[1986] OLRB Rep. January 55
1216-86-U Howard J. Howes, Complainant, v. United Steelworkers of America, Local 8222, Respondent, v. Duomatic Olsen Inc., Intervener
BEFORE: Ken Petryshen, Vice-Chairman.
APPEARANCES: Howard Howes and Marilyn Kemble for the complainant; Brian Shell and Bill Lloyd for the respondent; Steven McCormack, William Madigan and Al Steinfield for the intervener.
DECISION OF THE BOARD; January 29, 1987
The name of the complainant is amended to read: "Howard J. Howes".
This is a complaint made under section 89 of the Labour Relations Act in which the complainant alleges that the respondent contravened section 68 of the Act. Mr. Howes claims that the union acted in a way that was arbitrary, discriminatory and in bad faith when it settled his discharge grievance #86-601 (first grievance) and in the manner in which it handled a second discharge grievance #86-111 (second grievance).
The hearing in this complaint was held on September 29. 1986. Mr. Howes testified in favour of the complaint and Mr. N. Carriere was called to testify by counsel for the union. Having weighed and assessed the evidence, including the credibility of the witnesses, the Board makes the following findings of fact.
On January 24, 1986, Howes, a member of the Health and Safety Committee, was advised that the employer terminated the health and welfare benefits of Ted Forman, an employee in the bargaining unit. Howes was quite concerned about this matter and in discussing his concerns with management, he advised employer representatives that the situation was serious and that employees could walk out. In the early afternoon of January 24, 1986, Howes, along with three other employees, began picketing the employer's premises. Howes continued to engage in picketing activity on the following day. Howes testified that he did not encourage anyone to join him in his picketing activity and that anyone who did picket did so entirely on their own volition. The four employees were suspended pending an investigation and by letter dated January 31, 1986, Duomatic Olsen Inc. (the employer) advised Howes that it was terminating his services effective January 24, 1986 as a result of his actions "in condoning, encouraging, supporting and/or instigating an illegal strike and picketing the premises of the plant". Of the other three employees who engaged in picketing activity, one was terminated and the other two were given twenty day suspensions. Howes prepared a grievance challenging his discharge which the union filed with the employer. The union also filed grievances on behalf of the other disciplined employees. At Howes' request, the union permitted Marilyn Kemble to act as steward in the processing of the four grievances. By early April 1986, the respondent had referred the grievances to arbitration, an arbitrator had been selected and it was expected that an arbitration hearing would be scheduled for September, 1986.
While awaiting the arbitration of his discharge grievance, Howes had occasion to attend at the employer's premises on May 15, 1986. On that occasion, Howes assaulted Mr. A. Steinfield, the Personnel and Industrial Relations Manager, by spitting in his face twice. Howes admits he engaged in this conduct and when asked whether he was prepared to apologize to Steinfield, Howes testified he was not prepared to do so.
On May 29, 1986, Norman Carriere, a District Staff Representative for the United Steelworkers of America, interviewed Howes and the three other employees who were disciplined for striking and for picketing activity. It appears that Bill Lloyd, the respondent's representative who services the employer's employees, and Joe Brown, the President of Local 8222, sought Carriere's assistance with respect to resolving the outstanding discipline grievances. Carriere, who has extensive arbitration experience, reviewed Kemble's detailed notes made during the processing of the grievances, as well as Lloyd's files. When interviewing the grievors, Carriere explained he was not very optimistic and proceeded to obtain information from the grievors which they considered to be relevant to their grievances. After conducting his investigation, Carriere concluded that the four employees had engaged in an illegal strike and he felt that the best he could achieve at arbitration would be the reinstatement of the two employees who were discharged. Carriere considered the fact that two of the grievors were discharged while the other two were merely suspended, but was satisfied there was some justification for the different treatment since the discharged employees engaged in picketing for more than one day.
On June 3, 1986, Carriere and Lloyd met with employer representatives in the hope of settling the four discipline grievances. At the conclusion of this meeting, Carriere was satisfied Local 8222 could resolve all four grievances with the reinstatement of the discharged employees and the substitution of a suspension without pay, but without loss of seniority. Since the employer representatives did not have the authority to settle the grievances, the actual settlement of the grievances was left for a later time. During their discussions, an employer representative made reference to the Howes' spitting incident and he indicated that the employer was not taking it lightly. Carriere and Lloyd, although aware of the spitting incident, concentrated on the task at hand, namely the resolution of the four discipline grievances.
On the evening of June 10, 1986, Brown called Howes to advise him that union representatives would be meeting with management the next day to settle the four discipline grievances. When Howes asked what would happen, Brown indicated he could not be certain, but one possibility would be that Howes' discharge would be changed to a suspension and he would not receive any back pay. Howes expressed concern about receiving no back pay since he had been off work for some time. When Howes asked Brown about the spitting incident, Brown responded by saying that management did not mention it to him and he did not intend to raise it.
On the morning of June 11, 1986, Local 8222 and the employer executed Minutes of Settlement which provided for the resolution of the four grievances along the lines anticipated by Carriere. At approximately 10:30 a.m. on that morning, Brown called Howes to advise him of the terms of the settlement and to tell him he would return to work on the following day. Shortly after the discussion with Brown, Howes received two letters from the employer. One of the letters amended the discharge letter of January 31, 1986, in order to conform to the terms of the settlement. The second letter, dated June 11, 1986, advised Howes he was terminated for spitting twice in Steinfeld's face and for encouraging Steinfeld to come outside. Howes immediately called Brown, read him the discharge letter and asked Brown what was going on. Brown's response to what Howes told him indicates that Brown was unaware that the employer intended to discharge Howes for the spitting incident. Brown advised Howes to grieve the discharge and that he would discuss the matter with Lloyd.
On June 12, 1986, Howes met with Don Graham, the Recording Secretary and a member of the grievance committee for Local 8222, and prepared a grievance challenging his discharge for the spitting incident. In this second grievance, Howes insisted on a remedy which included compensation for a period of time beginning from January 24, 1986, the date when his suspension for participating in the strike and the picketing activity commenced. On June 13, 1986, Brown called Howes to advise him that his grievance was no good and that he would have to come in and rewrite it. Brown told Howes that he could not file his grievance as it was written since the employer would not accept it given the requested remedy. Howes indicated to Brown that he would get back to him as to whether he would rewrite the grievance or not.
Howes called a friend for advice. The friend, a Canadian Auto Workers Local President, suggested Howes leave the grievance as it stood. Rather than call Brown himself, Howes asked Kemble to call Brown and advise him about his decision on the grievance. Kemble, with Howes present, called Brown and told him that the grievance satnds as written and asked Brown what his position was. Howes testified that Kemble advised him and Brown responded to her question by sayng that he would not hand the grievance in until he talked to Bill Lloyd and that he would get back to Howes. Since Kemble did not testify, Howes' evidence of what Kemble told him about what Brown said to her is hearsay, as noted by counsel for the union. What is clear from 1-Towes' evidence is that Brown was advised that Howes wanted Brown to file the second grievance as written and that Howes understood that Brown would get back to him regarding Local 8222's decision on his grievance.
The next conversation between Howes and Brown took place July 8, 1986, approximately three weeks after Brown was told to file the grievance as it was written. The relevant collective agreement provides that a grievance of this type shall be filed in five days. Howes indicated that he attempted to call Brown at the plant on a number of occasions but was not successful in contacting him. I am satisfied that other ways were available to Howes to contact Brown, which Howes failed to take advantage of. But even if Howes could have done more in order to stay on top of the situation, this alone cannot provide a defense to the union for its conduct in handling Howes' second grievance.
As a result of information he received from another employee, Howes called Graham on July 8, 1986, and asked Graham about the status of his grievance. Graham advised Howes that Brown vetoed his grievance because of the requested remedy without bringing the grievance to the grievance committee. Howes made a comment about complaining to the Ministry of Labour and asked Graham to have Brown call him. Brown called Howes on July 9, 1986, and responded to Howes' question about the status of his grievance by saying that he did not have a grievance. When Howes replied that he did have a grievance, Brown advised him that he had dropped his grievance and confirmed that he did not present the grievance to the grievance committee. When Howes asked for all of the documentation relating to his grievance, Brown indicated that he had been advised not to give him anything and, if Howes did not like it, he could charge him.
This complaint was dated July 14, 1986 and was filed with the Board on July 17. Subsequent to the filing of the complaint, the respondent filed Howes' second grievance with the employer and processed the grievance in accordance with the terms of the collective agreement. During a third step grievance meeting, Lloyd argued that the employer should reduce the penalty. Although Howes expressed some concern about the way in which the union argued his case at the third step meeting, I am satisfied, based on what Howes said took place, that the union provided Howes with satisfactory representation at the third step meeting. The respondent was successful in obtaining the employer's agreement to waive any time limits which may have applied to the second discharge grievance. Local 8222 has requested a solicitor to provide it with an opinion as to whether or not the Local should proceed to arbitration with Howes' second grievance. As of the hearing date for this complaint, the respondent had not decided whether it would arbitrate Howes' second grievance since it had not received its solicitor's opinion on the merits of the grievance, and this was in large part due to Mr. Howes' failure to keep an appointment to meet with the Local's solicitor.
In his submissions to the Board, Howes argued that Local 8222 contravened section 68 of the Act in two respects. He claimed the Local contravened the section when it settled the first discharge grievance without raising the spitting incident with the employer. While he was testifying, Howes was asked whether he would have made a complaint concerning the way in which Local 8222 settled his first grievance if the employer did not fire him for the spitting incident, and he answered by saying he would not have made a complaint. Nonetheless, Howes argued that the union represented him unfairly in settling his first discharge grievance. Howes also argued that the union contravened section 68 in the way it handled his second discharge grievance, particularly when it elected to drop the grievance without filing it with the employer. Howes requested the following remedies for the alleged violations:
(1) that the Board declare the settlement of the first grievance null and void and that the complainant be compensated for his losses from January 24, 1986 until June 11, 1986, less twenty days for which he would have had to serve as a suspension;
(2) that the Board direct the respondent to take his second grievance to arbitration allowing the complainant to select his own legal advisor at the union's expense; and,
(3) that the Board direct the union to pay for the complainant's costs incurred on September 29, the hearing day.
- Section 68 of the Act provides:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shalt 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.
Subject to the duty set out in section 68 of the Act, decisions concerning how grievances will be settled or whether a particular grievance will proceed to arbitration are matters which are exclusively decided by the trade union. The Board has not interpreted section 68 in a way which requires a trade union to arbitrate a grievance or to settle a grievance in a particular way merely to accommodate a grievor's wishes. The duty only requires that in deciding such matters, the trade union is obliged to act in a manner which is not arbitrary, discriminatory or in bad faith. In Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, the Board comments on the nature of the obligation found in section 68:
Section 68 requires that each trade union decision be grounded on a consideration of relevant matters, free from the influence of irrelevant considerations. The requirement that a trade union not act in a manner which is in bad faith protects the legitimate expectation that an individual employee's bargaining agent will act honestly and free of any personal animosity toward him. The requirement that a trade union not act in a discriminatory manner protects against the making of distinctions between employees and groups of employees on bases which have no relevance to legitimate collective bargaining concerns. "Bad faith" and "discriminatory", therefore, test for the presence, in the process or results of union decision-making, of factors which should not be present. "Arbitrary", on the other hand, describes the absence in decision-making of those things which should be present. A decision will be arbitrary if it is not the result of a process of reasoning applied to relevant considerations. The duty not to act arbitrarily requires a trade union to turn its mind to the matter at hand.
Although this duty is imposed on the trade union as an institution, the trade union observes or breaches the duty through the actions of its officials or decision-making bodies. Especially where an impugned decision is that of a single official, there are obvious difficulties in reviewing the process by which that decision was made. Only the union official knows what his thought processes were and what facts and circumstances he actually took into account in the course of arriving at this decision. His ability to recall and articulate what took place in his mind may be influenced, sub-consciously or otherwise, by self-interest and by the knowledge that he is the only witness to these crucial mental events.
With these thinking processes hidden from direct examination, a review of the behaviour of a trade union official must necessarily focus on what he did and the context in which he did it, as well as on what he says he thought. The result of the decision-making process is weighed against the facts and circumstances on which it is said to have operated. If the resulting interpretation of facts or of a collective agreement is found by the Board to be "reasonable" Clifford Renaud11976] 2 Can. LRBR, [1976] OLRB Rep. Jan. 967,¶22; Jay Sussman, [1976] OLRB Rep. July349 ¶11; I. T.E. Industries Ltd. [1980] Rep. July 1001, ¶20), "not unreasonable" (Ivan Pletikos [1977] OLRB Rep. November 776, ¶3), "not open to challenge" (Oil Chemical & Automic Workers Int'l Union and its Local 9-698, [1972] OLRB May 521, ¶3), or at least "not implausible" (CUPE Local 1000 - Ontario Hydro Employees Union, [1975] May 444, ¶32), then the Board is inclined to find that the decision is not arbitrary. Where the decision maker, on the other hand, misapprehends facts and circumstances which the Board considers "patent" and arrives at an "almost perverse" understanding of the facts and circumstances, the Board will conclude that union effectively barred itself from "directing its mind to the real question", and that in so doing it has acted in an arbitrary fashion: The Corporation of the County of Hastings, 11976] OLRB Rep. November 1072, ¶22. 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.
The required thought process may involve more than the simple application of logic to the information then at hand. Decision making may be arbitrary if, before making its decision, the union fails to identify and seek out sources of further relevant information which should be taken into account in making that decision: CUPE Local 2327, [1981] OLRB Rep. June 623, ¶30; Alvin Plummer, [1983] OLRB Rep. Nov. 1920, 5 CLRBR (N5) 108,
Many section 68 complaints are concerned with situations in which the trade union elects not to proceed to arbitration with a discharge grievance. In Swing Stage Ltd., [1983] OLRB Rep. Nov. 1920, the Board made the following observations about a trade union's duty in such cases:
Discharge is the ultimate sanction in collective bargaining. Through it an employee forfeits not only his livelihood but also valuable accrued rights including seniority and benefits, acquired sometimes over years of service. For this reason the law in some jurisdictions give discharged employees an absolute right to have their terminations reviewed at arbitration. (See Division V.7(Unjust Dismissal) Section 61.5 of the Canada Labour Code, R.5.C. 1970, C. L-1, amended S.C., 1977-78, C.27, applicable to employees not covered by a collective agreement). Some maintain that the duty of fair representation should be interpreted as requiring a union to carry the grievance of any discharged employee to arbitration (see Weiler, P. Reconcilable Differences, (1980) pp. 137 ff.). In Brenda Haley [1980] 3 Can. LRBR 501; (1980), 41 di 295, [19811 2 Can. LRBR 121; 41 di 311 (Plenary Board Review), however, the Canada Labour Relations Board declined to adopt Professor Weiler's view.
This Board does not view the language of section 68 of the Act as guaranteeing to every employee the arbitration of his or her discharge...
46.... In our view, however, the law has evolved beyond the point where the union may simply assert that it has "considered" an employee's request for help and "decided" not to help him.
- The decision not to process a grievance for an employee who has been disciplined or discharged may, depending on the circumstances, be a justified and responsible exercise of a union's prerogatives. Where, however, an employee has been discharged there is an obligation on a union to provide a satisfactory explanation for its decision not to process a grievance. While the legal burden in a section 68 complaint is on the individual complainant, once it is established that a union member has suffered the ultimate sanction of discharge, this Board expects a persuasive account from the union to justify its refusal to file a grievance, or having done so, to carry the grievance to arbitration.
[emphasis added]
The evidence discloses that various representatives of the union were involved in thoroughly investigating the circumstances giving rise to the discipline imposed by the employer on all of the employees who were alleged to have engaged in illegal strike activity. At the complainant's request, the respondent allowed Ms. Kemble to act as steward for the grievors and she was able to provide other union representatives with extensive notes detailing the results of her investigation. The union treated the grievances seriously and this is reflected by the fact that it sought out the assistance of Carriere, a District Staff Representative. Carriere also investigated the grievances thoroughly by reviewing the file, Kemble's notes and by interviewing all of the grievors, including Howes. After investigating the circumstances, Carriere engaged in settlement discussions with representatives of the employer and eventually a settlement was reached which resulted in the reinstatement of Howes and the other discharged employee. In Carriere's view, the union would not likely have achieved a better result at arbitration.
Carriere and the other union representatives were not dealing with the imposition of discipline on the complainant as a result of the spitting incident. They were providing representation to employees who were disciplined for allegedly striking illegally. It would not be unreasonable for the union representatives to view the spitting incident as a matter extraneous to the grievances they were attempting to settle. In addition, referring to the spitting incident while attempting to settle the discipline grievances could have seriously damaged the likelihood of reaching a settlement. Not only would Howes' return to work be jeopardized, but the return to work of the other discharged employee would also be jeopardized, since this was obviously a situation where there would either be a settlement of all grievances or no settlement at all. In electing to settle Howes' first discharge grievance without raising the spitting incident, the union made a judgement which, in these circumstances, the Board is not prepared to second guess. In reviewing the respondent's representation of Howes with respect to his first discharge grievance, the Board is satisfied that the respondent did not contravene section 68 of the Act. Therefore, that aspect of the complaint which concerns the respondent's handling of Howes' grievance #86-601 is hereby dismissed.
Counsel for the respondent argued that Brown's refusal to file Howes' second discharge grievance because of the requested remedy may have been an error on his part, but should not lead the Board to conclude that Brown's conduct was arbitrary, discriminatory or motivated by bad faith, even though Brown did not testify and explain why he initially decided not to process Howes' second grievance. In the circumstances of this case, the Board has difficulty in accepting this proposition. It is not uncommon for grievors to request remedies which, for various reasons, may not be appropriate. The fact that a grievor seeks an inappropriate remedy does not obligate the trade union to pursue such a remedy when it processes the grievance. The refusal to file a grievance, particularly a discharge grievance, merely because the trade union official feels that the requested remedy is inappropriate, has the appearance of being arbitrary. An explanation from the trade union official as to why he or she acted in this way ultimately may lead the Board to conclude that there has not been a contravention of section 68 of the Act. For example, in this case, Brown may have been concerned that filing the grievance as written may have damaged the bargaining relationship between the union and the employer since the grievance was inconsistent with the settlement of Howes' first discharge grievance. Such an explanation may have led the Board to conclude that Brown's conduct, although appearing to be arbitrary, was in fact not arbitrary. Since we had no explanation from Brown in circumstances where an explanation is required, the Board is left to conclude that Brown's conduct was arbitrary within the meaning of section 68 of the Act.
After Brown asked Howes to rewrite his second discharge grievance, Brown was advised by Kemble on June 13, 1986 that Howes wanted the grievance filed as written. Howes understood that Brown would get back to him and advise him whether he would file the grievance as written. Even if Howes' understanding was incorrect, the Board is left with no direct evidence concerning Brown's response to Howes' request to file the grievance as written. The next piece of evidence relating to Brown deals with the telephone conversation on June 13, 1986 between Howes a~d Brown where Brown advises Howes that he dropped his grievance. Brown's failure to give Howes the opportunity to rewrite his second discharge grievance with the knowledge that Brown Was not going to file the grievance as written is arbitrary within the meaning of section 68 of the Act.
In the result, the Board is compelled to conclude on a review of the evidence and argument, and so declares, that the respondent contravened section 68 of the Labour Relations Act by acting in an arbitrary manner in the representation of the complainant when it initially dealt with his second discharge grievance.
The Board is satisfied that the only remedial response which is warranted in the circumstances of this case is a declaration. The essence of Howes' complaint as it relates to the second discharge grievance is that the respondent initially abandoned the grievance without even filing it with the employer. In order to remedy a contravention of section 68 arising on these facts, the Board would be inclined to direct the union to file the complainant's grievance and to process it in accordance with the grievance procedure provisions of the collective agreement and its obligations under section 68 of the Act. The evidence discloses that as of the date of hearing, this is precisely what the respondent has done. The respondent has filed Howes' second discharge grievance, processed it in accordance with the terms of the collective agreement and obtained the agreement of the employer to waive any objection based on time limits. Howes was provided with satisfactory representation at the third step meeting and the union has requested a legal opinion from its solicitor concerning the merits of Howes' second discharge grievance. From the time the grievance was filed to the date on which this complaint was heard, the respondent has represented Howes in accordance with its obligations under the Act, and there is no evidence before the Board which would indicate that the union will be unlikely to continue to satisfy its obligations under section 68 of the Act. In this connection, the Board notes that Brown was not opposed to filing another discharge grievance for Howes, but rather only had concerns with respect to the particular remedy which Howes wished to request in his second discharge grievance, part of which remedy was inconsistent with the settlement which the union had entered into regarding Howes' first grievance. In addition, it is worth noting that the way in which the respondent represented Howes on the first discharge lends support to the proposition that there is little basis on which one could infer that the respondent will likely neglect its statutory duty in continuing to represent him on the second discharge. Thus, the circumstances would not prompt the Board to direct the respondent to arbitrate the second discharge grievance. Since the respondent has already implemented the action which the Board would have ordered it to take, no relief other than the foregoing declaration is necessary or appropriate in the circumstances of this case.
The Board has uniformly denied requests for costs in the context of a succsessful section 68 complaint. (See, for example, Angelo Ritrovato, [1986] OLRB Rep. Oct. 1401.) Since there is no reason to depart from its usual approach on the facts of this case, the Board denies the complainant's request for his costs incurred on September 29, the date of hearing.