[1987] OLRB Rep. October 1211
0204-87-U Winston Alfonso Blair, Complainant v. United Steelworkers of America, Respondent v. Midas Canada Inc. and International Parts Manufacturing Limited, Intervener
BEFORE: Michael Bendel, Vice-Chair.
APPEARANCES: Winston Alfonso Blair on his own behalf; Marion Korn, Gerry Barr, Ed Pestano and Roy Jerome for the respondent; Paula M. Rusak and James Denny for the intervener.
DECISION OF THE BOARD; October 23, 1987
1This is a complaint under section 89 of the Labour Relations Act, in which the complainant alleges that the respondent has violated section 68 of the Act.
2The complaint, as filed by the complainant, who was not legally represented in this proceeding, names certain union officers as respondents. It is clear from the language of section 68 of the Act that only a trade union owes a duty of fair representation. Although no objection was taken to the form of the proceeding nor any amendment sought, the trade union against which the substance of the complaint was directed and which was represented at the hearing is hereby substituted for the union officers as respondent.
3The complaint relates to the manner in which the complainant was represented at an arbitration hearing into his discharge from employment with the intervener.
4The complainant was represented at the arbitration, as well as in a grievance meeting with the employer, by Mr. Gerry Barr, a staff representative with the respondent, who was assisted by the president of the local and the chief steward. Mr. Barr was an experienced union representative whose regular duties included representing members at arbitration. He had participated in regular training sessions for union representatives run by the respondent.
5The intervener's ground for the discharge was the complainant's admitted act of theft. The items stolen, which the complainant regarded as scrap, were of nominal value. The complainant had some 16 years of service to his credit, free of any prior discipline that the employer could invoke.
6Mr. Barr testified that his approach to the arbitration was to stress the rehabilitative potential of the complainant. The employment relationship, he argued, was salvageable. He emphasized the many positive features in the complainant's work history, including his contribution to the health and safety committee. He had researched the arbitral case-law and he cited pertinent cases to the arbitrator.
7The complainant had discussed his case in advance of the hearing with Mr. Barr and he was present at the hearing. He did not raise any objections at the time to Mr. Barr's handling of the case. Mr. Barr acknowledged that he may not have explained his strategy to the complainant.
8The complainant testified that he left the arbitration hearing with the feeling that Mr. Barr had not done a proper job of representing him. He recalled that a union meeting had recommended that he be represented by a lawyer. He felt that he himself could have done a better job before the arbitrator than Mr. Barr. Specifically, he was of the view that Mr. Barr should have relied on the employer's failure to impose the penalty of discharge in other cases which he regarded as comparable. The complainant did not believe he had been the victim of bad faith or discrimination by the respondent.
9The arbitrator dismissed the grievance in a decision dated March 18, 1987. His complaint to the Board, dated April 8, was filed on April 22, 1987.
10In his submissions to the Board, the complainant's main contention was that Mr. Barr's presentation to the arbitrator was not persuasive and gave the arbitrator no real basis for allowing the grievance. He felt that he should have been legally represented.
11Ms. Korn, counsel for the respondent, noted that the complainant was not alleging bad faith or discrimination by the respondent. She argued that since Mr. Barr had obviously put his mind to the best approach to the representation of the complainant, the respondent's representation of the complainant could not be characterized as arbitrary. She contended that Mr. Barr had done a good job of representing the complainant even if the result was unfavourable. Citing the decision in Conestoga College of Applied Arts and Technology, [1983] OLRB Rep. June 882, Ms. Korn maintained that the respondent, which was in the practice of using union representatives in arbitrations, was under no obligation to retain a lawyer for the complainant's arbitration.
12In my view, the evidence does not support a finding that the complainant received representation that can be described as "arbitrary, discriminatory or in bad faith" so as to put the respondent in violation of section 68 of the Act. His case against the respondent, at the most, is that with a lawyer as his representative he might have achieved a more favourable result. As noted by counsel for the respondent in her submissions, a complete answer to this contention is to be found in the decision in Conestoga College, supra, where the Board said the following (at page 886):
It is not the function of this Board in a section 89 complaint based upon section 68, to "second guess" an experienced union official in the presentation of an arbitration case on behalf of a complainant, nor is it the Board's function to impose a duty upon a trade union to retain a lawyer to represent it before an arbitration board where, in accordance with its normal practice, it assigns the case to a member of its staff experienced in presenting such cases.
13For these reasons, the complaint is hereby dismissed.