Ontario Labour Relations Board

[1981] OLRB Rep. December 1834

1580-81-U Hubert Patterson, Complainant, v. United Auto Workers Union, Respondent, v. Trailmohile Canada Limited, Intervener.

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

APPEARANCES: H. Patterson for the complainant; P. White, T Bratton, J. Tubman and T. Duff for the respondent; R. G. Ker and D. S. Fishner for the intervener.

DECISION OF THE BOARD; December 1, 1981

1. This is a complaint under section 89 of the Labour Relations Act alleging a breach of section 68. Section 68 reads 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."

For ease of reference, the respondent will be referred to as "the Union", and the intervener will be referred to as "the Company".

2. The complainant is a welder who has been employed by the Company for more than nine years. His work record has not been entirely satisfactory. In the Fall of 1980, he was given a number of warnings and suspensions, of increasing length, as a result of his alleged poor workmanship. The Company suggested to him at that time that he consider a transfer to a more suitable job, but he refused to do so. A further and final incident of alleged inadequate work performance occurred on November 5, 1980. When this culminating incident was viewed against the background of the grievor's previous record and refusal to accept a transfer to another job, the Company reached the conclusion that he should be discharged.

3. On November 5, the complainant left work with back problems. From November 6 until the date of his termination, some four weeks later, the complainant was not at work. The propriety of that absence is not at issue here. On December 1, 1980, he was sent the following letter by registered mail:

"Mr. Patterson:

Despite prior discipline, including two recent suspensions for poor workmanship, your work performance on November 5, 1980 again was [sic] inadequate.

On that date, your task was to weld the front landing gear, and down the center of the unit in a five hour cycle period. Another man welds bumpers and pockets, while a third man welds sides and helps on pockets and Rubrail.

However, on November 5, 1980, you welded only the center and landing gear on unit #1507-1 in the five hour cycle. Not only did the other two welders complete their tasks, they had to weld the unit front for you (approximately I / 3 of your work on the unit) and still waited for you. Broken down in time, you did three hours work in five hours while the other two welders did six hours work in five hours.

As your work performance has not improved despite your previous discipline, it was our decision to terminate your employment November 6, 1980.

Since you were advised of your tenuous position if your performance did not improve, and since you have not been at work since November 5, 1980 we presume you have decided to resign and seek employment elsewhere.

All documents will be so processed and monies owing to you will be mailed promptly. Please return to the Personnel Department, your Trailmobile Identification Card.

D. S. Ficher

Plant Industrial Relations Manager"

A copy of this letter was also sent to the Union.

4. The Union and the complainant both received this termination letter on or about December 2. On December 3, the complainant and Tom Bratton, the Union plant chairman, went to the personnel office to discuss the matter with Company officials, and to try to persuade them to change their minds. They were not successful. Following the meeting, Bratton and the complainant went back to the Union office to fill out a formal grievance which was filed the next day.

5. Following the filing of the complainant's grievance, Bratton and T. Duff, another Union officer, met with management on several occasions in an effort to settle the case; but the Company remained unwilling to reinstate the complainant to his former position. Bratton raised with the complainant the possibility of reinstatement to another position, explaining that this compromise might allay the Company's concerns about his workmanship, and might prompt it to be more flexible. The complainant replied, by letter, that he was willing to accept reinstatement to another position only if his grievance proceeded to arbitration.

6. In the result, the case did proceed to arbitration. The Union advised the complainant of the uncertainties which arbitration often entails. That advice turned out to be correct.

7. The Union was not optimistic about the complainant's prospect of success. There were real problems concerning his work performance and his previous record of misconduct. The Company's use of progressive discipline (which had arguably failed to have the desired effect) made it much less likely that an arbitrator would intervene and find the complainant's termination "unjust". The complainant's seniority weighed in his favour, but his actual job performance would be difficult to defend.

8. The complainant was also concerned about his grievance and consulted his own lawyer about it. The lawyer's name, and the advice which the complainant had been given, surfaced in various conversations which he had with Union officials. Pete White, the trade union representative, who eventually argued the case, advised the complainant that if he (the complainant) wished to have his own lawyer take over carriage of the proceedings and conduct the case before the arbitrator, the Union would have no objections. The complainant declined this offer.

9. About a week before the arbitration hearing, Pat White met with the complainant to review the facts, and assess the complainant's position in light of his past record, and the testimony which he could give concerning the culminating incident on November 5. That meeting did little to dispel White's pessimism. Like Bratton, White was concerned that if the arbitrator actually considered the merits of the complainant's position, he would be unlikely to interfere with the Company's decision. This conclusion prompted White to explore alternative arguments, which would direct attention to the language of the collective agreement, and deflect the arbitrator from a consideration of the complainant's competence. White's inquiry eventually focussed on article 16 of the collective agreement which reads as follows:

"When a disciplinary notice is placed against the record of any employee, a written notice shall be given to the employee and a copy of the dis­ciplinary notice shall be sent to the Chairman of the Committee. The duplicate copy will be signed by the employee within two(2) working days, as a receipt only. Notice of such disciplinary notice shall be given within five(S) working days after the occurrence. Refusal of the employee to sign for receipt of disciplinary notice shall disqualify the employee from proceeding under the grievance procedure against any disciplinary action the Company may take. The Company agrees to remove any disciplinary notice from an employee's record nine (9) months after the giving of such disciplinary notice. Suspensions will be removed from an employee's record after one (1) year from the date the suspensions was served."

The clause respecting discharge provides:

"7.01 Whenever an employee is discharge, [sic] he will be given an opportunity of interviewing his Committeeman or Shop Committee Chairman before he is required to leave the Plant, provided that if because of the nature of the offence it is necessary to require the im­mediate expulsion of an employee from the plant, then his Shop Com­mittee Chairman will be immediately notified and he will be given an opportunity to interview the discharge [sic] employee at some convenient location.

7.02 Should the employee protest his discharge as a grievance, a meeting of the Plant Committee Chairman and one Committeeman and the In­dustrial Relations Manager will be held within three (3) working days of his discharge to consider such discharge. In the event that any employee's complaint is found to be justified, he shall be reinstated in his former job and shall be reimbursed for all time lost, less any wages earned in other employment, or U.I.C. benefits while under dismissal or suspension. However, the parties may agree on any suitable arrangement deemed just and equitable under the circumstances.

7.03 Should the employee not be reinstated at this meeting, the written grievance may then be made subject to arbitration, provided the Com­pany is notifed in writing within fifteen (15) working days after its written disposition. If the Company is not notified within such fifteen (15) working days, then the grievance shall no longer be made subject to arbitration."

10. Two or three days before the arbitration hearing, White telephone Bratton and advised him that he proposed to refer tore U.A. W. and Massey Ferguson Industries Ltd. et al. 1979 CanLII 1802 (ON HCJ), [1979] 23 O.R. (2nd) 56, and argue that article 16 was a mandatory condition precedent to a valid discharge which has not been followed in the complainant's case. Bratton was unimpressed. As a member of the bargaining committee, he knew (and candidly told this Board) that article 16 was never intended to have that effect, or apply to cases such as the complainant's. The Union had never taken that position at the bargaining table or in previous discharge grievances. In Bratton's view, a close reading of article 16, and a comparison with article 7, would simply not support White's proposed argument; moreover, both the complainant and the Union had received a form of notice. Nevertheless, Bratton did not object to the argument being made. From his point of view, there was little to lose except the cost (approximately $1000.00) of a hearing day should the arbitrator reserve on the preliminary objection, ultimately reject it, and decide to reconvene on another day to hear the merits of the case. Employers frequently raised preliminary "technical" objections to arbitrability, and Bratton saw no reason why the Union should not assert a technical objection where it might assist its case.

11. For his part, White was well aware of the limitations of the argument. The facts and the contractual language were different from those in Massey Ferguson; and, in particular, the contract did not contain the imperative word "must" which had figured so prominently in the reasoning of Reid J. in the Divisional Court. Nevertheless, White too thought there was little to risk in raising it. A letter stating his intention to do so was delivered to the Company the day before the hearing.

12. The arbitrator's award was surprising and distressing to all of the parties involved. The arbitrator held that article 16 applied to the complainant's discharge, and that proper notice was a mandatory condition precedent to a valid termination. Strict compliance was essential so that the trade union could promptly investigate the circumstances of each case. A failure to comply with the notice requirements in article 16 rendered the discharge a nullity; moreover, the notice requirement was of such fundamental character that it could not be waived. In the arbitrator's view, the case was indistinguishable from Massey Ferguson, supra. In the result however, he reinstated the griever without compensation (the equivalent of a six month suspension without pay) because the union had failed to notify the Company of its intention to raise this preliminary issue until the day before the hearing. The arbitrator seems to have assumed that if the matter had been raised, the Company would settled the case.

13. The correctness of the arbitrator's decision is not material to the issues before this Board; however, on the basis of the evidence before me, two observations might be made. First, the form and timing of the notice of discharge did not in fact prejudice the Union in the investigation of the complainant's case. Second, even if the union had given a timely notice of its intention to argue the application of section 16, the Company would not have settled the grievance. David Fisher, the Company's industrial manager, testified that he could not foresee any circumstances in which the Company would have reinstated the complainant. Had the Company known in advance that the Union would rely on article 16, it would still have proceeded to arbitration and argued, as it eventually did, that that provision could not affect the complainant's discharge. In the Company's view, article 16 was never intended to apply to cases such as the complainant's, the provision was not intended to have the result suggested by the arbitrator, there had been adequate notice in fact, and any objections the Union might have taken at the outset had been waived.

14. Both the Union and the Company were unhappy with the arbitrator's decision. Both thought the decision was wrong albeit for different reasons. The Company thought that the arbitrator had erred in his interpretation of the agreement. The Union thought that he had erred in his determination of the appropriate remedy. The grievor, of course, was puzzled as to why his discharge was improper, but yet he was penalized several thousand dollars in lost wages.

15. Both the Company and the Union considered judicial review. The Company decided against it because the decision was not binding on any future arbitration case, and, if necessary, the issue could be resolved at the bargaining table. The Union rejected judicial review because it was doubtful whether a Court would interfere with the exercise of an arbitrator's remedial jurisdiction. Moreover, the grievor's job had been preserved — a result which might not have obtained had his case been considered on the merits. For these reasons, both parties were content to let the decision stand.

16. There is no evidence of discrimination or bad faith in the Union's handling of the complainant's grievance. Thus if he is to establish a breach of section 68, he must demonstrate that the Union's conduct was "arbitrary".

17. The complainant contends that the Union made a "mistake" in not raising the timeliness argument earlier, and that this "mistake" prompted the arbitrator to deny him his back wages. The mistake, the complainant argues, constitutes "arbitrary conduct" within the meaning of section 68. The complainant contends that the Union should compensate him for all of the wages lost between the time he was prepared to return to work and the date on which the arbitrator's decision was released.

18. I am satisfied that there was nothing arbitrary in the manner in which the complainant's grievance was processed. On the contrary, the evidence amply demonstrates that the Union did everything it could to help the complainant. The Union recognized that his job was at stake and still proceeded to arbitration with a case which it believed to be a weak one. Indeed, it was the very weakness of the complainant's position on the merits which prompted Union officials to look for a "technical" argument which could be made in his favour. That argument, centering on article 16 and the effect Massey Ferguson only surfaced shortly before the arbitration hearing when Pete White, the international representative, became involved and began to prepare for the hearing. In consequence, it could not have been raised earlier; nor was there any reason in the circumstances why the Local Union officials should have hit upon it before. No doubt, had the argument been developed and raised earlier, the arbitrator might have reached a different result; however, I do not think that the Union's handling of the case can be characterized as "arbitrary" and a breach of section 68 of the Labour Relations Act.

19. The complaint is therefore dismissed.