[1985] OLRB Rep. February 296
2651-83-U Richard McCormick, Complainant, v. The International Association of Machinists and Aerospace Workers Local Lodge 1673, Respondent, V. Worthington Canada Inc., Intervener
BEFORE: Owen V. Gray, Vice-Chairman.
APPEARANCES: James Ion for the complainant; James V. Goodison, Russell Wilson, Ron Houston, Vein Micks, Lloyd Perrin and Bob MacKay for the respondent; Wallace M. Kenny, Keith Robinson and Ron Whitfield for the intervener.
DECISION OF THE BOARD; February 18, 1985
- Richard McCormick was employed by Worthington Canada Inc. ("Worthington") until August 9, 1983, when he was discharged. He was one of about 70 employees in a bargaining unit represented by The International Association of Machinists and Aerospace Workers Local Lodge 1673 ("the union"). At the time of McCormick's dismissal, the union and Worthington were parties to a collective agreement under which any alleged lack of just cause for discharge could be the subject of a grievance and, ultimately, arbitration. McCormick's discharge was not the subject of a grievance; that, in essence, is McCormick's complaint against the union in these proceedings. In his complaint dated February 13, 1984, he alleges that:
On or about the 8th of [sic] 9th of August, 1983, and again on or about the month of December, 1983 the grievor was dealt with by Russell Wilson, President of the Respondent Local 1673 of the respondent company [sic] contrary to the provisions of section 68 of the Labour Relations Act in that he did on his own behalf or on behalf of the respondent act in a manner that is arbitrary, discriminatory, or in bad faith, by refusing to represent the interests of the Complainant who had been dismissed by the Company, without hearing the Complainant's version of the events leading to the Complainant's dismissal and by reaching the decision whether or not to fairly represent the Complainant based solely on information supplied by representatives of the Company, Worthington Canada Inc.
The Complainant was dismissed by the Company for allegedly stealing company property. The Complainant honestly believed at the time that he had the Company's permission to have possession of certain articles of company property off the company premises. When the Complainant approached Russell Wilson at the time of his dismissal, he was told that there was nothing the union could do for him and the Complainant was not given an opportunity to represent his version of the events. After consultation with legal counsel on or about the month of December, 1983, the Complainant again approached [sic] Russell Wilson to seek representation by the Respondent of the Complainant's position. At that time the Complainant was advised by Russell Wilson that it was simply to [sic] late to do anything; but, Russell Wilson did offer to attempt to obtain a grievance form and mail it to the Complainant. After one week, the Complainant again contacted Mr. Wilson to inquire as to where the grievance form was and the Complainant was advised by Mr. Wilson that he would not be receiving any grievance form.
As a result of an investigation by Worthington into the whereabouts of missing tools and equipment, police officers visited McCormick's home on or about August 4, 1983, and asked him whether he had anything which belonged to Worthington. He told them he did, and took them to the basement where he showed them certain items of company property which he claimed were in his possession with the permission of the company. The police took them and him to the police station, where he was charged with theft. Earlier that day the police had visited Lloyd Perrin, a fellow employee of McCormick's, to search the garage which Perrin had been renting to McCormick until that month. On the following Monday, August 8th, a third Worthington employee, Robert MacKay, was called into the plant superintendent's office. He was told that the police had found items belonging to Worthington in his garage; he explained his garage was rented to McCormick. When he left that meeting, MacKay spoke to Russell Wilson, President of the union. MacKay told Wilson he believed he might be fired, and that McCormick would be fired "for sure". Wilson asked why, and MacKay told Wilson what he knew of the police visit to McCormick's home and search of the garages of Perrin and MacKay. After reviewing the matter with MacKay, Wilson discussed it with the plant superintendent (as he then was), Ron Whitfield. Whitfield told Wilson about the searches and the company s position that McCormick had taken company equipment without authority. He said that no action would be taken against Perrin and MacKay. Wilson's next action was to call McCormick.
McCormick acknowledges receiving a telephone call from Wilson. He says Wilson told him he had spoken to Whitfield and Robinson (Worthington's Human Resources Manager), and that they would be dismissing him and would send him a registered letter to that effect. McCormick says Wilson then told him that he had spoken to James Goodison (the I.A.M. Grand Lodge Representative who services the respondent local union), and that McCormick should seek legal counsel. In his examination-in-chief, McCormick at first said he interpreted Wilson's remarks to mean that there was nothing they could do for him and that he ought to get a lawyer. Later in his examination-in-chief and in cross-examination, when asked to explain why he did not file a grievance or take the matter to a union meeting, McCormick said it was because Wilson had said that the union could not do anything. At one point in cross-examination, he claimed Wilson had said that the union would not do anything. McCormick remembers only one telephone conversation with Wilson that August.
Wilson says he initiated three telephone conversations with McCormick: one after Wilson's conversation with MacKay and two more the following day, one before and one after Wilson learned that McCormick would receive the registered letter concerning his dismissal. In the first conversation, Wilson asked what had happened. McCormick confirmed that the police had searched his basement and found company equipment, and that he had been charged. McCormick said he had had permission to take the items in question out of the shop. Worthington had an established policy that no company property of any kind was to be removed from company premises without the written permission of Whitfield, the plant superintendent. Wilson asked McCormick to see if he had anything in writing, and said that he would telephone Goodison to find out what could be done. He spoke to Goodison that evening. The following morning he called McCormick again. He told him he should cover himself with respect to the criminal charges by hiring a lawyer. He asked if McCormick had found anything in writing. McCormick said no. Wilson then said it would not be easy, but that McCormick should come in and see him, that they would go through the grievance procedure and see what happened. Shortly thereafter, Wilson learned of the registered letter confirming the company's decision to discharge McCormick, and called McCormick back to tell him that the letter was on its way. Wilson says McCormick told him be would be in to see him.
Perrin and MacKay both had conversations with McCormick after he was charged, either just before or just after he was dismissed. Each says he told McCormick he should see the union. McCormick told Perrin he would take care of it himself; he told MacKay he did not need the union. McCormick admits both conversations, but adds that he told Perrin and MacKay that the union would not or could not help him. Neither Perrin nor MacKay recalls McCormick saying that.
Whitfield testified that McCormick approached him on two occasions after his arrest: on Friday, August 5th, and again Monday, August 8th. McCormick had told the police that Whitfield and a foreman named Robillard had given him permission to take the company property found in his possession. When McCormick spoke to Whitfield on August 5th, he asked if Whitfield would back him up. Whitfield had not given permission with respect to the tools in question, and told McCormick he would not lie about that. McCormick returned the following Monday just before noon, and asked to speak to Whitfield again. Whitfield thought it best not to meet with McCormick alone. He told McCormick he wanted Keith Robinson present, and suggested that McCormick should have a union representative present. Whitfield says McCormick responded by saying, "I don't need them fucking guys — let's go on with it". They went on to Robinson's office, where Robinson also suggested that McCormick should have a union representative present. McCormick again rejected the suggestion. The note on which the meeting ended was that Whitfield and Robinson were treating the matter with the utmost seriousness, and would notify McCormick after they had sought counsel of senior management on the next step.
McCormick denies that either Whitfield or Robinson ever suggested he have a union representative present at his meetings with them. He claims he did not seek one out because none was about and, in any event, he did not think his job was in jeopardy. As to the availability of a union representative, Wilson testified that he saw McCormick, and McCormick saw him, on August 8th when McCormick came to see Whitfield the second time. Wilson was surprised McCormick did not come to see him then, and questioned Whitfield about that afterwards. Whitfield told him of the suggestions he and Robinson had made and of McCormick's having said he did not need the union present. As for McCormick's perception of the seriousness of his position, Whitfield testified that he told McCormick it was a serious matter and that during the meeting McCormick himself said he could lose his job over the theft allegation.
McCormick received the August 9th registered letter terminating his employment. He admits he was aware of the five working day period within which Article 11.3 of the collective agreement required that any claim of unjust discharge be initiated. He did not go to see Wilson.
No grievance was filed. There was no further telephone conversation between McCormick and Wilson in 1983. Although he had retained a lawyer to represent him with respect to the criminal charges, McCormick did nothing about his dismissal until late December, 1983, or early January, 1984, when he spoke to the retired former personnel manager of Worthington. He drew McCormick's attention to section 68 of the Act and suggested that he try to file a grievance before taking any action under that section.
On or about January 11, 1984, McCormick attended at the Worthington plant and tried to get a grievance form. He first went to the shipping office, and asked the shipping foreman to arrange for a union representative named John MeGlinchey to come out to speak to him. The shipping foreman said McCormick would have to speak to someone in the front office. McCormick went there and asked a secretary to call MeGlinchey out. She called Whitfield instead, and Whitfield told McCormick he would not send anyone out to see him. McCormick then asked his father, who works in the office, to try and get him a grievance form. It is not entirely clear what happened next, other than that his father did not or could not ultimately bring him a grievance form. Those attempts having failed, McCormick telephoned Wilson later that day and asked for a grievance form. Wilson assumed McCormick wanted the form in order to grieve his discharge the previous August. He told McCormick he was well beyond the time limit for filing a grievance, and asked why he was asking for a grievance form after such a long time. McCormick's response was, "Has everyone gone chickenshit in there? Why won't you give me a grievance form?" Wilson says he then said that McCormick was outside the time limits and he did not know whether he had the right to file a grievance. McCormick claims Wilson said he would try to get him a form "on the sly" and send it to him in the mail. Wilson concedes he may have said he would try to get a form for McCormick.
Wilson next contacted Goodison, and asked whether McCormick was entitled to a grievance form. They discussed the time limits in the collective agreement. Goodison advised him that at that time McCormick was no longer an employee or member of the bargaining unit, and would not be entitled to file a grievance. Nevertheless, Wilson went to Whitfield, who maintains a supply of forms for use by the union, and asked for a form. Whitfield asked who it was for. When he was told it was for McCormick, a discussion ensued. Wilson says the discussion ended when Whitfield said he would prefer not to give him a form, and Wilson left it at that. I should say there can be no doubt that Whitfield would have given Wilson the form had he pressed his request after hearing what Whitfield had to say. In not pressing the request, Wilson made his own decision not to give McCormick a grievance form.
When he had not heard from Wilson or received a grievance form in the mail, McCormick telephoned Wilson again on January 18th. McCormick's recollection of the conversation is that Wilson said he had spoken to Goodison, who had said McCormick was no longer an employee in the bargaining unit, and that he would not be getting a form. In this respect, McCormick's recollection is not inconsistent with that of Wilson. When his attention was drawn in cross-examination to the references in his complaint to some event in December, 1983, McCormick purported to recall that he had also asked Wilson for a grievance form on a previous occasion in December, 1983, and Wilson had denied him a form at that time, because he was no longer an employee and was, as McCormick recalls it, "way past my limit".
I am not called upon to determine whether Mr. McCormick was guilty of the criminal offense with which he was charged or, whether or not criminal liability could be established, of behaviour which constituted just cause for dismissal or any lesser discipline. The focus of this complaint is on the behaviour of the respondent trade union in its representation of McCormick. McCormick claims the union breached the standard prescribed by section 68 of the Labour Relations Act, which 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.
He complains that the union decided not to assist him in August, and did so without hearing his side of the story. The events of January, his counsel argues, are evidence that Wilson was not prepared to do anything for McCormick, either then or in August.
I find that Russell Wilson at no time refused to assist McCormick with respect to his discharge, either when it was imminent or once it had occurred. In that respect, I do not accept the evidence of McCormick that Wilson said the union would not and could not do anything for him. Having seen and heard McCormick, Wilson, Whitfield, Perrin and MacKay examined and cross-examined, I do not consider McCormick's evidence reliable when it differs from the evidence of any of the other four. Whether from failure of memory or the influence of self-interest, and I need not determine which, McCormick's stated recollection of events was unreliable. I also disbelieve the witness Nicholas, an opponent of the current union executive, who claims Wilson came up to him in the shop on August 8th and, out of the blue, told him that McCormick had been fired for theft, that the union was not prepared to do anything for McCormick and that he was going to tell McCormick to get a good lawyer. On the basis of the evidence of Whitfield, Perrin and MacKay, I find that McCormick did not wish to involve the union in the matter of his alleged theft and consequent dismissal. It was Wilson who approached McCormick; McCormick did not, in fact, ask Wilson or any other union representative to do anything for him in August, 1983. If that was because McCormick thought the union could not do anything for him, that was because he had so concluded, and not because Wilson had so stated. Wilson did tell McCormick the case would be difficult. Based on what he then knew and on what McCormick had been able or willing to tell him on the telephone, that does not seem an unreasonable assessment. Wilson specifically invited McCormick to come and discuss the case further, and to initiate the grievance procedure. He discussed with McCormick the time limits for filing a grievance. Indeed, McCormick knew about the time limits, having served a term on the grievance committee as a steward.
What more should Wilson have done? Counsel for McCormick says Wilson should have made an effort to initiate further contact, that he should not have let the matter go without having a personal meeting with McCormick, that he should have found out whether McCormick was really aware of his rights or wanted to pursue them. However, there is no suggestion in the evidence that McCormick was unaware of any rights he might have had, or that there was any reason for Wilson to suppose his message had not gotten through to McCormick. Indeed, it might be a matter of debate whether Wilson was obliged to take as active a role as he did. In any event, a trade union's duty certainly does not require it to foment grievances on behalf of reluctant grievors. In that regard, I would adopt the following conclusion of the British Columbia Labour Relations board in Charles F. Morgan, [1982] 1 Can LRBR 104 at p.1 11:
We reject the proposition that when a union learns that an employer has taken action against an employee — even if that action is dismissal from employment — the union is always under a duty to take action in the absence of a complaint from the employee.
Whether there are circumstances in which a trade union comes under a duty to take action on a potential individual grievance in the absence of a request from the potential grievor is a question which need not be considered here. In the circumstances of this case, it cannot be said that Wilson's conduct in August was arbitrary, and as it was not suggested that it was either discriminatory or in bad faith, it follows that there was no violation of section 68 in August, 1983.
Counsel for McCormick argues that Wilson acted arbitrarily in January, 1984, by not seeking an extension of the time for filing a grievance of McCormick's August, 1983, discharge. The proposition that he could or should have sought an extension was not put to Wilson in cross-examination, so he did not have an opportunity to respond to it and I do not have the benefit of his response in assessing this submission. When McCormick called Wilson on January 11th and made what I find was McCormick's first request for a grievance form, Wilson asked him why he was seeking a grievance form after such a long time. McCormick offered no explanation for the delay, nor did he request that the union take whatever steps it could in order to process a grievance which he knew was untimely in the extreme. That might have been Wilson's answer to the submission, had it been put to him. He might also have said whether he and Goodison discussed the possibility of seeking an extension. As it was not put to Wilson, I cannot assume against his interest and that of the union that he did not consider it and conclude that, in all the circumstances, and particularly in the absence of any explanation by McCormick for the delay, that it was unlikely in the extreme either that an arbitrator would exercise the power under subsection 44(6) of the Labour Relations Act to extent the time limit for filing the grievance or that the company would agree to waive or extend that time limit. Section 68 does not oblige a trade union to take extreme or indefensible positions. In these circumstances, I cannot find that the union acted in an arbitrary manner in not seeking an extension even assuming, without deciding, that it was obliged to consider doing so in the absence either of a request that it do so or an answer to its question about the reasons for the delay.
I had some concern when I heard his evidence that Wilson might have clouded the issue in the January 18th conversation by suggesting to McCormick that he was not sending a form because the company had refused him one. That was not why Wilson had not sent and would not send McCormick a grievance form. It is inappropriate for a trade union to mislead a grievor about the actions it has taken on his behalf and the reasons for them. Trade union prevarication can violate section 68, particularly if the complainant is prejudiced by being unable to respond to unexpressed concerns of which he is left unaware: see United Brotherhood of Carpenters and Joiners of America and Local Union 2737, [1980] OLRB Rep. July 1102. On further consideration, however, I am satisfied that McCormick was not mislead or prejudiced in that way. It is clear from the text of the complaint he filed and from the evidence he gave that in January, 1984, McCormick understood that the union would not then process a grievance on his behalf because of his extreme delay in raising the matter.
1 was also concerned about Goodison's advice to Wilson that McCormick was no longer an employee, as it seems that may, in turn, have formed part of the Wilson's explanation to McCormick. In a narrow sense, McCormick ceased to be an employee the day he was fired. It is clear that the respondent's duty to him did not come to an end at that point in time nor, obviously, is that what Goodison and Wilson either thought or meant. They were clearly focusing on the circumstances of McCormick's case: the failure to file a grievance or seek the union's assistance in August, 1983, and the unexplained delay in doing either thereafter. Their instincts were right; the language they used to describe their conclusion lacked some precision. Having regard to sub-section 1(2) of the Act, a dismissed employee remains an employee for the purpose of the Act, and therefore for the purpose of section 68, if the dismissal is contrary to the provisions of a collective agreement. Because that is the very issue which would be addressed in arbitration if arbitration were not precluded by the delay, it would have been more accurate to say that by his inaction and unexplained delay, McCormick had lost any opportunity to assert that he was still an employee. Again, however, McCormick knew exactly why the union would do nothing for him in January, 1984. He was not misled or prejudiced by any inelegance in its explanation to him of his legal position. He clearly understood from all Wilson said that his delay was the reason he was not being given a grievance form.
Taken in context and as a whole, Wilson's response to McCormick's calls in January, 1984, did not breach the union's duty under section 68.
In the result, a breach of section 68 has not been established. This complaint is, therefore, dismissed.