David Theodore Balint v. Chrysler Canada Ltd., 1980 CanLII 948

Ontario Labour Relations Board

[1980] OLRB Rep. May 650

2293-79-U David Theodore Balint, Complainant, v. Chrysler Canada Ltd., and U.A.W. Local 444, Respondents.

BEFORE: R. D. Howe, Vice-Chairman.

APPEARANCES: David Balint and John P. Corrent for the complainant; D. W. Brady, L. Bulat and C. Cooper for the respondent Chrysler Canada Ltd.; Jim O'Neil, James Phillips and Gerry Bastien for the respondent U.A. W. Local 444.

DECISION OF THE BOARD; May 1, 1980

Decision

1. This is an application under section 79 of The Labour Relations Act, alleging a contravention of section 60 of the Act. That section provides as follows:

"60. 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 maybe."

2. The complaint as originally prepared and filed by the complainant (without the as­sistance of counsel) named only Chrysler Canada Ltd. (the "Company") as respondent. However, at the hearing of this matter counsel for the complainant requested that Local 444 U.A.W. (the "Union") be added as a respondent. Since Mr. O'Neil stated on behalf of the Union that he had no objection to an amendment to include the Union as a respondent and since the Union had been specifically named in the complaint as a trade union that may be affected by the complaint and had accordingly received a copy of the complaint and Notice of Hearing, the Board, pursuant to Rule 54, directed that the Union be added as a respon­dent.

3. At the hearing of this matter in Windsor on April 9, 1980, counsel for the com­plainant requested an adjournment on the basis that he had not been retained until April 3, 1980 to represent the complainant at the hearing and those previous commitments had pre­cluded him from properly preparing his case and obtaining the necessary witnesses. This re­quest was opposed by the Company and the Union. After carefully considering the repre­sentations of the parties and noting that the complaint was filed on March 7, 1980, and that the complainant was notified of the date of the hearing by Notice of Hearing dated March 11, 1980, the Board denied the requested adjournment in accordance with the Board policy concerning adjournments as capsulized in Nick Masney Hotels Limited, [1968] OLRB Rep. Nov. 833, since the Board did not view the situation as being one in which the request for an adjournment was based on circumstances completely out of the control of the party making the request where to proceed would seriously prejudice such party. With respect to the non­ availability of witnesses, the Board noted that it is the responsibility of the complainant to do whatever is necessary to ensure that witnesses essential to his case are present, including obtaining and serving the required summons (see Baycrest Centre, [1976] OLRB Rep. Aug. 432).

4. At the commencement of the hearing, counsel for the Company requested that the Board dismiss the complaint against the Company because the only two sections of the Act alleged to have been violated were sections 60 and 79. Section 60 imposes a duty only on a trade union or council of trade unions; it does not impose any duty on an employer. It fol­lows, therefore, that the complainant cannot rely on section 60 in support of a complaint against the Company (see Ford of Canada, [1972] OLRB Rep. Apr. 387). Moreover, as the Board has noted in many cases, section 79 is a procedural section which merely provides an avenue for obtaining relief where it is shown that there has been a violation of a substantive provision of the Act (see, for example, Ford of Canada, supra; Eagle Precision Tool Limited, [1969] OLRB Rep. July 551; and National Sea Products Limited, [1961] OLRB Rep. May 62). Nevertheless, as conceded by the Company, an employer may properly be joined for remedial purposes in a section 79 complaint in which a violation of section 60 has been alleged (see Nick Bachiu, [1975] OLRB Rep. Dec. 919). Since the complaint in the present case was based upon allegations concerning the manner in which the Union handled the complainant's grievance following his discharge by the Company, the Board declined to dismiss the complaint against the Company.

5. Counsel for the Company also requested that the Board dismiss the complaint on the ground of extreme delay by the complainant in filing his complaint. Although the com­plainant was discharged effective January 31, 1979 by letter dated February 8, 1979, he did not file his complaint until March 7, 1980. However, the complainant's grievance was not settled by the Union and the Company until November 10, 1979 and the complainant did not learn of this settlement until mid November. When the complainant was called into work on November 21, 1979, he attempted to avoid what he perceived to be an unfair aspect of the settlement by writing the following sentence at the bottom of the conditional rein­statement sheet: "I do not agree with the reasons for my dismissal and would like the evalua­tion of an arbitrator". Since this addition was not acceptable to the Company, the complain­ant was not permitted to return to work at that time. The complainant then obtained a legal advice certificate from the Ontario Legal Aid Plan and consulted with counsel. On the ad­vice of counsel, the complainant signed another conditional reinstatement sheet on Decem­ber 11, 1979 without adding the aforementioned sentence, and returned to work on Decem­ber 13, 1979. Thus, it was not until December of 1979 that it became clear to the complainant that his attempts to obtain relief without resorting to legal proceedings were not destined to succeed. After returning to work, the complainant attempted to obtain a fur­ther Legal Aid certificate to enable his counsel to file a complaint with the Board. However, the complainant decided against obtaining such a certificate when he was informed that a further certificate would entail the placing of a lien against his home. The complainant then contacted his M.P.P. and with the assistance of his secretary, prepared the complaint which gave rise to these proceedings, which complaint was filed on March 7, 1980.

6. The Board's practice concerning delay was summarized in Hayes-Dana Limited, [1968] OLRB Rep. Apr. 89 at paragraph 6:

it has not been the practice of the Board to refuse to hear a com­plaint under section [79] because of delay in lodging the complaint ex­cept in the most extreme cases. Where unreasonable delay has occurred the Board in most cases has followed the practice of taking this factor into account in assessing any compensation which might be awarded."

(See also Chrysler Canada ltd., [1979] OLRB Rep. July 618). Although there was some de­lay by the complainant in the present case, the Board is of the view that this is not a case of extreme delay of the type which would justify dismissal of the complaint. Accordingly, the Board confirms the ruling which it made at the hearing that the complaint would not be dis­missed on the basis of delay.

7. The complainant commenced employment with the Company on July 21, 1959. At the time of his discharge he was a journeyman millwright and work leader. Although it was uncontested that the complainant's workmanship prior to the incident in question had always been excellent, the complainant had on his employment record a ten day suspension for being out of his workplace and a twenty day suspension for insubordination and threat­ening. Although the complainant did not grieve either of those suspensions, both of which were imposed in 1978, the Union succeeded in persuading the Company to reduce the num­ber of days of suspension actually served by the complainant to three days and fifteen days respectively.

8. The incidents which precipitated the events which form the subject matter of this complaint occurred on January 30, 1979. The complainant's foreman sent the complainant and his work partner to adjust the take-up on the chain drive of the final conveyor in the Company's Windsor assembly plant. The complainant and his partner experienced difficulty executing this task, allegedly as a result of dark, wet, smelly, and crowded conditions in the pit in which the operation had to be carried out. While the operation was being performed, the conveyor chain jumped the sprocket at the top of the conveyor. This caused a line break­down which lasted for a least 35 minutes and thereby adversely affected plant production. Throughout the grievance procedure, the complainant maintained that the cause of the breakdown was a snag in the conveyor and the absence of a stop button in the pit. However, at the hearing the complainant stated for the first time that his partner had caused the break­down by using channel locks to turn the nut on the take-up in the wrong direction. The com­plainant explained at the hearing that he had not previously told anyone that his partner was to blame because "a work leader is not there to do his fellow man harm", "as a union mem­ber you are not supposed to squeal on another member", and "when I turned in the state­ment, I didn't know that my partner was going to pin the blame on me". The grievor also testified that if management had attempted to get the chain back on the sprocket by "jog­ging the line" instead of having a welder cut the upper plates loose to repair the conveyor "the hard way", the breakdown would have lasted only one or two minutes.

9. While at work on the following evening, the complainant was summoned to a meeting with his foreman, the general foreman, a representative from the Company labour relations department, and his Union steward. On the way into the meeting, the complain­ant's steward, Steve Rodenbucher, put his arm around the complainant's shoulder and said: "Dave, just between you and me, what really did take place?" When the complainant ex­plained that he had not caused the breakdown, his steward said: "We'll go into the meeting and see." Although the complainant would have us draw from this conversation the infer­ence that the Union was against him from the outset, the Board is not prepared to draw any such inference. The more logical inference to draw from the conversation is that the steward was anxious to discover the true facts of the situation so as to be in a position to assist the complainant as his representative.

10. After hearing a series of what he characterized as "falsehoods" from his foreman at the meeting, the complainant, when asked what he had to say, stated: "I'm getting used to these kangaroo courts of yours. If I had five thousand witnesses you wouldn't believe me. You'd still take the foreman's word. If necessary I will fight you from the Highland Park Chrysler Office." The complainant then walked out of the meeting and returned to work. At the hearing he testified that he left the meeting because he was "fed up" because "every time [he] went into the kangaroo court it ended up in a suspension." Later that shift in the presence of his steward the complainant was placed on indefinite suspension by manage­ment.

11. On the next day the complainant went to the Union Office and explained the events of the preceding evening to Ken Gerard, a Union official, who told him that the mat­ter would be grieved and instructed him to prepare a written statement of the events. After preparing the statement, the complainant presented it to Rodenbucher and to his commi­teeman, Pat MacNamara.

12. The Company discharged the complainant effective January 31, 1979 by a letter dated February 18, 1979 which included the following paragraph:

"The reason for discharge is for the failure to make a reasonable at­tempt to perform a job assignment. As a work leader you neglected to undertake proper precautions in performing your job assignment. Carelessness on your part caused a lengthy line break down which adversely affected production. In light of you conduct prior to and follow­ing the incident and previous poor record."

13. In accordance with the Union's normal practice Rodenbucher discussed the com­plainant's grievance orally with the management representation (J. Horoky, General Fore­man) in an attempt to settle the matter before putting the grievance in writing. Since the oral discussion did not resolve the matter, Union representative M. J. Rankin presented a writ­ten grievance to C. Cooper, a Company Labour Relations Specialist, on February 16, 1979, in accordance with Step 2 of the grievance procedure set forth in the collective agreement. Cooper provided a written reply denying the grievance on February 20, 1979.

14. The grievance was than referred to Gerry Bastien second Vice-President of the Union, who, along with Jim Phillips, the Union Grievance Co-ordinator, discussed the grievance "on at least four different occasions" with Company representatives including L. Bulat, Labour Relations Research & Appeals Specialist. Following those meetings, Bulat prepared a Step 3 answer on April 6, 1979 in which the grievance was again denied.

15. On May 3, 1979, Bastien submitted notice of appeal of the grievance to Step 4 of the grievance procedure. The Step 4 appeal procedure involves a review of the grievance by the Regional Representative of the Union for the area in which the plant is located. In this case, the review was carried out by Andrew Marocko who forwarded the grievance to the International Office of the Union in Michigan where it was discussed at a meetings between representatives of the International Union and the Company. Since the Company continued to refuse to reinstate the complainant, the grievance was returned to Canada and was ulti­mately resolved during local negotiations for a new collective agreement on November 10, 1979 when the Company agreed to the conditional reinstatement of the complainant with­out loss of seniority pursuant to a document which contained the following conditions:

"1. Any grievance(s) filed regarding the above-named employee is hereby withdrawn.

2. For a period of one year following the date of reinstatement, any violation or infraction of Company rules will result in his discharge without Union representation.

3. The employee shall not be entitled to claim for any benefits nor­mally associated with his employment within the period extending from the date of his discharge to the date of his return to work.

4. As a further requirement for employment, this employee shall meet the Company medical standards.

5. Return to work shall take place when work opportunity becomes available.

6. The Company shall send out notice to report to the above-named employee at his last address on file with the Company unless ad­vised otherwise by the Union, and failure by the employee to pres­ent himself within five days of the date of such notice will result in the cancellation of this conditional reinstatement."

7. Although counsel for the complainant did not contend that the Union had dealt with the complainant discriminatorily or in bad faith, he did contend that the Union had acted in an arbitrary manner. While acknowledging that the Union did obtain reinstatement of the complainant without loss of seniority, counsel for the complainant submitted that the Union breached section 60 by failing to keep the complainant adequately informed of the steps being taken to process his grievance, unduly delaying the processing of his grievance, failing to permit him to elect to proceed to arbitration with his grievance, and agreeing to a conditional reinstatement without obtaining any compensation for lost wages and benefits.

8. Most of the evidence adduced on behalf of the complainant was directed toward proving that the complainant's grievance was meritorious. Although in a section 79 com­plaint alleging a violation of section 60 the Board does not assume the posture of an arbitra­tor and adjudicate the merits of a complainant's grievance, the Board will give some consid­eration to the merits of a grievance since the fact that the grievance appears meritorious may lend support to a complainant's claim that he has been represented in a manner that is arbi­trary, discriminatory, or in bad faith (see Antonio Mellilo, [1976] OLRB Rep. Oct. 613; and Massey Ferguson Limited [1971] OLRB Rep. Apr. 217). In the present case the Union did recognize that there was some merit in the grievance since a number of Union officials spent considerable time and effort in discussing the grievance with Company officials at the vari­ous steps of the grievance procedure. Through these discussions, the Union succeeded in persudaing the Company to clean up the pit area and install fluorescent lighting in it. Union officials also succeeded in negotiating the complainant's conditional reinstatement without loss of seniority. During his testimony, Phillips candidly stated the opinion that the incident itself did not warrant discharge. However, he stated that in his opinion, based upon thirteen years of experience as Union Grievance Co-ordinator and based upon his reading of a num­ber of decisions by the permanent umpire under the collective agreement concerning dis­charge of employees with records of previous suspensions, the complainant's grievance would not likely succeed before the umpire. He also noted that not only did the foreman's version of events which transpired on January 30, 1979 differ radically from the complain­ant's, but so too did the statement obtained from the complainant's partner, who also blamed the complainant for the breakdown. Accordingly, the decision by the Union to ac­cept a conditional reinstatement in settlement of the grievance instead of proceeding to arbi­tration was reached only after careful consideration of relevant factors. Thus, the settlement of this grievance through conditional reinstatement of the grievor was accepted by the Union in the honest and reasoned exercise of judgment and did not involve the type of "per­functory", "not caring" attitude which constitutes arbitrary representation (see Walter Princesdomu, [1975] OLRB Rep. May 444).

9. As the Board has noted in many cases, section 60 does not curtail the right of a trade union to settle grievances provided, of course, that it does not act in a manner that is arbitrary, discriminatory, or in bad faith (see, for example, Jaraslov Rehak, [1973] OLRB Rep. Sept. 522; and Wakefield Harper, 119781 OLRB Rep. July 640). Although it might be preferable from a human relations point of view for a trade union to consult with a grievor before settling his grievance, failure to do so does not per se constitute a violation of section 60 since it is the trade union which has carriage of the grievance and it is the trade union which must ultimately decide whether to proceed to arbitration or accept a settlement. As stated by the Board in Chrysler Canada Ltd., [1979] OLRB Rep. July 618, para. 26:

“[i]t has been the consistent jurisprudence of this Board that it will not second guess a union in its handling of a particular matter and that [section 60] does not take away a union’s right to determine not to pro­ceed to arbitration in a particular case."

Moreover, the Board has recognized that the process of settling grievances through collec­tive bargaining negotiations is not inherently unfair or arbitrary (see Nick Bachiu, supra).

19. Although Union officials did not contact the complainant to report on the pro­gress of his grievance as often as he wished, it is clear from the evidence that the complainant had frequent discussions at the Union hall and on the telephone with a number of Union offi­cials concerning the status of his grievance and that he was thereby kept informed of the steps being taken to process his grievance.

20. There is no evidence to suggest that the lengthily period of time during which the complainant's grievance remained under consideration resulted from undue delay by the Union. The relatively complex and sophisticated type of grievance procedure set forth in the collective agreement (which covers over forty bargaining units in Canada and the United States) will almost inevitably result in a greater elapse of time between the date of filing a grievance and its final disposition. However, matters such as the number of steps in the grievance procedure and the timing and location requirements for grievance meetings which are to be included in the collective agreement are not matters which could, except perhaps in the most extraordinary circumstances, form the basis of a section 60 complaint.

21. There is also no evidence to suggest that the grievance in the present case was processed more slowly than other grievances. It appears that the Union was continually at­tempting to resolve the grievance in a manner favourable to the complainant and that when it appeared unlikely that such result could be obtained through the formal grievance and ar­bitration procedure, the Union attempted successfully to keep the grievance alive so that it might be resolved during negotiations at a time when the Union would have maximum bar­gaining leverage.

22. In this case, the Union negotiated a settlement with which the complainant is not pleased. However, the mere fact that a complainant does not like a settlement is not sufficient to show a breach of section 60 of the Act (see Chrysler Canada Ltd., (supra)). There is no evidence to show that the Union in negotiating this settlement deviated from its usual manner of handling grievances or that the terms of settlement are more onerous than those normally accepted by the Union in similar cases. The evidence establishes that experienced Union officials made a decision based on their knowledge of the facts and their past experi­ence with similar cases.

23. In summary, it has not been proved on the evidence that the Union represented the complainant in a manner which is arbitrary, discriminatory, or in bad faith. Accordingly, the complaint is dismissed.