and advised the employer that the jointers would not work with Mr. Walker during regular working hours or during overtime. Lastly, it threatened the withholding of overtime work on the Francko Lambert Project, an important job which the employer was committed to completing within a fixed time schedule and for which overtime was vital. The petition alleged that part of the jointers' concern was that Walker had insufficient regard for safety. The evidence, however, establishes no recent complaints about the safety of Mr. Walker's work practices. The Board finds that safety is not what motivated the employees or the union. The petition was a specific reaction to the failure to call in Mr. Lee the previous week, a culminating incident in a backlog of displeasure with Mr. Walker's style of dealing with employees.

8. On October 12, 1979, Mr. Oldham and three other jointers, including Mr. Lee, presented the petition to Mr. Bishop and to Mr. Bryan Hughes, the Personal Manager of the employer. Principally because of the threat of an unlawful work stoppage at a vital job site, the employer felt it had no alternative but to concede. Later that day management informed Mr. Walker that he would not supervise the work of jointers and would therefore not be given any standby overtime work. From that time to the present Mr. Walker has been deprived of overtime, at a considerable financial loss to himself. He has not been demoted. The grievor alleges that by taking the initiative against him and effectively causing the loss of part of his employment the union breached the duty of representation that it owes him under section 60 of the Act.

9. Neither the employer nor the union ever gave a copy of the petition to the grievor. The union submits that it should not be found to have breached section 60 of the Act because Mr. Walker made no attempt to file a grievance through the union. Mr. Walker testified, and the Board accepts, that although he did have some discussions with his shop steward, Mr. Dan McLellan, he decided that there was no point to attempt to grieve through the union the sanctions imposed on him by his employer. He saw that as a futile exercise. He saw the petition as the work of Mr. Oldham, the union's president and knew that it was supported by Mr. Symes, the vice-president of CUPE Local No. 1 as well as by Mr. McLeod, its treasurer. Given the circumstances he did not expect any grievance he might file to be successful at the first two stages of the grievance procedure, where it would be handled by his shop steward. At step 3 his grievance would be handled by the grievance committee which is comprised of the grievor's steward, the Chief Steward, Eric Symes, who signed the petition and Mr. Oldham, the union's president who drafted, signed and carried the petition to the employer. It is at that level that a recommendation is made whether to go to arbitration. The grievor saw no point in putting himself in the position of asking his accusers to be his defenders. He therefore did not ask his steward to process a grievance for him, choosing instead to file the instant complaint.

10. In our view, in the extraordinary circumstances of this case it was not unreasonable of Mr. Walker to decline to pursue the union's grievance procedures as an avenue of redress. Although Mr. Oldham testified that he and Mr. Symes would have disqualified themselves from participating at Stage 3 of the grievance procedure, he gave Mr. Walker good reason to think otherwise. On November 19, 1979, Mr. Walker appeared before a meeting of the executive board of the union to request a copy of the petition against him. The committee gave him no response at that time, telling him that it would get back to him on his request. It later informed him that it did not have a copy of the petition. On that occasion Mr. Oldham made no attempt to disqualify himself either from the meeting or from the private deliberations of the committee afterwards. The complainant had little hope that he would be treated fairly in respect of his grievance in any proceeding of the union, including a meeting of the general membership. A general meeting of the union would be conducted by the executive, three of whose members had placed themselves in a conflict of interest and would, moreover, be chaired by Mr. Oldham, who to all appearances led the attack against him and showed no willingness to assume a neutral role or to withdraw from the fray.

11. Section 60 of the Act provides as follows:

A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

12. The foregoing section imposes a statutory duty of representation that is owed to all employees, regardless of their personal characteristics or their popularity among their fellow employees. Under section 60 the executive of the union owes a duty of fair representation to Mr. Walker no less than to the jointers, no matter how legitimate the grounds for their complaint. In the instant case the grievor has been deprived of substantial income by the actions of his employer. The employer's decision was prompted entirely by employee feeling which Mr. Oldham and other members of the union executive allowed to be channelled into an organized union initiative.

13. Heated conflict can flare up within a union, as within any organization. Internal disputes may place executive officers in a delicate situation where they have to choose between the competing interests of groups or individuals within the union. The fact that they or the general membership may come down on the side of an issue in a way that adversely affects the interests of certain members does not violate section 60 of the Act, provided that they do so in a way that is not arbitrary discriminatory or in bad faith. That is the minimum standard to which they must adhere. (See Ford Motor Company of Canada Ltd., [1973] Rep. Oct. 519).

14. In a recent Board case, Toronto East General and Orthopaedic Hospital Inc., [1980] OLRB Rep. Apr. 555, an employee was discharged following an employee petition sponsored by his shop steward and the president of his union local threatening an unlawful strike if he were no removed. In reviewing the conduct of the union officials in that case, at p. 563 the Board stated:

There may well be situations in which a union official is justified in requesting that management remove an employee from the workplace. One example that comes to mind is that of an employee who consistently engages in unsafe conduct which poses a direct threat to the wellbeing of other bargaining unit employees. Even where a union official is concerned with the continued presence of an employee in the workplace, however, he must bear in mind that he still owes a duty of fair representation to that particular employee. The union official owes it to the employee to address himself to the merits of any allegations raised against the employee and not demand his removal simply on the basis of rumour or unfounded suspicions. In the instant case [the shop steward and the union president] engaged in conduct specifically designed to achieve the complainant's discharge. Their actions appear not to have been preceded by any investigation of the facts... and at no time did they give the complainant a reasonable opportunity to respond to the allegations against him. On the evidence led at the hearing, the Board is drawn to the irresistible conclusion that neither of [the union officers] even addressed himself to the merits of the allegations against the complainant. In other words, they demanded his discharge solely on the basis of false rumours and unfounded suspicions which they never bothered to investigate or seek to verify. Such a cavalier and insensitive approach to something as important to the complainant as his continued employment can only be described as shocking. The Board has no hesitation whatsoever in concluding that the conduct of [the union officers] and through them [the union], indicated such a non-caring attitude towards the complainant as to amount to arbitrary conduct in violation of the union's duty to the complainant under section 60 of the Act.

15. In that decision the Board expressly rejected the contention that the union officials involved had to participate in the employees' protest in order to maintain credibility with the membership. It commented at p. 564:

Union officials cannot justify their demand for the discharge of an employee on the basis of a need 'to go along with the crowd' when the crowd itself is acting on the basis of rumours and unsupported suspicions. One of the very purposes of section 60 is to protect individual employees from majority employee conduct when the majority is acting in an arbitrary manner.

16. The reaction of the jointers section of the union against Mr. Walker was clearly sparked by what they perceived as an injustice to Mr. Lee. The Labour Relations Act provides for the resolution of complaints such as Mr. Lee's by grievance arbitration. It expressly prohibits resort to strikes or the threat of work stoppages to redress grievances during the life of a collective agreement. For union officers to join, much less lead, an employee action of that kind aimed at one of their own members is to resort to obviously arbitrary measures. In the instant case the union officials who joined in the petition and threatened to strike to have Mr. Walker demoted and deprived of overtime were arbitrary in their treatment of the grievor. They were also arbitrary in that they made no attempt to learn from him what his side of the story might be or to give him notice of a union meeting that effectively tried him in absentia. By their conduct the union's officers compromised themselves and the union's ability to credibly process any grievance that the grievor might wish to bring as a result of their actions. On the evidence before it, the Board must conclude that the union breached it duty towards the grievor by the arbitrary conduct of its executive officers and of the jointers' section towards the grievor. The union also discriminated against the grievor by effectively excluding him from the union meeting concerning his rights as well as from the meeting with management, and acted in bad faith, contrary to its duty under section 60 of the Act, by concealing from him those events and the content of the petition against him.

17. The Board views the union's conduct in this complaint as reprehensible to a degree that necessitates an unequivocal remedial order. The Board's order in any complaint must respond to the special circumstances of the case. This is not, as is common in section 60 complaints, a grievance first arising out of an imputed breach of the collective agreement by the employer followed by a refusal of the union to process the grievance to arbitration. In cases of that kind the Board is reluctant to assess the merits of an employer's conduct in the course of framing a remedial order under section 60 of the Act. The Board generally will not, therefore, dispose of a dispute between employer and employee that is essentially a matter for arbitration. Rather, where the breach of section 60 is grounded in a union's refusal to advance a grievance to arbitration the Board will make an order, with or without procedural conditions, requiring it to do so. (For a review of the Board's rationale for this approach see Massey-Ferguson Industries Limited, [1977] OLRB Rep. Apr. 216).

18. This is not that kind of complaint. In this case the grievor's rights were initially violated by the union. The grievor's economic loss arose only when the employer acceded to the union's demands. While there were obvious economic reasons for the employer's capitulation, it was the employer's response in the end that allowed the union's conduct to work its result.

19. An employer can, in a number of ways, become a participant in a breach of an employee's rights under section 60 of the Act. In can become involved by collusion or, as in this case, by becoming the instrumentality by which the unlawful end is achieved. When an employer's actions are an integral part of the conduct that is being complained of under section 60 any order that redresses the breach of the union's duty of representation by returning the parties to the status quo that preceded the breach may, of necessity, affect the employer.

20. The Board is not unmindful of the practical difficulties which faced the employer in the circumstances of this case. While the Board does not endorse the action which it took, it gives some weight to the fact that the employer was more a reluctant victim than a willing partner in the action aimed at Mr. Walker. Consequently the Board's order is fashioned to cause the minimum disruption to the employer, assigning, insofar as possible, the greater remedial burden to the union. Moreover nothing in this order should be construed as limiting the future ability of the employer to take such lawful steps as it would ordinarily be entitled to take in respect of Mr. Walker or any other employee.

21. The Board therefore orders:

1. That Mr. Walker be reinstated by the employer forthwith to standby duty on the same basis as prior to the employer's directive of October 12, 1979.

2. That the respondent union compensate the complainant for all economic loss suffered by the complainant from the date of his removal from the standby list to the date of his reinstatement. Such compensation shall, however, be reduced because of the delay of the complainant. It would in our view have been reasonable for the grievor to file this complaint within approximately one month of the date when it arose. In this case that would be November 12, 1979, one month after the day the employer acted in response to the union's petition. He did not file this complaint until February 25, 1980. The union shall, therefore, not be required to pay any compensation attributable to the grievor's delay between November 12, 1979 and February 25, 1980.

3. The Board orders that the union and its officers cease and desist from any arbitrary, discriminatory or bad faith conduct in the representation of Mr. Walker.

4. The respondent union is directed to provide copies of the attached notice marked "Appendix", signed by the respondent's president, forthwith to the intervener employer in sufficient numbers for posting on the employer's premises.

5. The intervener is directed to post forthwith copies of the attached notice marked "Appendix", duly signed by the respondent's president, in conspicuous places at its places of business or work centres where bargaining unit employees are based in Toronto, including all places where notices to employees are customarily posted, and to keep these notices posted for 60 consecutive working days. Reasonable steps shall be taken by the intervener to insure that the said notices are not altered, defaced or covered by any other material.

22. The Board remains seized of this complaint to resolve any matter arising out of the interpretation of its order.