Ontario Labour Relations Board
[1987] OLRB Rep. February 199
0469-86-U Maria Fatima Costa, Complainant, v. Labourers' International Union of North America, Local 183, Respondent, v. Burlington Canada Inc., Intervener
BEFORE: Patricia Hughes, Vice-Chairman.
APPEARANCES: R. C. Schipper and Maria F. Costa for the complainant; L. A. Richmond, D. Wintermute and M. O'Brien for the respondent; Joe Carrier and Dr. Michael Blacha for the intervener.
DECISION OF THE BOARD; February 17, 1987
"Burlington Canada Inc." is hereby added to the style of cause as intervener.
This complaint was based both on section 68 and section 69 of the Labour Relations Act ("the Act"). Counsel for the complainant agreed at the outset of the hearing that section 69 does not apply to the facts of this case. The complaint is accordingly dismissed in so far as it refers to section 69 since it does not establish a prima facie case under that section.
Maria Fatima Costa is a roll-up machine operator at Burlington Canada Inc. ("the employer" or "the company" or "Burlington Carpets") where she has worked since March 2, 1972. In January 1986, she bid for a job as an inspection floor machine operator and was successful. However, she had held the position for only one day when she was informed that a mistake had been made and Clementine Henry should have been given the job instead of her. She was told that since Ms. Henry was already in the inspection floor machine operator classification, the position was incorrectly posted; there had not actually been a vacancy since someone (Ms. Henry) was already doing the work. She returned to her previous job and asked Labourers' International Union of North America, Local 183 ("the union" or "Local 183") to file a grievance for her. When the union decided not to proceed to arbitration with her grievance after it had been dismissed by the employer at the third stage, Ms. Costa filed this complaint under section 68 of the Act alleging that her union had failed to represent her in an appropriate manner.
Section 68 states that
[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.
Ms. Costa alleges that the union breached all three heads of section 68 and acted in bad faith and in a discriminatory and arbitrary manner towards her. She asserts that the union was motivated by an extraneous reason in deciding not to proceed to arbitration in that Local 183's vice-president and business representative, Michael O'Brien was influenced by hostility towards the employer, and specifically towards its personnel director, Michael Blacha, rather than by the merits of her grievance and therefore acted in bad faith. She further asserts that in being prepared to take other similar grievances to arbitration but not hers, the union was discriminatory. She also claims that the union failed to address the merits of the grievance adequately, but that Mr. O'Brien and the chief steward, Dick Holmes, had predetermined the grievance before the third stage meeting, thereby acting arbitrarily.
The "bad faith" head of section 68 refers to bad faith in relation to the complainant and not to some third party. Counsel for Ms. Costa conceded that there was no allegation that the union had acted out of hostile motive or bad faith towards Ms. Costa herself. However, a union may be motivated by a factor so extraneous to the circumstances of the grievance that the Board can infer that it was acting out of ill will towards the complainant: Leonard Murphy, [1977] OLRB Rep. Mar. 146. In that case, the Board found that the union had acted in an arbitrary manner and then went on to say, at paragraph 30:
- While the above finding of arbitrary conduct by itself constitutes a violation of section [68] the Board is moved by the facts of this case to find as well that the Union Committee acted in bad faith. A concern for the rights of the grievors was fully eclipsed by what the Board has concluded to be the desire to protect the position of the relatives of Mr. Clarke [President of the respondent union] and the assistant foreman. When arbitrary conduct is motivated by a factor so extraneous and so counter to legitimate bargaining concerns it may reasonably be characterized as sinister. The full extent to which the grievors' rights were ignored indicates to this Board that they were the subject of the Union Committee's hostility.
In the instant case, Dr. Blacha, after having denied the grievance at third stage, wrote to the union en February 12, 1986, requesting that the grievance proceed to arbitration. He explained he wrote the letter because he had had one or two conversations with Ms. Costa in which she asked him to help her; he found that unsettling and disruptive. In addition, he thought it would be a good idea to get a ruling on the issue of whether the classification practice which had resulted in Ms. Costa's removal from her new position applied to small departments. Mr. O'Brien replied by letter on February 20, 1986, indicating that the union was not referring the grievance to arbitration. He then went on to allege that the attempt of the company to refer Ms. Costa's grievance to arbitration was "a clear case of interference with the administration of a trade union, and blatently (sic] violates the Labour Relations Act. We view your actions, moreover, as an improper attempt to interfere with the representation of the employees in the bargaining unit by the union, carried out with the purpose of causing dissension among the employees in the bargaining unit, and as encouraging hostility towards the trade union by a group of employees". Dr. Blacha then informed Mr. O'Brien in ~ letter dated February 26, 1986, that until Mr. O'Brien's February 20th letter, "we had no formal notification that this grievance would not be persued [sic]" and that having now received such notification, the company did not wish to proceed to arbitration. Dr. Blacha showed the letter to Ms. Costa, told her there was nothing else he could do, and in response to her request, gave her the name of the Law Society of Upper Canada's lawyer referral service. This exchange reflected the different views of Mr. O'Brien and Dr. Blacha with respect to the interpretation of article 8.04 of the collective agreement between the company and the union. Article 8.04 states that where there is no final settlement of a grievance at the third stage and the grievance "concerns the interpretation or alleged violation of the Agreement", either party may refer the grievance to arbitration. Mr. O'Brien was of the view, on legal advice, that this meant that the union referred its grievance to arbitration and the company referred its grievance to arbitration, but the company did not refer those brought by the union and the union did not refer those brought by the company. Dr. Blacha thought that the origin of the grievance was irrelevant, but that either party could proceed to arbitration with a grievance brought by either party. Which interpretation is correct is not for the Board to decide. However, it is clear that this exchange concerned matters beyond Ms. Costa's specific grievance. Counsel for Ms. Costa argued that Mr. O'Brien's letter was evidence that the union was more concerned with its dispute with the company than with Ms. Costa's grievance and that the only reason it refused to accede to the request to proceed to arbitration was because the company wanted to proceed. Thus, counsel contended, the union was motivated by an extraneous factor amounting to bad faith. He pointed out that Mr. O'Brien nowhere in the February 20th letter to Dr. Blacha raised the practice followed by the company and union which the union claimed had led to the removal of Ms. Costa from the job and the giving of the job to Ms. Henry; that was further evidence that Mr. O'Brien was not addressing his mind to the merits of the grievance, but merely playing out the hostility he felt towards Dr. Blacha. I do not so find. The union had already 4lecided not to proceed to arbitration with Ms. Costa's grievance before this exchange of letters ~ind the reasons for reaching that decision had been communicated to Dr. Blacha and to Ms. Costa. Furthermore, Mr. O'Brien's letter was directed at what I find to be a genuine belief (upon the validity of which I do not comment) that the company was interfering with the administration of the union. Mr. O'Brien believed, rightly or wrongly, that Dr. Blacha was taking advantage of comments by Ms. Costa at the third stage meeting to the effect that she would get rid of the union. Under these circumstances, it is not surprising that Mr. O'Brien would not attempt to justify the union's decision not to proceed to arbitration; the letter was itself intended to convey to the company that the decision to proceed or not to proceed to arbitration was solely within the union's discretion, a decision for which the union was not accountable to the company or which the company could not change. I find that the letter of February 20 does not represent a factor so extraneous that it leads to an inference that Mr. O'Brien was acting out of ill will towards Ms. Costa in refusing to proceed with her grievance; it may well evidence hostility towards Dr. Blacha, in his capacity as the company's personnel director, but I find that that dispute was not a reason underlying the union s refusal to proceed to arbitration. Accordingly, I find that the allegation that the union acted in bad faith in refusing to proceed to arbitration with Ms. Costa's grievance to be unsubstantiated.
Ms. Costa did not argue that the union had acted in a discriminatory way because of some particular characteristic defining her or because she belongs to a particular category of person. She simply says that the union has taken one grievance similar to her own to arbitration involving an employee named Stephen Clark ("the Clark grievance") and indicated that it would take Ms. Henry's grievance had Ms. Costa been given the job instead of Ms. Henry ("the Henry grievance"). The facts of the Clark grievance are sufficiently different from that of Ms. Costa's case that I find the fact the union's proceeding with the Clark grievance does not constitute evidence that the union has acted in a discriminatory manner. Clark and the other employee involved were in different departments. The vacancy arose in Clark's department but the position was given to the other employee who had one week's seniority over Clark. Ms. Costa and Ms. Henry work in the same department. The Henry grievance is the opposite side of Ms. Costa's grievance. The union contends that it had reason not to proceed with Ms. Costa's grievance; the same reason would explain proceeding with the Henry grievance. Ms. Costa adduced no evidence to support the contention that the Henry grievance would have proceeded to arbitration (had it arisen at all) because it would have been filed by Ms. Henry while her own grievance did not proceed because it had been filed by herself (in that respect, however, she did testify that she had told Mr. Holmes that he worked only for his "own people", meaning black people, but that was not put forward as an allegation of fact; I consider this matter further below). If the union had reason not to proceed with Ms. Costa's grievance, it would have been reasonable for it to proceed with a grievance filed by Ms. Henry relating to the same matter. I find that the stated willingness of the union to proceed with the Henry grievance (which is in any case merely intention since no grievance was filed by Ms. Henry) does not constitute discrimination against Ms. Costa.
The crux of Ms. Costa's case lies in the prohibition against arbitrary conduct by the union in its representation of the employees in the bargaining unit. Indeed, in my view, all her allegations, including those couched in the language of bad faith and discrimination are more accurately allegations directed at the arbitrary head of section 68 and I deal with them from that perspective.
Ms. Costa was given the inspection floor machine operator job, instead of Ms. Henry, apparently the only other applicant (although she believed she was entitled to the job and that there was no vacancy, Ms. Henry put in an application for the position because she was being "cautious") because she had more seniority than Ms. Henry. She was not at the time employed in the classification of inspection floor machine operator. Roll-up machine operator and inspection floor machine operator are both in the inspection floor department, however. Ms. Henry, on the other hand, had been performing the work of the inspection floor machine operator, first on the second, less preferable, shift and then, when Ms. Celia Parvao, who performed the job on the first shift, became ill, on both first and second shifts. Eventually, the second shift was eliminated and Ms. Henry continued to do the work on the first shift. No notice of vacancy had been posted with respect to the replacement of Ms. Parvao while she was away ill. In late December 1985 or early January 1986, Ms. Parvao informed Burlington Carpets that she would not be returning to work. A notice of job vacancy was posted on January 6, 1986, according to Dr. Blacha, or on January 2, 1986, according to the notice, for inspection floor machine operator (now performed on only one shift, the second shift having been laid off). Ms. Costa was given the position on the instruction of Dr. Blacha. Mr. Holmes then went to see Dr. Blacha and reminded him that where someone is already doing a job in the same classification, there is no vacancy; therefore, the job is not posted and it is given to the person in the classification. Ms. Henry was the only person in the classification and therefore, argued Mr. Holmes, she should have been given the job permanently. (Ms. Henry had gone to see Mr. Holmes when the job was posted and asked why it had been posted when she was the only person in the classification; Mr. Holmes had told her to wait to see what the company would do. When Ms. Costa got the job, Ms. Henry asked Mr. Holmes to put in a grievance for her, but that was not done because Ms. Henry was subsequently given the job.) Dr. Blacha agreed that that had been the practice as applied by the employer and the union, although he had some concerns about the reasonableness of its actual application to small departments, such as the one in which the inspection floor machine operator position was included. He therefore instructed the department manager, Carlos Pettrucchi, to tell Ms. Costa that he had made a mistake and that he was sorry, but she could not have the job. Ms. Henry was given the position. (Since the events giving rise to this complaint, the company and the union have established the following practice: if a vacancy arises on the first shift, the most senior person in the job classification on the second shift is asked if he or she wants the position and, in turn, the most senior person in the classification on the third shift is asked if he or she wants the second shift; the classification on the third shift is posted; if there is no second or third shift, a posting is put up and any employee in the plant, on seniority and qualifications, is eligible for the position: this effectively means that article 15.01 of the collective agreement (set out below) applies where there is one shift. Dr. Blacha testified that the company would have turned to Ms. Henry on the January 1986 facts under the new procedure and admitted that the new system does not address the question of whether to apply the classification in small departments.)
Ms. Costa felt that she was entitled to the job and she raised the matter with the union. She talked to Mr. Holmes but she believed he would not represent her adequately, although he said he would file a grievance for her. She did not feel comfortable going to Mr. Holmes, she did not trust him and she told him "to his face" that he represented only "his own people" (Mr. Holmes and Ms. Henry are black; Ms. Costa is white). Mr. Holmes said that he did not believe her grievance had any merit, but he thought "she has the right to understand our side and find out the facts and that [filing a grievance] is the only route we have"; therefore, he was prepared to file a grievance for her. On the suggestion of Mr. O'Brien, to whom Mr. Holmes brought the matter over the telephone, Mr. Holmes suggested that Joe Schindler file a grievance for her because he is white. However, Ms. Costa said she did not need him because Mr. Grewal, her own steward, was taking her grievance; I find also on the evidence that she did not want Mr. Schindler filing a grievance for her because she associated him with Mr. Holmes.
There was some discrepancy between Mr. O'Brien and Ms. Costa with respect to their first contact with each other. Ms. Costa says that she first raised the matter with Mr. O'Brien at a normal union meeting one week after she had been taken off the job but before she filed her grievance on January 22, 1987; Mr. O'Brien says that she telephoned him after speaking to Mr. Holmes and that she was upset. Ms. Costa agreed she subsequently telephoned him to find out if the union were proceeding to arbitration because "no one would tell me nothing". I prefer Mr. O'Brien's testimony in this matter. Mr. O'Brien said that Ms. Costa said that the union was taking her job away; he said she must be mistaken because the union does not take away jobs; he said that he did not know what she was talking about but that she should put in a grievance and talk to Mr. Holmes. She replied she would not speak to Mr. Holmes, that he had created the problem. Mr. Holmes testified that Mr. O'Brien told him that Ms. Costa had said that Mr. Holmes refused to put in a grievance for her. I find that whether Ms. Costa told Mr. O'Brien that or not, Mr. Holmes did not refuse to file a grievance but that Ms. Costa did not want him to file a grievance for her. Mr. O'Brien normally does not become involved in the grievance process until the third stage and then only if Mr. Holmes calls him. Mr. Holmes testified that Mr. O'Brien wanted a grievance meeting in order to get the whole story in this instance. At a union meeting on January 26, 1986, Ms. Costa raised her concerns and there was some brief discussion. After the meeting there was further discussion between Ms. Costa and Mr. O'Brien; Mr. O'Brien said that he did not think there was a vacancy but that they would examine the situation at the third stage grievance meeting.
Ms. Costa's shop steward, Mr. Grewal, completed a grievance form for Ms. Costa who then signed it. A third step meeting was held on January 28, 1986 at 11:00 a.m. attended by Ms. Costa, Mr. O'Brien, Mr. Holmes, Mr. Grewal and Dr. Blacha and Dr. Blacha's secretary, Monica Rentz. Dr. Blacha explained the situation to Ms. Costa who became extremely agitated, expressing concerns about being laid off and not being trained for any other job, and had to be taken from the room by Dr. Blacha. She did not return to the meeting and Dr. Blacha later sent her home. The meeting then continued with some general discussion of the reasonableness of applying the practice to small departments. The union favoured applying it; Dr. Blacha had some reservations about doing so. At the end of the meeting, the union was of the view that Dr. Blacha would deny the grievance because he said that, while he had some concerns about applying the practice in small departments, for the sake of consistency in the practice, he would deny the grievance and on February 3, 1986 he did deny the grievance in writing. Ms. Costa says that no one specifically told her the result of the meeting or answered her questions. She had to ask Mr. Grewal. However, she agreed on cross-examination that Mr. Holmes explained she had been removed from the job because she was not in the classification. Mr. Grewal also explained the union's position to her, although he disagreed with it. She also admitted that the only reason she did not have an opportunity to ask questions at the third step meeting was because she "got mad at the union", started crying and was taken from the room.
Mr. O'Brien and Mr. Holmes did not believe the grievance should be taken to arbitration. They believed the practice had been properly followed. If Ms. Costa won her grievance and was given the job, Ms. Henry would then grieve. Taking the grievance to arbitration would, in their view, undermine a system which they believed had worked to the advantage of all of the employees because it restrained competition for jobs; without it, they testified, anyone with high seniority could displace employees with less seniority. Mr. Grewal thought the grievance should be arbitrated. At the request of Mr. O'Brien, Mr. Holmes called a meeting of shop stewards. Such meetings are not held in every instance in which arbitration is a possible course of action, but where certain kinds of issues are at stake. Where there is a dispute between two employees, as here, a meeting will be called. Six stewards plus Mr. Holmes were present at the meeting at which Mr. Holmes outlined the issues; Mr. Grewal was not present. One steward believed that the grievance should be arbitrated and the others said it should not be.
Article 15 of the collective agreement sets out the procedure to be followed where there is a permanent vacancy:
15.01 All permanent vacancies in new job classifications and in existing job classifications shall be posted in the plant for a period of three (3) working days and any employee in the plant may make application for such vacancy. In the filling of vacancies the Company will first consider applicants from within the department in which the vacancy has occurred. Where no qualified applicant from the department has applied the Company will then consider applicants from outside the department who have made application within the above-noted three (3) working days. Where no qualified employee has applied, the Company shall not be limited to selecting employees who have made application and may hire persons from outside the plant.
Article 14, dealing with "promotions and transfers" is also relevant:
14.01 In cases of promotions and transfers to permanent vacancies within the plant, the following factors shall be considered:
(a) seniority and
(b) qualifications.
Seniority shall govern if in the judgement of the Company qualifications are relatively equal.
Article 13 sets out the procedure relating to lay-offs and recall, which apply to lay-offs anticipated to three working days within any job classification. The operative portions of article 13 are as follows:
13.01
(a) [probationary employees to be laid off first with no right of recall]
(b) Thereafter these factors shall be considered:
(i) seniority, and (ii) qualifications.
Plant-wide seniority of the employees within the job classifications in the department shall govern, if, in the bona fide judgement of the Company, qualifications are relatively equal.
(c) Where, in the bona fide judgement of the Company, qualifications are relatively equal, senior employees displaced by (b) above may exercise their plant-wide seniority and displace an employee with less seniority;
(i) who holds the same job classification in another department; (ii) who holds a different job classification in his own department.
13.03 Employees who are laid off shall be recalled by job classification to the department from which they were laid off with the same preference as to recall as they were entitled on layoff.
The union's position is that there is not a permanent vacancy because Ms. Henry was already doing the job. Therefore, article 15.01 does not apply and there should not have been a posting at all. Although Dr. Blacha and the company disagree with that position, Dr. Blacha testified that the outcome would have been the same regardless of whether there had been a posting and Ms. Henry would have obtained the job. Furthermore, if Ms. Henry had been laid off from the floor inspection machine operator job when the second shift had been cancelled, she would have been entitled to recall first when Ms. Parvao quit.
Counsel argued the merits of the grievance. It is not my task to determine the merits of the grievance, except to the extent the merits constitute a factor going to the reasonableness of the union's position (in this regard, counsel for the union submitted several arbitration cases dealing with the issue of when vacancy provisions in a collective agreement apply and do not apply: Re International Nickel Co. of Canada Ltd. and United Steelworkers, Local 6500 (1975), Source decision, 8 L.A.C. (2d) 34 (Brandt); Re International Nickel Co. of Canada Ltd. and United Steelworkers, Local 6500 (1975), Source decision, 9 L.A.C. (2d) 83 (Simmons); Re Corporation of the City of Victoria and Canadian Union of Public Employees, Local 50 (1982), Source decision, 2 L.A.C. (3d) 368). While I stress that I make no finding about the appropriateness of the policy (except that it in itself does not appear to contravene section 68) or the correctness of its application here (except that it is not so unreasonable as to impugn the union's motive in applying it), I find that the union and the company did apply a policy that where one person filled a classification and work became available in that classification, the opening was not treated as a permanent vacancy subject to article 15.01 of the collective agreement and therefore was not posted; the individual already performing work in the classification would be given the position. That policy was applied here when Ms. Henry was given the job. She had worked the second shift in the inspection floor machine operator position and was temporarily filling in for Ms. Parvao during the latter's absence. When Ms. Parvao informed the company she would not be returning, the company could have taken one of two routes to filling Ms. Parvao's position. They could have emphasised the temporary nature of Ms. Henry's position and since there was no second shift to which she could return, laid her off, thereby activating the lay-off and recall provisions of the collective agreement. Ms. Henry would then be recalled since she was in the same classification. Or they could have taken the position that there was already someone doing the work in the classification and given her the position permanently, as they did. The union characterized this situation as a shift vacancy. Ms. Henry was working on the second shift (no longer operative) and was only on the first shift because Ms. Parvao had been away. If Ms. Parvao had been at work when the second shift had been eliminated, Ms. Henry would have been laid off or had the opportunity to bump another employee. If a second shift still existed and Ms. Parvao returned, Ms. Henry would have returned to the second shift and if Ms. Parvao left, Ms. Henry would have had the opportunity to move into the first shift since she was the only person in the classification. I make no comment on whether the policy is a desirable one or whether the company and the union have appropriately modified or complemented the collective agreement.
An employee does not have an absolute right to have a grievance filed: Dixie Canada Inc., [1984] OLRB Rep. Sept. 1179; Massey-Ferguson, [1977] OLRB Rep. April 216; and in reaching a decision under section 68 of the Act, the Board acknowledges that the union is in the best position to weigh competing claims on its recourses: North York General Hospital, [1984] OLRB Rep. Feb. 286. However, the union is required to address its mind to the merits of the grievance and to other relevant factors and is proscribed from reaching its decision whether to proceed with a grievance on irrelevant factors. In I. T. E. Industries Limited, [1980] OLRB Rep. July 1001, the Board said that
- It is clear that in order to establish a breach of section [68], a complainant must do more than demonstrate an honest mistake or even negligence. The union must have committed a "flagrant error" consistent with a "non-caring attitude", or have acted in a manner that is "implausible" or "so reckless as to be unworthy of protection". In other words, the trade union's conduct must be so unreasonable, capricious, or grossly negligent that the Board can conclude that the union simply did not give sufficient consideration to the individual employee's concerns. Honest mistakes or innocent misunderstandings are clearly beyond these parameters and do not attract liability.
Counsel for Ms. Costa does not dispute that the test set out above is an adequate reflection of the Board's jurisprudence in this area (see Walter Prinesdomu, [1975] OLRB Rep. May 444; North York General Hospital, supra). Rather he argues that the union did act in a perfunctory way, totally ignoring or refusing to consider the complaint. Both Mr. Holmes and Mr. O'Brien, he maintains, had pre-decided the issue before the stage three meeting, while at that meeting most of the time was spent in the "power play" between Mr. O'Brien and Dr. Blacha with respect to the posting issue, rather than on the merits of the grievance. Furthermore, he contends, there was no evidence that they had directed their minds to the grievance or to the collective agreement, which, if followed, in his view would have given Ms. Costa the position. There is no doubt in my mind that Mr. Holmes thought that Ms. Henry should have been given the position; there is also no doubt in my mind that his action in going to Dr. Blacha was instrumental in Ms. Costa's being removed from the position and reinstated in her position as roll-up operator. In that sense, there is also no doubt that he, and later Mr. O'Brien, thought that Ms. Costa's grievance did not have merit because it was in contradiction to the practice followed where work was available in a classification and an employee was already in that classification. Put simply, there was a practice; Dr. Blacha, for the company, acted against the practice (having forgotten Ms. Henry was in the classification); the union reminded him of the practice; the company remedied the mistake. Because the company had originally made a mistake, it was inevitable that an employee, in this case, Ms. Costa, would feel somehow cheated; but had it not remedied the mistake, another employee, Ms. Henry, would have felt cheated. The union had to weigh the claims of those two employees and in doing so had to consider the ramifications of supporting one rather than the other for the interests of the employees in the bargaining unit as a whole. It did not take Mr. Holmes long to decide whom to support because he knew what the practice was and he knew it had not been followed. Even so, the union was prepared to go to the third stage in order to give Ms. Costa a chance to express her concerns and also to provide a forum for a full explanation. That neither of those goals were fully satisfied results from Ms. Costa's conduct which was not only a reflection of her understandable concern that she might be laid off and be without work, but which was also a reflection of certain of her own attitudes. Her comments were offensive to the other participants because of the allegations made against Mr. Holmes. I find, however, that while her name-calling and other comments upset Mr. O'Brien and, I believe, offended Mr. Holmes (and Dr. Blacha), the union's treatment of her grievance was not affected by her conduct.
Mr. Holmes testified that the decision to support Ms. Henry, rather than Ms. Costa, was consistent with past practice and that taking Ms. Costa's grievance to arbitration was not consistent with the collective agreement. Not supporting Ms. Henry would create problems in Mr. Holmes' view since anyone with seniority would take any job he or she liked; there would be no protection for employees already within a classification in which a vacancy occurs. Counsel for Ms. Costa asked Mr. Holmes if he thought that Ms. Costa's attempt to arbitrate her grievance was causing dissension among the employees. Mr. Holmes replied that there was no objection to arbitrating it, that "we thought of all the possibilities" and that if the committee of stewards had said arbitrate, "that would have been it". Mr. Holmes agreed with counsel that the issue was a much larger problem than whether Ms. Costa got the job; counsel then suggested that the union had taken the position of least difficulty, the course of least resistance. Mr. Holmes said that the union has to cater for 400 odd persons on the plant, not just one.
Mr. O'Brien did not believe there was a vacancy since Ms. Henry was filling the classification (albeit on a temporary basis while Ms. Parvao was away). For there to be a vacancy, in his view, Ms. Henry would have to be laid off and then she would have to be recalled in accordance with the collective agreement. He expressed concern for the ramifications of giving Ms. Costa the job. He thought that if Ms. Henry were not entitled to the day shift in that classification, that would have destroyed the whole understanding with the company. Without the classification system or practice, there would be a great number of grievances as people sought jobs solely on the basis of seniority in the plant. Mr. O'Brien was asked by counsel for Ms. Costa whether it would not benefit the rest of the employees to clarify the matter; Mr. O'Brien stated that if the grievance had gone ahead, it would have gone ahead on something that did not occur, that is, a vacancy in the position of inspection floor machine operator. When the union goes to arbitration, he said, it has to know that there is really a case. If Dr. Blacha had allowed the grievance, the union would have arbitrated because Ms. Henry would have filed a grievance. While there may well be a matter of policy involved, section 68 does not require the union to proceed with a grievance solely to determine a policy issue, where the requirements of the section are otherwise met. The fact that the employer denies a grievance but for some reason still wishes to proceed does not bind the union to proceed if it is satisfied with the outcome of the grievance at the third stage. As far as the union was concerned, there was no problem with the policy; it worked as well as possible and benefited more employees than not; there was therefore no reason for the union to expend union resources on proceeding with the grievance. Counsel for Ms. Costa cited the following passage from Re International Nickel Co. of Canada Ltd. and United Steelworkers, Local 6500 (Simmons), supra, to support his contention that the union had an obligation under the circumstances of this case (specifically that Dr. Blacha and two stewards did not agree with the view of Mr. Holmes and Mr. O'Brien) to continue with the grievance:
It is therefore obvious that the issue has not been clearly resolved in favour of either party's point of view but remains an open one. We have concluded, not without difficulty, that the issue in the instant situation is not moot and that the grievor is entitled to receive a decision on the merits of his claim. There are two basic reasons for our decision. One, at the time of filing the grievance the grievor was directly affected by the decision of the employer and had a valid (as opposed to a hypothetical) complaint because of same. While he does not now seek the position for which he claimed in his grievance, we are unable to conclude that he no longer has any interest in having the complaint determined through arbitration. There has been no settlement of his complaint per se and because of the evidence presented in this connection it would be dangerous for this board to conclude that his complaint had disappeared in all respects. Secondly, it is this board's view that in the absence of a settlement, all valid (as that word is intended to be interpreted) grievances should be resolved through arbitration.
In the instant case, Ms. Costa's grievance had been settled; it had been denied by the company and the union determined it was not appropriate to proceed to arbitration. Ms. Costa's right does not extend to a right to proceed to arbitration; it extends under section 68 only as far as requiring the union to make its decision in good faith, without discrimination and in a non-arbitrary manner. Section 68 does not curtail the union's right to settle grievances, even if the employee does not wish it settled: Chrysler Canada, [1980] OLRB Rep. May 650. The fact that Dr. Blacha has some concerns about the application of the policy and that two stewards supported Ms. Costa's position does not mean that the grievance "remains an open one". The issue remains open in the minds of some of the participants, apparently, but Ms. Costa's grievance has been settled with both relevant parties, the employer and the union, agreeing on the result. Furthermore, in Re International Nickel (Simmons), supra, it was the union which sought a decision on the merits on behalf of the individual grievor, obviously a major distinction from the case before the Board.
The efforts made by Mr. Holmes and Mr. O'Brien were more than perfunctory. They held a third step meeting with Dr. Blacha; they explained their position to Ms. Costa; they considered the impact of pursuing Ms. Costa's grievance, including the effect on other employees, the chances of Ms. Henry filing a grievance and the ramifications for the policy which had been developed with the company. They took the matter to a stewards' meeting. It cannot be said that there was not a cogent labour relations reason for not pursuing Ms. Costa's grievance (and, in reverse, indicating a willingness to proceed with a grievance filed by Ms. Henry should she not be given the position and filed a grievance); the arrangement between the company and the union and the union's application of it in this case are not unreasonable: Dixie Canada Inc., [1984] OLRB Rep. Sept. 1179, at paragraph 42: Seagram Company Ltd., supra, at paragraph 15. Favouring one employee over another, particularly where the union's interpretation of the collective agreement is not so unreasonable as to be considered arbitrary is not in itself a contravention of section 68: J. Lewis Humphreys and Service Employees Union Local 204 A. F. of L. - C.L 0., C.L. C. (1983) 2 CLRBR (NS) 350 (a case in which the union represented one grievor at aribitration but not the other employee seeking the same position).
It seems clear that all Mr. Holmes was doing in agreeing with Ms. Henry's position was reminding Dr. Blacha that there was a practice agreed to by both parties which had not been followed when Ms. Costa had been given the position. The Board has said that a union does not contravene section 68 when "it acts to correct a mistaken interpretation of the collective agreement": Seagram Company Ltd., [1982] OLRB Rep. Oct. 1571. Labour relations reality requires that that same principle be applied to a policy or practice developed between the employer and the union which complements the collective agreement, although technically outside it, as long as the policy or practice does not itself contravene section 68: Donald McConvey, [1986] OLRB Rep. June 758. I find that regardless of whether Ms. Costa or Ms. Henry filled the job, the union would be asked to file a grievance. The testimony of both Mr. Holmes and Mr. O'Brien satisfy me that they did consider the ramifications of pursuing Ms. Costa's grievance and decided that to continue to follow the practice was the appropriate decision to make. That meant they could not take Ms. Costa's grievance to arbitration; but it would require them to pursue Ms. Henry's likely grievance should Ms. Costa remain in the job. The fact that two stewards disagreed with this position does not affect the question of whether these two officials directed their minds to the issue. Nor do I accept counsel for Ms. Costa's contention that the union should have arbitrated the grievance in order to obtain an external determination of the matter. That is entirely a matter for the union to decide and here it was decided there was nothing to arbitrate. In the union's view, the practice which had been developed protected employees and was a curtailment, outside the strict confines of the collective agreement, on management rights to move people from shift to shift. The policy was for the benefit of all employees; to pursue Ms. Costa's grievance would have undermined that policy, even if it did not create the massive problems envisaged by Mr. Holmes and Mr. O'Brien. Regardless of the decision made by the union in this matter, at least one and probably many more employees would believe themselves to be disadvantaged. The union knew this and took it into consideration in reaching its decision. It believed that in applying the policy, they were acting consistently and in the best interests of the employees in the bargaining unit.
For the foregoing reasons, this complaint is dismissed.