[1988] OLRB Rep. March 289
0315-87-U John Glykis, Complainant v. Hotel Employees, Restaurant Employees Union, Local 75, Respondent v. Four Seasons Hotels Limited (Inn On The Park), Intervener
BEFORE: Ken Petryshen, Vice-Chair.
APPEARANCES: John Glykis, Arnold Bruner and Dominic DiCarlo for the complainant; Alick Ryder for the respondent; Paul Young and Dolores Zimak for the intervener.
DECISION OF THE BOARD; March 8, 1988
This is a complaint under section 89 of the Labour Relations Act in which it is alleged that Hotel Employees, Restaurant Employees Union, Local 75 ("Local 75" and "the union") contravened section 68 of the Act.
This matter came on for hearing on February 9, 1988. When counsel for the complainant began his opening remarks by referring to the complaint's historical context, the Vice-Chair advised the parties that he had read the Complaint as well as the previous decisions of the Board and an arbitration award involving Mr. Glykis, all of which were referred to in the Complaint. Counsel for the complainant called two witnesses and counsel for the respondent union called one witness to testify. The evidence and the parties' submissions were completed shortly after the noon hour on February 9. The Vice-Chair advised the parties at that point that he would take some time to review the material, the evidence and the submissions in order to determine whether he was able to provide the parties with an oral decision that day. The matter was adjourned to 1:30 p.m. When the hearing resumed at that time, the Vice-Chair indicated that he was in a position to provide the parties with an oral decision and that the written reasons for the decision would follow in due course. The Vice-Chair then orally ruled at the hearing that after considering the evidence and the parties' submissions, the complaint would be dismissed since the Vice-Chair was satisfied that the respondent did not breach section 68 of the Act. The Vice-Chair's reasons for so doing are as follows.
The essence of the complainant's section 68 allegation can be stated briefly. An arbitration hearing was held on June 4 and November 19, 1985 in order to entertain the complainant's discharge grievance. The respondent union was represented by counsel at the arbitration proceeding, namely C. Paliare. An employee of The Four Seasons Hotels Limited (Inn On The Park) (the "employer" and the "hotel") by the name of DiCarlo was not called to give evidence at the arbitration proceeding. The complainant alleges that by failing to call DiCarlo as a witness, particularly when the complainant insisted he be called, the union contravened section 68 of the Act. The sole arbitrator, E. E. Palmer, Q.C., issued his award dismissing the complainant's discharge grievance on March 12, 1986.
In order to appreciate the circumstances giving rise to this complaint, it is necessary to review the events relating to the complainant's discharge and the Board's decisions and the arbitration award which followed.
Glykis was employed by the hotel as a doorman between 1979 and October 19, 1983, the date of his termination. The hotel terminated Glykis for an incident which occurred during the evening of October 14, 1983 between Glykis and a hotel guest. It was Glykis' conduct towards the guest that caused the hotel to terminate his employment. Glykis grieved his discharge. As a result of an Executive Board meeting on November 3, 1983 and a membership meeting on November 8, 1983, the union determined it would not proceed to arbitration with Glykis' grievance. This caused Glykis to file a section 89 complaint with the Board alleging a breach of section 68 of the Act. The Board (Vice-Chair Murray) allowed this complaint and its reasons for so doing are set out in Four Seasons Hotels Limited, [1984] OLRB Rep. Oct. 1406 (the "Murray decision"). Since Glykis was not satisfied with the relief he obtained in the Murray decision, he applied for reconsideration. The Board (Vice-Chair Murray) dismissed the reconsideration request and its reasons for so doing are contained in Four Seasons Hotels Limited, [1985] OLRB Rep. March 420 (the "Murray reconsideration"). When the Local 75 membership ultimately voted to take the complainant's grievance to arbitration, the complainant wished to be represented by his own counsel at the arbitration hearing with the costs to be borne by the union. When the union refused his request, Glykis filed a second section 89 complaint with the Board, alleging a contravention of section 68 of the Act. The Board (Vice-Chair Tacon) dismissed the second section 89 complaint and its reasons for so doing are set out m John Glykis, [1985] OLRB Rep. Aug. 1212 (the "Tacon decision").
The following paragraphs in the Tacon decision contain a summary of the background to that complaint which refers extensively to the Murray decision and the Murray reconsideration:
- It is useful to set out the background to the present complaint. The complainant first filed a complaint alleging contravention of section 68 of the Act as a result of a decision by the union s executive board and membership not to proceed to arbitration with a grievance against the complainant's discharge from the Inn On The Park. By decision of the Board (vice-Chairman Murray) dated October 31, 1984, [reported at [19841 OLRB Rep. Oct. 14U6], the complaint was upheld on the narrow ground that the complainant, because of inadequate notice, was, in effect, not given an opportunity to present his case to the executive board and membership meetings of the respondent. It is appropriate to set out the following passages from that decision.
The recollections of all the material witnesses, Mr. Glykis and Messrs. Pineo, Longe and Marshall, are cloudy on many important aspects and details of conversations, investigations and actions. It appears from the evidence of the union that Mr. Glykis may not have been wrong in his assertions made many times to Mr. Longe that everyone at the hotel did not like him. Unfortunately for Mr. Glykis, there were concrete, indisputable instances where he was rude and abusive with staff and management, and this was the very conduct he was accused of in connection with the guest on October 14, 1983. This type of grievance required the Business Manager, the Business Representative and the membership to take into account the grievor's character and patterns of conduct to assess the likelihood of succeeding at arbitration. Be that as it may, it is still clear and undisputed that Mr. Glykis, in accordance with the Local's normal practice, was entitled to be present at the Executive and membership meetings to plead his case. Perhaps if he had attended, he could have explained his conduct or dispelled these assessments about his penchant for getting into altercations. He clearly missed an opportunity which he should have had and could have had according to international union procedures if he had been given clear times and places of these meetings. If the timing of the meetings had been different, then it would be understandable that Mr. Longe would not advise on them specifically. However, common courtesy would have dictated that Mr. Glykis be advised of the rapidly approaching consideration of his grievance. This conduct amounted to gross negligence and I have found on this basis that this is arbitrary treatment and a violation of section 68.
The remedy in this instance is the extension of an opportunity to Mr. Glykis to attend before both the Executive and membership meetings and present his case, with or without the assistance of his counsel. Should the membership decide to support his arbitration, we order that the time limits of the collective agreement not be used as a defence by the hotel.
[emphasis added]
- The complainant was not content with this relief. Before Vice-Chairman Murray, the complainant had sought: an award of costs; that the Board hear and determine the merits of the discharge grievance; that, alternatively, the Board should refer the matter directly to arbitration with a direction that the complainant be represented at that hearing by his own counsel, with costs borne by the union. On receipt of the Board's decision, the complainant sought reconsideration, again seeking the relief just outlined, Vice-Chairman Murray, in a decision dated March 22, 1985, [reported at [1985] OLRB Rep. March 420] dismissed the reconsideration request. It is again useful to refer the portions of that decision.
... I did not grant the complainant's request that he be compensated for the "costs" incurred in his pursuit of the unfair labour practice complaint because it is the Board's general practice, in exercising its remedial powers under section 89, not to grant costs to the successful party. The Board has, in other cases prior to the complainant's, thoroughly canvassed the policy issues involved in this remedial area and has determined that there must be extraordinary circumstances or other overiding policy considerations before costs will be awarded to the successful party in a section 89 complaint (see Radio Shack, [1979] OLRB Rep. Dec. 1220; Comstock Funeral Home, [1981] OLRB Rep. Dec. 1755 for a fuller statement of the Board's rulings). Neither of these conditions was present in the complainant's case and it was no different, for the purposes of an award of costs, from the numerous cases in which the Board finds a violation of the Act. It was for this reason that I rejected the request for an award of "costs". Nothing in the letter requesting reconsideration causes me to change this aspect of the decision of October 31,1984.
In requesting that the Board arbitrate the complainant's discharge grievance itself or refer the grievance to arbitration directly, rather than resubmit the grievance for reconsideration by the union executive and membership, counsel is again merely repeating the submissions made at the hearing. The Board has stated on numerous occasions that success in proving that section 68 has been breached does not automatically confer on the complainant the right to have his grievance arbitrated (see, for example, Massey-Ferguson, [1977] OLRB Rep. April 216; Bedard Girard, [1981] OLRB Rep. Oct. 1338). Where the Board does grant such a remedy, the Board, in normal circumstances, does not assume the task of arbitrating the grievance itself because of the longstanding policy of deferring to the arbitration process of the collective agreement where such process will yield a complete remedy (see Valdi Inc., [1980] OLRB Rep. Aug. 1254). In this case the loss to the complainant resulting from the contravention of section 68 of the Act was the deprivation of the opportunity to be present at the executive and membership meetings and present his case. As the Board noted at paragraph 16, the complainant "clearly missed an opportunity which he should have had and could have had according to internal union procedures if he had been given clear times and places of these meetings". Therefore, on this basis alone, I do not consider it necessary to change my decision regarding the request for arbitration. In any event, this aspect of the complainant's reconsideration request has been overtaken by events. A copy of a letter dated January 10, 1985, written by counsel for the complainant to the union and forwarded to the Board, indicates that the complainant was provided an opportunity to present his case to the union membership, and that the membership voted to overrule the executive board's decision. As a result, the complainant's grievance was to be referred to arbitration immediately. Even if it could be said that I was wrong in not ordering arbitration, the action of the membership of the union has removed any necessity for the Board to reconsider the adequacy of its remedy of returning the grievance to the normal union procedures as compared with the requested remedy of arbitration.
The complainant also requested at the hearing that, if the matter proceeds to arbitration, he should have the opportunity to retain his own counsel to present the arbitration on his behalf. This request has also been repeated in the application for reconsideration. The Board did not see then, and does not see now, any justification for such a claim. Nothing in the evidence suggests any malice or ill will towards the complainant by officials of the union. The wrongdoing attributed to the union stemmed from "gross negligence". On the contrary, as indicated in paragraph 3 of the Board's decision, the complainant has received the union's assistance without complaint on many previous occasions. The assistance rendered by the respondent following the complainant's termination in October of 1983, though falling below the standard required by section 68, was not tinged in any way by bad faith or active opposition to the grievor himself. I am not prepared, in the circumstances, to assume that the union will not provide proper representation to the grievor should the matter proceed to arbitration. This is consistent with the Board's jurisprudence. The Board stated in Phillip Wayne Bradley, [1983] OLRB Rep. June 865, at paragraph 3:
Where the Board does grant such remedy [arbitration], it does not always make an order as to representation at such arbitration. The Board has normally specified who must represent the grievor at an arbitration it directs, as a result of a section 68 proceeding, where there are ongoing, serious concerns that the complainant will not receive a non-arbitrary, non-discriminatory, good faith treatment by the [union] in the course of its presentation of the arbitration (see, for example, Leonard Murphy, [1977] OLRB Rep. March 146, the first reported decision where such an order is made). When the Board has made an order concerning representation at arbitration, the nature of the order has been that the union and the grievor jointly select a lawyer to handle their presentation (see Leonard Murphy, supra; Bedard Girard, supra) .... An order for separate, independently selected legal counsel would be highly extraordinary. A remedy under section 68 should not change the essential character of the arbitration process. The respondent [union] is the party to the collective agreement and the arbitration not the grievor (General Motors of Canada v. Brunet, 1976 CanLII 196 (SCC), [1977] 2 S.C.R. 537) and would have, except for a violation of section 68, had exclusive selection over whether the arbitration was to proceed and how. The interests of a bargaining agent and the grievor are united before an arbitration board. Jointly selected counsel has been ordered only where the Board feels there would be no truly united representation of the arbitration case for the respondent and the grievor. The joint selection process is to ensure that this unity is restored. The exclusive selection of legal counsel would effectively remove the essential unity of the grievor's and union's interests at arbitration.
If indeed the union fails to comply with its duty of fair representation at the arbitration stage, it will expose itself to another complaint before the Board, and the complaint, if proven, will be remedied.
[emphasis added]
- Finally, the request for reconsideration asks that "the Board remain seized of this particular matter with respect to the arbitration procedure in order that the Board may intervene should the union not fairly represent Mr. Glykis' interests during the course of arbitration". The Board in its decision found a violation of the Act and fashioned a remedy to respond to it. If there is a failure to comply with that order, procedures are available to enforce the Board decision. The Board is not prepared to go beyond this, and remain seized, in order to deal with speculative future violations of the Act. As indicated above, if the union fails to represent the complainant at arbitration in accordance with the duty in section 68, it can be the basis for a separate unfair labour practice complaint. It is unnecessary for me to remain seized in anticipation of possible future breaches of the Act.
- Prior to the release of the Board's decision with respect to the reconsideration request, the union proceeded to afford the complainant an opportunity to present his case for proceeding to arbitration to the executive board and the general membership meetings, as directed by the October 31 board decision. These meetings are discussed at length, infra. It is sufficient to here note that the membership meeting voted to proceed to arbitration. The complainant, however, still wished to be represented by his own counsel at that arbitration hearing with the costs to be borne by the union. When the union refused that request, the complainant filed the present complaint on March 8,1985.
- After reviewing the facts and some of the Board's relevant section 68 jurisprudence, the Board in the Tacon decision set out its conclusions. Given the nature of the arguments made in the present complaint it is appropriate to refer to these conclusions at length:
The Board now turns to the complainant's testimony. The Board does not lightly find that a witness has deliberately been untruthful. In this case, that conclusion is clearly justified. The complainant testified after having heard Kapelos and Herdman give their evidence. It was apparent that the complainant was tailoring his "story" to integrate his version with theirs and deal with any difficulty their testimony, particularly Herdman's, had caused. The complainant was evasive, "didn't remember" or was blatantly self-serving whenever questions on cross-examination touched on matters which showed him in a poor light. For example, the complainant told the membership meeting he wanted his own counsel because he didn't trust the union counsel (A. Ryder, Q.C.) or anyone from that firm because he had lost an arbitration decision in 1981 where he was represented by a junior as Ryder was unavailable at the last moment. When queried as to Arbitrator Teplitsky's express finding in that hearing that the complainant was not a credible witness, the complainant suggested he hadn't really read the award thoroughly and that Arbitrator Teplitsky had in some way acted improperly. The Board could recount additional examples of evasion, selective perception, "tailoring" of evidence and outright fabrication but it is unnecessary to do so. In short, the Board is not prepared to give any credence to the complainant's testimony.
In the Board's view, there is simply no basis on which to conclude the executive board exhibited any subjective ill will or hostility toward the complainant in considering anew his grievance, in accordance with Vice-Chairman Murray's October decision. With respect to the December 13 executive board meeting, complainant's counsel was given proper notice. He and the complainant were permitted to make whatever submissions they wished to the executive board. The executive board then considered those submissions and recommended against proceeding to arbitration. On the evidence, there was no impropriety in reaching such a decision. Sufficient notice of the January 8 membership meeting was given to the complainant's counsel. The Board does not regard the requirement imposed on the complainant to pay the standard fee to become a member in good standing where the complainant had not paid the usual union dues for some time as in any way out of the ordinary. Indeed, the executive board accommodated the complainant in two respects. Firstly, Pineo agreed the complainant could pay the reinstatement fee at, rather than prior to, the membership meeting. Secondly, Belanger readily agreed to Kapelos' request to suspend the regular order of business to consider the complainant's grievance first. Such accommodations are just not suggestive of ill will directed by the executive board toward the complainant.
The January 8 meeting itself followed the usual procedures. Belanger carried out his agreement with Kapelos to suspend the regular order of business by seeking the appropriate motion from the floor. There was nothing improper in directing Kapelos to remain in the corridor until the complainant's case was to be considered. Kapelos was permitted to fully address the membership. The executive board presented their recommendation, and their reasons, openly. There is nothing sinister or improper in reading from Vice-Chairman Murray's decision or the union's submissions to the Board. Indeed, when Kapelos objected that this was somehow a "misrepresentation", he was permitted to again fully address the membership. Indeed, and of considerable significance, when Belanger was faced with a motion to uphold the executive board's recommendation right after Kapelos' initial representations, he ruled it was not yet proper to vote on the motion in order to permit full discussions and questions from the floor. Belanger did not seize upon an opportunity to force a vote on a motion "favourable" to the executive board; rather, he encouraged fuller discussion. Such conduct is the antithesis of "bad faith". Indeed, when the membership voted to proceed to arbitration, the executive board simply accepted the result. Subsequent to the vote, Kapelos and the complainant raised the "solicitor" issue. As noted earlier, the Board accepts the accounts of Herdman and Belanger, not Kapelos and the complainant, with respect to the meeting. Belanger's statement that the matter was out of order accorded with past practice in referring monetary matters to the executive board first. Whether or not formally included in the union's constitution, that was the past practice as supported by the uncontradicted evidence of Herdman, the complainant's own witness and Belanger. When the exchange became heated, Belanger was amenable to Herdman's suggestion that he (Belanger) and Kapelos meet subsequently to discuss the matter. In short, the Board finds there was no violation of section 68 in the conduct of the January 8 meeting, nor, in fact, in the entire dealing by the executive board with the complainant's grievance subsequent to vice-Chairman Murray's October decision.
Nor is there evidence of bad faith in Pineo's letter of January 22 permitting the complainant to have his own counsel provided the complainant paid the fees. As Belanger explained, the union intended to have its own counsel at the arbitration; the complainant, however, could have his representative in addition. The union's reasons for wishing its own counsel were outlined in Ryder's February 7 letter, as well.
It is also appropriate for the Board to deal briefly with other positions taken by counsel for the complainant. In the notice of the executive board meeting of December 13, 1984, the word "appeal" was used in connection with consideration of the complainant's grievance. Kapelos objected to the use of the term as implying a restricted review of the initial decision. On the evidence, it is clear that the executive board intended a "fresh look" at the grievance. The executive board considered the matter on a "de novo" basis. There is no evidence supporting a suggestion that the grievance was "appealed" in a technical legal sense. Secondly, it was suggested that there was impropriety in the executive board's "failure" to call Kapelos back for further submissions. Again, the evidence plainly establishes that Kapelos was given every opportunity to make his submissions, that the executive board considered those submissions in the context of their review of the grievor's work record and at no time indicated that there would be an opportunity for further submissions. This asserted ground for contravention of section 68, then, fails. At another point, complainant's counsel argued the notice of the January 8 membership meeting was inadequate and "therefore" a violation of section 68. This assertion, as well, is not supported by the evidence. The complainant and his counsel attended the meeting and made submissions without indicating any prejudice whatsoever resulting from the notice. Further, since both had made representations on the grievance at the December 13 executive board meeting, it is difficult to conceive of any prejudice from alleged inadequate preparation time, especially since the complainant argued throughout that one ground for having his own counsel at arbitration was because counsel was so familiar with his case. The Board, finally, finds no merit in counsel for the complainant's statement that a violation of Robert's Rules of Order, if one occurred when Belanger released himself from the chair to respond to a question, constitutes, in itself, a violation of section 68. Firstly, complainant's counsel did not introduce Robert's Rules of Order into evidence. Moreover, the procedure adopted by Belanger was, in the circumstances of a meeting of lay persons, entirely sensible.
Thus, there is no credible evidence of ill will, bad faith or discrimination in the present complaint. Nor, was there such evidence in the former complaint. That original complaint merely held that the complainant, because critical job interests were at stake, should have been given notice of the executive board and membership meetings sufficient to allow an effective opportunity to present his case. There is no suggestion in the original decision that the inadequate notice was motivated by ill will, bad faith or discrimination. Indeed, the Board's characterization of the matter as a lack of "common courtesy", although amounting to gross negligence in the circumstances, underscores the absence of ill will, bad faith or discrimination. The remedy in the original complaint gave the complainant the opportunity he had missed and, moreover, the membership voted to proceed to arbitration.
The Board has found that the complainant has not established a violation of section 68. The Board, then, need not deal with the remedy urged by the complainant's counsel that the complainant be permitted to select his own counsel in respect of the arbitration hearing with the costs to be borne by the union. However, the Board has some comments on this issue. The complainant and his representatives have pursued this remedy with single-minded determination from the outset of the first complaint through the reconsideration request, the executive board meeting, the membership meeting, correspondence and in-person representations subsequent to that meeting and, lastly, in the instant complaint. In that single-minded pursuit, the complainant has been prepared to bend the truth and mislead the Board. Before this Board, there was even the suggestion that, if the union continued to refuse the complainant's demands and the arbitration failed, there could be yet another complaint filed with the Board. The Board in the former complaint (and on reconsideration) rejected the complainant's request that he be allowed to select his own counsel. The union has retained counsel highly experienced in the labour field and who has not had prior dealings with the complainant. To the extent the complainant was concerned about getting a "top drawer" lawyer, those concerns have been satisfied.
For the foregoing reasons, the Board has concluded that the union has not contravened the duty of fair representation imposed by section 68 of the Act. As stated in the decision of May 27, 1985, the complaint is dismissed.
- A review of the arbitration award discloses that the hotel relied on an incident which took place between Glykis and a hotel guest inside the hotel lobby on October 14, 1983 as a culminating incident, as well as the complainant's disciplinary record, in order to support its decision to terminate Glykis' employment. The only witness called by the hotel who had observed the incident inside the hotel was F. George, a bellman and union steward. The arbitration award refers to the evidence given by George. A portion of that award which relates George's observations concerning the complainant's conduct towards the guest inside the hotel is as follows:
He did note, however, that both were "hot under the collar"; that the grievor was not yelling, but was irate. He concluded the grievor was not polite at all; he was discourteous. In his view, as it was a "slow night" and there were plenty of parking places, the grievor had upset the guest for no reason whatsoever. More importantly, Mr. George said that if he had acted as Mr. Glykis had done he would not expect to keep his job....
- Glykis testified at the arbitration proceeding. That portion of the arbitration award which summarizes Glykis' evidence is as follows:
Mr. Glykis was the only witness called by the union. He agreed he worked on the evening in question. He stated it was a busy night and the only unusual thing he could recall about it (except that he was fired) was related to his assistance to Mr. DiCarlo who was helping a guest. Mr. Glykis stated that the guest was giving Mr. DiCarlo "a hard time" regarding his leaving his car keys with Mr. DiCarlo. Because they worked together, Glykis stated he felt he should assist Mr. DiCarlo. Therefore, he took it upon himself to talk to the guest and explain that, because of problems with fire regulations, the guest's car could not remain where it was and that if it did so Mr. DiCarlo's job would be in jeopardy. For his troubles, he stated the guest told him to mind his own business, using a not unknown obscenity in the process. He then went into the hotel. Seeing the same guest ten minutes later, he again tried to explain; but was again rebuffed. Later, however, he again saw the guest. On this occasion the guest apologized and said his problems were with the other doorman. This event occurred early in the evening. He could not recall anything happening towards the close of his shift.
The arbitrator preferred the evidence given by George to that given by Glykis. The arbitrator determined that Glykis' conduct was incompatible with the role of a doorman thereby exposing himself to discipline. Although the union argued that the hotel did not utilize a progressive disciplinary approach, the arbitrator concluded that Glykis' record was deplorable, that the decision of the hotel to terminate Glykis was fully justified and dismissed the grievance.
This brings us then to the evidence called during the hearing of the present complaint. Glykis and D. DiCarlo testified in support of the complainant. Counsel for the union objected to the relevancy of any evidence DiCarlo could give and, after considering the parties' representations on this point, the Board ruled that the complainant could call DiCarlo as a witness. C. Paliare was called to give evidence by counsel for the union.
In his evidence, Glykis indicated that he had discussions with Paliare prior to and during the course of the arbitration proceeding in which he asked Paliare to call DiCarlo as a witness. He testified that he thought the matter important enough that he instructed Paliare on three or four occasions to call DiCarlo to testify. Glykis indicated that Paliare gave him the impression DiCarlo would be called to testify but by the end of the case the union had only called himself to give evidence and surprisingly, not DiCarlo. Glykis denied that he had any confrontation inside the hotel with a guest. It was his evidence that there was an incident outside the hotel but that that incident occurred between the guest and the other doorman, DiCarlo. In cross-examination, Glykis denied that Paliare offered him any explanation for not calling DiCarlo. Subsequently, Glykis testified that Paliare did advise him that any evidence DiCarlo could give would be irrelevant. Glykis denied having any discussion with the guest in the hotel. Glykis testified that Paliare was friendly, that he had had no difficulty with him personally and that when the arbitration hearing finished, Glykis thanked him for his assistance. Glykis conceded that he did not complain about the union's failure to call DiCarlo until after he discovered his discharge grievance was dismissed.
DiCarlo's evidence was extremely brief. He testified that he was involved in an incident outside the hotel with a guest and Glykis. DiCarlo did not indicate that he witnessed any incident inside the hotel. Counsel for the union admitted that DiCarlo could have been called as a witness.
Paliare, a partner in the law firm of Gowling & Henderson, gave evidence which differed considerably from the evidence given by Glykis. He stated that he was asked to act as counsel for Local 75 at the arbitration since A. Ryder, the lawyer who usually acts for Local 75, had represented Local 75 during the first section 89 complaint filed by Glykis. Paliare indicated that this was possibly only the second time he acted for Local 75. The only instruction he had been given by the union was to do his best for Glykis and, if possible, to win the case. Paliare stated that he viewed his role in the arbitration as acting as a representative of Glykis and, therefore, he was getting his instructions from Glykis. Paliare admitted that Glykis asked him to call DiCarlo as a witness on a number of occasions. When Glykis first raised the matter during one of their meetings, Paliare responded by saying that he would be happy to call DiCarlo if his evidence would advance the case. When it became clear that the only incident the hotel was relying on as the culminating incident was an incident inside the hotel which occurred between Glykis and a guest, Paliare advised Glykis that there was no point in calling DiCarlo. Paliare testified that on more than one occasion he explained to Glykis that DiCarlo's evidence was not relevant since, according to Glykis, DiCarlo did not witness what had occurred inside the hotel. Paliare expressed to Glykis a concern that by calling DiCarlo to testify about what occurred outside the hotel, the hearing would be expanded unnecessarily. Paliare stated that up until the end of the hotel's case, Glykis wanted him to call DiCarlo. But by the end of the hotel's evidence, when it became obvious that the hotel only relied on an incident inside the hotel, Glykis understood and accepted Paliare's rationale for not calling DiCarlo and agreed that DiCarlo's evidence would not help his case.
After considering the usual factors in assessing credibility and what appears to the Board to be reasonably probable when all the circumstances are considered, the Board preferred the evidence given by Paliare where that evidence was in conflict in any material way with the evidence given by Glykis. In giving his evidence in support of this complaint, Glykis testified that he did not have any discussion with the guest inside the hotel. A review of the Murray decision and the arbitration award reveals that in those proceedings Glykis testified that he did have a conversation with the guest inside the hotel. Glykis' evidence in the present complaint was not internally consistent since he initially stated that Paliare gave him no explanation for not calling DiCarlo but later said that Paliare did tell him that any evidence DiCarlo would give would be irrelevant. The Board is satisfied that Glykis only raised the issue of the union's failure to call DiCarlo when he discovered that his discharge grievance had been dismissed. This fact, along with Glykis' evidence that he got along well on a personal basis with Paliare and congratulated Paliare at the completion of the arbitration proceeding are matters which lead one to seriously doubt the complainant's veracity when he testified that Paliare refused to call DiCarlo against his wishes. The Board is satisfied that Paliare discussed with Glykis the issue of calling DiCarlo on a number of occasions, and that by the end of the hotel's case, Glykis agreed with Paliare that it was unnecessary to call DiCarlo to testify since DiCarlo had not observed what occurred inside the hotel between Glykis and the guest.
The Board now turns to the question of whether Local 75 contravened section 68 of the Act in the circumstances of this case. Counsel for the complainant argued that, at least from the time the complainant was discharged, the history of the relationship between Glykis and Local 75 can be characterized as bitter. It was argued that the union had a duty to call everyone who could shed some light on the incident giving rise to the complainant's discharge. Counsel submitted that the decision not to call DiCarlo was made in the context of a bad relationship and that the decision gave rise to a reasonable apprehension of arbitrariness. Counsel for the hotel and counsel for Local 75 requested the Board to dismiss the complaint. Counsel for the hotel argued that this was an appropriate case for the Board to direct the complainant to pay the hotel its costs for the proceeding.
Section 68 of the Act provides as follows:
A trade union or council of trade unions, so long as it continues 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 has not interpreted section 68 of the Act in a way which requires a trade union to act in a particular way merely to accommodate an employee's wishes. Subject to the section 68 duty, decisions concerning the processing and settlement of grievances and the way in which grievances are arbitrated are decided exclusively by the trade union. In making decisions concerning representation matters, the duty only requires that the trade union act in a manner which is not arbitrary, discriminatory or in bad faith. The Board comments on the nature of the obligation found in section 68 of the Act in the following paragraph from 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 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.
It was not alleged by the complainant nor was there any evidence to suggest that the decision not to call DiCarlo as a witness at the arbitration hearing was discriminatory. The Board was also satisfied that the decision was not arbitrary or made in bad faith.
Although counsel for the complainant appeared to suggest that the decision not to call DiCarlo was tainted with bad faith as a result of the previous dealings between Glykis and Local 75, the evidence does not support the conclusion that Local 75 or that Paliare had any ill will towards the complainant. The comments of the Board quoted above from paragraph 26 of the Tacon decision indicate quite clearly that the Board found there was no evidence of ill will, bad faith or discrimination on the part of Local 75 in the first or second complaint. With respect to the arbitration proceeding, it is clear that Paliare took his instructions from Glykis and the only instruction he received from Local 75 was to do his best to win the grievance. Paliare did not act as counsel for Local 75 in the earlier section 89 proceedings. In his own evidence, Glykis states that he and Paliare got along well personally. When reviewing these matters, the Board concluded that there was no evidence which would support an allegation that the respondent acted in bad faith in its representation of the complainant at the arbitration proceeding.
Paliare's decision not to call DiCarlo was a judgement call based on his training and experience as a lawyer together with his understanding of the particular circumstances of the case before him. It was his view that any evidence DiCarlo could give relating to what happened outside the hotel would not be of assistance to Glykis when the hotel was relying on only what occurred inside the hotel between Glykis and the guest. Paliare discussed whether to call DiCarlo with Glykis on more than one occasion and explained why it was unnecessary to call DiCarlo as a witness. The decision not to call DiCarlo was not made on the spur of the moment, nor without a consideration of the case Local 75 had to meet. By the completion of the hotel's case, Glykis appreciated Paliare's reasoning and agreed that DiCarlo should not be called as a witness. The decision not to call DiCarlo was not made in an arbitrary fashion. In fact, when one reviews all of the circumstances, the Board is satisfied that the decision not to call DiCarlo was not only made with an absence of bad faith, discrimination and arbitrariness, but was the correct decision. Having heard the evidence DiCarlo presumably would have given at the arbitration hearing if he had been called, the Board is satisfied that such evidence would not have affected the result in that case. It is clear from reading the arbitration award that the grievance failed because the arbitrator believed George's and not Glykis' evidence relating to the events which occurred inside the hotel.
Having considered the submissions of counsel for the hotel, the Board is not persuaded that in the circumstances of the instant case it should depart from the Board's well-established practice of declining to award costs (see Silknit Limited, [1983] OLRB Rep. Nov. 1913). Accordingly, the employer's request for costs is denied.