[1982 OLRB Rep. February 181
0611-81-U Eugene Vaillancourt, Complainant, v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W., Local 222 and General Motors of Canada Limited, Oshawa, Ontario,Respondents,
BEFORE: N. B. Satterfield, Vice-Chairman
APPEARANCES: Eva F. Marszewski for the complainant; B. Chercover and D. Tyce for the
U.A.W.:J. K. Cameron and John Orton for General Motors of Canada Limited.
DECISION OF THE BOARD; February 9, 1982
- This is a complaint filed under section 89 (formerly section 79) of the Labour Relations Act in which the complainant alleges that he has been dealt with by the respondent trade union in a manner which is in violation of section 68 and section 69 (formerly section 60 and section 60a) of the Act. Section 68 states 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.
Section 69 has no application to the circumstances of this case and the complaint is dismissed with respect to the alleged violation of that section.
- The complaint alleges that the violation of section 68 arises from the following acts or omissions:
"The Respondent's trade union denied the Complainant his request to be represented by the counsel at the Arbitration heard by Mr. E. E. Palmer on October 31, 1981.
The Respondent's representative presenting the Complainant's case before the Arbitrator acted in an arbitrary, discriminatory manner, and in bad faith towards the Complainant in that he, Mr. D. Tyce:
(a) Did not call any medical evidence by way of medical reports or expert witnesses to provide the Arbitrator with evidence regarding the Complainant's physical ailment and disability which prevented him from performing the jobs that he had been assigned to do between April 26, 1979, when the Complainant was injured, and November 27, 1979, when the Complainant was fired.
(b) Did not call any other employees assigned to the types of jobs to which the Complainant had been assigned after his industrial accident on April 26, 1979, to provide the Arbitrator with evidence to demonstrate the type of physical strain involved in —
(i) the installation of headlights,
(ii) glove-box assembly,
(iii) installation of radiator hose,
(iv) hood installation.
(c) Did not adduce any evidence to indicate what different types of jobs the Complainant was physically capable of carrying out, which his seniority would have entitled him to be assigned to.
(d) Did not adduce any evidence to demonstrate to the Arbitrator the bad faith and the arbitrary and discriminatory manner of the employer's placement officer who was charged with finding suitable jobs for the Complainant which he can do (65(a) of the Collective Agreement) after he had been injured while in the course of his employment.
(e) Did not permit the Complainant to see or review the brief submitted by the employer to the Arbitration in the matter of the Complainant's grievance in order to enable him to review same and comment on it.
(f) He presented the Grievor's case before the Arbitrator in an inadequate, totally perfunctory and arbitrary manner thus demonstrating the Respondent trade Union's bad faith toward the Complainant."
The complaint was made June 18, 1981 and, during five days of hearings over a period of three months, the Board heard the testimony of 11 witnesses, including three medical doctors and received 44 documents in evidence. The Board has reviewed all of the oral and documentary evidence and the findings of fact herein are the material facts based on all of that evidence and the Board's assessment of the various witnesses' recollection of events, their demeanor and relative credibility.
This complaint differs from the majority of the ones that come before the Board alleging violation of section 68 of the Act in that it involves the quality of representation accorded the complainant, Eugene Vaillancourt, by the respondent trade union, the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America ("the U.A.W."), Local 222 ("Local 222") through the international representative of the U.A.W., Dennis Tyce. The vast majority of complaints involving section 68 involves complaints that a union has refused or failed to process an employee's grievance, particularly refusing to take a grievance to arbitration. While the events bearing directly on the grievance
which was arbitrated began with Vaillancourt's discharge on November 27, 1979 by the employer, General Motors of Canada Limited ("G.M."), for refusing to do the job to which he had been assigned, it is useful to summarize the facts with respect to other events leading up to the discharge.
(An extensive review of evidence leading up to the discharge and the filing of the grievance omitted).
Local 222 filed a grievance on Vaillancourt's behalf on the same day when he was discharged, November 27th. Dennis Tyce became involved with Vaillancourt's dismissal after it was grieved. He has been an international representative of the U.A.W. since 1969 and serves all of G.M.'s plants in Canada and is the U.A.W. Canadian Director's special representative assigned to its Ontario plants. Prior to joining the staff of the U.A.W., he had been employed by G.M. in its Oshawa plant complex and was a shop committeeman there since 1951. His involvement with Vaillancourt's grievance began at the fourth step, which is the last step before arbitration and the step at which he usually participates pursuant to the procedure and Tyce described to the Board the steps relevant to Vaillancourt's grievance. It was discussed at the third step between the appropriate representatives of Local 222 and G.M.. When G.M. denied the grievance, Local 222 filed with G.M. on December 14, 1979 a "Notice of Intention to Appeal" the grievance as provided in the fourth step procedure. Following that giving of notice, both parties prepared and exchanged a "Statement of Unadjusted Grievance" which is a statement in support of their respective positions at the third step. Tyce received a copy of each party's statement together with the minutes of the third step grievance meeting and a copy of the grievance following which he met with representatives of Local 222 about Vaillancourt's grievance. Next he sent a "Notice of Appeal" to G.M. and made arrangements for the fourth step meeting. Tyce attended at G.M. in January 1980 for the fourth step meeting and represented Local 222 and Vaillancourt at the meeting. Grievors do not attend this meeting. Vaillancourt's grievance was one of some 120 that were dealt with in eight days of meetings between the parties beginning January 21, 1980 and ending February 1, 1980. G.M. has five days after the fourth step meeting to give its reply to Local 222. The Local considers the reply and writes to Tyce recommending whether to proceed further. Vaillancourt's grievance was one of 12 which the Local recommended to Tyce be taken to arbitration. Tyce notified G.M. immediately that it was going to arbitration on Vaillancourt's grievance. He does this automatically with any grievance which the Local indicates it wants to pursue, even though the final decision has not been made, so to not miss the time limits for filing. A grievance may be settled or withdrawn before arbitration and of the 12 grievances, Vaillancourt's was the only one which proceeded to arbitration. As a matter of fact, it was the only grievance filed in 1979 which was arbitrated. This approach is possible because of the terms of appointment of the arbitrator.
When a grievance does go to arbitration, paragraph 37 of the agreement provides that the arbitrator be given copies of the written grievance, the written decisions at each step of the grievance procedure, the statements of unadjusted grievances which were exchanged between the parties preparatory to the fourth step meeting and the minutes of that meeting. This was done for Vaillancourt's grievance. As a result of this stipulation, the two parties have operated with the expectation and understanding that all evidence will be in by the end of the fourth step meeting. It is very clear from the evidence before the Board that either party would oppose strongly any attempt by the other one to introduce new evidence at arbitration. The agreement, in paragraph 39(a), provides also that the parties may agree in writing, before the hearing, to direct the arbitrator to issue a memorandum decision. This is a decision without reasons and must be rendered within 10 days after the hearing instead of 30 days. G.M. and the U.A.W. availed themselves of this provision for the arbitration of Vaillancourt's grievance. Tyce always presents the U.A.W.'s case at arbitration with G.M. He told the Board that, in all of his experience neither party had used a lawyer at arbitration.
At the fourth step meeting Tyce attempted to have Vaillancourt's grievance dealt with under paragraph 38 of the agreement which would have referred him for an impartial medical opinion which would have been binding on the parties and Vaillancourt. He was unsuccessful because the paragraph applies only when there is conflict in the medical opinion of a doctor acting for G.M. and a doctor acting for an employee. The reports of Dr. Winnett and the Workmen's Compensation Board Clinic indicated that Vaillancourt could do the headlight job which he had refused.
Tyce's first act to prepare for arbitration was to get a release from Vaillancourt so that Tyce could obtain the reports on which G.M. was relying. He asked Vaillancourt on March 17th and received it on April 9th. He obtained the reports from G.M. and later received some additional ones from Vaillancourt. Some of these were medical opinions which Vaillancourt had obtained from the orthopedic clinic at The Wellesley Hospital after his discharge as well as reports which went back to the period after his 1974 accident. Tyce decided not to use these latter reports because he saw them as not relevant to the reports on which G.M. was relying. The Wellesley reports he considered to contain statements harmful to Vaillancourt's care as well as being after-the-fact evidence. It was mid-October when he received copies of the Wellesley medical opinions from Villancourt. By then Tyce had already told Vaillancourt that his strategy in the arbitration would be to convince the arbitrator that Vaillancourt was suffering intense low back pain, had refused the job for that reason and that was not just cause for dismissal. Vaillancourt had told him that there was not ajob in the plant which he could do because of the pain and Tyce had decided his best strategy was to have Vaillancourt try and convince the arbitrator of his pain. For that reason, Tyce saw no need to have testimony from medical doctors. Vaillancourt's advice to Tyce that there was no job in the plant which he could do was consistent with what he told at least two other persons because Hayes and Dr. Jones both testified independently at the Board's hearings that Vaillancourt had told them that there was not ajob in the plant which he could do. The closest he came to saying that there might be one job which he could do, according to Hayes' evidence, was three hours into the third step grievance meeting when Vaillancourt suggested that he might be able to do his former hood insulation job. As noted in paragraphs 5 and 7 above that is the job on which he was working when the April 26, 1979 accident occurred and the same job which, when he first returned to work following the accident, he told his foreman Savage he could not do.
Tyce also viewed the same video tapes of the two jobs which Dr. Winnett had seen and then went to the plant with a Local 222 committeeman for the purpose of observing the jobs and satisfying himself that they were as shown on the tapes. Since the lines were not operating, he had to settle for a demonstration of one job and an explanation of the other. As another part of his preparation, Tyce verified that an employee who had complained of back pain after working full shifts on the headlight job had never been on leave of absence from the job and her testimony would not be useful. He ruled out as well seeking other employees who may have complained of pain while doing jobs which had been offered to Vaillancourt because Tyce knew them to be the easiest jobs in the plant.
As a result of his investigation of the complaint and his review of the medical reports, Tyce was of the opinion that Vaillancourt's grievance was a weak case for arbitration and his best chances would be with the strategy referred to above. He advised Vaillancourt of his opinion and told Vaillancourt he would be relying on him to convince the arbitrator of his pain. Vaillancourt voiced no opposition to the plan. Before the matter got to arbitration Tyce discussed with G.M. the prospect of settling the grievance. Two separate proposals were forthcoming which he deemed worthy of being offered to Vaillancourt. He rejected both.
The grievance was scheduled to be heard on October 23, 1980. The parties appeared, but the arbitrator did not. The matter was heard on October 30th. The parties proceeded before the arbitrator by reading their prepared briefs and calling witnesses. This is their normal way of proceeding. The party going first gives the other party a copy of its brief before it is read to the arbitrator. Tyce had given Vaillancourt his brief on October 23rd. It had been prepared on the "pain" strategy Vaillancourt had decided upon and sought to have the discharge overturned and to have Vaillancourt placed on sick leave. Vaillancourt made no objections to the brief. Tyce cross-examined from Dr. Jones the admission that he could not tell if a person was suffering pain. In this respect it is worthy of note that at the Board's hearings, Jones and the other two medical doctors who testified stated that they could not tell with certainty whether a person was suffering pain, but all of them acknowledged that they believed Vaillancourt did even though they could not find objective evidence of its cause. Tyce called as witnesses Vaillancourt and the union committeeman with whom he had visited the plant to view the jobs. The hearing lasted between two and three hours.
When the arbitrator's report was rendered it upheld Vaillancourt's discharge. Vaillancourt was given a copy of the report.
Several times during the period prior to the arbitration hearing, the first time March 17th and the last time October 2 1st, Vaillancourt alternately told Tyce that he wanted to be represented at the arbitration by his own lawyer or that he would have his lawyer there. Tyce told him that he would represent Vaillancourt at the arbitration, preferred not to have Vaillancourt's lawyer there and expected that G.M. would object to the presence of a lawyer representing a grievor. Tyce told the Board that he felt it would have been contrary to the relationship which had been built up between the parties over many years to allow Vaillancourt to be represented at the arbitration by his own counsel. As a result, Vaillancourt did not appear with counsel but did bring another person with him who was unknown to Tyce.
The foregoing fact situation forms the basis from which the Board must determine whether, as the complainant Vaillancourt has alleged, Tyce ..... acted in an arbitrary, discriminatory manner, and in bad faith towards [V.]" in Tyce's representation of him at the arbitration of Vaillancourt's grievance pursuant to the agreement and, therefore, whether U.A.W. Local 222 has violated section 68 of the Act. The standard which the Board applies in seeking an answer to that question was set out in the following words of its decision in Ford Motor Company Limited, [1973] OLRB Rep. Oct. 519, 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 party 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;.
As can be seen from the Board's comments, a significant element of that standard is the experience and level of authority of the union officials who made the representation decisions on which the alleged violation is based. Its significance is readily evident from the Board's decision in Walter Prinesdomu, [1975] OLRB Rep. May 444, at paragraph 27:
"... 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 [now section 68] 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.” (emphasis added)
- Since those two decisions issued the Board has heard many complaints dealing with alleged failures by trade unions of their duty of fair representation enunciated by section 68 and the Board's decision in these complaints have served to confirm and consolidate the standards set forth in its decisions in Ford and Walter Prinesdomu, supra. One of the more recent of these decisions, ITE Industries Limited, [1980] OLRB Rep. July 1001, in which the Board reviewed the purpose of section 68 (section 60 at the time), the standard of conduct prescribed in Ford, supra, and the Board's discourse in Walter Prinesdomu, supra, on the meaning of the word arbitrary as used in the section, summarized in the following terms the kind of conduct which must be demonstrated for a breach of the section to be established:
"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."
There can be no doubting the importance of the grievance, at least to Vaillancourt, as it involved his very livelihood and nearly seven years of seniority with G.M.. His interest at arbitration were represented, on behalf of U.A.W. Local 222, by Tyce who for 18 years held office in Local 222 and for 10 years has been the international representative of the U.A.W. who services G.M.'s plants in Canada and is special representative for the Canadian Director of the U.A.W. at G.M.'s Ontario plants. His conduct, therefore, in handling Vaillancourt's grievance must be assessed in light of his experience and the level of responsibility attached to his office. He is obviously a full-time, paid union official and has had extensive experience dealing with representation issues. He deals with all grievances at the fourth step, the last one prior to arbitration, and prepares and presents the grievances at arbitration on behalf of the local unions and their members. It is Tyce's conduct in representing Vaillancourt at arbitration which the Board must examine in order to determine whether Local 222 has failed in its section 68 duty of fair representation. His extensive experience both as an elected representative of Local 222 and as an appointed, full-time, paid representative of the U.A.W. demands, for the purposes of a section 68 determination, a high quality of representation. In deciding whether Tyce has met these standards of conduct, the Board has had the benefit of extensive and able argument from counsel for Vaillancourt, Local 222 and G.M., including their assessments of the evidence and the conclusions which, in their views, should be drawn from the evidence. All of their representations have been weighed by the Board in reaching its conclusions, both as to the findings of facts set out above and as to the conclusions reached hereunder on those facts.
Those facts reveal that Tyce first became involved with Vaillancourt's grievances after it was denied by G.M. at the third step of the grievance procedure. He filed the Notice of Appeal which progressed it to the fourth step. At that step he sought to have paragraph 38 of the agreement apply so as to divert the grievance from possible arbitration to determination by an impartial medical opinion. When this failed and G.M. again denied the grievance, he acted on Local 222's recommendation that the grievance go to arbitration by serving notice to that effect on G.M.. Thereafter he began deliberately and methodically to prepare for arbitration by obtaining and reviewing the relevant medical reports, by verifying for himself the jobs which were considered by the specialist whose opinion Vaillancourt had sought and by directing others to investigate whether his case might be aided by evidence from the employee Debbie Graham. He rejected the use of any of the medical reports, including those which he considered to be after-the-fact evidence, as being harmful to the chances of succeeding with Vaillancourt's grievance. He considered and discarded the possibility of having Debbie Graham testify on the basis that, while she claimed to have suffered back pain after working full time because of the pain, she had not lost time because of it. He decided that no purpose would be served by having medical doctors testify at the arbitration because Vailancourt had told him that there were no jobs which he could do and Tyce had decided that his best strategy was to focus on Vaillancourt's back pain as justifiable reason for his refusal to do the job to which G.M. had assigned him. While Tyce did not investigate to see if there were otherjobs beyond those which G.M. had offered to Vaillancourt or which Vaillancourt considered and rejected, it was obvious from his testimony that he knew that was not the issue from his personal knowledge of jobs in the Oshawa complex and the way in which the parties had operated under paragraph 65 of the agreement.
Tyce assessed the prospects of winning the grievance, decided they were not good and determined what he thought was the best strategy in the circumstances. Having done so he told Vaillancourt what it was and that his role would be to convince the arbitrator that his low
back pain was the cause of his refusal to perform the job to which he had been assigned. He also attempted to find an acceptable settlement without arbitration as a result of which two proposals were made to and rejected by Vaillancourt.
At the arbitration Tyce pursued his strategy and cross-examined G.M.' witnesses in accordance with his aim to support the contention that Vaillancourt was justified in refusing the headlight job because of the pain which he was suffering, that there was no just cause for discharge and that Vaillancourt should have been placed on sick leave until he was able to perform work to which his seniority entitled him.
Having decided to proceed to arbitration with Vaillancourt's grievance, Tyce has put his mind to all of the information which was reasonably available to him and formed his conclusions as to how the grievance could best be presented at arbitration. Then, after further efforts to find a settlement, he has presented what he considered to be the best case he had for the grievor. Moreover, the evidence establishes conclusively that Tyce has done these things in a manner wholly consistent with his experience and level of responsibility.
Counsel for Vaillancourt contends that the shortness and simplicity of Tyce's brief at arbitration compared with the relatively longer and detailed brief of G.M. together with the short length of time it took for him to put in his case in chief in relation to G.M., were characteristic of him "going through the motions" on behalf of Vaillancourt and demonstrates that his case was so deficient of substance and so perfunctory and summary as to be arbitrary. It is readily conceivable that a union could go to arbitration merely to "make a show" of representing an employee rather than make the politically unpopular decision not to take his grievance to arbitration. In the instant case, however, the Board has had the opportunity of reviewing the parties' arbitration briefs, of hearing the testimony of Vaillancourt, the persons who dealt with him on behalf of G.M., including those who testified before the arbitrator, of Tyce, the doctor's who treated Vaillancourt, of reviewing the medical reports which were available to Tyce and of viewing the video tapes of the jobs in question as well as the hood insulation job. Having had that opportunity, the Board has no difficulty in concluding that Tyce's handling of the grievance was an act of substance and not one simply of form.
Insofar as Vaillancourt's request to be represented at arbitration by his own counsel is concerned, Tyce's refusal to allow Vaillancourt to be so represented or to have his counsel present the case was properly based on Tyce's consideration of the practice which had evolved at arbitration between the parties and the potentially detrimental effect which it might have on those relationships. Vaillancourt's counsel contended that Tyce should have stepped aside and allowed someone else, either counsel for Vaillancourt or counsel engaged by U.A.W., to present the case at arbitration because Tyce's handling of the grievance revealed a strong unwillingness to take it to arbitration. The facts simply do not support this contention.
Nor do the facts support the allegation that Tyce failed to adduce evidence to demonstrate at arbitration the ..... bad faith and the arbitrary and discriminatory manner of the employer's placement officer who was charged with finding suitable jobs for [Vaillancourt] .", because, not only was there no evidence before the Board of such bad faith, arbitrariness or discrimination by the placement officer, Hayes, the evidence presents a scenario opposite to that allegation.
The Board finds on all of the evidence before it, therefore, that Tyce did put his mind properly, in good faith, without discrimination or arbitrariness to the merit of Vaillancourt's grievance and to its presentation at arbitration. While it is not the Board's task to decide whether it would have reached the same conclusions that Tyce did, the evidence before the Board would make it difficult to find that he should have reached different conclusions. Accordingly the Board finds that the respondent U.A.W. Local 222 has not acted in a manner that is arbitrary, discriminatory or in bad faith in its representation of Vaillancourt.
For the foregoing reasons with respect to section 68 of the Act and for the reason given at the outset of the decision in respect of section 69, the complaint is dismissed.