Ontario Labour Relations Board

[1986] OLRB Rep. April 556

2208-85-U Andrew Smuk, Complainant, v. International Association of Machinists Local 1740 & Aerospace Workers, Respondent

BEFORE: Lita-Rose Betcherman, Vice-Chairman.

APPEARANCES: Andrew Smuk on his own behalf; George Drennan, Gary Zess, Art. Cook, George Young and Brian Sokolowski for the respondent.

DECISION OF THE BOARD; April 17, 1986

1. This is a complaint under section 89 of the Labour Relations Act in which the complainant, Andrew Smuk, alleges that he has been dealt with by the respondent union contrary to section 68 of the Act. Specifically, the complainant claims that the union did not process a timely grievance for him when the company allegedly failed to recall him in accordance with his seniority. The company was represented at the hearing by its Director of Human Resources, W Gillis.

2. The complainant worked for this company and its predecessor companies for some 27 years. During his final period of employment his classification was that of Cleaner Sweeper. In this capacity he was required to keep washrooms, showers, toilets and basins in clean and orderly condition; to sweep, mop and scrub fixtures and area as required; also to perform other light labouring work.

3. The chronology of events is very important in this case and I propose to set it out in order.

4. On July 2, 1984 the employees of the company went on strike.

5. On July 3rd, the complainant filed a claim with the Workers' Compensation Board (WCB) alleging that two days before the strike he suffered an injury on the job. His claim was rejected on January 14, 1985, and the complainant appealed the WCB ruling.

6. On January 10, 1985, approximately one week after the strike ended, the company recalled about 40% of its employees. The complainant was not among those recalled. His position was filled by another employee who had greater seniority. (The complainant disputed this but on the basis of their relative positions on the posted seniority list, which had been in existence for twelve years, the Board has no difficulty in finding that the other employee had more seniority than the complainant.)

7. Mr. Gillis testified that on February 22, 1985, he phoned the complainant notifying him that he would be recalled if he could supply a medical certificate that he was physically able to perform his duties. The Human Resources Director stated that he was aware of the complainant's WCB claim. That same day the complainant obtained a note from Peter M. Adams, M.D. stating that the complainant was "fit for modified duties not involving heavy lifting" (Exhibit 4(a)) which he delivered to the company's personnel department. Mr. Gillis testified that he found this note unclear.

8. On February 25, Mr. Gillis wrote a letter to Dr. Adams in which he stated that the company had recently recalled Mr. Smuk to an available position and he described in some detail the duties of the position (Exhibit 4(b)). These included lifting garbage cans, bending, stooping, shoveling. In the letter Dr. Adams was asked for his opinion on whether there was a likelihood of injury to the grievor if he performed these duties. The letter also stated that the company was prepared to pay for the doctor's opinion. A copy of this letter was sent to the union. The complainant picked up the letter and delivered it to the doctor. Apparently Dr. Adams refused to answer the letter, stating that his note of February 22nd constituted an adequate response.

9. Mr. Gillis gave uncontradicted testimony that he never received an answer to his letter and heard nothing more from the complainant. He then filled the position on a temporary basis with one Mr. Potter who was junior to the complainant.

10. At this point it appears that the company was taking the position that it was willing to recall the complainant provided that he supply a satisfactory medical certificate, that the complainant was demanding that the union do something on his behalf, and that the union's attitude was that the complainant's most expedient course of action was to obtain a satisfactory medical certificate and thereby regain his job. George Young, the union committeeman handling the matter, testified that the complainant did not want him to put in a grievance because it might jeopardize his WCB appeal. The complainant insists that he never let up on his demands that the union file a grievance for him. In cross-examination, however, he acknowledged that he had been on the union executive and was aware that in an individual grievance the onus was on the employee to file.

11. On March 7, 1985, the union filed a policy grievance alleging that the company had contravened the collective agreement by filling the grievor' s position with Mr. Potter who had less seniority than the complainant. At a meeting between the company and the union on March 26, 1985, the company denied the grievance taking the position that the grievance should not have been treated as a policy grievance. According to Mr. Young, the company was right but "I was on a limb with Andy [the complainant] calling me every night so I was trying to get something moving."

12. On April 15, 1985, the union membership authorized the withdrawal of the policy grievance. George Drennan, International Representative who presented the case for the union, stated under oath that the membership "agreed with the committee that it would have to be an individual grievance." Minutes of the meeting, read into the record state that "Andrew Smuk must get release from the doctor so he can return to work." Mr. Drennan testified that after the meeting he advised the complainant to renew his efforts to get a medical certificate.

13. The complainant gave uncontradicted testimony that later in April he obtained a medical certificate stating that he could do "regular work" and that he gave this to the union. There is no doubt that the union never passed this tuedical certificate on to the company. At the hearing, Mr. Drennan asked the complainant why he had not given the certificate directly to the company and suggested that it was not the union's duty to do so. The complainant replied that Mr. Drennan had asked him to get the certificate and, moreover, he did not want to deal with Mr. Gillis himself.

14. On July 23, 1985, the union filed an individual grievance signed by the complainant. The company rejected the grievance on the ground that it was out of time, as per Article 8.04 of the agreement. At a meeting on August 19, 1985, over the strong objections of the complainant, the union membership authorized withdrawal of this grievance.

15. On July 31, 1985, the WCB heard the complainant's appeal of its original decision to refuse his claim. On August 6, 1985, the WCB rejected the appeal.

16. The complainant officially retired on September 1, 1985 at which time the company posted his position and subsequently filled it permanently.

17. The complainant argued that the union acted arbitrarily, discriminatorily and/or in bad faith by not filing a timely individual grievance. He suggested that the union took no interest in his concerns because his retirement was imminent. He argued that during his layoff there was work he could have done which was being performed by employees with less seniority. With respect to the policy grievance flied on March 7th, he dismissed it as ~ He stated that when he finally forced the union to file an individual grievance it was too late.

18. The union's position is that it honestly believed that the complainant's best course of action was to obtain a satisfactory medical certificate. Moreover, the union denied that the claimant requested it to file an individual grievance at the time it filed the policy grievance. The union claimed that the complainant did not want a grievance filed because it might compromise his WCB claim. The union agreed that the complainant repeatedly requested it to take some action and that that was why the policy grievance was filed. It emphasized that the complainant, who had been on the union executive, was well aware that he could have filled out a grievance form and that his failure to do so supported the union's claim that he really did not want to file an individual grievance.

19. In order for the complainant to succeed, he must establish on a balance of probabilities that the union acted in a manner that was "arbitrary, discriminatory or in bad faith." The Board has set out guidelines for judging these factors in numerous cases: for example see Abdel Elejel, [1985] OLRB Rep. June 841 at paragraphs 44 and 45:

In order to find arbitrariness, the Board would have to conclude that the Union failed to direct its mind to the merits of the complainant's grievance 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. TE. Industries Limited, [1980] OLRB Rep. July 1001.)

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.)

In order to show discrimination, the complainant would have to show that the union has acted differently on other occasions in a similar situation. The complainant did not attempt to prove that the union acted in a discriminatory manner. As a result, the Board is faced with deciding whether, on the basis of the above guidelines, the union acted in an arbitrary manner or in bad faith.

20. The Board finds that the union's belief that the best course of action for the complainant was to get a medical certificate was honestly arrived at. There is considerable logic to the union's position. If the medical certificate was satisfactory, the complainant would get his job. If the medical certificate proved to be unsatisfactory, the company would be justified in refusing to recall the complainant and any grievance would be unsuccessful. To this point, the Board finds nothing arbitrary or in bad faith in the union's conduct.

21. The Board has problems, however, with the union's filing of a policy grievance when it had to know that it was improper procedure. Article, 8.12 of the collective agreement explicitly states that a policy grievance "shall not be used by the Union to institute a grievance directly affecting an employee which such employee could himself institute or have instituted" and on the company's objection, the grievance was withdrawn. Mr. Young, the union official who filed the grievance, stated candidly that the company was right. Moreover, Mr. Drennan, the International Representative who services this local, testified that the union committee and membership agreed that it should have been an individual grievance.

22. The duty of fair representation does not require the union to file grievances in every instance where an employee has a complaint against the employer. See citations in Sack and Mitchell, Ontario Labour Relations Board Law and Practice (Toronto: 1985), p. 481. In this case, as discussed above, the union had reason to believe that a grievance was not the best course of action. However, in the Board's view, once the union filed a grievance, it had business to do so properly. Having regard to the fact that these were experienced trade union officials, the Board finds the improper processing of this grievance indicative of a non-caring attitude. The consequence of this improperly processed grievance was that time might have run out for filing a proper individual grievance.

23. The union's explanation for not filing an individual grievance instead of the policy grievance was that the complainant did not want to file for fear of compromising his WCB claim. Yet the chronology of events shows that the complainant did, in fact, sign an individual grievance in July 1985 before his appeal was heard and disposed of by the WCB. As well, statements made by union witnesses themselves tend to contradict the union's explanation. The local union president testified that the complainant was vocal in support of his grievance at each union meeting. The union relies on the fact that the grievor did not take the initiative and file a timely grievance himself; yet Mr. Drenrian conceded that Mr. Young, the local committeeman, may have told him not to file. Although the complainant admitted that he could have initiated an individual grievance at any time, the Board finds that he believed he needed the union's co-operation. His phraseology is indicative of this belief. "I finally forced them to put in a grievance but it was too late."

24. The union did not deny the complainant's assertion that he gave union officials a medical note certifying him for "regular work" in late April. That being so, it is difficult to understand why the union did not pass on the certificate to the company. The union was his agent and, armed with his medical clearance, should have made an effort to get his job back for him. Such an effort may well have been successful since Mr. Gillis testified that he did not fill the complainant's job permanently until the latter's official retirement in September, 1985.

25. Finally, the processing of the individual grievance filed July 23, 1985, gives rise to a number of questions. In the first place, why was a grievance filed when the union was in possession of a medical note which might have lifted the only bar standing in the way of his recall? Secondly, the readiness with which the union withdrew the grievance on the company's objection that it was untimely suggests that the union may not have directed its mind to the merits of the grievance. While time limits are mandatory under this agreement, it is arguable that the complained-of matter could be considered a continuing grievance and thus not untimely. Nevertheless, the union processed the grievance no further than the first step. In his formal complaint to the Board, the complainant charged the union with a breach of section 68 for failing to take this grievance to the second stage of the grievance procedure. Having regard to the union's conduct of the complainant's cause over the preceding months, I find merit in his complaint.

26. Looking at the evidence in its entirety, I find on a balance of probabilities that the union displayed an attitude that was indifferent and non-caring towards the complainant. Accordingly, it did not fulfill its duty to fairly represent the complainant's interests, thus violating section 68 of the Labour Relations Act. Pursuant to section 89(4) of the Act, and notwithstanding the provisions of the collective agreement binding upon the parties hereto, the Board issues the following orders:

(1) that the union forthwith refile Mr. Smuk's grievance of July 23, 1985, and process it through the grievance procedure. The Board further directs the company to receive and process the grievance without objection concerning its time limits or any other procedural deficiency arising from the delay;

(2) that in the event that the grievance is not settled to Mr. Smuk's satisfaction, the Board further directs that the grievance be processed to arbitration for a hearing on its merits;

(3) that in the event that is Mr. Smuk awarded compensation, the Board retains jurisdiction to determine how much is directly attributable to the union's breach of section 68, which shall be paid by the union.

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