Ontario Labour Relations Board

[1985] OLRB Rep. March 415

0671-84-U Zorika Flanjak, Complainant, v. Local 310, Amalgamated Clothing & Textile Workers Union (Shoe Division) and Greb Industries, A Division of Warrington, Inc., Respondents

BEFORE: Robert D. Howe, Vice-Chairman.

APPEARANCES: Mark Grossman and Zorika Flanjak for the complainant; David A. McKee, Brian T. Michaud and Basil Gordon for the respondent trade union; Richard Nixon and Jim Litwiller for the respondent company.

DECISION OF THE BOARD; March 19, 1985

1. The names of the respondents are hereby amended to "Local 310, Amalgamated Clothing & Textile Workers Union (Shoe Division)" and "Greb Industries, A Division of Warrington, Inc." For ease of reference, the respondents will be referred to in this decision as the "Union" and the "Company".

2. This is a complaint under section 89 of the Labour Relations Act in which the complainant alleges that she has been dealt with by the Union contrary to section 68 of the 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.

[Lengthy review of evidence omitted: Editor]

50. Counsel for the complainant initially alleged that the Union had acted arbitrarily, discriminatorily, and in bad faith. However, at the commencement of his argument on January 15, 1 985, he conceded that there was no evidence of discrimination or bad faith. Thus, the case was argued solely on the basis of arbitrariness. In considering the scope of that term in the context of section 68, the Board wrote as follows in ITE. Industries Limited, [1980] OLRB Rep. July 1001:

51. Bad faith, malice, discrimination, or subjective ill will are clearly proscribed and readily ascertainable; the real difficulty is to determine when a union's conduct may be properly regarded as "arbitrary" — bearing in mind that the union's affairs may be conducted by laymen with limited formal education, or elected officials who may have been chosen for qualities other than their legal training or understanding of parliamentary procedure. While the Legislature undoubtedly sought to protect the employee from an abuse of the union's authority, I do not think it was intended that every miscalculation, honest mistake, or error in judgment would constitute a breach of a public statute. The standard to which a union must adhere was described in Ford Motor Company Limited, [1973] OLRB Rep. Oct. 519 as follows (at paragraph 40):

"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 within that community; see Fisher v. Pemberton et al. 1969 CanLII 726 (BC SC), 8 D.L.R. (3d) 521 at p. 546."

Similar views were expressed in Re: Ontario Hydro Employees' Union — CUPE Local 1000 and Walter Prinesdomu, 11975] OLRB Rep. May 444, at p. 462 ff. in a long passage which canvassed the intended meaning of the word "arbitrary":

"In using the word arbitrary both the United States Supreme Court and the Legislature of this Province must have envisaged the duty constituting more than the simple castigation of subjective ill-will in that any other interpretation would render the use of this word superfluous. Thus, a well known rule of both statutory and contractual construction militates against the respondent's particular submissions in this regard. But where does this path lead? Some insight is gained from the Vaca case wherein Mr. Justice White juxtaposed the word arbitrary with the word "perfunctory" and observed that a trade union, "in a non arbitrary manner [must] make decisions as to the merits of particular grievances". It could be said that this description of the duty requires the exclusive bargaining agent to put "its mind" to the merits of a grievance and attempt to engage in a process of rational decision-making that cannot be branded as implausible or capricious.

26. This approach gives the word arbitrary some independent meaning beyond subjective ill-will, but, at the same time, it lacks any precise parameters and thus is extremely difficult to apply. Moreover, attempts at a more precise adumbration have to reconcile the apparent consensus that it is necessary to distinguish arbitrariness (whatever it means) from mere errors in judgment, mistakes, negligence and unbecoming laxness. .

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."

19. It is clear that in order to establish a breach of section 60, a complainant must do more than demonstrate an honest mistake or even negligence. The union must have committed a "flagrant error" consistent with a "non caring attitude", or have acted in a manner that is implausible" or "so reckless other words, the trade union's conduct must be so unreasonable, capricious, or grossly negligent, that the Board can conclude that the union simply did not give sufficient consideration to the individual employee's concerns. Honest mistakes or innocent misunderstandings are clearly beyond these parameters and do not attract liability.

See also Smith & Stone (]982} Inc., [1984] OLRB Rep. Nov. 1609; Swing Stage Ltd., [1983] OLRB Rep. Nov. 1920; 5 Can. LRBR (N.S.) 108; Bedard Girard Ontario Limited, [1981] OLRB Rep. Oct. 1338; Leonard Murphy, [1977] OLRB Rep. March 146; Diamond "Z" Association, [1975] OLRB Rep. Oct. 791; and International Woodworkers of America Local 2-700, [1972] OLRB Rep. Oct. 916. See also R. E. Brown, The "Arbitrary", "Discriminatory" and "Bad Faith" Tests Under the Duty of Fair Representation in Ontario (1982), 60 C.B.R. 412 at pp. 440-448.

51. Complainant's counsel submitted that the Board should find the Union to have arbitrarily represented the complainant by permitting the decision not to refer her grievance to arbitration to be made by the Union Committee, without providing for a right of appeal from that decision to the membership. However, it was Mr. Michaud's uncontradicted evidence that such decisions have always been made by the Committee and have never been taken to the membership. In this regard, I find there to be no merit in counsel's submission that the absence of such an appeal is itself a violation of the section 68 prohibition against arbitrary representation. The Board has long recognized that the procedures utilized by a union in disposing of grievances vary from union to union, and that an attempt by the Board to impose uniformity could create chaos in union procedures. (See, for example, RCA Limited, Prescott, Ontario, [1974] OLRB Rep. Jan. 60.) Thus, it is open to a trade union to permit decisions concerning whether or not to arbitrate particular grievances to be made by a committee rather than by the general membership. Such a procedure may reflect the desire of the membership to have such decisions made by persons who, through experience or training, have developed greater expertise than other members concerning such matters, or by persons with greater familiarity with the merits of the grievance and the terms of the collective agreement. It may also reflect a need to delegate decision-making functions in the interests of efficiently operating a local which handles many grievances or is heavily involved in other activities such as collective bargaining or organizational activities. Mr. Michaud's evidence (on cross-examination by complainant's counsel) is instructive in this regard. He testified: "The membership elects the Committee and entrusts the Committee with decision-making power. If you had 250 people telling you what to do you'd never get anything done."

52. Complainant's counsel further submitted that a breach of section 68 should be found on the basis that Union officials did not advise the complainant of the appeal provisions set forth in Article XII of the Constitution of the Amalgamated Clothing & Textile Workers Union. However, it is clear that the complainant suffered no harm or prejudice as a result of not being apprised of that constitutional provision since, as conceded by her counsel in argument, the travelling expenses and other costs that would have been involved in pursuing an appeal under those provisions rendered them impractical in the circumstances of this case. Thus, it is unnecessary for the Board to decide the academic issue of whether failing to advise the grievor of that avenue of appeal constituted a breach of section 68.

53. Counsel for the complainant acknowledged that a trade union is not required by section 68 to consult with a lawyer before deciding not to pursue a grievance to the final step of the grievance procedure or to arbitration, but he contended that the Union contravened section 68 in the instant case by arbitrarily declining to accept an offer of free legal advice.

However, there is no evidence before the Board that any such offer was ever made. The evidence merely indicates that complainant's counsel spoke with Mr. Michaud on the telephone in an attempt to obtain information from him concerning her grievance, and wrote to Mr. Michaud on May 14, 1984, to request that "a third step grievance" be filed on behalf of the complainant. In that letter complainant's counsel also indicated that he would recommend that the complainant proceed against the Union under 89 of the Labour Relations Act unless Mr. M ichaud agreed to pursue the matter further.

54. The complainant was not candid with her Union representatives in a number of respects. As noted above, it was not until the second step meeting that she suggested that the absence of Dr. Pizans on vacation was the reason that she had failed to provide the required medical documentation in a timely fashion. Up to that point, her sole explanation to the Union (and the Company) had been that her doctor had refused to provide it and had told her that she did not have to provide the information requested by the Company because he had more authority than the Company. In this regard, it should be noted that the issue of why the complainant had failed to provide adequate medical documentation in a timely manner was~ to the knowledge of all concerned (including the complainant), one of the key issues in respect of the merits of her grievance. The complainant also did not tell her Union representatives that she was pregnant. Indeed, Mr. Michaud did not find that out until the first day of hearing of this complaint. While that fact would not itself have been determinative, the complainant's failure to divulge it reflects her unwillingness to candidly apprise the committee of all of the facts which might be pertinent to her grievance. As noted by the Board in the Regional Municipality of Durham, [1979] OLRB Rep. Dec. 1277, at paragraph 26, "[employees] who expect a standard of fairness from their trade union must be prepared to deal fairly with their trade union as well." As further noted in that case, a grievor's lack of openness or candour with his or her union representatives is wholly unacceptable as it may lead to a situation in which "the employer can never be certain to what extent the union itself has knowledge of the true facts, and the union's credibility may thereby be undermined, to the great detriment of other members of the bargaining unit and the trade union's continuing relationship with the employer."

55. At all material times, Mr. Michaud was unaware of the provisions of section 44(9) of the Labour Relations Act. Thus, he did not give any consideration to the issue of whether, through arbitration, a lesser penalty might be substituted for the complainant's termination. In this regard, it was his understanding (from his involvement in various arbitration proceedings launched by the Union) that an arbitrator "could not rule outside of a collective agreement" or change its terms, and, therefore, could only give relief to a grievor if the Company was found to have violated a specific provision in the collective agreement. Thus, he saw "compassionate grounds" as being the only basis on which the Company's actions could be challenged, and he did not think such challenge would succeed in view of the complainant's lack of candour and failure to provide the Company with proper medical documentation in a timely manner. Mr. Michaud's lack of awareness of that provision is somewhat troubling. However, as noted above, Mr. Gordon was aware that an arbitrator had such power in some circumstances but concluded, after considering the merits of the grievance on the basis of all of the information which he received from Mr. Michaud, the other members of the Union Committee, the complainant, and members of management, that an arbitrator would be unlikely to exercise such power in respect of the complainant's termination in view of the provisions of Article 17.02 by which an employee whose leave of absence for illness or injury expires before he (or she) is ready to return to work "shall be classed as a resignation as of the last day of his approved leave of absence." As submitted by Company counsel, it is open to question whether section 44(9) would empower an arbitrator to override that provision. Under the circumstances, although the matter is not entirely free of doubt, I have concluded on balance that it cannot legitimately be said that the failure by the Union Committee and Mr. Gordon to give greater consideration to the applicability of section 44(9) constituted arbitrary representation of the complainant in the circumstances of this case. The same is true of Mr. Michaud's failure to advance as an argument on behalf of the complainant the distinction (noted by complainant's counsel) between termination and resignation. As indicated by the Board in the Smith & Stone (]982} Inc. case (supra), the mere fact that a union representative is not aware of a possible argument, or does not discover such argument, does not amount to arbitrariness. (In that case, a U.A.W. International Representative who presented a grievor's case at arbitration was unaware of an "emerging body of case law" under which a probationary employee may have a right to grieve his or her discharge under a collective agreement which purports to deny such employees access to grievance and arbitration procedures.) Having regard to the totality of the evidence, I am satisfied that the fact that Mr. Michaud did not discern or advance that argument in the circumstances of this case does not support a finding of a "non-caring attitude" or a "summary approach" that can be considered to be "reckless, capricious or grossly negligent". Taken at its highest, it constituted only a mistake or error in judgment which did not amount to a breach of section 68.

56. Having carefully reviewed and considered all of the evidence and the submissions of the parties, I have concluded that the complainant has not established a contravention of section 68. The evidence as a whole indicates that Mr. Michaud and the other Union officials involved in handling the complainant's grievance directed their minds to that grievance and concluded, after attempting to persuade the Company to restore the complainant's employment, that it would be fruitless to pursue the grievance beyond the second step. In reaching that conclusion, they considered the pertinent provisions of the collective agreement, including Articles 8.01 and 17.02, and their understanding of the meaning of Article 17.02, gained through the negotiations which resulted in that rather unique language. They also considered the plausibility of the various reasons advanced by the complainant for failing to provide adequate medical documentation in a timely manner, and the fact that those reasons had changed during the course of the grievance procedure. They also attempted to persuade the Company to restore the complainant's employment on compassionate grounds, but those efforts, including a private meeting between Mr. Michaud and Mr. Sperling, were unsuccessful. The basis of their decision not to proceed to the third step before deciding against arbitration was their past experience which indicated that a grievance would never be allowed at that stage unless it involved a clear violation of the collective agreement, which they had concluded, with the assistance of Mr. Gordon, that the complainant's did not. If I were to direct the Union to proceed to the third step or to arbitrate the grievance in the circumstances of this case, I would be "second guessing" the Union Committee's decision on the basis of medical evidence not available to Union officials at the time of their decision, and on the basis of extensive legal submissions concerning the merits of the grievance, presented by the three capable lawyers who represented the respective parties in these proceedings, which submissions were also not before the Union Committee. Such "second guessing" would be inappropriate for, as noted by the Board in Ford Motor "Company Limited (supra), the standard applied by the Board in cases of this type is not "based on what this Board might have done in a particular situation after having the leisure and time to reflect upon the merits".

57. In view of my conclusion that no contravention of section 68 of the Act has been proved, it is unnecessary for me to decide whether, as contended by Company counsel, the Board lacks jurisdiction under section 89 of the Act to direct that a grievance be arbitrated on its merits, notwithstanding the timeliness and other provisions of a collective agreement which might otherwise preclude the arbitration of such grievance on its merits.

58. For the foregoing reasons, this complaint is hereby dismissed.