Ontario Labour Relations Board
[1991] OLRB Rep. June 735
File No.: 2466-90-U Date: June 24, 1991
Bujaiski Wtodzimier (Walter), Complainant v. Glass, Molders, Pottery, Plastics and Allied Workers International Union - Local 231 (A.F. of L., C.I.O., C.L.C.), Respondent v. American Standard, Intervener
Before: Paula Knopf, Vice-Chair, and Board Members W. H. Wightman and B. L. Armstrong.
Appearances: Bujalski Wtodzimier appearing on his own behalf; Carl Hamilton, F. Peluso, F. Assisi and M. Kordic for the respondent; John Rushton and Salvatore DiBella for the intervener.
DECISION OF PAULA KNOPF, VICE-CHAIR, AND BOARD MEMBER B. L. ARMSTRONG; June 24, 1991
1Although not originally named as respondent, the union was given notice of the proceedings. At the outset, the union and all parties indicated that they wished to proceed on the date designated for hearing. Mr. Bujalski was offered the services of a translator and chose to proceed without one. All parties indicated their desire to proceed with the hearing as scheduled and so the matter progressed to hearing.
2Accordingly, the style of cause is amended to include the Glass, Molders, Pottery, Plastics and Allied Workers International Union - Local 231 (A.F. of L., C.I.O., C.L.C.) as respondent and American Standard as intervener.
3This is a case that essentially involves an allegation of a violation of section 68 of the Act. In a nutshell, the complainant alleges that the union failed to properly represent him after he was discharged from employment by American Standard. The complaint also involved an allegation of a violation of section 72(1). Except as specified below, there is no significant dispute over the essential facts.
4Mr. Bujalski had four and a half years' seniority with this company. He worked as a spray painter, spraying large pieces such as sinks and bathtubs. His last day of work was Saturday, March 10, 1990. He was scheduled to resume work the following Tuesday. Instead, the day before, he received a telephone call from his foreman advising him to appear in the company's office prior to the commencement of his regular shift. When he arrived on the company's premises, Mr. Bujalski was met by two members of his union, the President Ajit Walia and the Financial Secretary Matt Kordic. Together they went to the office of the foreman. The foreman then questioned Mr. Bujalski on whether the report sheets and time sheets he had filled out for the previous Saturday were correct. When Mr. Bujalski indicated that the reports were correct the foreman advised that Mr. Bujalski was suspended for "over-booking". Over-booking is understood by Mr. Bujaiski to involve reporting or signing for completion of more work than was actually done by him. Over-booking is understood by the company to mean signing for or reporting more work than was actually done by an individual on the day in question. In any case, the company considers both to be improper. Mr. Bujalski did not feel he had done anything wrong because it was his understanding that employees were allowed to, and indeed encouraged to, maintain an even flow of reported work by "banking" production done on earlier days so long as the work was actually done by the employee in question.
5In any event, Mr. Bujalski did not feel that he had done anything wrong. On the other hand, the company concluded that an audit had revealed serious impropriety and suspended Mr. Bujalski "pending investigation". Mr. Bujalski admits that even at that stage the union "really didn't know what was happening" and the union advised Mr. Bujalski that they would be back in touch with him.
6Unknown to Mr. Bujalski at the time, the union then began to conduct what it considered its own independent investigation of the allegations. They were aware of the discrepancies the company were alleging against Mr. Bujalski's reporting and some attempt was made to compare Mr. Bujalski's report with the batches of work contained in the company's truck. This did not yield any favorable results for the union or the complainant. By the Friday of the week of this suspension, Mr. Bujalski had not heard from the union or the company regarding the suspension. He was anxious to know the results of the investigation and anxious about being out of work considering his obligations to support his family. Hence, he phoned the company to ask what the status of the investigation was at that point. Within a few hours of this phone call, he received calls back from both the personnel manager of the company and the union indicating that a meeting had been set up for four o'clock that day, being Friday, March 15.
7Mr. Bujalski then met three members of his union in the cafeteria prior to meeting with management on Friday, March 15. The three union representatives were Mr. Ajit Walia, Mr. Peluso and Mr. Kordic. The union claims a further person, a Mr. Silwa, Mr. Bujalski's department steward, was also present at that meeting, however, the union offered no direct evidence of this. Mr. Bujalski adamantly denies this and instead asserts that he had asked for Mr. Silwa's presence or the presence of his department steward and had been denied this. In any event, there was some discussion between Mr. Bujalski and his union's grievance committee prior to the meeting with management. Mr. Bujaiski claims that he was not asked any questions by his union committee or given much of an opportunity to explain his situation to them. The union witnesses deny this, saying he was given every opportunity. In any event, it is clear that they all went into the meeting together where they met several representatives of management. At that meeting management produced an audit sheet showing the alleged discrepancies to the union and to Mr. Bujalski. He tried, to the best of his ability to explain the discrepancies to management and feels that he was not given a full enough opportunity to do this. On the other hand, the union claims that Mr. Bujalski spoke too much and was given ample opportunity to explain things away. What is clear is that after this meeting, the president of the union and Mr. Bujalski spoke together. Mr. Bujaiski understood that the union was taking the position that they needed more information because confusion had resulted from this Friday evening meeting. Mr. Bujalski understood that Mr. Ajit Walia would be calling him to arrange to get further information.
8However, the next information Mr. Bujalski received was a letter dated March 20, 1990 from American Standard indicating that his employment had been terminated as of that day as a result of a "random audit" indicating what the company considered to be over-booking. Mr. Bujalski describes feeling shocked at receiving the letter of termination. He immediately contacted the union and the union agreed to file a grievance on his behalf. This was done. Mr. Bujaiski then again began to wait to hear from the company or the union regarding his grievance. Mr. Bujalski pressured the union and the company about the processing of the grievance. A grievance meeting was then scheduled. Mr. Bujalski met with the union's grievance committee and Mr. Carl Hamilton, a staff representative of the International union. They all met together prior to the grievance meeting. Mr. Hamilton questioned Mr. Bujalski about the situation. The parties' evidence differs as to the details of this meeting in the cafeteria. However, certain critical matters are not disputed. First, it is clear that Mr. Bujaiski admitted to Mr. Hamilton that some of the work that he had signed to have done on the last Saturday at work had indeed been done earlier, but that Mr. Bujalski considered this to be consistent with the company's expectations. Secondly, Mr. Hamilton advised Mr. Bujaiski that Mr. Hamilton intended to speak for Mr. Bujalski at the grievance hearing and warned him "if you open your mouth, I will leave the meeting". It was clearly the union's intention to gather whatever information possible at the grievance meeting and to see if the company could prove its case rather than attempting to persuade the company of any innocence.
9At the grievance meeting, the company was concerned only about getting Mr. Bujalski to admit that the report he had filled out on Saturday was accurate. Once Mr. Bujaiski admitted or claimed that the report was accurate, the company seemed to think that there was nothing more to the case. The meeting did not result in any satisfactory resolution between the parties. After the meeting, Mr. Hamilton instructed the President of the union, Ajit Walia, to be in touch with Mr. Bujaiski about another meeting to gather further information. Mr. Bujaiski was quite concerned about the conduct of proceedings thus far. He questioned why the department steward had not been present at either of the past two meetings because he felt that the company had successfully confused the union committee who were not familiar with the workings of the particular department. None of these things were resolved and again it was simply left on the basis that the union president would be in touch with Mr. Bujalski. In any event, Mr. Bujaiski then left the workplace.
10The union committee immediately thereafter sat down together to decide what if anything further would be done on the case. On the basis of the evidence that the committee had seen in the possession of the company in terms of the audit and given Mr. Bujalski's admission or statement to the company that his production report on his last day of work was accurate, whereas the audit showed othewise, the union grievance committee came to the determination that the company had an "overwhelming" case against Mr. Bujaiski and that there were no chances of success at an arbitration. They recommended to the staff representative, Carl Hamilton, that the grievance not be taken to arbitration. That became the decision of the union. Mr. Ajit Walia was instructed to advise Mr. Bujaiski of this. Mr. Hamilton prepared a letter dated April 17, 1990 directed to Mr. Bujaiski advising him of this decision. However, Mr. Bujalski's evidence is that he never received such a letter and there is no reason to disbelieve him on this point. Further, the union's evidence seems to indicate that the letter was prepared by Mr. Hamilton and sent to the Local President, Ajit Walia, for forwarding on to Mr. Bujaiski. However, Mr. Walia died suddenly in December of 1990. Although a copy of this letter was found in Mr. Walia's belongings, there is no indication that a copy was ever forwarded on to Mr. Bujaiski.
11Much of the complaint is based upon Mr. Bujaiski's contention that his method of work was both counselled and sanctioned by his foreman. The complainant distinguished the concepts of "banking" production from "overbooking production." He claims that the union neither investigated or pursued the issue that his practice of "banking" would amount to a defense in a discharge arbitration.
12In any event, Mr. Bujaiski describes being in a situation of having no knowledge of either the union or the company's decision after the first grievance meeting. After some months passed after the March meeting, he was in touch with the Company President, Mr. Walia and then Mr. Hamilton seeking information. It was through these phone calls that he was told that the union had decided not to proceed and that Mr. Bujaiski could, if he chose, pursue the matter on his own. Thus he brought his complaint to the Labour Relations Board.
13In response to this complaint, the union's evidence and argument was tendered to establish that everything done in this case was consistent with the union's investigations and policies with regard to other complaints. Further, the union felt that because Mr. Bujalski was admitting that he had not made the pieces that he had signed for on his last day of work and given the company's audit, they had no chance of succeeding at arbitration. The union considered this to be a situation of over-booking which the Financial Secretary, Mr. Peluso, described as being one you "never win". Further, the union disputes Mr. Bujalski's claim that he was never given an opportunity to explain to either the union or the company about the situation. To the contrary, the union's evidence was that the union did everything possible to keep Mr. Bujalski calm and under control at all the meetings. Mr. Peluso said that Mr. Bujalski "got any kind of chance [to talk and explain] but the only problem with Walter was that he never stopped talking".
14The position of the company was that whether Mr. Bujalski was either over-booking his work or improperly reporting as a result of "banking" work he had done previously, either is unacceptable and cause for discharge. The company alleges that that was why he was discharged in this situation and that he was given every opportunity to explain his actions with the assistance of the union.
The Decision
15As originally framed this complaint alleged not only a breach of section 68 of the Act, but also an allegation of violation of section 72(1) of the Act in that Mr. Bujaiski's perception was that the company and the union had worked together to deny him his rights and ensure his termination. It is important to state at the outset that there was absolutely no evidence to support such an allegation, and no such implication can be drawn from the evidence. Hence there is no finding of a violation of section 72(1) of the Act. Instead, we must now explore whether the allegation of violation of section 68 of the Act can be sustained. 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
There is no evidence of bad faith in this case. Mr. Bujalski did mention that he believed the union may have been motivated in their conduct as a result of his Polish nationality. However, there is no evidence to sustain any finding of discrimination by the union. The only real issue in the case is whether or not the union has acted in an arbitrary manner in the way it has conducted itself with regard to Mr. Bujalski's situation. This allegation must be explored in further detail.
16Numerous decisions by this Board have explored the meaning of the term "arbitrary" in section 68 of the Act. The Board has concluded that this does not impose a standard of negligence or a standard of excellence upon unions. Instead, it creates a standard demanding that unions act in a manner that is caring and non-capricious with regard to the representation and conduct of investigations on behalf of its members.
17With that in mind, we must look at how the union conducted itself in this case. When this is done, several serious areas of concern become evident. First, the grievor is a gentleman with four and a half years' seniority in this workplace. The union was advised at the outset that the company was investigating Mr. Bujalski for a serious disciplinary matter, that he was under suspension and that discharge could be imminent. Mr. Bujalski requested and suggested that his department steward be present at the initial meetings with the company because Mr. Bujalski believed that the union representatives present did not understand the particular workings of that department. The union failed to have the shop steward present despite these requests.
18Further, the union claims to have responded to the information received by the company by conducting its own investigation to determine the accuracy of the company's audit. The union witnesses described going to check a truck where the grievor's work ought to have been. However, the grievor alleges, and the union does not dispute, that the union's investigation did not include a questioning of the grievor about any of the details of the audit. Indeed, the details of the audit were never put to the grievor by the union although those details were made available to the union. There is great substance to Mr. Bujalski's wonderment about how the union could possibly conduct an investigation on his behalf when the union failed to question him directly about these details.
19A further area of concern is the union's failure to give Mr. Bujalski notification of its decision not to take the matter to arbitration. While it is clear that the union's international representative, Mr. Hamilton, realized the necessity of giving this advice to Mr. Bujalski and intended that information to be passed on to him, the uncontradicted evidence is that Mr. Bujalski was not informed. Further, he was given no advice as to whether or not he had a right to appeal or challenge this decision or to proceed with any other avenue of redress either against the union or the company. A further element of concern is the fact that the president of the union advised Mr. Bujalski after the third meeting with management that the union would be back in touch with Mr. Bujaiski to seek further information and clarification regarding the audit and allegations against him. Mr. Bujalski was then advised to go home by the union. However, the union executive committee immediately then decided not to proceed with arbitration. If indeed they needed further evidence to clarify matters, they should have solicited this evidence for clarification prior to embarking on a decision as to whether or not to proceed to arbitration. Alternatively, if they intended to make such a critical determination upon the grievor's situation, they ought to have advised him of their intention to do so and allowed him to make representations to them on this matter.
20It is true that the union did conduct an investigation of sorts. It is also true that they inquired of Mr. Bujaiski as to his position on the case and the union came to a good faith conclusion that there was no sense in proceeding forward on an arbitration that they had no chance of winning. However, we still must conclude that there has been a violation of section 68 of the Act. The union failed to conduct a full or proper investigation, it failed to ask critical questions or seek critical information from Mr. Bujalski. It failed to have adequate representation in the form of a departmental steward at critical meetings and it made the crucial decision not to proceed to arbitration without having all the necessary available evidence or submissions before such a decision is made. The result of all this is the critical fact that the union's faulty investigation deprived the complainant of the opportunity to have his plausible defense considered. The union never did consider the complainant's contention that his actions conformed in with management directives or orders. Unions are not to be faulted under section 68 for simply making investigative mistakes. But where a discharged employee raises a serious or plausible defense to a discharge, the union is obliged to investigate the defense and raise it with the company during the grievance procedure. Otherwise it cannot be said that the union has fulfilled its duty of fair representation of its member. In the case at hand, the union's failure to discuss the allegations fully with the complainant and its failure to investigate his position and consider it with management must be considered to be arbitrary behavior. By acting in such a manner, we are forced to conclude that the union has acted in a manner that must be considered as arbitrary or capricious and heedless of the rights of Mr. Bujalski. Thus, the union must be found to be in violation of section 68 of the Act.
21However, before turning to the question of remedy, one other matter is worthy of note. Part of Mr. Bujaiski's complaint against the union was with regard to the International representative's threat or warning to Mr. Bujalski to remain quiet during the grievance meeting or risk the representative leaving the meeting. Mr. Bujalski certainly took great offense to this and considered it as one of the foundations of the section 68 complaint. However, the evidence is convincing to this Board that the union took this position to protect Mr. Bujalski and to try to prevent him from saying anything at the grievance meeting that the company would later use against him in evidence if the matter proceeded to arbitration. The Board appreciates the wisdom of this strategy and notes that it may often be in a grievor's best interest to remain silent at a grievance meeting and that a union may be dispensing wise advice in ensuring that the grievor remain silent. Thus, we do not consider that this aspect of the evidence discloses any violation of section 68.
22In conclusion, the totality of the evidence convinces us that the union has failed to live up to the standards of the duty of representation imposed by section 68 of the Act. Thus, we declare that the union has violated section 68 of the Act. We order that the union immediately take steps to proceed with this matter to arbitration. We order that the company and the union take the appropriate steps to constitute a board of arbitration forthwith without regard to the time limits in the collective agreement. The Board remains seized with the matter should there be any difficulties with regard to the implementation of our order.
DECISION OF BOARD MEMBER W. H. WIGHTMAN; June 24, 1991
1As mentioned at paragraphs 14 and 15 of the majority decision, the Board has been circumspect in its interpretation of section 68 and, in particular, in making a finding of "arbitrariness" with respect to union conduct lest its decisions have the effect of imposing unrealistic standards of performance on bone fide unions. This circumspection on the part of the Board merely recognizes that lack of resources, a small membership thinly dispersed over a wide geographic area, or other legitimate considerations not within its control could make it impossible for a given union to meet too stringent a standard. Moreover, even well financed unions, as private voluntary associations of individuals, should be allowed wide discretion in determining internal organization, policies and procedures without undue interference on the part of the state or other third parties.
2If the standards are set too strictly unions will be faced with a Hobson's choice of either taking even the most specious of complaints through arbitration or defending themselves against a multitude of section 68 complaints before this Board. The prospect of a substantial increase in the volume of purposeless litigation was a concern which both labour and management raised when legislators were attempting to give expression to the obligation of unions to fairly represent each and every member. If this obligation, or duty, was to be incorporated into the Labour Relations Act then clearly the competing concerns would require carefully balanced interpretation.
3I dissent with the majority in the findings expressed at paragraph 19 on the grounds that they broaden the definition of "arbitrary" in a section 68 context, thus leading to the undue diversion of union resources from actions pursuant to their members rights and interests, to actions in defense of the institution itself. Such an outcome does not serve any definition of good labour management relations.
4My reasons for dissenting from the majority findings at paragraph 19 are as follows:
- The complainant asserts, and the majority agree, that one of two specific departmental stewards should have been present at critical meetings, and the majority concludes as a consequence of this omission the union "failed to have adequate representation".
Recalling the unanimous findings that there was neither a conspiracy nor bad faith involved, it is important to note that the President and Financial Secretary, as well as an International Representative of the union, were involved jointly and severally in the meetings and decision-making. While it is open to the complainant to argue that the involvement of either of the two stewards would have enhanced his case and produced a different outcome, that is a purely subjective assessment. I feel the Board goes too far in concluding the officers who were involved were either lacking in capacity to deal with the matter or remiss to the point of violating the Act by not calling in one of the stewards identified by the complainant.
- The majority find that the union "failed to conduct a full and proper investigation, it failed to ask critical questions or seek critical information from (the complainant).
…….(and) it made the crucial decision not to proceed to arbitration without having all the necessary available evidence or submissions...
The Board heard evidence regarding the several meetings and discussions in which at various times the complainant, the local union officers, the international representative and company officers were involved. What might or might not ultimately prove to be critical in terms of questions, information, evidence or submissions would only be determined by an arbitrator, not the Board. In my view, for the purposes of section 68, the important evidence is not how well the union officials went about their task but that they did so to the best of their abilities and with the best interest of the complainant in mind. The majority indicate acceptance of the union's good faith by acknowledging that even the international representative's harsh admonishment to the complainant not to speak during the meeting with company officials was given forcefully out of a concern for the complainant's interests.
5If labour and management are to find accommodative solutions and a long term modus vivendi, one necessary ingredient is acceptance of the fact that human errors in the form of mistakes and miscalculations will occur from time to time. How the parties of interest deal with such errors is for them to decide in the context of their relationship. A further necessary ingredient of good labour/management relations is for labour and management to be able to know with a reasonable degree of certainty that an agreement is in fact an agreement and that a "deal is a deal". Employers, no less than unions, are entitled to know that a matter once resolved by agreement with responsible union officials is indeed resolved. If interpretations of the now codified duty of fair representation have as their effect the introduction of uncertainty as to the ability of the union to deliver on its undertakings the prospect of a good working relationship between the parties is at considerable risk. They should not be required to look over their shoulders for state approval, nor would I think it in the interest of good labour relations that union officials feel compelled to seek a legal opinion as to what factors entering their decisions in monitoring collective agreements might prove critical in the eyes of this or other tribunals as long as their decisions are taken in good faith.
6I doubt the complainant advanced the contention to union officers that he had been "both counselled and sanctioned by his foreman" (to record work as he did) with the same clarity as that theory of the case appears in paragraph 11 of the majority decision. Thus the decision leaves unions in the position of not knowing whether a "defense", suggested at a stage when the union is deciding whether or not to proceed to arbitration, may not be "perfected" by the time it comes to hearing before the Board.
7I would have found that these union officials met the good faith test and I would have dismissed the complaint.