[1995] OLRB Rep. March 266
0999-94-U Harold Goldson, Applicant v. CAW Canada, Local 112, Responding Party v. de Havilland Inc., Intervenor
BEFORE: Christopher Albertyn, Vice-Chair.
APPEARANCES: Harold Goldson on his own behalf; Merv Gray, Fred McLean and John Kennedy for the responding party; Hugh Dyer and Sonia Ventresca for the intervenor.
DECISION OF THE BOARD: March 21, 1995
1This is an application in terms of Section 91 of the Labour Relations Act. The applicant alleges that the responding party has violated section 69 of the Act by acting in a manner that is arbitrary, discriminatory or in bad faith in its representation of him.
2The applicant has a strongly felt sense of grievance against the responding party ("the Union"). He is frustrated by what he believes to be years of neglect of him by the Union. He has worked for the Company for 23 years and he feels that his years of contribution to the Union have brought him no satisfaction.
3The applicant concedes that the Union has never refused to file a grievance for him and he has filed many grievances over the years.
4On December 7,1993 the applicant concluded an agreement with the intervenor ("the Company") in terms of which the applicant agreed, in return for consideration paid to him by the Company, that:
this settlement is in full, final and complete settlement of all claims existing up to the date hereof, arising out of or in any way relating to his employment with [the Company].
5In terms of that settlement reached between the applicant and the Company, the applicant waived any claims he might have had as regards unresolved grievances arising out of his employment up to December 7, 1993.
6At the commencement of the proceedings the applicant explained that he had four complaints against the Union. They are:
the Union failed adequately to represent him as regards an incident which occurred on December 6, 1993, immediately prior to the conclusion of the settlement agreement referred to above;
the Union failed adequately to represent him in relation to a meeting of the production crew which occurred in July 1994;
the Union failed adequately to represent him in relation to a meeting between the applicant and his superior, Mr. Mayher, which occurred soon after the production crew meeting in July 1994;
the Union failed to secure a written apology from his supervisor, Mr. Downey, in settlement of a grievance of the applicant.
7I will address the evidence and argument in respect of each of these complaints in turn.
The first complaint
8The first complaint arises from an incident on December 6, 1993. At the start of the applicant's shift on that day he found an anonymous abusive note in his desk drawer, reading, in bold letters, "nigger monkey man go back to the jungle". The applicant was understandably extremely offended. He reported the matter to the Company's Employment Equity Co-Ordinator.
9Management inquired of the applicant what action he wanted taken. The applicant requested that the police be summoned to investigate. This was done. He was displeased by the investigation because he himself was interviewed only briefly by a police officer and he was asked a question which he considered irrelevant to the police inquiry.
10The Company's Chief of Security interviewed all of the employees who worked in the vicinity of the applicant on his shift, and those who had worked in that vicinity on the previous shifts to try to detect the perpetrator.
11Management convened a meeting of all of the employees who worked in the vicinity of the applicant, both on his shift and on the previous shifts, and informed them that the racist and harassing conduct of the person(s) who had placed the offending note in the applicant's drawer would not be tolerated, and that if the perpetrator(s) was apprehended s/he or they would be severely disciplined.
12The Union's Committee representative of the applicant was away from the plant at the time of the incident. When he returned he immediately convened a meeting between the applicant, the Union Local's President and its Chair, to consider what action the Union should undertake to support the applicant. The Union~ s senior office-bearers explained to the applicant that the Union would not tolerate the offending conduct and that the Union would reiterate its policy on workplace harassment. The Union office-bearers clarified that the Union's national policy on workplace harassment would be strictly adhered to.
13For some years prior to the incident, the Union had a workplace harassment policy in all of its union shops. A copy of that policy was submitted in evidence. It takes a firm stand against all forms of workplace harassment, including racial harassment.
14For some time prior to the offending incident, the Union and the Company had jointly undertaken a process of training of the Company's employees to make them aware that workplace harassment will not be tolerated.
15The applicant's Union Committee representative sought, and obtained, permission from management to shut down the shop and to convene a meeting of all employees working on the floor with the applicant. That meeting was addressed by the Union Local's Chair, Mr. Gray. He made clear in the meeting that the Union would not tolerate workplace harassment and that it would not assist any employee engaged in any activity which violated the Union's anti-harassment policy. In his words, any Union member guilty of workplace harassment, was "on his own
16The Union convened a second meeting of all of the employees in the upstairs shop too, for the same purpose.
17At the conclusion of the general meetings, the applicant's Union Committee representative, Mr. McLean, took the applicant aside and inquired of him if there was anything more he wanted the Union to do. The applicant stated that there was not much more that the Union could do, given that the perpetrator(s) of the offending act had not been found. Mr. McLean gained the impression from the applicant that he was satisfied with the Union's efforts to support him.
18The applicant was unable to state what more the Union should have done on his behalf in respect of this incident. He feels a general sense of grievance against the Union, but he cannot specify what more the Union could have done in this instance. At the time the applicant did nothing to suggest any dissatisfaction with the manner in which either management or the Union handled his problem. No grievance was filed by the applicant.
19The Union's and the Company's representatives argued that the Union had responded more than adequately when its office-bearers were informed of what had happened. The Union is taking general preventive action to limit the occurrence of workplace harassment by publishing its policy with the plant and by undertaking jointly with management the training of employees in what conduct is acceptable at work, and what is not.
20In addition, as soon as the Union became aware of what had occurred it convened a meeting of the full work crew and its Chair addressed them, informing them that the Union would not tolerate such behaviour, and it would not defend any employee guilty of racist or harassing behaviour.
The Second Incident
21In July 1994 management convened a meeting of the production crew from the area where the applicant works. The applicant is not part of the production crew. His job is to inspect the work of production employees. The inspectors were not invited to the meeting.
22At the production crew meeting, management inquired if the employees had any concerns. Some expressed concerns that the applicant was inconsistent in the manner in which he conducted his inspections. Some felt that he was more demanding of some production crew members than of others. The Union's alternative committee representative, Mr. Ferguson, happened to be present in the meeting, as an observer.
23The applicant complains that Mr. Ferguson had not come to him after the meeting to inform him that certain employees had raised certain concerns about him. That is the extent of this complaint.
24The Union argued that there was no obligation whatsoever upon Mr. Ferguson to report to the applicant of what had been said at a production crew meeting about him. Mr. Ferguson was at the meeting as an observer. He had no particular interest in the meeting. It was a management meeting, convened in terms of the management's rights article of the collective agreement. Mr. Ferguson had no control over that meeting, nor any authority to intervene in any manner in relation to that meeting.
25The Company made similar submissions. It argued that the meeting had nothing to do with the Union. It was a management-convened meeting to hear the concerns of the production crew, many of whom were upset by what they believed to be favouritism on the part of the applicant in the conduct of his inspections -
The third incident
26Soon after the meeting with the production crew, Mr. Mayher, the applicant's manager, convened a meeting of the applicant, Mr. Ferguson in his capacity as the applicant's representative, and Mr. Roll, the applicant's immediate supervisor.
27Mr. Ferguson had no notice of the purpose of the meeting before being required to attend. Its purpose was for Mr. Mayher to inform the applicant of the concerns of some of the production crew, and to counsel him to apply any even standard to all production employees equally. The meeting had no disciplinary purpose. The applicant was not disciplined. Mr. Mayher informed him of the concerns of certain members of the production crew that the applicant was showing preference to some of them in the manner in which he conducted his inspections. The applicant inquired if Mr. Mayher was suggesting that he was not doing his job properly. Mr. Mayher made clear that that was not what he was saying. There was no question about the applicant's ability to do his work. Thereupon the applicant left the meeting. No further consequences flowed from the meeting.
28The applicant contended that he was harassed by Mr. Mayher in the meeting. Mr. Ferguson did not agree with that observation. He did not feel that the applicant was harassed in the meeting.
29The applicant made no request to Mr. Ferguson that he file a grievance on the applicant's behalf. There was no complaint made by the applicant to Mr. Ferguson concerning the meeting.
30At the hearing of this application the applicant complained that Mr. Ferguson ought to have notified him of the purpose of the meeting in advance of it, he ought to have spoken up for him at the meeting with Mr. Mayher, or he should later have filed a grievance on his behalf.
31The Union argued that Mr. Ferguson acted entirely properly in the manner in which he dealt with the situation. He observed what occurred at the meeting. The purpose of the meeting was to counsel the applicant of complaints received by production employees. The meeting was convened by management with that purpose in mind. Mr. Ferguson was not called up by the applicant to make any representations, and nor were any representations appropriate. No discipline was taken against the applicant and he suffered no prejudice whatever as a consequence of the meeting.
32The Union argued that there was no obligation on Mr. Ferguson himself to file a grievance in the absence of a request from the applicant.
33The Company made similar submissions.
The fourth incident
34Mr. Downey, then the applicant's supervisor, tore up a written submission made to him by the applicant. He acted wrongly in doing so. The Union filed a grievance on the applicant's behalf.
35At the second stage meeting concerning the grievance, Mr. Downey apologized for having done what he did. The applicant said that he would accept the apology if it was in writing.
36On two occasions the applicant's Union representative, Mr. McLean, went to Mr. Downey to secure the written apology and eventually Mr. McLean managed to have the grievance form altered so as to record Mr. Downey's apology in writing.
37A written record of Mr. Downey's apology was presented in evidence at the hearing.
38The evidence of Mr. McLean for the Union is that he showed the written record of Mr. Downey's apology to the applicant. The applicant denied ever having seen the written apology, although his recollection of the matter was not good.
39The Union's submission is that the applicant's grievance was properly pursued and successfully resolved in the manner sought by the applicant.
Conclusions
40I find that there is nothing in the evidence to suggest any breach whatsoever of the Union's duty fairly to represent the applicant. On the contrary, the evidence suggests that the Union acted at all times with due diligence in relation to the applicant. Far from there being any breach of section 69 of the Act, the evidence suggests that there is no reasonable cause for complaint by the applicant.
41As regards the first incident, nasty and hurtful though it must have been to the applicant, the Union did all it could to re-assert the principles of equality and fair treatment it had sought to promote among its members. It took the unusual step of stopping production and having its Chair address the whole work crew to explain to them that racial harassment was completely unacceptable behaviour which the Union would not tolerate.
42As regards the second incident, the management meeting of July 1994, the Union had no role to play. The meeting was called by management to listen to complaints expressed by employees against the applicant in respect of the manner in which he inspected their work. The Union representative attended that meeting to observe what was happening, but he had no obligation to convey to the applicant what had transpired at the meeting.
43When the applicant learned of what had been said about him at the meeting, he was entitled to file a grievance should he have chosen to do so. The evidence revealed that the applicant was familiar with the operation of the grievance procedure and that he had filed many grievances in the past. He chose not to file a grievance in this instance. There was no action which the Union ought to have taken in the absence of a grievance by the applicant.
44Hence I find nothing improper in the Union's conduct in respect of the second complaint.
45Mr. Ferguson had no prior knowledge of the purpose of the meeting in Mr. Mayher's office. He could not therefore have informed the applicant of its purpose prior to the meeting.
46The meeting in Mr. Mayher's office was for the purpose of coaching or counseling the applicant. He was not disciplined in that meeting. There was nothing which Mr. Ferguson should reasonably have said, given what transpired in the meeting. The applicant inquired if his work was being criticized and Mr. Mayher told him that that was not so. That concluded the meeting. The applicant did not pursue any aspect of that meeting. He did not discuss the matter with Mr. Ferguson. He never complained to Mr. Ferguson about his failure to speak at the meeting. He never filed a grievance against the Company arising from the meeting to enable the Union to address any concerns the applicant might have had concerning the meeting. The applicant made no follow up at all. In the circumstances it was reasonable for Mr. Ferguson to conclude that nothing further was expected of him in relation to that meeting.
47The applicant contended that Mr. Ferguson should himself have filed a grievance for the applicant arising from what occurred at the meeting in Mr. Mayher's office. That was not a reasonable expectation of Mr. Ferguson. It would have been risky, and perhaps foolhardy, for Mr. Ferguson to have filed a grievance for the applicant without his prompting and his support. Mr. Ferguson acted correctly in taking no further action.
48The fourth incident was resolved to the applicant's satisfaction. He was issued a written apology by Mr. Downey. That apology was written as a direct consequence of the persistence of Mr. McLean, the applicant's Union representative. The only dispute is whether that apology was then shown to the applicant by Mr. McLean. To the extent that the credibility of the witnesses is at issue to decide the matter, the applicant was not a good witness. He was evasive and vague. His recollection of events readily shifted during the course of his testimony. Mr. McLean's evidence was that he showed the grievance form to the applicant. The form records the resolution of the grievances as follows, "The supervisor has apologized to the grievor and regrets the incident happening". Mr. McLean explained to the applicant at the time that the wording was such that a written apology had been provided to the applicant.
49In the circumstances I find nothing remiss in the Union's conduct in respect of the fourth incident. The applicant's grievance was pursued by the Union and the Union secured the settlement sought by the applicant.
50In light of the above considerations I find that there is no substance in the applicant's complaints. The application is accordingly hereby dismissed.