[1983] OLRB Rep. October 1628
1165-83-U Raymond Daviau, Complainant, v. United Food & Commercial Workers, Respondent, v. Canadian Dressed Meats Ltd., Intervener.
BEFORE: R. O. MacDowell, Vice-Chairman.
APPEARANCES: Raymond Daviau on his own behalf Charles Bonello, Victor Camilleri and Frank Gormley for the respondent; Dwight E. Greer, Yvon Breau and B. C. O'Connor for the intervener.
DECISION OF THE BOARD; October 21, 1983
Pursuant to section 79 of the Board's Rules of Procedure, the Board directs that Canadian Dressed Meats Ltd. be added to this proceeding as an intervener.
This is a complaint filed under section 89 of the Labour Relations Act alleging that the respondent trade union has contravened section 68 of the Act. That section reads as follows:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
The complainant contends that the respondent union was in breach of its section 68 obligation when it decided to settle his grievance rather than take it to arbitration.
A hearing in this matter was conducted in Toronto on October 19, 1983. None of the parties were represented by counsel; however, the complainant, the respondent union, and the intervener employer all called evidence in support of their respective positions. My findings of fact, based upon my assessment of the witnesses' relative credibility, are set out below.
The complainant has been employed by the intervener for approximately two years. That employment relationship has not been an entirely satisfactory one. The complainant has been disciplined on several occasions and was not very happy with the work he was doing. Medical problems required a temporary assignment to light duties, and when such duties were no longer available and he was returned to his old job, he frequently found himself in considerable pain. The complainant decided that he should quit his job and seek employment elsewhere.
The complainant made no secret of his intention to leave the company's employ. On March 11, 1983, he was called to the office of Bernard O'Connor, the plant manager, for the purpose of discussing his absenteeism. Because the meeting was of a disciplinary character, the complainant was accompanied by Victor Camilleri, the chief steward of Local 287 — the Local of the respondent union responsible for the plant in which the complainant worked. O'Connor warned the complainant that his attendance would have to improve or his job would be in jeopardy. The complainant replied that the company didn't have to worry about firing him because he was quitting at the end of the month anyway.
Sometime between March 11th and March 25th, the complainant had occasion to make similar comments to Charles Bonello, one of the respondent union's business agents. Mr. Daviau came to Bonello's office to discuss his employment difficulties. The complainant indicated that his doctor had advised that his work was jeopardizing his health and that he should consider looking for another job. The complainant was interested in Mr. Bonello's opinion. Mr. Bonello advised that, as the complainant was still young and relatively healthy, it might well be sensible to seek alternative employment rather than risk exacerbating his health problems. Bonello's impression was that the complainant was, in fact, going to quit. As will become evident, there is some difference of opinion about whether he actually did so.
The complainant received a notice of layoff on March 20th, and was laid off on Friday, March 25, 1983. He heard nothing further from the company and, in August, learned that an employee junior to him had been recalled. He immediately contacted Charles Bonello to request that Bonello file a grievance on his behalf, however, Bonello advised the complainant to raise the matter first with the company itself, then, if he was not satisfied, to bring his complaint to the attention of the officers of Local 287, who could investigate, and take appropriate action. The complainant's approach to the company did not produce satisfactory results. The company took the position that there was no obligation to recall him, because he had quit.
There may have been some confusion in the complainant's mind as to the proper steps to take in filing a grievance. Charles Bonello testified that he spoke to the complainant on the telephone and explained to him that he (Bonello) would have a grievance prepared and that the complainant should visit the union's offices for the purpose of signing it. For his part, the complainant testified that he did call Mr. Bonello to discuss the filing of a grievance but told the Board that (in what he characterized as a "lecture") there was no actual discussion about filing a grievance nor any mention that a grievance would be typed for him which he could sign at the union's offices. I am troubled by this aspect of the complainant's testimony. Not only was Bonello a candid and credible witness, but it seems implausible that the complainant would telephone Bonello about filing a grievance, but that no discussion about the process took place.
In any event, after a few days, Bonello decided that the grievance should be filed even though the complainant had not yet signed it. To this end, he gave the completed grievance form to Frank Gormley, the local union president, and instructed him to process the grievance in accordance with the procedures set out in the collective agreement. The grievor first raised his complaint on or about August 14, 1983, the grievance is dated August 19, 1983, and, the evidence establishes that once the grievance procedure was invoked, both company and union officials turned their minds to its resolution.
It soon became apparent that the complainant's status and the success of his grievance would turn on a question of fact: whether he had quit his employment, as the company maintained, or, alternatively, whether he had merely expressed an intention to quit which was never acted upon. The complainant told the union, and testified before this Board, that he had never actually quit his employment. He had only indicated that he intended to quit some time in May. He testified that he maintained this intention to quit for a few weeks after his layoff, but then had a change of heart when he realized the difficulties he might face in the job market. He denied ever telling any member of management about a firm decision to leave or a particular date of leaving.
The company took precisely the opposite position both to the union during the grievance procedure, and before this Board. Bernard O'Connor testified that he encountered the complainant on the morning of March 21st, shortly after he received his notice of layoff effective the following Friday. According to O'Connor, the grievor said to him, "you didn't have to give me that notice, I'm quitting on Friday, anyway". Since this was similar to what the complainant had said on March 11th, O'Connor thought nothing more about it at the time. Yvon Breau, the complainant's shift supervisor, also testified that when he (Breau) gave the complainant his layoff notice, Mr. Daviau remarked, "it don't matter, because I'm quitting on Friday, anyway". Both Mr. Breau and Mr. O'Connor gave their evidence in a candid and forthright way, and neither were cross-examined by the complainant, although he was invited to do so.
Bernard O'Connor also testified about a telephone call which he received from the complainant on or about August 17, 1983. Apparently, the complainant was speaking on the telephone with Frank Gormley when Gormley thought it would be advisable to bring Mr. O'Connor into the conversation. This was done, and the complainant reiterated to O'Connor that, in his view, he had not quit. O'Connor replied, "I'm the guy you told, remember who you're talking to". To this the complainant commented, "just because I told you doesn't make it official", and O'Connor said, "it's official enough for Canadian Dressed Meats". According to O'Connor, the complainant then said, "okay, I quit, but I've changed my mind and I want my job back". The request was rejected.
During the grievance procedure, the company fully outlined its case and told the union what its evidence would be, should its officials be called to testify at arbitration — as they eventually were before this Board. In order to put that evidence in perspective, Frank Gormley canvassed the other members of the complainant's shift to see whether any of them had any recollection of what the grievor might have said about his intentions in the week preceding his layoff. Three of those employees indicated that, as far as they knew, the complainant was quitting his employment.
The union officials also asked the company about the form of termination notice which had been issued to the complainant. That form indicates that the complainant was on ''temporary layoff'', and this appeared to be inconsistent with the company's position that he had quit. However, the company explained that the complainant was only one of some seventy individuals who were laid off on March 25th, and that the clerk in the personnel office had simply issued seventy identical separation slips. Given the confusion and turmoil surrounding the layoff of almost a third of the employer's work force, no one paid much attention to the complainant's situation, nor did anyone consider his position until he contacted the company about his recall in mid-August. As far as the company was concerned, he had quit so there was no reason to recall him.
Section 68 requires a trade union to act fairly in the handling of employee grievances. But it does not require a union to carry any particular grievance through to arbitration simply because an employee demands that it do so. A union is entitled to consider the merits of the grievance, the likelihood of its success, whether the interpretation advanced by the employee is consistent with the actual intention and terms of the parties' collective agreement, and so on. A trade union must give each grievance its honest consideration, but so long as the arbitration process involves a significant financial commitment and may have ramifications beyond the individual case, a union is not only entitled to settle grievances, but in many cases it should do so. And, as has been pointed out in a number of cases, in assessing the merits of a grievance a trade union official — especially an elected one — cannot be expected to exhibit the skills or conform to the standard of care of a trained solicitor. Normally an honest disagreement about the merits of a grievance, or an honest mistake will not be considered "arbitrary" conduct so as to constitute a breach of the Labour Relations Act.
Most collective agreements contain a grievance procedure to which resort must be made before a matter can proceed to arbitration. The grievance procedure involves several stages of pre-arbitration discussion in which the parties seek to resolve their differences, narrow the issues, or, so far as possible, settle the facts. As in the ordinary civil court process, it may be in the interests of both parties to seek a settlement which is more modest than either might have obtained had it been entirely successful before an arbitrator, or even to withdraw in the face of perceived factual or legal difficulties. That is what the grievance procedure is for. Its very purpose is to generate a resolution of disputes short of arbitration. The fact that a case is settled or withdrawn does not, in itself, amount to a breach of the Act.
More important, however, is the fact that any particular grievance will inevitably be only one of many which the parties will be required to resolve during the currency of their relationship. It is in this context that the grievance procedure must be viewed. If either party obstinantly adheres to an unreasonable position, or continually presses insupportable claims, the entire settlement process could be undermined, and the parties' long-term relationship prejudiced. It can hardly further mutual trust and respect if union and management officials spend needless hours litigating ill-founded grievances. A frank interchange between the parties, a full disclosure of the strengths and weaknesses of their respective cases, and an honest assessment of the merits or demerits of a particular grievance, are all important to the development of a sound collective bargaining relationship. It makes no collective bargaining sense to argue that grievances which are likely to fail should be litigated to the end, simply because an individual employee "wants his day in court" — regardless of the expense or the effect on the continuing relationship between the parties. As a matter of good judgment, and in the interests of sound industrial relations, a trade union should make reasonable efforts to settle such grievances early in the process. Where such decision is not so patently unreasonable, implausible, or capricious as to be considered "arbitrary" within the meaning of section 68, this Board does not intervene — even if we might have come to a different conclusion than that reached by the union officials. Finally, in assessing an individual's claim, I do not think there is anything improper if a trade union official takes into account the veracity, reputation, and past performance of the employer officials with which they are dealing. A reputation for flexibility, candor, and credibility, are assets on both sides of the bargaining table, as well as factors to be considered when there are conflicting views about the facts or the truth.
What then are the facts in the instant case? The complainant was not recalled and filed a grievance. He believes that his grievance may have merit and has demanded that the union take it to arbitration. In response to the grievance, the union officials considered the complainant's "side of the story" and, in addition, conducted their own independent investigation. That investigation disclosed that on March 11th, in the presence of Camilleri and O'Connor, the complainant had expressed an intention to quit by the end of the month. The complainant had said much the same thing to Charles Bonello. The complainant's fellow employees on the night shift were of the view that in the week preceding his layoff the complainant had expressed the intention to and had, in fact, "quit". The complainant himself admitted his intention to quit, but said that, following his layoff, he had had a change of heart. Finally, the company officials outlined the testimony which they would give (and subsequently did give before this Board) in support of their view that the complainant had indeed quit as of March 25, 1983, and only later had second thoughts about his situation when he encountered difficulties in finding alternative employment.
Bonello knew O'Connor well. He has worked with him for almost twenty-five years and has had dealings at the bargaining table and in the grievance procedure. In Bonello's opinion (and he so testified), O'Connor was always open, honest, straightforward, and not the type of person who would try to deceive him. O'Connor was fair, and, in Bonello's opinion, telling the truth. He would make an entirely believable witness should he be called to testify at an arbitration proceeding. The union concluded on the basis of the evidence before it that the complainant's position was unlikely to be sustained should the case proceed to an arbitrator.
There is no basis for any contention that the union has acted "in bad faith", or in a "discriminatory" fashion in respect of the complainant's grievance; nor did the complainant actively press that assertion. Indeed, apart from demanding that his case should proceed to arbitration, the complainant was hard pressed to identify anything "arbitrary" about the way in which the union handled his grievance. It entertained the grievance, carried it through several steps of the grievance procedure, undertook an investigation, and, ultimately made an assessment that the complainant's case would be unsuccessful before an arbitrator. I need not express any final opinion about the relative credibility of the complainant or the employer's witnesses. I conclude that the union's assessment of the situation was a reasonable one in the circumstances, and cannot be considered to be "arbitrary, discriminatory, or taken in bad faith", within the meaning of section 68 of the Labour Relations Act.
For the foregoing reasons, the complaint is dismissed.