[1986] OLRB Rep. November 1541
2442-85-U Tony Medeiros and Joe DaCosta, Complainants, v. Canadian Union of Public Employees and its Local 1479, Respondents, v. Frontenac-Lennox & Addington County Roman Catholic Separate School Board, Intervener
BEFORE: R. Herman, Vice-Chairman.
APPEARANCES: Douglas F. CaIdwell and William Moore for the complainants; W. J. Hayter, R. J. Doyle and C. C. Jefferies for the Intervener; John Elder, Ed Scott and Frank Murphy for the respondents.
DECISION OF THE BOARD; October 28, 1986
Joe DaCosta and Tony Medeiros were convicted in criminal court of possession of an illegal substance, marijuana, which they admitted having stored in a school where one of them worked and were then discharged by the intervener School Board. Although a union official was present when an official of the School Board read to the complainants their respective discharge letters, neither that official nor any other member or officer of the union advised the complainants that the collective agreement required any grievance to be filed within five days. Each of the grievances subsequently filed on behalf of the complainants were filed beyond the five day period so stipulated. The complainants each allege that the respondent trade union failed in its duty of fair representation pursuant to section 68 of the Labour Relations Act in two respects: first, by failing to advise the complainants of the five day time limit for filing grievances pursuant to the collective agreement, and second, by the ultimate decision taken by the union Executive that their grievances not proceed to arbitration.
When the circumstances relevant to this complaint first arose, Joe DaCosta had been employed by the School Board for less than three months, and was still a probationary employee, and the complainant Tony Medeiros, had been a part-time employee of the Board for several years. The complainants worked at different schools as maintenance staff. On February 25, 1985, the police were called to attend at St. Michael's School, where a fellow worker had discovered a sports bag containing what appeared to be marijuana. Upon investigation, the police discovered within that bag a total 338 grams of marijuana and an identification card belonging to Tony Medeiros. St. Michael's School was at that time the school where Joe DaCosta was working. After obtaining a search warrant, the police attended at Mr. Medeiros' house, spoke to him and charged him with possession for the purposes of trafficking. Mr. Medeiros indicated that Mr. DaCosta had also been involved in the purchase and storage of the marijuana, and the police subsequently charged Mr. DaCosta with the same offence.
After both complainants were taken to the police station and gave written statements to the police admitting their responsibility, they contacted Mr. C. C. Jefferies, the Superintendent of Business for the School Board, and arranged to meet with him. Both complainants testified that they came away from that meeting with Mr. Jefferies assured that they would not be discharged as a result of the criminal charge and any subsequent conviction. As will be seen later, counsel placed a heavy reliance upon the assurances Mr. Jefferies gave the complainants, and upon the union's failure to adequately consider the effect of such assurances. However, the entirety of the evidence given by the complainants themselves supports the conclusion that they were not in fact assured that they would not be discharged; rather they hopefully assumed so. As Mr. DaCosta himself testified~ "We wanted assurances that nothing would happen with respect to our jobs. We were pretty sure we might get a jail term. He [Mr Jefferies] told us, he didn't assure us, but he told us that he was pretty sure the Board would not punish us a second time. We felt, when we left, hopefully that we would not lose our jobs." Whatever expectations the complainants might have had consequent upon that interview, I find that they were not promised that their jobs would be protected.
The complainants were not completely honest with Mr. Jefferies, as they did not advise him that the marijuana had been purchased, at least in part, for the purposes of resale to friends or the public, notwithstanding that both complainants had given written statements to the police indicating that such was the case. When originally purchased the marijuana had been intended for sale, but its quality was so inferior that the complainants considered it essentially unusable. Because of these quality limitations, the complainants had stored the marijuana in the basement of St. Michael's, for approximately two months, until the bag was discovered and the police called in. At the time, that school was not used by students, but only as a centre for teacher training.
After the charges were laid and the interview held with Mr. Jefferies, the complainants continued to work according to their regular schedules, and towards the end of March, 1985, they attended at criminal court where the Crown accepted a guilty plea to the lesser and included charge of simple possession. Each complainant was found guilty and received a $150.00 fine. In response to phone calls from Mr. Jefferies, the complainants both attended at his office around 7:00 p.m. on April 3, 1985. When Mr. DaCosta was called into the office, Mr. Jefferies was there along with Mr. DaCosta's foreman and Mr. Frank Murphy, the vice-president of the union who had been invited to the meeting by Mr. Jefferies. It is common ground that to this point the union was unaware of the events, as neither complainant had in any way approached the union about their employment problem, nor had the union in any other way been advised of any of the circumstances. The meeting on April 3, 1985 was the first occasion on which the union was made aware of the employment problems being experienced by the complainants. At that meeting, a termination letter was read to Mr. DaCosta by Mr. Jefferies, whereupon Mr. DaCosta left the meeting without discussing the letter or its contents, in order to have an opportunity to "get his thoughts together". Mr. DaCosta left the building and went home without returning to Mr. Jefferies' office. When Mr. Medeiros met with Mr. Jefferies the same scenario unfolded. The union vice-president was also present during that meeting, the termination letter was read to Mr. Medeiros, and Mr. Medeiros left the meeting without any conversation taking place between any of the participants. Both meetings or interviews consisted entirely of the termination letters being read to the two complainants and, without further conversation, the complainants leaving the office.
Coincidently, that same evening a union meeting was being held, in order to deal with the ratification of the proposed collective agreement. Both complainants were aware of that meeting, but neither attended. Mr. Ed Scott, the full time CUPE representative for this Local, was at the ratification meeting, waiting to begin the meeting, when he was approached by Mr. Murphy and given copies of the termination letters which the complainants had just received. Neither Mr. Scott, Mr. Murphy, nor any other officer of the union took any steps to contact either complainant after the meetings in Mr. Jefferies' office of April 3rd. Nor did the complainants take any steps to contact the union to request assistance.
Approximately three weeks later, Mr. DaCosta was put in touch with his current counsel, Mr. Caldwell, and he testified that for the first time he learned that he could file a grievance. Shortly thereafter, Mr. Caldwell phoned Mr. Scott to request that grievances be filed on behalf of both complainants. Although the time limits under the collective agreement were discussed, Mr. Scott indicated to Mr. Caldwell that the time limits should not pose any problem, as arbitrators had a discretion pursuant to the Labour Relations Act to waive such time limits and in the circumstances as Mr. Scott then understood them, the time limits ought not to pose any problem. Under the collective agreement, the individual employee must file a grievance, rather than the union, and steps were taken shortly thereafter to have the grievances typed, signed, and presented by the individual complainants to the School Board. Both complainants met with Mr. Scott in order to give their version of the events in question, and those interviews were taped and transcribed. Each complainant also provided handwritten statements to Mr. Scott setting out his position and version of the facts.
After the grievances were rejected, a meeting was held between Mr. R.J. Doyle, Director of Education for the School Board, and the complainants, Mr. Scott and the Executive members of the union. At that meeting, Mr. Scott presented the case for the complainants and attempted to have the School Board rescind the terminations. Although unsuccessful in this respect, both complainants were and remain satisfied with Mr. Scott's performance at that meeting.
A meeting of the union Executive was set up for May 27, 1985, in order to decide whether the grievances ought to be processed through to arbitration. Four members of the Executive attended that meeting, along with the complainants and Mr. Caldwell, their counsel. Counsel was given full and complete opportunity to make any submissions and present any evidence he wished at that meeting. The Executive thereupon discussed the grievance, and attempted to assess the merits and likely chance of success, taking into account the relevant circumstances and the submissions of counsel. They concluded that the grievances stood virtually no chance at arbitration. They based this in part on research on arbitral jurisprudence that Mr. Scott had conducted, on the fact that the School Board acknowledged the excellent work records of the complainants, the relatively short seniority of both complainants, and in particular the fact that the marijuana had been stored in the work place in one of the schools. They also considered the union's relations with the employer and what effect taking these grievances to arbitration might have upon such relationship and in turn upon the other employees in the bargaining unit. Part of such concern was based upon the serious nature of the offence in question, how negatively the employer School Board would perceive such an offence, and how the union's bargaining relationship with the employer might be adversely affected by taking such grievances to arbitration. They considered the historical interaction with the Board, and the particular stances and approach the School Board had taken with the union in its prior interactions. The Executive felt that they were at last making some progress in convincing the School Board that the union was a responsible bargaining agent, and the Executive was loath to jeopardize this progress. The Executive was also concerned that the nature of the employment offence, storing marijuana bought for the purpose of trafficking, in one of the Board's own schools, would be perceived quite negatively both within the community at large and by the School Board. The Executive was quite candidly concerned about the deleterious effect on their bargaining relationship of taking these grievances to arbitration, particularly given their assessment that the grievances had very little chance of success. The Executive voted unanimously not to proceed to arbitration with the grievances and the complainants were so advised.
The Executive provided, uncharacteristically, an opportunity to appeal the decision not to proceed to arbitration, and a special meeting of the Executive was held on June 5, 1985 to this end. Mr. Scott and three members of the Executive attended on behalf of the union, and complainants' counsel attended along with Mr. DaCosta. Mr. Medeiros was working at the time at a new job, and was unable to attend. At that special meeting, counsel was again given full and complete opportunity to discuss the facts or evidence and to make submissions. Counsel handed to the Executive various letters of reference with respect to the two complainants, and offered on behalf of the complainants that they would pay all financial costs of taking the matter to arbitration. The Executive confirmed their earlier decision that these grievances not be taken to arbitration, advising counsel and Mr. DaCosta that they based their decision on three factors: the seriousness of the offenses and particularly that the offenses involved the storage of illegal drugs on school property during school hours; the assessment of the Executive that there was little or no chance of winning at arbitration; and the potential negative effect on the bargaining relationship with the School Board.
A few additional facts merit consideration. Mr. DaCosta testified that he did have a copy of the applicable collective agreement, and had only started to read it when the events in question occurred. There was no suggestion that Mr. Medeiros did not similarly have a copy of the collective agreement. Mr. DaCosta also testified that towards the end of February, 1985, around the time the stored marijuana was discovered and the complainants charged, Mr. DaCosta's supervisor gave him the names of two union stewards and told Mr. DaCosta that should he have any problems with respect to employment he ought to contact them. Despite having the collective agreement, having begun to read it, and having been specifically advised by his supervisor that the union could assist him if he had any problems, Mr. DaCosta did not contact the union prior to the termination meeting of April 3, 1985, nor did he say anything to Mr. Murphy during that meeting, nor did he contact the union after that meeting in order to request its assistance. The first approach by either complainant to the union was through their counsel when counsel phoned Mr. Scott to request that grievances be filed.
Based on these facts, the complainants allege that the union violated the duty owed them under section 68 of the Act, when it failed to advise them, either at the termination meeting of April 3,1985 or shortly thereafter, of the five day time limit in the collective agreement for filing grievances, and indeed of the rights of the complainants to file grievances at all. The complainants allege a further violation in the union decision not to take their grievances to arbitration. Counsel alleges the union violated their duty in not investigating or considering relevant information, specifically the letters of reference provided by counsel to the Executive and the argument of estoppel, which argument arose, in counsel's submission, from Mr. Jefferies' "assurances" that the complainants' jobs would not be in jeopardy. Counsel further alleges that the union acted in an arbitrary manner when it considered the merits of taking these matters to arbitration and, in balancing the interests as it did, the union reached a wrong conclusion on the merits. Finally, though not specifically pleaded nor articulated during submissions, counsel appears to be suggesting an element of bad faith on the part of the union, as in considering the effect on the bargaining relationship with the employer the union was more concerned with its own reputation than with being fair to the complainants and properly assessing the merits of their positions.
In that regard it may be useful to refer to a passage from one of the cases referred to by counsel for the complainant, North York General Hospital [1984] OLRB Rep. Feb. 286:
The grievance and arbitration process is an essential component of a regime of collective bargaining. An employee who is fired, refused a promotion or otherwise dealt with by management in contravention of a collective agreement relies upon this legal mechanism for redress. Section 44(1) of the Labour Relations Act requires that every collective agreement provide for the arbitration of all contract disputes - or for their resolution by some other peaceful means. But direct access to an arbitrator is not statutorily guaranteed to an individual employee. Instead, the legislature has granted a trade union, the exclusive bargaining agent for all employees, the right to compel the employer to submit a grievance to arbitration. The union's exclusive authority is counterbalanced by its duty to fairly represent each employee. The duty of fair representation is found in section 68 of the Act:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
The double barrelled prohibition against discrimination and bad faith is calculated to prevent differential treatment on the basis of such criteria as race, creed, colour, sex and to preclude invidious conduct motivated by trade union politics, personal animosity and favouritism. See Prinesdomu, [1975] OLRB Rep. May 444 at para. 24; [1975] 2 Can. LRBR 310, at 315. This aspect of the duty of fair representation is important, but once the pertinent facts are proven, cases of this variety are easily decided. Giving meaning to the work arbitrary is a far more vexing task that must begin with an appreciation of the role played by union officials in contract administration.
In representing grievors, the officials of a union are called upon to perform two very different sorts of tasks; they investigate employee claims and act as advocates in the grievance process; and they also decide what grievances are to be abandoned, settled, carried to the next stage in the grievance process, or arbitrated. A fair representation complainant typically alleges that an official who acted as investigator or advocate did not exercise proper care or that a decision as to the disposition of a grievance was inappropriate. Although both counts are not infrequently combined in a single complaint, these distinct lines of attack throw up issues of labour law policy that are as different as the two categories of functions carried out by union officials.
A disgruntled grievor may challenge only the propriety of the union's decision not to pursue a grievance, and not dispute the union's investigation or advocacy. In this setting, labour relations boards have started from the basic premise that the pursuit of a grievor's claim may adversely affect other employees, and that a bargaining agent is best suited to choose between the competing interests of its constituents. As this Board said in Ford Motor Company of Canada, [1973] OLRB Rep. Oct. 519 at para. 38, a union is under "a duty to act fairly in the interests of all members, minority factions, as well as majority factions, individual employees as well as the collective group".
In that decision, the Board identified three collective concerns upon which an individual employee's contract claim may impinge. The resolution of many grievances calls for the reconciliation of conflicting job interests. When two person vie for a single job in the context of a promotion or layoff, a grievor's gain is someone else's immediate loss. More often, the disposition of a grievance will have a prospective effect upon members of the bargaining unit. An arbitration award (or even a settlement) will shape future arbitral decisions (and accommodations) to the detriment of some workers and to the benefit of others. As Professor Cox has demonstrated in "Rights under a Collective Agreement" (1956), 69 Harv. L.R.601, conflict among employees is not limited to matters of layoffs and promotions. On the other hand, some grievances - for example, most discharge cases - pose no threat to the jobs of a grievor's fellow workers. See Ford Motor Company of Canada, supra, at para. 38, 41 and 42.
The second group interest is in the smooth functioning of the grievance process. A well-oiled settlement mechanism is essential to a healthy collective bargaining relationship for two reasons. An agreement crafted by the parties is inherently more sensitive to their needs than is an award fashioned by a third party, who necessarily knows less than they do about the situation and their priorities and is constrained by existing contractual rights. Another advantage of informal settlements is the speed with which they can be fashioned as compared with the time necessary to adjudicate a dispute. These virtues of private accommodation can only be realized if a union does not press undeserving grievances and management responds with an equally cooperative attitude to meritorious claims. See Ford Motor Company of Canada, supra, at para. 42, 43 and 45.
Finally, the carriage of an employee claim through the grievance process to arbitration also consumes collective resources. Labour-management meetings occupy the time of paid representatives and distract volunteers from other activities. Arbitrators command large fees and the services of lawyers, who frequently appear as counsel at hearings, are expensive. These costs are borne not by a grievor, but by a trade union, or, more accurately, union members. See Ford Motor Company of Canada, supra, at para. 42.
In deciding the fate of a grievance, a union official must weigh these group concerns against the interests of the grievor. The force of a grievor's claim will vary greatly from one case to another. The benefit sought by a grievor may range from a few hours' pay in compensation for a missed overtime assignment to continued employment. An employee who is terminated is deprived of not only wages, but pension contributions, welfare benefits, and seniority rights, and severance will often cause emotional trauma and social upheaval as well. the force of an individual's assertion of a contractual right also depends upon the degree of support which a grievance finds in both the facts and contractual language which may be highly specific, but frequently is as open-textured as a clause permitting discharge only for just cause. The greater the merit of a grievance, the higher is the probability that it could be won and that an employee is prejudiced if it is dropped. Moreover, contractual rights may give rise to a reasonable expectation of a contractual advantage and expectation often leads to detrimental reliance. For example, a person who is in line for a merit increase may decline an offer of other employment. Finally, the past practice of a union may add weight to an employee's claim to enforce a collective agreement. A union which has previously arbitrated all disputes of a certain type - for example, discharge cases - but subsequently abandons such as grievances, violates the notion of equal treatment. Past practice which is known to an employee generates an expectation of continuity. See generally Rayonier Canada (B.C.) Ltd., [1975] 2 Can. LRBR 196 (B.C.) at 204; Prinesdomu, supra, at para. 27; and Barber Coleman of Canada Ltd., [1976] OLRB Rep. Oct. 13, at para. 17; [1977] 1 Can. LRBR 182, at 187.
These are the conflicting individual and collective interests that arise when a decision is made whether or not to press a grievance. To avoid being arbitrary, a union official must consider the relevant factors and engage in a "rational" process of decision-making: see Prinesdomu, supra, at para. 25. Such an approach to labour board review entails a high degree of deference to bargaining agents. Legal restraint is amply justified because a trade union is better able than a labour relations board to reconcile competing job interests, to ration the limited capital of the grievance settlement process, and to allocate group funds. These are essentially political tasks not amenable to legal regulation. In the words of Archibald Cox:
When the interests of several groups conflict, or future needs run contrary to present desires, or when the individual's claim endangers group interests, the union's function is to resolve the competition by reaching in accommodation of striking a balance. The process is political. It involved a melange of power, numerical strength, mutual aid, reason, prejudice, and emotion. Limits must be placed on the authority of the group, but within the zone of fairness and rationality this method of self-government probably works better than the edicts of any outside tribunal. (Law and the National Labour Policy, (1960), at 83 to 84.)
With respect to this aspect of the complaint, I conclude that the Union did not violate section 68 and in no respect acted in a manner that was arbitrary, discriminatory, or in bad faith in reaching the decision not to process the two grievances through to arbitration. To the contrary, I conclude that the union fairly represented both complainants in reaching the decision not to arbitrate. Although the union was aware of the discharges at the termination meeting of April 3, 1985, it was not until phoned by complainants' counsel that the union was made aware that the complainants were challenging, or seeking to challenge such discharges. At that point, the union took immediate action to investigate fully all the circumstances surrounding the discharges. They called the two complainants to come in and explain their version of the circumstances, they took immediate steps to have grievances filed, and they processed those grievances through the steps of the grievance procedure. At the appropriate step, Mr. Scott on behalf of the union presented the case for the complainants, and it is common ground that he fully and adequately represented the complainants at that step of the grievance procedure. When the grievances proved, as expected, unsuccessful through the steps of the grievance procedure, the Executive convened a meeting to consider whether the grievances should be taken to arbitration. At that meeting, the complainants attended with counsel and counsel was given full and ample opportunity to present their case.
Provided the union does not act in an arbitrary, discriminatory, or bad faith manner in reaching its decision not to arbitrate, it is open for the union to be wrong as to its assessment of the merits of proceeding to arbitration. It is not for this Board to decide whether the union arrived at the correct decision in deciding not to arbitrate. In my view the union properly considered all the relevant factors, including researching the applicable jurisprudence and law, considering all the circumstances of the offences, and in considering the stories of the complainants, and counsel's submissions, including letters of reference submitted in their support. The three factors or reasons given by the union for deciding not to arbitrate, the seriousness of the charges involved, the slight chance of success at arbitration, and the effect of arbitrating on the overall bargaining relationship with the employer, are all in my view proper factors to consider in reaching a decision. The evidence clearly establishes that the union fairly and sensitively considered all these factors and it cannot be maintained that they acted in an arbitrary or bad faith fashion in considering such factors or in reaching the decision which they did. The offence to which the complainants pleaded guilty, possession of an illegal substance, was a particularly serious offense given that the substance had been stored on school property. Notwithstanding the guilty pleas and the conviction for simple possession, the union was also aware that the marijuana had been bought for purposes of resale and that this would likely come out during any arbitration. Of further significance was the fact that this particular employer was a School Board, and understandably viewed very seriously drug offences within the work place. Reasonable as well was the union assessment that the community at large would also view quite seriously such an offence. Although counsel for the complainants pointed to various factors in supporting his submission that on the merits the grievances would have been successful (the Board ventures no opinion on this), quite apart from whether the grievances would have been successful at arbitration or not, it is clear that the union considered all the submissions and arguments put to it, balanced the interests of the complainants along with the interests of the membership at large, and reasonably concluded that the grievances should not be taken to arbitration. In reaching these decisions, the union did not give any weight whatsoever to the fact that the grievances were filed in an untimely manner. The factors they considered, independent of the timeliness problem, led them to conclude that the grievances should not be taken to arbitration. Recognizing the serious effect of discharges, the union afforded a further opportunity to the complainants and their counsel to convince the union that the two grievances ought to be arbitrated. Again, counsel for the complainants was given full opportunity, and the union again considered all relevant factors. Neither the decision not to arbitrate these grievances nor the process undergone in reaching this decision violates section 68 of the Act and the complaint with respect to this ground is hereby dismissed.
The second ground raised by the complainants is that the union violated its duty in neglecting to advise the complainants both of their rights to file grievances and that any such grievances must be filed within five days as set out in the collective agreement. This allegation is potentially relevant in two respects. First, if the union did violate section 68 in neglecting to so inform the complainants, and subsequently relied upon the untimeliness of the grievances in reaching the decision not to take the matters to arbitration, it could reasonably be maintained that this union breach of section 68 in some way "tainted" the decision not to take the matter to arbitration. The union would have relied on a factor which existed because of its own violation of the Act. However, as noted above, the union in no way placed any weight upon the untimeliness of the grievances in reaching the decision not to send the grievances to arbitration. Even if the union did therefore violate section 68 in its failure to properly advise the complainants as alleged, any such failure would not lead to a conclusion it had violated section 68 in its consideration of whether to take the matters to arbitration. That is, any breach arising out of any failure to advise the complainants would effectively have been nullified by the decision, properly taken in all respects, not to take the matters to arbitration.
But the failure to advise the complainants of their right to grieve and the five day time limit for so doing is relevant in another respect. The evidence before the Board shows that the School Board, in denying the grievances during the steps of the grievance procedure, relied at least in part on the fact that the grievances were untimely. While the eventual union decision not to take these matters to arbitration did not violate section 68 of the Act, it cannot be said that the employer would necessarily have taken the same stance throughout the grievance procedure had the grievances been filed in a timely fashion. Put differently, it was theoretically possible that the School Board would have agreed to revoke the discharges during the steps of the grievance procedure, had the grievances been filed in a timely fashion. Thus, if the union did violate section 68 in not indicating to the complainants the requirement that the grievances be filed within five days, the complainants argue that such failure and the resultant untimely grievances harmed them by reducing the chances that the employer School Board would reconsider the discharges. For this reason, it is necessary to consider whether the union did in fact breach section 68 by its conduct in remaining silent during the termination meeting, and by not seeking out and advising the complainants subsequent to that meeting, that they had both the right to file grievances and if so must file them within five days.
Counsel for the complainant referred the Board to a number of cases in support of this proposition (J. M. Schneider Inc., [1984] OLRB Rep. Mar. 467, North York General Hospital, [1982] OLRB Rep. Aug. 1190, North York General Hospital, [1984] OLRB Rep. Feb. 286) and characterized the issue as one of whether the union owed a duty to the complainants to inform them of their rights under the collective agreement. While of some assistance, none of the cases cited were directly on point to this issue. In the Board's view, the issue is not properly characterized as whether the union owes a duty to potential complainants to inform them of their rights under the collective agreement. Rather, the correct characterization is whether in the circumstances before the Board, the union breached section 68 by not advising the complainants of their rights to grieve and the requirement that they do so within five days. It is not a question of whether there was an affirmative duty placed upon the union to so advise the complainants, but whether failure to do so amounted to a violation of section 68 of the Act.
Although the Board only received direct evidence that Mr. DaCosta had a copy of the collective agreement, had begun to read it, and had been specifically advised that he should contact the union stewards, whose names he was given should any employment problems arise, given the constant interaction between the two complainants throughout the events in question, it can only be inferred that Mr. Medeiros similarly had a collective agreement and must have been aware that the union could be and ought to be approached should he have any employment problems. Notwithstanding these factors, neither complainant approached the union for assistance. The Board can only assume that at the relevant time the complainants did not require nor want the assistance of the union. Such an inference is consistent with the complainants' evidence that they felt assured after their meeting with Mr. Jefferies that their jobs would not be in jeopardy. At the termination meeting on April 3, 1985, neither complainant requested any assistance from the union. Again, the Board notes that the complainants were both aware that a union meeting was being held the same evening as their termination meetings, yet neither complainant attended at that meeting.
In my view the respondent union did not violate section 68 in not advising the complainants of their right to file grievances and the timeliness requirements in that respect. The complainants must have known that their jobs were in jeopardy, or at the very least, that some employment consequences might result from their activities; otherwise they would not have contacted Mr. Jefferies in late February, 1985 and sought his "assurances". Yet they did not contact the union throughout the relevant period nor evidence any desire that the union assist them. Similarly, distinguishing these facts from the applicable cited cases, the union in no way misrepresented or misinformed the complainants as to their rights under the collective agreement when asked about those rights. The union learned at the termination meetings on April 3rd that almost 1 1/2 months earlier the complainants had been charged with a criminal offence, but had not approached the union for help. During that meeting, when the termination letters were read to the complainants, neither complainant said anything to the union representative nor in any way requested the union to help. Even after the meeting, union assistance was not requested. The union reasonably assumed that neither complainant wanted the union to help them. The union therefore remained silent while awaiting some indication from the complainants that the complainants wanted the union to assist them. To hold that a union violates section 68 by awaiting some indication from potential grievors that they wish to complain about their treatment at the hands of the employer, would be to place an unreasonable burden upon a union. When a union learns that an employee has suffered employment consequences, but has not sought its help, though there has been ample opportunity to do so, it cannot be said that the union acts arbitrarily, or in bad faith, by declining to actively seek out that employee to advise them of their rights. If, as counsel for the complainants suggested, the union had a positive duty to seek out and advise the potential grievors of their rights under the collective agreement given that the union was then aware of the discharges, unions would be routinely and constantly required to approach employees and explain to them all their rights and obligations under the collective agreement. A union would be required to meet, individually or collectively, with all such employees and not only recite each clause of the collective agreement, but explain to the satisfaction of all employees what such clauses meant. It simply cannot be sustained that a failure to do so amounts to arbitrary or bad faith conduct within the meaning of section 68 of the Act. If any positive duty does exist, it is the duty of employees who want union assistance to so request it.
For these reasons, the Board dismisses the remaining aspect of the complaint in so far that it alleges a violation of section 68 in the failure of the union to advise the complainants of their rights.
At the conclusion of the hearing, after reserving on its decision, a request was made of the Board that the matter be reopened for further submissions with respect to this second issue; that is, whether the union breached section 68 in not seeking out and advising the complainants of their rights. This request was opposed by the complainants, and the Board reserved on this issue as well. As the hearing has been completed, and in light of the opposition of the complainants, the Board declines to so reopen the hearing.