[1994] OLRB Rep. august 1009
0412-94-U; 0718-94-U George Lee, Applicant v. Local 75, Union Representative Cledwyn Longe, Responding Party
BEFORE: R. O. MacDowell, Vice-Chair.
DECISION OF THE BOARD; August 12, 1994
Board File No. 0412-94-U (filed May 5, 1994) and Board File No. 0718-94-U (filed May 30, 1994) are hereby consolidated.
These are applications under section 91 of the Labour Relations Act, alleging that the respondent trade union has contravened or may contravene section 69 of the Act. Section 69 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.
Mr. Lee claims that his employer, the Chelsea Inn, has improperly removed him from the seniority list. In his May 5 complaint, he contends that the union will not accept a grievance on his behalf. In his May 30 complaint he contends that the union is not taking his grievance to arbitration. However, dispite Mr. Lee's assertions, it does not appear that there has been any concrete of final determination not to go to arbitration; moreover, it is not clear that there could be until the grievance procedure has been exhausted.
Section 69 requires a trade union to act fairly, (among other things), in the handling of employee grievances. But section 69 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 and the likelihood of its success - that is, whether the facts upon which the employer relies can be successfully rebutted, whether the employer's actions clearly establish a breach of the collective agreement, and so on. The trade union must give each grievance its honest consideration, but so long as the arbitration process involves a significant financial commitment and may have ramifications beyond the individual case, a trade union is not only entitled to settle grievances, in many cases it should do so. In Catherine Syme, [1983] OLRB Rep. May 775, the Board described the situation this way:
Section 68 [now 69] 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 only 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 obstinately 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 on 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 interest 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 grievance does not go to arbitration does not, in itself, establish any arguable breach of the Labour Relations Act. That is an every day occurrence in the labour relations world. Indeed, if the grievance procedure is working properly, one would expect that cases would be resolved - either by the employer recognizing that it has made a mistake, or the union recognizing that the employer was right, or the union recognizing that whether the employer was right or wrong, its actions can not be successfully challenged at arbitration.
I repeat, it is perfectly normal for cases not to proceed to arbitration; and, against that background, it is difficult to conclude that an employee makes out an arguable case of a breach of section 69 merely by stating that fact.
However, quite apart from whether the complaints make out an arguable case, it appears to me that they are premature. From the material before me, it appears that Mr. Lee's grievance is still in the grievance procedure and no final determination has yet been made about whether it will or will not proceed to arbitration. Accordingly, at this point, there does not appear to be any purpose to be served by formal litigation.
For the foregoing reasons, and in the exercise of the Board's discretion under the Rules and section 91(1)of the Act, these two applications are dismissed.
Such dismissal is, however, without prejudice to the applicant's right to file a new application in a timely way. However, should the applicant file a new application, he must carefully set out all of the facts upon which he relies including: the basis for his claim against the employer; the reasons why, in his submission, the employer has contravened the terms of the collective agreement; the acts or omissions of the union officials that, Mr. Lee asserts, constitutes conduct that is "arbitrary, discriminatory, or in bad faith"; and any documents upon which he relies or to which he will refer in the course of the proceeding. These details are necessary so that the responding parties will understand the allegations that are being made against them, and so that the Board will be able to fairly determine the dimensions of the dispute.