Bruce Reilly v. The United Steelworkers of America, 1992 CanLII 6337

Ontario Labour Relations Board

[1992] OLRB Rep. July 820

0539-92-U Bruce Reilly, Complainant v. The United Steelworkers of America, Respondent v. GSW Inc., Intervener

BEFORE: S. Liang, Vice-Chair.

APPEARANCES: C. Forster for the complainant and Bruce Reilly, the complainant; Brian Shell and Winston Curtis for the respondent; David Hager, Roger D. I. Lippert and Brent McPherson for the intervener.

DECISION OF THE BOARD; July 8, 1992

1This is a complaint made pursuant to the provisions of section 69 of the Labour Relations Act, which reads as follows:

69. 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.

2The complainant, Bruce Reilly, was discharged from employment with the company on or about September 12, 1990. On February 19, 1991, counsel for Mr. Reilly wrote to the union requesting that it provide him with information as to how a grievance procedure is instituted. On February 22, the union filed a grievance on behalf of Mr. Reilly alleging that he was discharged contrary to the provisions of the collective agreement. The union held a membership meeting on May 14, at which time it was decided not to proceed to arbitration on Mr. Reilly's grievance. Mr. Reilly was not present at this meeting, and was apparently unaware of it. There is a series of letters between counsel for Mr. Reilly and counsel for the union between the time Mr. Reilly's counsel becomes aware of the union's decision, shortly after May 14, and April 28, 1992. On October 31, 1991, the union wrote to the company requesting that the grievance be referred to arbitration, despite the time lapse, a request which the company refuses. Mr. Reilly' counsel is informed of this by letter from counsel for the union dated February 13, 1991. In a letter of April 28, 1992, the union repeats its earlier position that it acted in accordance with its duty to fairly represent Mr. Reilly.

3This complaint was filed with the Board on May 7, 1992. The particulars of the complaint are as follows:

4(a) The Complainant, Bruce Reilly, who is also the Grievor herein, was an employee of his employer, General Steel Wares of Fergus, Ontario, from on or about September 25th, 1986, to the date of his dismissal on September 12th, 1990.

(b) During Mr. Reilly's period of employment with GSW, he was included in a collective agreement between GSW Water Heating Company and GSW Pump Company, as employer, and the United Steelworkers of America, Local 3789. The collective agreement, effective from August 1st, 1990 to July 31, 1993, was the agreement in effect at the time of Mr. Reilly's dismissal on September 12, 1990.

(c) The Complainant states that the union acted in a manner that was arbitrary, discriminatory and in bad faith when it represented him at a grievance hearing in regard to his dismissal.

(d) The Complainant states that as a result of declining mental health, for which he had received no treatment or firm diagnosis, he became insubordinate at work, and his conduct at home and in his personal life became irrational. He was convicted of impaired driving and driving while disqualified on September 10th, 1990, and the presiding judge sentenced him to ninety days, with an order that he would be immediately released on the temporary absence program.

(e) On September 12th, 1990, an Official of the Wellington Detention Centre called Mr. Reilly's employer, GSW, to confirm his employment and they stated that there was no work for him and that he had been dismissed from his employment. Accordingly, Mr. Reilly was not released to attend his employment, and in fact was only released November 23rd, 1990 and he immediately was admitted to the Homewood Sanitarium where he received treatment for severe mental disability, which was subsequently diagnosed as paranoid schizophrenia. He was treated and continues to be treated with medication which helps to control his schizophrenia, and would have been employable sometime in 1990, subject to his physician's opinion.

(f) His employer refused to consider the reinstatement in his employment, and refused his counsel's request to make application for disability benefits, which must be done through the employer.

(g) On or about May 15th, 1991, Mr. Reilly's counsel contacted both GSW and the local union representative, Robert Pringle, with respect to Mr. Reilly's illness and disability, and he was advised by Mr. Pringle that the grievance had been filed for Mr. Reilly by the union, that a grievance meeting had been held, and that it was dismissed because Mr. Reilly did not attend. Mr. Reilly states he was never notified of the meeting.

(h) To date, Mr. Reilly does not have any specific details of this grievance meeting, but takes the position that none of the supporting medical documentation with respect to his mental illness (paranoid schizophrenia) was before the parties for their consideration at the grievance meeting.

(i) The Complainant states that this medical documentation supports his claim for a mental disability, and since the union did not present this information to the employer at the grievance meeting, the union was acting unreasonably and arbitrarily in not making a proper presentation on the merits, and was and is discriminating against Mr. Reilly because of his mental illness in not pursuing this grievance.

(j) To the date hereof, neither the union nor the employer have agreed to re-open the matter to have this grievance heard on its merits and both union and employer have refused to provide specific information with respect to the nature of the grievance hearing that was held.

4A hearing into the complaint was set for June 18, 1992. On June 12, the respondent, through its General Counsel, wrote to the Board as follows:

I acknowledge receipt of a copy of the complaint filed pursuant to section 91 of the Act alleging that my client, the United Steelworkers of America, has violated section 69 of the Act.

This letter constitutes our Reply to the complaint. I write to advise that the respondent admits that it violated section 69 of the Act by failing to ensure that the complainant was adequately notified of the membership meeting at which his grievance, alleging unjust discharge, was considered by the local union membership and by failing to advise the membership of arguably relevant medical information.

In view of the respondent's admission, the only issue which remains for determination by the Board is the question of the remedy which the Board should order in favour of the complainant.

The respondent shall request that the Board determine whether or not the complainant/ grievor was/is medically fit to perform his job at any time between the prolonged absence from employment due to his incarceration and the date of the filing of the instant complaint. The respondent is of the view that if, in fact the complainant/grievor was not capable of returning to employment on account of his medical condition there is no purpose to be served in directing that the matter be dealt with by an arbitrator.

In the alternative, the respondent shall request that the Board direct that Mr. Reilly's grievance be referred to an arbitrator selected in accordance with the collective agreement between the respondent and GSW Inc., the complainant's employer by not later than June 23, 1992. In our submission it is appropriate for that arbitrator to determine what compensation, if any, should be paid to the grievor in the event the grievance is upheld.

However, with respect to the allocation of compensation between the company and the union, we submit that that is a matter for determination by the OLRB. Rather than dealing with that issue at this time, the respondent submits that it is appropriate for the question of allocation, if applicable, to be a matter to be dealt with by the Board following the determination by the arbitrator. That issue flows from the Board's jurisdiction pursuant to s.69 of the Act. In this way the parties, including the complainant, will not be put to the expense of litigating the allocation issue until it is clear that the issue requires resolution.

5At the hearing, it became apparent that the parties are in agreement that Mr. Reilly's grievance be submitted for arbitration. The parties have also agreed that the Board shall remain seized on the issue of the liability of the union for any portion of damages which may be awarded to Mr. Reilly as a result of the arbitration decision. In connection with the arbitration, Mr. Reilly has requested the following:

(a) that Mr. Reilly have carriage with respect to that portion of the grievance as it singularly affects his interests. In this respect, Mr. Reilly acknowledges that there may be issues under this grievance of broader interest to the union's membership, such as interpretation of contract language, on which the union ought to retain carriage;

(b) that the union pay for the costs of Mr. Reilly's counsel at the arbitration, to a reasonable limit;

(c) that an arbitrator be selected only with the prior approval of Mr. Reilly's counsel and failing agreement, that the parties will request the Minister of Labour to appoint an arbitrator;

and

(d) that Mr. Reilly be given the opportunity to make any preliminary motions he deems appropriate at the hearing of his grievance.

6A further issue arose during the course of argument. Counsel for the company states that although it has agreed that the grievance be referred to arbitration, it does not agree to waive any defences or preliminary objections that it may wish to make based on the grievor's (alleged) failure to grieve within the appropriate time limits. In other words, counsel accepts that the agreement to refer the matter to arbitration is an agreement to waive any potential objections to timeliness based on the time which has lapsed as a result of the union s violation of the Act. However, the company states that even before the events which the union concedes constitute a violation of the Act, the company had raised a timeliness objection under the collective agreement. We were referred to a copy of the grievance filed by the union on Mr. Reilly's behalf on February 22, 1991. On the back of this grievance is written the response of the company, dated March 28, which states:

The grievance was filed after the time limits specified in the Collective Agreement and, for this reason, must be denied. Without prejudice or precedent, however, the Company also finds that Mr. Reilly was properly discharged for cause. He failed to respond to numerous progressive disciplinary measure and, once again, had a further incidence of lengthy absence. Grievance denied.

7The union opposes the position of the company on this, preferring that the Board order the matter referred to arbitration on its merits. Counsel for Mr. Reilly did not dispute the position taken by the company, and indicated simply that the medical evidence as to Mr. Reilly's mental condition after September 12, 1990 would be relevant to this issue.

8On the other issues, counsel for Mr. Reilly argues that there is a clear potential for conflict of interest where the same lawyer represents the interests of Mr. Reilly and the union at the arbitration. Since the union may be liable at the end of the day for a portion of the damages awarded if Mr. Reilly's grievance succeeds, the interests of the grievor and the union conflict and one lawyer cannot properly represent both of these parties. Counsel also argues that the facts can only be fully presented if Mr. Reilly has an active, instructing role with respect to the arbitration. Mr. Reilly also requests that the Board order the union to pay the reasonable costs of his counsel. As well, Mr. Reilly requests an order that the union will select an arbitrator only with the approval of Mr. Reilly's counsel. Failing agreement, the parties may request the Minister of Labour to appoint an arbitrator. Finally, Mr. Reilly's counsel requested an order that Mr. Reilly be permitted to make preliminary motions at the hearing of the arbitration. Counsel relies on Michael Kiss, [Board File No. 3375-90-U], October 24, 1991, a recent unreported decision of this Board.

9Counsel for the union states that the arbitration of Mr. Reilly's grievance will involve issues of broader concern to the union membership. For instance, the collective agreement contains the following clause:

8:04 Any employee whom the Company suspends or discharges, or whom it contends has lost their seniority under Article 14, shall be retained at/or returned to active work until any grievance contesting such suspension, discharge or break in service question is finally resolved through the grievance and arbitration procedure.

10Mr. Reilly has not to date been returned to work. Thus, there is an issue as to the applicability and interpretation of Article 8.04, which the union states has never been interpreted by an arbitrator. Further, counsel states that there may be a dispute between the company and the union as to the company's obligations to provide for a disability plan. This issue may arise because it appears that for at least part of the period between his dismissal and the date of this hearing, Mr. Reilly was suffering from a mental disorder. Thus, it is argued, there may be an issue as to the company s obligation to provide disability benefits to Mr. Reilly during the period in which he would have been unable to work.

11Counsel for the union submits that where there is no issue of bad faith in the union's conduct towards a complainant, the Board should not disturb the normal relationship between a union and its members by ordering that a complainant have carriage of his own grievance. The Board was referred to John Glykis, [1985] OLRB Rep. March 420; and the cases cited therein. A union's role with respect to the arbitration ought not to be ousted unless there are extraordinary circumstances demonstrating that the union is incapable of fulfilling this role. Counsel states that the union has no objection to Mr. Reilly's counsel attending at the hearing, and will consult with him and seek his assistance. However, on the facts of this case, it would not be appropriate to direct that the control of the arbitration process be removed from the union. It is submitted that a breach of section 69 does not in itself mean that a union is incapable of carrying out its normal role. It was put to the Board that there has not been a single case in over ten years where this particular union has been found in violation of the duty under section 69.

12The union also opposes the request of Mr. Reilly to have some say in the selection of an arbitrator. It is submitted that this affects the integrity of the relationship between the union and the employer, who have negotiated a provision into the collective agreement providing for the procedure of such selection.

13Counsel for the company essentially adopts the position of the union on the above matters. As referred to earlier, the company also takes the position that although it agrees that Mr. Reilly's discharge grievance ought to go to arbitration, it also intends to rely on any defences of timeliness that it would have had irrespective of the union's breach of the Act.

Decision of the Board

14In John Glykis, supra, the Board considered a request for an order allowing a complainant in a section 69 proceeding to retain his own counsel in the subsequent arbitration of his grievance. There, the Board stated:

9.... Nothing in the evidence suggests any malice or ill will towards the complainant by officials of the union. The wrongdoing attributed to the union stemmed from "gross negligence". On the contrary, as indicated in paragraph 3 of the Board's decision, the complainant has received the union's assistance without complaint on many previous occasions. The assistance rendered by the respondent following the complainant's termination in October of 1983, though falling below the standard required by section 68, was not tinged in any way by bad faith or active opposition to the grievor himself. I am not prepared, in the circumstances, to assume that the union will not provide proper representation to the grievor should the matter proceed to arbitration. This is consistent with the Board's jurisprudence. The Board stated in Phillip Wayne Bradley, [1983] OLRB Rep. June 865, at paragraph 3:

Where the Board does grant such remedy [arbitration], it does not always make an order as to representation at such arbitration. The Board has normally specified who must represent the grievor at an arbitration it directs, as a result of a section 68 proceeding, where there are ongoing, serious concerns that the complainant will not receive a non-arbitrary, non-discriminatory, good faith treatment by the (union) in the course of its presentation of the arbitration (see, for example, Leonard Murphy, [1977] OLRB Rep. March 146, the first reported decision where such an order is made). When the Board has made an order concerning representation at arbitration, the nature of the order has been that the union and the grievor jointly select a lawyer to handle their presentation (see Leonard Murphy, supra; Bedard Girard, supra).. An order for separate, independently selected legal counsel would be highly extraordinary. A remedy under section 68 should not change the essential character of the arbitration process. The respondent [union] is the party to the collective agreement and the arbitration not the grievor (General Motors of Canada v. Brunet, [1977] 2 5CR. 537) and would have, except for a violation of section 68, had exclusive selection over whether the arbitration was to proceed and how. The interests of a bargaining agent and the grievor are united before an arbitration board. Jointly selected counsel has been ordered only where the Board feels there would be no truly united representation of the arbitration case for the respondent and the grievor. The joint selection process is to ensure that this unity is restored. The exclusive selection of legal counsel would effectively remove the essential unity of the grievor's and union's interests at arbitration.

If indeed the union fails to comply with its duty of fair representation at the arbitration stage, it will expose itself to another complaint before the Board, and the complaint, if proven, will be remedied.

15In the above case, there did not appear to be any potential for apportionment of the grievor's damages between the employer and the union, assuming success at the arbitration. However, in two subsequent Board cases where a union was found in violation of section 69, Jean Liebman, [1986] OLRB Rep. June 753 and Jeanne St. Pierre, [1986] OLRB Rep. June 883, the Board ordered an apportionment of the damages arising out of the arbitration, if any, between the employer and the union. In Jean Liebman, the Board declined the complainant's request for an order entitling her to representation by counsel of her choice at arbitration. However, the Board found it appropriate to make an order directing the union to retain counsel jointly selected by it and the complainant. In Jeanne St. Pierre, in the context of a similar request from the complainant, the Board specifically directed its mind to the issue of conflict of interest, stating:

23. Because the union may be liable to pay compensation if the grievance succeeds at arbitration, the union's full-time employed representatives would have a conflict of interest in representing the complainant's interests at arbitration. Accordingly, the respondent union will be required to retain counsel jointly selected by it and Ms. St. Pierre to act in the union's name and at the union's expense to represent her interests at the arbitration of the grievance: see Central Stampings Limited, [1984] OLRB Rep. Feb. 215 at 17 and Central Stampings Limited, [1984] OLRB Rep. Oct. 1383 at 8.

16Interestingly, despite the Board's comments with respect to conflict of interest, in neither case (decided by the same Vice-Chair) did the Board direct that the grievor be given sole carriage with respect to the arbitration. In fact, in addressing the possibility of settlement, the Board stated in Jean Liebman that the union was entitled to settle the grievance without the grievor's consent. The Board required the union not to agree to any settlement, without first advising the complainant of the proposed terms and affording her or her representative an opportunity to discuss them with those who would make the union's decision as to whether to agree to the settlement.

17In the view of this Vice-Chair, the approach taken in those two decisions reflects an equitable balance of the interests of the complainant and of the union in these situations. Without a doubt, there is at least the appearance of conflict where a representative in a legal proceeding represents two parties whose financial interests collide. For this reason, allowing a complainant a say in choosing this representative serves to enhance the legitimacy and integrity of the process. On the other hand, there are several reasons why it is not appropriate, unless there are exceptional circumstances, to remove carriage of the grievance from the union's hands. A union bears the authority and responsibility to deal with employment-related issues relating to those employees whom it represents. This responsibility includes taking matters to management on behalf of these employees, and it also includes the duty to balance the interests of the employees within the unit. There are times when the union must choose between the conflicting interests of various employees, or groups of employees. These choices are part of the responsibility of the union. The union, in the normal course, retains the ability to have the final say on grievances, since it has a responsibility to all of the employees whom it represents, not just the grievor.

18As well, the significance of a conflict as it relates to the damages that this complainant may eventually be awarded, must be assessed in light of the nature of the relationships here. This union will, for the foreseeable future, continue to be the bargaining agent for the employees at General Steel Wares. It has an interest in maintaining this relationship. To this extent, it therefore has an interest in representing the employees fairly and competently and in being seen to do so. This interest extends beyond the particularities of Mr. Reilly's particular situation, and is a long-term interest. Furthermore, it is important to remember that the union has a continuing statutory obligation to Mr. Reilly, under section 69.

19In light of these considerations, the Board will not normally take away from the union its normal role with respect to the arbitration of the complainant's grievance, even where there is a conflict because of the union's potential liability for a portion of the complainant's damages. The apparent conflict is of much less significance because of the existence of these other surrounding circumstances, than it might be in another context. In the result, the Board declines the complainant's request to have sole carriage and independent legal counsel with respect to his discharge grievance, or a portion of his grievance.

20With respect to the appointment of an arbitrator, the Board appreciates the union's position with respect to the normal process of selecting an arbitrator which has been negotiated between the union and the company. However, this arbitration does not arise out of the normal process. Giving the complainant some say in the selection of an arbitrator is a reasonable measure which will help to ensure the legitimacy of the process in the complainant's perception, without unduly interfering with the union's interests.

21Finally, as stated above, the company requests that the Board recognize its right to rely on defences to the grievance arising prior to the events which the union admits constitute violations of the Act. The logic of this position is difficult to dispute. To the extent that the complaint is about a union meeting on May 14 and accompanying decision to withdraw the grievance, the goal of the Board's remedies is to put the grievor back to the position he would have been in but for the union's breach of the Act. As of May 14, the company had already signalled its intention to raise a timeliness objection to the grievance. The timeliness of the grievance is an issue which would have been raised at the arbitration hearing even if the decision made by the union on May 14 had been to refer the matter to arbitration. Thus, the Board will not preclude the company from relying on it. The question of timeliness, and whether there are grounds to relieve against time limits, is a question which should be put before an arbitrator, and not decided by this Board in the context of this complaint. Considering the apparent condition of the complainant at the time in question however, the company may even consider whether all parties may be better served by having the grievance dealt with on its merits.

22In sum, the Board declares that the respondent union acted in violation of section 69 of the Act, and accordingly directs that:

(a) the union forthwith submit the complainant's grievance to arbitration under the applicable collection agreement;

(b) the company shall not raise any objection based on delay other than the objection it raised prior to May 14, 1991;

(c) the company, the union and the complainant will mutually agree upon a single arbitrator. Should the parties fail to agree upon an arbitrator within a reasonable period, the Minister of Labour for the Province of Ontario shall appoint the arbitrator;

(d) the union and the complainant shall jointly select counsel to act for them on the arbitration of the grievance;

(e) the complainant's personal counsel, if any, will be entitled to be present at the arbitration.

23The Board remains seized of this matter to resolve any disputes arising over the interpretation or implementation of these directions.