Borg Westermatin v. Canadian Union of Public Employees, Local 1692, 1984 CanLII 1071

[1984] OLRB Rep. February 286

1307-83-U Borg Westermatin, Complainant, v. Canadian Union of Public Employees, Local 1692, Respondent, v. North York General Hospital, Intervener

BEFORE: Richard M. Brown, Vice-Chairman.

APPEARANCES: Borg Westermann, David Poulter, for the complainant; Brian Atkinson, Helen O'Regan, William McKinnon and Gary Dennis for the respondent; Brenda Bowlby and Donna Gillis for the intervener.

DECISION OF THE BOARD; February 3, 1984

1. Borg Westermann (the "complainant") contended that Local 1692 of the Canadian Union of Public Employees (the "union") has contravened section 68 of the Labour Relations Act. The complaint arises out of the way that grievances, filed by Mr. Westermann, were handled by union officials.

I

2. The complainant worked in the kitchen of North York General Hospital (the "employer") from 1978 until he was laid off from the position of head baker in the fall of 1982. The earliest of the grievances which form the basis of this complaint was filed on February 16, 1982, and concerns a letter of warning issued on February 5th to Mr. Westermann by his employer:

There have been a number of recent incidences with regard to your performance that I advise are unacceptable. They are as follows:

1. On January 27, 1982, the baking refrigerator was cleaned during your absence. The only item in the refrigerator that was dated was the custard. During the week of January 18, 1982, Mrs. H. Carlin informed you that all custards, puddings, and cream pies must be dated. This dating is a standard of the Dietetic Services Department to ensure that the food served is of high quality.

2. On February 2, 1982, the Chef was in the Bake Shop with you and smelled rotting eggs. You were preparing to use this mixture in baking.

3. Recently, two of our Dietetic Interns observed you cracking a full case of eggs. These eggs were not used by you and remained outside the refrigerator all day.

4. On February 4, 1982, you removed a case of eggs from the fridge and left the Hospital without returning the eggs to the fridge.

All of the above actions by you are in breach of standards established by the Dietetic Services Department. Our standards have been outlined to you on a number of occasions.

Furthermore, an incident occurred on February 2, 1982. At approximately 1025 hours there were a few items in the Cafeteria containers for coffee break. Mrs. Maxwell asked you for more items. An hour later she had only received tea biscuits and went back herself to get other baked goods. At this point you began to shout at her. Your shouting was also heard by the Chef. This behaviour will not be tolerated. I ask for your cooperation in working effectively with other staff members in order that this type of incidence can be avoided.

In order to assist you to adhere to the Departmental standards, I outline them as follows:

1. Label and date all items in the bake shop refrigerator. An example would be muffin mix, custards, puddings, etc.

2. All items must be covered in the refrigerator as this is a requirement of the North York Health Inspector.

3. Cream pies and cream puddings must be made fresh each day, except on the weekends when two days is the maximum time they should be kept.

4. Work closely with Ismet Hysenaj and Mrs. H. Carlin to develop new bake shop recipes, to ensure they are tested and of proper quality for selling in the Cafeteria.

This letter serves as a warning to you that your performance must improve.

The grievance sought the complete withdrawal of this letter, alleging violations of three contract clauses — the management rights clause, the no discrimination clause and Article 8.01 which is set out below:

8.01 Copies of Disciplinary Notices concerning warnings, suspensions and discharges shall be given to the employee concerned and the Union. It is agreed that any written reprimand which is to be placed on the record of any employee shall be recorded within a reasonable time after the occurrence of the matter which is the subject of the written reprimand or within a reasonable time after the Hospital has become aware of the occurrence. The Hospital will send a copy of such written reprimand to the Union and to the employees concerned and it is agreed that the time period for filing any grievances which propose the elimination of the written notice of discipline shall begin on the fifth day after the reprimand is issued. An employee, who has completed his probationary period and who has been called to a meeting by his Supervisor, or other management person, for the purpose of receiving disciplinary suspension or discharge shall be advised of the purpose of the meeting and shall have the right to request the presence of a Union representative. If the Steward designated to represent the employee is not available, the employee may request the assistance of one of the other Stewards. The Steward attending the meeting must have obtained permission of his supervisor.

(emphasis added)

Mr. Westermann alleges that he was denied the representation of a union official when he was given the employer's letter of February 5th.

3. At the first step of the grievance procedure, Mrs. Denise Read, the manager of dietetic services, refused to withdraw the letter; but at the step two grievance meeting held on February 16th, the employer agreed to strike out the last sentence of the February 5th letter. With this deletion, the letter was no longer an express warning, but Mrs. Gillis, who is in charge of personnel matters at the hospital, conceded it would remain in the grievor's file. In a letter to Mrs. Read dated March 4th, Mr. Westermann indicated that his grievance would not be proceeding to arbitration:

As you know I filed a grievance with respect to the letter of February 5th, and the answer received was that the discipline contained in that letter, namely the warning, would be deleted. I was not content with this, for I deny the allegations contained in that letter. I am particularly disturbed by the suggestion that I would endanger the health of patients at the hospital by using rotten eggs. This suggestion is preposterous. In view of the withdrawal of the warning, however, I have been advised that I no longer can pursue this grievance under the Collective Agreement, for there is no longer any discipline involved, but I wish to go on record as rejecting the allegations made against me. If any future reference is made to these allegations in dealings between me and the hospital, I shall dispute the hospital's right to refer to them for the reason that no discipline is now involved, thus precluding my right to dispute these allegations through the grievance procedure.

However, in a letter written the next day to Donna Gillis, the complainant stated his intention to go before an arbitrator. On March 9th, William MacKinnon the president of Local 1692, informed Mr. Westermann that the grievance would not be arbitrated:

On Wednesday March 3, 1982 a meeting was called to Mrs. Gillis office. Present were myself, Garry Dennis, Bruce Barton and Pat O'Brien.

Mrs. Gillis informed us that the last line concerning the word "Warning" has been withdrawn from your letter. This was the basis of your grievance. The letter is now referred to as a letter of instruction relating to your job activities.

In a conversation with officials at Union Headquarters I was informed that management had the right to place letters of instruction on your record though not as a basis for future discipline.

The Grievance Committee therefore recommend that your grievance not be filed or forwarded your grievance to arbitration as we definitely have agreed that this is not an arbitrable matter; that in fact your grievance has succeeded.

Trusting that you find our recommendation is the best and only one that we would reach after reviewing all the facts. If you wish to dispute the decision of the grievance committee, you may appeal to the next membership meeting on April 13th, 1982.

4. The complainant brought his grievance before a membership meeting. The decision taken there was not to arbitrate, but to once again ask the employer to remove the allegations to which Mr. Westermann objected. This request was made in a letter, dated March 25th, from Mr. MacKinnon to Mrs. Gillis. In the meantime, on March 14th Mr. Westermatin wrote to Mrs. Gillis, saying that the withdrawal of the accusation relating to rotten eggs was the only remedy he would accept. He also wrote letters to others at North York General Hospital, including two to its president. At a meeting held on March 25th, Mrs. Gillis told Mr. Westermann that the employer was willing to delete the passages in the February 5th letter to which he took exception. (This meeting occurred before the employer received the union's letter of March 25th). Having acheived what he asked for in his last correspondence with the employer, Mr. Westermann was not satisfied. On March 29th, he demanded that the entire "letter of warning" be removed from his personal file and be replaced by a "letter of counsel and direction". This the employer would not do.

5. David Poulter, who assisted in the presentation of the complaint, testified that sometime in 1980 or 1981 Mr. Same, the then administrator of the hospital, publicly thanked Mr. Westermann for his skilled contribution to the welfare of patients and staff. Walter Lavigne, a maintenance employee, also attested to the quality of Mr. Westermann's baking.

6. Pat O'Brien, the union's recording secretary, testified that the reason why this grievance was not arbitrated was that it could not be won, as the amended letter was not disciplinary in nature. A secondary reason was that the union was experiencing financial problems as a result of a recent strike.

7. Mr. Westermann's layoff in the Fall of 1982 precipitated two grievances. On September 1, 1982, he received a letter from Mrs. Read notifying him that he was to be laid off:

As a result of the conversion of an Ingredient Control/Cook-Chill system in the Dietetic Services Department, the position of Head Baker will become redundant on September 30, 1982.

The length of your seniority entitled you to "bump" several employees in C.U.P.E. classifications in the Dietetic Services, Housekeeping and Central Supply Departments. Before assigning you to a new job we will have to determine if you are capable of doing the work. If you are interested in pursuing your employment would you please speak to me so that arrangements can be made to facilitate your transfer to a new position.

Please indicate to me, in writing, no later than Friday, September 3, 1982, whether or not you want to take another position.

All baked goods had previously been fully prepared in the hospital, but from this time forward bakery items were made from mix or purchased in a frozen state. Also laid off at this time were an employee classified as a Cook II, who bumped into a housekeeping job, and a student who has since worked only on a casual basis. Mr. Westermann wrote to Mrs. Read on September 3rd:

I am in receipt of your letter dated September 1, 1982 handed to me at 1 P.M. the same day. I fully understand the content and your request that you require an answer by September 3, 1982. Mrs. Read I am convinced you must realize that handing me a letter dated September and expecting a practical answer by September 3 is unrealistic. The decision I make will effect my whole working life. I therefore cannot at this stage give you a truthful answer.

I do however intend to submit a grievance regarding the present situation.

8. A grievance, filed on September 3rd, alleged that the employer had contracted out work in violation of the collective agreement. Mrs. Read replied that the complainant was laid off in accordance with the contract and, in the alternative, any contracting out was properly done in the interests of efficiency. The employer subsequently took the position that technological change had rendered the job of head baker redundant. On September 13th, Mrs. Gillis met with several union representatives — including Mr. MacKinnon and Mr. Brian Atkinson, a national representative — at a second stage grievance meeting. By letter dated September 21st, Mr. MacKinnon informed the complainant that the union's grievance committee had decided there was "no case" to present to arbitration, and advised him of his right to appeal their decision to the union membership. Mr. Westermann declined to take a job in the housekeeping department and was laid off on September 30, 1982. He has not returned to work.

9. The following clauses in the collective agreement are pertinent to this grievance:

10.01 In the event of a lay-off because of lack of work, the employees with least seniority will be first laid off, provided that the remaining employees have the necessary skill and ability to perform the available work.

10.03 The Hospitals will not contract out any work with the objective of effecting a lay-off or reducing the regular hourly rate of pay of any employee in the bargaining unit. The parties agree to consult on a monthly basis or as may be otherwise mutually agreed as to the Hospital's requirements for the contracting out of services.

10.04 The Hospital undertakes to notify the Union in advance, so far as practicable, of any technological changes which the Hospital has decided to introduce which will significantly change the status of employees within the bargaining unit.

The Hospital agrees to discuss with the Union the effect of such technological changes on the employment status of employees and to consider practical ways and means of minimizing the adverse effect, if any, upon employees concerned.

In any event of the proposed layoff at the Hospital of a permanent or long term nature, the Hospital will:

a) meet with the union through the Labour Management Committee to review the following:

i) the reason causing the layoff

ii) the service the Hospital will undertake after the layoff

iii) the method of implementation including the areas of cutback and employees to be laid off.

10. A second grievance relating to the layoff was apparently filed by the complainant on January 12, 1983. A copy of this grievance was submitted to the Board, after the hearing in this matter, by the complainant. No mention was made of this grievance at the hearing, despite repeated requests made by the Board to Mr. Westermann to identify all of the grievances that he believed were improperly handled by the union. Consequently, the union called no evidence with respect to this matter. In these circumstances, the Board cannot properly entertain a complaint relating to the disposition of this grievance.

11. The final grievance was filed on September 10, 1982, claiming that since 1977 the complainant had been wrongfully denied a "skilled tradesman allowance". The reply from Mrs. Read pointed out that the collective agreement did not call for any such allowance and that Mr. Westermatin had always been paid at the rate contained in the collective agreement for the job he performed. By letter dated October 6, 1982, Mr. Atkinson advised the complainant that the union grievance committee agreed with the employer's reply. The collective agreement makes no mention of a skilled trades allowance. Several years ago, an interest arbitrator awarded a thirty cent premium to painter, plumbers, carpenters, electricians and stationary engineers. That award also stated that "hospitals may increase the rates for other skilled tradesmen". The wage rates for the named trades were adjusted accordingly. Mr. MacKinnon testified that the complainant has on several occasions broached the subject of a skilled trades allowance for bakers. According to Mr. MacKinnon, he relayed this concern to the central bargaining committee that negotiates on behalf of employees in this hospital. David Poulter testified that sometime in 1980 or 1981 he overheard Mr. MacKinnon say that Mr. Westermann was not entitled to a tradesmen allowance because he did not have Canadian papers for his trade and was not even a Canadian citizen. Mr. MacKinnon denied making these statements.

12. Mr. Westermann contended that he was not advised of labour-management meetings at which his grievances were discussed. By letter dated March 5, 1982, he asked Mrs. Read, Mrs. Gillis and Pat O'Brien to provide notice of any such meetings. Mr. MacKinnon testified that the complainant attended the grievance meeting concerning the letter of February 5th. MacKinnon could recall only one such meeting at which Westermann was not present, but MacKinnon was not sure that he attended every meeting. Mr. Westermann did not testify as to which meetings he was invited to attend, even though he was invited several times to give evidence. According to Mr. MacKinnon, grievors sometimes, but not always, attend grievance meetings.

13. Evidence of heated exchanges between the complainant and union officials was also adduced. David Yuen, who was a cook at the hospital, stated he overheard Mr. Westermann and Mr. MacKinnon arguing about a grievance in the cafeteria. According to Pat O'Brien, there was often friction at union meetings between the complainant and Randy Millage, the former national representative. Mr. Westermatin had been the president of Local 1697 for several months before Mr. MacKinnon assumed that position in February 1982. According to Mr. MacKinnon, after this succession occurred, he found talking to the complainant to be difficult. Mr. Poulter testified that Mr. MacKinnon stormed out of a union meeting in the summer of 1982 when someone raised the topic of the union's deficit.

II

14. 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:

15. 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.

16. 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.

III

16. 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.

17. 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. As this Board said in Ford Motor Company of Canada, [1973] OLRB Rep. Oct. 519 at para. 38, a union is under "a duty to act fairly in the interests of all members, minority factions, as well as majority factions, individual employees as well as the collective group".

18. In that decision, the Board identified three collective concerns upon which an individual employee's contract claim may impinge. The resolution of many grievances calls for the reconciliation of conflicting job interests. When two persons vie for a single job in the context of a promotion or layoff, a grievor's gain is someone else's immediate loss. More often, the disposition of a grievance will have a prospective effect upon members of the bargaining unit. An arbitration award (or even a settlement) will shape future arbitral decisions (and accommodations) to the detriment of some workers and to the benefit of others. As Professor Cox has demonstrated in "Rights under a Collective Agreement" (1956), 69 Harv. L.R. 601, conflict among employees is not limited to matters of layoffs and promotions. On the other hand, some grievances — for example, most discharge cases — pose no threat to the jobs of a grievor' s fellow workers. See Ford Motor Company of Canada, supra, at para. 38, 41 and 42.

19. The second group interest is in the smooth functioning of the grievance process. A well-oiled settlement mechanism is essential to a healthy collective bargaining relationship for two reasons. An agreement crafted by the parties is inherently more sensitive to their needs than is an award fashioned by a third party, who necessarily knows less than they do about the situation and their priorities and is constrained by existing contractual rights. Another advantage of informal settlements is the speed with which they can be fashioned as compared with the time necessary to adjudicate a dispute. These virtues of private accommodation can only be realized if a union does not press undeserving grievances and management responds with an equally cooperative attitude to meritorious claims. See Ford Motor Company of Canada, supra, at para. 42, 43 and 45.

20. Finally, the carriage of an employee claim through the grievance process to arbitration also consumes collective resources. Labour-management meetings occupy the time of paid representatives and distract volunteers from other activities. Arbitrators command large fees and the services of lawyers, who frequently appear as counsel at hearings, are expensive. These costs are borne not by a grievor, but by a trade union, or, more accurately, union members. See Ford Motor Company of Canada, supra, at para. 42.

21. In deciding the fate of a grievance, a union official must weigh these group concerns against the interests of the grievor. The force of a grievor's claim will vary greatly from one case to another. The benefit sought by a grievor may range from a few hours' pay in compensation for a missed overtime assignment to continued employment. An employee who is terminated is deprived of not only wages, but pension contributions, welfare benefits, and seniority rights, and severance will often cause emotional trauma and social upheaval as well. The force of an individual's assertion of a contractual right also depends upon the degree of support which a grievance finds in both the facts and contractual language which may be highly specific, but frequently is as open-textured as a clause permitting discharge only for just cause. The greater the merit of a grievance, the higher is the probability that it could be won and that an employee is prejudiced if it is dropped. Moreover, contractual rights may give rise to a reasonable expectation of a contractual advantage and expectation often leads to detrimental reliance. For example, a person who is in line for a merit increase may decline an offer of other employment. Finally, the past practice of a union may add weight to an employee's claim to enforce a collective agreement. A union which has previously arbitrated all disputes of a certain type — for example, discharge cases — but subsequently abandons such as grievances, violates the notion of equal treatment. Past practice which is known to an employee generates an expectation of continuity. See generally Rayonier Canada (B. C.) Ltd., [1975] 2 Can. LRBR 196 (B.C.) at 204; Prinesdomu, supra, at para. 27; and Barber Coleman of Canada Ltd., [1976] OLRB Rep. Oct. 13, at para. 17; [1977] 1 Can. LRBR 182, at 187.

22. These are the conflicting individual and collective interests that arise when a decision is made whether or not to press a grievance. To avoid being arbitrary, a union official must consider the relevant factors and engage in a "rational" process of decision-making: see Prinesdomu, supra, at para. 25. Such an approach to labour board review entails a high degree of deference to bargaining agents. Legal restraint is amply justified because a trade union is better able than a labour relations board to reconcile competing job interests, to ration the limited capital of the grievance settlement process, and to allocate group funds. These are essentially political tasks not amenable to legal regulation. In the words of Archibald Cox:

When the interests of several groups conflict, or future needs run contrary to present desires, or when the individual's claim endangers group interests, the union's function is to resolve the competition by reaching in accommodation of striking a balance. The process is political. It involved a melange of power, numerical strength, mutual aid, reason, prejudice, and emotion. Limits must be placed on the authority of the group, but within the zone of fairness and rationality this method of self-government probably works better than the edicts of any outside tribunal. (Law and the National Labor Policy, (1960), at 83 to 84.)

IV

23. 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 of 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 past. 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.

24. 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".

25. 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.

26. 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 determinations. 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.

27. The tasks carried 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.

V

28. The tasks performed by union officials and the legal duty by which their conduct is judged have been described. The complaint at hand raises another aspect of the duty of fair representation. The complainant contends he was legally entitled to attend meetings of labour and management representatives. A bargaining agent's claim to ultimate control over the grievance process has long been recognized. But does the duty of fair representation constrain this authority by granting a grievor a right to attend grievance meetings?

29. In Chrysler Canada Limited, [1982] OLRB Rep. Oct. 1417, at para. 31, the Board answered this question in the negative:

Moreover, I find, as a fact, that it is not the practice of the union and employer to have the grievor present when the grievance is being discussed with company representatives, nor is that practice unreasonable. Persons familiar with the litigation process will know that settlement discussions can often proceed more productively in the absence of the aggrieved individuals, and this is most likely to have been true in the complainant's case. The complainant was in no mood to compromise or co-operate and his presence would likely have only inflamed the situation. Certainly, I do not think a violation of section 68 can be grounded upon a long-standing practice wherein the parties to the collective agreement choose to pursue settlement discussions in the absence of the grievor. There is nothing arbitrary about that practice, nor was their any bad faith or discrimination in following it in Dwyer's case.

The same tack was taken by the British Columbia Labour Relations Board in Cowichan District Hospital, (No. 56/76) and by the United States Court of Appeals for the Sixth Circuit in Whitten v. Anchor Motor Freight, 90 LRRM 2161 (1975).

30. We concur in the result reached in these decisions. As this Board observed in Chrysler Canada Limited, supra, the presence of an aggrieved person may impair the settlement process to his or her disadvantage. But there is an additional reason for excluding grievors from grievance meetings. The collective interests effected by the disposition of a grievance have been outlined above. The presence of the grievor may unduly inhibit a union's efforts to arrive at an accommodation that strikes an appropriate balance between the collective and the interests of the individual. In most cases, these two concerns together will outweigh the benefit which might flow from the presence of grievors — including the psychic satisfaction of participation and any information which employees may offer about their own situation. In short, a general practice of not admitting grievors to grievance meetings cannot be said to be arbitrary, except perhaps in exceptional circumstances. Nor can a practice that is generally followed be discriminatory or in bad faith. However, to conclude that a grievor is not entitled to be present does not imply that he or she need not be consulted in advance of such a meeting and later be informed of what transpires there. In addition, a union which usually invites grievors to participate in the grievance process may be called upon to demonstrate that any departure from this pattern is not arbitrary, discriminatory or in bad faith.

VI

31. Was the duty of fair representation violated in the case at hand? Mr. Westermatin asked to be notified of all grievance meetings, and he did not attend at least one. But the evidence does not disclose whether or not he was invited to this meeting and declined the union's offer. If an invitation was extended and rejected, he would have no complaint. As Mr. Westermatin failed to call any evidence to establish that this did not occur, his absence from one meeting does not constitute a breach of section 68. However, the outcome would probably have been no different if the union was proven to have excluded the complainant, even though in this collective bargaining relationship grievors are sometimes permitted to attend grievance meetings. The record demonstrates that Mr. Westermann is prone to antagonistic behaviour — conduct that was not always in his own best interests — which would have provided justification for treating him differently than other employees.

32. The union's failure to arbitrate the complainant's grievances cannot be described as discriminatory or in bad faith. Was the union's conduct arbitrary by reference to the analytical framework set out above? The assessment that the grievance relating to the letter of February 5th would not be won at arbitration, under any of the articles cited in the grievance, was not perfunctory. How the letter could violate the management rights clause is hard to imagine. The right to be accompanied by a union representative, set out in Article 8.01, applies only to employees who are suspended or discharged, not to those who are presented with letters. The grievance did not refer to the clause permitting discipline only for just cause, but, even if this protection had been invoked, there would have been a substantial risk of losing at arbitration, as the letter may no longer have been disciplinary in nature after the warning was deleted. Nor was the interest balance struck by the union unreasonable. Even if Mr. Westermann had been assured of success at arbitration — which he was not — he stood to gain very little, as the allegations to which he objected had been struck from the letter. On the other side of the ledger, pursuing this grievance would have seriously impaired the informal settlement process. Remember that the union had succeeded in removing the warning from the letter, and the employer subsequently deleted all references to rotten eggs. Despite his earlier statement that this remedy would be acceptable to him, Mr. Westermann then demanded the complete withdrawal of the letter. By changing his position in this way, Mr. Westermann was not acting in good faith. Common sense dictates that one ought not to put forward increased demands after the other side has agreed to proposals made at an earlier date. Engaging in this type of conduct is almost certain to ensure that the party opposite will be reluctant to make concessions in the future. The union's refusal to assist Mr. Westermann after he elevated his demands is hardly surprising. The union was justified in refusing to expend its members resources to arbitrate the grievance.

33. In the second grievance. Mr. Westermann alleged that the employer had contracted out work in contravention of Article 10.03. The employer responded that what had occurred was technological change, permitted by Article 10.04; the union agreed. Was this interpretation of the collective agreement perfunctory? The notion of contracting out might be understood to connote an arrangement whereby the services previously performed by employees covered by the collective agreement are transferred to persons working for another employer. Under this definition, work would be contracted out if the hospital arranged for a local bake shop to supply baked goods produced "from scratch" by bakers performing tasks the same as, or similar to, the work that had been done by the hospital's own employees in the past. In this example, the people doing the work have changed, but the work processes have remained substantially the same. Work has been contracted out in the sense that the same, or similar, work is still being performed, only by different people. But in the situation at hand, there has been a dramatic change in the process by which baked goods are produced. Goods which were previously prepared from basic ingredients by a hospital baker are being produced through the combined efforts of people employed elsewhere to manufacture mixes and frozen products and hospital employees who turn these prepared foods into a finished product. Obviously, the assignment of these new tasks to hospital employees does not involve the contracting out of work, and the same might be said about the processes being carried out outside the hospital. This alteration in the method of production might be labelled as a technological change rather than as the contracting out of work, especially under a collective agreement like this one which draws a sharp distinction between contracting out and technological change. To view the collective agreement in this .way is not perfunctory. Adopting this interpretation, the union decided that the complainant's interest in perusing the grievance was outweighed by competing concerns. Mr. Westermann faced reassignment to a housekeeping job. Against this hardship, the union had to weigh the expenditure of funds on a case that might well be lost. The decision made was not unreasonable.

34. The grievance relating to a skilled trades rate had absolutely no basis in the collective agreement. There is no such premium and Mr. Westermann has always been paid the amount fixed in the contract. The union's decision not to arbitrate this grievance cannot be challenged.

35. The complaint is dismissed.