Stanley Dwyer v. United Automobile Aerospace & Agricultrual Implement Workers of America U.A.W. - International Union, 1982 CanLII 1015

[1982] OLRB Rep. October 1417

0197-81-U Stanley Dwyer, Applicant, v. United Automobile Aerospace & Agricultrual Implement Workers of America U.A.W. - International Union, United Automobile, Aerospace & Agricultural Implement Workers of America U.A.W. Local 1285, Respondent, v. Chrysler Canada Limited, Intervener

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

APPEARANCES: E. G. Posen for the applicant; E. D. Bruce, B. E. Hargrove and L. A. MacLean Q. C. for the respondent; M. D. Contini and C. Gyles for the intervener.

DECISION OF THE BOARD; October 12, 1982

1. This is the complaint of Stanley Dwyer, who alleges that he has been dealt with by the respondent union contrary to the provisions of section 68 of the Labour Relations Act. That section reads as follows:

68. 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.

2. The trail of litigation preceding the instant complaint is a long one, and the span of time encompassed by the evidence is even longer. The case took more than twelve days to litigate, involved copious oral and documentary evidence, and touched on events going back more than a decade. It is not necessary to reproduce, as reasons, the details of this testimony. It will be sufficient if the Board reviews the evidence in a general way and notes its findings, together with the credibility considerations on which they are based. At the outset, it will be useful to briefly outline the legal events preceding the present application. Once this context is established, the Board will then examine those events in greater detail.

I - Overview

3. The complainant was first hired by Chrysler in September, 1968. Between 1968 and 1976 he had a somewhat checkered career (see infra). On July 9, 1976, he was terminated, (not for the first time), for failing to notify his employer of his absence as required by Article 23(c) of the then applicable collective agreement. That Article reads as follows:

Seniority shall cease for any one of the following reasons:

(c) if the employee is absent for five (5) regular working days without advising his superior giving satisfactory reasons.

4. The termination of the complainant was grieved and eventually came before Arbitrator K. A. Hinnegan. The principle issue before him was whether Mr. Dwyer had notified the company of his absence. But Arbitrator Hinnegan disbelieved the complainant's evidence in this regard, and sustained the discharge. No question was raised before Arbitrator Hinnegan as to the effect of the loss of seniority triggered by Article 23(c). It was assumed that it automatically resulted in an employee's termination. For reasons set out below, both parties to the agreement then accepted that this was the intended result of the language that they had negotiated.

5. The complainant applied for judicial review of the Hinnegan decision, and argued that a loss of seniority did not, in itself, result in a discharge. In Mr. Dwyer's submission, Hinnegan's interpretation was based upon a premise which the language of Article 23(c) could not reasonably bear. On April 21, 1978, the Divisional Court, by a majority, accepted that position; but since the issue had not been raised before the Arbitrator, arid the complainant's rights without seniority had not been decided, the matter was remitted to a new arbitrator on these issues alone. The company's request for leave to appeal to the Court of Appeal was denied.

6. A second arbitrator was selected and hearings were held in the Fall of 1978. By a decision dated October 23, 1978, Arbitrator J. D. O'Shea, Q.C. upheld the complainant's discharge once again. Back the complainant went to the Divisional Court, but this time he was unsuccessful - in part, it appears, because the Court was unwilling to entertain arguments which had not first been put to the Arbitrator. The Divisional Court decided that the complainant could not, with the benefit of hindsight, reargue his case. The second application for judicial review was dismissed on March 13, 1980. The complainant's application for leave to appeal was refused.

7. On May 9, 1980, Mr. Dwyer launched a new complaint against the company before the Ontario Human Rights Commission, claiming that his termination was motivated by racial considerations. There is no evidence that this allegation had ever surfaced before. On February 11, 1981, the Ontario Human Rights Commission advised him that it had investigated his complaint, had found no evidence of discrimination, and would not appoint a board of enquiry. This decision was appealed to the Ombudsman. Its present status is uncertain. In addition, there is an outstanding civil suit against the company, the basis of which is unclear. The present complaint was filed on April 24, 1981.

8. In summary then, by the time this complaint was filed, there had been: two arbitration proceedings, two references to the Divisional Court, two references to the Court of Appeal, one reference to the Ontario Human Rights Commission, a reference to the Ombudsman, and a civil action. In all but the civil action, the objective of Mr. Dwyer has been to obtain reinstatement and full compensation for the wages and benefits he has lost since his termination in 1976. That is essentially the position he takes in the instant case, except that now he seeks compensation for his losses from the respondent union rather than from the company, and he further seeks a direction that there be a new arbitration on the merits of his discharge. His allegations against the union involve, inter alia: an alleged antipathy between the complainant and various union officials; the alleged mishandling of his two grievances by union representatives; and the alleged failure to adequately support or finance his applications for judicial review. The union resists the complaint on its merits, and both the union and the company argue that the complainant's unreasonable delay in launching it should preclude any relief. The union contends that it is unfair to have to defend itself against allegations raised, for the first time, years after the precipitating events.

9. The parties all contend that the present complaint can only be understood against the background of Mr. Dwyer's previous relations with the union and the company- hence the protracted hearing, and enquiry into events long preceding the 1976 termination.

II - Background 1968-76

10. The complainant's employment record is replete with controversy and conflict with members of management and with union officials. He regularly complained of mistreatment by the company and was concerned about collusion by his union representatives whenever they took a position different from his, or when, in Dwyer's view, they were not aggressive enough in supporting his position. He was forceful and determined, but also obstinate, argumentative, and intolerant of any views which did not coincide precisely with his own. These traits did little to endear him to persons in authority.

11. Mr. Dwyer's relationship with his union was marked by antagonism and suspicion. Of the many union officials at various levels who represented him over the years, he was hard-put to identify any whom he thought was satisfactory. He distrusted them; and throughout his career he regularly sought independent legal advice and requested the intervention of his own lawyer whenever he was dealing with the company. When he met with union representatives he often took a witness. He told the Board that the union local was run by a clique of individuals antagonistic to him, and, over the years, when new individuals were elected or appointed to union office "the word" about Stanley Dwyer was passed along. The new officials would then exhibit the same antagonism towards him as the previous ones. Mr. Dwyer's own ventures into local union politics were apparently unsuccessful, but he wrote letters of complaint to senior union officials, to the Minister of Labour, to his Member of Parliament, and to the Ombudsman when he had difficulties which he thought they should redress.

12. There is no doubt that the complainant is a strong-willed and determined man, vigorous in his assertion of what he believes to be his rights. He was a prolific grievor. The company's records indicate that Mr. Dwyer's personal grievances accounted for more than ten per cent of the total filed during his period of employment, and represent more than three times the number filed by the next most active grievor. In addition, the complainant was involved in, or initiated, a number of other grievances in which he was part of a group. Of course, there is nothing improper about resort to the grievance procedure. That is the way collective agreement problems should be resolved. But the Board was struck by the content of one such grievance involving a claim for three minutes' pay. It is difficult to take that grievance seriously, and it may perhaps illustrate the complainant's irascibility, as well as an antipathy to his employer which he made no effort to conceal during his evidence before this Board. The complainant was obviously a difficult man to deal with and, in the circumstances, it is not surprising that he ran into problems.

13. From the company's point of view, the complainant was not a very satisfactory employee. He was suspended on several occasions, and, in 1973, he was discharged for failing to notify the company and provide satisfactory reasons for his absence - that is, for precisely the same reason as his discharge in 1976. The union also took that termination to arbitration. The complainant was represented by Larry Scheffe, a union representative, who ultimately won the case. By a decision dated January 23, 1974, Arbitrator W. B. Rayner concluded that Mr. Dwyer should be reinstated and compensated for his losses. But this success does not mean that the complainant was satisfied with Scheffe's performance, or with the quality of representation that he was receiving. He retained his own solicitor, a Victor Rosemay, to appear with him at the first hearing, and when he was dissatisfied with the union's handling of the compensation issue (the Arbitrator had reserved jurisdiction with respect to this matter), he pressed for a second arbitration hearing where it was Rosemay who represented him. The question before Arbitrator Rayner at this second hearing was whether the complainant was entitled to full back wages in respect of the period following his termination, or some lesser amount because he was unavailable for work during this period by reason of health. It is interesting to note that the sum ultimately achieved at arbitration appears to be substantially less than that which the union was offered and could have obtained on the complainant's behalf without the expense of a second hearing.

14. When pressed on this matter before the Board, Mr. Dwyer contended that neither the union nor his own solicitor kept him properly informed of the discussions with the employer - precisely the same complaint which he makes in respect of the union's handling of his grievance in 1976. The Board finds that proposition hard to believe. On the contrary, the evidence suggests that the complainant was unprepared to accept the settlement negotiated by the union on his behalf and preferred to take his chances through further litigation where, ultimately, he was unsuccessful. The Board further notes that in July of 1975, the complainant was warned once again by the company that a failure to substantiate an absence would result in his removal from both the seniority list and the company's employment rolls. Since that was the reason for his discharge in 1973, there can be little doubt that the complainant was fully aware of the requirements and potential consequences of Article 23(c).

15. The complainant's litigious inclinations were not directed only against his employer. In 1973, he complained to this Board (as he now does) that the union's handling of a grievance constituted a breach of section 68 [then section 60] of the Act. That complaint was dismissed, with reasons, by a decision of the Board dated August 2, 1973. In that decision the Board notes, parenthetically, that in the seven months preceding the complaint the union had processed seventeen grievances on Mr. Dwyer's behalf - a number which, if correct, suggests that the company's figures referred to above may be underestimated. In any event, it is obvious that the complainant was or should have been aware of his right to seek redress in this forum in respect of any failure of the union to properly represent him. He had done so before.

16. The picture which emerges is of an assertive, obdurate, and critical individual, who was often dissatisfied, and distrustful of union and company representatives alike. Clearly he was not an easy person to relate to or represent, and, in the union's submission, this is a factor which must be considered in assessing his current allegations that the union failed to properly represent him in 1976 and 1978.

17. It is also important to consider Mr. Dwyer's veracity, for there were a number of conflicts in the evidence and his testimony was substantially rebutted by the various witnesses called on behalf of the respondent. In consequence, the Board has had to choose between them on the basis of such factors as: the consistency of their evidence, the firmness of their memory, their demeanour while testifying, the reasonableness of their explanations and their ability to resist the influence of interest to modify their recollections. It is always easy to reconstruct one's recollections with the benefit of hindsight and in light of later events, and even the most truthful witness (which, in my view, the complainant was not) may sometimes have difficulty distinguishing between what actually happened, and how those events were perceived.

III – Credibility

18. The complainant was on the stand for several days and the Board had ample opportunity to consider his performance. In general, the Board did not find the complainant to be a candid or credible witness nor, on balance, does the Board consider his evidence to be reliable. He was often evasive and occasionally beligerent. His memory was conveniently selective, and he frequently refused to acknowledge circumstances - otherwise uncontested - which might portray the union in a good light (as, for example, the incident of his earlier discharge, supra). His evidence was often slanted, and his use of language or choice of words was calculated to create an inference of impropriety. But when pressed, he frequently retracted his original assertions, modified them, or retreated into a general statement that he could not recall precisely what had occurred but that is how the matter appeared to him. The Board also had the impression that portions of his evidence were an ex post facto rationalization of the facts in light of subsequent events. It may be useful to be a little more specific on these points since the complainant's credibility is a critical element in this case.

19. The complainant's contention is that the union was antagonistic to him and mishandled his discharge grievance. He initially testified that union officials "refused" to supply him with the company's reply to that grievance. It turns out — and the complainant admitted on cross-examination — that there was no "refusal" at all, nor could there be. The employer was tardy in filing its reply and the union officials were making an effort to obtain it. The union could not give the complainant information it did not itself have, nor could the union "refuse" to provide such information. This was but one of the many instances when the complainant's choice of words suggested misconduct on the union's part when in fact there was none.

20. Another example arises from the claim that the union failed to keep him informed. Mr. Dwyer testified that he was "surprised" to learn that his case was proceeding to arbitration. He testified that he did not learn about this until late in September 1976. In fact, the evidence demonstrates, unequivocally, that there were a number of conversations with various union officials throughout the processing of his grievance. On August 25th he wrote to the union referring to one such conversation, asking the name of the arbitrator, the date, time and place of the arbitration, and whether the union was taking any "disciplinary action" against the company for failing to reply quickly enough. The obvious inference is that sometime before August 25th, he learned that his case was proceeding to arbitration. He told the Board, however, that he wrote this letter speculatively, just in case his grievance might go to arbitration at some point. He maintains that the union kept him in the dark and he did not advise about the prospect of arbitration until much later. But neither the text of this letter nor the evidence of the other witnesses is consistent with that proposition. On the contrary, their evidence is that he was continually badgering union officials to get the case moving because he was out of a job. Once again Mr. Dwyer was slanting his evidence and colouring the truth.

21. When examined about the seriousness of some of his grievances, the complainant responded to the suggestion that some of them might be minor with the unequivocal assertion that he would never file a grievance simply to obtain an apology. He testified that it would make no sense to invoke the grievance procedure solely for an apology. That would be a misuse of the grievance procedure and he would never do such a thing. Exhibit #63 is a grievance in which the complainant seeks only an apology.

22. The complainant told the Board, repeatedly, that he did not understand that he had been discharged in 1976, or that termination was the effect of a loss of seniority under Article 23(c). He said that he was uncertain about his status and was not sure whether he bad actually been fired. This proposition might make sense after the Divisional Court decision and the second arbitration. The former had determined that a loss of seniority was not tantamount to a discharge, and the second Arbitrator had to consider whether there had been a termination apart from the loss of seniority. In retrospect, the status of the complainant was uncertain. But not at the time. The complainant had been fired before for precisely the same default, and a letter which he wrote to the company in August, 1976, a few weeks after his discharge, contains the phrase “seing I am dismissed from the company and removed from the payroll…”. Yet, Mr. Dwyer maintained before this Board that he did not understand that he had been fired, and further that he was unaware of the company's well-established practice of treating a breach of Article 23(c) as a termination. No doubt a straightforward answer to these questions might have prejudiced the complainant’s position in the earlier cases. Here they reflect solely on his credibility.

23. When pressed on cross-examination on a wholly unrelated issue, the complainant testified, quite unexpectedly, that David Gow, the alternate plant chairman, had called him a "nigger" and a "black bastard". Such racial slurs, if true, would be highly significant and go a long way to support Mr. Dwyer's complaint. But these allegations were not mentioned in the complaint itself, or at any point in his direct examination. Nor was there anything about it in the complaint to the Human Rights Commission – a fact which Mr. Dwyer explained resulted from his telling the whole story to the O.H.R.C. intake officer, who, in Mr. Dwyer's submission, only recorded portions of it. Any omissions were the intake officer's fault.

24. Counsel for the complainant immediately rose to indicate that the allegations had not been raised in the complaint, they had not been particularized, they had not been brought out in direct evidence, and they would not be relied upon. Counsel for the union, however, argued that the matter was relevant to the complainant's credibility and Gow took the stand to specifically deny the allegations. The union further argued that it was the same kind of unexpected, self serving and contested assertion which prejudiced complainant's credibility in the eyes of arbitrator Hinnegan.

25. On the basis of the totality of the evidence respecting this matter I find that the suggestion of racial slurs was a total fabrication. The Board also acknowledges the force of the union's submission that it was a similar unsolicited and unexpected statement from the complainant which prompted arbitrator Hinnegan to disbelieve him. Moreover, the explanation for the deficient O.H.R.C. complaint is the same one which the complainant advances to explain certain alleged omissions from his written grievance which will be dealt with in detail infra. This was but one of a number of themes in the evidence which were to reappear from time to time.

26. It would serve little purpose to multiply the examples. It suffices to repeat that on the basis of the totality of the testimony the Board did not find the complainant's evidence to be credible or reliable and in general chooses to prefer that of the other witnesses.

IV - The 1976 Discharge and Arbitration

27. Because of his back problems, the complainant was not working regularly in the months preceding his termination. He was off work continuously from March 24, 1975, until June 27, 1976. He returned to work on Monday, June 28th, worked part of that day as well as June 29th, June 30th and Friday, July 2nd, then was absent for the following week. By letter dated July 9, 1976, the company advised him that he was “cleared from its rolls” and his name had been removed from the seniority list because he had been absent for five consecutive days without advising the company or providing reasons. The letter further indicated that he could be reinstated to the seniority list if he provided satisfactory evidence substantiating the absence and his failure to report. The company's concern was both notificati2n of the absence and substantiation of the reasons for it.

28. The complainant testified that he regarded the matter as very serious - as, of course, it was. His employment was effectively terminated just as it had been three years before. He filed three separate grievances respecting the matter, seeking reinstatement to the seniority list, compensation, redress in the Courts for any remedy beyond the jurisdiction of the arbitrator, apologies, and a direction that George Mitchell, the personnel manager, be disciplined. These written grievances, signed by the complainant, assert that on July 8th he did advise the company that he was in hospital, and that on July 5th he mailed a "medical note" explaining his absence. The grievances were drafted by Glen Ryckman, the local plant chairman, in the complainant's presence on the basis of what the complainant told him. They are signed by the complainant himself. The complainant contends that he told his story and Ryckman included only part of it. This is the same explanation advanced in respect of the OHRC intake officer's alleged failure (relevant only in retrospect) to record certain pertinent information. The complainant contends that he advised Ryckman of other notification to the company - and, in particular, a phone call to George Mitchell himself on July 5th. I do not believe the complainant's evidence on this point. It seems most unlikely that Ryckman would record one call on July 8th, but would omit an earlier and much more important call to the personnel manager himself three days before.

29. The company never received the "medical note" which the complainant maintains he mailed on July 5th. After some discussion with Mitchell, the complainant sent another copy some days later. In reality, the term "medical note" is a misnomer. The document in question is a page from an insurance form apparently used to apply for exemption from insurance payments. It is signed by the complainant's doctor, Dr. Montemuro, and has check marks in the "boxes" indicating both that he is disabled and able to work. The Doctor's writing and intention are difficult to interpret. In any case, the company did not consider this a satisfactory explanation of his absence, nor sufficient reason why he did not notify the company earlier that he would be absent.

30. Mr. Dwyer testified that he learned he was to go into the hospital on Friday, July 2nd. He did not work the following Monday, July 5th. The evidence before the Board further indicates that the complainant was admitted to St. Michael's Hospital at 1:45 p.m. on July 6th. He remained there until the morning of July 9th. This appears to be beyond dispute and, accordingly, the complainant was not available for work on those days. 0i course, this, in itself, does not meet the company's other concern about notification of an employee's absence, and the evidence is that Mr. Dwyer had ample opportunity to notify the company had he wished to do so.

31. As the Board has already noted, the complainant contends that his union representatives did not keep him fully informed of the progress of his grievance, and would not permit him to attend the grievance meetings. However, the evidence establishes that there were a number of telephone conversations with various union officials about the matter, and when pressed on cross-examination, the complainant admitted as much. Moreoever, I find, as a fact, that it is not the practice of the union and employer to have the grievor present when the grievance is being discussed with company representatives, nor is that practice unreasonable. Persons familiar with the litigation process will know that settlement discussions can often proceed more productively in the absence of the aggrieved individuals, and this is most likely to have been true in the complainant's case. The complainant was in no mood to compromise or co-operate and his presence would likely have only inflamed the situation. Certainly, I do not think a violation of section 68 can be grounded upon a long-standing practice wherein the parties to the collective agreement choose to pursue settlement discussions in the absence of the grievor. There is nothing arbitrary about that practice, nor was their any bad faith or discrimination in following it in Dwyer's case. In any event, the attempt to resolve his grievance was unsuccessful. The company was inclined to believe the greivor's story, and the case proceeded to arbitration.

32. The complainant protests that the employer was not responding to his grievance within the time limits prescribed in the agreement, and the union was not pressing his position forcefully enough. But the evidence is that both parties had been somewhat flexible in insisting on adherence to the time limits, and, in any case, there was not much that the trade union could do about it. The Board finds no evidence of impropriety in the way the complainant's grievance was processed through the grievance procedure.

33. The position taken by the union on Mr. Dwyer's behalf when meeting with the company, was that he had in fact given sufficient notice of his intended absence. That is what Dwyer had told the union. For their part, the company officials admitted that S. Fortais, the complainant's foreman, had spoken to Mr. Dwyer. But the employer denied that Fortais had been told about the complainant's whereabouts. The company said that Dwyer had been abusive and had said he did not have to reveal his whereabouts and would not do so. The "stories" were in direct conflict. It would be up to the arbitrator to determine the truth of these contradictory positions. The issue before the arbitrator, as before this Board, would involve important findings of credibility. If the company witnesses were believed, the complainant's failure to comply with Article 23(c) would be established.

34. Preliminary investigation and preparation was done at the local level by Glen Ryckman and Dave Gow, the alternate plant chairman who later substantially took over because of Ryckman's heart condition. Gow had some difficulty obtaining the complainant's co-operation because, in the complainant's view, he had a good case and saw no reason why the company should refuse to acknowledge it. The complainant was unwilling to co-operate with Gow because he had already given information about his grievance to Ryckman and because Gow was not an elected official. The local union grievance committee eventually decided to proceed with only one of the complainant's three grievances - the main one concerning his termination - and to use that vehicle to seek his reinstatement with compensation. The grievor's demand for an apology, and his demand that Mitchell be disciplined were considered secondary to getting his job back. There is nothing improper about that conclusion or the way it was reached.

35. The individual who was to present the grievance was Buz Hargrove, an international union representative (ie. unconnected with Mr. Dwyer's local union or its officials), who had never met the complainant before. Hargrove had held a number of positions in the union over the years, had considerable experience with grievance administration, and, at the time, had presented a few arbitration cases. The complainant, as usual, wanted his own lawyer to represent him, but was told that it was not the union's practice to retain counsel except in exceptional cases and this was not one of them. Hargrove advised the complainant that the union would be prepared to allow him to retain his own counsel who would take over the case provided the complainant shouldered the legal costs and was prepared to formally absolve the union of any responsibility in the matter. This apparently was unsatisfactory to Mr. Dwyer and, in consequence, it was Hargrove who eventually presented the case to Arbitrator Hinnegan.

36. The union's case was that Dwyer had advised Fortais at least twice of his whereabouts in various telephone calls. Since two telephone conversations with Fortais were not disputed by the company, and the complainant was in fact in the hospital, the union considered it most unlikely that the matter would not have been mentioned and expected an arbitrator to take the same view. In addition, Hargrove expected an arbitrator to recognize the obvious injustice of sustaining the discharge of an individual who was in fact in the hospital and unavailable for work. Both Hargrove and the other union officials, however, urged the complainant to get as much evidence on this latter point as possible, including a letter from Dr. Montemuro prepared with the arbitration case in mind indicating he was totally disabled and unable to work. The complainant, content in his own mind about the correctness of his position was reluctant to cooperate. The company's position remained that although the complainant had spoken to Fortais, he had neglected and even refused to reveal where he was.

37. At the hearing, Hargrove led the complainant through his evidence and at the end asked Mr. Dwyer if he had anything further to say. To Hargrove's surprise and chagrin he did: Dwyer claimed that he had talked to Personnel Manager George Mitchell, by telephone, on July 5th, and had specifically advised him that he was going into the hospital on the following day. But there was no mention of a July 5th call on the grievance form, no July 5th call had ever been raised in the grievance procedure, Hargrove had riot been told about it, and Hargrove knew that Mitchell would deny it. Hargrove also knew that Mitchell was a relatively new personnel manager who, in his (Hargrove's) estimation, would not be regarded as someone with a grudge against the complainant. Mitchell's denial would mean that the complainant's evidence would be directly contradicted by two company witnesses: Fortais and Mitchell. The testimony about the July 5th call to Mitchell could weigh heavily against Mr. Dwyer.

38. Hargrove asked the Arbitrator for a brief adjournment, indicating that the July 5th call was something new to him which he would like to discuss briefly with the complainant. Privately he was angry, and said to the complainant that he had probably "blown the case". Before, there had been an admission by the company that the complainant had talked to his foreman, and the only question concerned the content of that conversation. Now the case had a new element. However, Ben West, another union official, told Hargrove that although the July 5th call had not been mentioned during the earlier discussions with the company, it had been mentioned at a pre‑arbitration meeting of union officials at which Hargrove was present. Hargrove was sure that West was wrong. But if West was prepared to testify, Hargrove concluded that it might be helpful. Hargrove then informed the Arbitrator that if the July 5th call had been raised prior to the arbitration he had failed to note it, and was genuinely surprised, but that West would testify (and did) that the matter was not entirely “new”.

39. Arbitrator Hinnegan reviewed the evidence before him and decided to believe the two company officials. In his view, their evidence was not only more credible and mutually supporting, but much more consistent with the pattern of events which had occurred. Accordingly, the Arbitrator found, as a fact, that the complainant had not notified the company in accordance with the requirements of Article 23(c) of the collective agreement and, consequently, that he had lost all his seniority - a result which the parties then assumed meant his termination. The Arbitrator did not consider it appropriate to interfere with that result; and while it is not for this Board to "secondguess" the decision of an arbitrator, it is difficult not to sympathize with the complainant's view that he has been unjustly dealt with - given that he was in the hospital during the relevant period and legitimately unable to work, and had earlier given the company a blanket medical authorization to make any enquires of his doctors which the company thought necessary. However, the justice of the complainant's position is not for this Board to judge. This is a complaint that his union has acted illegally. It is not an appeal from the arbitration process.

40. There is a problem with the way in which the arbitration award is framed. It appears that the Arbitrator did not fully understand, or at least record with precision, the complainant's evidence respecting the other calls he made and, in particular, the one on July 8th or 9th. At page five of the Arbitrator's award he indicates, that, like the July 5th call, the company only heard of the later call at the hearing. However, the July 8th call was mentioned on the grievance itself, and there was no dispute that the complainant had spoken to Fortais at least twice. Those calls had been discussed during the grievance procedure and it was the union's hope that the Arbitrator would consider it unlikely that the complainant had not mentioned his whereabouts. It is obvious, therefore, that in this respect the Arbitrator's factual finding is wrong. However, it is equally obvious that he considered the complainant's evidence concerning the July 5th call to be false and inconsistent with the pattern of events as well as the testimony of more credible witnesses. Once that issue of credibility was resolved against the grievor his case was in real difficulty.

41. There was considerable evidence before this Board about this crucial July 5th phone call, because part of the complainant's allegation is that Hargrove acted in an arbitrary manner by not raising it, and by reacting as he did when it was raised. The evidence does not support either allegation. The July 5th call was not mentioned on the grievance form, although a July 8th communication was. This omission is hard to explain. The complainant says that it was left out because Ryckman was selective in the information he recorded; but as the Board has already noted, why mention one call but not the other? A call to George Mitchell would be much more important than one to the complainant's supervisor. The complainant was closely cross-examined on this point by company counsel and eventually testified that he did not think the call was important and that it only became significant afterwards because of how the Arbitrator took this particular piece of testimony. But how could the complainant fail to realize the importance of this evidence? He had been discharged before for failing to notify the company, and the previous summer Mitchell himself had written to warn him of the importance of keeping the company informed about his status. Hargrove's evidence was that the July 5th call was never raised with him, and I prefer his evidence to that of the complainant on this point. And, while as the Board has already noted, it is not the province of this Board to second-guess the factual findings of Arbitrator Hinnegan, it is difficult to resist the conclusion that in this important respect at least, he was correct. The evidence concerning the July 5th call appears to be a self-serving fabrication which, in any event, Arbitrator Hinnegan chose not to believe. It was the same kind of unexpected assertion (concerning the alleged racial slurs) which this Board too does not believe, and which casts into doubt Mr. Dwyer's general credibility.

42. The Board further finds that Mr. Dwyer never told Hargrove that his call on July 5th had been overheard by his wife. This particular piece of evidence seems to have surfaced only in this forum to buttress the complainant's allegation that there were witnesses available that the union failed to call, but could have vindicated him. The complainant admits that in his discussions with Hargrove the latter was anxious to know all the facts and the Board is satisfied that at the time this purported "fact" was not revealed.

43. The complainant's allegations include the assertion that the union should have had Dave Gow present to testify and only failed to do so because of Gow's bad relationship with Mr. Dwyer. No doubt, that is how Mr. Dwyer perceived his relationship with Gow, as with other union officials; but there is nothing to suggest that Gow would have had anything to add to the complainant's case. On the contrary, his evidence before this Board was that he had no recollection of the July 5th call being raised at any time. Had he given that evidence before Arbitrator Hinnegan, it would merely have weakened the complainant's case even further.

44. There is one point on which the evidence indicates that there may have been an error on the union's part - although five years later it is difficult to reach a firm conclusion on the matter. Mr Dwyer's general instruction to his family was that, when dealing with company officials, they should only take messages. They should not volunteer any information. But his daughter, who was a teenager at the time, testified before this Board that on this occasion, when she received a telephone call from supervisor Fortais, she told him that the complainant was in the hospital. Dave Gow's notes of a meeting with the complainant prior to the arbitration suggest that the daughter's availability to testify in this regard was mentioned. But Gow could not remember, nor could Hargrove, who said that as far as he could recall the focus of the discussion was only on the direct conversations between the complainant and Fortais which were then considered quite sufficient (if believed) to sustain the complainant's case. The complainant's position was that he had told Fortais personally at least twice that he was in the hospital.

45. This Board need not express any opinion about the daughter's credibility. Had she given evidence before Arbitrator Hinnegan, her testimony would have had to be considered along with that of the complainant and the other company witnesses. Whether it would have tipped the scales, one can only speculate, but, on balance, it does not seem likely. Still, in hindsight, Hargrove may not have been sufficiently attentive to this aspect of the complainant's case or this potential witness who might have supported it. But in all the circumstances, the Board cannot find that Hargrove's actions can be characterized as being "arbitrary, discriminatory or in bad faith". At most, he may have made an error in judgment in failing to recognize and marshall an additional piece of supporting evidence.

46. Following the arbitration decision, the complainant urged the trade union to seek judicial review and, in fact, some consideration was given to this possiblity. Although the decision of the Arbitrator is by statute and the terms of the agreement intended to be "final and binding", the union thought that the result was unfair, given the fact that the complaiant was in the hospital and Arbitrator Hinnegan had made some factual errors. Some consideration was also given to his interpretation of Article 23(c), although it is not entirely clear whether this occurred before the complainant sought the assistance of his own counsel. In any case, the union decided not to launch or join an application for judicial review, and this alleged default forms part of the instant complaint - especially since that application for review was eventually successful.

47. But what was the prospect for review as it then appeared to the union? Hinnegan had made some factual errors, but it was unlikely that this would be sufficient to overturn his decision. And the interpretation which ultimately found favour in the Divisional Court was not one which the union thought was correct or which in good faith it believed it could assert. That is why it chose not to participate in the application for judicial review and that is why there was some confusion following the Divisional Court's decision as to what that decision actually meant.

48. Article 23(c) — the so-called "contractual quit" or "abandonment" provision - is a standard clause in automobile industry collective agreements, including those with Chrysler. It has been part of those agreements for many years and has developed a well-established and accepted meaning: a loss of seniority was considered to result in automatic termination of employment with reinstatement if the employer accepted the employee's substantiation for his absence. The fairness of that provision is not at issue here. The fact is, that there have been literally hundreds of cases involving Article 23(c), and the parties to the agreement have always (prior to the Divisional Court decision) treated a loss of seniority as meaning a loss of employment. The evidence before me was overwhelming and uncontradicated in this regard, and the complainant did not seriously challenge it. All of the union officials who gave evidence confirmed that this was the case - especially Hargrove, who, for some years, has had responsibility for negotiating the Chrysler collective agreement. That is what the parties intended, and that is why the union never raised the issue before Arbitrator Hinnegan. Indeed, as Arbitrator J. D. O'Shea Q.C. noted in his second arbitration award, when the issue was raised in an earlier U.A.W. arbitration case involving similar language in a collective agreement with Fruehauf Trailers Limited, Arbitrator A.M. Linden, Q.C., (as he then was) had this to say:

It was contended by counsel for the union that the loss of seniority rights did not necessarily imply termination and that Mr. Tomec might be considered a probationary employee. This argument is not supported by the jurisprudence which is to the opposite effect. I hold, therefore, that implicit in a total loss of seniority is the loss of employee status, that is a termination of employment.

That opinion was expressed on September 22, 1977, some seven months before the Divisional Court expressed the opinion that this interpretation was one which the language of Article 23(c) could not reasonably bear.

49. In view of the arbitral jurisprudence and the practice of the parties, the union did not think that, in good faith, it could assert an interpretaion which it knew was not how the parties had applied their agreement or intended it to operate; nor, for this reason, did it participate in the complainant's application for judicial review. Whatever interpretations or arguments were possible on the language of Article 23(c), if questioned, the union would have had to concede that the interpretation proposed by the complainant was not what the parties had previously taken their agreement to mean. When the Divisional Court quashed the Hinnegan award on the basis that this interpretation was unreasonable, no one was more surprised than the union officials.

50. The Divisional Court affirmed Arbitrator Hinnegan's findings of fact and credibility, as well as his determination that Article 23(c) resulted in a total loss of seniority. But the Court quashed the Hinnegan award on the ground that its result was premised upon an interpretation of Article 23(c), which the language of that section could not reasonably bear. The Court then remitted the matter back to another arbitrator as follows:

We therefore quash the decision of the arbitrator, but because there is no evidence before us about any "discharge" or "termination" or the circumstances therefore, we do not believe that we can deal with this matter in any other way than by remitting it back to another arbitrator to be dealt with in accordance with fresh evidence on these matters and in accordance with the interpretation which we articulate herein. [i.e., that a total loss of seniority is not equivalent to a discharge.]

It remained for the new Arbitrator to determine the propriety of the complainant's termination in accordance with the Court's instructions, and his interpretation of the rights under the collective agreement of a person without any seniority.

V - The 1978 Arbitration

51. Following the Divisional Court decision there was some confusion about how to proceed. By the time the Court of Appeal had refused the company's leave to appeal, almost two years had passed since the complainant's termination. The scope of the second Arbitrator's enquiry was unclear, and by this time Hargrove had moved on to another job. There was some discussion between the International Union and its solicitors as well as the local union officials as to how best to proceed. Eventually, J. D. O'Shea, Q.C. was selected as the new Arbitrator, and Ed. Bruce, an International representative for the union, was chosen to present the case.

52. Ed Bruce was an experienced union representative. He had been an official of the union for many years, including eight years as president of the Ford local. Apart from any formal training he had received, his experience included the presentation of many arbitration cases. He had never met the complainant before nor, prior to this assignment, had he heard about him. The grievor, as before, wanted his own lawyer. Once again, he was told that it was not the union's practice to retain counsel in arbitration matters, but that the appropriate channel of appeal was through the union's constitution and its senior elected officers.

53. Bruce met with the complainant to go over his case and hoped that the Divisional Court decision would give him sufficient leverage to introduce new evidence on the merits of the complainant's discharge. Bruce consulted Hargrove, the local union officials, and the complainant himself, and the complainant's daughter attended at the hearing just in case the Arbitrator might be persuaded to re-open the hearing de novo. Mr. Dwyer claims, inter alia, that Ed. Bruce intentionally "threw the case". Mr. Dwyer contends that Bruce promised him that he would argue that Mr. Dwyer was in the position of an employee with ninety-one days' seniority (i.e., just past the probationary period and having the right to grieve a termination under the colelctive agreement), while at the hearing the complainant maintains that Bruce argued that the complainant was an individual without seniority and without any rights to grieve at all. The Board rejects that contention. It makes no sense and is entirely inconsistent with Bruce’s version of events - a version which the Board prefers over of the complainant. Bruce did not submit that the complainant was without rights. Bruce did not know precisely what the complainant's position was. The complainant was without seniority according to Article 23, and in this respect the Divisional Court had affirmed the Arbitrator's decision; but to say that he was beyond his ninety-day probationary period could, under the terms of the collective agreement, imply that he had seniority. Yet Article 23(c) suggested he had none. Bruce was content to leave the matter to the Arbitrator, although when questioned by Mr. O'Shea, he candidly admitted that prior to the Divisional Court decision the union had been reluctant to challenge the company's position that a total loss of seniority was equivalent to a termination or quit because an employee without any seniority at all could be in the same position as an employee who, having failed to accumulate ninety days of service under the agreement, had no seniority rights and no right to grieve his termination. And, of course, this response to the Arbitrator's question must be measured against the fact that, as Bruce well knew, the union and the company did view a loss of seniority as tantamount to a termination. It was the Divisional Court decision which created the anomaly in respect of a previously accepted interpretation of the parties' agreement.

54. The Board rejects the complainant's contention that Bruce intentionally changed his argument or "threw the case", or that he acted in an arbitrary manner. He tried to have the matter retried, de novo, and when he was unsuccessful, he parried the arbitrator's question, and submitted as best he could, that in accordance with the Divisional Court endorsement, the company had not affirmatively demonstrated that it had discharged the complainant. That is why he consented to an adjournment (which the complainant argues he should not have done) to permit the production of the company's separation slip. Bruce knew that in accordance with the company's usual practice, the separation slip would indicate, as it does, that the complainant had "quit", whereas at the arbitration the company would argue that he had been terminated. In the result, however, and for the reasons set out in the decision dated October 23, 1978, Mr. O'Shea upheld the complainant's discharge once again. He concluded that, apart altogether from the operation of Article 23(c), positive steps had been taken to sever the complainant's employment relationship, and that as an employee without any seniority at all, the complainant was in no better position than a probationary employee. As such he had no right to grieve his termination. The correctness of that determination is not at issue here.

55. The O'Shea award was also taken to the Divisional Court, but this time the union participated. The evidence indicates that in view of what had happened on the previous occasion and the potential ramifications for other agreements and bargaining units, the union thought it would be best to appear and argue in support of the complainant's position that the O'Shea decision was wrong. Mr. Dwyer, who was unhappy that the union did not participate in his first case, complains to this Board that the union "Took over" his second application for judicial review. Be that as it may, the second application was dismissed. It is but one of the many ironies of this case that the reasons for the dismissal included certain observations by the Court which, if applied on the earlier application for judicial review, would have occasioned a different result. Leave to appeal to the Court of Appeal was refused and, about a year later, Mr. Dwyer reformulated his complaint as one against his trade union and brought the matter before this Board.

VI - Conclusion

56. On the basis of the evidence before the Board, it cannot conclude that there was any bad faith or discrimination in the way in which the complainant was represented by the various union officials who were associated with his complaint over the years. There was certainly no malice or conspiracy of the kind which the complainant adverted to in his evidence. The union officials did their best to deal with a difficult situation and were not at all unsympathetic to the complainant's plea that he had been unfairly dealt with. The Board does not find that there was any impropriety in the way in which the complainant was dealt with prior to his arbitration before Hinnegan, nor does the Board find any breach of the union's statutory duty in the way in which the arbitration case was presented. Similarly, the Board finds no breach of the law in the way in which the complainant was represented prior to and during his second arbitration hearing. In either case, it may be that his position would have been promoted somewhat differently by independent counsel, but the Board does not think that the failure to provide independent counsel constitutes a breach of section 68 of the Act anymore than does the union's failure to join in or initiate the first application for judicial review. Apart altogether from the expense involved, the whole purpose of the grievance procedure is to provide an informal and relatively expeditious means of resolving employee complains without recourse to the procedures or formalities appropriate in the Courts - where, of course, at common law, there was no right to reinstatement anyway. It would be anomolous in this context if, in the absence of exceptional circumstances, this Board were to hold that the failure to retain counsel was a breach of the law or the failure to pursue a judicial review, constituted a form of illegal conduct. Neither the facts of this case, nor considerations of general policy support such position.

57. The Act proscribes conduct which may be characterized as "arbitrary, discriminatory, or in bad faith", and there is seldom much difficulty discerning actions which fall into the latter two categories. The problem lies in determining the intended ambit of the elastic word "arbitrary" - bearing in mind that a union's affairs will be conducted by laymen, often elected, who may have little formal education and certainly are unlikely to have any formal legal training. In recognition of this fact, the Board has construed the term "arbitrary" to refer to conduct which is superficial, capricious, cursory, grossly negligent, implausible or flagrant. Section 68 has not been held to extend to honest mistakes or errors in judgment. In Ford Motor Company Limited, [1973] OLRB Rep. Oct. 519, the Board put it this way:

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. 8 D.L.R. (3d) at 521 at p. 546.

Similarly, in Walter Prinesdomu, [1975] OLRB Rep. May 444 the Board observed:

In using the word 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. But 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.

(See also: I. TE. Industries Ltd., [1980] OLRB Rep. June 1001.)

58. Can it be said that any of the conduct of which Mr. Dwyer complains falls within those parameters? In my view, the answer is clearly no. It cannot be considered arbitrary if a union decides to follow its established practice and handle grievances with its own officials rather than retain outside counsel. This practice is very common in the industrial community and as the Court of Appeal has recently reminded us [see: Corporation of the City of Toronto v. C. U.P.E. Local 79, 82 CLLC ¶14174] the arbitration process frequently involves laymen and was intended, so far as possible, to be conducted without undue "legalism". The fact that Mr. Dwyer demanded his own lawyer does not mean that the union acted arbitrarily when it refused to accede to that demand. Nor given the contractual and legislative requirement that the arbitration process be final and binding, should this board readily infer that section 68 creates an obligation to !;eek judicial review or that a trade union acts improperly when it declines to do so. There may be exceptional circumstances where an arbitrator's award is so perverse and pervasive in effect, that regardless of the expense, a union might be considered to be acting arbitrarily if it did not seek review. But that would be a highly exceptional case - unlike the present one. Here there is no basis for the argument that the union acted arbitrarily by declining to finance or participate in a review of the Hinnegan award, or by declining to provide Mr. Dwyer with his own lawyer. Put at its very highest, the credible evidence before the Board discloses no more than that union representatives may have made an honest mistake, or during a hearing may not have responded with the aplomb of Mr. Dwyer's present counsel in response to his unexpected assertions made at his hearing. However, having regard to totality of the evidence, the Board is not satisfied that a breach of section 68 has been made out.

VII - Delay

59. The complainant's discharge occurred in July, 1976. His first arbitration hearing took place in December, 1976. He second arbitration hearing took place in the Fall of 1978. The present complaint was not filed until April 24, 1981 - four and a half years after the first arbitration hearing, two and a half years after the second arbitration hearing, and a year after the related judicial proceedings had been completed. Moreover, the complainant testified that he was concerned about the quality of representation from the start. That is why he requrested that the union provide him with independent legal advice. A letter from his counsel dated May 19, 1978 appears to confirm that before that time he had indicated his reservations about the union's role; and, during this period, the complainant was not without legal advice. But no allegation of misconduct was formulated against Hargrove, Gow, Ryckman, and Bruce, until years later. Nor can it be said that the complainant was unfamiliar with the options open to him. He had, after all, complained to the Board before when he was dissatisfied about the way that a grievance had been handled by the union.

60. The union and the company both argued that it is simply too late to grant the complainant any relief at all, and it would be inequitable to do so. Having failed in his various attempts to fix the company with liability he cannot now, years later, switch targets and reformulate his case so as to bring it within this Board's jurisdiction. The union has asserted throughout this proceeding that it is patently unfair to have to defend against allegations of misconduct made years after the precipitating events; and the company asserts that having defended its position before Arbitrator Hinnegan, before Arbitrator O'Shea, before the Divisional Court (twice), and before the Ontario Human Rights Commission, it should not have to risk liability once more. The company argues that it would be impossible after six years to retry the complainant's original termination on its merits. Not only have documents been disposed of and recollections faded (a problem which was evident throughout the present proceeding - see the interim decision of the Board issued March 12, 1982 which, it might be noted, was incorrectly dated March 12, 1981), but essential witnesses may no longer be available. Some individuals have left the company's employ, and Dr. Montemurro, has since died. But it was Dr. Montemurro who signed the equivocal insurance document and who might have been in the best position to assess the complainant's state of health, and, in retrospect, whether he would have actually been available and able to work after his purported termination in July, 1976. If he were not, he would not be entitled to full compensation should it be determined that he was improperly discharged in July, 1976. That was the issue before Arbitrator Rayner in 1973-74. Nor, or course, would the trade union be liable for that amount. The company argues that no remedy should issue at all, or, in the alternative, that any remedy emanating from this proceeding should run solely against the union. The union asserts that the complainant's present predicament stems directly from his credibility problem before Arbitrator Hinnegan, and regardless of any deficiencies which the Board might, in hindsight, find in the quality of representation, Mr. Dwyer himself remains largely responsible for his present plight. In the union's submission, it is simply too easy, with hindsight, after the fact, to blame one's counsel for losing a case or to assert that there was evidence which, if tendered, might have affected the outcome. And given the extreme delay it is very difficult to defend against such allegations.

61. The argument respecting delay was first raised before the Board (differently constituted) as a preliminary matter precluding any enquiry into Mr. Dwyer's complaint at all. That panel of the Board, without formal reasons, decided that the Board should hear the complaint on its merits, but that the question of delay would be a factor to be considered in determining what remedy, if any, would issue in the event that the allegations were sustained and held to be a breach of section 68. That important qualification was repeated when the matter came on for a hearing on the merits and the union and company sought reconsideration of the earlier Board decision. Moreover, it must be noted, that had the Board's approach to delay been elaborated, as it subsequently was in Sheller Globe of Canada Ltd., [1982] OLRB Rep. Jan. 113, and Corporation of the City of Mississauga, [1982] OLRB Rep. March 420, it is arguable that this complaint would not have been entertained at all. It is difficult to accept that the Legislature ever envisaged that an unfair labour practice, once crystallized, could exist indefinitely in a state of suspended animation, to be revived years later as the basis for litigation. Adversarial relationships are pervasive enough in our collective bargaining system without the resurrection of ghosts from the past. In any event, the Board did hear the complaint, and determined, on the evidence, that there had been no breach of section 68 of the Act. It is therefore unnecessary to express any opinion about how the Board would have dealt with the problem of delay or the question of liability, had the Board been persuaded that in some respect or other, a breach of section 68 had been established.

62. For the foregoing reasons, the complaint is dismissed.