[1987] OLRB Rep. April 547
2179-86-U Raymond McLeod, Complainant v. Camco Inc. and United Electrical, Radio and Machine Workers of Canada (UE) Local 550, Respondents
BEFORE: Judith McCormack, Vice-Chair.
APPEARANCES: Raymond McLeod on his own behalf; R. Chris Wartman and L. Piecyk for Camco Inc.; Frank Piserchia and Ralph Currie for the United Electrical, Radio and Machine Workers of Canada (UE) Local 550.
DECISION OF THE BOARD; April 10, 1987
The names of the respondents are amended to read: "Camco Inc." and "United Electrical, Radio and Machine Workers of Canada (UE) Local 550".
This is a complaint filed under section 89 of the Labour Relations Act in which the complainant alleges that the union has breached section 68 of the Act by failing to properly pursue his grievance and refusing to refer it to arbitration.
Raymond McLeod has worked as an assembler for the past 11 years for Camco Inc., an appliance manufacturer. There is no dispute that he was a member of a bargaining unit represented by the respondent at the time of the events in question. He testified on his own behalf in this matter.
Mr. McLeod told the Board that in May of 1986, he was working on the evening shift and found that he needed a part in another aisle. This meant walking past a pile of stove ranges awaiting assembly. As he walked by, a stove range was pushed out so that it landed in front of him. Mr. McLeod testified that he picked up the range and deposited it in a pile for scrap ranges.
He then went over to where employee John Dennis was standing to ask him what had happened. It appears that the relationship between Mr. Dennis and Mr. McLeod was not amicable at the best of times. Mr. McLeod told the Board in the course of the discussion, Mr. Dennis pushed him on the shoulder. Mr. McLeod looked around, intending to push Mr. Dennis back until he saw the foreman, Doug Allen, nearby. Mr. Allen came over and attempted to ascertain the cause of the altercation. Mr. McLeod explained his side of the story and Mr. Allen suggested that he leave the area briefly while Mr. Allen spoke to Mr. Dennis.
Mr. McLeod returned to his work station after 15 minutes and found that Mr. Dennis was still very angry about the incident. Periodically throughout the rest of the shift, Mr. Dennis yelled threats at Mr. McLeod, including "you're dead outside", "I'm going to kill you", and "you're dead meat".
Two knives are kept for cutting rubber sleeves at Mr. Dennis~ work station. Shortly before the end of his shift, Mr. McLeod glanced over and noticed that the knives were gone. He then became very worried that Mr. Dennis was going to attack him outside the plant. As a result, he took a piece of scrap steel bar and hid it up his sleeve.
At 12 o'clock midnight, employees converged on the punch clocks prior to leaving work. Mr. Dennis was lined up in front of Mr. McLeod with some 12 people in line between them. Mr. Dennis punched his card and left. Mr. McLeod subsequently punched out and prepared to walk through the door into a breezeway between the plant buildings. As he walked through the door, he told the Board that he saw a shadow moving towards him quickly, which turned out to be Mr. Dennis. He also saw a coat hanging up on a protrusion and a lunch pail on the ground.
As Mr. Dennis approached Mr. McLeod, the latter took out his bar and yelled 'stay away from me, man', at the same time moving the bar up and down in front of his body to create a barrier. According to Mr. McLeod, Mr. Dennis ducked, came up under Mr. McLeod's arm and grabbed the latter's shirt front. Mr. McLeod was afraid that Mr. Dennis had a knife and he hit Mr. Dennis with the steel bar. During this time, Mr. McLeod had started moving backwards with Mr. Dennis still hanging on to his shirt. Mr. McLeod hit him on the arm and broke loose from his grasp. Other employees then restrained the two men and Mr. McLeod left the scene. The employer called no evidence on these events and it is not my task to determine what actually occurred that night. These facts have been set out to provide a context for the subsequent sequence of events.
The following day Mr. McLeod reported for work early, assuming that someone from the company would want to ask him about the fight. He was met at the plant gate by a security officer who escorted him into a room where he was left for an hour and three quarters. Eventually Mr. Piecyk, the manager of shop operations range, and an unidentified man interviewed Mr. McLeod and then wrote out a statement for him to sign. The two men left and returned shortly thereafter at which time Mr. Piecyk asked Mr. McLeod whether he wanted to quit or be fired. Mr. McLeod indicated that it was up to Mr. Piecyk, who then terminated his employment. At that point Mr. Piecyk asked Mr. McLeod if he wished to speak to a union steward. Mr. McLeod refused this offer as he felt it would not be useful since he had already been terminated. According to Mr. McLeod, Mr. Dennis was not disciplined. His evidence in this regard was uncontradicted.
Two days later, on May 6, 1986, Mr. McLeod spoke to Larry Millen, President of Local 550 of the respondent union who filed a grievance on his behalf. It appears that a grievance meeting was held with the company on May 12, 1986 and that the grievance was denied in writing by the company on May 15, 1986.
Ralph Currie, National Co-ordinator for the Hamilton area for the respondent union, told the Board that a meeting of the union's Grievance Panel was held on May 26, 1986. This Panel consists of the chief stewards, two directly elected members, the local president and Mr. Currie. Its purpose is to review grievances and make recommendations to the Stewards' Council. According to Mr. Currie, on this occasion the Panel discussed Mr. McLeod's grievance and decided that it should be tabled (that is, not referred to arbitration) because the information they had in their possession pointed to the likelihood of the grievance being dismissed at arbitration.
Mr. Currie testified that the information the union acted upon was supplied by three witnesses who had come to the union and volunteered that Mr. McLeod had attacked Mr. Dennis from behind. To his knowledge, no one from the union had spoken to employees in the area of Mr. McLeod's work station. Mr. McLeod had been disciplined some years previously and it was on the basis of this information, together with his previous disciplinary record, that the Panel decided to table the grievance.
Later that evening, Mr. McLeod appeared and asked to attend the Stewards' Council meeting, which followed the Grievance Panel meeting. Mr. Currie told him that he could not attend the Stewards' Council meeting, but that the Grievance Panel had recommended that his grievance be tabled and that he would receive a letter to this effect. Mr. Currie also advised him that he could appeal this decision to a membership meeting. That night, the Stewards' Council accepted the Grievance Panel's recommendation to table the grievance.
Mr. McLeod subsequently attended a members' meeting on May 28, 1986. He presented his description of events and was asked whether he had any witnesses to support his case. at that time, Mr. McLeod told the union to speak to a fellow worker whom he identified only by his first name and his work station. At the meeting it was decided to extend the time for considering the grievance until the June membership meeting for the purpose of allowing Mr. McLeod to produce witnesses to support his case. If such witnesses were not produced, the grievance would be tabled.
Some time during this period, Mr. McLeod attempted to set up a meeting between Mr. Currie, and Jeffrey Williams, the employee to whom Mr. McLeod had referred at the membership meeting. Unfortunately, Mr. Williams failed to attend the meeting. Mr. Williams told Mr. McLeod hat he was scared that he was going to get in trouble with his fellow employees.
At the membership meeting in June, employee Rudy Oliveros suggested the name of another employee who might be able to help Mr. McLeod. It was then decided to give Mr. MacLeod another extension on essentially the same terms.
During the same period Mr. McLeod met Winston Barnes, another employee, on the street in Hamilton and found that Mr. Barnes had overheard the incident with Mr. Dennis inside he plant. As a result, Mr. McLeod phoned Tony McNulty, Mr. Currie's vacation replacement, and told him Mr. Barnes' full name and again provided Mr. Williams' first name. Mr. McLeod was lot sure whether this call was placed in August or in October of 1986.
The next membership meeting was held in August of 1986. Mr. McLeod did not attend because he felt by this time that the union did not care about his grievance and that Mr. Currie was treating him as if Mr. McLeod was bothering him. He felt that he was getting the brush off. At the August meeting, it was decided that Mr. McLeod's grievance would be tabled as he had not yet brought forward any witnesses to testify on his behalf at an arbitration.
Mr. McLeod also faced criminal charges arising out of the fight. Mr. Williams, who had promised to testify in court on behalf of Mr. McLeod, failed to appear, and Mr. McLeod was convicted of assault and placed on probation.
Both Mr. Barnes and Mr. Williams were subpoenaed to appear before the Board and both testified.
Mr. Barnes has also worked at Camco Inc. for 11 years as an assembler. He was working near the work area where the range incident occurred, and essentially corroborates Mr. McLeod's story with respect to both the altercation on the shop floor between Mr. Dennis and Mr. McLeod and Mr. Dennis' subsequent threats.
He also told the Board that at breaktime, because of the threats Mr. Dennis had been making, he asked Mr. McLeod whether he was going to get into a fight with Mr. Dennis. Mr. McLeod answered that he would try and walk away, but that if he had to fight, he would not back down.
Mr. Barnes advised the Board that when Mr. Allen intervened in the argument between Mr. McLeod and Mr. Dennis, Mr. Allen had told them that if they wanted to fight, they should not do it on company time or on company premises. He also testified that nobody from either the union or management had come down the assembly line to ask employees if they had seen anything of the incident.
Mr. Williams has worked at Camco Inc. for three and a half years as an assembler. His version of the fight outside the plant tallies with Mr. McLeod's in all material respects. The following day, Mr. Williams was asked if he had seen anything by Alex Weir, a shop operations manager. Mr. Williams gave a written statement to Mr. Weir which, he testified, paralleled his evidence before the Board. It appears that the company did not tell either the union or Mr. McLeod that they had such a statement in their possession.
Mr. Williams told the Board that he did not go to court with Mr. McLeod because he did not want to get involved. He said he did not want to be "in the middle of it" at work, and implied that supporting Mr. McLeod was not a popular position with his fellow employees. He felt that since he had given his statement to someone whom he perceived as official, that is, Mr. Weir, he had done his duty.
The essence of Mr. McLeod's complaint is that the union did not provide him with the assistance to which he felt he was entitled. In his view, if the union had investigated his grievance more thoroughly, they would have uncovered the evidence of Mr. Barnes and Mr. Williams. As it was, he argued that the union had not done enough to find out about his side of the case.
Mr. Piserchia argued on behalf of the union that there was no evidence of discrimination against or malice towards Mr. McLeod. He conceded that the union had a duty to investigate grievances, but pointed out that Mr. McLeod had not done much to assist in the investigation. In his submission, the union made the decision to table Mr. McLeod's grievance in good faith on the evidence that was available to it at the time, and the fact that other evidence emerged at a later point should not cloud the Board's perception of the union's conduct. Finally, he argued that Mr. Currie was bound by the decision of the membership meeting.
Section 68 provides as follows:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, 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, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
The Board elaborated on its approach to section 68 in Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067:
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 band, 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.
It is well established that section 68 does not require a union to forward a grievance to
arbitration solely because an employee desires to have his or her "day in court". As the Board commented in Catherine Syme, [1983] OLRB Rep. May 775:
Section 68 requires a trade union to act fairly, inter alia, in the handling of employee grievances. But it does not require a trade union to carry any particular grievance through to arbitration simply because an employee wishes that this be done. A trade union is entitled to consider the merits of the grievance, the likelihood of its success, and the claims or interests of other individuals or groups within the bargaining unit who may be affected by the result of the arbitration. The trade union must give each grievance its honest consideration, but so long as the arbitration process involves a significant financial commitment and has ramifications beyond the individual case, a trade union is not only entitled to settle grievances, in many cases it should do so. And, as has been pointed out in a number of cases, in assessing the merits of a grievance a trade union official - especially an elected one - cannot be expected to exhibit the skills, ability, training and judgement of a lawyer.
The central issue which crystallized in this case is the extent of the union's responsibility under section 68 to investigate Mr. McLeod's grievance. That section 68 imposes such a responsibility is well established in the Board's jurisprudence (see, for example, Swing Stage Ltd., [1983] OLRB Rep. Nov. 1920, Jeanne St.Pierre, [1986] OLRB Rep. June 883, and Central Stampings Limited, [1984] OLRB Rep. Feb. 215). To avoid the characterization of a decision as arbitrary, a union must, among other things, turns its mind to all the relevant facts in a case. It follows that the union must therefore make reasonable efforts to unearth the relevant facts so that they may be considered. Thus a union is required to enter into a process of collecting and evaluating information as a preliminary step to making a decision which is consistent with the duty of fair representation. As the Board noted in Savage Shoes Ltd. ,supra:
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: Canadian Union of Public Employees Local 2327, [1981] OLRB Rep. June 623, ¶30; Swing Stage Ltd. Re Alvin Plummer, [1983] OLRB Rep. Nov. 1920.
This is not to suggest that every grievance must give rise to a formal or protracted investigation. The Board is sensitive both to the fluidity and informality which characterizes many aspects of labour relations, and the fact that individuals with varying degrees of experience and expertise may be involved in such a process (see Ford Motor Company of Canada, [1973] OLRB Rep. Oct. 519). However, the process of gathering the relevant information must, at the very least, be undertaken fairly and in a manner which cannot be described as perfunctory.
In the instant case, it was clear from the evidence that Mr. Currie was not involved in the initial investigation of the grievance and that he, like the other members of the Grievance Panel, was acting on information obtained by Larry Millen, the President of Local 550. Mr. Millen testified that in the course of the ongoing investigation of Mr. McLeod's grievance which continued until August, he had interviewed some 35 or 40 employees to ascertain what had occurred. He told the Board that the information he obtained through this process was not consistent with Mr. McLeod's story.
I did not find Mr. Millen to be a reliable witness. Although he claimed to have spoken to 35 or 40 employees, he could remember the names of only two; one who had volunteered information supporting Mr. Dennis' position the day following the fight, and another who was the employee referred to by Mr. Oliveros in the June membership meeting. Moreover, his evidence was inconsistent with Mr. Currie's testimony in which he told the Board that the Grievance Panel had made their decision on the basis of information from three witnesses.
1 note that the employer came across Mr. Williams in the course of its own investigation very shortly after the incident, and that Mr. McLeod had given the union Mr. Williams' first name and work station on May 28, 1986. 1 find it difficult to understand how both Mr. Barnes and Mr. Williams could have eluded the union if the investigation had been as comprehensive as Mr. Millen describes. (I make no comment on the wisdom of the employer withholding Mr. Williams' statement from both the union and Mr. McLeod.)
Having had the opportunity to assess the credibility and demeanour of both Mr. Currie and Mr. Millen, I find the former's testimony more reliable and consistent with the other evidence in this matter. I therefore find that at the time the Grievance Panel made its decision to recommend tabling the grievance, it was relying on information supplied by three employees on their own initiative which supported Mr. Dennis' version of events. Subsequent to that decision, I find that Mr. Millen also spoke to one other employee whose name had been raised in the June membership meeting.
In the circumstances of this case, I find it difficult to avoid the conclusion that the investigation conducted was inadequate, particularly in view of the serious nature of the grievance. The Board has commented previously on the importance of discharge grievances in the context of section 68 in Swing Stage Ltd., supra:
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 gives discharged employees an absolute right to have their termination reviewed at arbitration. (See Division V.7 (Unjust Dismissal) Section 61.5 of the Canada Labour Code, R.S.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. That is not to say, however, that the duty of fair representation contemplated under section 68 of the Act is unable to remain responsive to labour relations realities.
In this case, I find it troubling that the union relied solely upon information volunteered by employees in circumstances where feelings were running so high in the plant. (The fourth employee to whom the union was referred by Mr. Oliveros was apparently unable to provide information one way or the other.) While information provided by three employees might well be sufficient or more than sufficient in other circumstances, here Mr. Millen knew or ought have known that he was hearing a one-sided version of events.
In this context, the union's failure to pursue the information provided by Mr. McLeod with respect to Mr. Williams is particularly serious. While it was not clear from the evidence when Mr. Barnes' name was provided to the union, information with respect to Mr. Williams was raised by Mr. McLeod at the members' meeting of May 28, 1986, some three months before the final decision to table the grievance.
Moreover, it does not appear that the union ever put the information gathered against Mr. McLeod to him to enable him to respond to it. While he was told generally that his version of events was not supported by other witnesses, there was no evidence that he was given any real opportunity to deal with the allegations against him in a meaningful way.
It is worth emphasizing at this point the obvious proposition that each case turns on its
own facts and that similar facts in a different context may have different implications. However, in the somewhat charged climate in which these events took place, the union's investigation was inadequate and fell short of the standard required under section 68.
The argument that Mr. McLeod himself could have done more on his own behalf in looking for witnesses is not without some merit. However, the union's duty of fair representation in these circumstances is not dependent upon the degree to which an employee can provide assistance in his own cause. The proscription against arbitrary conduct in section 68 is predicated on the fact that the union has been accorded exclusive rights to represent employees in their labour relations. The exclusivity of the union's mandate carries with it certain responsibilities with respect to the exercise of that representation which are appropriately attendant on a role of such significance. It follows that the core of the duty of fair representation obtains regardless of the efforts which may or may not be made by the employee himself. Indeed, in practical terms, it may well be that an employee who is least able to be effective on his own behalf may be most in need of the protection offered by section 68.
This does not mean that in evaluating the union's conduct, an employee's own behaviour will be ignored by the Board. To the extent that such behaviour forms part of the backdrop or context against which the union's actions will be assessed, it is one of many facts which the Board may consider in arriving at a decision in appropriate cases. While it does not relieve the union of its responsibilities under the duty of fair representation, it may help to shape the contours of that duty in particular cases.
In this case, it became evident that Mr. McLeod was not a resourceful or knowledgeable person with respect to the kinds of matters described above. It was also clear that it would have been more difficult for him to speak to employees directly since he no longer had access to the plant and did not have many of their names, let alone their addresses and telephone numbers. Certainly there is no suggestion that Mr. McLeod obstructed or otherwise impeded the efforts of the union on his behalf. In these circumstances, I cannot accept the suggestion that Mr. McLeod's efforts, or lack thereof, in some way explain or ameliorate the approach taken by the union.
Taking the evidence as a whole, I conclude that the respondents' representation of Mr. McLeod was so uncaring and indifferent as to be characterized as arbitrary and to constitute a violation of section 68. Pursuant to section 89, the Board directs the respondent trade union and the employer Camco Inc. to forthwith refer Mr. McLeod's grievance to arbitration by a sole arbitrator and further directs that the time limits set out in the collective agreement shall not bar the referral. The Board remains seized of this complaint in the event that it becomes necessary to determine any apportionment of compensation between the employer and the union or any other problems of implementation which may arise.