Ontario Labour Relations Board

[1985] OLRB Rep. June 841

2904-84-U Abdel Elejel, Complainant, v. International Molders & Allied Workers Union, Local 49 (London), Respondent, v. The Windsor Machine Company c.o.b. as Hifield Canada, Intervener.

BEFORE: Paula Knopf, Vice-Chairman.

APPEARANCES: Christopher Bentley, Arif Haidir, Marie Soucey, Carmella Vecchio and Abdel Elejel for the complainant; Frank Luce and Gord Plancke for the respondent; Norman A. Keith for the intervener.

DECISION OF THE BOARD; June 26. 1985

1. This is a complaint under section 89 of the Labour Relations Act that alleges that the complainant, Abdel Elejel, has been dealt with contrary to the provisions of section 68 of the Act. The complaint alleges that the Union is responsible for the acts of some of its officers in carrying out a course of conduct of harassment towards the complainant and ultimately deciding not to carry the complainant's grievance to arbitration despite the fact that the incident which led to the grievance was allegedly instigated by the Union officials them­selves. The complainant submits that the Union's actions constitute a breach of their duty of fair representation for acting in a manner that was arbitrary, discriminatory and in bad faith.

2. The hearing of this matter took four full days of testimony. The intervener was represented on the first day, however chose not to participate or appear in the remainder of the hearing. The evidence was characterized by a great deal of emotional testimony. Many of the key issues of the case turn on several findings of credibility. However, both the evidence of the complainant and the Union was marked by internal inconsistency as well as the inconsistent points of view of the two parties. Therefore, to some extent, a detailed review of the evidence is necessary.

3. Because of the allegations of the complainant, his background and ancestry are relevant to these proceedings. He is a gentleman in his fifties. He moved to Canada in 1972 from Jerusalem. He considers himself a Palestinian. He began working with the intervener (the Company) in 1980 and was one of the Company's first employees. Initially he worked as a janitor and at the time of the events which gave rise to these proceedings he was working on one of the machines.

4. The union gained bargaining rights in this Company approximately three years ago. The complainant is a member of that Union. Mr. Elejel alleges that his difficulties with the Union began some time between February and May of 1984. Initially, he believed that the difficulties began in May. He believes the reason for these difficulties stemmed from the fact that he refused to sign a petition that was handed to him by Bob Fleming, one of the Union's original organizers and Danny Paul, the Union's current plant chairman. Mr. Elejel says he initially refused to sign the petition because he is illiterate in English and could not read it. He asked what it said and was told by Mr. Fleming that it was "for the Union and in my favour and it was not going to harm anybody." However, upon asking the foreman, Mr. Elejel discovered that the petition was designed to ask the Company to fail to recall a worker, Marie Soucey, from layoff. When Mr. Elejel discovered the contents of the document, he refused to sign it. He said that after that refusal, the leaders of the Union and their followers refused to talk or associate with him any further and began a pattern of harassment against him.

5. A copy of a petition was entered into evidence by Marie Soucey. She testified that she received it, under her apartment door, on April the 4, 1984. The petition reads:

Due to the actions taken by Marie Soucey, No. 24 of starting a petition to decertify a union that is beneficial and solely for the good and rights of the employees of Highfield Corporation of Canada, we the employees of Highfield feel that she is only out for her own well-being and by trying to de-certify this union "is not and never has been a member in good faith." Therefore we the employees of Highfield demand that she not be recalled from layoff.

This petition bears the signatures of Mr. Fleming, Mr. Paul and 14 other employees, including two Union stewards, Grace Fletcher and John Wilding. Mr. Elejel was never asked to identify the petition when he testified. However, the petition was identified and acknowledged by the Union's witnesses, Mr. Paul, Ms. Mealier and John Wilding. In addition, they recalled it being handed to Mr. Elejel. Therefore, there can be no doubt that this is the same petition that Mr. Elejel referred to when he referred to the petition regarding Marie Soucey and his refusal to sign it.

6. Mr. Elejel claims that after his refusal to sign this petition, the Union leaders and their friends began to treat him with abuse. In particular, Mr. Elejel complained about the Plant Chairman, Danny Paul, the steward John Wilding and an original organizer, Bob Fleming. Mr. Elejel cites several examples of this abuse. He says that after he painted his car, he found it scratched with a hammer and a screwdriver in the Company parking lot. However, he does not know who did the damage. In addition, he says that on numerous occasions he would have his safety glasses taken away from him when he put them on the table in the cafeteria. He does not know who (lid this although he claims that Danny Paul, John Wilding, Bob Fleming and/or Darlene Mealier were present on the occasions when it happened. Further, he explained an ongoing problem he was having with the lights in the cafeteria. He claimed that the lights in the lunchroom were constantly being turned off when he was in the room. This frustrated him a great deal. The frustration erupted into an incident when he claims that Danny Paul and Bob Fleming incited another employee, Cathy Cowries, to keep turning the lights off every time that Mr. Elejel turned the lights on. In addition, the complainant says that Paul and Fleming said "Turn them off while the pig is here." Ultimately, the complainant threw a salt shaker which hit the light switch and broke it as well as the cover on the telephone. He denies he was throwing the salt shaker at Cathy Cowries although that was alleged by the Union witnesses. While the Union alleged that the Mr. Elejel was formally disciplined for this, there was no proof of such discipline and Mr. Elejel denies it. In any event, it is clear that the superintendent tried to resolve the dispute by fixing the light switches to keep them on. However, it is also clear that Bob Fleming then changed the switches back so that the lights could be turned off again.

7. In addition, Mr. Elejel claims that Danny Paul, John Wilding, and Bob Fleming made frequent insulting remarks to him about his ancestry. He says he was called such things as "P.L.O. Pig", "camel jockey" or "Paki". Further, they made insulting remarks about the hygienic practices of women in his religion. Mr. Elejel claims that Danny Paul would make most of the insulting remarks or "would lead the others to do it." This conduct was denied by the Union witnesses and, they in turn said that it was the complainant who discussed the hygienic practices of women in his religion. The evidence of Marie Soucey was that she heard Danny Paul call out to the complainant a very insulting sexual remark prefaced with the term "Hey Arab." However, Ms. Soucey cannot recall when this occurred. Ms. Soucey does recall Mr. Elejel complaining to her about this conduct.

8. Mr. Elejel also claims that Bob Fleming would purposely delay doing quality checks on the complainant's work so that it would be necessary to redo the work because the quality check had to be made before the work cooled to a certain temperature. Mr. Elejel feels that this conduct was done in order to make his production look insufficient. The Union called no evidence regarding this.

9. Mr. Elejel also complained that he was harassed by having a water bottle spilled or hidden from him as many as two or three times a day. Because he worked beside an oven he liked to keep the water bottle by him. However, he says he would often turn around to find the water spilled. Finally, the bottle went missing. He does not know who did this to him. Marie Soucey said that she once saw his water bottle in the garbage.

10. Finally, the complainant also claimed that he would frequently find his safety boots or work apron hidden from him. The safety boots were missing as many as six or seven times and it would often take him ten to fifteen minutes to find them. A couple of times Marie Soucey helped him find them in the garbage. Carmella Vecchio also found them once in the garbage. The apron was hidden from him twice and on the third time it could not be found. Again, he does not know who did this.

11. To corroborate these allegations, Mr. Elejel called two witnesses. One was Marie Soucey and the other Carmella Vecchio. Ms. Soucey discussed hearing Mr. Elejel complains to her about the incidents mentioned above and she confirmed that Mr. Elejel was treated differently after that petition had been circulated. She recalls the fellow workers calling Mr. Elejel names and "talking bad about him." She says that while Mr. Elejel used to be able to joke with the other workers, no one would talk to him after the petition. In addition, the complainant put into evidence a Notice dated June 4, 1984 over the signature of Howard Grieve, the production superintendent that reads as follows:

It has been brought to the Company's attention that several pranks have been played on some of the employees. So far, the pranks have been in fun, and not harmful, but before this affects the inter-employee relationship and subsequently the smooth operations of the plant, the Company would like to see a stop to all pranks played on any employee while on Company premises.

While there was no evidence directly linking this Notice to the pranks played upon Mr. Elejel, it is clear that Mr. Elejel did complain frequently about the pranks played upon him to Mr. Grieve. There is no evidence of any other pranks being played at that time on other employees. In addition, Danny Paul admitted that he was aware that Mr. Elejel believed that he was being harassed by these pranks, but Mr. Paul denies any knowledge of who was responsible.

12. Mr. Elejel blames Danny Paul for these "pranks". In Mr. Eleven’s words, "Being the head of the Union, I blame him because he is supposed to know everything going on in the Company with employees and put a stop to it.... I believe he knows about everything. ... I've seen him gathering with others and whispering and looking at me." However, other than his belief that Mr. Paul instigated these acts, Mr. Elejel has no evidence that Mr. Paul was directly or indirectly responsible for any of them. Further, it is the position of the Union that any religious or political comments or discussions or jokes that involved Mr. Elejel were of his own making. Dan Paul and Darlene Mealier recited sexual jokes and stories that they say were told openly and often by Mr. Elejel and which sometimes involved the sexual practices of women of his faith. Mr. Elejel himself denies making any such jokes saying his religion forbids him to do so. However, his own witness, Marie Soucey, recalls occasions when he did joke a lot with other employees and did tell jokes about sex.

13. It was suggested to Mr. Elejel in cross-examination that he would frequently "argue" about religion and politics with other employees at work. This was denied by Mr. Elejel although he did admit "discussing" it with some employees on occasion. The evidence of the Union itself was that while there may have been some discussions, there was no evidence of any arguments.

14. The next event which is important in this narrative is what occurred on August 29, 1984. This is the day that the incidents which gave raise to Mr. Eleven’s discharge occurred. The parties called a tremendous amount of evidence regarding the details of the events on this day. This case does not involve an arbitration of the merits of the discharge and therefore it is neither necessary nor appropriate to relate the various nuances of each witness' version of the events. Some of the details may be specified more fully below as they reveal important insights into the credibility of some witnesses on more crucial issues, but at this point suffice it to say that the following emerges as the basic story of what happened on August 29th.

15. By Danny Paul's own admission, he had placed oil and grease over the windshield, handle, and other parts of Mr. Eleven’s car in the parking lot during the two o'clock break on August the 29th. Mr. Paul did this because of his belief that Mr. Elejel had done the same thing to him the previous day. However, Mr. Paul had or has no proof that Mr. Elejel did indeed do this. Mr. Elejel himself denies doing such a thing. In any event, when the work day concluded at 3:30 p.m. on August the 29th, Mr. Elejel went out to find his car covered with oil and grease. Mr. Elejel was understandably upset when he saw this. As soon as Danny Paul emerged from the plant into the parking lot, Mr. Elejel confronted him believing that he was the person who had caused the harm. Mr. Paul alleges that Mr. Elejel struck his face with a greasy hand but Mr. Elejel denies this. In any event, Mr. Paul did get grease on his face at that stage and it must be concluded that it came from Mr. Elejel. Mr. Elejel then turned towards his car. Mr. Paul kicked Mr. Elejel in the seat of his pants. This may have been done gratuitously, as the complainant alleges, or it may have been done, as Mr. Paul alleges, as an act to prevent Mr. Elejel from picking up a stick of wood which Mr. Paul knew was in Mr. Eleven’s car. In any event, Mr. Elejel retrieved the stick of wood, which was approximately two feet long, from the back of his car. He turned around holding the wood and heard Mr. Paul say "You want to fight?" Mr. Paul admits saying that but adds that he also said "Put the stick down if you want to fight". What then followed was a chase with Mr. Elejel running after Mr. Paul around the parking lot. Mr. Elejel admits, "Obviously I lost control of myself; I had to defend myself." Mr. Elejel had no luck catching Mr. Paul, who is a much younger man. Mr. Elejel then next recalled seeing John Wilding. Mr. Wilding then threw his lunch box at Mr. Elejel, hitting him on the shoulder. Whether Mr. Wilding acted in self defense or as the aggressor in throwing his lunch box at Mr. Elejel is not the issue in this case. Mr. Elejel responded immediately by hitting Mr. Wilding on the head with the stick of wood. Mr. Wilding fell to the ground. Almost immediately thereafter the superintendent emerged on the scene. The piece of wood was taken from Mr. Elejel. Further, the superintendent spoke to Mr. Paul and Mr. Wilding about the incident.

16. As far as Mr. Elejel was concerned, the incident was over in the parking lot when he hit Mr. Wilding. Mr. Elejel then proceeded home after picking up his wife at her place of work. When he arrived home, he was greeted by three policemen who arrested him and took him into detention for assault with a dangerous weapon. He was held in custody for a number of hours and released on his own recognizance with terms that prevented him from returning to the area of his place of work. While Mr. Elejel says that he was told nothing by the Company at that time, he was told by the police that he had been fired. It is clear from Mr. Paul's evidence that he understood as of August the 29th that Mr. Elejel had been fired for his conduct in the parking lot. However, Mr. Elejel did not know this. Mr. Elejel did not and could not return to work because of the terms of his recognizance. He phoned Harold Grieve the following day to find out his status and was told that it was not true that he had been fired but that he would let Mr. Elejel know what would happen in one week's time. Mr. Elejel later received a letter dated September 6, 1984 advising him that his employment had been terminated effective September the 29th.

17. Mr. Elejel himself did not grieve the discharge. When asked why he did not, he asked in response "To whom should I grieve?" He went on to explain that he felt unable to go to the Company because of the police order keeping him off the premises. When asked why he didn't go to the Union he said "To whom should I go?… Which Union? …The head of the Union is the one who is causing me the trouble." In Mr. Paul's mind he believed that Mr. Elejel knew as of August the 29th that he had been fired and that Mr. Elejel had accepted that firing. Thus, no contact was made between either men. Mr. Paul indicated that Mr. Elejel could have contacted the other Union steward, Grace Fletcher, to have filed the grievance. However, it is clear that no such contact was made. Mr. Elejel said "I didn't get in touch with anyone, nor did anyone get in touch with me. I was surprised that no one cared about me.... I was wondering if my membership [in the Union] was still in effect."

18. What Mr. Elejel did do was hire his own lawyer. On or about September the 13th, that lawyer got in touch with the Union's International Staff Representative, Gord Plancke. In a telephone conversation between the two men, later confirmed in writing, Mr. Elejel's lawyer made it clear to Mr. Plancke that Mr. Elejel was taking the position that the Company and the Union were both responsible for Mr. Elejel's termination and that he would be holding the Union jointly responsible for any damages. Further, a demand was made that the Union act on behalf of Mr. Elejel. As a result of the telephone conversation, Mr. Plancke got in touch with Dan Paul on the same day and instructed Mr. Paul to file a grievance on behalf of Mr. Elejel. That grievance was not filed until September the 17th.

19. On September the 17th, the Union held its regularly scheduled executive meeting. At that meeting Dan Paul attended in his capacity as his plant's Chairman. In the course of giving his plant report he advised the Executive that a grievance had been filed on behalf of Mr. Elejel that would be brought before the local membership at the next meeting to discuss the issue of whether it should be taken to arbitration. The Union's president, Mr. Carl Hamilton, testified in agreement with Dan Paul that all that happened regarding the grievance was that the case was discussed and no recommendation was made by the Executive. Although Mr. Paul says "I gave all the facts" about the incident, Mr. Hamilton did not recall Mr. Paul also advising them that it had been he who had put the oil and grease on Mr. Elejel's car and that he had also kicked Mr. Elejel in the course of the events.

20. On September the 19th, Mr. Plancke had a meeting with the Company in an attempt to discuss Mr. Elejel's grievance. At that time, the Company took the position that the grievance had not been filed according to the time limits in the collective agreement and that it was improperly filed because it had not been signed personally by Mr. Elejel. Thus, the Company refused to discuss the case with Mr. Plancke.

21. The Union's local meeting was then held on September the 24th. The Local is made up of 20 plants which have approximately six to eight hundred members. The employees from the Company make up a bargaining unit of approximately twenty. At this particular Local meeting thirty or forty people were in attendance.

22. Mr. Elejel attended this meeting after receiving a call from Mr. Paul advising him that his case would be discussed at that meeting. Mr. Elejel appeared at the meeting with his lawyer and with his son-in-law who was to act as the interpreter for Mr. Elejel and the lawyer. Mr. Hamilton was the chairman of the meeting. At the outset, Mr. Hamilton noticed that there were non-union members present. Mr. Hamilton was not prepared to proceed in the presence of non-union members and asked such people to leave. After Mr. Elejel's lawyer explained the purpose of his presence and that of the son-in-law, Mr. Hamilton changed his mind and allowed the son-in-law to remain as the translator but insisted that the lawyer leave. The lawyer then did leave, instructing the son-in-law to take notes of everything which transpired and to prevent Mr. Elejel from speaking because of the pending criminal charges.

23. When the time came for the meeting to discuss Mr. Elejel's grievance, Dan Paul addressed the membership on behalf of the Local. There is considerable controversy over what was said by Mr. Paul and this evidence must be explored in detail. Mr. Paul said "I gave all the details" of the incident. He says he advised the membership that Mr. Elejel had two previous warnings for violence, that the dismissal was for violence, and that the grievance had been filed out of time. Thus, Mr. Paul advised the membership that they would likely lose at arbitration. Mr. Paul said "It's my job to state those things." Mr. Elejel's version of the meeting is somewhat different. However, it is to be remembered that his command of the English language is far from perfect and that he was dependent upon his son-in-law to translate the incidents of the meeting. What Mr. Elejel claims occurred was that Mr. Paul described the incidents of August the 29th. Further, Mr. Paul mentioned the incident with the salt shaker and that Mr. Elejel had received a suspension for that. He also recalls Mr. Paul mentioning that Mr. Elejel had circulated a petition to get rid of the Union. Mr. Elejel denies that this was the case and says "I am illiterate, how do you expect me to make such a thing?" The most detailed recollection of the meeting came through Mr. Elejel's son-in-law, Arif Haidar. He recalls Mr. Paul saying that Mr. Elejel was a "violent person" and "had a history of violence." Further, he recalls Mr. Paul saying that Mr. Elejel had thrown a fan at a woman and "always throws stuff" and had been suspended for this. Mr. Haidar also recalled Mr. Paul saying that he had hesitated to file a grievance on behalf of Mr. Elejel but that the Company had fired Mr. Elejel without regular procedures. Further, Mr. Elejel had started a petition against the Union. Mr. Paul denies mentioning any hesitancy, any irregular proceedings by the Company or anything about such a petition. Mr. Hamilton had no recall of these things being mentioned. Regarding the incident itself, Mr. Haidar recalls Mr. Paul saying that Mr. Elejel had found oil on his car, but Mr. Paul had said "I'm not going to say how it got there." Further, he recalls Mr. Paul telling the membership that Mr. Elejel had gotten the wood from his car and waited for employees to get out of work and had then started to "club everyone in the parking lot" as they came out. Mr. Hamilton says that he never heard anything about such clubbing and Mr. Paul denies saying all of that adding "I never referred to it as a club." However, it is interesting to note that throughout his testimony, Mr. Paul did refer to the stick of wood as a "club".

24. What is undisputed about the meeting is that it was Mr. Paul who made the motion to the membership that they vote not to take Mr. Elejel's case to arbitration. In the course of discussion about this, Mr. Elejel's son-in-law addressed the membership by advising them that Mr. Elejel was a father of eight and grandfather and was not a violent person. Thus he could not have done these acts. He mentioned something about Mr. Elejel not being allowed to say anything about the merits of the case because of the criminal charges pending. However, this was not understood by other people. Thus, nothing was said to the membership about Mr. Elejel's version of the events. A vote was then held and it must be concluded that the membership voted unanimously to decline to take the case to arbitration. It should be added that there is no evidence that Mr. Elejel was in any way restricted by anyone in the Union from speaking or appealing to the membership. However, on his own lawyer's advice, he did not defend himself at that meeting.

25. The incident of the fan mentioned to the membership and mentioned above in paragraph 23 bears some further elaboration. The evidence is clear that Mr. Elejel received a suspension on July 3, 1984 for throwing a fan at Cathy Cowie. Again, much evidence was presented by both parties regarding this incident with Mr. Elejel alleging that the allegations against him were "all lies." However, the suspension was never grieved and it is not now appropriate to pass judgment on the merits of the suspension or to determine exactly what happened in that incident. It is too late for the complainant to ask the Board to reopen that issue especially since no allegation was made that this incident involved a breach of section 68. Thus, the Board must accept that Mr. Elejel did receive a suspension for throwing a fan at Ms. Cowie. However, it is also interesting to note that at the time of the incident, Dan Paul assisted Cathy Cowie in her complaint to management about Mr. Elejel and no one from the Union spoke to management on Mr. Elejel's behalf.

26. The last fact which rounds out the sequence of events regarding this case is that Mr. Elejel was taken to trial in the County Court in January of 1985 on the charge of "assault with a weapon" against John Wilding. The trial was heard before a jury. Marie Soucey, Carmella Vecchio, Dan Paul, John Wilding and Mr. Elejel all testified. At the conclusion of the trial, the jury reached a verdict of not guilty. Almost immediately thereafter, this complaint was filed before the Board.

27. Having discussed the evidence that was presented, it is also appropriate to comment upon evidence which the Board decided to exclude. During the cross-examination of Mr. Elejel, the Union sought to question Mr. Elejel about an incident which occurred four years ago allegedly involving Mr. Elejel with violence against another employee. An objection was raised by counsel for the complainant. On questioning from the Board, counsel for the Union admitted that this incident was not raised or discussed at the Union meeting of September the 25th nor was it part of the information or considerations used by the Union in making its decision not to take the case to arbitration. Thus, the Board ruled that the evidence was inadmissible. If it had any possible relevance to the issues of the case, that relevance could only be marginal and such relevance was far outweighed by the potential prejudice that such evidence could engender. Thus, the evidence was ruled inadmissible.

28. In addition, during the examination-in-chief of Marie Soucey, counsel for the complainant tried to adduce evidence of harassment that Ms. Soucey had received from the Union Executive, especially harassment by Dan Paul. On objection from the Union, the Board ruled that this evidence was inadmissible as it bore no relevance to the course of conduct that the Union may or may not have had towards the complainant.

29. Comment must be made upon the credibility of the witnesses. The most lengthy and crucial witnesses were Mr. Elejel and Mr. Paul. I must conclude that neither of them was completely credible. Mr. Elejel denied that he had told jokes in the plant. He gave his lack of ability in English as one reason and his religious convictions prohibiting him from telling sexual jokes as the other reason. However, Mr. Elejel's own witness, Marie Soucey, volunteered that Mr. Elejel "used to joke a lot." Marie Soucey was a completely credible and forthright witness. Thus, Mr. Elejel's credibility was weakened by his own case. Further, when he denies hitting Dan Paul in the face after finding grease on his own hand, Mr. Elejel said "I opened my hands and oil came onto his face." Yet, Mr. Elejel claims this did not come from hitting Mr. Paul. This explanation simply cannot be believed. Thus, not all of Mr. Elejel's case can be accepted as factual where he depends only on his own evidence.

30. Similarly, Mr. Paul's credibility cannot be accepted as complete. His demeanour and testimony can only be described as evasive. After reluctantly saying that he did kick Mr. Elejel in the seat of his pants he said "so I'm told." He then admitted that he did make the kick but added "I'm not sure if the boot made contact." However, the witnesses called by the Union to support Mr. Paul who saw the incident all said that it was quite clear to them that Mr. Paul did in fact hit Mr. Elejel with the kick. Mr. Paul's unwillingness to be candid about that incident was typical of his evasiveness. Further, his cross-examination brought out a contradiction about his version of what happened with Mr. Wilding and the lunch pail in the testimony at the criminal trial and at these proceedings. In addition, he contradicted his own witness Cathy Cowie with regards to how far he was away from her during the incident when the fan was thrown. Mr. Paul says he was twenty feet away from the incident whereas Ms. Cowie said that she had to go to "find him" and that he was "quite a distance" away at his own work station. Because of these incidents and his demeanour, Mr. Paul's evidence cannot be accepted as completely trustworthy.

31. Comment must also be made on the evidence of Darlene McAleer. Except where her evidence was cited above, it must be concluded that her evidence was completely unreliable. The demeanour she presented to the Board was that of a person who was readily willing to colour the truth and evade the truth wherever necessary. When she was asked in cross-examination if she knew who had originated the petition regarding Marie Soucey, Ms. McAleer denied such knowledge. This in itself would not be disturbing except for the fact that when saying this she did it with a smirk and a smile which strongly suggested that she knew full well who had originated the petition. In addition, Carmella Vecchio said that she was called by Ms. McAleer on the telephone regarding the petition and asked to sign it. Ms. McAleer was not asked to deny this in examination in chief and it was not raised in cross-examination. Thus, the evidence of Ms. Vecchio must stand. It shows that Ms. McAleer was involved in the petition herself. This is a fact which she flatly denied. In addition, Ms. McAleer contradicted the Union's case in several minor aspects and gave testimony that no other Union witness offered which again shows her willingness to present her own version of the truth. For example, she denied that she had seen Dan Paul put the oil and grease on Mr. Elejel's car. However, unknown to Ms. McAleer because of the exclusion of witnesses, Mr. Paul had already told the Board that Ms. McAleer had seen him put the oil and the grease on the car herself. Further, Ms. McAleer described the incident between Mr. Wilding and Mr. Elejel as a "jostle". However, no other witness' description of that incident is in terms that come close to what anyone could characterize as a jostle. Ms. McAleer was presented by the Union to try to establish an incident on August the 28th allegedly involving Mr. Elejel and the same stick as was used on August the 29th. However, because of the Board's assessment of Ms. McAleer and her testimony, her evidence regarding the alleged incident on August the 28th is completely rejected.

32. Having mentioned the difficulty with some of the witnesses, the Board should also indicate that it found the evidence of Marie Soucey, Carmella Vecchio, Carl Hamilton, and Gordon Plancke to be entirely credible. Their testimony was all characterized by apparent honesty, a sincere attempt to state their position accurately and an evident desire to be candid with the Board. In addition, their evidence was all internally consistent. The Board is also accepting the evidence given by John Wilding except with regard to his version of the events after he was hit on the head by Mr. Elejel. Mr. Wilding's recall of these events does not accord with the evidence of other witnesses. The Board concludes that this contradiction is not the result of an attempt to mislead the Board but rather, the result of his confusion following the blow to his head.

Argument

33. Counsel for the complainant argued that the Union acted arbitrarily, discriminatorily and/or in bad faith by refusing to proceed to arbitration with Mr. Elejel's case. It was submitted that the key to this case was the fact that the incidents giving rise to the discharge involved two of the Union leaders, namely the plant chairman and the Union steward. Further, the incident on August the 29th was triggered by the plant chairman himself putting the grease and oil on Mr. Elejel's car. It was the same person who assumed the carriage of Mr. Elejel's case when it was brought before the Union Executive and the Local meeting. Thus, at all times, Mr. Paul was acting both as the instigator of the incident and in his capacity as plant chairman. Because of this, counsel for the complainant says that Mr. Paul was in the position of an impossible conflict of interest placing the Union in such a conflict which resulted in the Union inevitably breaching its duty towards the complainant. It was submitted that Mr. Paul's involvement on and after August the 29th taints any acts that the Union undertook on behalf of Mr. Elejel.

34. Regarding the indicents of August the 29th themselves, counsel for Mr. Elejel submitted that the importance of the evidence is that it illustrates the fact that the Union official, Dan Paul, despite his capacity as plant chairman, was willing to put oil and grease on a bargaining unit member's car and thus act completely improperly. Further, it was submitted that the facts should be found to establish that Mr. Elejel acted in self-defence and thus should not have been discharged for his conduct.

35. Regarding the evidence about the events from and after March of 1984 until August, counsel for the complainant said that they establish a course of harassing conduct against the complainant as a result of his refusal to sign a petition against Marie Soucey. It was said that even if the complainant brought some of it upon himself, none of it justified the way he was treated. Further, it was offered to place the incident of August the 29th in its proper context and explain the animosity between the complainant and Mr. Paul.

36. Counsel for the complainant asked the Board to find that the Union had breached its duty of fair representation. The relief requested was that the complainant be reinstated in his employment with full compensation. In the alternative, the Board was asked to refer the matter back to arbitration with an order entitling the complainant to retain independent counsel at the Union's expense. Further, an award of compensation for lost wages was requested in any event, or that it be contingent on the arbitration award. Finally, costs of these proceedings are requested. Counsel referred the Board to the following cases: Canadian Merchant Service Guild v. Gagnon, et al, (1984), 1984 CanLII 18 (SCC), 9 D.L.R. (4d) 641 (S.C.C), The Corporation of the Town of Oakville, [1984] OLRB Rep. May, 731, North York General Hospital, [1982] OLRB Rep. Aug. 1190, Bedard Girard Ontario, [1981] OLRB Rep. Oct. 1338, Leonard Murphy, [1977] OLRB Rep. March 146, Ford Motor Company of Canada, Limited, [1973] OLRB Rep. Oct. 519 and Re Tandy Electronics Ltd. and United Steelworkers of America, et el, (1980) 30 O.R.

29 [Div. Ct.].

37. Counsel for the Union stressed that in embarking on a review of the case, the Board should act in accordance with the principles set out in the Dufferin Aggregates case, [1982] OLRB Rep. Jan. 35. In other words, the Board was asked to review the matter as would a court on judicial review. The Board was directed to consider the situation at the Union meeting on September the 25th as the key to the case. Counsel for the Union argued that the evidence is that this Local decides what case goes to arbitration through the democratic process of having a membership vote. Thus, it was the Local's decision and that decision ought not to be lightly interfered with.

38. The Union argued that its conduct at the meeting was also entirely proper. The historical reasons for excluding anyone other than local members at Union meetings were recited. It was argued that the Union properly excluded the lawyer from the Union meeting and that no union would want this Board to suggest that lawyers must be allowed to participate in the internal affairs of a union at any individual member's request. In any event, it was argued that in the complainant's particular case he was the victim of poor legal advice from his lawyer because it was this advice which led him to fail to respond to the allegations made against him by Mr. Paul. It was suggested that this failure to respond inevitably resulted in the membership feeling that there could not have been any defence that could be made for Mr. Elejel. Thus they voted against it. It was stressed that it ought not to be the responsibility of the Union if Mr. Elejel remains silent at the meeting.

39. Further, it was stressed that Mr. Elejel's own failure to request that a grievance be filed or to process a grievance on his own authored his own misfortune. However, once the position was made clear to the Union that he wanted a grievance to be processed, it was argued that the Union, at Mr. Plancke's instigation, acted with due dispatch. In any event, it was also argued that anyone who had witnessed the incident on August the 29th would have been entitled to conclude both that Mr. Elejel had been fired for cause and that he had accepted the discharge. It was argued that Mr. Elejel's conduct was such that one would have to conclude that he acted with violence. This, coupled with his "history of violence in the work place," was said to justify the Union's decision not to proceed to arbitration.

40. Regarding the complainant's submission about the conflict of interest, counsel for the Union said that while there was no denying that Dan Paul was involved in the incident, his involvement "shrinks in importance" because of the fact that it occurred while Mr. Elejel was allegedly reaching for his stick. Further, the key element of that incident was the exchange between Mr. Elejel and Mr. Wilding.

41. Because of all this, the Union asked that the complaint be dismissed. In the alternative, the Board was asked to remit the issue back to the Local meeting for further consideration in order that this Board not diminish the trade union's practice of dealing with decisions such as this in a democratic way. The Union cited the case of the Four Seasons Hotels, [1984] OLRB Rep. Oct. 1406. In the event that any compensation was awarded, the Union asked that the date for calculating the compensation should not begin running until the time of the complaint, being January the 28th, 1985 because there was a four-month delay after the cause of action arose. It was suggested that the complainant had awaited the outcome of his criminal trial on January 14 and 15, 1985 before laying the complaint. Thus, the Union argued that it ought not to be responsible for the complainant's decision to await the outcome of his criminal trial. In addition, while the Union did not question the complainant's right to choose his own counsel in the event that the matter is remitted to arbitration, the Union did stress that this ought not to be at the Local's expense. It is the Local's practice to use an experienced leader of the Union for arbitrations and it was argued that it ought not to be put to the expense of hiring someone other than their own person. Finally, it was argued that this is not an appropriate case for costs to be awarded against the Union.

The Decision

42. The complainant alleges that the Union's conduct here amounts to acts which are arbitrary, discriminatory or in bad faith and that is contrary to 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.

43. In order for this complaint to succeed, the onus is on the complainant to establish on the balance of probability that the trade union acted in a manner that was arbitrary, discriminatory or in bad faith and thus contrary to section 68 of the Act. The function of the Board in determining whether section 68 has been violated is not to second guess the Union or substitute the Board's opinion as to what the Union ought to have done. The function of the Board has been set out in Ford Motor Co. of Canada, [1973] OLRB Rep. Oct. 519:

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 measure and solutions that have gained acceptance within that community.

44. In order to find arbitrariness, this Board would have to conclude that the Union failed to direct its mind to the merits of the complainant's grievances or failed to enquire into or act upon available evidence or conduct any meaningful investigation to obtain the information to justify its decision. Alternatively, arbitrariness could be established if the complainant could show that the Union acted on the basis of irrelevant factors or principles or displayed an attitude that was indifferent, capricious or non-caring towards the complainant. (See I. T.E. Industries Limited, [1980] OLRB Rep. July, 1001.)

45. To show bad faith, the complainant would have to establish hostility, ill will, dishonest dealing, an attempt to deceive or a refusal to process the grievance for sinister purposes. (See Chrysler Canada Ltd. [1979] OLRB Rep. July 618.)

46. The Board has set out the test for discrimination in The Municipality of Metropolitan Toronto, [1978] OLRB Rep. Feb. 143 as follows:

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 doing so. To avoid acting in a manner that is discriminatory, the union 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 its members and that it weigh the competing interests of minorities or individuals in arriving at its decisions.

47. With these principles in mind, we can now turn to the assessments of the facts of this case. The Board shall first address the conduct prior to August 29, 1984. This conduct allegedly involves a course of harassment by the Union against the complainant. However, as must be apparent from the recital of the evidence above, the complainant and his witnesses are unable to come close to proving that any of the particular acts of harassment which may have occurred were carried out by or on behalf of the Union nor can many of the incidents be traced to individuals. Mr. Elejel does not know who carried out the "pranks" of hiding his goods. Further, the aggravation he endured as a result of having the lights turned off against his wishes in the lunchroom can only be traced to individuals acting in their personal capacity. There is no evidence to link that to the Union. However, the evidence is clear that Mr. Elejel was treated very differently after he refused to sign the petition against Marie Soucey. The evidence is also clear that it was the Union's supporters who signed and assisted in the circulation of that petition. Mr. Paul admitted himself in his testimony that the employees had a change of attitude against Mr. Elejel after his refusal to sign the petition. However, Mr. Paul hastened to add that there was no change "so far as I was concerned." The Board must conclude that the circulation of the petition divided the employees into two opposing camps, that is, those who supported the petition and thus the Union, and those who did not. Thus, Mr. Elejel was fully justified in his own belief that individual supporters of the Union did harass him because of his refusal to co-operate with them. However, this Board cannot conclude that he has established a course of conduct by the Union against him prior to

August 29, 1984. What has been established beyond doubt by Mr. Elejel is that the pranks and harassment against him created a dreaful atmosphere in the work place. Even if Mr. Elejel was guilty of inciting religious or political arguments and discussions in the lunchroom, and even if he was the instigator of sexual jokes, nothing can justify the fact that his fellow employees began to play pranks upon him and hurled insults at him such as "P.L.O. Go home", "camel jockey", "pig" and "Paki." This would create an absolutely impossible working environment for anyone. The fact is that this behaviour was well known to the Union, as admitted by Mr. Paul, and it is clear that Mr. Elejel made several complaints to the Company. It is astonishing that nothing remedial was attempted by the Union or the Company other than a simple and quiet notice on the bulletin board to quell such behaviour. Thus, it is certainly not surprising that this atmosphere erupted into a terrible incident on August the 29th.

48. Exactly what happened on August 29th is not the issue for this Board to decide. What is important is how the Union responded to it. The Board agrees with counsel for the Union that the key to this case is the Union's conduct with regard to the discharge and

ultimately its conduct at the meeting on September 25th.

49. Although the complainant did not file or ask for a grievance to be filed immediately after his discharge, he cannot be faulted for this under these circumstances. One must remember that the incident that gave rise to his discharge involved both the Union's plant chairman and one of its stewards. While there was a third steward, Grace Fletcher, who is independent of all the incidents and circumstances raised in this case, one cannot hold it against Mr. Elejel that he did not approach her. While he would have been well advised to have approached her and asked for assistance, the Board is mindful of the fact that the conduct of Mr. Wilding and Mr. Paul led Mr. Elejel to believe that he could get no support or assistance from the Union. Thus, his choice of retaining a lawyer and having the lawyer contact the Union for him was, under all the circumstances, a justifiable course of action. This case is similar to that of Toronto Hydro Electric System, [1980] OLRB Oct. 1561 at paragraphs 10 and 11.

50. Once the Union was contacted by Mr. Elejel's lawyer and put on notice of the fact that it was being held responsible for Mr. Elejel's discharge, Mr. Plancke acted responsibly and professionally. He instructed Mr. Paul to file a grievance immediately. However, it must be noted that Mr. Paul neglected to file the grievance for a further five days. The collective agreement between the Company and the Union carries mandatory time periods for the filing of a grievance and an explicit waiver of section 44(11) of the Labour Relations Act. Thus, no relief from the mandatory time limits can be provided by an arbitrator. While it was not the Union's argument at this hearing that the grievance had been filed late, it was certainly the position of the Company towards the Union in September of 1984 that the grievance was filed late. While this Board need not determine the timeliness of the filing of the grievance or whether the grievance would have been timely had it been filed on or about September the 13th as Mr. Plancke instructed, Mr. Paul's neglect in responding promptly must be considered as a significant factor in this decision despite the fact that the weekend intervened.

51. Setting aside the conduct of Mr. Paul, this Board finds no breach of the Union's duty towards Mr. Elejel with regard to the conduct of Mr. Plancke on September the 19th in his meeting with the Company or on the part of the Union Executive in its meeting of September the 17th. On each of these occasions, the rights of the complainant were observed and respected.

52. However, the Board is forced to conclude that the conduct of Mr. Paul from and after August 29th, 1984 was such as to place the Union in a position that it could not and did not fulful its duty of fair representation to the complainant. First, Mr. Paul's conduct must be put in its proper context. It is to be remembered that he was a signatory to a petition designed to violate the seniority rights of Marie Soucey in April of 1984 despite his role as plant chairman and therefore leader of the Union. Again, despite this role, it was he who poured grease over the car of one of his union brothers, the complainant, on August 29th simply because he believed that Mr. Elejel had done it to him the day before. However, there was no evidence that this was the case. Further, this same union leader was observed on several occasions making racial taunts to the complainant. The inescapable conclusion from this evidence is that there was a high degree of animosity between Mr. Paul and Mr. Elejel and that the animosity was mutual. Further, Mr. Paul cannot be seen as a person whose union position and responsibilities prevented him from acting as he chose towards individuals and in a way that is uncharacteristic of a person who respects his professional union responsibilities.

53. The incident in the parking lot after work on August the 29th and Mr. Elejel's hitting of Mr. Wilding resulted in Mr. Elejel being discharged. On August the 29th, nothing was said to the Company on Mr. Elejel's behalf by a Union representative. Instead, Mr. Paul spoke to Howard Grieve on Mr. Wilding's behalf. Later, when Mr. Paul was discussing the facts of the incident with Mr. Hamilton, Mr. Platicke or the Union Executive, Mr. Paul never mentioned his own involvement with the incident of August the 29th nor that he had instigated it by putting the oil on Mr. Elejel's car. When Mr. Hamilton was asked whether he would have expected Mr. Paul to have advised him of all the facts Mr. Hamilton candidly responded "I would hope so." But the fact remains that Mr. Paul did not advise them of all the facts nor of the history of animosity in this situation. However, up to the point of the meeting of the Local on September the 25th, it must be said that no real harm was done to Mr. Elejel by the Union because up to that point the Union had protected Mr. Elejel 's interests as best as possible under the circumstances.

54. However, the circumstances changed at the Local meeting on September 25th. The Board finds as a fact that Mr. Elejel was given a full and fair opportunity to speak. The Board finds no fault with the Union for conducting its internal affairs in the absence of non-union members and deciding to exclude a lawyer who wished to speak on Mr. Elejel's behalf. This Board does not need to concern itself with such internal affairs in deciding whether there has been a breach of section 68 of the Act.

55. However, Mr. Paul's involvement at this meeting is another matter. It must be remembered that the people in attendance at the Local meeting came from a number of other plants. Very few in attendance could have had any personal knowledge of the events leading up to Mr. Elejel's discharge. Thus, they were completely dependent upon the synopsis of the events and the explanations presented to them by Mr. Paul in his capacity as plant chairman. The Board has concluded that in determining what occurred at that meeting, the evidence of Mr. Haidar is to be preferred over the evidence of Mr. Paul. We have already commented on Mr. Paul's credibility. But further, Mr. Haidar's evidence was the most detailed and was supported by notes which he made immediately after the meeting. His conviction regarding the meeting was not shaken in the able cross-examination. No other witness had as extensive a recall as Mr. Haider. However, even if Mr. Paul's version of the meeting is to be accepted in full several key facts emerge. First, Mr. Paul did not advise the membership of his own personal involvement in the events that led up to the incident on August the 29th or the incident itself. He did not admit that he had greased Mr. Elejel's car or that he had been involved in the initial violence on that day. Thus, unknown to the Local, Mr. Paul was both an actor involved in the incident and a person attempting to be an advocate without revealing his dual role. His position is analogous to one who tries to be a prosecutor, a witness, and a co-defendent at a trial. Thus, he is in a position of a complete conflict of interest. It is impossible for him to be objective as to his role as the plant chairman in presenting the facts because of his complete involvement in the incident. This lack of objectivity and complete conflict inevitably cast grave doubt upon the picture that was presented to the membership to assess upon their vote.

56. This Board wishes to encourage the democratic process of a union wherever possible. However, where a vote is taken on a decision as to whether or not to proceed to arbitration, that vote can only be "democratically" made when it is based upon a fair and objective presentation of the evidence. The membership of this union was prevented from obtaining such information because of the conflict of interest of Dan Paul when it was presented.

57. It is not a defence for the Union to say that Mr. Elejel could have spoken on his own behalf. Once Dan Paul undertook and fulfilled the role of prosecutor despite his conflict of interest, the democratic process of the Union was completely tainted. Mr. Elejel's silence cannot undo that taint.

58. An employee does not have an absolute right to expect that his grievance will be taken to arbitration. The union is fully entitled to properly weigh all aspects of grievances, even including discharges, to determine whether or not the union ought to undertake the expense of the route of arbitration. In making the decision, the union is entitled to exercise a discretion but must do so in a manner that is not arbitrary, discriminatory or in bad faith. Mr. Paul's lack of honesty to his own Union members left them in a position that the decision was not based on all the relevant facts. Further, Mr. Paul's lack of honesty with the membership and with regard to Mr. Elejel must be the responsibility of the Union as a whole. Mr. Paul's animosity towards Mr. Elejel must be seen to be such that Mr. Paul could not and did not act in good faith with regard to Mr. Elejel's circumstances. Again, Mr. Paul's lack of good faith must be accepted by the Union as its responsibility. Finally Mr. Paul's conflict of-interest deprived both Mr. Elejel and the Local itself of the opportunity to have the full and proper facts presented to form the basis of the decision. This amounts to arbitrary, discriminatory and bad faith conduct. See Windsor Western Hospital, [1984] OLRB Rep. Nov. 1643.

59. As a result of the foregoing, the Board concludes that, despite the professional and proper treatment given to Mr. Elejel by the Union Executive, Mr. Hamilton and Mr. Plancke, the Union must accept the responsibility for the conduct of the plant chairman Mr. Paul. Mr. Paul's conduct must be characterized as discriminatory, arbitrary and in bad faith as against Mr. Elejel with regard to his involvement in the Union's decision not to proceed to arbitration.

60. This raises the question of the appropriate remedy. Section 68 does not give a successful complainant the automatic right to have his grievance arbitrated. As the Board has indicated in Bedard Girard Ontario, supra:

Section 68 does not confer upon a successful complainant an automatic right to have his grievance arbitrated; where a union fails to take a grievance to arbitration and it is not obvious that arbitration is necessary, the Board may direct the union to reprocess the grievance from the point at which fair representation was denied.

61. Given the democratic structure of this Union and the Board's desire to encourage such a structure, it would normally be preferable to refer a case back to the Union to reconsider. However, in this case, the Board must conclude that a remittance of the complainant's situation back to the local membership would not be an effective remedy. The damage, or the potential damage done by Mr. Paul in his presentation to the Union membership cannot be undone by sending the matter back to the membership and hoping that they will treat the matter anew. It would be the equivalent of an appeal court sending a case back for a new trial before the same jury after declaring a mistrial. The unfairness created in the first proceeding could not be erased in the minds of the jury. Thus, the Board concludes that the only effective and fair remedy in the circumstances is to direct the Union and the Company to arbitrate Mr. Elejel's grievance forthwith, notwithstanding the time provisions in their collective agreement.

62. The Board also concludes that this is an appropriate case to order the Union to engage an independent counsel that is jointly chosen by the complainant and the Union to represent the Union in the arbitration of the grievance. This decision is made not because of any concern over the Union representative's ability to present a case effectively. Instead, the order is made because unless an independent counsel is engaged, the Union would be unable to effectively present an argument on behalf of Mr. Elejel given the position it has had to take during these proceedings. Precedent for the Board making orders such as these can be found in Leonard Murphy, [1977] OLRB Rep. March 146, Consumers Glass Co. Ltd., [1979] OLRB Rep. Sept. 861, The Corporation of the County of Hastings, [1979] OLRB Rep. Nov. 1072 and Bedard Girard Ontario, supra.

63. Finally, an award of damages against the Union in this case should be contingent on the success of the arbitration given that the complainant cannot be shown to have suffered financially from the Union's violation unless the discharge ultimately succeeds.

64. The Board therefore orders, notwithstanding the provisions of the collective agreement binding upon the parties hereto,

(1) that the parties arbitrate forthwith the discharge grievance of Mr. Elejel;

(2) that in the event that the grievance is successful at arbitration, the Board retains jurisdiction to deal with the issue of compensation that may arise up to the date of this award;

(3) that the Union engage and pay a counsel, jointly chosen by the complainant and the Union, to represent the Union in the arbitration of Mr. Elejel's grievance.

65. The Board remains seized of this complaint for the purpose of resolving any matter arising out of the implementation of the above order.