[1983] OLRB Rep. June 886
2406-82-U Eric Dunkley, Complainant, v. Canadian Union of Operating Engineers, General Workers, Respondent, v. Cryovac, Division of W. R. Grace and Co. Ltd., Intervener
BEFORE: Corinne F. Murray, Vice-Chairman.
APPEARANCES: Eric Dunkley on his own behalf; Robert Sleva, Claude Duchesnean and Lusha Larney for the respondent, Martin Addario and W A. Moir for the intervener.
DECISION OF THE BOARD; June 17, 1983
- This is a complaint pursuant to section 89 of the Labour Relations Act, alleging that the respondent has breached section 68 of the Act. This complaint was considered in a preliminary way in the Board's decision dated April 13, 1983. By that decision the Board rejected the respondent's argument that the complainant did not raise a prima facie case and therefore should not be heard. As a result, the complaint was re-listed for hearing. This decision is the result of that hearing.
000
[Review of evidence omitted]
- The gist of Mr. Dunkley's complaint is that he was unrepresented by a lawyer. To quote Mr. Dunkley himself, it is his opinion that:
"When one person goes to court with a lawyer and another does not, the former will win."
It has been stated on numerous occasions that a union official representing the grievor's interest need not be a lawyer. (See, for example, Rutherford's Dairy Limited, 11972] OLRB Rep. March 240.) This is so, not only for the processing of a grievance through the grievance procedure, but also representation at arbitration. (See, for example, General Motors, 11982] OLRB Rep. Feb. 181.) The reason why the Board has interpreted section 68 in this fashion is in recognition of the fact that most functions of representation within unions are carried out by persons who are not legally trained. (See Douglas Aircraft, [1979] OLRB Rep. Aug. 745.) Therefore, in order for the complainant to succeed in establishing a breach of section 68, he must show more than the failure to appoint a lawyer to take his case. He must show that not only was a mistake made, but also that the mistake was so flagrant, reckless or capricious, that the Board is led to the conclusion that the union has been arbitrary. (See ITE Industries Limited, [1980) OLRB Rep. July 1001, at paragraph 19.) In assessing the conduct of a union official in arbitration proceedings (including preparation therefore), the Board ought not to be second-guessing the judgment of that official. The question is whether the official has breached the duty established under section 68. In my opinion Mr. Dunkley has failed to establish that Mr. McManus did not give proper attention to his case or that any reckless, flagrant or capricious mistake was made.