[1986] OLRB Rep. April 434
1695-85-U Clive Edwards, Complainant, v. United Steelworkers of America, Respondent, v. Dominion Bridge - Ontario a unit of AMCA International Limited, Intervener
BEFORE: Judge R. S. Abella, Chairman.
APPEARANCES: Clive Edwards, Complainant, Brian Shell and David Martin for the Respondent, and WJ. McNaughton and D. Putnam for the Interveners.
DECISION; April 8, 1986
This is a complaint by Clive Edwards that he was dealt with by the respondent contrary to the provisions of section 68 of the Labour Relations Act.
Edwards had been employed by Dominion Bridge since February 1980 as a structural steelfitter's helper. After being away from work on Workers' Compensation for one year and 2 months, he returned in June, 1982. On his return to work, he was first assigned sweeping duties. He did not object to this work assignment at the time because he hoped it was temporary. This assignment continued for three months until Edwards was laid off in November, 1982.
In September, 1984, Edwards was recalled to work and was immediately assigned sweeping work. The job was not reclassified and he received the same rate of pay. He protested this assignment to the shop steward, union president, foreman, general foreman and the employer relations supervisor.
No other structural steelfitter's helper was assigned to sweep floors as the major part of his work, although all steelfitter's helpers did some sweeping. In principle, Edwards objected to sweeping floors. He felt that by assigning him a sweeping job, a job not part of his job description, he was being constructively demoted. Moreover, Edwards felt the assignment was particularly demeaning because he is black.
He approached Bob Glencross, the shop steward to grieve in accordance with Article 6:02 of the collective agreement. Glencross advised him in essence that there was no point in grieving because the company was within its rights pursuant to the collective agreement to assign the sweeping work. Glencross did not prevent him from grieving but made it clear that the union would not likely take the grievance because it would be unsuccessful.
Edwards then went to the then president of the union who told him the same thing. Edwards felt at the time that without the union's support and involvement he was effectively precluded from grieving.
His next step was to approach the personnel manager of the company, a Mr. Putnam, who was able to intervene to the extent that on one night's work, Edwards was not given sweeping exclusively. The next day, November 2, 1984, when he arrived for work, he found his locker broken into and learned that he was suspected of bringing a bomb to the company. He was disturbed by what he considered this act of harassment. That morning, he was again told to sweep the floor by his foreman. He refused and was told to go home.
The following Monday, he was again assigned to do sweeping. When he refused, he was sent to the personnel department where he was given three choices - to quit, sweep the floor, or be fired. He said he would neither quit nor sweep and was fired by Putnam.
One week later he approached Pat Gallagher, the local President, who assisted him in filing a grievance. Gallagher advised him to state merely that the grievance issue be stated plainly as "Penalty is too severe". Edwards was not content with the simplicity of language and added more of his concerns, including the fact that he was given "redundant and inconsequential work".
About one week later, he was called to attend a step 3 grievance meeting with the union and company. To his consternation, the union did not deal with the issue of his demotion, but tried only to get Edwards his job back on the same terms, namely, that he would be sweeping floors. The union tried to persuade him to take back his job but he refused if it meant sweeping. His refusal continues to this day.
The union then wrote to Edwards asking him to come to a general meeting to discuss whether they should go to arbitration since the company had decided against reinstatement. At the meeting, Edwards felt intimidated. Of the 20 people there, at least 10 were members of the union executive. The union's position at the meeting was that the matter should not go to arbitration on the grounds that Edwards should have accepted his job back when Putnam offered it to him. Edwards spoke briefly at the meeting, feeling that the atmosphere was so negative towards him that there was no point in speaking for a long time. He told the meeting that he was entitled to a hearing by an arbitrator and that the case had some merit. By a vote of 11 to 9, the membership decided against arbitration.
Edwards was the only steelfitter ' s helper left in this area after a series of lay-offs. He was also in the lowest classification of any employee in this area. His complaint is that in assigning him to sweeping, the company was demoting him, that he had a right to refuse to do the work, and that the union had an obligation to pursue his grievance to arbitration. He considers the union's conduct to have been arbitrary, complicit in the Company's improper work assignment, and a violation of the union's duty of fair representation. He alleges neither discrimination nor bad faith. No evidence was called by the Company or the union. Edward's evidence was credible and articulate. The issue remains whether the union was in breach of Section 68 in refusing to take a grievance for the sweeping work assignment, what Edwards calls the constructive demotion, and in refusing to go to arbitration over his dismissal.
When Edwards discussed with Gallagher the concerns over sweeping, Gallagher explained that the company was not in violation of the terms of the collective agreement, had the right under the agreement to so direct its workforce, and to assign sweeping work because it was below Edward's classification. According to Edwards, Gallagher seemed to understand the issue. His discharge grievance was in fact processed within a week and Edwards does not suggest that the union was being, at this stage, unhelpful or unsupportive of the discharge issue.
At the 3rd step meeting, the union asked the company for the job back, but Edwards interjected that he would refuse to sweep. When the company was out of the room, the union representatives at the meeting tried to persuade him to take his job back because he would lose at arbitration on the grounds that the company was within its rights.
At the general meeting, a rather turbulent one according to Edwards, no one stopped Edwards from speaking. Gallagher told the meeting that Edwards had refused the work assignment and the union had no choice but to end the process. Although it is clear that the executive did not want the grievance to proceed to arbitration and made a motion to this effect, there is no evidence or suggestion that Edwards was precluded from trying to persuade the membership to the contrary. That he was unsuccessful in doing so is not evidence of the unions's arbitrariness, merely of their ability at an open meeting to persuade more people than did Edwards of the correctness of their decision.
As to the issue of his having to do sweeping and requesting Glencross' assistance in filing a grievance over this issue, Glencross explained that a grievance was fruitless because the company was within is rights. Edwards does not allege that Glencross was being hostile or unreasonable. Rather, he felt that Glencross was wrong and had an obligation to take the grievance. He was disappointed in Glencross' response but decided not to do anything about it because he was glad just to have a job and hoped it would work out over time. Edwards is aware that the Steelworkers do not take every grievance, that they make a judgment call depending on the merits of each case. But he felt that only an arbitrator could decide the issue and that the union should have processed the case whether or not they thought it was a good one. He was upset by Glencross' and Gallagher's interpretation of his rights and assumed that they simply did not want to be bothered with his demotion. He alleges no bad faith or malice. On at least one previous occasion, Glencross had launched a grievance successfully on Edward's behalf.
Edwards feels the company action was "immoral". He feels that he was being punished by the company for being on Worker's Compensation. He also feels he was racially discriminated against by them and has launched a complaint before the Ontario Human Rights Commission. He never told either Glencross or Gallagher or any other union official of these theories nor did he give them any facts or assumptions which would cause them to investigate such allegations. He complained to them only about the fact of being assigned sweeping, never referred to it as a demotion issue, and gave them no cause to see it as other than an assignment by which he was instinctively and personally troubled. With the information the union had, it concluded that the company was within its rights to assign the work, that Edwards had no right to refuse it, but that the penalty of discharge was too severe and they would try to get his job back. That they could not, is not through their own want of trying but through Edwards' refusal to accept what was to him an unpalatable assignment.
Edwards position has consistently been that he would not take the job if it meant sweeping. He knew there would be some consequences if he refused to sweep but he was prepared to take the risk.
It is clear that a union has the duty of fair representation and that by statute, it must not act in a way which is arbitrary, discriminatory or in bad faith. It is a serious responsibility because, as Edwards points out, the union has carriage under a collective agreement to protect individual employees who assign to their bargaining agents any personal voice they might otherwise have had in dealing with a company over grievances.
In this case, however, there is no evidence that the union violated that duty, either in process or in substance. The union listened to Edwards' concerns, advised him of the limits of his and their rights under the collective agreement, and tried to get his job back when he was discharged.
Based on what it knew, the union was not arbitrary. They exhibited no hostility or malice towards Edwards, and genuinely attempted to represent him when they felt the company had behaved with excessive discipline. On an objective assessment of the facts within their knowledge, they exhausted the possible available remedies and stopped only when to continue further would have been, in their view, a pointless exercise. Far from being arbitrary, the union was prepared to assist Edwards in any way it could within the limits of the agreement. It is clear from the jurisprudence that an employee does not have an absolute right to arbitration and that the right to take a grievance is reserved to a union. Where, as here, the discretion is exercised in good faith and in a responsible and reasonable manner, there is no violation of the duty of fair representation.
The complaint is therefore dismissed.