[1983] OLRB Rep. May 771
2236-82-U Melvin Runchey, member of Local 1005 USWA, Complainant, v. Cece Taylor, President, Local 1005 USWA Len Taylor, Grievance Chairman, Local 1005 USWA, Respondent, v. Stelco Inc., Intervener.
BEFORE: George W. Adams, Q.C., Chairman.
APPEARANCES: Mel Runchey and Rol Gerstenberger for the complainant; Alick Ryder and Cecil Taylor for the respondent; and T F Stone and R. Lane for the intervener.
DECISION OF THE BOARD; May 11, 1983
This complaint is amended to delete the respondents Cec Taylor and Len Taylor in their personal capacities.
This is a complaint under the duty of fair representation section of the Labour Relations Act alleging that the respondent breached section 68 of the Act by acting in a manner that was "arbitrary, discriminatory or in bad faith" in the handling and settlement of the complainant's grievance. The respondent's reply outlines the background to the complaint and the respondent's position with respect to it. It reads:
SCHEDULE "A"
Mr. Runchey is one of 23 grievors contesting discipline imposed by Stelco for conduct occurring during a strike by the members of Local 1005 which commenced in August, 1981.
The grievances were submitted to arbitration before J. D. O'Shea, appointed as a single arbitrator under s. 45 of the Labour Relations Act.
The Respondent retained James Hayes and Elizabeth Lennon of Messrs. Golden, Levinson to represent the grievors. Each of the grievors, including Mr. Runchey, was interviewed, and the normal steps taken in preparation for the hearings.
The grievances were consolidated and the employer was obliged to adduce its evidence with respect to each of the grievors before the Respondent Union was called upon to adduce its evidence in defence.
Some ten days of hearings occurred during which most of the employer's evidence against Mr. Runchey and the other 22 grievors was heard. Each grievor, including Mr. Runchey, was advised by letter of the place and date on which any evidence against him was to be given.
The hearing days occurred between March and June of 1982. During this time it became apparent that a resolution by settlement was preferable to that obtainable, in all likelihood, from an arbitrated decision. Discussions resulted in the attached settlement. In arriving at the settlement, the merits of each individual grievor's case was specifically addressed. It is the Respondent's submission that an arbitrated decision would not have improved the result for Mr. Runchey or for any of the other 22 grievors.
The settlement was recommended to the Union by its solicitors, approved by it and implemented."
The respondent and intervener were engaged in a very lengthy strike lasting some 125 days. During that strike, picketing activity became particularly intense and obstructive, necessitating the intervention of the Supreme Court of Ontario by way of injunction. In response to what the company perceived as gross misconduct and towards the conclusion of the strike, the company slated a number of employees for discharge and still more for varying degrees of discipline. This proposed action became itself an issue in the strike. Mr. Cec Taylor testified that the strike was ultimately settled on the understanding that there would be no discharges and that any discipline imposed would be no more severe than 30 day suspensions and that the parties would expedite grievances filed in relation to such disciplinary action. Subsequently, some 26 employees were disciplined under this understanding and 23 grievances were filed with the Ministry of Labour pursuant to the expedited arbitration procedure provided by section 45 of the Labour Relations Act. Presumably to facilitate the litigation of these matters and in recognition of their apparent common factual foundation, the Minister of Labour appointed a single arbitrator, Mr. J. D. O'Shea, Q.C., to arbitrate all 23 matters.
Having regard to the way in which Mr. O'Shea's appointment was made and having regard to the nature of the grievances, the parties agreed to proceed with the 23 grievances concurrently and the company would, therefore, present all of its evidence with respect to the 23 grievors first. In effect the grievances were consolidated. This approach was designed to expedite the arbitrations and avoid the need for both parties to call witnesses pertinent to all grievances on a repetitive basis. It was understood that the company would advise the trade union which grievors would be affected by the evidence to be called on any particular day and these grievors would be advised of their right to attend and arrangements would be made by the parties for their attendance. The grievors were also free to attend all days of hearing although specific arrangements for their attendance were only made for those days on which evidence was to be adduced that directly affected them. Early on in the hearings, Mr. O'Shea ruled that even where a grievor had not been contacted, evidence could be led with respect to that person and the witness could be recalled if the absence of the affected grievor impeded cross-examination.
Instead of handling the case through its lay counsel, the respondent decided that the matter was sufficiently complex and important to justify the retention of legal counsel. Accordingly, J. K. A. Hayes and E. J. Shilton Lennon were retained to handle the matter. They were assisted by a law student. The evidence establishes that counsel met with all grievors prior to the commencement of the case and investigated the grievances thoroughly. Mr. Hayes was primary counsel and conducted the hearings of April 19th, May 10th, May 31st, June 1st and June 8th. Mr. Hayes and Mr. Stone who acted for the intervener co-operated in a manner designed to facilitate the effective handling of the 23 grievances. The intervener's counsel provided Mr. Hayes with extensive particulars at the outset of the matter and as the hearings proceeded, further particulars of each day's evidence was also made available.
August 13th, 1982 was the next day for hearing scheduled after the hearing day of June 8th, 1982. Prior to that date Mr. O'Shea rendered an interim award dismissing a motion by the respondent aimed at limiting the company's evidence to certain representations made by foremen to the grievors at the time of the issuance of the discipline. This ruling was a strategic blow to the approach to be taken on behalf of the 23 grievors. Against the issuance of this interim award and having regard to the very detailed and substantial presentation of the intervener over the hearings up until that point in time, Mr. Hayes and Mr. Stone began to consider the possibilities of a settlement. To this end, Mr. Stone made available to Mr. Hayes all of the additional evidence and particulars upon which it was going to rely and Mr. Hayes verified this information with the affected grievors and the officials of the respondent.
In the meantime, the hearing of August 13th proceeded as scheduled but, because of Mr. Hayes' unavailability, Ms. Shilton Lennon represented the grievors and the respondent. Due to a bona fide error by the intervener, the respondent was not advised that evidence would be led on August 13th that pertained to the grievor, Mr. Runchey. When this evidence was lead, Ms. Shilton Lennon decided against asking for an adjournment to facilitate Mr. Runchey's attendance at the hearing. She testified that by this point in the proceedings, there were few surprises; other gnievors were in attendance who were with Mr. Runchey at the times to which the evidence related: she had a firm understanding of the grievor's position from having been present at various discussions between he and Mr. Hayes at earlier hearings; and, finally, if a problem did arise, she was confident that the witness in question could be recalled. The law student assisting her on the day in question copied down a verbatim transcript of the evidence relating to Mr. Runchey and forwarded it to him for his comments by letter dated August 19th, 1982. Mr. Runchey received this letter and the attached transcript and failed to reply or dispute its contents at any time thereafter.
It is not irrelevant to note that the respondent was shouldering a cost of some of $5,000 per hearing day and that both parties to the arbitration were sensitive about the amount of time that had been expended and that would be required in the future in order to pursue the 23 grievances to their conclusion at arbitration. The intervener estimated that three or four more days following August 13th would be required to complete its case and the respondent anticipated that it would need to call some 46 witnesses at a minimum. Mr. Hayes testified that by the end of the summer, he had a full appreciation of his own case and witnesses and the case of his opponent. He was further satisfied after discussions with Mr. Stone that he could achieve a result by way of settlement that would be more advantageous to all grievors than would an arbitration award. To this end, therefore, he negotiated the outline of a tentative settlement with Mr. Stone which reduced the discipline imposed for a number of employees and, for the grievor, a commitment by the company to rely upon the five-day suspension only in the context of any future alleged misconduct arising out of "participation in any future work stoppage whether legal or illegal... .". Mr. Hayes testified that he was totally familiar with Mr. Runchey's position in that Mr. Runchey pursued this position with him relentlessly. He was satisfied, as was Ms. Shilton Lennon, that there was ample evidence on the record of Mr. Runchey's obstructive conduct on the picket line and he was further satisfied that if Mr. Runchey took the witness stand he would undoubtedly prejudice his own case. It was against this background that Mr. Hayes, by letter dated August 26, 1982, wrote a six-page opinion letter to Mr. Cec Taylor, President of the respondent, recommending the proposed settlement of all 23 grievances. The opinion letter sets out in detail Mr. Hayes' thinking about the grievances and their prospects for any better outcome through litigation.
It is a practice of the respondent to settle cases in the arbitration process without seeking the concurrence of the grievance committee or of the union membership. It is also the practice of the respondent not to accept appeals by affected grievors when such settlements are made against their wishes. The propriety of not allowing appeals was discussed and approved by the Board in Stelco Inc.; Re Joseph R. Strong and USWA, Local 1005, 1 1983 I OLRB Rep. Mar. 453. Nevertheless, before approving the settlement recommended to him by Mr. Hayes, Mr. Taylor placed the recommendation before the grievance committee or at least before a number of members of the committee and before all of the grievors save for one who could not attend. The evidence reveals that those on the grievance committee who attended the meeting in question approved of the settlement and Mr. Taylor testified that the objections to the settlement by some of the grievors did not persuade him against accepting the proposed settlement. Accordingly, the settlement document was executed by the parties. Subsequently, Mr. Runchey tried to appeal the disposition of his grievance but this request was refused. He then filed the instant complaint with the Board.
n my view, there is absolutely nothing in this recitation of events that violates the duties and responsibilities imposed on a bargaining agent by virtue of section 68 of the Labour Relations Act. The consolidation of the grievances having regard to the circumstances and to the procedural arrangements arrived at by the parties cannot be characterized as arbitrary or discriminatory or having been adopted in bad faith. Indeed, the willingness and ability of the parties to proceed as they did can only be commended. The respondent and intervener had just been through a difficult strike. Workplace morale and a concern for the grievors dictated the approach adopted. The way in which the hearings were conducted appears to me to be entirely reasonable and the actions of the lawyers involved were clearly beyond reproach. By the time the matter was settled I was satisfied that Mr. Hayes and Mr. Taylor had a complete grasp of the evidence and the details of each grievor's case. This is not a case that was settled simply because of cost and without regard to the evidence established or likely to be established before a board of arbitration. There is also no evidence that Mr. Runchey's grievance was traded off against a better result for some other grievor. The matters at stake involved a very central labour law issue of vital importance to this trade union, i.e. the ambit of proper picketing. Mr. Runchey's grievance was settled in light of the applicable principles and his conduct. The settlement of all of these grievances, viewed against the evidence placed before me, does not violate the Labour Relations Act and, indeed, clearly appears to have been sensible and responsible.
For all of these reasons the complaint is hereby dismissed.