Ontario Labour Relations Board

[1984] OLRB Rep. November 1609

0314-84-U Sandra Hall, Complainant, v. International Union, United Auto­mobile, Aerospace and Agricultural Implement Workers of America (U.A.W.) and its Local 1421 and Smith & Stone (1982) Inc., Respondents

BEFORE: Paula Knopf, Vice-Chairman.

APPEARANCES: C A. M. Hillmer, Sandra M. Hall and Adele Worland for the complainant; L. A. MacLean and Frank Kenny for the respondent union; Heather J. Laing and Larry Sylvester for the respondent company.

DECISION OF THE BOARD; November 20, 1984

1. This is a complaint filed under section 89 of the Labour Relations Act alleging that the complainant, Sandra Hall, has been dealt with by the respondent trade union in a manner which is in violation of section 68 of the Act. Section 68 states:

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.

Specifically, the complainant alleges that the union's conduct in this case amounts to arbitrari­ness because of its International Representative's alleged failure to properly assess, determine and/or appreciate the law applicable to the complainant's case and thus adequately or properly proceed with her case at the third step grievance meeting or at the arbitration hearing. Thus, the complaint involves a question of the quality of representation accorded the complainant by the trade union.

2. The Board heard three days of evidence on this case. Given the relatively narrow grounds of complaint in this case, much of the factual background to the matter is not strictly relevant to the ultimate issues. However, this background is important to put the complaint in its proper perspective. The complainant was hired by the respondent company on May 9, 1983. At the outset of her employment, she knew she would be on probation for 50 working days before she would be considered to be a regular or permanent employee. On August 9, 1983, the company obtained the union's consent to extend Mrs. Hall's probationary period by ten days. It is clear that the complainant was never notified of this extension at that time by either the union or the company. At all material times, both the company and the union have taken the position that it was the other's responsibility to notify Mrs. Hall of the extension of her probationary arrangement. In any event, on August 22, 1983, before the "extended probation" had expired, the company discharged the complainant. The stated reason for the discharge was "unsatisfactory work performance". Again, at all material times, the company's position has been that the complainant was a probationary employee at the time of her discharge.

3. Upon being discharged, the complainant almost immediately solicited the help of the union. She signed a grievance form protesting the discharge. The President of the union did not file that grievance with the company because he believed that Mrs. Hall was a probationary employee at the time of the discharge and as such not entitled to grieve her dismissal under their collective agreement. But when this fact came to the attention of Frank Kenny, the union's International Representative, he instructed the local union to immediately refile the complain­ant's grievance as well as a policy grievance to protest the discharge. These latter two grievances were processed together through the three stages of the grievance procedures under the collective agreement. While they were being processed, the union's plant committee and Mr. Kenny were investigating the complainant's case by checking her employment records with those of the company in an effort to determine whether she was in fact a probationary employee or a permanent employee at the time of her discharge. The reason this question arose was because of confusion over the calculation of part days worked and whether they would apply towards the fulfillment of the probationary period. In any event, it is clear from the evidence and readily conceded by the complainant that the union and Mr. Kenny did a thorough and responsible job in investigating her probationary status. Further, the complainant took the position that any errors made by the union regarding the filing of the grievance initially or the handling of the extension of the probation were cured by bringing the case to arbitration.

4. Eventually, a "third step" meeting under the collective agreement was held with management in an attempt to resolve the matter. Mr. Kenny was present at that meeting with the union committee as well as management. Both the merits of the alleged cause for discharge and the issue of probationary status were discussed by the parties. It was Mr. Kenny's impression that the company was fundamentally resting its case on its unfettered right to discharge Mrs. Hall because of her probationary status. The company's formal third step response also referred to the complainant's failure to obtain seniority at the time of her termination. No settlement was achieved at that meeting. After approval of the union's membership was obtained, the union proceeded to refer the case to arbitration.

5. In preparation for the arbitration, Mr. Kenny and the union committee met on several occasions with the complainant at her home. Each meeting lasted at least one to one and a half hours. Mrs. Hall and Mr. Kenny both recalled discussing the facts surrounding the number of days she had worked as well as her actual work performance records. Thus the merits of the discharge as well as the probationary status issues were explored with Mrs. Hall as well as other potential union witnesses. Mr. Kenny prepared statements for each witness that he intended to call at the arbitration. Two of these statements were filed before this Board including that of Mrs. Hall. Both concentrate on the facts surrounding the extension of the probationary period and the termination. Neither deal with the merits of the case regarding job performance.

6. Prior to the arbitration hearing, Mr. Kenny asked the complainant if she wanted him to try once more to reach a settlement for her. His uncontradicted evidence was that he advised her that he believed she had a weak case at arbitration because he had concluded that she would be considered to be a probationary employee unless he could convince an arbitrator that the extension of the probation was invalid. Despite this, Mr. Kenny says that the complainant advised him not to pursue settlement attempts but instead to proceed through to arbitration.

7. The case came to hearing before Professor Brandt, sitting as a sole arbitrator, on March 1, 1984. Mr. Kenny represented the complainant. Mr. Kenney testified that he was prepared to argue the merits of the case on job performance as well as the fact that the complainant should be considered to be a permanent employee because she had never received notice of the extension of the probationary period. Mr. Kenny described this latter argument as "grasping at straws" but he felt that that was all that was available to the complainant. After opening statements were made by the company's representative and Mr. Kenny, the arbitrator invited the representatives to recess to see if the issues in the case could be narrowed. After this recess, the parties came to the mutual agreement that was summarized by Professor Brandt in his award on page 3 as follows:

The parties agreed that the success or failure of the Grievance was to turn entirely on the issue as to whether or not the company was obliged to notify the grievor of an agreed upon extension to her probationary period and whether or not, assuming such an obligation to exist, the failure of the company to discharge it had the effect of rendering the agreement to extend her probationary period null and void thereby resulting in her having worked at the probationary period established under the collective agreement.

(emphasis added)

Therefore, because of the agreement reached by the parties at the arbitration, the parties did not call any evidence on the merits of the discharge itself. If the extension of the probation had been ruled to be invalid because of the company's failure to notify the complainant, the parties understood that the complainant would have been reinstated. If the arbitrator were to hold that it was the union's responsibility to notify the complainant, then the parties understood that the discharge would have been upheld.

8. After hearing witnesses for both parties, Professor Brandt released a decision dated March 8, 1984 reaching the following conclusions:

I conclude therefore that there was no consent from Mrs. Hall to a ten working day extension of her probationary period.

Given that conclusion the question which must now be addressed is whether or not it was the union or the company which had the obligation to obtain that consent. I have no difficulty in concluding that this obligation rests upon the union.... Thus the situation is that the union and the company have reached what is in essence an illegal agreement changing the conditions of employment of an employee. It is illegal because it did not have the consent of the employee and, insofar as it was the union's obligation to obtain that consent, it is the failure of the union in that regard which has caused this agreement to be illegal. In these circumstances, the union should now be estopped from claiming that the agreement is illegal and insisting that the grievor's rights be determined by reference to article 17.02 of the collective agreement.... [As] a matter of law, the union was mistaken in its assess­ment of its own duties and responsibilities in connection with one of its members and the responsibility for the prejudicial result which Mrs. Hall has suffered must lay with the union.

Given the issue as framed by the parties, the grievance was therefore dismissed.

9. It is clear that Professor Brandt was never asked by either party to consider the question of whether or not the arbitration board had jurisdiction to consider the merits of the discharge regarding job performance even if it was concluded that Mrs. Hall was still a probationary employee. Professor Brandt notes on page 7 of his award:

In view of the agreement by the parties to narrow the issue to this one point no evidence was led or argument advanced with respect to the question as to whether or not, notwithstanding the fact that the grievor was a probation­ary employee, the decision of the company was still subject to arbitral review by reference to a standard somewhat lower than that which would apply in respect of seniority employees.

Further, Mr. Kenny admits that his view of the collective agreement was that probationary employees had no right to grieve a discharge or have it arbitrated. Further, his research into the case did not reveal to him the possibility of making such an argument. It is clear that he simply was unaware of the concept that a probationary employee may have had a right to grieve under this collective agreement.

10. It is solely this unawareness and failure to raise the argument that a probationary employee can grieve on the merits of the discharge at the third step grievance meeting or at the arbitration that the complainant alleges amounts to the arbitrary conduct of Mr. Kenny and the union in this case. Counsel for the complainant referred to the emerging body of case law flowing from the Divisional Court's decision in Toronto Hydro-Electric System and Canadian Union of Public Employees, Local 1(1981) 1980 CanLII 1784 (ON HCJ), 29 O.R. (2d) 18; leave to appeal to the Court of Appeal denied, (1981) 1980 CanLII 1650 (ON CA), 30 OR. (2d) 64. Examples of cases flowing from that decision that were cited were: Falconbridge Nickel Mines, (1982) 1981 CanLII 4534 (ON LA), 1 L.A.C. (3d) 158 (P. C. Picher); Falconbridge Nickel Mines, (1982) 1982 CanLII 4996 (ON LA), 4 L.A.C. (3d) 149 (P. C. Picher). Essentially, these cases establish that where a collective agreement gives all employees a substantive right and then purports to deny some employees (i.e. probationary employees) access to the grievance and arbitration procedures for the enforcement of that right, then that purported denial is void by virtue of section 37 of the Labour Relations Act. Applying those principles to the facts of this case, counsel for the complainant argued that this collective agreement created a substantive right for all employees to grieve discharges. While another part of the collective agreement may appear to limit the right to grieve only to employees who have passed through the probationary period, it was argued that such a limitation is void because of section 44 of the Labour Relations Act. Thus, even if Mrs. Hall were a probationary employee, it was submitted on her behalf that she should have been able to have the merits of her discharge heard by the arbitrator. The union's failure to address this was submitted to be evidence of arbitrary conduct.

11. The relevant provisions of the collective agreement are as follows:

ARTICLE 4

MANAGEMENT FUNCTIONS

The Union acknowledges that it is the right of the Company to:

4.03 Suspend, discipline or discharge, for just cause, any employee, subject to the right of the employee to submit a grievance.

ARTICLE 12

GRIEVANCE PROCEDURE

12.02 An employee having complied with the provisions of Article 12.01, and who believes that the complaint has not been adjusted satisfactorily may lodge a written grievance. The employee shall be entitled to have the assistance of his Zone Committeeman in preparing such grievance on forms supplied by the Company. Such forms will be completed and signed by the grieving employee.

The Zone Committeeman shall take it up with the employee's immediate Foreman who shall give an answer in writing within two (2) working days of the presentation of the grievance. It shall be optional to the Company to decline to consider any grievance, the alleged circumstances of which occurred more than five (5) working days prior to its presentation except in the case of a grievance claiming failure on the part of the Company to give the required notice of recall in which instance, the period of time shall be thirty (30) working days. Probationary employees are entitled to lodge a grievance in the same manner, and to the same extent as regular employees, except with respect to their separation from employment.

12.07 An employee with seniority, who is discharged, may present a griev­ance in writing through the Plant Committee to Management within three (3) working days of discharge and Management will review the grievance with the Committee and render a decision within three (3) working days after such review. If the decision of Management is not acceptable to the aggrieved, the grievance may be appealed to arbitration as herein provided.

ARTICLE 17

SENIORITY

17.01 Fundamentally, rules respecting seniority are designed to provide employees an equitable measure of security based on length of continuous service with the company.

17.02 An employee shall acquire seniority rights when he has worked a total of fifty (50) working days within any period of twelve (12) consecutive months.

An employee who has worked a total of fifty (50) working days within any period of twelve (12) consecutive months will be given a seniority date which will be his date of hire.

17.03 An employee shall be a probationary employee until he has acquired seniority rights at which time he shall become a regular employee. The retention of probationary employees shall be solely at the discretion of the Company.

Section 44(2) of the Labour Relations Act provides in part:

Where a difference arises between the parties relating to the interpretation, application or administration of this agreement, including any question as to whether a matter is arbitrable, or where an allegation is made that this agreement has been violated, either of the parties may, after exhausting any grievance procedure established by this agreement, notify the other party in writing of its desire to submit the difference or allegation to arbitration and the notice shall contain the name of the first party's appointee to an arbitration board..

12. Counsel for the complainant argued that Mr. Kenny's and the union's misconception of the rights of probationary employees under the collective agreement made them unaware of the arguments available to Mrs. Hall and thus their representation of her amounts to such a fundamental oversight as to be considered arbitrary. Much reliance was placed on this Board's decision in Phillip Wayne Bradley, [1983] OLRB Rep. March 323. At the same time, Mrs. Hall and her counsel conceded that, so far as it went, the union's representation of her before and during the arbitration hearing was thorough and worthy of compliment. However, their complaint is that the representation just did not go far enough because of Mr. Kenny's admitted lack of knowledge of the case law flowing from the Toronto Hydro-Electric System decision.

13. The union replied to this complaint by first calling it frivolous and vexatious. But essentially it was argued that the union did actually go beyond its basic duty of representation to the complainant by even taking this case to arbitration and by doing such a thorough and professional job in trying to settle the case and then preparing for the arbitration. It was submitted that the Board is being asked to second guess Mr. Kenny's judgment of how to proceed with the case and that this Board ought to refuse to do that. Further, whether Mr. Kenny's characterization of the issues of the case were correct or not, it was submitted that he arrived at these characterizations after a careful and reasoned analysis of the facts and the law and that this ought not to be considered to be conduct which falls within the scope of section 68 of the Act. Alternatively, counsel for the union argued that even if Mr. Kenny was wrong in concluding that Mrs. Hall had no right to grieve her discharge on the merits if she was a probationary employee, his interpretation was at least reasonable given the decisions such as The Queen in Right of New Brunswick and Leeming, (1981) 1981 CanLII 167 (SCC), 118 D.L.R. (3d) 202 S.C.C. and Board of Governors of the Riverdale Hospital and Canadian Union of Public Employees, (1983) 1983 CanLII 4874 (ON LA), 11 L.A.C. (3d) 267 (Brandt). Those were cases where the collective agreements differed from those in the Falconbridge cases cited above in that the collective agreements did not confer upon probationary employees the substantive just cause provisions in the first place and thus they could never avail themselves of the grievance procedures in their collective agreements for discharge. It was therefore argued that it was reasonable to say that no substantive right was given to probationary employees in this collective agreement to grieve discharges because article 4.03 contains within the substantive management rights clause a limitation excluding probationary employees from the grievance procedure by virtue of article 12.07. In any event, the union referred the Board to the following cases in support of the position that the union s conduct does not fall within section 68 of the Act: Walter Prinesdomu, [1975] OLRB Rep. May 444, Conestoga College, [1983] OLRB Rep. June 882; Ruby Chow, (1981) 3 Can. LRBR 43; Chrysler Canada Limited, [1982] OLRB Rep. Oct. 1417. Counsel for the respondent company adopted the arguments and the position of the union.

14. It is important to emphasize that the complaint before this Board is solely that the union acted in an arbitrary manner towards the complainant. There was no allegation or suggestion that the union's conduct demonstrated bad faith or discrimination. Therefore, the Board must determine whether the union's conduct falls within the standard of arbitrariness as contemplated by section 68 of the Act. That standard has been established in the Ford Motor Company of Canada Ltd. case, [1973] OLRB Rep. Oct. 519:

40. In deciding whether a union has violated the Act the standards to be applied are important. We recognize that union affairs are conducted for the most part by laymen. In some situations there are experienced full time officials of a trade union who conduct the union affairs; in other situations, the union affairs are conducted by employees in their spare time, while in yet other situations employees may be given a limited amount of paid time by their employers to engage in trade union matters. This Board does not decide cases on the basis of whether a mistake may have been made or whether there was negligence, nor is the standard based on what this Board might have done in a particular situation after having the leisure and time to reflect upon the merits. Rather, the standard must consider the persons who are performing the collective bargaining functions, the norms of the industrial community and the measures and solutions that have gained acceptance with that community.

15. The reason for this standard was explained in the case of Walter Prinesdomu, supra:

27. There is thus a concern not to engage in what may well constitute uninformed second guessing about a process of decision-making that resides at the heart of the administration of the collective agreement or to impose unrealistic standards of conduct upon unpaid union officials who may lack the experience and time required to shoulder the burden. The parties to a collective agreement are the most familiar with the problems that must inevitably arise and decisions have to be made "in a context of considerable conflict with delicate balances of mutual acceptability in a vortex of power, reason and persuasion". (See Hanslowe, Individual Rights in Collective Labour Relations (19'59) 45 Cornell L. Rev. 25, 46.) It is argued that a more stringent definition of the duty would discourage the union from settling grievances thereby clogging the lifeline of the collective agreement. Further, because, in appropriate circumstances, an employer can be directed to respond to an alleged violation of the collective agreement which it may consider settled or withdrawn (and possible time barred) too stringent a standard might introduce an unhealthy uncertainty that would discourage or penalize reasonable reliance on a trade union's actions. In other words, it is felt that a more stringent standard would adversely affect the entire relationship between trade unions and employers to the detriment of all employees. Unfortunately, this limitation — one prevailing in the United States as well as in Ontario — necessarily leaves employees affected by mistakes and carelessness without a remedy under the section 60. . .

On the other hand we do not believe, at least at this time, that all mistakes and careless conduct by trade union officials fall outside the scope of section 60. It may be difficult to elaborate the precise meaning of arbitrary represen­tation in advance but, as noted above, the very use of the word suggests that some regulation of the quality of decision-making was intended. Accordingly at least flagrant errors in processing grievances — errors consistent with a "not caring" attitude — must be inconsistent with the duty of fair representation. An approach to a grievance may be wrong or a provision inadvertently overlooked and section 60 has no application. The duty is not designed to remedy these kinds of errors. But when the importance of the grievance is taken into account and the experience and identity of the decision-maker ascertained the Board may decide that a course of conduct is so implausible, so summary or so reckless to be unworthy of protection. Such circumstances cannot and should not be distinguished from a blind refusal to consider the complaint. However, each case must be decided on its own peculiar facts and it is clear that the duty is not going to be a fertile field for the individual adversely affected by less flagrant conduct.

16. Thus, the Board has made it clear that mistake, negligence or errors in judgment do not of themselves amount to a breach of section 68 for arbitrariness. To fall within section 68, conduct must be such that the errors committed are so flagrant as to demonstrate a non-caring attitude or so summary as to be reckless, capricious or grossly negligent. See also I. TE. Industries Limited, [1980] OLRB Rep. July 1001; Seagram Corporation Ltd., [1982] OLRB Rep. Oct. 1571; Cryovac, Division of W.R. Grace and Co. Ltd., [1983] OLRB Rep. June 886; and North York General Hospital, [1982] OLRB Rep. Aug. 1190.

17. In applying these principles, it should also be kept in mind that this case is one of the utmost importance to the complainant because it involves her discharge and thus her livelihood. This is so despite her short period of employment with the respondent company. In addition, the conduct of Mr. Kenny can and must be assessed in the perspective of the fact that he is a full-time international representative of a large and sophisticated union. He has held this position since 1969. He is responsible at this time for the administration and negotiation of 25 collective agreements. He has handled hundreds of grievances and approxi­mately 25 to 30 arbitration hearings. Thus, his experience demands a high standard of representation for purposes of satisfying section 68, especially given the importance of this case to the complainant.

18. The evidence makes it clear that Mr. Kenny simply had no awareness of the jurisdic­tional argument that may have been available to the complainant regarding her possible right to grieve the merits of her discharge. Although Mr. Kenny did some legal research in the preparation of the case, the material he consulted did not reveal to him this possible argument. However, on the basis of the interpretation he developed of the collective agreement without knowledge of those cases, and having regard to the materials he did consult, Mr. Kenny came to a decision that the complainant's best chance of success before an arbitrator would be to try to establish that she was not in fact a probationary employee because the attempt to extend her probation had been voided for lack of notice by the company. That was the main strategy he intended to pursue at the arbitration. When the parties seized upon the arbitrator's sugges­tion to narrow the issues at the arbitration hearing, that became the only issue that needed to be pursued before the arbitrator. The fact that the grievance did not succeed is not proof of any deficiency in Mr. Kenny's representation. Instead, it is a result of the arbitrator arriving at a decision based on the facts that were established before him and the legal principles that he applied to those facts. Further, the fact that another legal argument or approach may have been available to the complainant does not establish a defect in the union's representation of the complainant. Certainly, Mr. Kenny's position before this Board would have been stronger if he had considered the jurisdictional argument and consciously rejected it as an inferior strategy. Had he done so, absolutely no fault could have been found in his approach. However, the fact that he did not do so does not amount to evidence of a "non-caring attitude" or a "summary approach" that can be considered to be "reckless, capricious or grossly negligent". The mere fact that he was not aware of such an argument or did not discover such an argument does not amount to arbitrariness. We reach this conclusion because on the basis of the facts and the information available to Mr. Kenny and which Mr. Kenny was aware of, he considered Mrs. Hall's case carefully and put his mind to the case and made a reasonable decision as to how to best present the case to the arbitrator. He also did this in a manner which is completely consistent with the experience and level that this Board would exact from a union official in his capacity. To decide otherwise, would be to essentially second guess Mr. Kenny in retrospect with the calmness that time affords and with the advantage of having the insight into Professor Brandt's conclusions.

19. Having said that, and recognizing the complete propriety of this Board's reluctance to second guess such decisions, this Board is still compelled to comment that it feels that the strategy adopted at the arbitration for the complainant ended up being potentially more advantageous to her than had she put her case to the arbitrator on the merits. Given the extremely low standard of just cause that arbitrators apply to short-term or probationary employees and given article 17.03 of this collective agreement, it is virtually impossible to see how the complainant could have hoped to succeed on the merits of the case if she had persuaded the arbitrator to address them. Thus, the approach taken by Mr. Kenny at the arbitration may well have been the best strategy to have pursued. However, it must be emphasized that this paragraph is mere speculation and is obiter dicta.

20. Comment should also be made on the Bradley case's applicability to this fact situation. With great respect to counsel for the complainant, that case is quite distinguishable from Mrs. Hall's case. In Bradley, the union clearly failed to represent or even consider representing Mr. Bradley because of his probationary status. It further failed to advise him of his individual rights to pursue a remedy. Thus, the facts established a clear breach of section 68. Further, the Board found in paragraph 25 of the Bradley decision:

One of the most fundamental ways in which a trade union represents bargaining unit members is through negotiation of a grievance procedure and through the participation of its officials in some or all of the steps in the grievance procedure. The respondent in this case negotiated a grievance procedure accessible to all bargaining unit employees and did not negotiate a clause excluding probationary employees from the substantive right of having their discharge or suspensions subject to the standards set out in the MIH rules. But in the same collective agreement the respondent stipulated, through section 4(b) that it would not represent probationary employees who have been discharged. This stipulation, in the context of this collective agreement, is an arbitrary one because it sanctions an unresponsiveness and the total ignoring of the merits of a probationary employee's discharge simply because he or she is probationary.

The arbitrariness in the Bradley case stemmed from the union's failure to respond in any way to the probationary employee's request for representation even though probationary employees were not excluded from having their grievances processed. Further, the collective agreement itself purported to allow the union to be unresponsive without any explanation as to why probationary employees should not be represented by the union. This meant that both the collective agreement and the fact situation in the Bradley case amounted to arbitrariness because of the union's abdication of its duty to Mr. Bradley. That situation is quite distinguish­able from the one facing Mrs. Hall and this union. The only similarity in the cases is the allegation that the union's conduct arose because of an error or misconstruction of their collective agreements. But as set out above, an error in itself does not establish arbitrariness. Nor was it the error in understanding the collective agreement alone that amounted to the arbitrariness in Bradley. Further, without deciding whether Mr. Kenny's interpretation of the probationary's rights under the collective agreement was right or wrong, we are prepared to conclude that his interpretation was legitimate and reasoned, and may even consider it to be "reasonable". But in no way can this union be considered to have abdicated its responsibilities to Mrs. Hall as was done in the Bradley case.

21. Therefore, while this Board need not nor should not decide whether it would have conducted Mrs. Hall's case in the way it was conducted by Mr. Kenny, the evidence establishes good and sufficient reasons for him to have conducted himself as he did. Thus, we conclude that the respondent union has not conducted itself in a manner that is arbitrary or in any way violates section 68 in its responsibility to Mrs. Hall. For the foregoing reasons, the complaint is dismissed.

22. Both the complainant and the respondent ask for costs in this case. Suffice it to say that this is not an appropriate case for costs to be awarded having regard to the principles of this Board with respect to costs as set out in the decision of Radio Shack, [1979] OLRB Rep. Dec. 1220.