[1985] OLRB Rep. September 1348
0286-85-U David T. Balint, Complainant, v. U.A.W. Local #444, Respondent, v. Chrysler Canada Ltd., Intervener
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members L. M. Stamp and S. O'Flynn.
APPEARANCES: Anne Balint and David Balint for the complainant; Jim O'Neil, Ken Gerard, David Wilson, M. J. Rankin, Eric Holt and Pat McNamara for the respondent; David Deluzio for the intervener.
DECISION OF THE BOARD; September 9, 1985
- This is a complaint under section 89 of the Labour Relations Act, alleging that the complainant has been dealt with by the respondent trade union contrary to the provisions of section 68 of the Act. Section 68 provides:
"A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be."
The complainant, Dave Balint, until his discharge in June of 1984, had been a millwright in the employ of the intervener Chrysler Canada for some 25 years. Reference was made in evidence to a considerable number of disciplinary incidents on the complainant's record, but no party sought to rely on those with respect to the issue before us, and no more precise statement of those incidents, or the respondent Union's role in mitigating the complainant's penalty with respect to any of them, is before the Board. Shortly before the events leading to the discharge here in question, the complainant had been assured by a number of management personnel, including the shift foreman Mr. Seguin, that persons in the classification of electrician would play no part in the performance of certain work normally assigned to millwrights. On the evening of Saturday, June 9th, however, the complainant observed two electricians carrying out work in a way that he considered a breach of that undertaking, and he became very upset. He is alleged by the company to have gone to Mr. Seguin's office and threatened him with physical assault, and also to have asked for the home number of another management official who had given the undertaking, because he wanted to "take him by the throat". Mr. Seguin is said to have directed the complainant to go home, until notified by the company to return to the plant, but the complainant refused to leave. Plant security personnel were then summoned to escort the complainant from the premises, but the complainant insisted that he would leave only if arrested by the Windsor Police. The Windsor Police were thus summoned, and asked the complainant to leave with them under his own power. The complainant stated, however, that he would leave only if taken out in handcuffs, because he wanted the media to see how he was being treated. The Police finally obliged.
The next day the Plant Committee, including the Skilled Trades' committeeman, Murray Rankin, met with the company in an effort to head off the complainant's discharge, which, in light of the complainant's most recent suspension of 30 days, was the result they feared. The committee did succeed in persuading the company to settle for another 30-day suspension, and the complainant was summoned to a meeting with the company to be informed of what was proposed. The complainant refused to accept the suspension, however, and became engaged in a heated exchange with the company's Personnel Manager, Mr. Cooper. The complainant left the meeting, and the trade union officials tried to calm Mr. Cooper down. Mr. Cooper ended the meeting indicating that the question of the complainant's discipline was still up in the air. The complainant was told by Mr. Rankin to leave the plant, and that the company had indicated a decision would be made by the following day.
The next day the complainant apparently waited outside the plant for a decision to be made about his status, but none was forthcoming. He then began to picket outside the plant gate with a sign making certain comments about Mr. Cooper, and Chrysler Canada in general. The company refused to discuss the complainant's case while the complainant was outside picketing and trying to prevent other employees from reporting for work. Mr. Rankin sent other representatives of the trade union outside to plead with the complainant to leave the matter to them to deal with in the grievance procedure, but the complainant did not wish to be restrained. Two days later, the respondent trade union was advised that the complainant was being discharged.
The respondent immediately filed a grievance for the complainant, and carried the grievance through each stage of the grievance procedure. Through those stages the respondent was made aware that the company had statements against the complainant signed by three management persons alleging to have witnessed the complainant threaten Mr. Seguin in Seguin's office, as well as the statements of Plant Security and the Windsor Police with respect to the complainant's refusal to leave the premises. The respondent's officers who were trying to persuade the company to re-instate the complainant asked the complainant if he could provide them with any evidence to support his own denials. The complainant each time he was asked responded that he had no witnesses because he and Mr. Seguin were alone in Seguin's office, but that he would bring in two elders from his Church, and that he would have the Minister read from the Scriptures, and that whoever had to be carried out was the liar. The respondent's officials explained to the complainant that, on the basis of the available evidence, there was little chance of the respondent successfully obtaining his re-instatement, either through the company or an arbitrator, and implored him to authorize them to seek to negotiate some kind of pension for him, while the opportunity was still there. The complainant in his meeting with the company immediately after the discharge apparently had indicated that it would cost the company $25,000 to get rid of him, and the respondent's officers tried to demonstrate to the complainant why such an offer was far less beneficial to him than a continuing pension. Finally, the complainant agreed to let them see what they could come up with.
The respondent thus approached the company with the idea of a pension for the complainant, and, to keep the matter alive in the meantime, posted his grievance to arbitration. The company was at first unwilling to do anything for the complainant, but finally agreed to the negotiation of a full total disability pension, beyond the terms of the collective agreement. The respondent then put this proposed settlement of his grievance to the complainant, but the complainant, after consideration of it, and in particular the amount he needed to maintain his house and family, indicated he still wanted to take his chances on arbitration.
That arbitration had been set for February 15, 1985, and a meeting was arranged with the International Representative who would present it, Mr. O'Neil, on February 13th. All of the evidence that the company had lined up against the complainant was reviewed at that meeting (the company had now brought forward additional witnesses), and the complainant was asked again whether he had been able to come up with any evidence to support his denials. The complainant once again responded that he had been one-on-one in Mr. Seguin's office, but that he was content to have the ritual with the elders performed before the arbitrator, and, again, the one that had to be carried out would be the liar. We gather from the evidence of the complainant that the International Representative responded to the complainant's proposed "defence" with words to the effect that he "wasn't anxious to make a fool of himself in front of the arbitrator".
At the same time, it is clear that the respondent's representatives were extremely disturbed by the prospect of the complainant losing his chance at a pension, and tried to persuade him to reconsider on that basis. The complainant, however, was adamant about going to arbitration. The Local's President, Mr. Gerard, accordingly stated to the complainant that the Union would proceed to arbitration with the case, if the complainant acknowledged in writing that the Union's advice to him was to the contrary, and that he would not come after the Union if the case went to arbitration and was lost. The complainant felt that the request for such an acknowledgment raised a question as to how hard the respondent intended to fight his case at arbitration, and refused to sign such a statement.
The respondent's representatives accordingly had to make their own judgment as to how to proceed and decided, on the basis of what they had to work with in arbitration, that it was in their member's own best interest to accept the settlement they had negotiated with the company. At some point that settlement was modified to include the additional provision that any outside earnings of the complainant would not be deducted from his pension benefits (although it is apparent that Chrysler was not prepared to permit the complainant back on company property in the employ of anyone). A written memorandum outlining the pension agreement was entered into with the company, and the grievance of the complainant was withdrawn. The complainant was very much opposed to this decision of the respondent, and thus the present proceedings were launched.
The only other development that might be noted in this case is that, subsequent to the first day of hearing, the complainant, facing a cut-off of his group-insurance benefits, attended at the company's offices and signed an acceptance of the pension negotiated for him by the respondent. The complainant pressed the company as to whether acceptance of the pension would prevent him from confirming the present proceedings against his trade union, and the company offered the opinion that it would not. The company advised the Board that it had felt duty-bound to honour its agreement with the union, up until the expiry date that had been agreed upon, and did not take the position that the complainant's action rendered his discharge grievance inarbitrable. The complainant indicates that he is prepared to give back the pension if he can succeed at arbitration.
Turning to the law with respect to section 68, the present case arises, as do most coming before the Board under that section, out of a decision of the bargaining agent not to proceed with a grievance to arbitration. About this the Board has said in the past, for example in Antonio Melillo, [1976] OLRB Rep. Oct. 613 at 615-16:
Most unfair representation complaints arise, as did this one, in the context of a union decision not to carry a grievance to arbitration. It is well established that the duty imposed on a trade union by section 60 (now 68) does not require it to process through to arbitration every grievance which a bargaining unit employee wishes proceeded with. An employee has no absolute right to have his grievance arbitrated (see Gebbie and Longmoore, [1973] OLRB Rep. 519.
And in the same vein in Chrysler Canada Ltd., [1979] OLRB Rep. July 618 at 624:
It has been the consistent jurisprudence of this Board that it will not second guess a union in its handling of a particular matter and that the section [section 60, now section 68] does not take away a union's right to determine not to proceed to arbitration in a particular case. The Board will, however, examine the union's handling of a grievance to determine whether the complainant has shown that he has been dealt with arbitrarily, in a discriminatory manner or in bad faith.
- There have been many articulations by the Board of what such an "examination" entails, and one that arose in the context of a discharge grievance provided as follows:
- ... With respect to the final discharge grievance, it must be borne in mind in considering the duty of fair representation, as the Board has frequently made clear in the past, "an employee has no absolute right to have his grievance arbitrated". See, for example, Gebbie and Longmoore, [1973] OLRB Rep. Oct. 519; Antonio Melillo, [1979] OLRB Rep. Oct. 613. Rather, it is the function of the Board, in administering the duty, to ensure only that the trade union has fairly "put its mind" to the merits of the grievance, has investigated and considered all of the relevant factors (and no irrelevant ones), and has arrived at a decision which, as evidence of its diligence and good faith, appears neither implausible nor capricious. If a trade union satisfies these minimum requirements under the Act, the decision is the trade union's to make. See Walter Prinesdomu, [1975] OLRB Rep. May 444; Dufferin Aggregates, [19821 OLRB Rep. Jan. 35.
See Parin Kasmani, decision of the Board in File No. 2579-81-U, released May 20, 1982.
We are all satisfied on the evidence that the respondent trade union has met that standard. The respondent has at all times demonstrated a keen and sincere interest in the welfare of its member, Dave Balint, and was prepared right up to the date of the arbitration hearing to consider any evidence which the complainant could direct them to in order to overcome the combined effect of the company's evidence and the complainant's prior record. While the complainant is not open to any criticism for the religious beliefs which he holds, neither is the respondent for being unwilling to adopt before an arbitrator the unorthodox "truth-seeking" procedure urged upon them by the complainant. The respondent did fairly turn its mind to the chances of the complainant's grievance succeeding, and it was not influenced by any improper considerations in so doing. Rather, we find the respondent to have been motivated solely by what it reasonably perceived to have been in the complainant's best interest, in accepting on his behalf the pension that it had succeeded in negotiating with the company, beyond any entitlement that existed for the complainant under the collective agreement. The respondent having, in our view, more than met the standard imposed upon it by section 68 of the Act, it is not for either the complainant or the Board to direct that the grievance ought to be proceeded with to arbitration.
The complaint is accordingly dismissed.