[1991] OLRB Rep. January 23
3201-88-U Sylvia Gronka, Complainant v. Hotel Employees and Restaurant Employees' Union, Local 75, Respondent v. Westin Hotel, Intervener
BEFORE: Judith McCormack, Vice-Chair.
APPEARANCES: Elliott Posen, David Zimmer and T. Gronka at various times for the complainant; Ross Wells and Stan Urbain for the respondent; David Cote for the intervener.
DECISION OF THE BOARD; January 22, 1991
This is a complaint under section 68 of the Labour Relations Act in which the complainant, Sylvia Gronka, alleges that the respondent conducted itself towards her in a manner that was arbitrary, discriminatory, or motivated by bad faith.
The complainant is a banquet waitress who was employed by the intervener company from September 12th, 1976 until the time of these events. On February 21st of 1987, she removed a piece of carpet from the company's premises, and was subsequently discharged for theft. The respondent union filed a grievance on her behalf on March 12, 1987 and a grievance meeting was held a week later. At that meeting, Donna Mlodinski, the banquet shop steward for the respondent, Stan Urbain, then assistant chief shop steward, and chief shop steward Man Kee Lui, together with the complainant, attended on her behalf. Mrs. Gronka agreed that the union represented her well at that meeting. Nonetheless, the company rejected the grievance, and on March 24th, the members of the union's grievance committee unanimously recommended to the executive board that Mrs. Gronka's grievance be referred to arbitration. As a result, George Pineo, then the union's secretary/business manager, initiated arbitration proceedings under section 45 of the Labour Relations Act on March 25th, 1987.
Arbitrator Belinda Kirkwood was appointed by the Minister of Labour to hear the case and a hearing date of April 15th was set. Shortly before this date, Ms. Mlodinski, Mr. Urbain, and Mrs. Gronka met with union counsel Alick Ryder to prepare Mrs. Gronka's case for arbitration. On April 15th, Cledwin Lange, the union's business representative, Mr. Pineo and Mr. Urbain attended the hearing with Mrs. Gronka and Mr. Ryder.
At the hearing, the company's counsel, Cheryl Katz, pursued an objection to the jurisdiction of the arbitrator she had raised earlier. The essence of that objection was that the grievance had been filed one day after the expiry of the period under the collective agreement for referring a grievance to arbitration. Section 45(2) of the Labour Relations Act requires that a request under section 45 be made within the time stipulated in the collective agreement for referring a grievance to arbitration. The collective agreement which covers the complainant's bargaining unit specifies that a grievance must be referred to arbitration within five days of the third step reply. The union's position was that the past practice between itself and the company had been to interpret this provision as referring to working days rather than calendar days. As a result, Mr. Pineo's reference under section 45 cited March 26th as the deadline for referring the grievance to arbitration under the collective agreement, this being five working days after the company's reply dated March 19th. However, the company's position was that the five days set out in the collective agreement referred to calendar days, and that the request under section 45 should have been made by March 24, 1987. As a result, the company argued, the reference under section 45 dated March 25th was one date late, and the arbitrator had no jurisdiction to hear the case.
Mr. Ryder indicated to Ms. Kirkwood that the union intended to call evidence to the effect that the past practice between the employer and the union had been to treat the days listed in the collective agreement as working days. However, she ruled that there was no basis for receiving such extrinsic evidence, and from her remarks Mr. Ryder and the union officials concluded that she was going to rule against the union with respect to the company's objection as well. As a result, the union officials, Mr. Ryder and Mrs. Gronka discussed the matter, and decided to withdraw the reference under section 45 and refer the grievance to a three-person board of arbitration. This decision was based on arbitral jurisprudence to the effect that section 44(6) of the Labour Relations Act, which allows an arbitrator to extend the time limits in a collective agreement in certain circumstances, does not apply to section 45 referrals. There was no question that an arbitrator would have such discretion if the matter had been sent to a three-person board.
Mr. Ryder testified that he believed he then indicated to Ms. Kirkwood that the union was withdrawing the reference under section 45. There was some discussion between the company's counsel, Mr. Ryder and the arbitrator with respect to whether she would be issuing a decision subsequently, with Ms. Katz requesting that the grievance be dismissed and Mr. Ryder taking the position that no decision should be issued since the referral had been withdrawn. After the hearing concluded, Mr. Urbain spoke again to Mrs. Gronka and indicated that the union was now going to reapply for an arbitration by a three-person board. He told her not to get discouraged, and that although the union had suffered a setback, "it wasn't over yet".
Subsequently, counsel for the company wrote to Ms. Kirkwood asking for a decision dismissing the grievance. On April 20th, Ms. Kirkwood replied as follows:
As the Union has withdrawn the grievance in the abovementioned matter, I do not have any jurisdiction to issue an Award.
My Statement of Account will follow under separate cover.
She also wrote to Jean Read, the Director of the Office of Arbitration in similar terms:
I wish to advise you that the Union withdrew the grievance in the above-mentioned matter on April 15, 1987.
Then on April 21sf, Mr. Pineo wrote the following letter to the Office of Arbitration:
Local 75, Hotel Employees Restaurant Employees Union wishes to withdraw from Arbitration the aforementioned application that was scheduled this date.
When Elizabeth Mangaoang received this letter in her capacity then as assistant to the supervisor for section 45 cases in the Office of Arbitration, she pulled out the file and noticed that it had already been closed because of Ms. Kirkwood's letter. In addition, the arbitration had been set up for April 15th which had already passed. As a result, Ms. Mangaoang called Mr. Pineo to clarify the situation. Ms. Mangaoang testified that she asked Mr. Pineo what he had meant by his letter, and that he replied that it was for her record purposes so that she could close her file, and that the grievance had been withdrawn. She made a note to this effect on the bottom of Mr. Pineo's letter of April 21st.
By a letter also dated April 21st, Mr. Pineo appointed Mike Pratt as the union's nominee to a three-person board of arbitration. The company then nominated Michael Gordon as its nominee on a "without prejudice" basis. The reason for this reservation was that the company objected to the constitution of a three-person board on the grounds that the matter had been disposed of by Ms. Kirkwood. Mr. Ryder and Mr. Pratt subsequently discussed possible arbitrators to chair the three-person arbitration board, and there was also some discussion between Mr. Ryder and Mr. Gordon in this regard. This culminated in Mr. Pratt writing a letter to the company suggesting the names of five arbitrators. On May 27th, counsel for the company wrote back renewing her objection and without commenting on the union's suggestions for a chair.
Several weeks later, Mr. Ryder wrote to the Office of Arbitration indicating that the nominees could not agree and requesting that the Minister of Labour appoint a chair. Ten days later, the company wrote to Ms. Read requesting that the Minister refrain from appointing a chair and reciting the company's objection. On August 12th, Mr. Ryder wrote to Ms. Read responding to the company's letter, and shortly thereafter, Ms. Read wrote to Ms. Katz to the effect that the Minister was prepared to appoint an arbitrator, and any concerns about arbitrability could be raised before the arbitration board. This was followed by a further objection from the company, and a suggestion by it that the Kirkwood hearing be reconvened. On August 24th, Ms. Read wrote to the parties indicating that the Minister of Labour had appointed Donald Franks to chair the three-person board of arbitration.
Some time in August, Thomas Gronka, Mrs. Gronka's adult son, spoke to Mr. Urbain with respect to why it was taking so long for Mrs. Gronka's grievance to be heard. Mr. Urbain told him that although a three-person board would have greater leeway or authority to deal with the timeliness problem, it did involve a considerable amount of delay. He said that it often took a long time to set up such a board, especially if the two nominees could not agree on a chair, and he explained the timeliness problem to Mr. Gronka. In August of 1987, Mr. and Mrs. Gronka also visited the Ministry of Labour to inquire why nothing had been done with respect to Mrs. Gronka's grievance. At that time they spoke briefly to Ministry of Labour staff with inconsequential results.
From July of 1987 to January of 1988 Mr. Urbain received many telephone calls from both Mrs. Gronka and Mr. Gronka. During these calls Mr. Urbain explained why the case was taking so long, and discussed the merits of Mrs. Gronka's grievance. He also raised with both Mr. and Mrs. Gronka the fact that Mrs. Gronka had a duty to mitigate her damages. Mr. Urbain was concerned that Mrs. Gronka was not making any attempt to find another job in the interim.
In November of 1987, Mrs. Gronka received a letter from the company making an offer to settle her grievance on the basis that it would pay her three months salary on the condition that she would resign from employment. She and her son visited Mr. Ryder's office to discuss this letter and inquire further about the case. Mr. Ryder called Mr. Pineo while Mr. and Mrs. Gronka were in his office to tell him that they had come in to see him. Mr. Pineo was concerned about a grievor contacting the union's lawyer directly, because the consultation would cost the union money and Mr. Pineo could have dealt with their inquiries himself. Nevertheless, he agreed that Mr. Ryder should talk to Mr. and Mrs. Gronka. Mr. Ryder then explained in detail what had been happening since April, and while Mr. and Mrs. Gronka were in his office he called Mr. Pratt to ask him to get a date for the hearing as soon as possible. He also drew a diagram of the difference between the section 45 route and the section 44 route for arbitration, and explained the delay involved in constituting the three-person board. He further advised Mrs. Gronka that in his view, they could make a better deal than that contained in the company's letter.
On November 17th Ms. Katz wrote to Mr. Ryder confirming an arbitration date of January 6th, and indicating that she would be pursuing the company's objection at that time. Mr. Ryder then notified Mrs. Gronka of the hearing date. Mr. Gronka testified that he and the complainant subsequently consulted their own lawyer, Elliott Posen, in December. Some weeks later, in January, Mrs. Gronka made a request to the Office of Arbitration under the provisions of the Freedom of Information and Protection of Individual Privacy Act. Among other things, she received copies of Mr. Pineo's letter of April 21st and Ms. Kirkwood's letter of April 20th to Ms. Read as a result of that request.
The hearing before the Franks board commenced on January 6th, 1988. The company raised its objection which at this point had two aspects: first, that the union had previously withdrawn the grievance itself and not just the referral to arbitration, and secondly, that in the alternative Ms. Kirkwood had disposed of the matter. There was some discussion of the preliminary objection, and then negotiations were initiated by the two nominees on the board. At that point, Mr. Ryder, who up till then had been optimistic about the Franks board's willingness to hear the grievance, began to be concerned at how seriously the company's objection was being taken.
The company made a proposal to the effect that it would pay Mrs. Gronka $2,000.00 and reinstate her to employment to settle the grievance. Its counsel made it clear that the company was willing to improve this offer, but only if there was some hope that the complainant would accept it. Mr. Urbain then discussed with Mrs. Gronka and Mr. Gronka in great detail two risks that he perceived in this situation. The first one was that the union might lose on the jurisdictional issue. The second one was that even if the arbitration board heard the merits of Mrs. Gronka's grievance, it might still uphold the discharge. He made it clear that both were very serious risks and that Mrs. Gronka might come out with nothing. Mr. Gronka indicated that there was still not enough money coming from the company to persuade them to settle, and Mrs. Gronka said that she would accept $12,000 to $14,000 together with reinstatement to resolve her grievance.
The Franks board then decided that it would have to ascertain what had occurred on April 15th to determine whether the grievance or the referral to arbitration had been withdrawn. However, rather than hearing evidence in this regard, the board encouraged both counsel to consult with Ms. Kirkwood with respect to her notes of what had occurred at the hearing of April 15th. Another hearing date of March 4th was set. Subsequently, Mr. Ryder also wrote to the Office of Arbitration for any information that might be contained in its files in this regard.
In the meantime, Jean-Guy Belanger, president and administrator of the union, and Mr. Urbain met with the company's general manager. The latter proposed to settle the matter by paying Mrs. Gronka $8,000 and reinstating her with full seniority. Mr. Urbain called Mr. Ryder on February 26th to advise him accordingly. Mr. Ryder called Stewart Saxe, who works with Ms. Katz, and confirmed both the offer and that there would be no problem adjourning the March 4th date to consider the offer. He then wrote a letter to Mr. Belanger recommending the settlement in the following terms:
You have asked me for an opinion as to the acceptability of management's recent offer of settlement given the chances of success in the grievor's arbitration.
Under the settlement, the grievor would be re-instated immediately with full seniority and be given compensation of $8,000 less normal deductions.
In my view, the acceptability of the offer should be weighed against the following factors.
There is a reasonable chance that the arbitration board chaired by Mr. Franks will refuse to hear the grievance. During the hearing before him on January 6, 1988, he refused to proceed without first obtaining confirmation as to the status of the section 45 application. In this respect, he urged the parties to meet with the section 45 arbitrator, Ms. Kirkwood, to review her notes to determine if the grievance or the reference to arbitration had been withdrawn.
Subsequently, I met Ms. Kirkwood at the Grievance Settlement Board on another case and advised her that Ms. Katz and myself required a meeting to review her notes. She was willing to hold the meeting but advised that she recollected her notes recorded a withdrawal of the grievance.
In addition, I obtained the record of the section 45 application from the Office Arbitration which includes Ms. Kirkwood's letter advising that the grievance was withdrawn and Mr. Pineo's letter seeking to withdraw the matter from arbitration.
The result, I think, is that the file from the office of arbitration is inconclusive and Mr. Franks will therefore be inclined to rely on the Kirkwood letter to the parties which, as I say, states that the grievance has been withdrawn. I am advised by the union nominee to the board that Mr. Franks is reluctant to go behind arbitrator Kirkwood's letter and, in effect, overrule her. In the circumstances, we must accept the very real possibility that arbitrator Franks will decline to hear the grievance.
The settlement provides a degree of vindication, plus some compensation. More important for the long term, it returns the grievor to work.
When the benefits of the settlement are measured against the distinct possibility that the Franks arbitration board will not hear her case, it is my recommendation that the settlement should be accepted.
Mr. Ryder also spoke directly to Mr. and Mrs. Gronka and advised them to accept the offer for two reasons: firstly, the Franks board might find it had no jurisdiction to hear the grievance and secondly, he was concerned about Mrs. Gronka's failure to mitigate her damages. As a result of the latter problem, and the likelihood of an arbitrator substituting some form of discipline for the discharge even if the discharge was not upheld, Mr. Ryder was of the view that the $8,000 represented all or more than the complainant could hope to achieve at arbitration. Elliott Posen, Mrs. Gronka's counsel, then called Mr. Ryder and indicated thai: he was acting for Mrs. Gronka. Mr. Ryder described his reasons to Mr. Posen for recommending the settlement, and told him that there was no rush in terms of making a decision as the company would agree to adjourn the March 4th date.
Mr. Urbain also strongly recommended to Mrs. Gronka that she accept the offer. In his opinion, reinstatement was most critical for her and although she wanted more money from the company, Mr. Urbain stressed the importance of her future income. He indicated that it would be better if she was back to work as soon as possible. Over the telephone he also talked to Mr. Gronka, repeating the same things to him and reiterating the two risks that he had described on January 6th. Those were that the union might lose on the jurisdiction issue before the Franks board and that even if it was successful in that regard, it might lose on the merits. He again indicated that both were very serious risks and that Mrs. Gronka might come out with nothing. Mr. Urbain also asked Donna Mlodinski to call Mrs. Gronka to urge her to take the settlement, which according to Mrs. Gronka, Ms. Mlodinski did.
Mrs. Gronka called Mr. Belanger and told him that she wanted the offer set out in writing. He therefore sent her a telegram describing the company's offer. She agreed in cross-examination that she discussed the offer with Mr. Posen. Mr. Gronka testified that Mr. Posen told him and his mother that they should try and get closer to what Mrs. Gronka actually lost in wages, and that it was on the basis of that advice that they decided not to accept the offer.
On March 2nd, Mr. Belanger told Mr. Ryder to go ahead as Mrs. Gronka was so opposed to accepting the offer, notwithstanding the union's recommendations. Mr. Ryder then told Mr. and Mrs. Gronka that he would be going ahead because they insisted, but that he still recommended against it. Mr. Ryder also indicated this to Mr. Posen and asked him in Mrs. Gronka's best interests to recommend that she take the offer.
At the hearing on March 4th, the Franks board decided that it would have to hear evidence after all on the issue of whether it was the grievance or the referral to arbitration which had been withdrawn on April 15th. At that point, Ms. Katz realized that she herself would have to be a witness and would need others as well. She asked Mr. Ryder at the break if he would object to a request for an adjournment. Mr. Ryder did not object because in his view, an adjournment would have been granted anyway and he did not want to raise the ire of the arbitration board by making fruitless objections. In addition, he felt that the adjournment itself would not delay matters because the case would not have been completed on March 4th in any event and it did not affect the date on which the hearing would reconvene. April 27th and May 11th were then scheduled for the continuation of the hearing.
On April 26th, 1988, however, the company brought an application for judicial review to prevent the Franks board from hearing the matter on the basis that it had no jurisdiction. As a result, the union and the company agreed to adjourn the hearings scheduled for April 27th and May 11th until the application had been heard. (Mr. Posen, who represented Mrs. Gronka at an early stage in the hearing before me, agreed that the decision to cancel those hearing dates because of the judicial review application was not at issue in the complaint.) Mr. Urbain called Mrs. Gronka to tell her what had happened and to inform her of the cancelled hearing dates. Regardless of this, Mr. and Mrs. Gronka attended at the place set for the hearing on April 27th, and then went to speak to Mr. Belanger to express their concerns that the April 27th hearing date had been adjourned. They indicated that they wished to make an offer back to the hotel and as a result, Mr. Belanger sent a letter on April 29th indicating that the union would settle the grievance for the sum of $19,500.00 together with Mrs. Gronka's reinstatement.
On June 27th, 1988, the company's application for judicial review was heard by the Divisional Court. The parties agreed that although a decision was made on June 28th, by mistake it was never released to the parties. Between August of 1988 and December of 1988 Mr. and Mrs. Gronka called Mr. Urbain and Mr. Belanger many times. A number of the calls to Mr. Belanger were not returned. On one occasion Mr. Belanger said that the union had done all it could for them. Mr. Urbain told them that they were simply waiting for the court's decision.
As time went by, Mr. Urbain, Mr. Lange and Mr. Man Kee Lui all made inquiries of Mr. Pineo and Mr. Ryder with respect to why the Divisional Court decision was taking so long. Mr. Ryder told Mr. Pineo that the decision had not yet been released and that he didn't understand it. (The application had been heard on an expedited basis.) In November or December of 1988, Mr. Ryder and Ross Wells, one of his colleagues and the lawyer who had been counsel on the judicial review application, discussed what they should do. They considered making a complaint to the Chief Justice but were concerned that that might have the effect of alienating the justice who had heard the application whom they thought had not yet reached a decision. Eventually Mr. Wells decided that a "mealymouthed" letter referring to another case would be a polite way of bringing it to the presiding justice's attention. However, such a letter was never sent because by December of 1988, the Gronkas had consulted Mr. Posen again and had obtained the decision from the Divisional Court office. They then notified the union accordingly.
The Divisional Court had decided that once the Minister of Labour appointed Ms. Kirkwood on the section 45 application, she had exclusive jurisdiction in the matter. The Court determined that Ms. Kirkwood's letter of April 21st to Ms. Katz indicated that she had found as a fact that the grievance had been withdrawn. Consequently, the question of whether the grievance or the referral to arbitration had been withdrawn was not open for determination by the Franks board, and the Court issued an order prohibiting the Franks board from hearing and determining the grievance.
On December 28th, 1988 a motion for leave to appeal the Divisional Court's decision was filed. It was not pursued as the union obtained a legal opinion that it was not worth pursuing. On March 30, 1989, this complaint was filed.
Section 68 provides as follows:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
In Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067 the Board described its approach to section 68 in the following manner:
Section 68 requires that each trade union decision be grounded on a consideration of relevant matters, free from the influence of irrelevant considerations. The requirement that a trade union not act in a manner which is in bad faith protects the legitimate expectation that an individual employee's bargaining agent will act honestly and free of any personal animosity toward him. The requirement that a trade union not act in a discriminatory manner protects against the making of distinctions between employees and groups of employees on bases which have no relevance to legitimate collective bargaining concerns. ~Bad faith" and "discriminatory", therefore, test for the presence, in the process or results of union decision-making, of factors which should not be present. ~~Arbitrary", on the other hand, describes the absence in decision-making of those things which should be present. A decision will be arbitrary if it is not the result of a process of reasoning applied to relevant considerations. The duty not to act arbitrarily requires a trade union to turn its mind to the matter at hand.
The meaning of "arbitrary" in this provision was discussed at some length in Walter Prinesdomu, [1975] OLRB Rep. May 444:
In using the work [sic] arbitrary both the United States Supreme Court and the Legislature of this Province must have envisaged the duty constituting more than the simple castigation of subjective ill-will in that any other interpretation would render the use of this word superfluous. Thus, a well known rule of both statutory and contractual construction militates against the respondent's particular submissions in this regard. But where does this path lead? Some insight is gained from the Vaca case wherein Mr. Justice White juxtaposed the word arbitrary with the word "perfunctory" and observed that a trade union, "in a non arbitrary manner [must] make decisions as to the merits of particular grievances". It could be said that this description of the duty requires the exclusive bargaining agent to put "its mind" to the merits of a grievance and attempt to engage in a process of rational decision-making that cannot be branded as implausible or capricious.
- This approach gives the word arbitrary some independent meaning beyond subjective ill-will, but, at the same time, it lacks any precise parameters and thus is extremely difficult to apply. Moreover, attempts at a more precise adumbration have to reconcile the apparent consensus that it is necessary to distinguish arbitrariness (whatever it means) from mere errors in judgment, mistakes, negligence and unbecoming laxness.
On the other hand we do not believe, at least at this time, that all mistakes and careless conduct by trade union officials fall outside the scope of section 60. It may be difficult to elaborate the precise meaning of arbitrary representation in advance but, as noted above, the very use of the word suggests that some regulation of the quality of decision-making was intended. Accordingly at least flagrant errors in processing grievances-errors consistent with a "non caring" attitude must be inconsistent with the duty of fair representation. An approach to a grievance may be wrong or a provision inadvertently overlooked and section 60 has no application. The duty is not designed to remedy these kinds of errors. But when the importance of the grievance is taken into account and the experience and identity of the decision-maker ascertained the Board may decide that a course of conduct is so implausible, so summary or so reckless to be unworthy of protection. Such circumstances cannot and should not be distinguished from a blind refusal to consider the complaint. However, each case must be decided on its own peculiar facts and it is clear that the duty is not going to be a fertile field for the individual adversely affected by less flagrant conduct.
- In a similar view, the Board said in I. T.E. Industries, [1980] OLRB Rep. July 1001:
It is clear that in order to establish a breach of section [68], a complainant must do more than demonstrate an honest mistake or even negligence. The union must have committed a "flagrant error" consistent with a "non caring attitude", or have acted in a manner that is "implausible" or "so reckless as to be unworthy of protection". In other words, the trade union's conduct must be so unreasonable, capricious, or grossly negligent, that the Board can conclude that the union simply did not give sufficient consideration to the individual employee's concerns. Honest mistakes or innocent misunderstandings are clearly beyond these parameters and do not attract liability.
- With this in mind, I now turn to the facts of this case. The first event which was alleged to be a breach of section 68 was the late referral to arbitration of the complainant's grievance. The relevant collective agreement contains the following provisions:
14.05 STEP NO. 3
(a) A meeting shall take place between the Union representatives who have been involved in the prior steps and the Manager or a senior member of management who has not previously been involved in the case. At this meeting, the business representative will be present along with any management people who have been involved to give evidence as to the circumstances of the grievance. If the grievance is not then settled to the satisfaction of both parties within a period of forty-eight (48) hours, or within any longer period as may be mutually arranged at the time, at the request of either party to this Agreement, the grievance may be referred to arbitration.
(b) If arbitration is to be invoked, the request for arbitration must be made in writing within five (5) days after the grievance has been dealt with in Step No. 3.
17.02 A claim by a permanent employee that he/she has been unjustly discharged from his/her employment shall be treated as a grievance if a written statement of such grievance is lodged with the Manager of the Hotel within five (5) days after the Employee ceases to work for the Employer. All preliminary steps of the grievance procedure prior to Step No. 3 will be omitted in such cases.
It is not necessary for me to determine the proper interpretation of Article 14.05(b), nor do I intend to do so. My task is to consider whether the union's understanding of the collective agreement and its conduct based on that understanding was so unfounded as to be arbitrary or to suggest the presence of bad faith or discrimination. In this regard, I am satisfied that it was not.
Article 14.05(b) on its face refers to "days" rather than "working days". In addition, there are references to "working days" elsewhere in the grievance and arbitration provisions. Both of these facts suggest that "days" in Article 14.05(b) should be interpreted as calendar days rather than working days. On the other hand, counsel for the company provided me with references to a number of arbitration cases in which the word "days" was discussed, and in some cases interpreted as "working days". In other words, the conclusion that "days" means calendar days is not necessarily self-evident and depends on the circumstances. In this case, Mr. Urbain testified that there had been a past practice between the union and the company of treating the five day period under Article 14.05(b) as referring to working days.
Such oral understandings are common in labour relations and as the Board noted in John Fenwick, (Board File No. 0570-89-U, October 20, 1989, unreported), they may not necessarily reflect the language of the collective agreement:
It is not at all clear that [the agreement] is in conflict with the collective agreement; indeed, as Mr. Fenwick acknowledged, it is really a matter of interpretation. In any event, we are reluctant to circumscribe the ability of the company and the union to enter into a practical accommodation of their interests in the course of administering the collective agreement, even if those accommodations may appear to stray considerably from its terms. It is axiomatic that parties cannot anticipate many of the contingencies which may arise during the life of a collective agreement, and the ability to fine-tune its application is a critical ingredient in the success of a collective bargaining regime. Even if the parties are virtually amending their collective agreement, we note that section 52(5) of the Labour Relations Act specifically allows parties to revise the terms of their contract by mutual consent.
Of course, there may be some risk to a party relying upon an oral understanding or practice of some kind, as this case amply illustrates. On the other hand, I am not prepared to say that relying upon past practice in these circumstances was a contravention of section 68. Indeed, if the parties to a collective agreement are not at liberty both to reach understandings with respect to its provisions and to subsequently rely on those understandings, the administration of collective agreements would be virtually impossible.
The events of April 15th do not suggest a different conclusion to me. It was unclear from the evidence whether the company's timeliness objection was based on the contention that there was no past practice, or that that practice should not be used to interpret the collective agreement, or that the past practice was not available in interpreting the grievance provisions of the collective agreement under section 45. That section provides in part as follows:
45.-(1) Notwithstanding the arbitration provision in a collective agreement or deemed to be included in a collective agreement under section 44, a party to a collective agreement may request the Minister to refer to a single arbitrator, to be appointed by the Minister, any difference between the parties to the collective agreement arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.
(2) Subject to subsection (3), a request under subsection (1) may be made by a party to the collective agreement in writing after the grievance procedure under the agreement has been exhausted or after thirty days have elapsed from the time at which the grievance was first brought to the attention of the other party, whichever first occurs, but no such request shall be made beyond the time, if any, stipulated in or permitted under the agreement for referring the grievance to arbitration.
Arbitral jurisprudence restricts the use of extrinsic evidence, particularly when the language of a provision is clear on its face, and it appears that this is the basis on which Ms. Kirkwood declined to hear the union's past practice evidence. Neither that decision nor Mr. Ryder's perception that she intended to uphold the company's timeliness objection suggest that the union's conduct was so grossly negligent or capricious as to be arbitrary or to demonstrate the presence of some animosity or ill-will towards the complainant. As the excerpts from Board's jurisprudence set out earlier make clear, arbitrariness must be distinguished from "mere errors in the judgment, mistakes, negligence and unbecoming laxness". In other words, the union may indeed have been incorrect in its understanding of the collective agreement without violating section 68.
Neither do I think it can be said that the union's initial choice of the section 45 route was unreasonable. Section 45 provides a hearing before a single arbitrator which is usually less expensive and much speedier than a hearing before a three-person board of arbitration. Indeed, the contrast between the time it took in this case for the Kirkwood hearing to begin and for the Franks hearing to commence is quite typical. In a discharge case where speed is important because the grievor is frequently without work or income and the employer may be accumulating a liability for wages, the section 45 route was a viable choice.
It is true, of course, that there is jurisprudence to the effect that section 44(6) cannot be used to extend the time limits under a collective agreement for referring a grievance to arbitration (see Re Hotel Employees and Restaurant Employees' Union and Royal York Hotel (1983) 1983 CanLII 1831 (ON HCJ), 42 O.R. (2d) 509.) However, at the time the union filed the section 45 request, it was evident from the terms of the request itself and the other evidence before me that it was working on the assumption the referral was timely. In addition, Mr. Ryder was apparently not consulted at that early stage. The Board has said in Ford Motor Company Limited, [1973] OLRB Rep. Oct. 519 that the standard that it applies under section 68 takes into account that union affairs are conducted for the most part by lay people:
In deciding whether a union has violated the Act the standards to be applied are important. we recognize that union affairs are conducted for the most part by laymen. In some situations there are experienced full time officials of a trade union who conduct the union affairs; in other situations, the union affairs are conducted by employees in their spare time, while in yet other situations employees may be given a limited amount of paid time by their employers to engage in trade union matters. This Board does not decide cases on the basis of whether a mistake may have been made or whether there was negligence, nor is the standard based on what this Board might have done in a particular situation after having the leisure and time to reflect upon the merits. Rather, the standard must consider the persons who are performing the collective bargaining functions, the norms of the industrial community and the measures and solutions that have gained acceptance within that community; see Fisher v. Pemberton et al. 1969 CanLII 726 (BC SC), 8 D.L.R. (3d) 521 at p. 546.
It is not readily apparent that a layperson, even an experienced union official, would be aware of the interplay between section 45 and section 44(6), particularly in light of the fact that there appears to have been some disagreement even amongst adjudicators (see, for example, City of Brantford (1983) 1983 CanLII 4904 (ON LA), 9 LAC (3d) 289). As a result, the choice of section 45 in these circumstances cannot be considered a violation of the Act.
As an aside however, section 44(6) may have something useful to say about the norms of the industrial community, which is one reference point for the union's conduct. It provides as follows:
44.-(6) Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, notwithstanding the expiration of such time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension.
It is apparent that the Legislature contemplated the possibility that parties to a collective agreement might not meet the deadlines contained in it from time to time and that under certain circumstances, relief from those time limits should be granted. Even if the union had simply filed the referral one day late without any extenuating circumstances, the existence of such a provision, (whether or not it applied under section 45) may reflect a recognition that such mistakes are a relatively common fact of life in labour relations. This is particularly so in the case of a discharge grievance which was filed in a timely manner but referred to arbitration one day late, an example very likely to attract the application of section 44(6) in other circumstances.
As a result, I conclude that the late referral under section 45 was not a breach of section 68. This leads me to the union's conduct at the April 15th hearing. By this point, the union was aware of the company's timeliness objection and its officials had to make certain strategic decisions. Their legal advisor was of the view that the arbitrator was poised to rule against the union. There is no doubt that the decision to withdraw the arbitration referral under section 45 carried with it some risks, but the alternative in the union's estimation was the almost certain defeat of the complainant's grievance. That estimation was based on the informed assessment of an experienced labour lawyer, and with the knowledge that section 44(6) was at least theoretically available to a three-person arbitration board.
There is no doubt that the union intended to withdraw only the arbitration referral, and not the grievance itself. Indeed, on the same day that Mr. Pineo wrote to the Office of Arbitration withdrawing the application under section 45, he nominated the union's board member for the three-person panel. In other words, there is no evidence that the union had simply abandoned the complainant's grievance as she seems to suspect. To the contrary, both Mr. Pineo's nomination and the subsequent efforts of the union to constitute the three-person board indicate its representatives were consistently, albeit not particularly speedily, pursuing their new strategy for getting the grievance arbitrated.
It is not necessary for me to grapple with the question of whether the union in fact withdrew the grievance or the arbitration referral, or the implications of the Divisional Court's decision, because I do not think it would have ultimately made much difference. The union's position might have been marginally better if Ms. Kirkwood had found that only the referral had been withdrawn, but much of the Divisional Court's reasoning to the effect that she had disposed of a matter within her exclusive jurisdiction might still apply. Essentially, the situation was one where the union took a gamble on April 15th which involved certain inherent risks. If it had not run afoul of one of those risks, it was likely to have encountered others. The question under section 68 is whether the gamble was a reasonable one in the circumstances, and I find that it was.
It was evident that the complainant was suspicious of the length of time it took to constitute the three-person board. However, as noted earlier, the time taken was quite typical. Although it may seem excessive to a stranger to the process, the fact is that the delay involved was unremarkable in light of the company's objections throughout, and does not suggest any lack of interest on the union's part.
The complainant was also of the view that the union had not adequately informed her of the problems encountered with her grievance, and that had she been aware of them, she might have accepted the settlement the company offered at the beginning of March. This assertion is simply not borne Out by the facts. The evidence before me establishes that Mr. Ryder, Mr. Urbain and Ms. Mlodinski all urged Mrs. Gronka to accept the company's offer, with Mr. Ryder and Mr. Urbain describing in detail the reasons for their recommendation and the risks involved. Mr. Ryder and Mr. Urbain also spoke to Mr. Gronka to the same effect, and Mr. Ryder discussed the matter with Mr. Posen.
In other words, the union made considerable efforts to fully inform the complainant of the problems associated with her grievance and to advise her to accept the company's offer. I did not find the assertions of either Mr. or Mrs. Gronka in regard to their lack of knowledge at the time the offer was made to be very convincing. Both their correspondence and their conduct, such as their request under the Freedom of Information provisions, reflect a fairly sophisticated grasp of events. If Mrs. Gronka was initially at some disadvantage with respect to her understanding of the situation, I am satisfied that by the beginning of March, and after several detailed conversations with both Mr. Ryder and Mr. Urbain, she knew quite specifically what her choices were and the strengths and weaknesses of her legal position. Most tellingly, of course, she was at that point consulting her own independent lawyer.
Looking at the evidence as a whole, it is clear that both Mrs. Gronka and her son were fully apprised of the situation on March 4th but chose to hold out for more money against the advice of the union and Mr. Ryder. The essence of Mrs. Gronka's complaint at this point is that had she known that subsequent events would put an end to her grievance, she would have accepted the offer. It would have been a little difficult to predict either the application for judicial review or the Divisional Court's decision. As it was, the union's advice was sound, either in light of the situation as its officials knew it at the time or in light of subsequent events. If Mrs. Gronka chose to ignore that advice, she cannot now be heard to complain that she was wrongly advised or ill-informed.
The complainant was also disturbed by Mr. Ryder's agreement to an adjournment on March 4th at the company's request. Mr. Ryder testified that he had no idea that the company planned to bring the judicial review application in the interim, and indeed, it is not at all clear that the company had such plans at that point in time. There is no reason to think that the request was anything other than bona fide, and in any event, it is not the task of the Board under section 68 to second-guess these kinds of tactical nuances. Certainly his choice was well within the range of conduct permitted by section 68.
Finally, I think little can be made of the delay subsequent to the Divisional Court hearing. It was common ground that the Divisional Court office had failed to issue the decision, and there was no evidence to suggest that this was such a routine occurrence that the union should have anticipated or guessed as much and acted accordingly. Thus the union's counsel found themselves in the delicate position of considering how to press for a decision in light of their concerns that such pressure might jeopardize the bottom line. It is not surprising that it took them some time to consider how best to do this, and in any event it made no difference except that the decision was obtained at a later point than it might otherwise have been.
In summary, I conclude that the union's conduct as a whole during this unusual series of events was not arbitrary, discriminatory or indicative of bad faith. As a result, there has been no violation of section 68.
Two final comments are in order. The complainant subpoenaed both Jean Read, Director of the Office of Arbitration and Elizabeth Mangaoang of that Office to testify, and Mr. Gronka examined them at considerable length. It goes without saying that neither of them could have violated section 68. However, because of a number of comments made by Mr. Gronka during his examination, I find it useful to note that both gave their evidence in an open and forthright manner, and there was no evidence of any wrongdoing or impropriety on their part whatsoever. Secondly, Mr. Gronka made very lengthy oral and written submissions on the complainant's behalf. In light of my conclusions it is not necessary for me to address all of his comments. For the complainant's benefit, I wish to point out that those of his arguments which have not been specifically dealt with in this decision have been rejected.
This complaint is dismissed.