Kenneth Edward Homer v. International Brotherhood of Electrical Workers and its Local 63fi, 1993 CanLII 8042

Ontario Labour Relations Board

[1993] OLRB REP. MAY 433

2823-92-U Kenneth Edward Homer, Applicant v. International Brotherhood of Electrical Workers and its Local 63fi and St. Catharines Hydro-Electric Commission, Responding Parties

BEFORE: G. T. Surdykowski, Vice-Chair.

APPEARANCES: Kenneth E. Homer and Valerie Homer, for the applicant; Bernard Fishbein, Graeme Aitken, and Harold Vance, for Electrical Workers, Local 636; Joni Smith, Eric Valois, and Ilana Liberman, for St. Catharines Hydro-Electric Commission.

DECISION OF THE BOARD; May 14, 1993

1At the hearing on May 10, 1993 in this matter, the St. Catharines Hydro-Electric Commission ("St. Catharines Hydro"), which filed an intervention, was made a responding party.

2This is an application under section 91 of the Labour Relations Act, in which the applicant alleged that the responding trade union had treated him in a manner contrary to section 69 of the Act in that it had improperly refused to take his discharge grievance to arbitration. The applicant requested that the Board order the trade union to take his grievance to arbitration, to pay all the cost thereof, and to compensate him for all lost wages and benefits plus interest.

3At the conclusion of the applicant's case, the responding trade union made what is referred to in the courts as a motion for non-suit, which the trade union requested be dealt with without it being required to elect whether it wished to call evidence. Upon considering the representations of the parties in that respect and with respect to the merits of the trade union's motion, I ruled, orally, that the Board had the jurisdiction to hear the motion without putting the trade union to its election and, that it was appropriate for the Board to do so in the circumstances of this case. I further ruled, also orally, that the complaint should be dismissed. Although I provided brief oral reasons at the time, I wish to provide more complete written reasons as follows.

4I was satisfied that the Board has the jurisdiction to hear a motion for non-suit without putting a party to its election for the reasons given in Hurley Corporation, [1992] OLRB Rep. Aug. 940. I was also satisfied that, in the circumstances as revealed by the evidence presented by the applicant, that it was fair and reasonable to hear that motion in this case.

5Section 69 of the Labour Relations Act provides that:

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.

Often referred to as establishing a "duty of fair representation", section 69 requires a trade union to represent employees of whom it is the exclusive bargaining agent in a manner which is free of ill-will and which is neither arbitrary nor discriminatory. Complaints that a trade union has failed to represent an employee fairly generally involve a refusal by the union either to file a grievance for the employee, or, if a grievance was filed, to take the grievance to arbitration. Of course, the mere fact that a trade union has refused to take a grievance to arbitration does not mean that it has breached the duty of fair representation imposed by section 69. In Canadian Merchant Service Guild v. G. Gagnon, 1984 CanLII 18 (SCC), [1984] 1 SCR 509 at page 527, the Supreme Court of Canada reviewed the principles applicable to a trade union's duty of fair representation as follows:

1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.

2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.

3. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of the consequences for the employee on the one hand and the legitimate interest of the union on the other.

4. The union's decision must not be arbitrary, capricious, discriminatory or wrongful.

5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.

This is both a useful general guideline for assessing a trade union's representation and is consistent with the Board's approach to fair representation complaints.

6Honest mistakes, innocent misunderstandings, simple negligence, or errors in judgement will not, of themselves, constitute "arbitrary" conduct within the meaning of section 69. In other words, a trade union has a kind of "right to be wrong". Terms like "implausible", "so reckless as to be unworthy of protection", "unreasonable", "capricious", "negligent", and "demonstrative of a non-caring attitude" have been used to describe conduct found to be arbitrary within the meaning of section 69 (see, Consumers Glass Co. Ltd., [1979] OLRB Rep. Sept. 861, 1. T. E. Industries, [1980] OLRB Rep. July 1001, North York General Hospital, [1982] OLRB Rep. Aug. 1190, Seagram Company Ltd., [1982] OLRB Rep. Oct. 1571, Cryovac, Division of W.R. Grace and Co. Ltd., [1983] OLRB Rep. June 886, Smith & Stone, (1982) Inc., [1984] OLRB Rep. Nov. 1609, Howard J. Howes, [1987] OLRB Rep. Jan. 55, George Xerri, [1987] OLRB Rep. March 444, among others). Such strong words are applicable to the more obvious cases but may not accurately describe the entire spectrum of conduct which could be considered to be arbitrary. As the jurisprudence demonstrates, whether particular conduct will be considered to be arbitrary will depend on the circumstances.

7The term "discriminatory" in section 69 has been interpreted broadly to include all cases in which a trade union distinguishes between or treats members differently without a cogent reason for doing so (see, for example, The Municipality of Metropolitan Toronto, [1978] OLRB Rep. Feb. 143, Douglas Aircraft Co. of Canada Ltd., [19761 OLRB Rep. Dec. 779).

8Actions or decisions motivated by hostility, ill-will or other improper considerations constitute "bad faith" within the meaning of section 69 (see, for example, Chrysler Canada Ltd., [1979] OLRB Rep. July 618, John Farrugia, [1978] OLRB Rep. Feb. 152, Leonard Murphy, [1977] OLRB Rep. March 146, Canadian Union of Public Employees Local 1000 - Ontario Hydro Employees Union (sometimes cited as Walter Princessdomu), [1975] OLRB Rep. May 444).

9As I have already indicated, complaints that a trade union has acted in a manner contrary to section 69 of the Labour Relations Act often relate to the manner in which the trade union has dealt with a grievance. While the Board does not act as an arbitrator of a grievance in complaints under section 69, facts material to the grievance will generally also inevitably be relevant to an assessment of the trade union's conduct, and, in some cases (see Angelo Ritrovato, [1986] OLRB Rep. Oct. 1401 for example) to an assessment of the appropriate remedy if a breach is found. Also relevant to the Board's consideration of a fair representation complaint are the importance of the grievance(s) in question to the complaining employee(s), the implications of the grievance(s) for other bargaining unit employees and the trade union, the degree of consideration given to the matter by the trade union, and the factors, both relevant and otherwise, which the union considered in making its decision.

10In this case, the applicant's grievance was with respect to the termination of his employment. As such, the grievance was of the utmost importance to him, especially in today's economy. It is the kind of case which the Board examines, as I did in this case, very carefully, and where it is possible that some relief could be obtained at arbitration, a trade union which refuses to take a discharge grievance to arbitration generally bears the onus of accounting for its decision (Swingstage Ltd., [1983] OLRB Rep. Nov. 1920, Savage Shoes Ltd.,[1983] OLRB Rep. Dec. 2067, Howard J. Howes, supra).

11The thrust of the allegations in this application as filed was that the responding trade union refused to take the applicant's discharge grievance to arbitration because he had supported the organizing campaign of another trade union, the CAW-Canada, to supplant the responding trade union as the bargaining agent for the bargaining unit of employees of St. Catharines Hydro which included the applicant. Indeed, the application was prepared and filed by a representative of the CAW-Canada on behalf of the applicant. However, the CAW-Canada did not appear at the hearing of this matter, in any capacity. In the result, the applicant was left unrepresented. Further, the allegation that the responding trade union's conduct was motivated by the applicant's support for the rival CAW-Canada was not pursued at the hearing, and there was not even a hint of a suggestion that there was any basis for that allegation.

12It was apparent that the applicant found himself in unfamiliar territory at the hearing and that he had some difficulty in marshalling his case. Persons involved in proceedings before the Board are entitled to appear with or without counsel or other representation. The Board is sensitive to the difficulties faced by persons who appear before the Board without representation. Consequently, the Board generally, and as I did in this case, give such persons somewhat greater latitude in the manner in which they present their case. Nevertheless, as I explained to the applicant, the rules of procedures and the law applicable to proceedings before the Board are the same for all parties, whether they are represented or not. Choosing to appear unrepresented, or otherwise failing to inform itself does not relieve a party of the obligation to prove its case. Considerations of onus, procedure and the law apply equally to parties which appear unrepresented and those which are represented. A party which chooses not to retain counsel, or fails to obtain the appropriate legal advice, or otherwise fails to inform itself, must live with the consequences of that choice. Certainly, no party can expect to find itself in a more advantageous position procedurally or in law because it is unrepresented.

13Early in the applicant's testimony it became apparent that he wished to rely on various notes or other documents which might be objected to by one or both responding parties. In an effort to expedite a complete hearing of the matter, I indicated that I intended to listen to everything which the applicant wished to say and to receive all the documents he wished to present, and to reserve on the admissibility, relevance or weight to be given to any such evidence, which questions could be addressed by the parties in argument. This procedure was acceptable to all parties and the hearing proceeded on that basis.

14At the time of his discharge by the responding employer on August 21, 1992, the applicant was a long-term employee with some twenty-five years of seniority. Between January 18, 1989 and January 31, 1991, the applicant had compiled a disciplinary record consisting of a written warning, two one-day suspensions, a two-day suspension and a three-day suspension. Then, on May 20, 1992 the applicant was discharged. This first discharge was grieved and the grievance was settled on the basis of a memorandum of settlement dated June 1, 1992 as follows:

MEMORANDUM OF SETTLEMENT

BETWEEN:

ST. CATHARINES HYDRO-ELECTRIC COMMISSION

("the Commission")

• and -

THE INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, LOCAL 636

("the Union")

• and -

KEN HOMER

("the Grievor")

Re: Grievance of Ken Homer

#92-04. dated May 22, 1992

The parties agree to settle this matter and Ken Homer shall be reinstated, effective Monday, June 1, 1992, without compensation into the position he previously held with the Commission on the following terms and conditions:

1. The Union and the Grievor shall withdraw grievance #92-04 dated May 22, 1992.

2. The Grievor shall receive no compensation for the period from the date of his termination to the date of his reinstatement and this period shall be deemed to be a disciplinary suspension.

3. The Union and the Grievor acknowledge that the Grievor's past employment record exhibits an attitude of disregard and disrespect for the rules of the Commission. His conduct in this regard has been the subject of previous discipline including both reprimands and suspensions.

4. In the future, the Grievor shall abide by all rules, practices, policies and procedures of the Commission including, without limiting the foregoing, the Corporate Health & Safety Policy and Procedure Manual. The Grievor shall seek clarification from his supervisor of any rule, practice, policy or procedure which he does not completely understand.

5. The Grievor shall refrain from participating in any personal business during working hours. The Grievor shall also refrain from using the commission facilities for sleeping or eating quarters, with the exception of during his regular lunch break. Finally, the Grievor shall refrain from using any of the Commission vehicles for storage or transport of personal property, unless previously authorized in writing.

6. The Grievor shall enrol in and complete the Young Drivers of Canada Driver Improvement Program on his own time prior to July 30, 1992 and at his own cost, and practice all safe driving techniques as instructed in the programme. The Commission will reimburse the Grievor for 100% of the tuition cost upon proof by the Grievor of his successful completion of the programme. Cost of The Driver Improvement Program is $299.00.

The Young Drivers of Canada Driver Improvement Program consists of one 8 hour in class session plus three separate private in car instruction lessons lasting one and one half hours each. The regularly scheduled in class 8 hour sessions are from 8:30 a.m. to 5:00 p.m. on the following dates:

Saturday May 30, 1992

Saturday June 13, 1992* (Our recommended date)

July 1992 date not confirmed as yet

There is a Driver Evaluation associated with this program. All details of the Driver Improvement Program are attached for the Grievor's perusal.

7. The Grievor shall abide by the requirements of the Highway Traffic Act and Regulations.

8. The Grievor shall be mentally and physically fit at all times when reporting for duty.

9. The Grievor shall conduct himself with complete honesty and integrity in all his dealings with his supervisor.

10. The Grievor shall provide proper notification of all absences including, without limiting the foregoing, pre-scheduled medical appointments, vacation and sick leave.

The parties agree that the failure on the part of the Grievor to comply with any of the above applicable terms or conditions shall constitute just cause for the Grievor's immediate discharge. This specific penalty of discharge shall not be subject to modification by an arbitrator in any arbitration proceedings.

DATED at St. Catharines this 1st day of June 1992

"D. J. Lines"

For the Commission

"V. England"

For the Union

"Ken Homer"

For the Grievor - Ken Homer

A clarifying letter of understanding dated June 1, 1992 was issued at the request of the responding trade union as follows:

June 1,1992

File Reference H07

Mr. Harold Vance

IBEW. Local 636

3 Forwell Road

Kitchener, Ontario

N2B 1W3

Re Grievance 92-04 (Ken Homer)

As promised, a letter of understanding on the last clause of the conditions for the return to work of Ken Homer.

The clause does not deny Ken Homer the right to grieve dismissal. This is borne out by the works "Grievor" and "Arbitrator". The clause restricts the power of the arbitrator in that, if the arbitrator finds for the employer the penalty is dismissal, however we would be ill advised to bring any dismissal action against Ken, that is of a frivolous nature, knowing that an arbitrator may find for the grievor under such circumstances.

I trust that the foregoing provides you with the reassurance that you are seeking.

Yours truly,

"David J. Lines, P.Eng., M.B.A.

GENERAL MANAGER & SECRETARY

15The applicant does not complain, in this application, of the manner in which he was represented by the responding trade union with respect to any of this previous discipline, including the first discharge. Although there was some debate about the circumstances surrounding the June 1, 1992 memorandum of settlement, I was satisfied that the applicant had agreed to and signed it voluntarily, and with full knowledge of what he was getting and giving up. The applicant specifically conceded that he chose to sign the memorandum of settlement which he understood contained special rules for him so that he could return to work immediately rather than waiting four to five months for his grievance to be arbitrated, perhaps unsuccessfully.

16Less than three months later, the applicant was discharged for a second time. In a three-page discharge letter to the applicant dated August 21, 1992, the employer recited numerous alleged specific violations of the June 1, 1992 memorandum of settlement and stated that:

Since your reinstatement on June 1st, 1992, you have exhibited behaviour which is unacceptable and is not conducive with that of a person wishing to conform with the Rules, Regulations, Policies and Procedures of St. Catharines Hydro-Electric Commission. St. Catharines Hydro has given you every opportunity to be part of this organization but you have given us no alternative but to discharge you from our employment effective 4:30 p.m. today.

17The responding trade union grieved this second discharge and processed the grievance through the grievance procedure in the collective agreement between the responding parties. The grievance was delivered on August 24, 1992 and the requisite grievance meeting was held on August 31, 1992. The applicant met with representatives of the responding trade union to discuss the matter prior to going in to the grievance meeting with representatives of St. Catharines Hydro. While the applicant complained that he would have liked to have had more time to discuss the matter before going in to the grievance meeting with St. Catharines Hydro, there is no indication that he was in any way prejudiced by this. Further, it is clear that he had a full opportunity to state his case at the grievance meeting and that he, and the responding trade union on his behalf, did so. There is nothing to indicate that the responding trade union's representation of the applicant prior to or at the grievance meeting was anything other than proper (indeed, the applicant made no complaint in that specific respect).

18St. Catharines Hydro denied the grievance. Its decision is recorded in a letter dated September 4, 1992 which is referred to on the grievance form in a notation dated September 3, 1992.

19On September 18, 1992, Harold Vance, the responding trade union's Business Representative, telephoned the applicant. In a discussion with the applicant and his wife, Vance advised them that the trade union, upon considering the grievance and legal advice it had received, had decided that the grievance could not succeed at arbitration and that it would not be pursuing the grievance further. Subsequently, Vance advised St. Catharines Hydro of the union's decision by letter dated September 22, 1992.

20The applicant sought to rely on a letter dated May 3, 1993 from D. J. Lines, St. Catharines Hydro's General Manager and Secretary at the time of the second discharge and grievance, and the person who decided to deny the grievance. This letter, which referred to a meeting the applicant testified he had with Lines on September 19, 1992, after the responding trade union had advised him that it would not be pursuing his grievance to arbitration, reads as follows:

Further to your recent enquiry regarding a meeting that we had shortly after your dismissal from St. Catharines Hydro, I must inform you that I cannot recall specific details of the conversation. However, I do recall being surprised, at that time, that the union (IBEW Local 636) was not prepared to file a grievance on your dismissal, notwithstanding the letter that you had previously signed. I felt that management's case was marginal and I was concerned that an arbitrator may have reinstated you, regardless of the letter.

I also recall thinking that in the event of reinstatement, management would have to find you a position which would afford you closer supervision. I believe that I did also consider the possibility of a "buy out package", although my thoughts were really directed to contingency plans for your reinstatement and your continued employment with the utility, following such an event by an arbitrator.

I trust that the foregoing is of interest to you.

I considered this letter to be of dubious probative value. Lines was himself fired by the employer before he wrote the letter, he was not present and available at the hearing to testify, and the applicant himself conceded that Lines was probably only trying to make him feel better.

21Why the applicant had that sense may be explained by his concession at the hearing of this matter that most of the allegations in the August 21, 1992 discharge letter were true. While he tried to explain or rationalize what had happened, the applicant conceded that he was one hour late for work on each of June 9, July 16, and July 17, 1992, that he was twice warned for this lateness, that he offered no explanation for an absence from work during the morning of August 11, 1992, that he took and did not record in the required manner a break on June 8,1992, that he was discovered to have taken a shower during regular working hours on June 17, 1992, that medical appointments had not been accurately recorded, that he had failed to complete the Young Drivers of Canada Driver Improvement Program as specified in the June 1, 1992 memorandum of settlement, and had then lied about it, and that he attended to personal affairs (laundry) during regular working hours on August 17, 1992.

22Any one of these occurrences could have constituted just cause for discharge pursuant to the terms of the June 1, 1992 memorandum of settlement. Even if St. Catharines Hydro could have been precluded from relying on the events prior to August, 1992 on the basis that it had failed to act on them in a timely manner, it was clearly open to St. Catharines Hydro to discharge the applicant for his transgressions in August, 1992. Since the parties have specifically agreed that the penalty of discharge would not be subject to modification in the arbitration proceedings, no explanation the applicant could offer could have had any effect on the result at arbitration. (I note that all the material events occurred prior to the extensive amendments to the Labour Relations Act which came into force on January 1, 1993, including section 45(9) of the Act.)

23The applicant also sought to rely on the letter from Mike Sullivan as follows:

I have been asked if I thought there was an option available to a Union member that has a grievance go through the normal grievance procedure but is unsatisfied with the answers received from the Local Union on the matter.

It has been my experience, having served on the Executive Board of L.U. 636 IBEW., that the Union member has the right to raise this matter with the Local's Executive Board and that the Executive Board would consider the matter.

24Sullivan was not present and available to testify at the hearing either. Further, I saw nothing in the International Brotherhood of Electrical Workers' International Constitution which supports his conclusion, including the provision in section 9 of Article XVIII referred to by the applicant.

25Finally, the applicant referred to Article 6 of the collective agreement between the responding parties and argued that the employer had failed to respond to the grievance in a timely manner and that his grievance should therefore have succeeded by default. In my view, the applicant's interpretation of the collective agreement was neither plausible nor supported by the evidence. The grievance meeting was clearly held within the time specified, and the employer clearly made its decision on the grievance within the specified time. The fact that the employer's decision may not have been communicated to the trade union at the same time as it made its decision is irrelevant, particularly since there was no inordinate delay.

26In the result, there is nothing before the Board which suggested that the responding trade union either did not have or did not consider all relevant information, or that it considered any irrelevant matters, in deciding not to take the applicant's second discharge grievance to arbitration. Nor was there even a suggestion that the union had acted in a manner which was discriminatory or in bad faith. Nothing the trade union had done or not done required any further examination or explanation. In short, I was satisfied that on his own evidence, the applicant had presented no basis upon which this complaint could succeed.

27I therefore so ruled and dismissed this application as aforesaid. Further, and as I also observed in my oral decision at the hearing, there would have been no point to taking the applicant's second discharge grievance to arbitration in any event because there was no chance it could succeed. In my view, the responding trade union's decision to not proceed to arbitration was correct.

28The responding trade union asked that the Board order the CAW-Canada to pay its costs of this proceeding, essentially on the basis that it had encouraged this application which the Board had found to be without merit. Even if the Board has the general jurisdiction to award such costs, I am not satisfied that the Board can award costs against an entity which is not a party. The request is therefore denied.

29I was not without sympathy for the applicant in this case and the position he finds himself in, particularly in this economy. However, the applicant is not where he is as a result of anything which either of the responding parties have done.