Ontario Labour Relations Board

[1984] OLRB Rep. February 215

2282-83-U Abdul Chafchak, Complainant, v. United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W and its Local 195, Respondent, v. Central Stampings Limited, Intervener

BEFORE: Richard M. Brown, Vice-Chairman.

APPEARANCES: Rodney Godard, Abdul Chafchak and Eddy Manzocco for the complainant; Edward Murphy, M. F White and Gerald Logan for the respondent; D. S. Jovanovic and Joe Edmondson for the intervener.

DECISION OF THE BOARD; February 24, 1984

1. In this complaint, under section 68 of the Labour Relations Act, Abdul Chafchak alleged that the United Automobile, Aerospace, and Agricultural Implement Workers of America and its Local 195 (the "union") breached the duty of fair representation by not carrying his discharge grievance to arbitration.

I

2. Chafchak began working at Central Stampings Limited in August, 1977 and was terminated on August 3, 1982, after an absence of ten working days that commenced on July 20th. According to Mr. Chafchak, throughout this period he was afflicted with nausea and dizziness, and he was at times unable to walk. He testified that he telephoned the employer each morning. The employer's records indicate that Mr. Chafchak called in on most days, but not on July 22nd nor on three successive work days ending on August 3rd. On August 3rd, the employer notified Gerry Logan, the Local 195 chairman at Central Stampings Limited, that Chafchak was being terminated at that time. The demerit slip given to Logan stated the reason for "dismissal" was being "absent without advising company giving satisfactory reason". This wording is remarkably similar to that found in Article 12.03(5) of the collective agreement then in force:

12.03 Seniority rights shall cease for any employee who:

(5) is absent for three (3) days without advising the Company giving satisfactory reasons;

3. On August 5th, the complainant met with representatives of the employer and union officials. Three medical documents were produced at this meeting. The first, a form issued by the Hotel Dieu Hospital and bearing no signature, states that the complainant was examined and treated in the emergency department on July 21, 1982. (Chafchak testified that he was examined by Dr. Dedumets at the hospital on this date.) The second document, dated July 30th and initialed by Dr. Javanovic, says Mr. Chafchak was "unable to work from July 22 to August 3, 1982 due to severe gastroenteritis". The other medical note was issued by a specialist, Dr. Baptista, to whom Chafchak was referred by Dr. Jananovic. It bears the date August 4th and indicates the patient was "still acutely ill and under treatment". Michael White, an international representative of the parent union, testified that, at the August 5th meeting, Chafchak said he saw Dr. Javanovic on July 21st. In the Board's view, Mr. White's recollection of who Chafchak claimed to have seen on July 21st is in error. The complainant is not likely to have identified the wrong doctor. And even if he had initially given the wrong name, the error was likely certain to have been revealed by the medical notes which disclosed that the July 21st visit was to the Hotel Dieu Hospital whereas Dr. Javanovic 's note was on a Windsor Industrial Medical Clinic's form.

4. The employer was unwilling to reinstate Mr. Chafchak without verifying the information provided by him. Joseph Edmondson, who is in charge of personnel matters at Central Stampings, paid a visit on Dr. Javanovic and learned from him that he examined Chafchak on July 27th and July 30th. Dr. Javanovic conceded that his note stating that Chafchak's illness commenced on July 22nd rested entirely upon what the complainant had told him. Consequently, the employer advised the union on August 12th that the dismissal would not be overturned. Logan filed a grievance the next day.

5. Later in August, Chafchak met with the union screening committee comprised of Logan, Stan Wako who was the president of Local 195, and Michael White, an international representative from the parent union. The committee decided to investigate the medical record. According to Logan, Chafchak was told he was on "firm ground" if the doctors' notes substantiated his claim that he had been sick throughout his absence from work. Logan then called upon Dr. Javanovic, with a "medical release" from the patient in hand. Javanovic said he had no personal direct knowledge of Chafchak's condition on the days preceding July 27th. When asked for an opinion on this, he declined to give one.

6. The union officials decided to hold another screening meeting. Upon telephoning the Chafchak residence to invite the grievor to attend, Mr. Logan learned he was hospitalized due to a broken leg. In the complainant's absence, the screening committee decided the grievance was not sufficiently meritorious to be arbitrated. According to White, he and his colleagues did not believe the evidence established that Chafchak was unfit to work on July 22nd to 26th inclusive. A decision was made to approach the employer on betided knee, pleading for reinstatement without back pay. After Gerry Logan made this overture and failed, he withdrew the grievance. Chafchak was then notified that the grievance had been dropped.

7. What occurred during the approximately fifteen months between the time the complainant was told his grievance had been withdrawn — in the late summer or early fall of 1982 — and the date legal proceedings before this Board were initiated? Yet another screening committee meeting was held at the complainant's request. As english is not Mr. Chafchak's first language, he was accompanied by a friend who served as translator. Nothing was resolved. A week or so after this meeting, the complainant requested copies of his medical notes from Mr. Logan. Chafchak consulted a lawyer about personal affairs in September, 1983, but did not seek legal advice about this matter until he retained his present lawyer in early 1984. Jack Proctor, an investigator employed by the law firm representing Mr. Chafchak, asked Gerry Logan on April 10, 1983 to provide information about the grievance. An envelope of documents was handed over six or seven weeks later. Another month passed before Proctor succeeded in obtaining information from Dr. Javanovic's file. On July 6, 1983, counsel for the complainant wrote to the employer:

I am the solicitor for Mr. Abdul Chafchak who was terminated from his employment with Central Stampings on the 3rd of August, 1982. I understand that this termination was based on Mr. Chafchak' s absence from work from the 22nd of July, 1982 to the 3rd of August 1982. I further understand that medical information was provided by Mr. Chafchak indicating that his absence resulted from an illness during this period. As such, the dismissal would appear unjustifiable, and I have instructions to bring action against Central Stampings for wrongful dismissal.

You are being advised of this claim pursuant to the provisions of The Judicature Act.

A letter was also sent to the union by counsel for the complainant on July 6, 1983:

I am the solicitor for Mr. Abdul Chafchak, a member of your Local and a former employee of Central Stampings. Mr. Chafchak was discharged from his employment on the 3rd of August, 1982. The apparent reason for the discharge was the failure to provide a satisfactory reason for not attending work between the 22nd of July, 1982 and the 3rd day of August, 1982. No grievance was filed on behalf of Mr. Chafchak disputing the termination in spite of the fact that a medical report was provided to the Union representative indicating Mr. Chafchak had been unable to work through illness for this period.

The time limits set out in the collective agreement between Central Stampings and the UAW Local 195 have long since expired. It may well be that Mr. Chafchak, because of the collective agreement, is without remedy against Central Stampings for this wrongful termination. I fail to see why Local 195 did not grieve this dismissal on behalf of Mr. Chafchak.

Please advise me if the Local is in a position to undertake a grievance of this dismissal on behalf of Mr. Chafchak.

The complaint was filed on January 5, 1984.

II

8. When the hearing began, counsel for Central Stampings submitted that the Board should not entertain this complaint because of Mr. Chafchak's delay in initiating proceedings. However, counsel was not opposed to the Board hearing the evidence on this issue together with that relating to merits of the complaint. In argument, counsel for the union also contended the complaint was barred by the lapse of time.

9. The Board's approach to complaints not filed in a timely fashion was summarized in Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420:

10. In recognition of the fact that it is dealing with statutory rights, the Board has not, heretofore, adopted and rigid practice with respect to the matter of delay — holding, in most cases, that it will simply take this matter into account in determining the remedy if a statutory violation is established. However, whatever the merits of this approach, the Board must also keep in mind the potentially corrosive effect which litigation can have upon the parties' current collective bargaining relationship —quite apart from the outcome. Adversarial relationships are pervasive enough in our industrial relations system without the resurrection of ghosts from the past. In the Board's view, the orderly conduct of an ongoing collective bargaining relationship and the necessity of according a respondent a fair hearing both require that unions, employers and employees recognize a principle of repose with respect to claims that have not been asserted in a timely fashion. If such claims are not launched within a reasonable time, the Board may exercise its discretion pursuant to section 89 and decline to entertain them.

11. A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reasons for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which had developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, some latitude must be given to parties who are unaware of their statutory rights or, who, through inexperience take sometime to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances and exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.

There are several cases in which the Board has entertained a complaint but ruled that any remedy ought to be adjusted to take account of undue delay. See Hayes Dana Limited, [1968] OLRB Rep. Apr. 89; Chrysler Canada Ltd., [1979] OLRB Rep. July 618; Concrete Construction Supplies, [1979] OLRB Rep. Aug. 739; Irving Posluns Sportwear, [1979] OLRB Rep. Oct. 986; Ontario Paper Company Limited, [1980] OLRB Rep. Jan 76; Chrysler Canada Ltd., [1980] OLRB Rep. May 650; Labourers' International Union of North America, [1980] OLRB Rep. May 733; Caravelle Foods, [1983] OLRB Rep. June 875. For cases in which a complaint was barred by delay, see CCH Canadian Limited, [1977] OLRB Rep. June 351; Sheller Globe of Canada Ltd., [1982] OLRB Rep. Jan. 113; Concrete Construction Supplies., [1982] ORLB Rep. Oct. 1446; Chrysler Canada Limited, [1983] OLRB Apr. 490; and Conestoga College of Applied Arts and Technology [1983] OLRB Rep. June 882.

10. In the circumstances of this case, the time that passed before this complaint was filed is not sufficient to justify a refusal to entertain it, even though the complainant should have acted with greater dispatch. In my view, the passage of time has not seriously impaired either the ability of the union to defend itself against this complaint or the employer's ability to answer a grievance. Both of these parties were put on notice, some six to nine months after the cause of action crystallized, of the possibility of legal proceedings relating to the discharge grievance. The law firm representing Mr. Chafchak communicated with Gerry Logan. several times in the spring and early summer of 1983. Although the letter sent to the union on July 6th made no mention of a section 68 complaint, its text would have alerted a reasonably astute union official of the not insignificant risk that such a complaint would be filed, as this is the only meaningful avenue of legal recourse open to an aggrieved employee. The July 6th letter to the employer stated an intention to initiate a wrongful dismissal action. Consequently, both Logan and Central Stampings were on notice that they might be called upon to defend their actions. As the delay was not excessive, Mr. Chafchak's claim to the protection afforded by section 68 outweighs any "corrosive effect" that the adjudication of this complaint might have on the collective bargaining relationship. But the complainant's failure to act with greater dispatch cannot be ignored if the complaint succeeds on the merits and the Board is called upon to fashion a remedy.

III

11. I turn now to the merits of the complaint under section 68. The grievance and arbitration process is an essential component of a regime of collective bargaining. An employee who is fired, refused a promotion or otherwise dealt with by management in contravention of a collective agreement relies upon this legal mechanism for redress. Section 44(1) of the Labour Relations Act requires that every collective agreement provide for the arbitration of all contract disputes — or for their resolution by some other peaceful means. But direct access to an arbitrator is not statutorily guaranteed to an individual employee. Instead, the legislature has granted a trade union, the exclusive bargaining agent for all employees, the right to compel the employer to submit a grievance to arbitration. The union's exclusive authority is counterbalanced by its duty to fairly represent each employee. The duty of fair representation is found in section 68 of the Act:

12. 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.

13. The double barrelled prohibition against discrimination and bad faith is calculated to prevent differential treatment on the basis of such criteria as race, creed, colour, sex and to preclude invidious conduct motivated by trade union politics, personal animosity and favouritism. See Prinesdomu, [1975] OLRB Rep. May 444 at para. 24; [1975] 2 Can. LRBR 310, at 315. This aspect of the duty of fair representation is important, but once the pertinent facts are proven, cases of this variety are easily decided. Giving meaning to the word arbitrary is a far more vexing task that must begin with an appreciation of the role played by union officials in contract administration.

14. In representing grievors, the officials of a union are called upon to perform two very different sorts of tasks; they investigate employee claims and act as advocates in the grievance process; and they also decide what grievances are to be abandoned, settled, carried to the next stage in the grievance process, or arbitrated. A fair representation complainant typically alleges that an official who acted as investigator or advocate did not exercise proper care or that a decision as to the disposition of a grievance was inappropriate. Although both counts are not infrequently combined in a single complaint, these distinct lines of attack throw up issues of labour law policy that are as different as the two categories of functions carried out by union officials.

15. A disgruntled grievor may challenge only the propriety of the union's decision not to pursue a grievance, and not dispute the union's investigation or advocacy. In this setting, labour relations boards have started from the basic premise that the pursuit of a grievor's claim may adversely affect other employees, and that a bargaining agent is best suited to choose between the competing interests of its constituents. The weight of a grievor's claim is determined by such factors as the job interest at stake, the probability the grievance could be won at arbitration, and the union's past practice concerning similar grievances. Against this claim, a union must weigh not only any conflicting job interests of other employees but also the collective interest in conserving group funds and in not impairing the settlement process by pressing undeserving grievances. So long as the balance struck between these conflicting individual and collective concerns falls within the realm of reason, a labour relations board ought not to interfere, because weighing competing interests is essentially a political task not readily amenable to legal regulation. A fuller discussion of this branch of the duty of fair representation is set out in Ford Motor Company of Canada, [1973] OLRB Rep. Oct 519; Prinesdomu, supra; Barber Coleman of Canada Ltd., [1976] OLRB Rep. Oct 13; and Rayonier Canada (B. C.) Ltd., [1975] 2 Can LRBR 196 (B.C.). For a recent summary see North York General Hospital, [1984] OLRB Rep. Feb. 287.

16. The crux of this complaint is not the way the union balanced countervailing interests, but rather the manner in which it investigated the merit of Mr. Chafchak's grievance. This type of fair representation complaint was also discussed in North York General Hospital, supra:

17. To this point, the focus has been on a disappointed grievor who contends a union wrongly decided his or her contract claim was outweighed by countervailing group concerns. What about a complaint that a -union official failed to exercise proper care when investigating or advocating a grievance? A variety of mistakes may occur in the context of contract administration. Overlooking an important fact, or misinterpreting a contract clause, may distort an assessment on the merit of a grievance. Errors may be committed in the course of presenting a case to either management or an arbitrator. A common failing is to file a grievance after a contractual time limit has passed. An employee who complains of any of these faults does not contest a union s authority to balance individual and collective interests. In this setting, the union has made no such determination and, indeed, may wish to pursue the complainant's grievance, but be barred by a misguided settlement of expired limitation period. Even an attack upon a union's decision to drop a grievance, that is wrongly believed to have little chance of being won, is directed at a mistake of fact or interpretation, not at the weight assigned to competing concerns.

18. How has the prohibition against arbitrary conduct been applied in this context. In Prinesdomu, supra, at para. 26, the Board equated arbitrary with "perfunctory" and distinguished arbitrariness from "mere errors in judgement, mistakes, negligence and unbecoming laxness".

19. There are good reasons for holding a bargaining agent responsible for perfunctory conduct by its officials. Most important, the exclusive authority of a union precludes an employee from completing many of the tasks involved in processing a grievance. An individual cannot insist that his view of either the facts or the meaning of the collective agreement be accepted by a union official who is empowered to decide what grievances are to be arbitrated. The decision to arbitrate is not the only aspect of contract administration which exclusivity removes from an employee's grasp. The limitation periods contained in many collective agreements can be satisfied only by a grievance filed with the authority of a bargaining agent, so that an individual cannot stop the running of time by initiating a claim. Deprived of the power to safeguard their own interests, employees should be protected against abuses of a union's authority. Trade union liability can be grounded upon another base. Union officials are held out, by a bargaining agent, to be versed, to a greater or lesser degree, in contract administration, so that employees rely upon them to handle grievances properly. An individual who is vaguely cognizant of a time limit may not bother with it because a union official undertakes either expressly or implicitly, by taking control of a grievance, to attend to the matter. This type of reliance is reasonable and should be protected. Moreover, the services offered by a trade union are not gratuitous, as almost all employees pay for this assistance through union dues. The law helps a union to collect membership fees by enforcing union security clauses and by requiring an employer to agree to insert an agency shop clause in a collective agreement. The payment made by an employee for the assistance of a union, especially forced payment, also justifies holding a bargaining agent liable for mistakes which ought to have been avoided. For all of those reasons, a loss arising out of perfunctory conduct should be lifted from the shoulders of an individual and shared among all union members.

20. The perfunctory standard must be elaborated with sensitivity both to the character of particular union officials and to the nature of the chores they perform. In Ford Motor Company of Canada, supra, at para. 40, a distinction was drawn between full-time officials with extensive experience in grievance processing and employee volunteers who help out with contract administration in their spare time. As a general rule, the behaviour of a union representative should be judged by reference to the conduct of a reasonable person with a similar background. Any other approach would drastically curtail the freedom of union members — to decide not only who they wish to represent them but also how much money they want to contribute to contract administration — by permitting a labour relations board to second guess their determination. So long as all employees in the same circumstances receive equal representation, there is little danger that leaving the choice of representatives in the hands of the collective will lead to the derogation of individual rights.

21. The tasks carried out in the course of contract administration are as disparate as union officials. In some contexts, the appropriate course of action is manifest. As a grievance ought to be processed in conformity with time limits, a failure to do so is obviously an error, and, violates section 68 if attributable to a lack of proper care. But the correct course to follow is not always so clear. Assessing the probability that a contract claim would be allowed by an arbitrator is an undertaking that readily lends itself to differences of opinion, due to the vagaries of interpreting contract clauses and of proving facts. For this reason, a labour relations board should not lightly conclude that a bargaining agent's assessment of the merit of a grievance is wrong, let alone caused by perfunctory behaviour. See DeHavilland Aircraft of Canada Ltd., [1979] OLRB Rep. Oct. 933, at para. 17.

22. Was the conduct of the union officials who handled Mr. Chafchak's grievance perfunctory? Remember the complainant was discharged on August 3rd, after being absent from work on ten days commencing on July 20th, and he presented three doctors notes indicating that he received medical treatment on Wednesday, July 21st, Friday, July 30th and Wednesday, August 4th. Before a decision was made to withdraw the grievance, representatives of the union were aware that he had also been examined by a doctor on Tuesday, July 27th. Upon talking to Dr. Javanovic, Logan had been told that Chafchak was ill on July 27th and 30th when seen by this doctor. Logan also learned that Dr. Javanovic had no direct knowledge of the complainant's medical condition prior to July 27th and could offer no opinion on this subject. Against this background, the union officials decided that Chafchak could not substantiate his claim that he was sick throughout his absence. No effort was made to identify the doctor who had examined him on July 21st, at the Hotel Dieu Hospital or to contact the specialist who saw the complainant on August 4th. But the most troublesome aspect of this case is the failure of union officials to tell Mr. Chafchak that the medical evidence provided by him was not, in their opinion, adequate to support his grievance. At the first screening committee meeting, he was told that he was on "firm ground" if the medical notes were sound. The next communication he received from the union was the message that his grievance had been withdrawn. By failing to consult the complainant before taking this step, the union denied him an opportunity to provide additional medical evidence from the two doctors he was known by the union to have seen on July 21st and August 4th. Given the evidence already before the union and the significance of a discharge grievance, this conduct was nothing short of perfunctory.

23. The appropriate relief is to send the grievance to arbitration. The Board must consider how financial liability for back pay is to be apportioned if Mr. Chafchak succeeds before an arbitrator. In that event, the union's violation of section 68 would have increased the duration of the period of unemployment for which back pay is owing. The employer ought not to bear the financial liability for the loss attributable to the union's misconduct. Therefore, if the grievance succeeds, the employer's liability should be restricted to the period after the date of this decision. This liability is roughly equivalent to that to which the employer would have been exposed had the union voluntarily carried the grievance to arbitration in the first place. Any loss arising between the dismissal and the date of this decision ought to be shared between the complainant and the respondent. He bears some responsibility for this loss because of his delay. But union officials are also partly responsible for his plight, because they violated section 68 and even an aggrieved employee who launches a complaint with reasonable speed would not obtain redress from the Board until a substantial amount of time had elapsed from the abandonment of the grievance. Recognizing that any estimation lacks precision, I would fix this period at four months. The union is responsible for losses incurred in this period. As the total period for which liability is to be shared between the union and the complainant is approximately twenty months, the union ought to hold liable for 4/20ths of the total loss over this time span. The residual loss should rest with the complainant. This contingent order concerning damages subjects the union to conflicting interests at arbitration — if the grievance is won the union will be exposed to financial liability. In response to this conflict of interests, we direct the respondent to retain counsel jointly chosen by the union and Mr. Chafchak. This direction is analogous to one made in Leonard Murphy, [1977] OLRB Rep. Mar. 146. Such an order is also in keeping with the practice of other labour relations boards. See Adams, [1976] 1 Can. LRBR 192 (B.C.); and Massicotte, [1980] 1 CLRBR 427 (Can) upheld sub. nom. Teamsters v. Massicotte, [1982] 1 S.C.R. 720.

24. The Board directs that:

(a) the respondent forthwith submit Mr. Chafchak's grievance to arbitration for a hearing on its merits;

(b) the intervener forthwith take any steps necessary to bring the grievance to arbitration and waive any preliminary objections to a hearing on the merits;

(c) in the event the grievance is upheld and a board of arbitration makes an order for compensation, the respondent pay one-fifth of the amount owing for the period between August 3, 1982 and the date hereof and the complainant be denied compensation for the rest of the loss incurred during this period.

A posting of a notice to employees is not directed because counsel for the complainant did not request a posting and the facts at hand are not such as to prompt the Board to direct a posting on its own motion.