[1991] OLRB Rep. January 35
0768-90-U John Kohut, Complainant v. The National Automobile, Aerospace and Agricultural Implement Workers' Union of Canada (C.A.W.-Canada) and its Local 303, Respondent v. General Motors of Canada Limited, Intervener
BEFORE: S. A. Tacon, Vice-Chair.
APPEARANCES: Harry Kopyto and John Kohut for the applicant; L. N. Gottheil, Robert E. Tindale, Robert J. Ryan, Pat Clancy and Richard Fleming for the respondent; E. T. McDermott, Dave Demartile and Margaret Szilassy for the intervener.
DECISION OF THE BOARD; January 7, 1991
As stated in the Board's decision of October 5, 1990, the hearing was to reconvene to deal with the preliminary motions of company counsel as set out in paragraphs 2 and 3 of that decision.
At the continuation of the hearing, the Board heard submissions from all parties with respect to the motion by company counsel that the complaint be dismissed for failure to state a prima facie case and, as well, with respect to part of the relief sought by the complainant. Those representations are given in summary form.
First, however, it is useful to set out the pleadings in their entirety, including those filed with the complaint itself and an undated letter from the complainant's counsel, received by the Board on July 20, 1990.
FORM 58
On or about "March 28, 1986 to the present" the grievor(s) was (were) dealt with by "various agents" of the respondent contrary to the provisions of section(s) '68" of the Labour Relations Act in that he did on his own behalf or on behalf of the respondent: "inadequately represent the complainant throughout the grievance process as described in Schedule "A" attached hereto."
[Quotation marks indicate those portions of Form 58 as completed by the complainant.]
SCHEDULE "A”
The Complainant states that at all relevant times, he was a Production Operator at the Scarborough Plant of General Motors Canada Limited. His seniority date was July 10, 1975.
Throughout his course of employment, the Complainant states that he was a strong supporter of the rights of his fellow workers. He states that from time to time, he criticized the actions and attitude of management among his fellow workers with respect to safety problems and safety issues, supported initiatives of his fellow workers to advance their interests and otherwise became generally know [sic] among his fellow workers as well as by management as a committed trade unionist.
The Complainant states that for this reason, management had the motive to terminate his employment thereby terminating his influence and his outspokenness.
The Complainant states that on previous occasions during the term of his employment, the Complainant was the subject of disciplinary proceedings initiated by management out of animus against him. He states that such disciplinary actions have included efforts to terminate his employment in the past. The Complainant states that he was able on each occasion to block his dismissal and retain his employment.
On or about the 28th day of March 1986, the Complainant was the subject of an unlawful search and seizure of his motor vehicle which was at all relevant times parked in the parking lot of the employer's Scarborough Plant. At that time, two members of the Metropolitan Toronto Police Force conducted an unlawful search of the aforesaid motor vehicle and seized therefrom a radio/stereo cassette player which was the property of the Complainant and which he had purchased for good consideration.
The Complainant states that as a result of the aforesaid incident., he was charged with a criminal offence of possession under for which he was eventually acquitted in the District Court of the Judicial District of York. The charge laid against the Complainant by the police was not laid until April 6, 1986. This was approximately seven days after he was fired from his employment by the management of General Motors Limited, the Respondent.
The Complainant states ostensibly that as a result of the aforesaid incident, on the 31st day of March he was discharged by General Motors of Canada Limited notwithstanding the fact that he had a good work record and was competent in performing his duties, a reputation for being a hard worker among his fellow employees, notwithstanding an indemic asthmatic condition which management was aware of at the time of its hiring of the Complainant and his frequent performance of services beyond his job description.
The Complainant states that in the month of April, 1986, he contacted Mr. Pat Clancy a national representative of the Canadian Auto Workers Union at the Union Hall and advised him of the circumstances and of the falsity of the charge against him and was advised by the aforesaid Pat Clancy that he would receive the assistance of the Union with respect to regaining his employment.
The Complainant states that Mr. Pat Clancy never contacted him with respect to this matter at any point of time thereafter except for one occasion when Mr. Clancy telephoned him from Montreal and he advised Mr. Clancy what General Motors was doing in Court. The Complainant recalls that he was advised by Mr. Clancy at that time if General Motors wishes to harass a person, they generally are successful in being able to do so. The Complainant states that he didn't hear from Mr. Clancy since that time.
The Complainant states that subsequently, he attended court on April 21,1986, on May 7th, 1986, on October 27th, 1986, on May 4th 1987, on August 5th 1987 and August 6th 1987 with respect to responding to the trumped up charge against him. He states that on each occasion representatives of General Motors of Canada Limited appeared in court, but the representatives of the Respondent Union at no time appeared on his behalf to encourage him or advise him or to act as witnesses on his behalf. The Complainant does state that on two occasions Richard Fleming, a former chairman of the Respondent, did appear at court to observe the case. The Complainant states that at that time, Mr. Fleming appeared not to be acting on behalf of the Complainant nor performing any official functions on behalf of the Complainant.
The Complainant states that the Respondent at no time had any of its agents or members contact him or assist him with respect to the aforesaid court proceedings or with respect to an outstanding grievance which he had filed arising from the incident which resulted in his dismissal. He states that from time to time, he contacted the Respondent by telephone; but it never initiated any telephone conversations with him or expressed any kind of support or sent observers to the court house to observe what was happening other than what is set forth herein.
The Complainant states that from time to time, he contacted the Respondent regarding the progress of his arbitration and he was advised that the Respondent would get back to him with respect to the arbitration date.
In or about the month of June 1988, the Complainant states that he saw Robert Ryan, Plant Chairman and Robert Tindale, national representative of the Canadian Auto Workers Union at the Union Hall of Local 303 on Kennedy Road which meeting occurred on or about the 13th day of June or thereabouts. The Complainant states that at that time, he was advised that arbitration was to take place on June 16th 1988. The Complainant complained about the short notice that he was receiving regarding the arbitration as it was related to an incident that took place a considerable amount of time earlier. In addition, the Complainant made it specifically clear that the Respondent should seek to have the arbitration put over until the Complainant's appeal from his initial conviction the charge registered August 6th 1987 was heard.
The Complainant states that at that time he was discouraged from proceeding with his appeal by Mr. Ryan and Mr. Tindale who advised him that he was wasting his money and that he would not win the case. He was further advised by Mr. Ryan and Mr. Tindale that as of June 13th 1988, General Motors would incur no liability in the event that he was reinstated by the arbitrator and that the Union had confirmed that they had agreed to such an arrangement (without prior agreement).
In the course of the aforesaid conversation, the Complainant was further advised that as a result of the arbitration, the Complainant might be able to be reinstated but he would not be able to receive any compensation for lost earnings.
The Complainant states that no representatives of the Respondent assisted him financially or otherwise with respect to his appeal which was heard in December, 1988 from his conviction of possession of the aforesaid radio and that the appeal was successful.
The Complainant states further that he advised the Union of the results of the appeal but that the Union refused to take any action or assist him in any respect with respect to receiving compensation as a result of his dismissal by management of General Motors of Canada Limited for the incident involving the radio.
On April 3rd 1989, Robert Tindale who was at that time the representative of the Canadian Auto Workers Canada contacted the Complainant to advise him that his arbitration case was scheduled for April 26th 1989 and that he wished to meet with him on April 6th 1989. On April 4th 1989 Mr. Tindale advised the Complainant that the arbitration case would proceed on April 12th and still wished to see him in the Union Hall on April 6th 1989. The Complainant states that he met with Mr. Ryan and Mr. Tindale but they appeared very negative about his case, indicated that it would only be through luck that he would be able to be reinstated, that he would under no conditions receive compensation and he was generally discouraged from anticipating success at the arbitration hearing.
On April 11th 1989 the Complainant met Mr. Ryan and Mr. Tindale again at the Union Hall for Local 303 with Committeeman Roger Kennedy and a witness, Steve Blanchard, present. At that time, the Complainant asked Mr. Tindale to have the arbitration hearing adjourned because of inadequacy of time available for preparation. He indicated that he wished to submit evidence and witnesses and that he wished to obtain legal advise [sic] from another source. Mr. Tindale indicated that his willingness to represent the claimant on the case on the condition that the complainant agree to have the case on the scheduled date. Subsequently, and without sufficient cause, he withdrew from appearing on behalf of the complainant and advised the complainant to obtain his own counsel. In the course of the discussion, Mr. Tindale eventually agreed to obtain a remand of the case for the complainant.
On or about the 3rd day of May 1989 Mr. Tindale of the Respondent indicated that the company wished to confirm the date for the resumption of the arbitration on June 22nd 1989 or August 30th 1989 and that in the event that one of these dates were not confirmed by May 12th 1989, the Complainant's right to arbitration would be terminated. By letter sent to Robert Tin-dale dated May 8th 1989 the Complainant selected the date of August 30th 1989 for arbitration.
On August 30th 1989, General Motors indicated through its representative that the Respondent had agreed to permit the written transcript from the trial which resulted in the initial conviction of the Complainant on the charge of possession of stolen goods to be produced and relied on at the arbitration hearing. The Complainant argued through his lawyer that the aforesaid transcripts were inadmissible because of the arrest, search and seizure which resulted in the allegedly stolen good being detected was unlawful, and that the conviction was overruled, thereby invalidating the evidence upon which it was based. The arbitrator determined that the transcripts were admissible because of the agreement of the Respondent which was obtained without the knowledge or consent of the Complainant.
The Complainant states that the arbitration continued throughout the day and that the evidence obtained from the transcripts as well as the transcripts themselves were used in order to resolve the fundamental issues against his interests. The complainant stated that but for the introduction of the transcripts and their unlawful use, resulting from the unauthorized agreement of the Respondent to permit their use, the issues at the arbitration hearing would have been resolved in his favour.
The Complainant states that the conduct of the Respondent as described herein in conducting his arbitration violated the aforesaid section of the Labour Relations Act and that he is entitled to the relief claimed.
Letter Received from Complainant's Representative on July 24, 1990.
RE: John Kohut, and The National Automobile, Aerospace and Agricultural Implement Workers' Union of Canada (CAW. - Canada) and its Local 303 (Sec. 89, re: Complainant).
We wish to advise you that in addition to the particulars relied upon in the complaint filed in the matter, Mr. Kohut will also call forth evidence indicating that at the arbitration hearing that took place in this matter and which is referred to in the complaint. Mr. Robert Tindale, the person designated to represent the complainant at the arbitration hearing, stated that the applicant's case could have been won by either bringing a special amendment at the first step and if the company didn't allow him, he could have brought it back to third step and won the case at that point. The import of these words was that Mr. Robert Tindale who throughout was a representative of Mr. John Kohut, had an opportunity to actually win his grievance but failed to do so. Mr. Tindale at that time indicated further that he did not take the steps indicated because he didn't "feel like playing the game.
The complainant will rely on these statements of Mr. Tindale as additional evidence of the violation of the sections of the Labour Relations Act referred to in the complaint and puts the Respondent on notice of this fact and of his intention to produce this evidence.
Counsel for the company acknowledged that, for purposes of his preliminary motions, the facts set out in the complaint must be considered true and provable. Counsel noted, however, that the Board has the discretion as to whether or not to inquire into a section 89 complaint and submitted the Board should decline to conduct such an inquiry if no prima facie case had been stated. The various paragraphs of the complaint were reviewed as well as the July letter from the complainant's representative. With respect to the paragraphs alleging misconduct by the company, counsel argued that could not constitute a contravention of section 68 which section imposed an obligation solely on a trade union, and, in any event, those allegations were devoid of particulars. As to the allegations regarding the union's alleged failure to assist or support the complainant in connection with the proceedings in the criminal courts, it was contended that there was no section 68 obligation with respect to such matters. With regard to the union's handling of the complainant's discharge grievance, counsel made several submissions. Those allegations which concerned matters such as the purported failure to return calls or maintain frequent contact were answered by the fact that the grievance did proceed up to and including arbitration. Counsel contended that, far from violating section 68, the union had acceded to the complainant's repeated requests for adjournments, for his own counsel, etc. Counsel suggested, with regard to the assertion that the union told the complainant that only reinstatement, not compensation, might be available at arbitration, that the Board take judicial notice that it was not unusual for adjournments where there was continuing liability to contain such a condition for the company's consent. Counsel stressed that the arbitration award had dismissed the grievance, yet the complainant had not requested that the union seek judicial review of that decision. As well, it was submitted that the loss at arbitration rendered any alleged technical violations in processing the grievance irrelevant. With respect to the admission of the transcript at arbitration, counsel argued that the Arbitration Board had the authority to admit such a document and that arbitration award had not been challenged. Thus, that issue could not constitute a contravention of section 68. As to the relief requested, counsel submitted that the company could not be in contravention of section 68 and, thus, should not be added as a respondent. Item 4 of the relief sought (see paragraph 4 of the Board's decision of October 5, 1990) should be struck. Counsel argued, with regard to item 3 of the relief sought, that the Board had no jurisdiction to restrain the Arbitration Board from admitting the transcripts of these criminal proceedings. Finally, counsel noted that, in exceptional cases, the Board has directed the union to proceed to arbitration with a grievance and to provide independent legal counsel for the grievor. In the instant case, it was submitted, the complainant had already been to arbitration represented by counsel of his own choosing and had lost on the merits.
Counsel for the union adopted the remarks of company counsel and noted, in addition to the Board's statutory discretion to decline to entertain a complaint, Rule 71 of the Rules of Procedure dealing with failure to state a prima facie case. Counsel expanded somewhat on the earlier submissions by company counsel regarding the duty of fair representation as not extending to representation or assistance in connection with criminal proceedings. In support of these propositions, counsel cited Luis Lopez, [1989] OLRB Rep. May 464; Michael Connolly, [1987] OLRB Rep. Feb. 193; Sylvia Colalillo, [1982] OLRB Rep. July 1066; Angelo Moro, [1983] OLRB Rep. Aug. 1354. With respect to the allegation in paragraph 9 against P. Clancy, counsel contended that, even if assumed true, there was no rational connection between that allegation and the ultimate disposition of the grievance. As to the "transcript" issue, counsel adopted the submissions of company counsel. In commenting on the relief requested, counsel submitted that the Board had no jurisdiction to order an arbitrator to exclude the transcripts from evidence as that question was properly for the arbitrator alone. It was contended that a company could not violate section 68 and, further, there was no basis for the allegation of collusion between the union and the company. As to the requested reinstatement directly by the Board, counsel noted that such an approach had been rejected by the Board in its jurisprudence but that could be dealt with in submissions on the merits if such were necessary.
The complainant's representative conceded that the Board had the authority to dismiss a complaint for failing to disclose a prima facie case but submitted that it should only be done in the clearest of cases. The appropriate test in such matters was whether the complainant had an arguable case for at least some of the relief claimed and, in the instant case, that standard was satisfied. the complainant's representative stated that he was not suggesting that, on its own, the alleged conduct of the union in connection with the criminal proceedings contravened the section 68 duty but, rather, that that conduct could be relied on to establish bad faith in regard to the grievance and arbitration process. In particular, it was suggested that the union could have mobilized the bargaining unit members to show their solidarity where a fellow employee had been falsely accused. The allegations against the company (paragraphs 1 - 4 in the pleadings in particular) were relevant, it was submitted, to establish the company's efforts to terminate the complainant in the past which were ostensibly blocked by the complainant and the union. That evidence, it was argued, could play some role in determining what position the union might have taken in the complainant's defence. The complainant's representative contended that paragraphs 21 and 22 of the pleadings were critical to the complaint impugning the union's agreement to admit the transcripts as arbitrary, discriminatory or in bad faith. In this regard, the complainant's representative stressed that the pleadings must be assumed true and provable and, hence, it must be accepted, for purposes of the preliminary motion, that the arbitration would have vindicated the complainant "but for" the introduction of the transcript and the transcript would not have been admitted "but for" the union's agreement. It was submitted that the alleged collusion between the company and the union rendered it appropriate to make the company a party respondent for purposes of the relief sought. The allegations in the July letter against R. Tindale, it was asserted, squarely raised the issue of bad faith in the union's handling of the grievance process. With respect to the question of judicial review of the arbitration award, the complainant's representative argued that failure to challenge the award was irrelevant as the impugned conduct was not the -arbitration itself but the union's agreement, without the complainant's consent, to admil the transcript. As well, the fact that the complainant was represented by counsel of his choosing at the arbitration was not relevant to the prima facie case issue as his counsel had been bound by the union's agreement to admit the transcript. It was submitted that the pleadings made out a prima facie case that the union was uncaring in its attitude toward the complainant throughout the criminal proceedings and the grievance process and consistantly were negative about his prospects in both forums. Further, it was argued that the purported agreement to abandon retroactive compensation without the complainant's consent to obtain the adjournment the complainant sought raised an arguable breach of section 68. In short, the complainant's representative argued that a prima facie case had been made out and, further, the question of the relief sought should not be canvassed at this point.
In reply, union counsel emphasized that the complainant was bound by his pleadings and could not now seek to amend those pleadings, particularly with regard to any assertion that R. Tindale's withdrawal from the grievance contravened section 68. Counsel rejected the proposition by the complainant's representative that the union's alleged conduct in connection with the criminal proceedings could constitute evidence of bad faith where there was no duty to represent the complainant in that forum. It was stressed that the pleadings did not suggest the union had so assisted others and, thus, its failure to do so for the complainant violated section 68. With regard to the assertion that "but for" the introduction of the transcript, the complainant would have succeeded at arbitration and the allegation in the July letter from the complainant's representative, counsel argued that, even at a prima facie level, the allegations should not be so unreasonable as to cause unnecessary litigation. That is, the assumption that the pleadings are assumed true and provable should be subject to some limitations of reasonableness or, at least, that the pleadings not be so improbable as to generate frivolous or vexatious litigation.
In reply, counsel for the company asserted that, where the complainant had his case adjudicated at arbitration and had independent legal representation, more than vague hints or assertions of bad faith were required. It was argued that the wording of paragraphs 21 and 22 of the pleadings did not amount to a clear assertion that "but for" the introduction of the transcript, the complainant would have been successful at arbitration. Further, the allegation was that the complainant argued against the admissibility of the transcript (and lost on that point). The complainant did not assert that the union’s agreement to admit the transcript was improper and cannot now alter his pleadings. Counsel recognized that it was unusual to dismiss a complaint for not making out a prima facie case but submitted that it was appropriate to do so in the instant case where the complainant had had his arbitration and was there represented by his own counsel and lost.
The Board categorizes the pleadings and allegations as falling under three headings: those directed against the company; those directed against the union in connection with the criminal proceedings; those directed against the union in connection with the arbitration process. The Board intends to consider each in turn and, finally, deal with the question of the relief sought in the context of the preliminary motions.
Union counsel generally agreed that, for purposes of the company's preliminary motion that the complaint did not disclose a prima facie case, the Board assumes the pleadings are true and could be proved at a hearing but asserted that some limit of reasonableness in making those assumptions was needed to preclude unnecessary litigation because of pleadings which were so farfetched as to be vexatious or frivolous. The Board is not unsympathetic to this position and it may well be that some limits do exist even in the context of a "no prima facie case" argument where the pleadings are inconsistent with facts of which a board would take "judicial notice". However, while the pleadings in the instant case may well be difficult to establish on the evidence as matters of fact, they are not so improbable as to warrant departure from the Board's usual approach of assuming the pleadings to be true and provable. The Board agrees with the characterization of its assessment as to whether a prima facie case exists as delicate (see Michael Connelly, supra,) but affirms the test to be applied herein is whether the pleadings, when assumed true and provable, could sustain an arguable case for violation sections of the Act alleged or for the remedy requested.
The Board need only deal briefly with the impugned conduct of the company. Section
68 reads as follows:
- A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
It is evident from perusal of the statutory language that the duty of fair representation is imposed solely upon trade unions and, hence, employers cannot be in violation of section 68. Alleging collusion between the company and the union cannot serve to alter the statutory wording to extend a section 68 duty to the company. The complaint has asserted a violation of section 68 alone and must be held to those pleadings at this juncture. As the company cannot be found to have violated section 68, the pleadings with respect to the impugned conduct of the company do not disclose an arguable case for breach of the Act. Accordingly, the Board exercises its discretion in section 89 of the Act to decline to hear the complaint insofar as it relates to alleged improprieties by the company.
The Board next turns to those pleadings concerning the union's alleged conduct with regard to proceedings in the criminal courts in which the complainant was involved. It is useful to refer to the analysis in Luis Lopez, supra, in the following somewhat lengthy passage:
The issue squarely raised in these proceedings is the ambit of the obligation imposed by section 68 of the Act. Is the trade union obliged to represent bargaining unit employees in connection with WCAT proceedings in the sense that a specific decision not to so represent the complainant in the instant case is subject to scrutiny by the Board to ensure that that decision was not arbitrary, discriminatory or in bad faith? Further, is it relevant to the analysis that the union did represent the complainant before the WCB?
It is appropriate to first reflect on the history and purpose of section 68 of the Act which reads:
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.
While the section is couched in broad terms ("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"), the Board regards the duty of fair representation as restricted so that the extent of the duty is coextensive with the extent of the union's authority as exclusive bargaining agent. The duty of fair representation was enacted as a counterweight to the restrictions on individual employee rights inherent in the creation of a collective bargaining regime in which the bargaining agent was granted exclusive rights to bargain on behalf of all employees in the bargaining unit, whether or not union members. The duty of fair representation serves to protect the individual from decisions of the bargaining agent which could be characterized as arbitrary, discriminatory or in bad faith. In effect, given that the trade union would likely be more responsive to the wishes of the majority, the individual was afforded some protection against the "tyranny of the majority" since the advent of a collective bargaining regime had, for all intents and purposes, eliminated the individual's common law right to negotiate an individual contract of employment. Thus, the context in which the section 68 duty arises and its purpose constitute the rationale for defining the ambit of the trade union's statutory obligation to fairly represent the employees in the bargaining unit.
In elaborating on the Board's conclusion, it is useful to briefly sketch the American jurisprudence dealing with the duty of fair representation which arises in a judicial context in that jurisdiction but which was influential in the adoption here of a statutory duty of fairness. The duty developed through a series of cases including Steele v. Louisville & National Railroad, 15 LRRM 708 (1944); Tunstall v. Locomotive Firemen, 15 LRRM 715 (1944); Wallace Corp. v. NLRB, 15 LRRM 697 (1944); Humphrey v. Moore, 55 LRRM 2031 (1964); Ford Motor Co., v. Huffman, 31 LRRM 2548 (1953). The far-reaching decision in Vaca v. Sipes, 64 LRRM 2369 (1967) firmly established the duty of fair representation as an obligation imposed on an exclusive bargaining agent with respect to representation of employees in the bargaining unit both in collective bargaining and in the enforcement of a collective agreement. While the focus of the jurisprudence prior to and since Vaca v. Sipes was on the quality of representation and the appropriate standard for evaluation of the representation afforded to an individual bargaining unit member, a common theme in the cases links the issue of the duty of fair representation to the employer's conduct in that the remedy for breach may well run to both the union and the employer.
A few cases have commented more directly on the ambit of the duty rather than solely on its content. In Hines v. Anchor Motor Freight, Inc., 91 LRRM 2481 (1976), Mr. Justice White, for the U. S. Supreme Court, stated (at 2484):
Because "[tlhe collective bargaining system as encouraged by Congress and administered by the NLRB of necessity subordinates the interests of the individual employee to the collective interests of all employees in a bargaining unit," Vaca v. Sipes, 386 U.S. 171, 182, 64 LRRM 2369 (1967), the controlling statutes have long been interpreted as imposing upon the bargaining agent a responsibility equal in scope to its authority, "the responsibility and duty of fair representation" Humphrey v. Moore, supra, at 342, 55 LRRM at 2034.
The self-limiting reach of the duty was expressed thus in Freeman v. Teamsters, Local 135, 117 LRRM 2873 (CA. 7, 1984) at 2875:
A union's statutory duty of fair representation is coextensive with its authority under s 9(a) of the National Labour Relations Act, 29 U.S.C. s 159(a), to act as the exclusive representative for the members of the collective bargaining unit. Schneider Moving & Storage, Co. v. Robbins, 104 S. Ct. 1844, 1851 n.22, 101 LRRM 2365; international Brotherhood of Electrical Workers Foust, 442 U.S. 42, 46 n.8, 101 LRRM 2365; Kolinske v. Lubbers, 712 F.2d 471, 481, 113 LRRM 2957 (D.C. Cir. 1983). The scope of the duty of fair representation, however, extends no further. If a union does not serve as the exclusive agent for the members of the bargaining unit with respect to a particular matter, there is no corresponding duty of fair representation. Dycus v. NLRB, 615 F.2d 820, 827, 103 LRRM 2686 (9th Cir. 1980); Kuhn v. National Ass'n of Letter Carriers, Branch 5, 528 F.2d 767, 770, 91 LRRM 2177 (8th Cir. 1976). "[A] union ... can be held to represent employees unfairly only in regard to those matters as to which it represents them at all -namely, 'rates of pay, wages, hours ... or other conditions of employment."' International Brotherhood of Teamsters, Local No. 310 v. NLRB, 587 F. 2d 1176, 1183, 98 LRRM 3186 (D.C. Cir. 1978) (quoting 29 U.S.C. s159(a)).
The rationale that the union's obligation to represent is necessarily limited to the arena circumscribed by the collective agreement for the reason that that arena defines the scope of the union's exclusive authority to act for its members is echoed in other Court of Appeals decisions including: Bass v. Boilermakers, Local 582, 105 LRRM 3258 (1980); Smith v. Local No. 25, Sheet Metal Workers, 87 LRRM 2211 (1974); Kolinske v. Lubbers, 113 LRRM 2966 (1983); International Brotherhood of Teamsters, Local No. 310 v. NLRB, 98 LRRM 3186 (1978); Price v. The Automobile Workers, 122 LRRM 3130 (CA. 2, 1986).
- These just-noted cases have arisen in the context of the courts' refusal to extend the duty to internal union affairs, subject to circumstances wherein the internal policies and practices have a substantial impact on members' rights relating to the negotiation and administration of a collective agreement: Retana v. Elevator Operators Union, 79 LRRM 2272 (1972). Less frequent are cases involving the attempted application of the duty of fair representation to obligate the union in respect to matters external to the union and the collective bargaining relationship: Hawkins v. Babcock & Wilcox Co., 105 LRRM 3438 (1980); Eason v. Frontier Airlines, 106 LRRM 2268 (CA. 10, 1981). The latter case, Eason v. Frontier Airlines, concerned an allegation that the union had breached its duty of fair representation by refusing to process a grievance, arising from a workplace injury, against the employer. The Colorado workers' compensation legislation precluded an action against the employer. For this reason, the court stated the grievance would accomplish nothing and commented that the:
…….plaintiff may not convert a claim for personal injury in the course of employment to a claim against the union for unfair representation. We agree with the trial court that it would be anomalous to expose the Union to a claim for that inquiry when Colorado law provides an exclusive remedy for the injury.
This conclusion assumes that the duty of fair representation is confined to the collective bargaining process and recognizes that the absence of a remedy beyond that provided by workers' compensation legislation renders the representation issue moot.
Thus, the American jurisprudence has recognized, generally by implication but on occasion expressly, that the duty of fair representation reaches only as far as the scope of the union's role as exclusive bargaining agent in the context of collective bargaining matters.
The Board's elaboration of the content of the duty of fair representation has drawn on the American jurisprudence. The decisions have focused on the quality of representation afforded the individual bargaining unit member but implicit in the leading decisions is the confinement of the duty to matters arising out of the collective agreement and/or the collective bargaining relationship with the employer, that is, the areas wherein the Labour Relations Act confers exclusive authority on the union: Donald G. Gebbie, [1973] OLRB Rep. Oct. 519; Walter Princesdomu, [1975] OLRB Rep. May 444; Myrna Wood, [1981] OLRB Rep. Feb. 137; Imperial Tobacco Products (Ontario) Limited, [1974] OLRB Rep. July 418.
The ambit of the section 68 duty rather than its content has been briefly addressed in the context of complaints concerned with internal union affairs. The Board has consistently refused to extend the section 68 duty into matters properly characterized as internal union affairs because representational rights with respect to an employer are not involved: Arthur Joseph Roberts, [1974] OLRB Rep. Mar. 169; Mario Moreira, [1980] OLRB Rep. July 1079; Frank Manoni, [1981] OLRB Rep. Dec. 1775; Sylvia Colalillo, [1982] OLRB Rep. July 1066; Angelo Moro, [1983] OLRB Rep. Aug. 1354; Michael Connolly, [1987] OLRB Rep. Feb. 193; Ronald Lewzoniuk, [1984] OLRB Rep. Jan. 48; except where the union's conduct pursuant to its usual practice has a direct impact on the right of an employee to grieve (R. C.A. Limited, Prescott, [1974] OLRB Rep. Jan. 60). It is useful to set out the following passage from Sylvia Colalillo, supra, which briefly reviews the Board's reasoning in
this area:
3.... The dispute was solely between the complainant and her trade union, and this is the primary problem which the complainant is faced with in these proceedings. The real issue between the complainant and the respondent is the complainant's eligibility to run for the Union position of steward, and the employer understandably has taken no position on that matter. The duty of fair representation in section 68 on the other hand, is concerned only with the representation by a trade union of an employee vis-a-vis his or her employer. See Ford Motor Company, [1973] OLRB Rep. Oct. 519; Myrna Wood, [1981] OLRB Rep. Feb. 137; Frank Manoni, [1981] OLRB Rep. Dec. 1775; Softley Cartage, Board File No. 1347-81-U, released May 26, 1982. It is only because the employee's normal rights to deal directly with the employer are circumscribed by collective-bargaining law that the duty of fair representation arises. As the Board stated in Frank Manoni, supra, at paragraph 11:
…..The arbitrary, discriminatory or bad faith conduct, directed at such employees and regulated by the section must be such as to produce actual, and not merely speculative prejudice to those employees at the hands of their employer.
As the Board also noted in Mario Moreira, [1980] OLRB Rep. July 1039:
…….this Board has no specific authority under the Act to undertake any sort of watchdog role over a union's internal processes under its constitution and by-laws.
And also in Arthur Joseph Roberts, [1984] OLRB Rep. March 169 the Board stated:
8.... the duty of fair representation owed by a trade union to an employee under section 60 [now section 68] of the Act does not contemplate controlling the manner in which a trade union conducts its affairs with its elected officials whether they be on the payroll or not. The case law indicates that the propriety of a trade union's behaviour vis a vis its members is governed by its constitution and by-laws and the procedural remedies provided therein. And recourse must be made by an aggrieved member to the governing rules provided under the constitution for relief. The safeguard provided by the controlling supervision of the courts are his assurance that these rules will be implemented fairly and impartially. (See White v. Kuzych (1951), 1951 CanLII 373 (UK JCPC), A.C. 585; Lee v. Showmans Guild (1952), All. E. R. 1175; Orchard v. Tunney (1957), 1957 CanLII 57 (SCC), S.C.R. 436; 8 D.L.R. (2d) 273; Jurak et al v. Cunningham (No. 1) (1959), 1959 CanLII 340 (BC SC), 20 D.L.R. (2d) 377; Jurak et al v. Cunningham (No. 2) (1959), 1959 CanLII 341 (BC SC), 20 D.L.R. (2d) 381; Gee v. Freeman et al (1958), 1958 CanLII 258 (BC SC), 26 W.W.R. 546).
The only aspect of the present complaint touching upon the employment relationship as such is the fact that the collective agreement does provide a kind of super-seniority for area stewards in the event of lay-off and the complainant points out that had she been permitted to run for election, she might today be still employed in the planf in the place of the incumbent area steward. This, however, is obviously not the basic reason why stewards are provided for, and the complainant does not put this consideration forward as a significant element of motivation either on her part, in seeking the nomination, or, more importantly, of the respondent in denying her that status. The matter of super-seniority was, the complainant concedes, not even raised with the respondent at any time prior to the filing of this complainant [sic]. It is, in other words, an issue wholly incidental to the real dispute which arose between the parties, being the matter of eligibility for internal trade union elections, and is not sufficient to clothe the Board with jurisdiction.
Beyond the cases dealing with internal union affairs, few decisions expressly consider the reach of the duty of fair representation. In Percy Woods, [19721 OLRB Rep. Apr. 353, the complainant alleged a breach of the section 68 duty, inter alia, in the union's refusal to pursue a further appeal of a WCB claim wherein the union had represented the complainant at the earlier stages in the process. The Board, assumed without deciding that the duty of fair representation extended to such instances and dismissed this aspect of the complaint on the basis that the union 's conduct was not arbitrary, discriminatory or in bad faith. In James Richard Hughes, [1986] OLRB Rep. Jan. 103, the Board commented that "it is not at all clear that the duty would extend to ESB [Employment Standard Branch] meetings" (at paragraph 26) but did not have to resolve that issue in dismissing the complaint. The decision in Betty Lavoie, supra, wherein the Board refused to apply the section 68 duty to the context of civil proceedings merits further comment. In the Board's view, the union had neither the right nor the obligation to represent or fund an employee in collateral civil proceedings related to the termination of the complainant's employment:
It was suggested in particular, that the union should provide the funds, and absorb the costs, if the grievor commences a civil action in the Courts against her former employer. There are several difficulties with this proposition. In the first place, as we have already noted, there is no evidence that this suggestion was ever made to the union, and it is a little difficult to find that the union has broken the law by refusing to volunteer. More fundamentally, a civil action involves the assertion of common law rights which are personal to the grievor, and entirely remote frotn the sphere of collective bargaining in which the union operates and to which section 60 was intended to apply. Within the collective bargaining realm, the trade union is, by statute, the employee's exclusive bargaining agent, and an employee is unable to bargain on his own behalf or even act unilaterally to assert his rights under a collective agreement. In this context, it is easy to understand why the Legislature would impose upon the union a statutory obligation to act fairly. But the trade union has no right to bring a civil action on behalf of an employee, and could not be a party to that proceeding. A civil action has nothing to do with the employee's collective bargaining rights either directly or indirectly. Since a common law Court (unlike an arbitrator) cannot order the employee reinstated, the grievor's connection with her employer, the bargaining unit, and her union has now been permanently severed. Her sole remedy is in terms of damages if she is able to prove, contrary to her employer's assertion, that her absenteeism did not justify her termination. It is one thing to assert that a union must act fairly within the context of collective bargaining; it is quite another to suggest that the union has an obligation in respect of the personal, civil or common law rights of a former bargaining unit employee. We do not think that section 60 was ever intended to extend that far or that the union could be breaching its obligation as bargaining agent by failing to fund a collateral civil action.
See also: Registered Psychiatric Nurses' Association of British Columbia, supra, wherein the B.C. Board, in part, held that the union was not required to represent bargaining unit employees at proceedings such as inquests which are outside the realm of the administration of collective agreements.
The Board regards the analysis in Betty Lavoie, supra, as applicable to other matters outside the reach of the union's statutory exclusivity as bargaining agent, such as the instant case involving representation at WCB and the WCAT proceedings. Delimiting the scope of the duty of fair representation to areas encompassed by the negotiation and administration of the collective agreement is grounded on the historical context in which the duty arose and the purpose and context of the duty as expressed in the Board's jurisprudence. The development of the American case law since Vaca v. Sipes, supra, indicates the thrust of the cases is to confine the duty of fair representation to the arena of collective bargaining and collective agreement administration. The Board case law, while not expressly imposing such a limitation, implicitly acknowledges those parameters as well.
The issue of the ambit of the union's obligation under section 68 is squarely raised in the instant case. The Board concludes, for the reasons already expressed, that the duty of fair representation must be commensurate with the reach of the union's statutory authority to represent the employees in the bargaining unit. Although, in a sense, the WCB intimately affects the relationship of employer and employee, the relevant statute, the Workers' Compensation Act, R.S.O. 1980, c. 539 (as am) effectively removes the adjustment of compensation for work-related injuries from the collective agreement arena by interposing an administrative agency between the worker and the employer. All claims for compensation are to be heard and determined by the WCB and, once compensation is awarded, it is paid out of an accident fund in accordance with a pre-determined scale. The trade union has no statutory role in the scheme. Hence, the union's representational duty in section 68 of the Labour Relations Act as exclusive bargaining agent is unrelated to the statutory scheme for workers' compensation and cannot apply to such claims: see Eason v. Frontier Airlines, supra, to the same effect. Accordingly, the Board finds that the union's decision not to represent the complainant at the WCAT proceeding falls outside the scope of the section 68 duty. Its decision in that regard may not scrutinized by the Board by virtue of the duty of fair representation.
The fact that the WCB process has an "employment" aspect is insufficient to clothe the Board with jurisdiction under section 68. This conclusion echoes the reasoning in Sylvia Colalillo, supra, at paragraph 4 of that decision (set out at paragraph 18 above). The B.C. Board's comment in Registered Psychiatric Nurses' Association, supra, at 459 is particularly apposite in this regard:
The next branch of Morgan's complaint is the Union's failure to represent him at the coroner's inquest. The Association has argued that they were under no further duty to Morgan at this point in time since he had resigned and was no longer a member of the bargaining unit. We cannot accept this proposition. Had Morgan been discharged and a grievance sustained on arbitration, reinstatement would have restored his bargaining unit status at the time of the inquest. Similarly, had the Association's representation of him before or throughout the Hall incident been in breach of Section 7(1), and a subsequent arbitration resulted in Morgan's reinstatement, the same result would have occurred. Notwithstanding this, however, we are of the opinion that the Association had no obligation under the Code to represent Morgan at the inquest.
The inquest was not a proceeding under the collective agreement; it was an outside proceeding. Where Section 7(1) speaks to "representation", it must be taken to mean representation in the negotiation or administration of collective agreements. Disciplinary matters and grievances come within the purview of the duty. Inquests do not. It is not enough that the outcome of the inquest might influence Morgan's employment rights. The same could be said of criminal charges, theft from an employer for example. While Section 7(1) would require fair representation of an employee discharged as a result of such a theft, it would not require the union to represent him in criminal court. A union may choose to provide representation to its member at outside proceedings such as inquests or criminal proceedings arising out of incidents during strikes, but their failure to do so is not a matter which may be a breach of the duty of fair representation.
Given the Board's finding that the instant complaint falls outside the ambit of section 68, the complaint cannot be said to disclose a prima facie case for breach of section 68: Angelo Moro, supra; Ken Johnson, [1980] OLRB Rep. Jan. 113; Ronald Lewzoniuk, supra. The objection of the respondent on this ground is upheld as well. Quite simply, the union had no obligation, pursuant to section 68, to represent the complainant at the WCB level or thereafter. The commencement of other legal proceedings seeking to challenge the WCB disclosure of the medical records on the grounds that such disclosure violated the complainant's Charter rights likewise falls outside the scope of the duty of fair representation. Indeed, to the extent those legal proceedings are to be initiated in the courts, the reasoning in Betty Lavoie, sup ra, is directly applicable: see, too, Ronald Lewzoniuk, supra. Consequently, this aspect of the complaint fails to disclose a prima facie for breach of section 68.
The Board's conclusion is not affected by the fact that the union initially represented the complainant before the WCB. That is, representation which arises outside the union's role as exclusive bargaining agent cannot generate a duty to represent pursuant to the Labour Relations Act. It may be that, in another forum, the union or its officers could be compelled to continue representing the complainant (or to have initially represented him at the WCB if they had declined to do so) based on the contractual relationship between a union and its members as expressed in its constitution or arising out of its conduct: see, for example, Orchard v. Tunney (1957), 1957 CanLII 57 (SCC), 8 D.L.R. (2d) 273; Astgen v. Smith, [1969] 1 O.R. 129; Foran v. Kottmeier, [1973] 3 O.R. 102 (CA.); and see paragraph 18 above. Whether or not an enforceable right may be established elsewhere, it is clear the union's conduct in representing the complainant at the WCB stage cannot subject a decision not to do so at the WCAT level to review by the Board by virtue of section 68 of the Labour Relations Act as such an obligation would not be coextensive with the union's exclusive bargaining authority conferred by the Labour Relations Act and to which section 68 scrutiny must be limited. In other words, without statutory or inherent jurisdiction to review the contractual relationship between a union and its members, as expressed in the union's constitution and bylaws, the Board cannot enforce that relationship. Nor can the Board rely on a doctrine akin to estoppel to require the union to continue its representation as a matter of equity because of the union's conduct in initially representing the complainant, when the Board lacks the jurisdiction to supervise the relationship between the union and its members beyond the confines of the collective agreement, its negotiation and administration: see Registered Psychiatric Nurses' Association, supra, in the passage cited in paragraph 22 above.
In the Board's view, the reasoning in Luis Lopez, supra, is applicable to the instant case. Proceedings in the criminal courts, like proceedings before the WCB or the WCAT, fall outside the ambit of the duty of fair representation imposed in section 68 since that duty must be commensurate with the reach of the union's statutory authority to represent the employees in the bargaining unit. The complainant's trial and appeal are not matters between him and the company but between him and the State, governed by statutes other than the Labour Relations Act and to be adjudicated by the judiciary. Accordingly, the union's representational duty in section 68 of the Labour Relations Act as exclusive bargaining agent does not extend to the various statutes creating criminal offences. The fact that criminal charges may be grounded in the conduct of an employee in the bargaining unit at his or her place of employment does not alter the scope of the duty of fair representation. The section 68 duty imposed on the union is solely to fairly represent the employee vis a vis the employer in connection with the alleged misconduct where that alleged misconduct is also the subject of criminal charges.
For the above reasons, the Board exercises its discretion to decline to hear the complaint insofar as it alleges a section 68 violation against the union in its failure to represent the complainant in connection with the complainant's criminal proceedings, as not disclosing a prima facie case.
The complainant's representative indicated that he did not directly challenge the reasoning in Luis Lopez, supra. The thrust of his argument was that, while the union may not have a section 68 duty to represent the complainant in connection with the criminal proceedings, the fact that they did not so represent him or otherwise demonstrate their solidarity for, or enthusiastic support of, the complainant was relevant to the allegation of bad faith and uncaring attitude in their handling of the complainant's grievance. It appears to the Board that the complainant's representative is seeking to introduce evidence of the union's conduct in connection with the complainant's involvement in the criminal process in support of the alleged section 68 violation by the union in its handling of the complainant's grievance. As noted infra, the Board is not prepared to dismiss the complaint at this stage with respect to the allegations regarding the processing of the grievance prior to arbitration and the union's agreement to admit the transcript of the criminal trial into evidence at the arbitration. Whether the union's conduct with respect to the complainant and the criminal process is arguably relevant to that portion of the complaint which the Board is not prepared to dismiss in the context of the preliminary motion is premature to decide at this juncture.
The remaining pleadings concern the processing of the grievance prior to arbitration and the union's agreement to admit the transcript of the criminal trial into evidence at arbitration. The pleadings (including the July letter) assert that the manner in which the grievance was handled and the union's agreement that the transcripts be admitted was arbitrary or in bad faith. There is nothing in the pleadings which asserts that the complainant was the subject of discrimination within the meaning of section 68 in his representation by the union throughout. As noted earlier, the appropriate standard in the context of this preliminary motion is whether the complainant has made out an arguable case on the basis that the pleadings and allegations are assumed true and provable. It may well be that the complainant cannot substantiate his allegations but the Board is not persuaded that it should exercise its discretion to dismiss the allegations, as pleaded, concerning the handling of the grievance prior to arbitration and the union's agreement to admit the transcript into evidence at this stage. The Board is not expressly finding that a prima facie case has been made out; it is simply that the Board declines to dismiss the complaint in its entirety as requested in the preliminary motion. The Board notes that its decision solely relies upon the pleadings as the arbitration award was not before the Board nor was any documentary material filed on consent.
With respect to the relief sought, insofar as the relief seeks to name the company as respondent and asserts collusion to violate section 68, that request cannot stand given the Board's earlier conclusions about the scope of section 68. Whether the Board has jurisdiction to direct the other remedies sought and/or whether such relief would be appropriate should the complaint (as it remains) be upheld on the merits is premature to determine at this point.
For the foregoing reasons, the Board dismisses the complaint for failure to disclose a prima facie case except with respect to the allegations, as pleaded, concerning the union's handling of the complainant's grievance prior to arbitration and the union's agreement to admit the transcript of the complainant's trial as evidence at the arbitration hearing. The hearing shall continue on January 30 and February 6, 1991 to deal with company counsel's remaining preliminary motion that the complaint be dismissed because of the delay in filing that complaint. Given the Board's decision herein, it is only the complaint as it remains which is the context for the preliminary motion dealing with delay.