[1980] OLRB Rep. July 1102
0082-80-U Cliff Wilson, Complainant, v. United Brotherhood of Carpenters and Joiners of America and Local Union 2737, Respondent.
BEFORE: Pamela C. Picher, Vice-Chairman and Board Members H. J. F. Ade and C. Ballentine.
APPEARANCES: M. P. Forestell for the complainant; T. G. Harkness and Barney Wunovic for the respondent.
DECISION OF THE BOARD; July 23, 1980
This is a complaint filed under section 79 of The Labour Relations Act. The complainant, Mr. Cliff Wilson, alleges that he was dealt with by Mr. Barney Wunovic, the business agent for the respondent union, in a manner that was arbitrary, in bad faith and thus contrary to the union's duty of fair representation contained in section 60 of the Act.
Cliff Wilson had worked for Fairline Boats Limited in Niagara Falls, Ontario for three years when he was permanently laid off on December 10, 1979 along with several other employees. The company was then experiencing severe financial difficulty and was under the threat of having to close down its operations. That in fact occurred in March, 1980.
Wilson was the most senior carpenter employed at Fairline Boats Limited. At the time of the lay-off management made no complaint about his work and provided him no reason for the lay-off. For further information Wilson called Barney Wunovic, the business agent for the respondent union. Wunovic told him that he knew he'd been laid off. Further, he told Wilson he believed that the whole place would be shut down within the week. Then Wilson pressed him for an explanation as to why he was being laid off out of seniority, Wilson's uncontradicted evidence reveals that Wunovic responded by suggesting that Wilson didn't care about his employer losing money. In the Board's assessment Wunovic displayed little inclination at this point to listen to Wilson's complaint or to attempt to provide him with an explanation of the order in which the employees were being laid off.
Investigating on his own, Wilson learned that he was entitled to two weeks' severance pay rather than one. He called Wunovic. After some amount of persuasion Wunovic agreed to look after the matter. Ultimately Wilson received the second weeks' pay.
During the week of December 16th, Wilson called Wunovic again. The business which he had been told would close within the week was still operating and he wanted to file a grievance.
Wunovic directed him to see the union steward. When Wilson replied that he had been laid off too, Wunovic said that he should see the other steward, Walter Trask. When Wilson went to see Trask he was told that Trask wasn't really a union steward and that, in any event, he had no grievance forms. He then went to the union office and was told by the secretary to write to Mr. T. G. Harkness, another union official, for a grievance form.
At a general membership meeting on January 21, 1980 Wilson raised the matter of his lay-off and his desire to file a grievance. As a result, Wunovic was directed by the president of the Local to file a grievance for Wilson. Within two days a formal grievance dated January 23. 1980 was filed by Wunovic on behalf of Wilson and three other employees laid off at the same time. Though Wilson asked Wunovic for a copy of the grievance at the time it was filed and then again at the February general membership meeting, he had not received one by the time of the Board's hearing.
The day after he filed the grievance Wunovic received both an oral and written reply to the grievance from Mr. Alan Jones, the president of the company. Jones justified Wilson's lay-off out of seniority on the basis of his not having skill equal to the other employees to perform the finishing work on the boats, the only type of work still being carried on by the company. Mr. Jones stated in his reply to Wunovic,
"Cliff Wilson performs only bench work, because of the state of completion of the remaining work there is virtually no bench work left to do. per 6:01 (d)"
- The articles of the collective agreement referred to by Jones in his full reply are set out below:
"ARTICLE 6—MANAGEMENT RIGHTS
6.01 The Union recognizes and acknowledges that the management of the plant and direction of the working force are fixed exclusively in the Company and without restricting the generality of the foregoing, the Union acknowledges that it is the exclusive function of the Company to:
(d) determine the nature and kind of business conducted by the Company, the kinds and locations of plants, equipment and materials to be used, the control of materials and parts, the methods and techniques of work, the content of jobs, the schedules of production, the number of employees to be employed, the extension, limitations, curtailment or cessation of operations or any part thereof except as specifically limited by the express provisions of this Agreement.
ARTICLE 16— SENIORITY
16.01 . . . layoffs... shall be based upon the following factors:
(a) Seniority:
(b) Skill, competence and efficiency to do the work of the job.
When factor (b) is relatively equal, seniority shall govern.
Up to the date of the Board's hearing Wunovic, by his own admission, had not informed Wilson, the union membership or any union official that the company had given a negative written reply to the grievance. Furthermore, Wunovic admitted that he never related to Wilson the explanation Jones gave for Wilson's lay-off out of seniority.
At the next general membership meeting which took place in the last week of February, 1980 Wilson asked about his grievance. Wunovic told him that it was still being processed and provided him with no further detail. He did not tell him that he had already received the company's negative reply. When asked how long it would take to process the grievance, Wuriovic, according to Wilson's uncontradicted testimony, told him it could take as long as three months. The Boards finds this a strange reply in view of the time limits for the various stages of the grievance procedure set out in the collective agreement. Mr. Arthur Varty, the former business agent of the respondent union, was in attendance at the February meeting and testified that other members spoke in support of Wilson's position that that the grievance should be processed.
At the March general membership meeting it was reported that Fairline Boats was in fact closing. Wilson raised his grievance and was again told by Wunovic that it was being processed. Wunovic's reply to Wilson's further question as to what could be done about his grievance is a matter of conflicting evidence. Wilson testified that Wunovic told him, "As far as your grievance is concerned you can shove it up your nose." Wunovic testified, on the other hand, that he said, "As far as this grievance is concerned, because the company is defunct, I might as well stick this grievance up my nose." Wunovic stated to the Board that he had to rush to another meeting and only attended the March meeting for the first few minutes to give a report to the membership. He admitted that his response to Wilson was terse.
At the Board's hearing Wunovic reluctantly admitted that he should have told Wilson about the company s reply. He said, however, that at the time, with the threat of an imminent shutdown, he felt that "there were more monumental things [to consider] than the petty grievance of an individual". He said that at that time "his grievance sounded so insignificant because it related only to an individual" while his primary concern was to keep the company in operation. In this regard he told the Board that he spoke with Jones on three occasions to try to resolve the company's problem and keep it open. He said that when he told the membership in February that the matter was pending he was hoping that another company would purchase the business and then reinstate the laid off employees. Reinstatement alone, however, even if it had been forthcoming, would not have been responsive to Wilson's complaint that he had been wrongfully laid off in the first place and thus wrongfully denied employment up to the point of any reinstatement.
Section 60 of the Act imposes a duty on trade unions to represent the employees in the bargaining unit in good faith and in a manner that is not arbitrary, discriminatory or in bad faith.
In this case the evidence establishes that Wunovic, knowingly and without any regard to the consequences, misled not only Wilson but also the general union membership about the status of Wilson's grievance. When Wilson asked Wunovic at both the February and March general membership meetings what was happening with his grievance he was told it was being processed. This response was not even colourably accurate. The day after he filed the grievance, or close to a full month before the February general membership meeting, the business agent received a formal reply from the president of the company turning down Wilson's grievance. Thus despite any further conversations Wunovic may have had with Jones on the issue, the grievance had been processed as far as it could be short of arbitration.
The collective agreement set out four steps to the grievance procedure in Article 14.04. At Step One an employee discusses the grievance with his department foreman and ultimately may, at Step One, present the grievance in writing to his department foreman through his shop steward. The department foreman must then provide a written reply within two days.
At Step Two, if dissatisfied with the department foreman's reply, then either the shop steward or the employee may within two days refer the matter in writing, on a grievance form, up the ladder to the production manager. He, in turn, is obliged to answer in writing within two days.
If still dissatisfied, Step Three provides that within three days of the production manager's answer the union can submit the grievance in writing to the general manager or his designate. At this stage the grievance must consist of a statement of facts and the relief sought and specify the section(s) of the collective agreement claimed to have been violated. Within five days of the receipt of the grievance by the company the shop steward and business representative are to meet with the company and discuss the grievance. Within five days of that meeting the company's reply must be delivered to the union.
If the grievance is not settled at Step Three then Step Four of the procedure states that "within ten days of receipt of the written decision referred to in Step Three, the grievance may be referred to Arbitration.".
Article 14.03 stipulates that the [t]ime limits in the grievance and arbitration procedure must be upheld." Provision is made for extension of the time limits only if mutually agreed upon by both parties.
The evidence does not reveal whether Wilson had a department foreman as referred to in Step One of the grievance procedure or whether there was in the company at the time a production manager as referred to in Step Two. Since the company was winding down its operation and in the process of going out of business at the time, it may not have been running at full management capacity. Though Wilson spoke to the shop steward about his grievance as anticipated in Step One, the shop steward could not provide him with the grievance form needed to file a grievance at Step Two.
It appears on all the evidence that this grievance, without objection from the company, was first filed at Step Three of the grievance procedure rather than at Step One or Two. It went in the first instance to the highest person in the company; it was set out in the detailed form required at Step Three and the business representative met with the company to discuss the grievance as further required at Step Three. The next step to be taken in pursuit of the grievance, therefore, would have been arbitration. Wunovic had received the company's response at Step Three and there was no further processing to be done short of deciding whether or not the grievance should be carried to arbitration.
Not only was Wilson misled by Wunovic's misrepresentation of the status of his grievance he was also prejudiced. He was never told the grounds upon which the company justified his lay.off out of seniority. He was unable, therefore, to discuss the merits of the company's position with Wunovic, a process which could have clarified any misunderstanding with respect to Wilson's skill and ultimately might have resolved the matter. Furthermore, and more importantly, Wilson was deprived of the opportunity within the time limits established in the collective agreement to urge the union to pursue his grievance to arbitration. The collective agreement stipulates that the grievance be referred to arbitration within 10 days of the company's written reply. At the date of the Board's hearing three and one half months after the reply, Wilson had still not been informed that the company had submitted its last reply short of arbitration. Through Wunovic's neglect to inform Wilson of the company's reply and his knowing misrepresentation at the general membership meetings in February and March, Wilson was denied the opportunity to ask the union to take his grievance to arbitration.
Wunovic admitted at the hearing that he viewed Wilson's grievance as insignificant because it only dealt with an individual at a time when the impending company closing was threatening everyone's job. While Wunovic's desire to save the respondent's operation was commendable, it does not justify his utter neglect of, or misrepresentation with respect to, Wilson's grievance. In dealing with complaints under section 60 of the Act, the Board has repeatedly recognized that the union, in considering the interests of the majority of the membership, way at times find that it must act in a manner that runs counter to the particular interests of an individual. This would occur where the interests of the individual and the interests of the membership as a whole are found, after consideration by the union, to be divergent. It does not, however, justify arbitrary or bad faith conduct by a union against an individual. This is not a case where circumstances forced the business representative to strike a balance between the individual and the majority. (See the Board's decision in Walter Princesdomu, [1975] OLRB Rep. May 444, and the cases cited therein; Nick Bachiu, [1975] OLRB Rep. Dec. 919 and Antonio Melillo, [1976] OLRB Rep. Oct. 613.)
In this case Wilson's interests were not in conflict with the interests of the majority of the membership. It is understandable that Wunovic wanted to see the respondent's business continue to operate so that employees wouldn't lose their jobs. There is no evidence to suggest, however, that Wunovic would have jeopardized this interest of the majority by telling Wilson the status of his grievance. Efforts he might have made on behalf of the majority to prevent the closing of the respondent's business do not justify his complete neglect of Wilson's grievance, a grievance which the union president at a general membership meeting directed him to process.
Wunovic's conduct is more than a mere error of judgment in pursuing his duties; it cannot be said that he was merely careless or negligent or that he made a simple mistake in processing Wilson's grievance. While some forms of carelessness may fall outside the protection of section 60, a substantial misrepresentation knowingly made to the detriment of a member's fundamental rights does not. The evidence satisfies the Board that Wunovic's treatment of Wilson's grievance was inconsistent with the duty of fair representation. His attitude was so indifferent and summary that it may properly be described as arbitrary. Furthermore, because he knowingly misrepresented the status of Wilson's grievance, Wunovic's conduct constitutes bad faith. (See Walter Princesdomu, supra.)
Pursuant to section 88(2) of the Act, a union is responsible for the acts of its officers. The Board, therefore, declares that the respondent has acted contrary to the duty of fair representation and must be held responsible.
The evidence presented at the hearing established that the respondent had closed its place of business. In the circumstances, the Board has decided to allow the parties the opportunity to decide for themselves, in view of the situation existing at the time of the release of this award, how Wilson can best be compensated for the respondent's breach of the Act. In fashioning their remedy, the parties should ask themselves how Wilson may most closely be placed in the position he would have been in if there had been no breach of the Act.
The Board remains seized of this matter in the event that the parties are unable to agree on the proper implementation of this award.