[1999] OLRB REP. SEPTEMBER/OCTOBER 825
0499-98-U Larry C. Fisher, Applicant v. International Brotherhood of Electrical Workers, Local 804, Jerry Wilson (Business Manager), Dave Rendell (Union Steward), Responding Parties
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Larry Fisher for the applicant; Craig Flood, Tom Keagan, Dave Rendell and Jerry Wilson for the responding party.
DECISION OF THE BOARD; October 22, 1999
This is an application under section 96 of the Labour Relations Act, 1995 ("the Act") alleging a violation of section 74 of the Act.
A consultation was held in this matter on January 22, 1999. The employer, Nicholls-Radtke Limited (the company), did not file an intervention or attend the consultation.
This application arises out of facts which are somewhat complicated. However, the background facts, at least, are not in dispute.
The grievor first began work for the employer in or about November 1996. On or about December 1, 1996 the applicant commenced working at the company's job at the Toyota plant in Cambridge. The applicant either suffered a workplace injury or aggravated a workplace injury in early March 1997. The applicant returned to work on light duties shortly thereafter.
On March 13, 1997 the employer requested that the applicant obtain a doctor's note which set out his work restrictions, if any, before it would allow him to continue to work. The applicant attended a walk-in medical clinic and obtained a doctor's note. That note placed significant restrictions on the applicant's ability to work.
The applicant then saw his family doctor on or about March 21, 1999. The applicant's family doctor provided the applicant with a note that stated the applicant was completely fit to return to work without restrictions.
On March 24, 1997 the applicant attended at the job site and advised the company that he was fit to return to work. The company advised the applicant that it could not immediately re-hire him because there seemed to be such a disparity between the diagnosis made at the walk-in clinic and that made by the applicant's doctor. The company advised the applicant that it would permit him to return to work if he obtained clearance from the clinic where he obtained the first note. Later that day the applicant returned to the clinic where he had obtained the first doctor's note and obtained another doctor's note, this one clearing him to return to work without restrictions.
The applicant returned to the job site and presented the note to the employer. The employer advised the applicant, among other things which are in dispute, that the only available shift it had was that night and the nights the remainder of the week. The applicant declined to work the night shift as he had been on steady days prior to his injury. Accordingly, the employer provided the applicant with a record of employment.
On April 21, 1997 the applicant wrote the union and asked it to file a grievance on his behalf. Such a grievance was filed soon after.
The union sought legal advice about the merits of the applicant's grievance. Following a 3 1/2 hour meeting with the applicant, the union's solicitors provided a detailed opinion to the union dated June 12, 1997. The legal opinion was that the union would not be successful at arbitration.
The legal opinion was provided to the applicant and he was given the opportunity to respond to it. The applicant responded to the legal opinion in a lengthy letter dated August 4, 1997. The applicant responded in detail to each of the factual points made by counsel in his opinion. The applicant's letter was reviewed by counsel who wrote the union on February 26, 1998 advising the union that its opinion of the merits of the applicant's grievance remained the same. Accordingly, the union withdrew the applicant's grievance.
This application was filed on May 6, 1998. The union filed a detailed response in which it requested that the Board decide the matter without a hearing on the basis that the application does not disclose a prima facie breach of the Act. By decision dated June 29, 1998 the Board directed the applicant to file with the Board a statement of material facts which focused on the union's alleged wrongdoing. The applicant filed such a statement, and by decision dated September 24, 1998 the Board determined that this matter ought to proceed to consultation.
At the consultation the applicant asserted that the union's representation of him was deficient in two respects: first, it should have pursued a grievance on his behalf with respect to lost overtime opportunities during the weekend of March 13, 1997, and second, the union should have taken his discharge grievance to arbitration.
The Overtime Claim
The applicant argues that the employer's decision to deny him work opportunities as it awaited a doctor's report on his medical condition was wrong and cost him the opportunity to work overtime during that period. It was somewhat unclear whether the applicant had, prior to this application, requested that the union file a grievance with respect to unpaid overtime on his behalf.
Regardless, even if the union had refused to file such a grievance, it is clear that the union's conduct did not violate section 74 of the Act. There are two fatal flaws in the applicant's claim. Firstly, the employer was within its rights to ensure that the applicant was fit to perform the duties which were assigned to him as the doctor's note which the applicant obtained left the applicant's health substantially in doubt. Second, and more importantly, the applicant has made a claim under the workers' compensation system in which he asserts that he was totally disabled in the period in question. It is inconsistent with such a workers' compensation claim to also suggest that the applicant should have been given overtime opportunities during the same period.
Accordingly, the claim against the union with respect to overtime opportunities is dismissed.
The Discharge Grievance
The applicant's claim in respect of the union's conduct with respect to his discharge grievance is not so easily dismissed.
At its heart, the argument put forward by the applicant at the consultation into this matter was straightforward and quite compelling. He asserts that he was asked by the company to provide a doctor's note certifying him fit to return to work and he did so. However, when he provided that doctor's note to the company, the company asked him to work that night and nights for the remainder of the week. The applicant asserts that he advised the company that he was unwilling to work that night as he had gotten up early in the morning, but that he was willing to work nights the rest of the week, whereupon the employer laid him off. The applicant also asserts that the crew with which he had been working continued to work the day shift for that week and for some time thereafter, and therefore the employer's requirement that he work nights was improper.
The union asserts that even on this statement of facts the union was correct not to pursue a grievance as under the collective agreement the employer has the right to schedule and that the employer's decision in this regard was an appropriate exercise of that management right.
I am unable to agree with the union's argument. In my view, if the applicant's assertion of the facts is correct, the applicant may well be successful at arbitration in demonstrating that the employer's conduct was discriminatory as it placed the applicant, a handicapped employee (as that term is defined by the Human Rights Code) in a worse position vis a vis the other employees on his crew for no other reason than that he was handicapped. Moreover, it may well have been a violation of the Occupational Health and Safety Act for the employer to lay off the applicant after he had refused to work the night shift when that refusal was predicated on the fact that the applicant was excessively tired.
Assuming the union's rationale for refusing to take the grievance - that it could not win -was wrong, does that constitute a violation of the Act? In my view, it does not.
The Board has held on numerous occasions that the fact that a union was wrong does not necessarily constitute a violation of section 74 of the Act. For example, in I.T.E. Industries Limited, [1980] OLRB Rep. July 1001 the Board stated as follows:
- It is clear that in order to establish a breach of section 60 [now 74], a complainant must do more than demonstrate an honest mistake or even negligence. The union must have committed a "flagrant error" consistent with a "non caring attitude", or have acted in a manner that is "implausible" or "so reckless as to be unworthy of protection". In other words, the trade union's conduct must be so unreasonable, capricious, or grossly negligent, that the Board can conclude that the union simply did not give sufficient consideration to the individual employee's concerns. Honest mistakes or innocent misunderstandings are clearly beyond these parameters and do not attract liability.
The union both on its own and through its counsel gave significant consideration to the merits of the applicant's grievance. In the end, it determined not to proceed to arbitration because it did not believe it would be successful. While I may not agree with that assessment, it was a decision the union was entitled to make. There were no facts before me which would suggest that the union's error, even assuming (without finding) that it was flagrant, was a result of a non-caring attitude, implausible, so reckless as to be unworthy of protection, unreasonable, capricious or grossly negligent to use the terms set out in I.T.E. Industries, supra. Therefore, in coming to its decision, the union did not act in a manner that was arbitrary, discriminatory or in bad faith.
Accordingly, this application is dismissed.