John Glykis v. Hotel Employees and Restaurant Employees Union, Local 75, 1985 CanLII 1028

3293-84-U John Glykis, Complainant, v. Hotel Employees and Restaurant Employees Union, Local 75, Respondent, v. The Four Seasons Hotels Limited (Inn On The Park), Intervener

BEFORE: S. A. Tacon, Vice-Chairman.

APPEARANCES: Peter Carlisi for the complainant; Kevin Whitaker, Jean-Guy Belanger and G. Pineo for the respondent; Brian P. Smeenk, J. J. Pergant and D. Zimak for the intervener.

DECISION OF THE BOARD; August 16, 1985

1The Board issued a decision, with reasons to follow, dated May 27, 1985, finding that there was no violation of section 68 of the Act. The Board, in that decision, also declined to award costs to either party. Below are the reasons for the May 27 decision dismissing the complaint.

2It is useful to set out the background to the present complaint. The complainant first filed a complaint alleging contravention of section 68 of the Act as a result of a decision by the union's executive board and membership not to proceed to arbitration with a grievance against the complainant's discharge from the Inn On the Park. By decision of the Board (Vice-Chairman Murray) dated October 31, 1984, [reported at [1984] OLRB Rep. Oct. 1406]. the complaint was upheld on the narrow ground that the complainant, because of inadequate notice, was, in effect, not given an opportunity to present his case to the executive board and membership meetings of the respondent. It is appropriate to set out the following passages from that decision.

The recollections of all the material witnesses, Mr. Glykis and Messrs. Pineo, Longe and Marshall, are cloudy on many important aspects and details of conversations, investigations and actions. It appears from the evidence of the union that Mr. Glykis may not have been wrong in his assertions made many times to Mr. Longe that everyone at the hotel did not like him. Unfortunately for Mr. Glykis, there were concrete, indisputable instances where he was rude and abusive with staff and management, and this was the very conduct he was accused of in connection with the guest on October 14, 1984. This type of grievance required the Business Manager, the Business Representative and the membership to take into account the grievor's character and patterns of conduct to assess the likelihood of succeeding at arbitration. Be that as it may, it is still clear and undisputed that Mr. Glykis, in accordance with the Local 's normal practice, was entitled to be present at the Executive and membership meetings to plead his case. Perhaps if he had attended, he could have explained his conduct or dispelled these assessments about his penchant for getting into altercations. He clearly missed an opportunity which he should have had and could have had according to internal union procedures if he had been given clear times and places of these meetings. If the timing of the meetings had been different, then it would be understandable that Mr. Longe would not advise on them specifically. However, common courtesy would have dictated that Mr. Glykis be advised of the rapidly approaching consideration of his grievance. This conduct amounted to gross negligence and I have found on this basis that this is arbitrary treatment and a violation of section 68.

The remedy in this instance is the extension of an opportunity to Mr. Glykis to attend before both the Executive and membership meetings and present his case, with or without the assistance of his counsel. Should the membership decide to support his arbitration, we order that the time limits of the collective agreement not be used as a defence by the hotel.

[emphasis added]

3The complainant was not content with this relief. Before Vice-Chairman Murray, the complainant had sought: an award of costs; that the Board hear and determine the merits of the discharge grievance; that, alternatively, the Board should refer the matter directly to arbitration with a direction that the complainant be represented at that hearing by his own counsel, with costs borne by the union. On receipt of the Board's decision, the complainant sought reconsideration, again seeking the relief just outlined. Vice-Chairman Murray, in a decision dated March 22, 1985, [reported at [1985] OLRB Rep. March 420] dismissed the reconsideration request. It is again useful to refer to portions of that decision.

... I did not grant the complainant's request that he be compensated for the "costs" incurred in his pursuit of the unfair labour practice complaint because it is the Board's general practice, in exercising its remedial powers under section 89, not to grant costs to the successful party. The Board has, in other cases prior to the complainant's, thoroughly canvassed the policy issues involved in this remedial area and has determined that there must be extraordinary circumstances or other overiding policy considerations before costs will be awarded to the successful party in a section 89 complaint (see Radio Shack, [1979] OLRB Rep. Dec. 1220; Comstock Funeral Home, [1981] OLRB Rep. Dec. 1755 for a fuller statement of the Board's rulings). Neither of these conditions was present in the complainant's case and it was no different, for the purposes of an award of costs, from the numerous cases in which the Board finds a violation of the Act. It was for this reason that I rejected the request for an award of "costs". Nothing in the letter requesting reconsideration causes me to change this aspect of the decision of October 31, 1984.

In requesting that the Board arbitrate the complainant's discharge grievance itself or refer the grievance to arbitration directly, rather than resubmit the grievance for consideration by the union executive and membership, counsel is again merely repeating the submissions made at the hearing. The Board has stated on numerous occasions that success in proving that section 68 has been breached does not automatically confer on the complainant the right to have his grievance arbitrated (see, for example, Massey-Ferguson, [1977] OLRB Rep. April 216; Bedard Girard, [1981] OLRB Rep. Oct. 1338). Where the Board does grant such a remedy, the Board, in normal circumstances, does not assume the task of arbitrating the grievance itself because of the longstanding policy of deferring to the arbitration process of the collective agreement where such process will yield a complete remedy (see Valdi Inc., [1980] OLRB Rep. Aug. 1254). In this case the loss to the complainant resulting from the contravention of section 68 of the Act was the deprivation of the opportunity to be present at the executive and membership meetings and present his case. As the Board noted at paragraph 16, the complainant "clearly missed an opportunity which he should have had and could have had according to internal union procedures if he had been given clear times and places of these meetings". Therefore, on this basis alone, I do not consider it necessary to change my decision regarding the request for arbitration. In any event, this aspect of the complainant's reconsideration request has been overtaken by events. A copy of a letter dated January 10, 1985, written by counsel for the complainant to the union and forwarded to the Board, indicates that the complainant was provided an opportunity to present his case to the union membership, and that the membership voted to overrule the executive board's decision. As a result, the complainant's grievance was to be referred to arbitration immediately. Even if it could be said that I was wrong in not ordering arbitration, the action of the membership of the union has removed any necessity for the Board to reconsider the adequacy of its remedy of returning the grievance to the normal union procedures as compared with the requested remedy of arbitration.

The complainant also requested at the hearing that, if the matter proceeds to arbitration, he should have the opportunity to retain his own counsel to present the arbitration on his behalf. This request has also been repeated in the application for reconsideration. The Board did not see then, and does not see now, any justification for such a claim. Nothing in the evidence suggests any malice or ill will towards the complainant by officials of the union. The wrongdoing attributed to the union stemmed from "gross negligence". On the contrary, as indicated in paragraph 3 of the Board's decision, the complainant has received the union's assistance without complaint on many previous occasions. The assistance rendered by the respondent following the complainant's termination in October of 1983, though falling below the standard required by section 68, was not tinged in any way by bad faith or active opposition to the grievor himself I am not prepared, in the circumstances, to assume that the union will not provide proper representation to the grievor should the matter proceed to arbitration. This is consistent with the Board's jurisprudence. The Board stated in Phillip Wayne Bradley, [1983] OLRB Rep. June 865, at paragraph 3:

... Where the Board does grant such remedy [arbitration], it does not always make an order as to representation at such arbitration. The Board has normally specified who must represent the grievor at an arbitration it directs, as a result of a section 68 proceeding, where there are ongoing, serious concerns that the complainant will not receive a non-arbitrary, non-discriminatory, good faith treatment by the [union] in the course of its presentation of the arbitration (see, for example, Leonard Murphy, [1977] OLRB Rep. March 146, the first reported decision where such an order is made). When the Board has made an order concerning representation at arbitration, the nature of the order has been that the union and the grievor jointly select a lawyer to handle their presentation (see Leonard Murphy, supra; Bedard Girard, supra) .... An order for separate, independently selected legal counsel would be highly extraordinary. A remedy under section 68 should not change the essential character of the arbitration process. The respondent [union] is the party to the collective agreement and the arbitration not the grievor (General Motors of Canada v. Brunet, [1977] 2 5CR. 537) and would have, except for a violation of section 68. had exclusive selection over whether the arbitration was to proceed and how. The interests of a bargaining agent and the grievor are united before an arbitration board. Jointly selected counsel has been ordered only where the Board feels there would be no truly united representation of the arbitration case for the respondent and the grievor. The joint selection process is to ensure that this unity is restored. The exclusive selection of legal counsel would effectively remove the essential unity of the grievor's and union's interests at arbitration.

If indeed the union fails to comply with its duty of fair representation at the arbitration stage, it will expose itself to another complaint before the Board, and the complaint, if proven, will be remedied.

[emphasis added]

Finally, the request for reconsideration asks that "the Board remain seized of this particular matter with respect to the arbitration procedure in order that the Board may intervene should the union not fairly represent Mr. Glykis' interests during the course of arbitration". The Board in its decision found a violation of the Act and fashioned a remedy to respond to it. If there is a failure to comply with that order, procedures are available to enforce the Board decision. The Board is not prepared to go beyond this, and remain seized, in order to deal with speculative future violations of the Act. As indicated above, if the union fails to represent the complainant at arbitration in accordance with the duty in section 68, it can be the basis for a separate unfair labour practice complaint. It is unnecessary for me to remain seized in anticipation of possible future breaches of the Act.

4Prior to the release of the Board's decision with respect to the reconsideration request, the union proceeded to afford the complainant an opportunity to present his case for proceeding to arbitration to the executive board and the general membership meetings, as directed by the October 31 Board decision. These meetings are discussed at length, infra. It is sufficient to here note that the membership meeting voted to proceed to arbitration. The complainant, however, still wished to be represented by his own counsel at that arbitration hearing with the costs to be borne by the union. When the union refused that request, the complainant filed the present complaint on March 8, 1985.

5At the hearing, counsel for the respondent union raised, as a preliminary question, a motion that the complaint should be dismissed as res judicata. The Board gave the following oral ruling:

The Board has considered the submissions of the parties with respect to the preliminary motion of the union that the issue is res judicata. Without going into great detail, the Board is of the view that the doctrine is not applicable to the instant complaint. Specifically, the complainant alleges that, at the January 8, 1985 meeting of the general membership, the executive board was asked to permit the membership to vote on the question of whether the complainant should be able to have counsel of his choice to represent him at the arbitration hearing but the costs to be assumed by the union. The complainant alleges that the executive board refused that request, not for bona fide reasons, but out of malice or bad faith. It is this decision that the complainant asserts is a violation of section 68 of the Act.

It may well be that the complainant cannot satisfy the onus under section 68 to prove his allegations. It is also true that the remedy requested in this complaint is the same as that argued before the Board in the previous complaint and that remedy was denied in that complaint, as is made clear in the Board's reconsideration of its October 31, 1984 decision. However, the identical nature of the remedy requested is not sufficient to render the doctrine of res judicata applicable when new circumstances are alleged as contravening the section 68 duty. The Board, therefore, intends to hear the complaint. The Board, however, wishes to make clear that it will limit this hearing to the allegation that the conduct of the executive board at the January 8 meeting in its alleged refusal to place the "solicitor" issue before the members was in bad faith and, hence, violated section 68 of the Act. The Board does not intend to permit a broadening of the issues to encompass conduct previously dealt with by the Board in File No. 2310-83-U.

The Board does not regard it as necessary to set out the other oral rulings made during the course of the hearing.

6The complainant called four witnesses: N. Kapelos, solicitor in the original complaint and partner of the present counsel; J. Herdman; J. Glykis, on his own behalf; D. Zimak, director of personnel for the intervener. J. Belanger, local president, testified for the respondent. The Board has considered the usual factors in assessing credibility, including, the consistency of their evidence, the firmness of their memory, the ability to resist the influence of self-interest to modify their recollections, their capacity to express clearly their recollections, their demeanour while testifying, their responses in cross-examination and what appears to the Board to be reasonably probable when the circumstances and the testimony of the witnesses are considered.

7The Board has some specific comments about the credibility of the witnesses. The Board regards Herdman as a candid witness who testified as to events he observed in a straightforward, honest manner. Similarly, the Board was impressed by the testimony of Belanger. Indeed, the accounts of Herdman and Belanger concerning the January 8 meeting were substantially the same; any minor discrepancies are considered by the Board to be the product of differences in perceptions and recollections which are to be expected when witnesses recount events occurring some months previously. Zimak's testimony was exceedingly brief and did not relate to the issues before the Board. The Board does not consider Kapelos to be a particularly reliable witness, not because of any intention to mislead the Board, but because Kapelos' testimony by and large amounted to a series of conclusions he drew from the events rather than a description of the events themselves. For example, Kapelos repeatedly stated the executive board's decision not to recommend proceeding to arbitration was improper because the board had not offered him the chance to address them again after the executive reviewed the complainant's work record in the context of Kapelos' submissions to the board at the December 14 meeting. Yet, Kapelos conceded on cross-examination that Belanger had not suggested there would be such a second opportunity for further submissions but had said to Kapelos "we'll get back to you and tell you our position, we want to consider this stuff [the work record], this is important". Kapelos' recollection of the January 8 membership meeting was likewise strong on conclusions [e.g., Belanger was arbitrary] but vague on specifics such as what did Belanger actually say or do. Thus, the Board prefers the testimony of Herdman and Belanger wherever there is conflict with that of Kapelos.

8The Board now turns to the complainant's testimony. The Board does not lightly find that a witness has deliberately been untruthful. In this case, that conclusion is clearly justified. The complainant testified after having heard Kapelos and Herdman give their evidence. It was apparent that the complainant was tailoring his "story" to integrate his version with theirs and deal with any difficulty their testimony, particularly Herdman's, had caused. The complainant was evasive, "didn't remember" or was blatantly self-serving whenever questions on cross-examination touched on matters which showed him in a poor light. For example, the complainant told the membership meeting he wanted his own counsel because he didn't trust the union counsel (A. Ryder, Q.C.) or anyone from that firm because he had lost an arbitration decision in 1981 where he was represented by a junior as Ryder was unavailable at the last moment. When queried as to Arbitrator Teplitsky's express finding in that hearing that the complainant was not a credible witness, the complainant suggested he hadn't really read the award thoroughly and that Arbitrator Teplitsky had in some way acted improperly. The Board could recount additional examples of evasion, selective perception, "tailoring" of evidence and outright fabrication but it is unnecessary to do so. In short, the Board is not prepared to give any credence to the complainant's testimony.

9Having weighed and assessed the testimony and the relative credibility of the witnesses, as noted above, the Board makes the following findings of fact.

10Kapelos, counsel for the complainant in respect of the first section 68 complaint, received notice of the executive board meeting of December 13, 1984. Kapelos, the complainant and the complainant's brother attended that meeting. All three addressed the executive board. Kapelos' submissions lasted approximately 15 to 30 minutes. Kapelos discussed the complainant's case, including his work history. Kapelos also raised the issue of counsel, i.e., that the complainant wanted to be represented by counsel of his choice. The executive board asked some questions regarding Kapelos' experience and fees. Kapelos essentially responded that he would be "reasonable". There is no evidence that Kapelos asserted he had any particular familiarity or experience with the arbitration process or arbitral jurisprudence. Belanger requested that Kapelos forward his rates and fee estimates in writing; this Kapelos did not do. At the conclusion of the submissions, Belanger stated that the executive board would "get back to you and tell you our position, we want to consider this stuff [the complainant's work record], this is important'~. As noted, there was no indication, let alone undertaking, that there would be an opportunity to further address the executive board.

11The executive board met again on January 3, 1985 and decided to recommend against proceeding to arbitration. Kapelos was notified of this decision by letter dated January 4, 1985 and informed that the general membership meeting was scheduled for January 8, 1985. The January 4 letter from G. Pineo, secretary-business manager, also stated that the complainant would be required to pay some $35 to again become a member in good standing as the complainant had not paid his membership dues for some time. Arrangements were made with Pineo to pay the dues at the meeting. Kapelos also telephoned Belanger to request that the complainant's case be dealt with first; Belanger agreed.

12Belanger chaired the January 8 meeting. Kapelos was asked to remain in the corridor until Belanger could formally open the meeting and request a motion from the floor to adjourn the regular order of business in order that the complainant's case be heard first. Such a motion was made, seconded and carried. Kapelos was then introduced and permitted to make his submissions. The membership was informed of the executive board's position, i.e., a recommendation that the grievance not be arbitrated. One member, F. George, then moved not to proceed to arbitration. Belanger ruled that it was not yet proper to vote on the motion as there should be an opportunity for questions. Several questions were asked relating to the background to the present proceedings. Compton-Marshall, (executive vice-president and treasurer); read from the Board's October 31 decision and the union submissions before that Board. Kapelos then made further submissions in response to Compton-Marshall. Belanger was asked to reply personally to a question as to the basis for the executive board's decision. Belanger released himself from the chair to explain the factors considered by the executive board, including the complainant's entire work record. Herdman moved that the matter proceed to arbitration and the complainant be permitted to select the "section 45" route or a three-person arbitration board. That motion was seconded and carried by a two-thirds majority of those present. The complainant opted for the expedited arbitration route pursuant to section 45 of the Act.

13Kapelos then raised the issue of the choice of counsel. Belanger stated the matter was out of order as any monetary question first had to be referred to the executive board in accordance with normal procedure. The complainant also addressed the meeting, giving his reasons for wanting his own counsel. That is~ the complainant referred to the 1981 arbitration stating he had been promised a "top drawer" lawyer but ended up with a junior and he did not want this experience to be repeated. The complainant did not indicate that he did not trust the union executive or felt that they would not represent him fairly; in fact the union had supported him in grievances on other occasions. The exchanges between the various individuals became somewhat heated but the meeting remained orderly. Herdman suggested that the parties allow the matter to "cool down"~ that Belanger and Kapelos could meet in a few days to try and resolve the issue. Belanger was amenable to this suggestion. No formal motions permitting the complainant to be represented by counsel of his choice were proposed. Belanger then proceeded with the next item on the agenda.

14The complainant had instructed Kapelos in early January to press forward on the "solicitor" issue and, if necessary, to file another complaint with the Board, although the formal retainer was not signed until February 5. Thus, subsequent to the membership meeting, counsel for the complainant continued to press that issue, primarily through exchange of correspondence. By letter dated January 10, 1985, Kapelos objected to the proceedings of the January 8 meeting and stated, inter alia:

I would ask that you reconsider your position with respect to Mr. Glykis retaining his own counsel as any slight deviation from the proper presentation and support will be questioned vehemently by Mr. Glykis and, in fact, leave the union susceptible to a further section 68 application.

15Pineo replied on January 15 that the union intended to abide by its past practice regarding representation and informed Kapelos that February 12 would be the hearing date. By letter dated January 22, however, Pineo indicated that the union would permit the complainant to have his own counsel provided the complainant assumed the cost. Belanger testified that the union intended to have its counsel present at the hearing but would permit the complainant to have his own lawyer as well but at the complainant's own expense. Kapelos spoke with Ryder, union counsel, in person on January 30 and continued to argue for the complainant's choice of counsel with fees paid by the union. As a result of Kapelos' meeting with the complainant on February 5, union counsel was informed by letter dated February 6 that the complainant could not attend the arbitration hearing due to the illness of his father and Kapelos yet again urged Ryder to withdraw from the case. The arbitration was cancelled on short notice and rescheduled for June 4. Kapelos conceded that, had the union agreed to permit him to represent the complainant with the union assuming the cost, he would have had to request an adjournment of the February 12 hearing in any event. Union counsel outlined the union's reasons for wishing its own counsel to conduct the complainant's case, in his letter of February 7. Then, by letter dated February 12, Ryder informed Kapelos that the union had decided to appoint C. Paliare as counsel for the arbitration. Paliare, a member of the same firm, had not had previous dealings with the complainant. It should be noted Paliare could not be described as a "junior"; he is an experienced counsel in the labour area. The instant complaint was filed on March 8, 1985.

16Counsel for the complainant submitted that Belanger was not a credible witness, reviewed the evidence and asserted the executive board had demonstrated malice and ill will toward the complainant, particularly at the January 8 meeting. Counsel argued that Pineo's letter of January 22 indicated the union only objected to paying for the complainant's counsel and this, too, evidenced bad faith contrary to section 68 of the Act. Counsel contended that it would be improper for Ryder or anyone from that firm to represent the complainant, referring to the Rules of Professional Conduct (Rule 5); MTS International Services Inc. v. Warnat Corporation Ltd. 1980 CanLII 1727 (ON HCJ), [1980], 31 O.R. (2d) 221 (Ont. H.C.); Lukic et al v. Urquhart et al. 1984 CanLII 2080 (ON CA), [1984], 11 D.L.R. (4th) 638 (Ont. H.C.); Steed & Evans Ltd. v. MacTavish et al. 1976 CanLII 640 (ON HCJ), [1976], 12 O.R. (2d) 236 (Ont. H.C.). Counsel argued that the Board had the authority to direct the union to permit the complainant to select his own counsel with the costs to be borne by the union and cited Phillip Wayne Bradley, [1983] OLRB Rep. June 865; Bedard Girard Ontario, [1981] OLRB Rep. Oct. 1338; International Printing and Graphic Communications Union, Local 482, [1977] OLRB Rep. Mar. 146. Thus, counsel submitted section 68 of the Act had been contravened and the appropriate relief, as noted, should be directed.

17Counsel for the intervener distinguished the cases cited by counsel for the complainant on the ground that the solicitor in those cases had initially acted for a number of parties, had obtained confidential information during that period and then proposed to act for one of the parties against the others. In this case, counsel argued that the integrity of the arbitration process required that a party to the collective agreement, the union, have control over the union's case. Counsel selected by the complainant would owe a duty to his client, not the union, and this could result in proceedings which were costly to the parties to the collectlve agreement and destructive of the collective bargaining relationship. Counsel acknowledged there could be exceptional cases where the bad faith of the union was so outrageous that the Board would direct the union to bear the costs of counsel selected by a complainant. However, counsel asserted that those circumstances were not present in the instant case.

18Counsel for the respondent reviewed the evidence and asserted that no breach of section 68 had been established. In response to Vice-Chairman Murray's October decision, the union had permitted Kapelos and the complainant to attend and address the executive board and membership meetings. The union was not obligated to do more and, in particular, was not required to permit the complainant to select counsel but bill the union. Counsel submitted the union's usual procedures were followed, including Belanger's releasing himself from the chair in order to respond to a question and Belanger's statement that any motions regarding the "solicitor" issue would be out of order as financial items had first to be placed before the executive board. Counsel argued that the executive board had considered the appropriate factors in again recommending against arbitration, including legal opinion on success or failure, the complainant's work record, etc. Moreover, it was asserted that there was no evidence of malice, ill will or bad faith directed toward the complainant. Counsel agreed with counsel for the intervener's characterization of the cases cited by counsel for the complainant. Thus, counsel argued no violation of section 68 had been proved and, in the alternative, the relief sought was an extraordinary remedy for which there was no basis in the present circumstances.

19Section 68 of the Act reads:

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.

20The duty imposed by section 68 has been elaborated in a number of Board decisions. One of the most useful summaries is found in The Municipality of Metropolitan Toronto, [1978] OLRB Rep. Feb. 143 (the Gormley case) paragraph 18:

Over the years many aspects of the duty of fair representation have settled into place. The Board has repeatedly held that in order not to act in an arbitrary manner in the processing of a grievance, the union must direct its mind to the merits of the grievance and act on the available evidence. While the effective operation of the grievance machinery requires that unions also be allowed to consider factors beyond the merits of a particular grievance in deciding whether to process a grievance on to arbitration, considerations of this nature must have their roots in the welfare of the bargaining unit and the bargaining process and must not be based on irrelevant facts or principles. Additionally, a union is prohibited from processing a grievance in bad faith. An employee must not become the victim of the union's ill will such that a dislike for an individual dictates the path of the grievance rather than the merits of the grievance or legitimate concerns for the welfare of the bargaining unit and bargaining process. The prohibition against a union acting in a manner that is discriminatory functions to prevent a union from distinguishing among members in the bargaining unit unless there are good reasons for so doing. To avoid acting in a manner that is discriminatory, the duty requires, in general, that like situations be treated in a like manner and that neither particular favour nor disfavour befall any individual apart from the others unless justified by the circumstances. The duty does not make the union the guarantor for every aggrieved employee. Instead, the duty requires that the union consider the position of all of its members and that it weigh the competing interests of minorities or individuals in arriving at its decisions.

21Further, given that the complainant asserts the violation of section 68 is founded in the alleged malice and ill will, the "bad faith" allegedly demonstrated by the executive board toward the complainant at the January 8, 1985 membership meeting, it is also appropriate to refer to the following passage from Canadian Union of Public Employees Local 1000 - Ontario Hydro Employees Union, [1975] OLRB Rep. May 444 (the Princesdomu case):

Bad faith and discrimination are not being alleged in the facts at hand but their meaning is well worth a brief examination. The sequential use of the words may assist in elaborating the total meaning of the duty and at the very least the particular application of each word demonstrates why this case is difficult. The prohibition against bad faith and discrimination describe conduct in a subjective sense - that an employee ought not to be the victim of the ill-will or hostility of trade union officials or of a majority of the members of the trade union. (See Adell, The Duty of Fair Representation - Effective Protections for Individual Rights in Collective Agreements? (1974) 25 Indus. Rel. 602, 611.) Bad faith and discrimination constitute the outer limits of majoritarianism and official action, preventing a trade union from singling out certain individuals for unfair treatment. This aspect of the duty is particularly important in discouraging discrimination on the basis of race, creed, colour, sex, etc., preventing internal trade union politics from erupting into forms of invidious conduct; and in prohibiting extreme forms of interpersonal breakdowns within a trade union. It is basic to a system based upon an exclusive bargaining agent....

22In the Board's view, there is simply no basis on which to conclude the executive board exhibited any subjective ill will or hostility toward the complainant in considering anew his grievance, in accordance with Vice-Chairman Murray's October decision. With respect to the December 13 executive board meeting, complainant's counsel was given proper notice. He and the complainant were permitted to make whatever submissions they wished to the executive board. The executive board then considered those submissions and recommended against proceeding to arbitration. On the evidence, there was no impropriety in reaching such a decision. Sufficient notice of the January 8 membership meeting was given to the complainant's counsel. The Board does not regard the requirement imposed on the complainant to pay the standard fee to become a member in good standing where the complainant had not paid the usual union dues for some time as in any way out of the ordinary. Indeed, the executive board accommodated the complainant in two respects. Firstly, Pineo agreed the complainant could pay the reinstatement fee at, rather than prior to, the membership meeting. Secondly, Belanger readily agreed to Kapelos' request to suspend the regular order of business to consider the complainant's grievance first. Such accommodations are just not suggestive of ill will directed by the executive board toward the complainant.

23The January 8 meeting itself followed the usual procedures. Belanger carried out his agreement with Kapelos to suspend the regular order of business by seeking the appropriate motion from the floor. There was nothing improper in directing Kapelos to remain in the corridor until the complainant's case was to be considered. Kapelos was permitted to fully address the membership. The executive board presented their recommendation, and their reasons, openly. There is nothing sinister or improper in reading from Vice-Chairman Murray's decision or the union's submissions to the Board. Indeed, when Kapelos objected that this was somehow a "misrepresentation", he was permitted to again fully address the membership. Indeed, and of considerable significance, when Belanger was faced with a motion to uphold the executive board's recommendation right after Kapelos' initial representations, he ruled it was not yet proper to vote on the motion in order to permit full discussions and questions from the floor. Belanger did not seize upon an opportunity to force a vote on a motion "favourable" to the executive board; rather, he encouraged fuller discussion. Such conduct is the antithesis of "bad faith". Indeed, when the membership voted to proceed to arbitration, the executive board simply accepted the result. Subsequent to the vote, Kapelos and the complainant raised the "solicitor" issue. As noted earlier, the Board accepts the accounts of Herdinan and Belanger, not Kapelos and the complainant, with respect to the meeting. Belanger's statement that the matter was out of order accorded with past practice in referring monetary matters to the executive board first. Whether or not formally included in the union's constitution, that was the past practice as supported by the uncontradicted evidence of Herdinan, the complainant's own witness and Belanger. When the exchange became heated, Belanger was amenable to Herdman's suggestion that he (Belanger) and Kapelos meet subsequently to discuss the matter. In short, the Board finds there was no violation of section 68 in the conduct of the January 8 meeting, nor, in fact, in the entire dealing by the executive board with the complainant's grievance subsequent to Vice-Chairman Murray's October decision.

24Nor is there evidence of bad faith in Pineo's letter of January 22 permitting the complainant to have his own counsel provided the complainant paid the fees. As Belanger explained, the union intended to have its own counsel at the arbitration; the complainant, however, could have his representative in addition. The union's reasons for wishing its own counsel were outlined in Ryder's February 7 letter, as well.

25It is also appropriate for the Board to deal briefly with other positions taken by counsel for the complainant. In the notice of the executive board meeting of December 13, 1984, the word "appeal" was used in connection with consideration of the complainant's grievance. Kapelos objected to the use of the term as implying a restricted review of the initial decision. On the evidence, it is clear that the executive board intended a "fresh look" at the grievance. The executive board considered the matter on a "de novo" basis. There is no evidence supporting a suggestion that the grievance was "appealed" in a technical legal sense. Secondly, it was suggested that there was impropriety in the executive board's "failure" to call Kapelos back for further submissions. Again, the evidence plainly establishes that Kapelos was given every opportunity to make his submissions, that the executive board considered those submissions in the context of their review of the grievor's work record and at no time indicated that there would be an opportunity for further submissions. This asserted ground for contravention of section 68, then, fails. At another point, complainant's counsel argued the notice of the January 8 membership meeting was inadequate and "therefore" a violation of section 68. This assertion, as well, is not supported by the evidence. The complainant and his counsel attended the meeting and made submissions without indicating any prejudice whatsoever resulting from the notice. Further, since both had made representations on the grievance at the December 13 executive board meeting, it is difficult to conceive of any prejudice from alleged inadequate preparation time, especially since the complainant argued throughout that one ground for having his own counsel at arbitration was because counsel was so familiar with his case. The Board, finally, finds no merit in counsel for the complainant's statement that a violation of Robert's Rules of Order, if one occurred when Belanger released himself from the chair to respond to a question, constitutes, in itself, a violation of section 68. Firstly, complainant's counsel did not introduce Robert's Rules of Order into evidence. Moreover, the procedure adopted by Belanger was, in the circumstances of a meeting of lay persons, entirely sensible.

26Thus, there is no credible evidence of ill will, bad faith or discrimination in the present complaint. Nor, was there such evidence in the former complaint. That original complaint merely held that the complainant, because critical job interests were at stake, should have been given notice of the executive board and membership meetings sufficient to allow an effective opportunity to present his case. There is no suggestion in the original decision that the inadequate notice was motivated by ill will, bad faith or discrimination. Indeed, the Board's characterization of the matter as a lack of "common courtesy", although amounting to gross negligence in the circumstances, underscores the absence of ill will, bad faith or discrimination. The remedy in the original complaint gave the complainant the opportunity he had missed and, moreover, the membership voted to proceed to arbitration.

27The Board has found that the complainant has not established a violation of section 68. The Board, then, need not deal with the remedy urged by the complainant's counsel that the complainant be permitted to select his own counsel in respect of the arbitration hearing with the costs to be borne by the union. However, the Board has some comments on this issue. The complainant and his representatives have pursued this remedy with single-minded determination from the outset of the first complaint through the reconsideration request, the executive board meeting, the membership meeting, correspondence and in-person representations subsequent to that meeting and, lastly, in the instant complaint. In that single-minded pursuit, the complainant has been prepared to bend the truth and mislead the Board. Before this Board, there was even the suggestion that, if the union continued to refuse the complainant's demands and the arbitration failed, there could be yet another complaint filed with the Board. The Board in the former complaint (and on reconsideration) rejected the complainant's request that he be allowed to select his own counsel. The union has retained counsel highly experienced in the labour field and who has not had prior dealings with the complainant. To the extent the complainant was concerned about getting a "top drawer" lawyer, those concerns have been satisfied.

28It must also be stressed that the complainant was not requesting the joint selection, by himself and the union, of "independent" counsel. In this regard, it is useful to set out the following passage from Philip Wayne Bradley, supra, cited by the complainant:

... The Board has stated on numerous occasions that success in proving that section 68 has been breached does not automatically confer on the complainant the right to have his grievance arbitrated (see, for example Massey-Ferguson, [1977] OLRB Rep. April 216; Bedard Gerard, [1981] OLRB Rep. Oct. 1338). Where the Board does grant such remedy, it does not always make an order as to representation at such arbitration. The Board has normally specified who must represent the grievor at an arbitration it directs, as a result of a section 68 proceeding, where there are ongoing serious concerns that the complainant will not receive a non-arbitrary, non-discriminatory, good faith treatment by the respondent in the course of its presentation of the arbitration (see, for example, Leonard Murphy, [1977] OLRB Rep. March 146, the first reported decision where such an order is made). When the Board has made an order concerning representation at arbitration, the nature of the order has been that the union and the grievor jointly select a lawyer to handle their presentation (see Leonard Murphy, supra; Bedard Gerard, supra). In the Leonard Murphy decision, (supra), the Board ordered that jointly selected counsel present the case at arbitration because the union officials had twice failed to fulfill their duty under section 68, that relatives of these officials had been hired as replacements for the discharged grievors and that the bad faith operative within the relevant union officials eclipsed the complainants' individual rights. In the Bedard Gerard decision, supra, the union had actively thwarted the grievances of the complainant even to the point of improperly writing up a grievance so that the grievor's real complaint was not set out. No order as to representation was made on the facts in the case before me because the nature of the union's actions were not comparable to these decisions nor raised similar concerns regarding the respondent's ability to represent the grievor's interests at arbitration without violating section 68. There was no evidence presented to me which led me to conclude that an order directing legal representation, either jointly or exclusively chosen by the complainant, was warranted. An order for separate independently selected legal counsel would be highly extraordinary. A remedy under section 68 should not change the essential character of the arbitration process. The respondent is the party to the collective agreement and the arbitration not the grievor (General Motors of Canada v. Brunet, [1972] 2 5CR. 537) and would have, except for a violation of a section 68, had exclusive selection over whether the arbitration was to proceed and how. The interests of a bargaining agent and the grievor are united before an arbitration board. Jointly selected counsel has been ordered only where the Board feels there would be no truly united representation of the arbitration case for the respondent and the grievor. The joint selection process is to ensure that this unity is restored. The exclusive selection of legal counsel would effectively remove the essential unity of the grievor's and union's interests at arbitration.

29The Board is not aware of any instance where a successful complainant has been permitted, as a remedy to a violation of section 68 of the Act, to unilaterally select the counsel to appear at an arbitration hearing with costs to be assumed by the Union. Where a breach of section 68 is established, the Board must, of course, devise an effective remedy. However the remedy repeatedly urged by counsel for the complainant would do violence to the legislative scheme which establishes the trade union as exclusive bargaining agent. These comments are intended to place the complainant's requested relief in the broader legislative context. Quite simply, had the Board found a violation of section 68 of the Act, the Board, for sound labour relations reasons, would not have granted the remedy sought by counsel for the complainant.

30For the foregoing reasons, the Board has concluded that the union has not contravened the duty of fair representation imposed by section 68 of the Act. As stated in the decision of May 27, 1985, the complaint is dismissed.