Ontario Labour Relations Board

[1997] OLRB REP. MARCH/APRIL 183

3310-96-U Ron Boyer, Applicant v. International Association of Machinists and Aerospace Workers, Local Lodge 2'192 and DDM Plastics Inc., Responding Party

BEFORE: G. T Surdykowski, Vice-Chair.

DECISION OF THE BOARD; March 10, 1997

1. This is a complaint under section 96 of the Labour Relations Act, 1995 in which the applicant alleges that the "responding party" has violated section 74 of the Act by refusing or failing to take his grievance that he has been unjustly discharged by the employer ("DDM") to arbitration. The relief sought by the applicant is reinstatement in employment with DDM.

2. The responding trade union (the "Machinists") pleads that the application should be dismissed for "undue delay", because the remedy sought is beyond the jurisdiction of the Board to grant, and because the application does not disclose a breach of the Act. DDM pleads that the application should be dismissed, or that any relief obtained by the applicant be made the responsibility of the Machinists, on the basis that the applicant's grievance contesting his discharge was settled as between the employer and the union.

3. The applicant pleads that he was terminated by DDM on December 5,1995. Although he does not plead it, the Machinists' response indicates that a grievance alleging that the applicant had been terminated improperly or unjustly was filed on or about December II, 1995. The applicant alleges that a vote on the question of whether or not the grievance would be taken to arbitration was taken at a union meeting on January 20, 1995. He alleges that all of the union members at the meeting voted to take the grievance to arbitration, and that only one person suggested that a legal opinion should be obtained. The applicant pleads that notwithstanding this membership vote, the union president and chief steward sought a legal opinion. Further, although the applicant does not specifically say so, it is apparent that his grievance was not in fact taken to arbitration.

4. Section 74 of the Act provides that:

74. 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.

This provision establishes what is commonly referred to as a "duty of fair representation". It requires a trade union to represent all employees for whom it is the exclusive bargaining agent in a manner which is free of ill-will, and which is neither arbitrary nor discriminatory. Complaints that a trade union has failed to represent an employee fairly often involve a refusal by the union either to file a grievance for the employee or, if a grievance has been filed, a refusal to take it to arbitration. The duty of fair representation does not require a trade union to take the grievance to arbitration merely because the employee wants it to. Unless the collective agreement stipulates otherwise, the trade union has the authority and indeed the obligation to decide whether, upon a fair consideration of the relevant factors. a grievance will be either filed or taken to arbitration. The fact that a trade union has refused to take a grievance to arbitration will not by itself constitute a breach of the duty of fair representation imposed by section 74. In Canadian Merchant Service Guild v. Guy Gagnon, 1984 CanLII 18 (SCC), [1984] 1 SCR. 509 at p. 527, the Supreme Court of Canada had occasion to review the principles applicable to a trade union's duty of fair representation as follows:

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

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

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

(4) The union's decision must not he arbitrary, capricious, discriminatory or wrongful.

(5) The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and confidence 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 is consistent with the Board's approach in fair representation cases (see, for example, Marcia Robertson, [19901 OLRB Rep. Aug. 886; Balford Lindsay, [1989] OLRB Rep. Mar. 264; Don Roe, [1986] OLRB Rep. Oct. 1429; Jeanne St. Pierre, [1986] OLRB Rep. June 883; Catherine Syme, [1983] OLRB Rep. May 775).

5. The duty of fair representation is an obligation imposed on a trade union, not on an employer. An employer cannot breach section 74. Accordingly, even if it is within the Board's jurisdiction to order an employer to reinstate into employment a person who the Board determines has been treated in a manner contrary to section 74, which I seriously doubt, the fact is that the Board has never done so. The usual remedy for a breach of section 74 is to require that the union take a grievance to arbitration, together with any necessary ancillary relief in that respect. The nature of most complaints that section 74 has been breached is such that the employer will have an interest, or is a proper party for the purpose of fashioning an appropriate remedy in the event that the complainant succeeds (see, William Hill Jr., [1995] OLRB Rep. Jan. 21 (liability) and [1995] OLRB Rep. Oct. 1249 (remedy)). In a case in which a grievance has been settled between a trade union and an employer, and the employer did nothing improper in entering into the settlement, it is very unlikely that the Board would require the employer to submit to arbitration, and another remedy would have to be fashioned.

6. Further, section 96 of the Act gives the Board a broad discretion with respect to whether or not to inquire into a complaint, like this one, which alleges a violation of the Act. However, that discretion should be exercised with caution and only in clear cases. Further, this discretion must be exercised judicially having due regard to the circumstances and labour relations considerations applicable to the particular matter before the Board.

7. Excessive unexplained delay in filing or proceeding with an application is one basis upon which the Board may decline to inquire into an application in the exercise of its discretion under section 96 (the Ontario Divisional Court has confirmed the Board's jurisdiction in that respect in Re Dhanota and U.A.W. Local 1285, (1983) 1983 CanLII 1655 (ON HCJ), 42 OR. (2d) 73, an application for judicial review of the Board's decision in Sheller-Globe of Canada Limited, [1982] OLRB Rep. Jan. 113). It has long been accepted that delay is inimical to labour relations. To put it another way, labour relations delayed are labour relations defeated and denied (Journal Publishing Co. of Ottawa Ltd. v. Ottawa Newspaper Guild, Local 205, OLRB et al, (1977) 1 A.C.W.S. 817 (Ontario Court of Appeal)), and delay in labour relations matters often works on fairness and hardship (Re United Headwear and Builtmore - Stetson (Canada) Inc., (1983) 1983 CanLII 1852 (ON HCJ), 41 OR. (2d) 287; and see also Dayco (Canada) Ltd. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) et al., (1993) 1993 CanLII 144 (SCC), 2 SCR. 230 (Supreme Court of Canada)). Whenever the resolution of the labour relations dispute is delayed, some prejudice is likely to exist. The Board and the Courts have long recognized that the speedy resolution of a labour relations dispute is both in the public interest and of real importance to those directly involved. Consequently, there is an expectation that allegations that the Labour Relations Act, 1995 or related legislation, has been contravened will be made and pursued within a reasonable time (which time is generally measured in months rather than in years) so that the allegations can be dealt with in a timely manner which is fair to all concerned.

8. The Board's response to motions seeking dismissal of applications under section 96 of the Act on the basis of delay is not a mechanical one. It is neither possible nor appropriate to draw up an exhaustive list of factors which the Board will consider when dealing with a motion to dismiss on the basis of delay. Each situation must be examined and determined according to the merits of the particular case, although the onus is on an applicant to explain what appears to be an inordinate delay in making or pursuing a particular complaint (see The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420; Sheller-Globe of Canada Limited, (supra); Central Stampings Limited, [1984] OLRB Rep. Feb. 215; George Hinkson, [1987] OLRB Rep. Oct. 1246; and John Kohut, [1991] OLRB Rep. Dec. 1367).

9. While there is no fixed rule, in cases which involve a loss of employment (particularly in an economy in which jobs are hard to come by), the Board will generally not dismiss a complaint which makes out a prima facie case on the basis of a delay which is less than one year, except where a responding party demonstrates actual prejudice and there is no satisfactory explanation for the delay. As a general matter, where the delay asserted is less than one year, the onus is on a responding party to demonstrate actual prejudice (or perhaps some other good reason) sufficient to justify dismissing a complaint without a hearing on its merits. Where the delay is more than one year, the onus is on the applicant to provide a satisfactory explanation.

10. In this case, I am not satisfied that the applicant has pleaded a prima facie case. All he alleges is that the Machinists did not take his discharge grievance to arbitration. I have already observed that the mere fact that a trade union has refused to take a grievance to arbitration does not constitute a breach of section 74. As the Board explained in George Lee, [1994] OLRB Rep. Aug. 1009:

3. 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:

20. 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.

21. 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.

22. 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.

4. 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.

5. 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.

[emphasis supplied: references to section 69 should now be read as section 74]

11. All that the applicant has pleaded in this case is that the Machinists did not take his grievance to arbitration notwithstanding what he says is a vote of the members that it go to arbitration. The duty of fair representation is a duty imposed on the union, not on the members. Similarly, in the absence of a specific provision in the collective agreement to the contrary, the right to decide whether or not a matter goes to arbitration belongs to the trade union, not to an individual member, or to a group of members. A trade union can put the question of whether a grievance should go to arbitration to a vote of its membership, and can consider the result of such a vote in making its decision in that respect. Indeed, a trade union which decides not to take a grievance to arbitration after the members have voted to do so, may be required to explain its decision, but a membership vote does not trump the proper exercise of a union's discretion in that respect. That is, so long as a trade union does not act in a manner which is arbitrary, discriminatory or in bad faith, it is free to reject the results of a membership vote in favour of taking a grievance to arbitration. On the other hand, neither can a trade union blindly rely on a vote of its members against taking a grievance to arbitration. Such a vote result will not save a union whose decision not to go to arbitration is otherwise arbitrary, discriminatory or in bad faith; or the circumstances are such that the vote should have been given little or no weight (as in perhaps the case of a very unpopular employee, for example).

12. In this case, even assuming that everything he has alleged is true, the applicant has not pleaded anything which suggests that the Machinists acted in a manner which was arbitrary, discriminatory or in bad faith, or which otherwise suggest that the Machinists exercised its discretion to decline to take the applicant's grievance to arbitration in a manner which is contrary to the Act.

13. I recognize that the applicant has filed this complaint himself, apparently without the benefit of legal advice or assistance. He is entitled to do so. However, this complaint is a legal proceeding to which the Board's Rules of Procedure and the Statutory Powers Procedure Act apply. Whether or not he has legal advice or assistance, the applicant is required to plead his case with sufficient particularity to make out a prima facie complaint under the Act, and to enable the Machinists and DDM, and also the Board, to discern what that complaint is. The Rules in that respect apply equally to everyone, whether or not they are lawyers or have legal advice. The fact that someone does not obtain legal advice or representation cannot put them in a better position than someone who does.

14. In this case, I find it appropriate to require the applicant to file a new and fully particularized statement of fact in support of his complaint. In it, he must clearly set out the manner in which he alleges the Machinists have acted contrary to section 74. In the circumstances, he must also explain why he waited until January 14, 1997 (the date it was filed pursuant to the Board's Rules) to file this complaint.

15. If the applicant fails to do so within 14 days of the date of this decision, or if what he does file is still unsatisfactory, this complaint will be dismissed.