[1991] OLRB Rep. August 1006
0407-91-U David A. Spackman, Complainant v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), and National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Local 222, Respondents
BEFORE: R. O. MacDowell, Alternate Chair.
APPEARANCES: David A. Spackman appearing on his own behalf; no one appearing on behalf of the respondent unions.
DECISION OF THE BOARD; August 8, 1991
I
1This is a complaint under section 89 of the Labour Relations Act. The complainant, David Spackman, contends that the respondents (hereinafter referred to simply as "the CAW") contravened section 68 of the Act when the CAW settled a grievance rather than pursuing the matter to a hearing before an arbitrator. 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.
2This complaint was filed on May 7, 1991. By letter dated May 10, 1991 the Board provided the CAW with a copy of the complaint, and notified the CAW that a Labour Relations Officer had been appointed to endeavour to effect a settlement. This material was sent to the CAW's offices at 205 Placer Court in North York. The letter further advises the CAW that if a meeting with the Officer does not result in a settlement, the Board will schedule the case for hearing.
3An Officer contacted the parties to explore the possibility of settlement. No settlement was achieved. A notice of hearing in Form 8 was sent to the complainant and to the CAW. The notice indicated that a hearing would take place at the Board's premises in Toronto on Monday, July 29, 1991 and would continue, if necessary, on Tuesday, August 20, 1991.
4Under the Board's Rules, a person against whom a complaint has been made is expected to file its Reply, if any, within six days of receiving it. The CAW has not filed a Reply or any other statement contesting or explaining the assertions made by Mr. Spackman in his complaint. Nor did the CAW appear at the hearing. Accordingly, Mr. Spackman's evidence (given under oath) is uncontradicted.
5The complainant's employer, the A.G. Simpson Company Limited, has not been named in this complaint as either a party respondent or an "interested party". The company has had no notice of this complaint or of the hearing, and has taken no part in the proceeding.
6With this background, then, I turn to the facts.
II
7The complainant has been an employee of the A.G. Simpson Company for approximately five years. The CAW is his present bargaining agent. I say "present bargaining agent", because the CAW's right to represent the employees of A.G. Simpson is of relatively recent origin, dating from a Board certificate issued on July 26, 1989.
8Prior to 1989 the employees of A.G. Simpson were represented by a union known as the "Simpson Plant Council". In 1989 the CAW sought to displace the Simpson Plant Council and applied for certification as the employees' bargaining agent. A representation vote was held, and the CAW won.
9During the campaign preceding the representation vote, the CAW maintained that it would be a more effective bargaining agent than the Plant Council, could provide better service, and would, if selected, "take over" any employee grievances against the company which were then being processed by the Plant Council.
10Pursuant to section 56 of the Labour Relations Act, when the CAW was certified as the employees' bargaining agent in July 1989, the Plant Council immediately ceased to represent the employees in the bargaining unit and the collective agreement between the company and the Plant Council ceased to operate. The complainant testified that the Plant Council subsequently dissolved, and dispersed its funds to its members. So far as I can determine on the evidence before me, the Plant Council no longer exists.
11I do not have before me either the Plant Council agreement which was in place from 1986 to 1989, or the existing collective agreement between the CAW and the AG. Simpson Company. Accordingly, I am unable to reliably say anything about the terms of either agreement or determine how, if at all, the terms of those agreements might apply to the complainant's situation. What can be said is this: the CAW was not a party to the 1986-1989 Plant Council agreement, that agreement ceased to exist upon the CAW's certification, and the Plant Council, which was a party to the old agreement, no longer exists either. It remains unclear how the CAW proposed to arbitrate grievances arising under a collective agreement to which it was not a party and which ceased to exist upon the CAW's acquisition of bargaining rights.
12In May 1989 the complainant volunteered to work overtime for the four-day long weekend beginning May 19, 1989 and ending May 22, 1989. Shortly after the commencement of his Friday shift, the complainant was involved in a dispute with his supervisor. As a result, he was suspended "indefinitely" and sent home. The company only intended the suspension to last for the weekend but, when it tried to call the grievor to work the following week, it was unable to contact him.
13On May 31, 1989 the complainant filed a grievance asserting that his suspension was unjust, and demanding the equivalent of thirteen and a half days' pay (reflecting the premium rates payable for working overtime on a holiday weekend). The grievance was not settled by the Plant Council (then the complainant's bargaining agent), so the matter was scheduled to proceed to arbitration. The reference to arbitration was made by Doug Doyle, who was an official of the Plant Council and subsequently became a local official of the CAW. It was the complainant's understanding that the CAW would represent him in respect of this grievance and would assume any costs associated with the arbitration.
14In May 1990 Doug Doyle (now on behalf of the CAW), and the company entered into a settlement of the complainant's grievance. In accordance with that settlement, the company agreed to pay the complainant for four days at straight time and to clear his record of the alleged infraction. The complainant is not satisfied with this settlement because, in his view, it does not take into account the premium pay that he would have earned, and thus does not fully compensate him for the monies lost. The complainant demanded that his grievance be reinstated and taken to arbitration.
15The complainant testified that there was an "understanding" by which grievances against the company that had purportedly been settled could be "revived" by a process of internal review or appeal within the union. Since I do not have before me either the Plant Council agreement, the CAW agreement, the CAW Constitution, or any related letters of understanding, I am unable to assess the legal basis for the "understanding" to which the complainant refers, or determine how that understanding may bind the company and nullify a written settlement, which, by its terms, is said to be a "full and complete settlement of the grievance". Nor am I able to say how this "understanding" may relate to grievances which arose prior to the CAW's acquisition of bargaining rights under a collective agreement to which the CAW was not a party. I will return to these difficulties later.
16The complainant raised his concerns with Len Ruel, a national representative of the CAW. Mr. Ruel assured him that his grievance would be reinstated and taken to arbitration if his unit voted to support that course of action. Mr. Ruel further assured the complainant that, in any event, he would have the opportunity to make representations to the union group which ultimately determined whether or not his case would proceed to arbitration. The complainant has been critical of Mr. Doyle's leadership and was concerned that personal antipathy might inhibit an objective assessment of his case.
17According to the complainant, his request to reinstate the grievance was put before the A.G. Simpson group in late June 1990. The membership voted unanimously to have the matter revived and referred to arbitration. But that is not what happened. Instead, a little over two months later, Mr. Ruel told the complainant that the matter was being referred to the CAW National Executive Board. This was the last that the complainant heard of it until January 28, 1991 when he was informed that the case would remain closed.
18The complainant was not given the promised opportunity to make representations, and efforts to obtain an explanation from the Executive Board were unsuccessful both before and after the filing of this complaint. The complainant was told that the union officials concerned were too busy to speak to him. The complainant indicated to the Board that he was less concerned about the precise terms of settlement than the fact that Mr. Ruel failed to fulfil his promises and undertakings, and the CAW was totally unresponsive. In the complainant's submission, the CAW's conduct has been arbitrary, and unfair, and its failure to respond to the complaint is indicative of the way he has been treated all along.
III
19There is no real dispute about the legal principles which must be applied in this case. In processing employee grievances, a trade union is obliged to act in a manner that is neither arbitrary, discriminatory or in bad faith; but this does not mean that the union must take every case to arbitration simply because an aggrieved worker demands "his day in court". A trade union is entitled to settle grievances, and in many cases it should do so to avoid the expense and uncertainty of litigation. In Catherine Syme [1983] OLRB Rep. May 775, the Board had this to say:
section 68 requires a trade union to act fairly, inter alia. in the handling of employee grievances. But it does not require a trade union to carry any particular grievance through to arbitration simply because an employee wishes that this be done. A trade union is entitled to consider the merits of the grievance, the likelihood of its success, and the claims or interests of other individuals or groups within the bargaining unit who may be affected by the result of the arbitration. The trade union must give each grievance its honest consideration, but so long as the arbitration process involves a significant financial commitment and has ramifications beyond the individual case, a trade union is not oniy entitled to settle grievances, in many cases it should do so. And, as has been pointed out in a number of cases, in assessing the merits of a grievance a trade union official - especially an elected one - cannot be expected to exhibit the skills, ability, training and judgement of a lawyer.
Most collective agreements contain a grievance procedure to which resort must be made before a matter can proceed to arbitration. The grievance procedure involves several stages of pre-arbitration discussion in which (as in the present case) the parties seek to amicably resolve their differences. As in the ordinary civil litigation process, it may be in the interests of both parties to seek an "out of court" settlement which is more modest than either of them might have obtained had they been entirely successful before an adjudicator. A settlement is a compromise solution which avoids the costs and uncertainties of litigation, and where it appears that the claim is without legal foundation or cannot be proved it makes little sense to proceed further.
These considerations are equally applicable to the settlement of disputes arising out of collective agreements. But there is an important difference. Unlike most parties in civil matters, the trade union and employer are bound together in a relationship which will subsist so long as the employees continue to support the union and the employer remains in existence. That relationship, despite its adversarial aspects and legal veneer, is neither wholly adversarial nor strictly legal. It is essentially an economic partnership in which both parties must be concerned about the ongoing relationship and the equitable resolution of disputes which occasionally arise. Like a successful marriage, a productive bargaining relationship depends upon the development of a spirit of cooperation and compromise. Regardless of the arguable importance of any particular grievance, it will inevitably be only one of many which the parties will be required to resolve during the currency of their relationship; and, if either party obstinantly [sic] adheres to an unreasonable position, or continually presses trivial claims, the entire settlement process could be undermined, and their long-term relationship prejudiced. It can hardly further mutual trust and respect if union and management officials are required to spend needless hours discussing inconsequential or unfounded grievances. As a practical matter, a rigid insistence of one's "strict legal rights" or an insistence on proceeding to arbitration with doubtful claims is likely to provoke a response in kind, and yield only short term gains. As a matter of good judgement, and in the interests of sound industrial relations, a trade union should make reasonable efforts to settle grievances early in the process. I do not think there is any justification for processing obviously groundless claims simply because an individual employee demands his "day in court". Such position not only represents a waste of the employees' money in counsel and other fees associated with the arbitration process, but could also prejudice the ongoing and informal resolution of disputes, short of arbitration, where there might well be some contractual basis for the union's claim.
The fact that a union has settled a grievance over an employee's objection does not establish a breach of section 68, even if it appears to the Board that the employee might have had an arguable case had the matter proceeded before an arbitrator. The likelihood of success is an important factor that a union must consider, but it is not the only one.
20The problem in this case, however, is that I am unable to reliably determine either the strength of the complainant's case, or the reason why the union acted the way it did. Obviously, the settlement is not unreasonable on its face, since it awards the complainant four days' pay and totally erases the incident from his disciplinary record. This latter feature would not have been obtained unless the grievor were completely successful in his position: that is, that there was no misconduct at all on his part and no basis at all for any disciplinary response from the company. But I am unable to say what considerations the union took into account when it decided to settle the case, or why Mr. Ruel apparently reneged on the undertakings that he made to the complainant: that the case would go to arbitration if the unit voted in favour, and that the complainant would have an opportunity to make his case to the ultimate decision-maker.
21The complainant points out that in the letter he received from the President of the CAW, it is said that "the National Executive Board had no evidence that your grievance was improperly handled"; but the complainant was never asked to address that question, he has no idea what "evidence" the Executive Board had before it, and to the extent that "improper handling" is the relevant test, the union acted upon the submissions of the union officials "doing the handling", to the exclusion of the individual whose case was being dealt with. The complainant asks parenthetically: how could the CAW conclude that there was "no evidence" that my case was improperly handled, when they didn't ask me for my evidence as to how it was handled? And, of course, the adherence or otherwise of the union to this internal review process does not, in itself, determine whether the initial settlement was properly concluded. If that settlement was arbitrary or motivated by malice or other improper considerations, the internal review is irrelevant unless it "cured" the earlier defect.
22In all of these circumstances, and in the absence of any explanation from the union as to what it acted upon, or why, I must find that the complainant has established a prima facie case of a breach of section 68, and that his case has not been answered by the respondent union. The Board therefore declares that the respondent CAW and its Local 222 have contravened section 68 of the Act.
23But what is the appropriate remedy beyond a declaration?
24The complainant has not named A.G. Simpson as a party. I do not think that I either can or should direct a remedy that adversely impacts upon a party about which no complaint is made and which has had no notice of this proceeding. Nor can I ignore the practical or legal difficulties which may flow from the resurrection of a grievance arising under a prior collective agreement with a trade union that no longer exists, touching on events more than two years ago.
25What the complainant may have lost here is, at most, the possibility or opportunity to have his case considered by an arbitrator. If that arbitrator determined that s/he had jurisdiction to hear the case (given the practical and legal difficulties mentioned above) and that there was no basis whatsoever for the complainant's suspension, the arbitrator might be disposed to award some compensation in addition to the four days at straight time that the complainant has already received. But on the basis of the evidence before me, I am totally unable to assign any monetary value to that possibility or to connect the union conduct of which Mr. Spackman complains to any proven or even reasonably arguable financial loss. Thus, while I can conclude that the union has contravened section 68, I do not think that the complainant has established any entitlement to financial compensation.
26However, in my view, the complainant is entitled to an explanation from the union about what it acted upon when it ultimately decided not to take his case to arbitration. The Board therefore directs that the CAW provide the complainant with a detailed explanation, in writing, of the reasons why it settled his grievance, and ultimately determined that it would not be reinstated. Such explanation must include a detailed statement of the facts and factors that it took into account in reaching those conclusions.