[1986] OLRB Rep. May 585
1129-85-R Mike Brinovec, Complainant, v. Sheet Metal Workers International Association, Local 575, Respondent
BEFORE: Patricia Hughes, Vice-Chairman.
APPEARANCES: Mike Brinovec on his own behalf; Guy Beaulieu and Celso Adriano for the respondent.
DECISION OF THE BOARD; May 14, 1986
This is a complaint under section 89 of the Labour Relations Act ("the Act") in which Mike Brinovec, the complainant, alleges that the respondent, the Sheet Metal Workers International Association, Local 575 ("the union"), contravened section 68 of the Act. He claims that the respondent did not represent him fairly because it failed to take his grievance to arbitration. The respondent claims that it has fairly represented Mr. Brinovec.
The Board first considered this allegation on October 1, 1985. At that time, the Board, differently constituted, in an oral decision (issued in written form October 4, 1985), adjourned the hearing on the agreement of the parties in order to permit the parties to engage in the fourth step of the grievance procedure, the settlement officer stage. The period of adjournment, determined by reference to a group grievance then before an arbitration board, was upon agreement of the parties. The outcome and significance of the fourth stage in the grievance procedure and of the group grievance are dealt with below. Both those events having now occurred, the complaint was again brought on for hearing at the request of the complainant. The hearing took place on April 23, 1986.
In his evidence Mr. Brinovec related a history of uneven relations with both the union and the company. Indeed, he appears to have had a rather traumatic employment relationship with his employer, one which was at times successfully and at other times unsuccessfully dealt with by his union. This evidence was admitted without objection by the union. The Board has previously considered the history of the way in which the union had represented the complainant prior to the grievance which is the subject of the complaint before the Board in determining whether the complaint has been substantiated: for example, see Scarborough General Hospital, [1977] OLRB Rep. Nov. 770. Apart from one incident, in which Mr. Brinovec claims that a grievance of his had been lost by the union, the union had assisted Mr. Brinovec in accordance with the requirements of section 68. There was insufficient evidence to establish the exact nature of the circumstances surrounding the alleged lost grievance. I find that the union's response to Mr. Brinovec prior to the grievance which is the subject of this complaint does not indicate a history of unfair representation.
Mr. Brinovec had been an Assembler "A" for four years when on February 20, 1981, he injured his back. He subsequently suffered a heart attack and underwent a triple bypass heart operation. Apparently, upon his return to work, he was fired. The union was of the view that it could not help him. Mr. Brinovec hired a lawyer who took his grievance to arbitration. He was reinstated in the electrical department (apparently not the same department in which he had been working prior to his absence), but as an Assembler "B" at an Assembler "B" rate. He argues that he was often doing the work of an Assembler "A", even though he was being paid at the "B" classification rate. Mr. Brinovec obtained signatures from fellow workers on a petition dated June 19, 1985, which stated that he was doing the same job as the people classified as Assembler "A". None of the signers of the petition was called to present evidence at the hearing. He also obtained a letter from his foreman, Edward Bayes, stating that he was capable of performing the duties of Assembler "A" ("the Bayes letter"). That letter went on to state that "[u]nfortunately, because of the collective agreement and his health restrictions, it was very difficult to promote him to 'Assembler A', regardless of his potential". The Bayes letter does not indicate that Mr. Brinovec was actually performing Assembler "A" work. Nor was Mr. Bayes called as a witness. Therefore, I can give little, if any weight to the contents of this letter, with respect to the type of work Mr. Brinovec was actually performing during the period in question.
Mr. Brinovec evidently returned to work sometime in November 1982. It seems that during his absence, the company had laid off nearly a third of its employees and then demoted others. Some of these demotions were the subject of a group grievance in which the union claimed that the demoted employees should be paid the Assembler "A" rate because they were performing Assembler "A" work, although they were classified as Assembly "B" employees. The group grievance involved nine employees; in addition, there was an individual grievance dealing with the same issue. The arbitration board's hearings into these grievances were held on June 19, 1984 (the individual grievance) and May 21, 1985 and October 31, 1985 (the group grievance). The majority decision in the individual grievance was dated September 28, 1984 and the group grievance decision December 31, 1985 (it was apparently issued in January 1986). The individual grievance was dismissed; two of the group grievances were dismissed and in the other seven grievances, the grievors were awarded compensation for periods of time spent doing Assembler "A' work, primarily instruction of, training or "helping out" other Assembly "B" employees, particularly those new to the job. The union was not happy with the arbitration board's decision and sought legal advice with respect to a judicial review. According to Celso Adriano, President of Local 575, the advice received was that there would be little chance of a successful judicial review. The union therefore felt compelled to treat the arbitration decision as the "guideline" in classification pay rate matters for the time being.
Mr. Brinovec filed the grievance which is the subject of his complaint to the Board on May 22, 1985. The grievance progressed to the third stage of the grievance procedure and, as provided by the procedures then in effect, the union membership voted on whether the grievance should be taken to arbitration. The membership voted unanimously to take his grievance to arbitration. However, the union did not act in accordance with that vote (hereinafter called "the first membership vote"). The significance of the membership vote is considered below.
At this point, the nature of the grievance should be determined since its relation or similarity to the group grievance is a matter of dispute between the parties. Mr. Brinovec often used the term "reinstatement", meaning that he believes that he should be classified as an Assembler "A" and not just paid the Assembler "A" rate while classified as an Assembler "B". The distinction is important because the group grievance, which plays a large role in the union's decision not to take Mr. Brinovec's grievance to arbitration, is concerned with pay rates. If Mr. Brinovec's grievance is in fact that he should be "reinstated", the relevance of the group grievance may be diminished. The Board's decision of October 4, 1985 stated at paragraph 2 that
The parties agreed that the group grievance ... deals with essentially the same issue, ie., classification, as the complainant raises, although the complainant alleges his personal circumstances may be somewhat different.
At the April 23, 1986 hearing, Mr. Brinovec used the term "reinstatement" in his evidence. However, he stated in the "Explanation" submitted by him as Exhibit 2: "I am not asking for a new position but I am asking to be paid for the job I perform just as others do". Between the words "be" and "paid", the handwritten word "Rienstejtet" has been inserted. Mr. Brinovec did not explain this document further. Although he was not cross-examined on it, I find it of little assistance. I note, too, that on his own admission Mr. Brinovec has not applied for an Assembler "A" position in the electrical department (his view was that he did not need to apply). It appears that there has not been a posting of a permanent vacancy in that department, although there was some evidence that two other people had been temporarily promoted to Assembler "A". (Mr. Brinovec did complain that other persons had been promoted, even though they had less seniority than he did. However, he does not appear to have filed a grievance with respect to these promotions and they did not constitute specific allegations in the complaint before the Board.) I find that Mr. Brinovec's grievance relates to rates of pay, not to a failure to reclassify him. When asked what differentiated his grievance from the group grievance, Mr. Brinovec answered that he was in a different department than the other grievors, but he did not or could not clarify why that distinction was significant. The arbitration decision itself provides no indication of why that factor would be significant. I am unable to find that Mr. Brinovec's grievance differs in any substantial or material way from the group grievance. Furthermore, even if the group grievance and Mr. Brinovec's grievance do differ in a material way, I find that the evidence is that Mr. Adriano addressed himself to this question, compared the grievances and found them to be comparable.
Before considering the nature of the duty under section 68, and the application of that duty to the specific facts of this case, I find it useful to summarize the various elements of Mr. Brinovec's complaint against the union. Mr. Brinovec did not himself summarize his concerns; it has been necessary to cull the significant elements from his somewhat rambling testimony. His major allegations appear to be that the group grievance was irrelevant to his own grievance; that the union's financial condition was irrelevant to the disposition of his own grievance; that the union acquiesced in what Mr. Brinovec asserted to be the employer's discriminatory treatment of him on the basis of disability; that the union was bound to act in accordance with the first membership vote to arbitrate Mr. Brinovec's grievance; and that he was somehow improperly omitted from the list of group of grievors.
Section 68 of the Act requires that a union "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". It is now well-established that the test in section 68 cases is not whether the union made the "right" decision in not acting in accordance with the complainant's wishes, but whether the union acted reasonably in doing so. A union is by definition a collective entity and while the interests of the individual members, as individuals, cannot be ignored, they must be assessed in conjunction with the interests of and the union's obligations to the collectivity. It is labour relations policy in Ontario that as long as the individual has not been treated in a discriminatory or an arbitrary way or in bad faith, the union can decide to subordinate the individual to the collective. Section 68 does not purport to protect the individual's right to be treated exactly as he or she wishes, but only to be treated fairly. It is intended to ensure that any failure to pursue the individual's interest does not arise from hostile or irrelevant motives.
The question to be asked in this case is: "did the union address its mind in a rational manner to the question of whether it was appropriate to pursue Mr. Brinovec's grievance to arbitration?" Among the factors the union can consider in making its decision which are relevant in this complaint are the likelihood of winning the grievance, the cost of taking the grievance to arbitration, the relative cost in light of the resources of the union and the interests of the other members of the union. These factors were all properly taken into account by Mr. Adriano when he decided not to take Mr. Brinovec's grievance to arbitration. In my view, Mr. Brinovec has been unable to show that the union had breached its duty of fair representation under any of the heads of section 68.
A union will be considered to have acted in an arbitrary manner if its officials have acted capriciously or unreasonably or, put another way, if they have failed to direct their minds to the complainant's concerns: Diamond "Z" Association, [1975] OLRB Rep. Oct. 791; De Havilland Aircraft of Canada Ltd., [1979] OLRB Rep. Oct. 933; Leonard Murphy, [1977] OLRB Rep. Mar. 146. The union is allowed to be wrong in its judgment and even negligent, but it cannot dismiss the complainant's request out of hand, nor can a course of conduct be "so reckless to be unworthy of protection": CUPE, Lacal 1000, [1975] OLRB Rep. May 444; Royal Ontario Museum, [1980] OLRB Rep. Jan. 106. As was said in Savage Shoes Ltd., 119831 OLRB Rep. Dec. 2067 at paragraph 38:
Where it is difficult to see a rational pathway between the facts and circumstances said to have been taken into account and the interests said to have been balanced on the one hand, and the result on the other, then there arises a rebuttable presumption that the decision was arbitrary.
Mr. Adriano testified that he considered the likelihood of success and the burden on the union's meagre resources in deciding not to take Mr. Brinovec's grievance to arbitration. The loss of the group grievance and the legal advice received by the union to the effect that they should not seek judicial review of the arbitration decision convinced Mr. Adriano that the chances of winning Mr. Brinovec's grievance were very low. Mr. Brinovec argued that his grievance should not be dependent on the loss of the group grievance. He said, "you can't say that because one person loses, others must also lose". However, this was a legitimate consideration for the union to take into account in determining how to deal with Mr. Brinovec's grievance: Chrysler Canada Ltd., [1979] OLRB Rep. July 618; Douglas Aircraft of Canada Ltd., [1979] OLRB Rep. Aug. 745. Furthermore, the resources of the Local were in dire straits, it seems, and the money required to fund an arbitration of Mr. Brinovec's grievance does not appear to have been readily available. While lack of funds in and of itself may not always justify a decision taken by a union not to process a grievance, in this case there is nothing to suggest that the union has acted irresponsibly, recklessly or improperly in the administration of its funds. Rather the financial problems seem to have arisen from the union's arbitrating of grievances similar to Mr. Brinovec's grievance. Therefore, spending the union's now limited resources on this grievance with an apparently low chance of success might rationally be judged to be against the interests of the other members of the union.
- These factors were all raised in three letters. The first letter is from Mr. Adriano to Mr. Brinovec, dated April 7, 1986. The letter states:
This is to inform you that the . 'A" and . 'B" rates policy grievance in the Board of Arbitration, has now been determined, base [sic] on the awards and the similarity of your grievance, we are expecting reply to the management to make decision on your case or we may file your case to the Board of Arbitration.
(emphasis added)
similarly, we are enclosing the two copies of the Arbitration Board award for your perusal. at same time I would also like to inform you that your grievance, together with other grievances will have to undergo the same process for posible [sic] finding. Considering our present ailing financial condition that due to excessive cases for the past 18 months with Carrier Canada. Ltd. [sic] our union fund has been greatly drained and it seems that the company [is] intentionally arbitrating the union to death by means of exhausting its fund.
(emphasis added)
The second letter is from Mr. Adriano to Mr. Ralph Sawden, Manager, Personnel and Industrial Relations with the employer, Carrier Canada Limited, dated April 10, 1986, "Re: Mr. Mike Brinovec grievance No. 95228504, A & B, rates demotion". In that letter, Mr. Adriano requests the company to act on Mr. Brinovec's grievance in accordance with the group grievance arbitration decision "or shall we proceed filing this case to the board of arbitration". In his reply dated April 17, 1986, Mr. Sawden states that "[i]t is the company's position that in reviewing the findings of the arbitration, the company does not owe Mr. Brinovec any moneys for the subject grievance."
The timing of these letters raises some concern. The arbitration decision was issued in January 1986. Mr. Brinovec wrote to the Board on February 10, 1986 requesting that his complaint be rescheduled. The parties were informed by letter from the Board's Registrar dated February 18, 1986 that the hearing had been rescheduled for April 23, 1986. Yet the only written evidence that Mr. Adriano had raised these issues with Mr. Brinovec and had attempted to settle the grievance with the company was dated approximately two weeks before the scheduled hearing. It could be argued that these letters are self-serving. However, while the dates of the letters raise some doubt in my mind about their purpose, Mr. Brinovec did not object to the admission of these letters, nor did he challenge them in his cross-examination of Mr. Adriano. I therefore accept that they are bona fide attempts to deal with Mr. Brinovec's grievance. Accordingly, I treat the letters as evidence that Mr. Adriano considered both the similarity of Mr. Brinovec's grievance to the group grievance and the financial burden arbitration of Mr. Brinovec's grievance would place on the union. I treat them also as evidence that Mr. Adriano attempted to settle the grievance with the company. I conclude on the basis of these letters and Mr. Adriano's oral evidence that Mr. Adriano weighed the relevant factors and determined that the union should not pursue Mr. Brinovec's grievance to arbitration. I conclude further that the union did not act in an arbitrary manner towards Mr. Brinovec.
The discrimination head of section 68 raises three issues. The first issue requires examination of the role of malice in motivating differential conduct or provisions; the second involves consideration of who is protected by this head of section 68; and the third deals with the limits placed on the application of the concept. In my view, the concept of "discrimination" in labour relations law cannot be immune from developments in the law relating to discrimination; however, the underlying reasons for including "discrimination" in section 68 and the standard applied to unions in justifying conduct or provisions which do differentiate among employees must be seen in the context of the special concerns of labour relations law.
The first issue is whether hostility must underlie the different treatment to bring it within section 68. In CUPE, Local 1000, supra, the Board indicated the narrow limits of the term when it stated that under the discrimination head of section 68, "an employee ought not to be the victim of the ill-will or hostility of trade union officials .or of a majority of the members of the trade union". On this view, there cannot be a finding of discrimination unless the union has been motivated by ill will to disregard the interests of the complainant. A broader interpretation of the concept of discrimination for the purposes of section 68 was set out in Douglas Aircraft Co. of Canada Ltd., [1976] OLRB Rep. Dec. 779, where the Board stated that the "union may not act in a manner that will result in discrimination". The complainant in that case alleged that provisions in the collective agreement which gave super-seniority to Zone Committeemen and Shop Stewards were discriminatory. The impugned provisions differentiated on their face because they gave a benefit to some employees (because of their status in the union) and not to others. But the collective bargaining process by which the provisions had been included in the agreement was not alleged to be discriminatory. There was no argument that the clause had not been approved through the proper process. Thus the issue was whether a clause resulting from proper process could be discriminatory within the meaning of section 68. The Board took the position at paragraph 14 that
the discrimination branch of section [681 is sufficiently broad to prohibit the existence of a discriminatory clause in a collective agreement which was concluded through a nondiscrimination [sic] process ... [T]he intention of section [681 is to prevent a tyranny of the majority. Such a tyranny can result from, among other possibilities, the ability of the majority to 'Properly' vote any provision into a collective agreement.
The Board concluded that the particular clause in question was "not discriminatory under section [68] because it is justified by a good labour relations purpose". In my view, this interpretation is more consistent with the development of the concept of discrimination now extant in human rights law. Furthermore, this interpretation is supported by the inclusion of "good faith" as a separate head under section 68; the concept of "good faith" itself encompasses notions of ill will or hostility.
- With respect to the second issue, the concept of discrimination within the meaning of section 68 has never been restricted to the "traditional" forms of discrimination such as racial discrimination: in Ford Motor Company of Canada Limited, [1973] OLRB Rep. Oct. 519, the Board pointed out that while the origin of the term in American jurisprudence leads to an association with racial discrimination, it is not so limited in section 68. The general test of whether the union has acted in a discriminatory way was articulated in Steinberg's Ltd., [1972] OLRB Rep. May 423 at paragraph 11: the Board dismissed the complainant's allegation of discrimination because
There is nothing to suggest this [sic] his grievance was dealt with by the union at any stage of the proceedings differently from a grievance filed by any other member of the union.
Seen in isolation, this definition suggests that any form of differentiation or different treatment constitutes discrimination. The answer to the second question, then, is that access to the discrimination head of section 68 is not limited to persons who can point to some traditional basis (such as race, sex or religion) for the different treatment, but is available to any employee who believes he or she has been subject to differential treatment.
- However, different treatment is merely a starting point. Different treatment in itself will not guarantee the complainant success. Once an employee has established a prima facie case of differential treatment, it becomes incumbent upon the union to explain that treatment and to show that it was based on non-discriminatory factors. Accordingly, it is understood either that discrimination is inherently limited by the term "reasonable" or by some similar term or that certain kinds of discrimination may be defensible. Both approaches have been followed in the Board's jurisprudence. The Board seemed to take the first view in Ford Motor Company, supra, where it stated that the prohibition against discriminatory conduct is intended to "prevent a union from distinguishing among members in the bargaining unit unless there are cogent reasons for so doing". The second interpretation can be found in Bernard Dora is, [1985] OLRB Rep. Mar. 408 at paragraph 19:
different treatment does not always equal discriminatory conduct that is contrary to section 68 or 69 of the Labour Relations Act. If that were so, every time a trade union treated one employee in a bargaining unit differently from another bargaining unit employee, a violation of section 68 of the Act would occur. Employees may be treated differently by their union based on, for example, their job functions, length of service, employment status and other similar factors. Different treatment based on those grounds alone would not give rise to even a prima facie violation of the Act. However, differences in treatment which are not patently justifiable may call for an explanation from the trade union.
In Douglas Aircraft Co. of Canada Ltd., supra, the Board did not clearly distinguish these two approaches. At paragraph 35, the Board held that "a distinction between union officials and non-union officials based on this ground is not discriminatory under section [68] because it is justified by a good labour relations purpose", but then goes on at paragraph 36 to state that the impugned provisions of the collective agreement "comprise an acceptable form of discrimination and are not thereby in violation of the discrimination branch of the union's duty of fair representation". Regardless of whether the Board declines to find discrimination where there is a legitimate explanation for different treatment or whether it finds discrimination which it then concludes is justified or permitted because of a valid labour relations purpose, it is common ground that every instance of different treatment is not prohibited by section 68.
There are three aspects of this complaint which must be addressed under the discrimination head of section 68. The first is an allegation by Mr. Brinovec that he was being dealt with on the basis of his disability; the second involves the disregarding of the first membership vote; and the third is the fact that Mr. Brinovec was not included in the group grievance. There is no suggestion that any of these instances of alleged differential treatment were motivated by malice. However, that is not the end of the inquiry. I must consider whether Mr. Brinovec has made out a prima facie case that he was treated differently and if I find that he is successful in doing so, I must consider whether the union has explained the differential treatment in such a way that it does not constitute a violation of section 68. Put another way, I must first decide whether Mr. Brinovec has shown that the union has discriminated against him and if I so decide, whether the union has justified the discrimination.
Mr. Brinovec stated in his "Explanation" that he was refused an Assembler "A" rate because of his disability resulting from his heart attack and operation. He stated that Mr. Adriano told him that his disability was the reason the company would not give him the "A" rate, but that Mr. Adriano further told him that he (Adriano) was merely relaying to Mr. Brinovec what the company had told him. Apart from the reference in the Bayes letter of April 7, 1986 to Mr. Brinovec's "health restrictions" (which, indeed, may have been referring to a different sort of restriction, since a certificate from Mr. Brinovec's doctor states that Mr. Brinovec should avoid "draughty" areas because of chronic back problems and his heart surgery). There was no further evidence on this matter. Mr. Brinovec did not establish that the union had represented him unfairly by discriminating against him because of his disability.
In the first membership vote, the union members voted unanimously to take Mr. Brinovec's grievance to arbitration. The vote occurred on July 17, 1985, prior to the arbitration decision in the group grievance, but after two of the three days of hearings into the grievances before the arbitration board. It was taken after the third stage of the grievance procedure had been completed, in accordance with the grievance procedures then in effect. Mr. Brinovec believes that he should be able to benefit from the first membership vote which he sought in good faith. However, during the progress of Mr. Brinovec's grievance, a fourth step was inserted in the grievance process, reflected in Article 10 of the collective agreement, which permitted the parties to meet with a grievance settlement officer. It was applied retroactively to all the grievances being processed. The union's representative stated that all other grievances outstanding at the time of the change in the process had been processed according to the new procedures. Mr. Brinovec could not dispute this claim since he did not know, nor did he seem to care, how other grievances had been treated. The question is whether Mr. Brinovec was discriminated against by the retroactive application of the new procedures. There is no evidence that the new procedures were put into effect without following the usual and appropriate channels (Mr. Brinovec suggested that the new collective agreement had not yet been signed, but his submissions on this point, as on others, were somewhat confused and in any case, I find below that he acquiesced in the new arrangement). Yet the result of the additional step for Mr. Brinovec was different from the result for other employees who had been able to take advantage of a membership vote in their favour. He had followed the same process, but suddenly found it gave him no benefit.
There are several reasons why the first membership vote does not lead me to conclude that a failure to follow it constitutes discrimination (or any other form of conduct prohibited by section 68). First, there was no evidence before me that the union was bound by such a vote. The membership vote is merely one factor to consider in determining whether the union has contravened section 68. The significance of vote for or against taking a grievance to arbitration must be assessed in the context of all relevant factors. In this case, the vote was consistent with the decision to arbitrate the group grievance. At that point, the union was optimistic that it would win the group grievance; there is nothing to suggest that the members were not also optimistic. The loss of the group grievance required a reassessment of the union's position on such grievances. The significance of the membership decision to arbitrate Mr. Brinovec's decision also has to be reassessed in that light. It would be unreasonable to hold that a vote taken before the decision on the group grievance should bind the union to arbitrate the same issue once it knew the issue had been lost. Secondly, I note that there is no evidence before me to indicate that the settlement officer stage was inserted for any reason other than an attempt to secure resolution of grievances without having to go to arbitration. In any case, Mr. Brinovec cannot now claim the benefit of the first membership vote since he agreed to the application of the new fourth stage to his grievance. Mr. Brinovec did not dispute the union's assertion that he had not raised the first membership vote at the prior hearing of the Board. The Board's decision of October 4, 1985 was in part based on the agreement of the parties that they would pursue this fourth step in the procedure before dealing with the section 68 complaint before the Board. Mr. Brinovec agreed to go to this fourth step and therefore implicitly, if not explicitly, accepted that the grievance process had changed. Mr. Brinovec's acceptance of the new system was inherent in his agreement to the Board's decision of October 1985. Therefore I reject Mr. Brinovec's argument that since the membership had voted unanimously to take his grievance to arbitration, the Local was required to go to arbitration. Under the new system, the membership would vote only after the fourth step. Thus the initial membership vote was apparently vitiated by the change in procedures, a change which Mr. Brinovec was willing to employ in attempting to resolve his grievance. Mr. Brinovec still has the opportunity to seek membership approval to go to arbitration. Of course, he must realize that on this second vote, the membership would be aware that the union lost the group grievance, a development which occurred after the first vote. At the same time, Mr. Brinovec must understand that this change in circumstances is significant. The loss of the group grievance is highly relevant to the fate of Mr. Brinovec's grievance; although it is possible that his grievance would be resolved differently, it is not probable, and it is not unreasonable for the union to act on the assumption that Mr. Brinovec's grievance would not be treated differently from the group grievance. I have already stated that I can find no major distinctions between the group grievance and that of Mr. Brinovec to justify expecting the union to fund Mr. Brinovec's grievance.
The final aspect under the discrimination head involves the omission of Mr. Brinovec's grievance from the group grievance. Mr. Brinovec had not signed the list of group grievors. The evidence with respect to why he did not sign the list was not clear. He stated that the list had not been presented to him and that he did not know about it. He seemed to suggest that the process of gathering signatures had the effect of excluding him, but again he was unable to be specific in this regard. Mr. Adriano was not able to offer any further light on this question. He testified that as far as he knew, everyone who was concerned about demotion and rates of pay had signed the list. Mr. Brinovec's own grievance was not filed until May 22, 1985 and Mr. Brinovec did not allege that Mr. Adriano or any other members of the union executive knew about his concerns prior to that date. The group grtevance was filed prior to June 19, 1984, the date at which the arbitration board held its first hearing. There is no evidence to show that Mr. Brinovec was deliberately omitted from the list of group grievors. Nor, given the result of the group grievance, is there any evidence that Mr. Brinovec was obviously disadvantaged by not being included in it.
In my view, Mr. Brinovec has not established that he has been discriminated against by the union, either in a general sense or specifically on the basis of his disability.
In Leonard Murphy, supra, the Board stated that bad faith requires evidence of union hostility towards the grievor or motivation by factors extraneous and counter to legitimate bargaining concerns. The outer limits of this head were set out in Steinberg's Limited, supra, at paragraph 12:
We are not concerned here with whether or not [the union's conclusion that they could not win the grievance was] a correct decision. As was said by the Board in Rutherford’s Dairy Limited, [1972] OLRB Rep. (March), .... A union may make a mistake in the manner in which it represents employees; however, if that mistake was made in good faith and without mala fides, it cannot be found that the union has violated the provisions of section [65]'. In other words, if the union has in good faith decided not to proceed with the grievance because, in their opinion, they would not succeed before an arbitrator or arbitration board, there has been no breach of section [681 by the union. The section does not impose an absolute duty on the union to carry every grievance filed by an employee through to the arbitration process.
Mr. Brinovec's allegations do not encompass any suggestion, nor was there any evidence to indicate, that the union acted in bad faith. I conclude that the union has not contravened the bad faith element of section 68.
In summary, I find that subsequently to the Board's decision of October 4, 1985, and after the failure to resolve the grievance at the settlement officer stage, Mr. Adriano, acting for the union, decided not to take Mr. Brinovec's grievance, which Mr. Adriano had determined was similar to the group grievance, to arbitration because the result of the group grievance indicated to him that Mr. Brinovec's grievance was not likely to be successful and because of the union's difficult financial condition. I therefore conclude that the union has acted reasonably in its handling of Mr. Brinovec's May 22nd, 1985 grievance.
The complaint of Mike Brinovec is hereby dismissed.