William Hill Jr. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local 938
[1995] OLRB Rep. January 21
2865-92-U William Hill Jr., Applicant v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local 938, Responding Party
BEFORE: G. T. Surdykowski, Vice-Chair.
APPEARANCES: C. I. Abbass and William Hill (Jr.) for the applicant; Steve Lavender, Ray Bartolotti and Joe McGlade for the responding party.
DECISION OF THE BOARD; January 25, 1995
- The name of the responding trade union is amended to: "International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local 938."
I
This is an application under section 91 of the Labour Relations Act. Originally, the applicant complained that the responding trade union ("Local 938") had dealt with him in a manner contrary to sections 69 and 70 of the Labour Relations Act. The applicant did not pursue his allegation that Local 938 had breached section 70.
Section 69 of the Labour Relations Act establishes a duty of care on trade unions, commonly referred to as the "duty of fair representation". It provides that:
- 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.
In essence, the applicant alleges that Local 938 dealt with his July, 1992 and October, 1992 discharge grievances in a manner contrary to section 69.
Prior to coming before me on November 18, 1994, this matter and three other similar applications came before the Board (differently constituted) on March 22, 1993. Although the four applications were listed to be heard together, the Board determined that they were discreet matters, unrelated except in time and the fact that there is a common responding party (and employer). At the March 22nd hearing, Local 938 moved that the application be dismissed because it lacked particularity and failed to disclose a prima facie case. The Board agreed that the application lacked particularity, but in light of "the nature of the case and the inexperience of the complainant in matters before the Board" allowed him to give oral particulars.
Subsequently, by decision dated April 20, 1993, the Board recorded the oral particulars provided by the applicant, and then denied Local 938's motion for dismissal as follows:
- ... In the Board's view, there is sufficient material pleaded to warrant the matter being sent on for hearing. Addressing only the case as stated by the complainant, we observe that this complaint involves a discharge grievance, arguably the most serious kind of a grievance. The complainant's position amounts to there having been no culminating incident, and he cites examples of what would appear to be more serious misconduct where equally serious consequences did not follow. As well, it seems that the union may have processed those other matters to arbitration. He is not in a position to explain the difference in treatment he alleges occurred in this case.
- The Board scheduled the application to be heard on August 17, 1993. That hearing was adjourned sine die on agreement of the parties. By letter dated August 4, 1994, some two weeks before the one year adjournment deadline expired, the applicant asked that a hearing be scheduled for August 15, 1994. At the request of Local 938, that hearing was rescheduled for October 24, 1994. The October 24, 1994 hearing was adjourned to November 18, 1994 on agreement of the parties.
II
At the hearing before me, counsel for the applicant said that he intended to assert that Local 938 had acted in bad faith in that its alleged failure to represent the applicant fairly was motivated by or resulted from the applicant's activities in an internal union election. Local 938 objected to this on the basis that this was the first time this allegation had been raised. In response, counsel for the applicant asserted that Local 938 should not be taken by surprise because this election issue had been raised by at least two of the other applicants when the four applications came on before the Board together on March 22, 1993, and that the applicant should continue to be given the same leeway in the presentation of his case as he was then because he initiated these proceedings as a lay person.
Upon considering the representations of counsel with respect to this issue, I ruled that the applicant would be restricted to the allegations in the particulars as set out in the Board's April 20, 1993 decision as aforesaid, and that evidence relating to the internal union election activities of the applicant or others was inadmissible in this proceeding.
The Board is sensitive to the difficulties which unrepresented parties face when they become involved in proceedings before the Board. As a result, unrepresented parties often receive some leeway in hearings before the Board, as the applicant did in this case at the hearing on March 22, 1993. However, the Rules of Procedure and the law applicable to proceedings before the Board are the same for all parties, whether they are represented or not. Choosing not to retain counsel or obtain other representation, or otherwise failing to properly inform oneself, does not relieve a party of the obligation to properly put forward and prove its case. A party cannot expect to find itself in a more advantageous position because it appears before the Board unrepresented. Further, in this case, the applicant was represented by counsel prior to and at the November 18, 1994 hearing.
The Board's Rules of Procedure (and the Statutory Powers Procedure Act) require that allegations of misconduct be particularized in a timely manner. This requirement is rooted in both legal and labour relations considerations. The legal consideration is that as a matter of natural justice a party against which allegations of wrongdoing are made must be given sufficient timely notice of what those allegations are to enable it to know and prepare for the case it must meet. The labour relations consideration is that proceedings not be unduly delayed because of the prejudice which, as a general matter, is inherent in delay in labour relations matters.
When an allegation either has not been made or has been insufficiently particularized, the Board may not allow it to be pursued, or may require the particulars be provided. The Board's approach to "pleading" is generally more lenient than that of the courts. Consequently, the Board will usually not refuse to allow an allegation to be pursued unless it is so untimely or so lacking in particularity that it would be unfair or prejudicial to do so.
In its April 20, 1993, decision, the Board determined that this application was unrelated to the other three applications referred to by the parties (all three of which have been withdrawn in any event). Accordingly, the applicant was not entitled to rely on any allegations made in those other applications. Further, the applicant was the extraordinary opportunity to particularize his application orally as aforesaid, but mentioned nothing about any election issue, notwithstanding that at least two of the other applicants had done so before him. In the circumstances, it was reasonable for the Board and, more importantly, for Local 938 to infer that that allegation was not being raised by the applicant. Finally, in the nineteen months which elapsed between the Board's April 20, 1993 decision and November 18, 1994 when the matter came before me for hearing, the applicant gave no indication to anyone, in writing or otherwise, that he intended to make or pursue such an allegation. In the result, it would have been unfair to Local 938 to permit such an allegation to be raised and pursued.
III
The applicant became an employee of Cott Beverages Inc. ("Cott"), a soft drink manufacturer, at its Mississauga plant in April, 1991. He started as an "order-picker". After three months, he became a "forklift operator-receiver". In February, 1992, the applicant applied for an available "shipper/receiver" position. When he was unsuccessful, he grieved and was awarded the job through the grievance procedure. The grievor testified that Local 938 did little to assist him in this grievance and that he "won" is largely on his own. I find this unlikely and I prefer the evidence of Ray Bartolotti, the Local 938 Business Representative responsible for the bargaining unit at Cott's Mississauga plant, who said that he carried this grievance forward and was instrumental in the result.
On July 21, 1992, the applicant and another employee were suspended and then terminated for allegedly "leaving the facilities/workplace without permission for an extended period of time." Both employees grieved. As the matter progressed through the grievance procedure it became apparent that Cott was concerned not only that the applicant and the other employee had left the workplace, but also that they were off in a bar drinking at the time. The evidence reveals that Bartolotti set up a grievance meeting with the company but that his only discussion with the applicant about the matter was a brief one immediately prior to that meeting, following a similar grievance meeting with respect to the other employee. During a recess in the grievance meeting, the applicant and Bartolotti discussed the situation, again briefly. The applicant testified that he told Bartolotti that he was not going to admit he had done anything wrong and that he wanted the matter to go to arbitration. However, when the meeting resumed, Bartolotti told Cott that the applicant would admit that he had done something wrong but not what that something was.
It is apparent that Bartolotti's discussions with the applicant about the situation were incomplete. Bartolotti did not make a sufficient attempt to obtain the applicant's side of the story. Indeed, he did not discuss the drinking allegation with the applicant at all, even though he knew that was what concerned Cott the most. Further, Bartolotti did not reveal to the applicant the information he had obtained in the course of dealing with the grievance of the other employee involved, which information he used as the basis for his decision to settle the applicant's grievance by agreeing to the substitution of a two-day suspension for the discharge.
In the result, however, the grievance was settled and the two-day suspension was substituted for the termination.
Around this same time, the applicant came under the supervision of a new supervisor and a new shipping/receiving system was implemented. The applicant was asked to do his paper work as he went along instead leaving it all until the end of his shift. The applicant testified that he said he would do so if he had the time.
In late October, 1992, the applicant was discharged. It appears that his shifts began during the morning of one day and ended early in the morning of the next. At the conclusion of his October 23rd and 24th shift, Paul Kurrat, Cott's Manager of Transportation & Warehouse, discovered the applicant in an office with his head down on his arm on the desk and thought him to be sleeping. Kurrat told the applicant to move his car from where it was parked near the loading dock and to "punch out".
It appears that the applicant worked at least one more shift, on October 25th to 26th, 1992, at the conclusion of which he was handed a termination letter dated October 23, 1992, as follows:
"This letter shall act as written confirmation of the termination of your employment with Cott Beverages.
The reasons for your termination are as follows:
On June 1, 1992 you received verbal instruction from the Warehouse Supervisor, Tim Price specific to processing your paperwork (recording shipments as the shift progresses, as opposed to batching paperwork at end of shift). You received repeated counselling from Tim Price subsequent to that, resulting in a written warning on June 17, 1992, delivered via internal company mail. There has been no improvement.
Your General Ledger coding on Bills of Lading, a daily requirement of your position has been incomplete and inaccurate, despite your receipt of a memo dated June 23, 1992, and subsequent counselling on this same issue from the Warehouse 5upervisor, Tim Price.
There have been constant mathematical mistakes, errors or omissions on your shipping reports; this despite repeated counselling, from Tim Price subsequent to the same June 23, 1992 memo from the Warehouse Supervisor, Tim Price.
On July 21, 1992, you were terminated for being absent from your workstation. Teamsters Local 938 presented a grievance on your behalf, specific to your termination. The Company agreed to a settlement of a two-day suspension without compensation. This settlement was based on your admitting to the above infraction.
On August 20, 1992 you parked your vehicle in a non-authorized zone on the southeast corner of the warehouse. The Warehouse Supervisor, Dave Miller instructed you to move your vehicle. The Warehouse Supervisor, Tim Price that same date again asked you to move your vehicle. On August 27, 1992 it was again necessary for Tim Price to ask you to remove your vehicle from this zone. On that date you told the Warehouse Supervisor, Tim Price that you had it parked there because you were listening to a ball game.
On September 7,1992 you were again instructed by the Warehouse Supervisor, Tim Price to remove your car from the same unauthorized spot. Your response to his request was that it was parked there because you were washing tar off your vehicle.
You were given a verbal warning by the Warehouse Supervisor, Tim Price specific to sleeping at your workstation and making and taking phone calls of inordinate length, those calls not being work related, and on company time.
You have been observed by Paul Kurrat reading literature at your workstation that literature being non work related (obscene literature).
You have been verbally counselled for your general unwillingness to maintain warehouse cleanliness, by Tim Price (ie. leaking cases, product in wrong areas); and your reluctance to operate a forklift truck when required; the latter being a specific requirement of your job description. You require constant supervision.
On October 16, 1992 you met with Cott management to discuss shipping errors. Errors specific to your shift and to your function were:
consistent errors on Bills of Lading;
non-compliance with shipping procedures;
shipping to wrong locations, ie. a Toronto based warehouse instead of Montreal (Cott B.O.L. 899)
shipping damaged products
not checking forklift operator load sheets for errors or completion, despite having received a memo dated September 4, 1992 from the Warehouse Manager, Paul Kurrat regarding this requirement;
indicating wrong production Bills of Lading.
You have ignored continued counselling and written disciplinary action by your supervisors and Manager.
All of the above incidents and errors indicate a disregard on your part for the directions issued to you, both verbal and written, by the Supervisory and Management staff of Cott Beverages.
Your termination is effective October 26, 1992."
- A grievance was filed and Bartolotti scheduled a grievance meeting with Cott. Because of a car breakdown, the applicant did not make it to that meeting and it was rescheduled for October 28, 1992. Just before that meeting (it appears) the applicant was handed another termination letter, this one dated October 26, 1992. This letter is identical to the October 23, 1992 letter except that it contained an additional reason for termination as follows:
- On Saturday, October 24, 1992 at 6:15 a.m., you were found sleeping at your desk by the Warehouse Manager. When awakened, you were asked to move your car from a non-authorized parking spot, and were told to punch out. You responded verbally "Fine" and left to move your vehicle.
When the Warehouse Manager returned to your office at 7:15 a.m. (now into overtime shift), you were asked if you had punched out. You responded "no" and were told by the Warehouse Manager to punch out immediately.
Prior to the October 28th meeting, the applicant handed Bartolotti a handwritten response to Cott's reasons for termination which he and his father had prepared. The applicant had only a brief discussion with Bartolotti about the grievance, and there was no discussion at all about the applicant's handwritten response to Cott's allegations.
In the grievance meeting, the parties went through the allegations and the applicant's response point by point. Cott would not budge and the matter was not resolved. As the meeting wound up, Bartolotti said something to the effect of "so its going to arbitration", to which Cott's representative responded "yes".
After the grievance meeting, Bartolotti said that he would arrange for a meeting with Local 938's counsel to discuss the grievance. Although the applicant interpreted this as an indication that his grievance was going arbitration, I am satisfied that Bartolotti's intention was to meet with counsel in order to obtain a legal opinion regarding the merits or proceeding to arbitration to support whatever decision he made in that respect, because he "knew", as he put it, that if the grievance did not go to arbitration, it was likely that the applicant would complain to the Board that he had not been represented fairly.
The meeting with counsel took place at Local 938's office. After they reviewed the matter, the applicant's impression was that counsel (who was not Local 938's counsel at the hearing) thought that Cott had not had cause to terminate him. However, I reject his assertion that counsel "said I had a good case and there would be no problems". It is highly unlikely that counsel would say that in the circumstances and having regard to her view of the matter as expressed in her subsequent opinion letter to Bartolotti. Nevertheless, the applicant left the meeting expecting that his grievance would go to arbitration.
A short time later Bartolotti received counsel's opinion letter. Upon reviewing it, he immediately decided, without any further discussion or consultation with anyone, that Local 938 would not take the applicant's discharge grievance to arbitration. Bartolotti testified that in making that decision, he considered counsel's opinion, which he understood to be that the applicant's case was weak, what had occurred at the grievance meeting with Cott and the meeting with counsel, his own assessment of the relative credibility of the applicant and the probable employer witnesses, and the cost of going to arbitration. Bartolotti said he knew that the applicant would disagree with his decision and probably complain that he had not been represented fairly, but that he felt his decision was the correct one in the circumstances.
Subsequently, in late November 1992, Bartolotti sent the applicant a letter advising him that Local 938 would not be taking the discharge grievance any further, together with a copy of the legal opinion he had received.
IV
- Complaints that a trade union has breached the duty of fair representation imposed by section 69 of the Act often involve a refusal by the union either to file a grievance for the employee or, if a grievance was filed, a refusal to take it to arbitration. The duty of fair representation does not require a trade union to take a grievance to arbitration merely because the employee wants it to. Unless the collective agreement stipulates otherwise (and it does not in this case), the trade union has the authority and obligation to decide whether, upon a fair consideration of the relevant factors, a grievance will be filed or taken to arbitration. The fact that a grade union has refused to take a grievance to arbitration will not be itself constitute a breach of 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 had occasion to review the principles applicable to a trade union's duty of fair representation as follows:
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.
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.
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 interests of the union on the other.
The union's decision must not be arbitrary, capricious, discriminatory or wrongful.
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 set of general guidelines against which a trade union s conduct can be measured, and reflects the Board's approach in fair representation cases (see, for example, Marcia Robertson, [1990] OLRB Rep. Aug. 886, Balford Lindsay, [1989] OLRB Rep. Mar. 264, Don Roe et al, [1986] OLRB Rep. Oct. 1429, Jeanne St. Pierre, [1986] OLRB Rep. June 883, Catherine Syme, [1983] OLRB Rep. May 775).
The term "discriminatory" in section 69 has been interpreted broadly to include all cases in which a trade union distinguishes between or treats employees differently without good reason. Conduct motivated by hostility, ill-will or other improper considerations constitutes "bad faith" within the meaning of section 69. Conduct need not be either improperly motivated or discriminatory in order to be "arbitrary" within the meaning of section 69.
In order not to run afoul of section 69, a trade union must consider all relevant factors, and no irrelevant ones, in dealing with a grievance situation, or other employee concern relating to employment. The Board has found that this requires a trade union to make reasonable efforts to investigate a grievance so that all relevant factors can be considered in dealing with it. Collecting and evaluating information is a necessary preliminary step to engaging in a decision-making process which is consistent with the duty of fair representation (see, for example, Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067 at paragraphs 38 and 39 and Bujalski Wtodzimier (Walter), [1991] OLRB Rep. June 735 at paragraph 20).
In dealing with grievances of employees it represents, a trade union does have a kind of "right to be wrong", in the sense that honest mistakes, innocent misunderstandings, or errors in judgement will not of themselves generally constitute "arbitrary" conduct. It is not the Board's function to second-guess a trade union's decision. As a general matter, however, a trade union is responsible for the conduct of its employees, representatives or agents, since a trade union, like a corporation, can only act through such persons. In applications alleging a breach of the duty of fair representation, the Board is concerned with the nature and quality of a trade union's representation conduct. This concern extends to and includes a trade union's conduct in all representation matters, including its conduct in the settling of grievances.
Terms like "implausible", "so reckless as to be beyond worthy of protection", "unreasonable", "capricious", "grossly 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, ITE Industries, [1980] OLRB Rep. July 1001, North York General Hospital, [1982] OLRB Rep. Aug. 1190, Seagram and Company Ltd., [19821 OLRB Rep. Oct. 1571, Cryovac, a 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. Mar. 444, among others). Such strong language may be apt in the more obvious cases but does not accurately describe the entire spectrum of conduct which could be considered to be arbitrary. As the Board's jurisprudence demonstrates, whether conduct is arbitrary will depend on the circumstances.
Where, as in this case, an unfair representation complaint relates in whole or in part to the manner in which a trade union has dealt with a grievance, the Board generally does not sit as an arbitrator of that grievance. However, it is inevitable that facts material to the grievance will also be relevant to an assessment of the trade union's conduct, and in some cases to an assessment of the appropriate remedy if a breach is found (Kenneth Edward Homer, [1993] OLRB Rep. May 433, Marcia Robertson, supra, Gerald Lecuyar, [1987] OLRB Rep. Jan. 72).
Also relevant to the Board's consideration an assessment of a trade union's conduct in an unfair representation proceeding are the importance of a grievance from the perspective of the complaining employee, the implications for other bargaining unit employees and the trade union, and the facts of the grievance and consideration given them by the trade union. Where, as in this case, the situation involves the termination of employment, the Board gives careful scrutiny to a union's decision not to pursue the discharge to arbitration, and where it is possible that some relief could have been obtained at arbitration, there is an onus on a trade union to explain why it decided not to arbitrate (Kenneth Edward Homer, supra, Marcia Robertson, supra, Screenstage Ltd., [1983] OLRB Rep. Nov. 1920, Savage Shoes Ltd., supra, Howard H. Howes, supra). In assessing a trade union's conduct in such cases, the standard applied is an objective one.
V
In this case there is no evidence of the discriminatory conduct. The question is whether Local 938 acted arbitrarily or in bad faith.
The applicant's complaint herein centers on Local 938's conduct with respect to his grievances that his July 21,1992 and October 26, 1992 discharges were unjustified. It is apparent that Local 938 could have done a better job in dealing with the first discharge. Bartolotti failed to inform the applicant of all the reasons for the July 21, 1992 discharge, failed to obtain relevant information from the applicant, and failed to advise the applicant and get his response to the information he obtained in the course of dealing with the grievance of the other employee involved, even though he used that information as the basis for agreeing to the substitution of a two-day suspension for the discharge in settlement of the applicant's grievance. On the other hand, it does not appear that the applicant raised any objection or concern at the time, either with respect to the admission of wrongdoing made on his behalf or otherwise. Further, the applicant was not particularly forthcoming with information either. Finally, on the evidence before the Board, I am satisfied that the settlement agreed to by Bartolotti was a reasonable one in the circumstances. In the result, the deficiencies in Local 938's handling of the July 21,1992 discharge did not cause the applicant any labour relations harm. In these circumstances, I would not give the applicant any remedy with respect to this aspect of his complaint and I therefore find it inappropriate to declare that Local 938 failed to represent him fairly in that respect.
Local 938's conduct with respect to the applicant's October 1992 discharge grievance raises greater concerns.
The legal opinion Local 938 obtained from its counsel, and upon which Bartolotti relied, reads as follows:
"You have asked for my opinion regarding the discharge of Bill Hill Jr. which occurred on October 26, 1992. For the reasons to be outlined below, it is my opinion that there are some serious difficulties in proceeding with this case to arbitration.
The facts as I understand them are as follows. Mr. Hill Jr. started with Cott Beverages on April 29, 1991. In February 1992, Mr. Hill Jr. posted for a position as Shipper/Receiver. He was given the position, but only after he had grieved the company's attempt to fill the position with an employee who had not even applied for the job. Mr. Hill Jr. indicated in his application that he was knowledgeable in all areas of shipping/receiving and with all of the documents used in that area.
The grievor's prior disciplinary record is a 2-day suspension for leaving his work post on July 11 [sic], 1992 without permission. This had originally been a termination but was reduced during the grievance procedure.
The employer bases the termination of the grievor upon a review of his entire record from June 1, 1992 and cites a great number of instances of mathematical mistakes, errors, omissions, improper processing of paperwork, all of which the employer claims were brought to the attention of the grievor by verbal counselling from the warehouse supervisor and warehouse manager. Furthermore, the employer cites instances of the grievor parking his car in an unauthorized parking area and having to be repeatedly told to move his car as well as being verbally warned by the warehouse supervisor for having been found sleeping at his work station.
The incident which precipitated the discharge occurred on October 24, 1992, wherein the grievor was again found asleep at his desk. As well, the grievor had again parked his car in the unauthorized parking area. He was apparently told to move his car and punch out. The grievor moved his car, but did not punch out until he was again told to do so an hour later.
The major difficulty with this case is the number of instances of mistakes and disregard for instructions that the employer has documented. The grievor has indicated that he did not receive some of the memos that are indicated in the letter of termination. There is also the observation by Mr. Kurrat of the grievor reading obscene literature at his work station, which Mr. Kurrat agrees he did not talk to the grievor about at the time. The grievor claims that he did not receive the repeated verbal counselling as stated in the letter, but instead had been told to try to improve and that he had been told he was improving on the mistakes. The grievor claims that the only time he slept in the plant he had received permission from the warehouse supervisor to do so. The warehouse supervisor denies ever giving such permission. The grievor claims that on October 24 he was not asleep at his desk but rather he had put his head on his arms because he had a headache. The warehouse manager will apparently testify that when Mr. Hill Jr. lifted his head after repeated calling of his name, he appeared as someone just awaking from a sleep. The grievor also denies that he was told to punch out when he was told to move his car.
This case will very much revolve around the credibility of the witnesses. The employer will no doubt have the warehouse supervisor and the warehouse manager testify as to their counselling and various observations. They will probably be very clear as to what they stated to the grievor and especially as to what they observed on various occasions. The employer will also be able to produce various documents showing the various mistakes the grievor has made to bolster their contention of his unacceptable work.
The credibility problem that the grievor has is that he is doing things that he has been repeatedly told not to do. Unfortunately, it would be very difficult to get an arbitrator to believe that the grievor had actually gotten permission to do the various things he claims he had gotten permission for, when the supervisors are going to categorically state that they never gave any such permission. Also, it is difficult to argue that the grievor was so busy that he had no time to check paperwork when the grievor had time to move his car, time to read non-work books, and fall asleep.
Although discharge is a harsh penalty in light of the prior disciplinary record, arbitrators would be more likely than not to allow in all of the incidents related in the discharge letter and rely on those as building a case of poor work performance. This general performance problem is culminated by the sleeping incident of October 24, 1992. As well, the grievor does not have a long service record with the company, and arguably has not demonstrated a good grasp of the shipper/receiver position which he has only filled since February 1992.
Given the above, this case presents a number of problems at arbitration, not the least of which is the credibility of the grievor versus that of the two company managers in respect of the grievor's work performance. The short length of service as well as the denial by the company that certain permissions were given to the grievor all decrease the chances of success. I would, of course, be prepared to argue this matter should you decide to proceed further with it.
I trust this information will assist you in your consideration of this matter. If you have any questions or problems, please do not hesitate to call me."
In my respectful opinion, there is nothing wrong with this legal opinion as far as it goes. However, like all legal opinions, this one is only as good as the information upon which it is based. Since counsel who prepared this grievance did not testify or otherwise appear before the Board in this proceeding, I have only the evidence of the applicant and Bartolotti, and the opinion itself before me.
The applicant denied that he had received "repeated" counselling with respect to his work performance, that he did anything wrong in parking his car where he did, that he had been given a verbal warning for sleeping at his workstation, and all the allegations in point #9 in the discharge letters. The applicant conceded that he had made errors at work, but denied that his errors were any greater in number or more serious than those made by other employees. Finally, the applicant denied that he was sleeping on the job on October 24, 1992, or that he failed to follow Kurrat's instructions, as alleged by Cott.
More importantly for purposes of this application, however, Bartolotti conceded that the July 21, 1992 suspension was the applicant's only "formally recorded" discipline, that the applicant probably made no more errors than anyone else in his department, that the applicant's department was a mismanaged mess at the material times, and that he did not believe Cott when the company indicated it had witnesses to the culminating incidents on October 24, 1992 other than Kurrat. Bartolotti was entitled to consider and rely and upon the legal opinion he obtained in this case. A trade union is entitled to seek legal advice with respect to a grievance, or whether or not a grievance can or should be pursued to arbitration. However, a legal opinion obtained for such purposes is only advice and it is the trade union's responsibility to decide whether or not to file a grievance, or pursue it to arbitration. A trade union cannot abdicate that responsibility by deferring to a legal opinion or other advice without making its own assessment of the relevant circumstances, and the legal or other advice in light of those circumstances. Indeed, that is what Bartolotti did in this case.
The legal opinion upon which Bartolotti says he relied does not say that counsel's view was that the applicant's discharge grievance had no reasonable chance of success at arbitration. Even with all the problems with the grievance identified by counsel, she still concludes that "discharge is a harsh penalty in light of the prior discipline record." Notwithstanding this conclusion, however, counsel does not go on to specifically say whether she has considered whether an arbitrator might be persuaded to substitute a lesser penalty for the discharge even if some discipline was warranted, although her reference to the applicant's seniority suggests that she may have considered it.
Nowhere in counsel's letter is there any mention of how the applicant's work performance measured up against that of others in his department. As I have already indicated, Bartolotti knew that the applicant's mistakes had been neither more numerous nor more serious than those of his co-workers, and also that the whole department was functioning poorly at the time. In my view, facts such as these would be material to a proper consideration of the merits of the applicant's discharge grievance, particularly whether a substituted penalty might be obtained. The detailed nature of counsel's letter suggests that it is unlikely that she simply omitted to recite these considerations, or that she considered them unimportant. I find it more likely that she was never told then. Although the applicant could have offered this information, neither his failure to do so, nor any oversight by counsel in interviewing the applicant, excuses Bartolotti's omission to disclose this information. In light of counsel's conclusions without these facts, it seems likely that she would have been more optimistic in her assessment of the grievance's chances of success to arbitration, even if that success was obtaining a lesser substituted penalty.
Further, even Bartolotti did not say that he interpreted counsel's letter as advising that the applicant's grievance had no reasonable chance of success at arbitration. Having failed to ensure that all of the relevant information had been supplied to counsel, Bartolotti then went on to fail to properly consider the legal advice he received in light of his own knowledge of the workplace in that respect (namely, that the applicant made no more errors than anyone else and that his whole department was in disarray), and failed to give adequate or any real consideration to the possibility of obtaining a lesser substituted penalty for the applicant. This, combined with a lack of a satisfactory explanation for his assessment of the applicant's relative credibility, suggests that Bartolotti failed to give proper consideration to the relevant factors and took irrelevant factors into account in deciding not to take the applicant's grievance to arbitration. Further, on the evidence before the Board and having regard to the nature of the grievance, I am satisfied that Local 938's decision not to pursue the grievance further was not a reasonable one.
VI
- In a result, I am satisfied that Local 938's decision not to take the applicant's October 19, 1992 discharge grievance to arbitration was arbitrary and in bad faith, contrary to section 69 of the Labour Relations Act. I therefore declare that Local 938 has breached section 69 of the Act.
VII
- This brings me to the question of remedy. In his application, the applicant requested that "91-Sub 4 - Sub C" [sic]. Section 91(4)(c) provides that:
91.- (4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting, the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of,
(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally; or
I take it from the applicant's reference to this provision that he was requesting that the Board either reinstate him to his employment with Cott or award damages. Since the applicant did not name Cott as a responding or interested party, it appears that he was interested in damages rather than a reinstatement. Further, although Local 938 identified Cott as an interested party and the Board gave Cott notice of these proceedings as a result, the company filed nothing and did not participate in the proceeding.
At the hearing, the applicant, through counsel, indicated for the first time that he was seeking the relief which is usually sought in section 69 proceedings, and commonly granted when the Board finds that a trade union has breached section 69; namely, that Local 938 be directed to take the grievance to arbitration.
In this case, it is not at all clear that the Board can or should direct that the grievance go to arbitration. Such an order would affect Cott, which was not named as a party, does not appear to have been given sufficient notice that it might be affected by the proceeding, and which did not participate in the proceeding. If such a remedy can and should be granted, it is not clear what directions, if any, should be given regarding a responsibility for its carriage, the associated costs, or how any potential liability should be apportioned in the circumstances, including the applicant's delay in proceeding with the matter.
Accordingly, I do not find it appropriate to award the applicant any relief at this time. Instead I would remit the question of remedy to the parties and Cott to resolve if they can. I will remain seized with respect to the issue of remedy for a period of six months.
The Registrar is directed to send a copy of this decision to Cott as well as to the parties. The Registrar is also directed to schedule a hearing to deal with the issue of remedy upon the written request of any of the applicant, Local 938 or Cott. If no party requests a hearing within six months from the date hereof, the Board will consider the issue of remedy to have been resolved and this proceeding will be finally terminated.