[1989] OLRB Rep. March 264
2803-86-U Balford Lindsay, Complainant v. Canadian Auto Workers Union Local 1451, Respondent v. Budd Canada Inc., Intervener
BEFORE: Owen V. Gray, Vice-Chair.
APPEARANCES: Balford Lindsay on his own behalf; L. N. Gottheil, Ken Wright, Mike King, George Doherty and Ken Pickering for the respondent; Robert J. Atkinson, Mike Balog and Jack Boehiner for the intervener.
DECISION OF THE BOARD; March 31, 1989
Balford Lindsay has been employed by Budd Canada Inc. ("Budd") since September 1974 in a bargaining unit now represented by the respondent union. This decision deals with a complaint he filed under section 89 of the Labour Relations Act ("the Act") on January 7, 1987, alleging that "on or about December 1978 & October 1984" he was dealt with "by Mike King, Kenneth Pickering & George Doherty Plant Chairman, Benefit Representative & Committee Man (respectively)", in that they did "misrepresent me as well as fail to provide me with a copy of the grievance." While the complaint itself mentioned no section of the Act other than section 89, the complainant's position is that the union's conduct violated section 68 of the Act. It appears that Local 1451 of the United Auto Workers was the trade union which represented Mr. Lindsay during the period to which this complaint relates. Although the named respondent denies its predecessor breached the Act, it does not dispute its responsibility for any breach its predecessor may have committed.
Mr. Lindsay testified on his own behalf on the first day of hearing. He was directed to describe more precisely and in detail the acts and omissions which he said amounted to a violation of the Act by the trade union. He was told these proceedings would not deal with any complaint he did not outline in his examination in chief. He said the actions for which he sought a remedy were the failure of the union to pursue certain grievances: one which had been filed with respect to Budd's having refused to pay weekly indemnity benefits in 1978 and two which he thought had been filed with respect to Budd's having refused to allow him to return to work from a medical leave of absence between September 1983 and March 1984. After his return to work in March 1984, he spoke about the latter grievances to Tony Collins, a member of management, who he said told him that the union had filed no such grievances and was pulling his leg when it told him it had. He then began asking union representatives for copies of both the 1978 grievance and the grievance the union said it had filed concerning his return to work in 1984, but was told he could not have copies because they were the property of the union.
Mr. Lindsay said he also felt he had been unfairly dealt with in other respects after his return to work in March 1984. He mentioned particularly the union's handling of two grievances which subsequent evidence establishes were filed in October of 1984, an altercation which took place in December 1984 between a union official and himself and the union's alleged refusal to allow a member of its executive to represent Mr. Lindsay in a proceeding before the Workers' Compensation Appeals Tribunal. He said these additional allegations were not matters for which he sought some remedy, but merely evidence of the union's attitude toward him at the time the subject matter of his complaint arose.
The first day of hearing adjourned at the end of Mr. Lindsay's testimony in chief, so that the respondent and intervener (who were not represented by counsel at that time) could prepare to meet the case outlined by Mr. Lindsay. On the second day of hearing, the respondent and intervener were represented by counsel, who argued that the complaint should be dismissed without a hearing because of Mr. Lindsay's delay in ffiing it. After hearing the parties' evidence and submissions on the delay issue, I determined that I would not inquire into the complaint that the union's failure to pursue the 1978 grievance was a breach of the Act, but would hear the balance of the complaint. I undertook to give written reasons for that determination, and I do so now.
Mr. Lindsay was absent from work for a couple of months following an automobile accident in August 1978. He received weekly indemnity payments for the first month of his absence, but payments were thereafter cut off because, his employer said, he had been working in a record store he then owned. He denied he had been working in the store himself, and a grievance was filed. He was involved in another automobile accident in 1979 which resulted in his having surgery in 1980 and being absent on sick leave for nearly five years. Both before and after the surgery Ken Pickering told him that the union would not take his grievance to arbitration. In late 1982 the local's president, Mr. McKinnon, confirmed to him that the grievance was not being pursued. Thereafter, Mr. Lindsay made no complaint to the union about this until late 1984, by which time the union had discarded its file on the matter. That file included notes Mr. King had made during the processing of the grievance about an investigator's report which the company told him it relied on. By the time it had notice of this complaint, the company had also discarded its file on the grievance, including the investigator's report. Mr. Lindsay had no explanation for his failure to pursue the matter of the 1978 grievance from late 1982 to late 1984, other than that he had been dealing with his injuries and other concerns during the period before his return to work from sick leave.
When he was unable to get copies of grievances after his return to work in 1984, Mr. Lindsay retained a lawyer to deal with the matter. In February 1985, the lawyer wrote to Mike McKinnon, the president of the local union, asking for information and documentation about those grievances. When that letter and a March reminder were not answered, he wrote in May to Robert White, then the UAW Director for Canada, who passed the matter on to International Representative Bruce Davidson. By mid June of 1985, all Mr. Lindsay's lawyer had was a letter from Mr. Davidson saying Mr. McKinnon would try to call him to find out what he wanted.
When Mr. McKinnon finally spoke to the lawyer, he suggested (or so the lawyer told Mr. Lindsay) that Mr. Lindsay come and speak to him. Mr. Lindsay made an appointment to see Mr. McKinnon. Mr. McKinnon failed to keep the appointment. Mr. Lindsay made another appointment. Mr. McKinnon failed to keep that appointment. Mr. McKinnon kept the third appointment he made to see Mr. Lindsay, but by then would only say that he could not deal with the matter because he was leaving the local. He said Mr. Lindsay would have to see the vice-president of the local, John Diver. Mr. Lindsay then met with Mr. Diver, who told that him that he upheld whatever the plant committee decided about his grievances and that Mr. Lindsay could not have copies of the grievances because they were the property of the union. Having decided by this point that he would try to deal with the matter without the lawyer's further assistance, Mr. Lindsay had two further meetings, one with Mike King, the plant chairman, and one with Bruce Davidson. The latter meeting did not take place until the spring of 1986, in part because of some misunderstanding about the location of a meeting scheduled earlier. These meetings did not resolve Mr. Lindsay's concerns. Mr. Davidson told him he could have recourse to this Board if he remained dissatisfied. He was by then already aware that a complaint could be made to the Board. He filed this complaint several months later, in January 1987.
Subsection 89(4) of the Act says that the Board "may" inquire into a complaint that the Act has been contravened. The use of the word "may" gives the Board a discretion to enquire or not, as it sees fit. The Board has decided not to enquire into complaints when a complainant's unjustified delay in lodging a complaint is so extreme as to make it unfair to the respondent to entertain the complaint: CCH Canadian Limited, [1977] OLRB Rep. June 351; Sheller-Globe of Canada, Ltd., [1982] OLRB Rep. Jan. 113 (jud. rev, denied Re Dhanota and International Union United Automobile, Aerospace and Agricultural Workers of America (U.A. W.), Local No. 1285; Sheller-Globe of Canada Ltd. (1983), 1983 CanLII 1655 (ON HCJ), 42 O.R. (2d) 73 (Ont. Div. Ct.)); The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420; Chrysler Canada Ltd., [1983] OLRB Rep. Apr. 490; John T. Hepburn Limited, [1984] OLRB Rep. Jan. 39; General Motors of Canada Limited, [1985] OLRB Rep. May 684 (jud. rev, denied April 6, 1987, Ont. Div. Ct., unreported). The extent to which the delay has prejudiced the respondent's ability to answer the complaint is a major consideration in assessing whether to dismiss it because of the complainant's delay in filing it. In that connection, the Board considers whether the respondent had prior notice that the complainant challenged the propriety of the conduct in issue. When it did, the Board also considers whether and to what extent the respondent caused, encouraged or acquiesced in the delay in its dealings with the complainant concerning that challenge.
For at least two years before he began asking in 1984 about his 1978 grievance, Mr. Lindsay had neither said nor done anything which would have alerted the trade union that the propriety of its actions in handling that grievance was a live issue. If Mr. Lindsay had pursued the matter in a timely fashion, the union would have known not to dispose of its file on the grievance. Not having that file severely prejudiced any defence of the complaint that it had not represented Mr. Lindsay properly in connection with that grievance. I was satisfied that in these circumstances I should not entertain that aspect of the complaint, and so ruled orally on May 14, 1987.
By way of contrast, from the evidence before me at that time it appeared that Mr. Lindsay's dissatisfaction and concern about the handling of his return to work grievance and his inability to get copies of grievances would have been apparent to the union within a few months, at most, of his return to work. Most of the complainant's subsequent delay in filing a complaint about these matters is explained by the union's refusal of or delays in providing information, its encouragement of or acquiescence in Mr. Lindsay's first discussing the matter with its officials and officials of the parent union before pursuing legal remedies and its delays in scheduling and engaging in those discussions. While Mr. Lindsay could have filed his complaint more promptly after those discussions ended in the spring of 1986, nothing occurred between then and January 1987 which particularly prejudiced the union's defence of these aspects of the complaint. It did not seem to me that unexplained portion of the delay was in any way extreme in circumstances where the respondent local union would leave letters to its president unanswered for months. Having regard to the nature of the complaint and the relief sought, I concluded that the prejudice caused to the intervener employer by the delay could be adequately minimized in the fashioning of a remedy if the complaint succeeded. For these reasons, I also ruled on May 14, 1987, that I would hear the balance of the complaint.
On the next and fourth day of hearing, Mr. Lindsay filed a letter asking to change his position with respect to the matters in respect of which he claimed relief. After hearing the parties' submissions, I made the following ruling:
Mr. Lindsay complains that the respondent union violated section 68 of the Act. The written complaint filed January 12, 1987, identifies December 1978 and October 1984 as the dates of the alleged violations. Like most section 68 complaints filed with the Board, it does not clearly indicate the full nature and scope of the complainant's allegations against the union.
On the first day of hearing, Mr. Lindsay took the stand and was asked to outline his case against the union by way of giving his evidence in chief. When he said he had finished his evidence in chief, it was clear that the alleged violation referrable to December 1978 had to do with the failure of the union to pursue to arbitration a grievance about the denial of weekly indemnity benefits to which Mr. Lindsay felt entitled in the fall of 1978. It was also clear that the alleged violation referrable to October 1984 had to do with the refusal of the union to pursue to arbitration (or, perhaps, at all) a grievance about his employer's failure to recall him to work in the fall of 1983 rather than in March of 1984, when he was recalled after nearly five years' absence on sick leave.
During his examination in chief, Mr. Lindsay made reference go an altercation with a union official at a meeting during which he was denied copies of the aforesaid grievances. It was apparent at the end of the first day of hearing that this and other refusals of copies of these grievances were also alleged to be violations of section 68 in respect of which some remedy would be sought and that the physical assault which allegedly occurred on that date was offered as evidence of bad faith on the part of union officials. It was also clear, however, that no claim was being made for a remedy with respect to the assault itself. During his examination in chief, Mr. Lindsay also testified about the union's failure to pursue other grievances on his behalf, as further evidence of the union's bad faith but not as matters in respect of which some specific remedy was being claimed. The hearing adjourned at the conclusion of the complainant's examination in chief.
On the second day of hearing, the respondent union and intervener employer were represented for the first time by counsel. They submitted that the complaint should be dismissed by reason of the complainant's delay in filing it. I concluded that all evidence with respect to delay should be put before me. The complainant was allowed to augment his examination in chief on this point and he was cross-examined on matters relating to delay. He called no other witnesses with respect to delay. The union called one witness. For reasons which I have undertaken to provide at a later date, I dismissed the complaint with respect to the alleged violation in 1978. At the end of the two hearing days devoted to the delay issue, that left the failure to pursue the 1984 grievance and the failure to provide copies of grievances as the only violations in respect of which a remedy was being sought. The complainant had indicated that the remedy sought was referral of that grievance to arbitration.
The fourth day of hearing began with cross-examination of the complainant on the merits of the complaint. During the lunch break that day, the complainant filed a letter requesting
That the Board deal with remedy itself rather than refer the matter to arbitration.
That he be permitted to claim compensation for the alleged physical assault; and,
That he be permitted to claim compensation with respect to the handling of the other grievances to which reference was made in his evidence in chief.
Mr. Lindsay wishes to offer further evidence in chief with respect to the last two matters.
As for the first matter, the nature of the remedy can be addressed in argument. The proper scope of this hearing does not change if the possibility of the Board's addressing the merits of the grievance in a subsequent compensation hearing remains open: see Gerald Lecuyer, [1987] OLRB Rep. Jan. 72. As for the other two matters, counsel for the respondent and intervener argue that a claim for remedy with respect to these matters should not now be introduced into these proceedings, because this would impair the integrity of the Board's process. They do not ask me to rule that those matters cannot be the subject of a claim for remedy in some other complaint. That would be a matter to be determined by the panel or Vice-Chair hearing such a complaint.
Recognizing that this may expand the amount of time devoted by the Board to these matters if they become the subject of a further complaint, I do think this proceeding has reached the point at which the scope of the complaint should not be expanded beyond what had been established at the end of the last day of hearing.
The Board's approach to matters of pleading where unrepresented section 68 complainants are concerned has often been to let the complainant particularize and define the complaint during his or her examination in chief, rather than engage in debates over the sufficiency of what he or she wrote on the complaint form by which the proceedings were initiated. Respondents and interveners are told that a benefit of this approach is that at the end of the examination in chief they know what case the complainant has made or will seek through other witnesses to make against them, and that any arguments about delay or lack of a prima facie case can then be made with respect to that case and not some document or opening statement which the complainant may later complain did not set out his or her full story. If that approach is to have credence then, when the other parties insist, the Board should ordinarily limit the complainant to the case he describes when given that sort of opportunity.
Accordingly, in this proceeding I will not entertain a claim for remedy with respect to the alleged physical assault or the "Ken Shelley, Ray Caron" grievances. I should not be taken as having decided whether the Board will entertain such a claim in another proceeding.
I would add that I should not be taken to have accepted that the facts Mr. Lindsay had alleged concerning the occasion of the alleged physical assault would, if proven, have warranted a finding that the assault constituted a violation by the union of section 68 of the Labour Relations Act.
The hearing of this complaint thereafter occupied 15 further days of hearing (not counting 2 days cut short by the unavailability of a witness), spread out over as many months. Mr. Lindsay acted on his own behalf throughout. In assessing the consistency and accuracy of Mr. Lindsay's recollections, I had the benefit not only of having seen and heard his testimony in chief and reply but also of seeing how he dealt with the many discussions which arose during the hearing concerning the nature of the process, his role in it, the relevance of evidence, the course the hearing had taken and the course it was taking. Although he was articulate and intelligent and, for the most part, soft-spoken, Mr. Lindsay's memory was not particularly good with respect even to events which took place mere weeks before, during the hearing itself. With respect to the events in issue, his recollections were often at variance with what was recorded in or could be inferred from contemporaneous documents which had been prepared in circumstances which made them reasonably reliable. Furthermore, the susceptibility of his recollections to the influence of what he would have perceived to be his interests substantially surpassed anything I could attribute to any of the other interested witnesses. Indeed, Mr. Lindsay was wont to change his story as time went on. I do not know whether he did so consciously. One fairly conspicuous example of this was in his characterization of Dr. Richter, who figures in the events leading to his return to work in 1984.
Mr. Lindsay's neck had been broken in the automobile accident of 1979. The operation in 1980 involved a spinal fusion. Mr. Lindsay received long term disability benefits while unable to work. He ceased receiving those benefits in 1983, when the insurer concluded he was capable of returning to the work force to some degree, apparently on the basis of his family physician's statement that he was capable of "sedentary" part-time employment. In September, 1983, he sought to return to work at Budd. He brought a note from his family physician dated September 30th stating that he was able to return to "his regular job or lighter duty." There had been a layoff during his absence. The evidence shows that he did not just then have the seniority necessary to claim either his regular job - fork lift operator - or any lighter duty job. All his seniority entitled him to were heavier jobs. He was asked for a note outlining the restrictions on his working. He brought another note from his family physician dated October 6th, stating that he could not lift more than 10 kilograms, nor stand for more than three hours without a rest, nor work while looking up or with his arms above his head. The jobs for which his seniority then entitled him often involved lifting more than 10 kilograms.
Mr. Lindsay's version of events following the second doctor's note is that he was told he did not have seniority to return to any job. According to him, both Tony Collins, the person to whom he spoke in Budd's personnel department, and Ken Pickering, the union benefits representative to whom he spoke on each occasion after visiting Mr. Collins, acted as though they thought he could not return to work and it seemed as though they did not want him to return to work. Some time later in the fall he learned he had been on the recall list all along. On November 2nd he brought a note from his family physician saying he could work without restrictions. Thereafter, he was examined by the company doctor, who he says told him there was no reason he could not return to work. Some time later he made an appointment to see Dr. Richter, whom he described in his evidence in chief as "my specialist". It took until February 23, 1984 to get in to see him. Dr. Richter wrote a letter to Tony Collins dated that day, to the effect that Mr. Lindsay was well enough to return to a job requiring vigorous activity. Mr. Lindsay delivered the letter that day. Two or three business days later, Budd decided to allow him to return to work. Although Mr. Lindsay's recollection is that he was not contacted to return to work until about two or three weeks after that (for which delay he blames Mr. Pickering), the evidence establishes that a telegram was sent to him on February 29, 1984 and that he returned to work on March 1st. He says that some time in the fall of 1983 he asked Mr. Pickering to grieve the company's refusal to return him to work and signed a blank grievance form at Mr. Pickering's request. He says he asked Mike King to do the same some time before he returned to work.
During cross-examination on June 23, 1987, Mr. Lindsay again referred to Dr. Richter as "my specialist". He also agreed with the suggestion that Dr. Richter was the doctor who had the best handle on how he was doing at the time he was seeking to return to work. When his cross-examination continued on July 8, 1987, he agreed with the statement that "your orthopedic specialist was Dr. Richter". He denied having been told in the fall of 1983 and the winter of 1984, by Tony Collins and Ken Pickering and Mike King, that the company would not allow him to return to work without obtaining an opinion from his specialist that he was fit to return to work. He was unable to explain convincingly why he would have made the appointment to see his specialist and get this note if no-one had told him that such a note was needed.
The evidence of Tony Collins and Ken Pickering and Mike King was that they told Mr. Lindsay it was his employer's position that he needed an opinion from his specialist before he could return to work, in view of the seriousness of his injuries. Ken Pickering testified Mr. Lindsay had told him that Dr. Richter was reluctant to give such an opinion in writing and that it was hard to get an appointment to see him. Mr. Pickering testified that he asked if he could speak to Dr. Richter directly, and Mr. Lindsay said yes. He did that. Mr. Lindsay then made an appointment to see Dr. Richter. Once he got the letter, the union had what it needed to argue for his return, which they did. In his cross-examination of Ken Pickering on May 24, 1988, Mr. Lindsay challenged this story by asserting that Dr. Richter was not his specialist, but only a doctor who had been hired by the lawyer handling his lawsuit over the motor vehicle accident to evaluate his damages. By the end of the hearing he was arguing forcefully that Dr. Richter was not his doctor - this in the face of the letter he procured from Dr. Richter and delivered to his employer, which begins with the words "Mr. Lindsay has been under my care previously following a neck injury ... ". Of course, it does not matter what the precise relationship was between Mr. Lindsay and Dr. Richter. The significant thing is that Mr. Lindsay was prepared to describe that relationship in a particular way at one point in the hearing and then attack the same characterization when it was employed by the union. Because of that and a number of other features of his testimony and argument, I did not find Mr. Lindsay a particularly reliable witness. Where it differs from that of Mr. Lindsay, I accept the evidence of Tony Collins, Ken Pickering and Mike King with respect to their dealings with him concerning his return to work grievance.
Dr. Casey does not recall telling Mr. Lindsay that there was no reason why he could not return to work. His having done so would not be consistent with the notes he made at the time, which are consistent with the doctor's recollection that, at the conclusion of the appointment at which Mr. Lindsay says he made this remark, he felt he needed clarification of the family physician's notes and the opinion of a specialist. It seems unlikely that he made the statement Mr. Lindsay now attributes to him. In any event, I accept the evidence of Messrs. King and Pickering that Mr. Lindsay did not tell either of them that Dr. Casey had told him there was no reason why he could not return to work.
Ken Pickering denied that Mr. Lindsay asked him to file a grievance with respect to his return to work in 1983. Mike King testified that when he knew Mr. Lindsay would soon be seeing Dr. Richter, he suggested to Mr. Lindsay that they file a grievance and did file such a grievance on February 10, 1984. When the letter from Dr. Richter arrived, he and Mr. Pickering spoke to management and suggested there was no excuse for any continued refusal to allow Mr. Lindsay to return to work. By that time, recalls had progressed to the point that Mr. Lindsay's seniority gave him the right to his former job as a fork lift operator. He was returned to that job expeditiously after providing the letter. Thereafter, Mr. King and the bargaining committee considered whether the company's refusal to return Mr. Lindsay to work before receiving that letter was a violation of the collective agreement.
The collective agreement provided that an employee on sick leave "will be returned to work in accordance with his seniority, provided he furnishes satisfactory medical evidence of recovery." Mr. King looked at what arbitrators had had to say about the onus on the employee to establish his/her fitness to return to work. The committee accepted his conclusion that an arbitrator would probably agree with Budd that, given the nature of the original injury and the brevity and inconsistency of the notes Mr. Lindsay got from his general practitioner, it was entitled to something more authoritative before being obliged to return Mr. Lindsay to work. It was common for the company to ask for notes from specialists, and the committee accepted Mr. King's view that the company had acted reasonably in requesting one here. Mr. Lindsay had returned to work. All that remained was the question whether he should have been allowed to return earlier. Having concluded that a grievance over the timing of his return to work was unlikely to succeed at arbitration, the union withdrew it.
Section 68 of the Labour Relations Act does not require that a trade union carry a grievance through to arbitration merely because the grievor wants it to do so. Unless the collective agreement gives the grievor that right, it is for the union to decide whether or not to take the grievance to arbitration. Section 68 requires the union to make that decision in a manner which is not arbitrary, discriminatory or in bad faith. It does not provide an appeal to the Board from the union's decision. The question for the Board is not whether the union's decision is the one which this Board would have made in the circumstances, it is whether the union's decision is the result of a process of reasoning grounded on a consideration of relevant matters and free from the influence of irrelevant ones: see Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, 6 CLRBR (NS) 134, at paragraphs 36 to 39. The Board has recognized that considerations relevant to a decision whether or not to press a grievance to arbitration include the merits of the grievance, the likelihood of its success, the financial commitment involved in proceeding to arbitration and the claims or interests of other individuals or groups within the bargaining unit who may be affected by the arbitration proceedings and their possible results: see Catherine Syme, [1983] OLRB Rep. May 775 at paragraph 20.
While I generally accept the evidence of the union and employer witnesses with respect to the events leading up to Mr. Lindsay's return to work, I do so with some doubt that the company's decision that a specialist's note was necessary came as early on as the witnesses now honestly recall. Such doubt is perhaps the inevitable consequence of having to view the events in question at such a distance in time. If it were necessary to resolve that doubt, I would resolve it in the respondent's favour. My doubt relates to the period between late September and early November, during which it has not been established that Mr. Lindsay's seniority entitled him to any job which could accommodate the restrictions outlined in the first two doctor's notes. Even with that doubt, therefore, I am satisfied that it was not unreasonable for the union to conclude that Mr. Lindsay had not discharged his obligation to "furnish satisfactory medical evidence of recovery" until he had provided the letter from Dr. Richter. On the basis of the evidence as it relates to events up to the fall of 1984, I am not persuaded that the union breached section 68 in its handling of that grievance. The subsequent events referred to in evidence do not persuade me otherwise.
Mr. Lindsay claimed that two grievances in October 1984 had been mishandled by the union. One was a grievance that his foremen, Messrs. Shelley and Caron, had been consistently harassing and discriminating against him. It asked that they apologize for their actions. The actions complained of were thoroughly discussed in the grievance process. There was an apology by one of the foremen with respect to at least one of the instances complained of. I believe Mr. King's testimony that at that point Mr. Lindsay seemed satisfied with way that grievance was resolved in the grievance process. Having heard at length about the background to that grievance, the resolution of it appears to me to have been a reasonable one. The other grievance concerned a one day suspension for poor job performance. There was at least one reliable eye witness to Mr. Lindsay's having been sitting on his fork lift reading a newspaper at a time when he was supposed to be taking materials to or from the "blanker" area. That was the poor job performance for which he was suspended. In the grievance process, the union got the suspension reduced to a written warning. It concluded it was unlikely to do better at arbitration, and took no further step. Having heard at length about the incident I can say that was not an unreasonable conclusion. Nothing in what I heard about these October 1984 grievances persuades me that in handling the earlier return to work grievance the union acted in an arbitrary, discriminatory or bad faith fashion.
Mr. Lindsay went to see Mr. Pickering in December 1984 to ask for copies of his grievances. The meeting deteriorated into name calling. In the course of this, each expressed a low opinion of the other. Mr. Pickering made reference to an occasion during Mr. Lindsay's absence on sick leave in which Mr. Lindsay supposedly told a steward that he (Lindsay) had no reason to return to work as long as the company was paying him to sit out. Mr. Pickering concedes this may have sounded like an accusation that Mr. Lindsay had been ripping the company off. At one point, each moved toward the other and came into contact in a way which leaves some doubt about which of them was the attacker and which was acting in self defence. It is not for me to answer that question; that was a question to be resolved (if at all) in another forum. The purported relevance of this incident is that it is said to show that the union must have acted in bad faith in handling the return to work grievance a number of months earlier. It certainly shows that Mr. Pickering did not hold Mr. Lindsay in high regard. As this was a result of events which preceded Mr. Lindsay's return to work, it is a fair inference that Mr. Pickering did not hold him in high regard when he was dealing with Mr. Lindsay's return to work grievance. I am not persuaded, however, that Mr. Pickering's personal feelings about Mr. Lindsay caused him to act in an arbitrary, discriminatory or bad faith manner in dealing with that grievance.
The member of its executive whom the union allegedly refused to allow to represent Mr. Lindsay in a proceeding before the Workers' Compensation Appeals Tribunal was Peter Viraugh. Mr. Viraugh had no experience of proceedings before that tribunal, and he had a health problem which made it dangerous for him to travel by car. It was for these reasons that when Mr. Lindsay suggested that Mr. Viraugh represent him, the union's officers offered instead to arrange for his representation by an experienced representative from the Office of the Worker Advisor. I believe their evidence that Mr. Lindsay then seemed satisfied with that suggestion, which they carned out.
Finally, there is the allegation that the union breached section 68 when it refused to give Mr. Lindsay a copy of the grievance filed on his behalf with respect to his return to work. Mr. King testified that he and others met with Mr. Lindsay in 1984 after the union withdrew his back to work grievance, to explain what had been done. I find that there was such a meeting, that the grievance was discussed and that Mr. Lindsay did not at that time ask for a copy of it. Mr. Lindsay's requests began after that. Requests were made to Wayne Poole who, in turn, made them to Mr. Doherty. Mr. Poole says Mr. Doherty's response was that Mr. Lindsay could not have copies of the grievances because they were the property of the union. Mr. Doherty says he told Mr. Poole that Mr. Lindsay would have to speak to the President of the union if he wanted copies. While some request was made to Mr. Pickering on the occasion of the December 1984 altercation, I am not sure it would have been apparent to Mr. Pickering that Mr. Lindsay was seeking a copy of the 1984 grievance as well as the 1978 one. In any event, Mr. Pickering was not the proper or logical person to approach for that purpose at that time. While Mr. King was undoubtedly aware of the efforts Mr. Lindsay was making to get copies of grievances, I am not persuaded that any request was made directly to Mr. King by Mr. Lindsay or anyone acting on his behalf.
Mr. Lindsay did speak to the local union's President who, as I have already noted, referred him to the Vice-president. The union did not challenge or contradict Mr. Lindsay's testimony that the union's Vice-president, John Diver, told him he could not have a copy of his grievance because it was the property of the union. That occurred some time in 1985. There is no evidence that providing Mr. Lindsay with a copy of the 1984 grievance would have involved any significant effort or expense on the union's part, either at that time or at any other time before or since.
After Mr. Diver refused him a copy of the 1984 grievance, Mr. Lindsay had two meetings with union officials to discuss that grievance and other matters. The first meeting was with Mr. King; the second was with Mr. Davidson and various officials of the local including Mr. King. Mr. King had the 1984 grievance with him when he met with Mr. Lindsay to discuss it and his other concerns. Mr. Lindsay admits he was shown the grievance at this meeting and did not ask for a copy of it. He says that at the subsequent meeting, Mr. Davidson asked to see the grievance and was told by Mr. King it was no longer in existence. I am satisfied that what Mr. Davidson was told was that the 1978 grievance was no longer in existence, which was true. Mr. Lindsay did not ask for a copy of the 1984 grievance at the meeting with Mr. Davidson. It is not clear to me what the response would have been if Mr. Lindsay had asked Mr. King or Mr. Davidson for a copy of the 1984 grievance.
It is not a great deal to ask of a trade union that it give a worker a copy of a grievance it has filed on his or her behalf if the worker asks for one. At the end of the several months Mr. Lindsay spent trying to get a copy of his grievance, the only reason Mr. Diver gave for refusing him a copy was the officious and irrelevant statement that the original was the property of the union. This high-handed response had a predictable and undesirable effect: it gave Mr. Lindsay the impression the union had something to hide and reinforced his belief that the union's officials were not to be trusted. The union now seems to concede that the sensible thing would have been to give him a copy when he asked for it. It has changed its policy with respect to giving grievors copies of their grievances has changed since this complaint was filed: copies are now provided.
I have no difficulty characterizing the union's refusal to give Mr. Lindsay a copy of his grievance as arbitrary action, perhaps even action in bad faith. The refusal is not a breach of section 68, however, unless it can also be characterized as action "in the representation" of Mr. Lindsay as an employee in a bargaining unit which the union is entitled to represent. Counsel for the union argues that any right a worker may have to information about his or her grievance comes to an end when the grievance is withdrawn by the union. He relies on the Board's decision in Softley Cartage Limited, [1982] OLRB Rep. May 766. Taken to its logical conclusion, the union's argument is that a union can be as arbitrary as it likes in communicating with employees about employment matters in which the employees are interested, so long as in its actual dealings with their employer about those matters the union does not act in an arbitrary, discriminatory or bad faith manner. The decision in Softley Cartage Limited, supra, dealt with a specific fact situation; I am persuaded it would not be fair to say that it stands for the unqualified proposition set out in the previous sentence. It seems to be open to the Board to conclude in an appropriate case that a union's refusal to provide a worker it represents with a copy of a grievance it has filed on his or her behalf violates section 68: see Maurice Berlinguette, [1984] OLRB Rep. Apr. 568.
As a practical matter, however, complaints about a trade union's failure to provide information about its activities on behalf of employees tend to arise when there are suspicions or allegations that the activities themselves involve a breach of the Act. The refusal of information and the activities to which the information relates come to the Board bound up together as the subject matter of a complaint. The complainant receives the desired information as a result of the filing of that complaint, either before or in the course of a hearing. The propriety of the activities generally becomes the real focus of attention, as it did in this case. If the complaint fails on that issue, the matter of the initial failure of communication can take on an almost academic quality, as it does in this case.
If the respondent's refusal to give the complainant a copy of his grievance was a violation of section 68, I am not persuaded that that caused him any loss for which he should be compensated. I cannot say that even the costs to Mr. Lindsay of these proceedings, for which he would not have been compensated even if the complaint was wholly successful (see Silknit Limited, [1983] OLRB Rep. Nov. 1913; Jean Liebman, [1986] OLRB Rep. June 753, and, Gerald Lecuyer, [1987] OLRB Rep. Jan. 72), were caused solely or even primarily by that refusal. I would not consider an award of nominal damages, in view of the complainant's failure to renew his request at the meetings with Mr. King and Mr. Davidson. For that same reason, and also because the union has changed it policy with respect to providing copies of grievance documents, I would not issue a cease and desist direction or other remedy with prospective effect. Having concluded that in these circumstances I would not grant any remedy for such a breach if it was one, it does not appear to me that any useful labour relations purpose would be served by my merely pronouncing on whether or not, in all the circumstances, the union's refusal in 1985 to provide a copy of a grievance amounted to a breach of the Act, so I do not propose to do so.
I dismiss this complaint, with the observation that Mr. Lindsay and the respondent trade union would be well advised to put these proceedings behind them without engaging in any further recrimination about what caused them.