Ontario Labour Relations Board

[1980] OLRB Rep. July 1001

0335-80-U Kesar Singh Riyait, Complainant, v. Local 1590, International Brotherhood of Electrical Workers, Respondent, v. I.T.E. Industries Limited, Intervener.

BEFORE: R. O. MacDowell, Vice-Chairman.

APPEARANCES: Michael F. Smith for the complainant; Morley E. Fisher, Randall S. Browne and Win. J. Moore for the respondent; Charles Campbell for the intervener.

DECISION OF THE BOARD; July 25, 1980

1. This is an application under section 79 of The Labour Relations Act alleging a breach of section 60 of the Act. The complainant, Kesar Singh Riyait, was employed by I.T.E. Industries Limited from June of 1973 until January 1980 when he was discharged for failing to report for work when scheduled to do so. Mr. Riyait filed a grievance alleging that his dis­charge was "without just cause". The alleged breach of section 60 arises from the respondent union's failure to take this grievance to arbitration.

2. Charles F. Campbell, appeared on behalf of I.T.E. Industries Limited, and indi­cated that he would take an active (if somewhat limited) role in the proceeding. Having regard to Rule 54 of the Rules of Practice, the Board hereby directs that I.T.E. Industries Limited should be added as a party in this matter.

3. In or about November 1979, Mr. Riyait approached his employer and requested a six week leave of absence so that he could visit his aged and ailing mother in India. The com­pany was not prepared to grant a leave of absence, but it was prepared to allow him to combine his annual holidays with certain statutory holidays and planned plant shutdown days, which would permit an absence from work for four consecutive weeks. Riyait made several requests to extend this period by one or two weeks, but all of these requests were refused. The company made it clear that it expected Riyait to return and commence work on January 2 1st; never­theless, Riyait made reservations with a nominal return date of January 26th, and as it turned out, he did not actually return to Canada until February 2nd — a period of absence coinciding precisely with that which he had previously requested and been refused.

4. In November, at about the same time as he was seeking an extended leave of ab­sence, Riyait began to complain of low back pain; however, this did not interfere with the per­formance of his job (which involves some heavy lifting), nor did it interfere with his vacation plans. He visited his doctor before leaving the country and received medication. On December 21, 1979 he left work on vacation. On December 24, 1979 he flew to England to pick up his mother, who has resided there since 1976, and on December 30th flew to India.

5. Riyait had not visited his house in India for eight years, and when he returned there was considerable work to do. Riyait maintains that on January 13th he injured his back while moving furniture. On January 14th he sent a telex to the company which reads as follows: "I am sick. Certificate follows." At this point Riyait had not yet seen a doctor and had no medical certificate. He did not see a doctor until four days later. When asked in cross-examination to account for the telegram and subsequent delay in consulting a physician, Riyait explained that his back pain wasn't serious on January 14th, but he decided to inform his employer because he though his back might get worse, and he might have to stay in India for an extra few weeks. Riyait testified that on January 18, he visited a physician who prescribed two weeks bed rest. Apart from the telegram sent on January 14th, there was no further communication with the company concerning his illness or his expected date of return.

6. On January 22, 1980, the day after he was expected to return to work Riyait travel­led thirty miles by bus to change the return date on his airline ticket from January 26th to Feb­ruary 2nd. By January 29th, he testified, he was feeling better; and on January 30, 1980 again visited his Indian physician who declared him "completely recovered". He had not, of course, reported for work on January 21st, as he was scheduled to do, nor had he advised the company that he would not be able to return on time. Accordingly, on January 29, 1980 the company sent a registered letter to his Toronto address, advising him that he had been discharged.

7. Riyat learned of his discharge when he reported for work on Monday, February 4th. He told the company that he was sick, could not work, and planned to visit his doctor. Subsequently, Riyait tendered a number of short doctor's notes to support his explanation of his illnesses. None of the notes were very detailed or spoke specifically to Riyait's inability to travel or inability to work. There were also certain apparent inconsistencies. On January 30, 1980, Doctor H.C. Loomba, a senior medical officer at a hospital in India, pronounced that "today on re-examination (Mr. Riyait) is completely recovered and is declared fit". Four days later his physician in Toronto issued a note advising that Mr. Riyait was still complaining of back pains (but not mentioning his fitness to work). It was this complaint which Riyait claim­ed prevented him from working. On February 8th the same physician issued a note reading "Mr. K.S. Riyait will befit to resume his duties from 11-2-80". The company was suspicious, and was not prepared to give much credence to these doctor's notes. This was not the first time that Riyait had failed to report for work as scheduled. In 1975 he was discharged for over-staying his vacation in almost identical circumstances. On that occasion, too, he returned two weeks late because of an alleged illness, sustained while on vacation, which prevented him from travelling. Apart from these two instances which coincide with his foreign travel, he has no record of health problems or illness. In 1975 the trade union obtained Riyait's reinstate­ment through the grievance procedure, but the company did not regard the latest incident as a mere coincidence, and was not willing to compromise.

8. Mr. Riyait's evidence concerning the grievance procedure and the way in which his case was handled was sketchy and incomplete; and while one cannot expect an untrained wit­ness to recall with precision events which occurred some time ago, it became evident to the Board that Mr. Riyait simply did not understand the grievance process and had some diffi­culty comprehending questions put to him in English. Mr. Riyait did not contact the union until several days after he was fired; and testified that he did not file a grievance until after a meeting between company and union officials. The Board is satisfied that the meeting which he described took place in response to his filing of a formal grievance on February 12, 1980. This grievance was prepared by M.S. Plaha, his shop steward, and signed by both Plaha and the complainant.

9. In accordance with the provisions of the collective agreement, the complainant's grievance was filed at step 4 and discussed by company officials and the union's grievance committee. Immediately after this meeting, the grievance committee met with Riyait to go over the facts again and consider the merits of his grievance, and the likelihood of success if the matter were taken to arbitration. The company would not reinstate him as it had on the earlier occasion, because it simply did not believe his explanation; and after an assessment of the facts, the union concluded that an arbitrator was unlikely to believe him either. The Board had the opportunity to hear the same explanation as the complainant gave to the company and the union. In the circumstances, and having regard both to the manner in which the complainant gave his evidence and the credibility, clarity and consistency of his answers, the Board is satisfied that the union's conclusion was not an unreasonable one. The union was also aware of those sections in the collective agreement which appear to speak specifically to the com­plainant's situation, and which, consequently, narrow the remedial authority of an arbitrator. These provide:

"15.03 An Employee loses all seniority and his employment with the Company shall terminate under the following conditions:

(c) Is absent from work for more than three (3) consecutive working days without notifying the company within this period and without a satisfactory explanation upon a return to work after an absence of more than three (3) consecutive working days.

(d) Is absent from work for periods beyond those outlined in Article 15.02 (b), (c) and (f). [layoff or illness of more than 2 years or beyond his annual vacation period]

(e) is absent from work without satisfactory explanation beyond the period of any leave of absence granted by the Company."

In view of the language of the collective agreement and the anticipated problems respecting the grievor's credibility, the grievance committee decided that his case could not be won, and should not be taken to arbitration.

10. Although the constitution does not specifically provide for an appeal the practice of the union permits individuals to appeal the decision of the grievance committee to the union's executive board. Mr. Riyait was unclear about the mechanics of this process or how the appeal was launched in his case. He did not recall being advised by the grievance committee about the possibility of appeal. The Board is satisfied however, that he was so advised, im­mediately after the committee told him that they had decided not to proceed with his griev­ance. Indeed, the grievance committee considered the matter sufficiently significant to initiate an appeal itself.

11. A special meeting of the local executive board was held on the evening of Thursday, February 28th to deal with two cases in which the grievance committee had recommended that a discharge grievance not proceed to arbitration. (A "special" meeting was necessary because of the time limit for proceeding to arbitration prescribed by the collective agreement). Mr. Riyait was notified of, and present for, the meeting. The facts of his case were fully canvassed de novo, and he took an active part in the process. The executive board eventually decided that his grievance was without substantial merit and should not be taken to arbitration. Mr. Riyait was advised in writing of this decision by letter, dated March 3, 1980. After reviewing the cir­cumstances of his case, the letter concludes: "In view of the above incidents, the Board is in doubt about the legitimacy of your illness, and it feels that there is little likelihood of being able to win an arbitration case in your favour."

12. Following receipt of this letter, Mr. Riyait sought the advice of a solicitor who wrote to the union advising that Riyait planned to challenge the executive board decision at the next local union meeting, scheduled for March 27, 1980. Again, the constitution does not specify a formal right of appeal, however the decision of the executive not to proceed to arbitra­tion is recorded in the executive board's minutes which can be approved or disapproved by the local union membership. Betty Aldred, the local union president testified that the local union membership almost never overrode an executive board decision respecting a grievance, but it has happened on very rare occasions. The union fully expected Riyait and his solicitor to attend, and sent the solicitor a change of address notice to ensure that they would be aware of the new location where the meeting would be held. Mr. Riyait testified that he did not attend the meeting because of a message which he received from Muktiar Singh Plaha, — a friend of Indian descent who was also Riyait's area shop steward and a supporter in his efforts to have his case taken to arbitration.

13. The precise content of the message from Plaha is important to the present case, but unfortunately, Mr. Riyait's recollection of this, as of the other events, was far from clear. He testified that Plaha told him that he (Plaha) had received a message from the chief steward, who, in turn, had been told by Morley Fisher, the business representative of the local, that he (Fisher) planned to take the case to arbitration. This is the version which is most favourable to the complainant’s case but he was closely cross-examined on the point and (perhaps because of an imperfect recollection or his evident difficulties with the English language) it is not the only version which he gave. At one point, for example, he said that Plaha told him that the case might be taken to arbitration because of the business agent's second thoughts.

14. As a result of this message from his friend Plaha, the complainant testified that he decided not to attend the meeting. The local union officials expected him to attend, and when he did not do so, the executive board's decision was affirmed by the local union membership. At no time did the complainant communicate with the local union officials to verify Plaha's message (assuming that it was accurate and does not reflect the complainant's own misunder­standing) nor did he subsequently advise the union that Plaha's message had misled him to his detriment or deprived him of an opportunity to make his case before the local union member­ship. The first time that matter was raised, was on the section 60 complaint. Had the matter been brought to the local union's attention, the Board accepts Betty Aldred's testimony that he would have been given an opportunity to speak at the next local meeting. Even the particulars of alleged misconduct filed on this complaint would not alert the union to the fact that a shop steward might have misled Riyait — albeit innocently. Those particulars read as follows:

"On or about 28th of February, 1980 the grievor was dealt with by the executive board of the Respondent contrary to the provisions of section 60 of The Labour Relations Act in that it did on its own behalf or on behalf of the respondent: make a decision refusing to carry the complainant grievance against his discharge by the employer to arbitration and further failed to submit a report of its action to the meeting of the local union for approval as required by Article IV, Section I of the local union By-laws and Article XIX Section 13 of the B.E.W. constitution and further did not allow the complainant opportunity to comment upon the decision of the Executive Board at the meeting of the local union. Subsequently the complainant was given no notice of the local union meeting at which the decision of the Executive Board would be submitted for approval and was given no opportunity to put his position to the members of the local union for their consideration."

There is no allegation against Plaha as shop steward or referring to any misrepresentation. Moreover the evidence is clear that, although the local union decided not to take Riyait's case to arbitration, the local union executive did submit a report of its decision to the local mem­bership for approval, the executive did send a change of address notice to Riyait's solicitor so that he could attend the meeting; and Riyait was given the opportunity to put his position to the membership of the local. The executive board expected him to attend. There is no evi­dence that prior to the filing of the present complaint the union was even aware of Riyait's explanation for his nonattendance.

15. The Board is also satisfied, that the "messages" to which Plaha allegedly referred were never given, and there would have been no basis for Plaha's concluding that the executive board had reversed its decision and decided to take the complainant's case to arbitration. Both Fisher and the Chief Steward testified that they never suggested to anyone that the executive board had changed its mind. Plaha himself did not testify. Either the complainant, or Plaha was mistaken, and if Plaha was mistaken, and relayed his misunderstanding to the complain­ant, the Board is satisfied this misrepresentation was an entirely innocent one. Plaha is the complainant's friend, and a supporter of his position. There is simply no reason why Plaha would have intentionally misled Riyait, and Riyait does not claim that this is the case. Having regard to the complainant's imperfect recollection of events, and his unfamiliarity with the union s procedures, it is equally probable that it was the complainant who misunderstood what he was being told. Riyait's confusion is reflected in his evidence. In cross-examination, the respondent was anxious to ascertain why he had not brought the reason for his failure to attend the meeting to the attention of the local union officials. He was asked repeatedly to specify when he had learned that there had been a misunderstanding and that the executive board did not plan to take his case to arbitration. He gave several slightly different answers to this question. At one point he testified that he learned of this on the day of the meeting (i.e. prior to the meeting). Subsequently he testified that as of April 13th, 1980— he still didn't know if his case was proceeding to arbitration or not. Finally, he testified that he attended the April 13th, meeting because he knew his case was not going to arbitration, and Plaha had agreed to raise the matter or. his behalf.

16. The complainant did attend the "unit meeting" on April 13th. (It should be noted that the local union is a composite local comprised of a number of units). The complainant did not speak himself, but Plaha raised a question on his behalf and suggested that further con­sideration should be given to his case. There is no evidence before me to suggest that Plaha, or the complainant raised his failure to attend the previous local meeting, or commented upon the misleading message he had allegedly received from Plaha. There was a brief discussion of the grievance and while no formal vote was taken, the members in attendance were almost unanimously of the view that the matter was closed, and that the meeting should move on to other business. On May 14, 1980, Mr. Riyait filed the present complaint.

17. Section 60 of The Labour Relations 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 rep7esentation 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."

The Labour Relations Act constitutes the trade union as the employees' exclusive bargaining agent. Within the framework of collective bargaining an employee must depend upon the union to represent him, and cannot bargain individually to establish his terms and conditions of employment. However, the trade union's right to represent employees is not unfettered, and its exclusive bargaining agency carries with it a commensurate responsibility: the union must represent each employee in the bargaining unit, in a manner that is neither "arbitrary, dis­criminatory, or in bad faith." By enacting section 60 the Legislature has sought to temper the union s authority and prevent abuses which might arise if that authority was entirely unre­viewable.

18. Bad faith, malice, discrimination, or subjective ill will are clearly proscribed and readily ascertainable; the real difficulty is to determine when a union's conduct may be properly regarded as "arbitrary" — bearing in mind that the union's affairs may be conducted by laymen with limited formal education, or elected officials who may have been chosen for qualities other than their legal training or understanding of parliamentary procedure. While the Legislature undoubtedly sought to protect the employee from an abuse of the union's authority, I dc. not think it was intended that every miscalculation, honest mistake, or error in judgement would constitute a breach of a public statute. The standard to which a union must adhere was described in Ford Motor Company Limited, [1973] OLRB Rep. Oct. 519 as follows (at paragraph 40):

"40. In deciding whether a union has violated the Act the standards to be applied are important. We recognize that union affairs are conducted for the most part by laymen. In some situations there are experienced full time officials of a trade union who conduct the union affairs; in other situations, the union affairs are conducted by employees in their spare time, while in yet other situations employees may be given a limited amount of paid time by their employers to engage in trade union matters. This Board does not decide cases on the basis of whether a mistake may have been made or whether there was negligence, nor is the standard based on what this Board might have done in a particular situation after having the leisure and time to reflect upon the merits. Rather, the standard must consider the persons who are performing the collective bargaining functions, the norms of the industrial community and the measures and solutions that have gained acceptance within that com­munity; see Fisher v. Pemberton et al. 1969 CanLII 726 (BC SC), 8 D.L.R. (3d) 521 at p. 546."

Similar views were expressed in Re: Ontario Hydro Employees' Union— CUPE Local 1000 and Walter Prinesdomu, [1975] OLRB Rep. May 444, at p. 462 ff. in a long passage which can­vassed the intended meaning of the word "arbitrary":

"In using the work arbitrary both the United States Supreme Court and the Legislature of this Province must have envisaged the duty constituting more than the simple castigation of subjective ill-will in that any other interpretation would render the use of this word superfluous. Thus, a well known rule of both statutory and contractual construction militates against the respondent's particular submissions in this regard. But where does this path lead? Some insight is gained from the Vaca case wherein Mr. Justice White juxtaposed the word arbitrary with the word "perfunctory" and observed that a trade union, "in a non arbitrary manner [must] make decisions as to the merits of particular grievances". It could be said that this description of the duty requires the exclusive bargaining agent to put "its mind" to the merits of a grievance and attempt to engage in a process of rational decision-making that cannot be branded as implausible or capricious.

26. This approach gives the word arbitrary some independent meaning beyond subjective ill-will, but, at the same time, it lacks any precise parameters and thus is extremely difficult to apply. Moreover, attempts at a more precise adumbration have to reconcile the apparent consensus that it is necessary to distinguish arbitrariness (whatever it means) from mere errors in judgment, mistakes, negligence and unbecoming laxness....

On the other hand we do not believe, at least at this time, that all mistakes and careless conduct by trade union officials fall outside the scope of section 60. It may be difficult to elaborate the precise meaning of arbitrary representation in advance but, as noted above, the very use of the word suggests that some regulation of the quality of decision-making was intended. Accordingly at least flagrant errors in processing grievances-errors consistent with a "not caring" attitude must be incon­sistent with the duty of fair representation. An approach to a grievance may be wrong or a provision inadvertently overlooked and section 60 has no application. The duty is not designed to remedy these kinds of errors. Bu: when the importance of the grievance is taken into account and the experience and identity of the decision-maker ascertained the Board may decide that a course of conduct is so implausible, so summary or so reckless to be unworthy of protection. Such circumstances cannot and should not be distinguished from a blind refusal to consider the complaint. However, each case must be decided on its own peculiar facts and it is clear that the duty is not going to be a fertile field for the individual adversely affected by less flagrant conduct."

19. It is clear that in order to establish a breach of section 60, a complainant must do more than demonstrate an honest mistake or even negligence. The union must have com­mitted a "flagrant error" consistent with a "non caring attitude", or have acted in a manner that is "implausible” or "so reckless as to be unworthy of protection". In other words, the trade union's conduct must be so unreasonable, capricious, or grossly negligent, that the Board can conclude that the union simply did not give sufficient consideration to the individual em­ployee's concerns. Honest mistakes or innocent misunderstandings are clearly beyond these parameters and do not attract liability.

20. In the present case, the evidence discloses that the grievance committee carefully considered the complainant's case and concluded, not unreasonably, that his position would be difficult to sustain at arbitration. It was the grievance committee (including Plaha) and not the complainant, which set in motion an appeal of its own decision to the executive board. At the executive board, the senior officials of the local canvassed the matter de novo with the grievor in order to ascertain all of the facts and any mitigating circumstances which Mr. Riyait could adduce. Mr. Riyait actively participated in this process. There is no dispute that the grievor had ample opportunity to put his case, nor is there any evidence that the executive board failed to give that case its careful consideration. On the basis of the information before it, the executive board unanimously concluded that the case should not proceed to arbitration. When Mr. Riyait, through his solicitor, subsequently advised that he intended to challenge the executive board decision at the next local union meeting, the executive board made sure that he received a change of address so that he could attend. There is no evidence of any attempt to mislead him or dissuade him from presenting his motion. The complainant's various allega­tions that the executive board failed to notify him of the meeting, failed to give him an opportunity to attend, are all without foundation. There is no evidence of any impropriety whatsoever on the part of Morley Fisher or the local union executive board—and as has already been noted, it was the executive board's alleged misconduct which was the basis of this complaint.

21. Plaha's innocent misrepresentation (assuming, without finding, that it occurred in the way the complainant contends) is the only feature of the evidence which could be con­sidered "arbitrary" or which suggests any error on the part of the union. As a result of re­ceiving this message, the complainant decided not to attend the local union meeting and lost his opportunity to persuade the membership that the decision of the grievance committee and the executive board should be reversed. It may be that his chances of doing so were remote (having regard, for example, to the way in which his fellow employees of I.T.E. regarded his case), but Betty Aldred, the local union president, testified that on rare occasions the member­ship did reverse an executive board decision, so the opportunity was not entirely valueless. On the other hand, the complainant now relies upon an alleged conversation with Plaha which contradicted the letter from senior union officials (but which the grievor did not check); which allegedly contained a misrepresentation which was not brought to the union's attention; and which was not even raised as a basis for the present complaint. The Board accepts the evidence of Mrs. Aldred, the local union president, that had Mr. Riyait brought this misunderstanding to the attention of the local union officials, the matter could have been rectified by permitting him to address the next local meeting. (Indeed, now that the union is actually aware of his concern, he may still be entitled to do so). When one also finds, as the Board does, that neither of the "messages" allegedly referred to by Plaha were in fact transmitted; and when one con­siders the complainant's general credibility and language problems, it is difficult to accept that any misrepresentation actually occurred. However, even if the complainant's evidence is accepted in its totality, it reveals only that there may have been an honest mistake on the part of Mr. Plaha - the grievor's friend, supporter, and area shop steward — who may have been under the mistaken impression (without any apparent foundation) that the executive board had had a change of heart. I do not think that an entirely innocent misrepresentation will support a finding that the union's conduct is "reckless", "capricious", "arbitrary" or a breach of The Labour Relations Act — especially where, as here — the union has in fact carefully con­sidered and rejected the complainant's position. Accordingly, the complaint is dismissed.