Ivan Cvicek v. Schneider Employees Association, 1995 CanLII 10055

[1995] OLRB Rep. February 105

2825-94-U Ivan Cvicek, Applicant v. Schneider Employees Association, Respond­ing Party v. J.M. Schneider Inc., Intervenor

BEFORE: Laura Trachuk, Vice-Chair.

APPEARANCES: T. J. Billo and Ivan Cvicek for the applicant; Edward Babin, Charles Losier and Don Flynn for the responding party; Michael Kennedy and Steve Caron for the intervenor.

DECISION OF THE BOARD; February 9, 1995

1. This is an application under section 91 of the Labour Relations Act alleging that the Schneider Employees Association (sometimes referred to in this decision as "the union") violated section 69.

2. The applicant alleges that the union acted arbitrarily in investigating the circumstances surrounding his discharge and in determining not to proceed to arbitration with his grievance.

3. Section 69 of the Labour Relations Act provides 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.

4. The Board finds that the responding party did act arbitrarily in its representation of the applicant, thereby violating section 69 of the Act.

The Facts

5. There is little dispute about the relevant facts in this matter. Mr. Cvicek has worked continuously for the intervenor (sometimes referred to in this decision as "the company") since 1977. He is 53 years old and has four children. Mr. Cvicek was born in the former Yugoslavia and still has family there, including his mother. He is trained as a meat cutter and the company is a meat processing operation.

6. In 1988 Mr. Cvicek sustained an injury to his elbow in the workplace and has been on workers' compensation or modified work since that time.

7. On April 4, 1994 Mr. Cvicek was working washing out the vats with another employee, Dennis Lesperance. Mr. Lesperance, who is also a union steward, sprayed Mr. Cvicek with a power hose causing his pants to become wet and dirty with meat and fat. Mr. Cvicek told Mr. Lesperance that if he sprayed him again he would make him eat the contents of a bucket. Mr. Cvicek testified that he heard Mr. Lesperance say to another employee named John "I got him good that time." Mr. Cvicek understood Mr. Lesperance to be referring to himself.

8. Mr. Lesperance then complained to a foreman that Mr. Cvicek had threatened him. Mr. Cvicek also went in search of the foreman to complain about Mr. Lesperance's actions, but Mr. Lesperance spoke to him first.

9. The next day Mr. Cvicek was advised that he must attend a meeting with management before starting work. He waited for several hours in the cafeteria for this meeting to take place. The president of the union, Charles Losier, attended on behalf of the applicant as did two other members of the union's executive. No one met with Mr. Cvicek before the meeting.

10. At the meeting the company advised Mr. Cvicek that he was being terminated for the incident on April 4. Mr. Cvicek was told that the company was "taking Dennis' story" over his. The company had met with Mr. Lesperance that morning with a different union representative present. No notes were available with respect to that meeting and no one testified with respect to what occurred there. Mr. Cvicek told the company and the union about Mr. Lesperance's com­ment to John.

11. After the meeting with Mr. Cvicek, Mr. Losier asked Mr. Lesperance if he had made the statement to John. Mr. Lesperance denied having spoken to John about Mr. Cvicek. It was somewhat unclear in Mr. Losier's evidence whether or not Mr. Lesperance denied having made the statement to John at all or whether he was only denying that they had been talking about Mr. Cvicek. Mr. Losier then asked Mr. Lesperance to check with both employees named "John" who worked in that area whether or not the statement had been made by himself about Mr. Cvicek. Mr. Lesperance reported back to Mr. Losier that both "Johns" agreed that he had not spoken to them about Mr. Cvicek. Mr. Lesperance did not testify.

12. Mr. Cvicek filed a grievance which went directly to the Step 3 grievance meeting as specified in the collective agreement. There was some dispute as to whether Mr. Cvicek attended that meeting, but the Board finds that he did. The company denied the grievance.

13. The union subsequently contacted both the Workers Compensation Board and the Human Rights Commission to determine whether or not Mr. Cvicek might have a complaint within their jurisdictions and was advised that he would not. However, during the summer of 1994 the union did represent Mr. Cvicek at a workers' compensation appeal unrelated to his discharge.

14. At the monthly meeting of the local executive and stewards on June 13, 1994, the issue of whether or not to proceed to arbitration with Mr. Cvicek's grievance was raised. This monthly meeting is attended by all of the union's local officers and stewards in Ontario, some 40 people.

15. As Mr. Lesperance is a steward, he attended the meeting and took the opportunity to present his version of the April 4 events. Mr. Cvicek asked to attend the meeting and was refused. The union's explanation for refusing to allow him to attend was that the collective agreement pro­hibits discharged employees from being on the company's premises, except for grievance meetings. The meeting was being held, as always, on the company's premises. Mr. Losier agreed that there is no requirement that these meetings be held on the company's premises and that there is at least one hotel within a mile of the workplace where a meeting could be held. However, he noted that if a meeting were held off the premises, the employees would be away from work longer and the union would have to get the company's approval. In this case, the company was neither asked whether employees could attend a meeting off the premises nor whether Mr. Cvicek could attend a meeting on the premises. The Manager of Employee Relations, Steve Caron, testified that he would have refused to allow Mr. Cvicek on the premises to attend the meeting.

16. At the June 13 meeting, a number of employees mentioned incidents which Mr. Cvicek had been rumoured to be involved in previously. However, Mr. Losier advised them that the only discipline in his file, and therefore the only thing that the company could rely upon besides the April 4 incident, was an incident in December, 1993 for which he had been suspended. The stew­ard and executive body voted to proceed to arbitration.

17. As the union's lawyer was not available for an expedited arbitration, the union decided to retain Mr. Billo, Mr. Cvicek's lawyer, to present the grievance at arbitration. Mr. Billo asked Mr. Losier to meet with him to prepare for the arbitration, and to bring all relevant documents, including whatever was in the personnel file. Mr. Losier had reviewed Mr. Cvicek's file in April and only found reference to the December 1993 incident. However, when Mr. Losier reviewed the file in June to prepare for his meeting with Mr. Billo, he found a number of other disciplinary notations. He advised the members of the executive of what he had found and they decided that they needed to hold an emergency steward and executive meeting to revisit the issue.

18. The emergency meeting was held on June 17. At that meeting, Mr. Losier presented all of the discipline related documents in Mr. Cvicek's file on an overhead projector so that everyone could read them. Although the documentation revealed a record of one physical altercation, two threats and one swearing incident which all took place after 1987, the documentation that Mr. Losier actually showed the meeting was voluminous and consisted of the following:

a) notice of a three-day suspension in 1987 for fighting;

b) notice of a balance of shift plus one day suspension in June, 1991 for threatening and spitting on another employee;

c) 6 pieces of correspondence from May and June 1992 relating to a sin­gle incident in which Mr. Cvicek swore at someone at the Health Centre. Some of these documents indicate that as a result of this inci­dent the company was requiring Mr. Cvicek to see a counsellor to help him deal with his temper. At least one of the people at the June 17 meeting, namely the recording secretary, was under the mistaken impression that this documentation dealt with two separate incidents of swearing. In fact, Mr. Losier himself appeared to be under that impression until the union's counsel pointed out to him that that was not the case;

d) 4 documents, including a doctor's report, relating to the incident in December 1993. These documents indicate that in December 1993 Mr. Cvicek advised someone at the counter in the Human Resource department who was helping him fill out a dental form, that someone in Calgary was holding five people hostage at the Workers' Compen­sation Board. He said something to the effect of: "Maybe I should do something like that here if that's what it takes to get something done". As a result of this incident, he was suspended for a month until he provided a doctor's report indicating that he could return to work. It was agreed that the period of time he was off would count as a suspension but that he would receive weekly indemnity benefits because the company was requiring him to see a doctor. The disci­plinary letter states that "any further occurrences of inappropriate behaviour will result in immediate termination of employment";

e) the termination letter dated April 6, 1994.

19. Mr. Cvicek was not permitted to attend the meeting of June 17. Mr. Lesperance again presented his version of the April 4 incident, but did not vote. Mr. Losier read a letter from Mr. Cvicek's counsel which outlined Mr. Cvicek's position and indicated that it was his legal opinion that Mr. Cvicek had a strong case for reinstatement. Mr. Losier gave a brief account of what he said was "Ivan's side of the story". He does not appear to have referred to Mr. Cvicek's claim that Mr. Lesperance had said to John "I got him good this time." Mr. Losier also advised the meeting that he was in favour of proceeding to arbitration and that it was the opinion of the union's regular counsel that the case was tough but winnable. Mr. Losier testified that he supported arbitrating the grievance because it was the union's information that Mr. Cvicek was on a list of disabled employ­ees that the company planned to terminate. At this meeting the executive and steward body voted 19 to 16 with 2 abstaining, not to proceed to arbitration.

20. Mr. Losier contacted Mr. Cvicek and his lawyer and advised them of the decision not to proceed to arbitration. Mr. Billo then wrote another letter to the union protesting this decision and asking to attend the next meeting of the stewards to discuss the situation. This letter was read at the next meeting. In the letter, Mr. Billo complained that neither he nor Mr. Cvicek had attended the earlier meetings. The local executive and stewards decided not to reconsider the earlier deci­sion.

21. Grievors in other matters have attended the steward and executive meetings to explain why their grievances should proceed to arbitration. In fact, an employee who had been suspended for horseplay and fighting attended the April, 1994 meeting. An employee who had been discip­lined for an altercation with another employee attended the June meeting. The collective agree­ment says that employees who have been suspended or discharged are not allowed on the prem­ises. However, once a suspended employee has returned to work, he or she can attend the steward's meeting. The result is that only discharged employees are prevented from attending these meetings to plead their cases for proceeding to arbitration.

22. In June, 1994 Mr. Cvicek asked Mr. Losier for the home addresses and telephone num­bers of Mr. Lesperance and Mr. Caron. When Mr. Losier refused to provide the information, Mr. Cvicek advised that he might follow them home. Mr. Losier felt that he must disclose this informa­tion to the people involved and did so.

23. The union constitution indicates that the National Grievance Committee, consisting of the National President (Mr. Losier), the Local Officers and the Steward of the Division where the grievance arises (Mr. Lesperance) shall deal with a grievance if no settlement is reached after the last step of the grievance procedure. The constitution also says that no grievance may be taken to arbitration without the express approval of the National Officers. However, Mr. Losier testified that~ as the National Officers and Local Grievance Committee participate in the executive and steward meeting and vote in that forum, the decision made by vote at that meeting determines whether a grievance will be taken to arbitration.

24. Mr. Losier has been president of both the local and the national union since 1988. He was vice-president from 1981 to 1988 and a steward from 1976 to 1981. He testified that he wrote the union's constitution. Mr. Lesperance had been a steward for 10 years and was therefore known to all of the other stewards. Mr. Losier testified that Mr. Lesperance knew some of the other stew­ards very well.

Decision

25. The Board has described arbitrary behaviour in a number of previous decisions. In Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, at paragraph 38, the Board stated:

38. With these thinking processes hidden from direct examination, a review of the behaviour of a trade union official must necessarily focus on what he did and the context in which he did it, as well as on what he says he thought. The result of the decision-making process is weighed against the facts and circumstances on which it is said to have operated. If the resulting interpretation of facts or of a collective agreement is found by the Board to be "reasonable" (Clifford Renaud, [1976] OLRB Rep. Jan. 967, ¶22; Jay Sussman, [1976] OLRB Rep. July 349 ¶11; ITE. Indus­tries Limited [1980] OLRB Rep. July 1001, ¶20), "not unreasonable" (Ivan Pletikos, [1977] OLRB Rep. November 776, ¶13), "not open to challenge" (Oil, Chemical & Automatic Workers International Union and its Local 9-698, [1972] OLRB Rep. May 521, ¶3), or at least "not implausible" (Canadian Union of Public Employees Local 1000 - Ontario Hydro Employees Union, [1975] May 444, ¶32), then the Board is inclined to find that the decision is not arbitrary. Where the decision maker, on the other hand, misapprehends facts and circum­stances which the Board considers "patent" and arrives at an "almost perverse" understanding of the facts and circumstances, the Board will conclude that union effectively barred itself from "directing its mind to the real question", and that in so doing it has acted in an arbitrary fashion; The Corporation of the County of Hastings, [1976] OLRB Rep. November 1072, ¶22. Where it is difficult to see a rational pathway between the facts and circumstances said to have been taken into account and the interests said to have been balanced on the one hand, and the result on the other, then there arises a rebuttable presumption that the decision was arbitrary.

39. The required thought process may involve more than the simple application of logic to the information then at hand. Decision making may be arbitrary if, before making its decision, the union fails to identify and seek out sources of further relevant information which should be taken into account in making that decision: Canadian Union of Public Employees Local 2327, [1981] OLRB Rep. June 523, ¶30; Swing Stage Ltd. re Alvin Plummer, [1983] OLRB Rep. Nov. 1920.

In Abdel Elejel, [1985] OLRB Rep. June 841, the Board wrote:

44. In order to find arbitrariness, this Board would have to conclude that the Union failed to direct its mind to the merits of the complainant's grievances or failed to enquire into or act upon available evidence or conduct any meaningful investigation to obtain the information to justify its decision. Alternatively, arbitrariness could be established if the complainant could show that the Union acted on the basis of irrelevant factors or principles or displayed an attitude that was indifferent, capricious or non-caring towards the complainant. (See I.T.E. Industries Limited, [1980] OLRB Rep. July 1001.)

And in Raymond McLeod, [1987] OLRB Rep. April 547, at paragraph 32, the Board stated:

32. The central issue which crystallized in this case is the extent of the union's responsibility under section 68 [now 69] to investigate Mr. McLeod's grievance. That section [69] imposes such a responsibility is well established in the Board's jurisprudence (see, for example, Swing Stage Ltd., [1983] OLRB Rep. Nov. 1920, Jeanne St. Pierre, [1986] OLRB Rep. June 883, and Central Stampings Limited, [1984] OLRB Rep. Feb. 215). To avoid the characterization of a decision as arbitrary, a union must, among other things, turn its mind to all the relevant facts in a case. It follows that the union must therefore make reasonable efforts to unearth the relevant facts so that they may be considered. Thus a union is required to enter into a process of collect­ing and evaluating information as a preliminary step to making a decision which is consistent with the duty of fair representation. As the Board noted in Savage Shoes Ltd. , supra:

33. The required thought process may involve more than the simple application of logic to the information then at hand. Decision making may be arbitrary if, before making its decision, the union fails to identify and seek out sources of further relevant information which should be taken into account in making that decision: Canadian Union of Public Employees Local 2327, [1981] OLRB Rep. June 623, ¶30; Swing Stage Ltd. re Alvin Plummer, [1983] OLRB Rep. Nov. 1920.

26. The applicant conceded that the responding party did not act discriminatorily or in bad faith in its dealings with him. It was argued, however, that the union had acted arbitrarily in failing to adequately investigate the circumstances surrounding the termination and in refusing to permit Mr. Cvicek to attend the executive and steward meeting. The union denied that it had acted arbi­trarily and argued that Mr. Losier had demonstrated a caring attitude to Mr. Cvicek throughout.

27. It is apparent to the Board that Mr. Losier was personally concerned about Mr. Cvicek and was looking for some way to alleviate the hardship that the termination imposed upon him. That is why it is so surprising that he responded so cavalierly to information which suggested the possibility that Mr. Cvicek had been sprayed, or reasonably thought he had been sprayed, on pur­pose. It appears that neither Mr. Losier, nor anyone else involved in this matter on behalf of the union, ever really put his mind to the question of whether Mr. Cvicek's behaviour was sufficiently inappropriate to be worthy of discipline if Mr. Lesperance had indeed sprayed him with water, meat and fat on purpose. It is this failure to consider a significant aspect of Mr. Cvicek's case against termination which must have led to Mr. Losier's puzzling decision to send the very person who had made the complaint which led to the discharge to investigate the matter and contact the named witness. Such negligence can only be explained by either the fact that Mr. Losier did not seriously consider that such a witness would be relevant or that he purposely wished to sabotage Mr. Cvicek's defence to his termination. Given Mr. Losier's apparent support for arbitrating Mr. Cvicek's grievance, the Board prefers the former explanation. Mr. Losier's actions were certainly not attributable to any inexperience on his part as he had been participating in the grievance pro­cess for 18 years.

28. The union's assumption that the circumstances in which Mr. Cvicek made the "threat" are not relevant to the discharge grievance would also explain why it permitted Mr. Lesperance to attend the meeting in which the decision of whether or not to go to arbitration was being made and to tell his side of the story without making it possible for Mr. Cvicek to do the same. The "story" being told by Mr. Lesperance is one in which he is either an innocent victim or a provacateur possi­bly worthy of discipline himself. The attendees at the meeting would be deciding whether to send the grievance to arbitration at least partly based on whether they thought Mr. Cvicek deserved his termination. It was therefore crucial that they receive a balanced account of events. Mr. Losier supposedly reported Mr. Cvicek's side of the story, but given his indifference to the possibility that Mr. Cvicek might have been provoked on purpose or might reasonably have thought he was, gives the Board no confidence that whatever story he told truly represented Mr. Cvicek's point of view. Mr. Lesperance should have either declared his conflict of interest and absented himself from the meeting, or arrangements should have been made to hold the meeting off the company's premises so that Mr. Cvicek could attend.

29. The Board has previously considered the impact of the participation of someone who has a personal interest in the outcome in the decision of whether to go to arbitration. In C. U. P. E. Local 67 (October 1993, unreported) the Board found that the participation of persons on the grievance committee who could be affected by the outcome of a number of "bumping" grievances was not a violation of the Act because the evidence established that the grievances in question were treated the same as those in which no potential conflict existed. In these circumstances, how­ever, the participation of Mr. Lesperance in the discussion of whether to proceed to an arbitration in which he might, as a finding of fact, be found at fault may very well have affected the outcome. His side of the story may have influenced the three people who made the difference on April 17. Had he not participated in the meeting, or had Mr. Cvicek been allowed equal time, the commit­tee may well have decided to go to arbitration. The union suggested that the Board find that the participation of Mr. Lesperance had no effect on the committee's decision because it had voted to proceed to arbitration at the meeting of June 13 even though he attended. The Board disagrees. At least some members of the committee may have decided to vote not to go to arbitration on June 17 on the grounds that Mr. Cvicek deserved to be terminated because of Mr. Lesperance's version of the April 4 events.

30. It appears to the Board that Mr. Cvicek had at least a reasonable chance of being reins­tated through arbitration. In circumstances such as these, where critical job interests are involved, the Board expects the union to provide a satisfactory explanation as to why it chose not to send the grievance to arbitration. (See Swing Stage Ltd., [1983] OLRB Rep. Nov. 1920.) In this case, the Board received no such explanation. Mr. Losier, the union's only witness, testified that he did sup­port taking the grievance to arbitration. He offered no explanation as to why, therefore, the union did not follow that course. The union appeared to consider it sufficient that the decision had been made by a vote of the executive and steward committee.

31. Although the union constitution designates a grievance committee, in practice the deci­sion of whether to send a grievance to arbitration is determined by a majority vote of the executive and steward body. However, the fact that such a decision was made by way of a vote is not an answer to a claim of arbitrariness. A group is as capable of acting arbitrarily as an individual. The union is still required to present the Board with an explanation as to why it decided not to proceed to arbitration. In the absence of such an explanation, and in light of the apparent merits of Mr. Cvicek's grievance, the union's failure to investigate his story or to allow him to participate in the meeting leads the Board to the conclusion that it acted arbitrarily.

32. The applicant has requested that this matter be referred to arbitration and that the applicant's counsel be used in the hearing. As the Board has found that the union acted arbitrarily in deciding not to send this grievance to arbitration, the appropriate remedy is to direct that it do so. However, the Board's practice in these cases is to direct that the applicant and the union agree to counsel to present the grievance at arbitration, and the Board considers that to be the appropri­ate remedy in this situation as well. The company will be directed to waive any preliminary objec­tions to a hearing on the merits with respect to timeliness.

33. For the foregoing reasons, the Board hereby makes the following orders:

1. that the responding party union forthwith refer the applicant's griev­ance to arbitration either by the expedited procedure under the Labour Relations Act or, if the applicant agrees, by way of the arbi­tration provisions of the collective agreement;

2. if the grievance is not settled prior to a hearing on the merits, that the company waive any preliminary objections with respect to timeli­ness;

3. that the union and the applicant agree to a representative to present the grievance at the arbitration hearing.

34. The Board will remain seized of this complaint for the purpose of entertaining the rep­resentations of the parties with respect to the amount of compensation which is to be borne by the union in the event that an arbitration award provides for compensation to be paid to the complain­ant. The Board also remains seized of this complaint for the purpose of resolving any matter arising out of the interpretation or implementation of the above order.