4226-98-U Vic Perroni, Applicant v. Sub. Local & Local 1-500 IWA & NATIONAL IWA, Responding Party v. MacMillan Bathurst, Intervenor.

BEFORE: Anthony Brown, Vice-Chair.

APPEARANCES: Vic Perroni on his own behalf; David I. Bloom, Bruce Weber, Tom Lowe, Dave Gibson, Phil Shackleton and Darrell Mask for the responding party; Christie Zimmer for the intervenor.

DECISION OF THE BOARD; March 1, 2000

1This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging violation of section 74.

2A consultation was held on February 23, 2000.

3At the outset the applicant stated that he thought the purpose of the consultation was to discuss settlement and that he did not expect that he would be proceeding with the “trial” on February 23, 2000. The responding party indicated that it was ready to proceed and had several union officials present for that purpose. I explained to the applicant that a consultation is not a “trial” but is a form of hearing by which parties can have matters decided by a neutral adjudicator using a process that allows for discussion of the position of the parties. By letter to the applicant dated March 25, 1999, the Registrar acknowledged receipt of the application and enclosed Information Bulletin No. 7, which explains the consultation procedure. In a letter to the parties dated October 13, 1999, the Registrar stated that the consultation was rescheduled to take place on February 23,2000. The applicant informed the Registrar, by letter dated February 6, 2000, that his efforts to settle this matter with the union had proved to no avail. There is no suggestion in that letter that the applicant would not be prepared to proceed on the date scheduled for the consultation. The applicant did not state how he would be prejudiced by being required to proceed on February 23, 2000. Accordingly, the consultation proceeded as scheduled.

Facts

4The material facts are straightforward. Early in 1998, IWA Canada Local 500 at the intervenor’s Whitby plant sought and obtained a raise for persons in Mechanic A and Electrician positions. Persons in these classifications at the intervenor’s Etobicoke plant had received raises. The raises were justified by the competitive market for skilled trades. The applicant is employed as a janitor at the Whitby plant. He was one of many employees of the intervenor who did not get a raise. Mr. Perroni filed a grievance dated March 2, 1998 alleging that he and other maintenance department workers were entitled to a salary increase based on the raise given to the skilled trades. He alleges that the collective agreement had been “re-opened”.

5The grievance went to Step One and Step Two. The intervenor denied the grievance. The responding party (hereafter referred to as “the union”) held a meeting of its members on June 2, 1998, during which Mr. Perroni’s grievance was discussed. Mr. Perroni states that he was advised of the meeting in advance but was unable to attend. According to the union, the union members present at the June 2nd meeting were canvassed as to whether to proceed with Mr. Perroni’s grievance. They were against proceeding to Step Three. There was no formal vote. The union states that votes are normally taken by a show of hands. Despite the feedback from the members, the union local executive decided to take the matter to Step Three out of courtesy and respect for Mr. Perroni. A Step Three meeting was held with the employer on June 17, 1998, and the employer denied the grievance.

6On June 18, 1998, the union withdrew the grievance. The union states that David Gibson, Local 500 Plant Chair informed Mr. Perroni of the withdrawal upon Mr. Perroni’s return from holidays in late June or early July, 1998, and that Mr. Perroni was told again in September, 1998 at a Local membership meeting. The union concedes that Mr. Perroni was not informed in writing. Mr. Perroni states that he was informed of the withdrawal in October.

Submissions

7Mr. Perroni submits that the decision as to whether or not to proceed with the grievance after the Step Three meeting should have been put to a formal vote following that meeting. He states that the union’s failure to follow this procedure was “illegal” and a denial of due process. He also submits that the grievance had merit.

8The union concedes that no formal vote was taken on the grievance but states that it had already obtained clear direction from the members of the Local when they were canvassed at the June 2, 1998 meeting. It points out that even though the grievance was unlikely to succeed, and in spite of the members’ views, it proceeded to Step Three It submits that the grievance was handled in good faith and that it only withdrew the grievance after canvassing its members and considering its chance of success.

9The intervenor submits that the application should be dismissed and that the union has the right to determine whether to proceed with a grievance.

The Law

10Section 74 states as follows:

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.

11The duty of fair representation in section 74 has been discussed in many Board decisions. One such decision is National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW – Canada) (Board File No. 0221-97-U unreported decision dated August 7, 1997) in which the Board explained the duty of a union in respect of its handling of grievances as follows, at paragraphs 32 – 37 and 39:

32. The Labour Relations Act, 1995 provides that once the trade union has obtained bargaining rights, it has the exclusive right to speak for the employees it represents in dealing with the employer with respect to matters relating to their employment. With this right comes the obligation, imposed by section 74 of the Act, to represent all of the employees of whom it is the exclusive bargaining agent in a manner which is not arbitrary, discriminatory or in bad faith. In essence, section 74 establishes what is commonly known as "a duty of fair representation".

33. Complaints that a trade union has failed to represent an employee in a manner consistent with its obligations under the Act, and specifically section 74, usually involve a refusal by the union either to file a grievance which the employee wishes to pursue, or if a grievance was filed, a refusal to pursue it to arbitration. However, the duty of fair representation established by section 74 does not require a trade union to file a grievance or to take a grievance to arbitration merely because the employee concerned wishes it to. Unless the collective agreement specifically provides otherwise, it is the trade union which is the party to the collective agreement which has care and control of the grievance arbitration process under it (on its side of the collective bargaining relationship). Accordingly, it is the trade union which has the exclusive authority, and the obligation, to decide, upon a fair consideration of the relevant factors and no irrelevant ones, whether a grievance will be filed or taken to arbitration.

34. The mere fact that a trade union has refused to file a grievance, or has failed to pursue a grievance to arbitration, does not by itself constitute even a prima facie breach of section 74. As the Board pointed out in George Lee, [1994] OLRB Rep. August 1009, a union must give a grievance honest consideration, but having done so, the union is entitled to settle or withdraw the grievance as it considers appropriate. Because settlement is always preferable to litigation, particularly in labour relations matters where there is an ongoing collective bargaining relationship, most grievances can and should be settled. Whatever the wishes of an employee, it is generally inappropriate to "fight regardless of the odds", or to seek some sort of revenge, or to pursue a matter merely because an employee insists on his/her "day in Court".

35. In Canadian Merchants Service Guild v. Guy 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 fair representation cases 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 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.

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 under one hand and the legitimate interests of the union on the other.

4. The union's decision must not be arbitrary, capricious, discriminatory or wrongful.

5. 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 offers a useful set of general guidelines against which a trade union's conduct can be assessed, and also reflects the Board's approach to fair representation cases (see, for example, William Hill Jr., [1995] OLRB Rep. Jan. 21; Marcia Robertson, [1990] OLRB Rep. 886; Balford Lindsay, [1989] OLRB Rep. March 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).

36. Honest mistakes, errors in judgement, and innocent misunderstandings do not constitute conduct which is prohibited by section 74. Nor does the fact that the Board (or some other labour relations expert) might have arrived at a different conclusion necessarily suggest a breach of the duty of fair representation by a trade union. A trade union's approach or decision(s) with respect to a grievance or a proposed grievance must be more than merely "wrong": it must be arbitrary, discriminatory or in bad faith.

37. There is a great deal of Board jurisprudence which deals with the duty of fair representation, both generally and specifically with respect to the meaning of the words "arbitrary", "discriminatory" and "in bad faith". I find it unnecessary to engage in a lengthy analysis or review of that jurisprudence. Suffice to say that:

(a) "arbitrary" means conduct which is capricious, implausible or unreasonable, often demonstrated by a consideration of irrelevant factors or a failure to consider all relevant factors;

(b) "discriminatory" is broadly defined to include situations in which a trade union distinguishes between or treats employees differently without a cogent reason or labour relations basis for doing so;

(c) "bad faith" refers to conduct motivated by hostility, malice, ill‑will, dishonesty, or improper motivation.

39. It is not a breach of section 74 to not communicate with a grievor in writing, or to make an error or otherwise be "wrong". The question is whether the trade unions have acted in a manner which can arguably characterized as arbitrary, discriminatory or in bad faith. What did the trade unions allegedly do or fail to do in that respect?

Decision

12The issue to be decided is whether or not the union violated its duty under section 74. The above-referenced decision, and many others, illustrate the nature and scope of that duty.

13Mr. Perroni is genuinely upset about how his grievance was handled, and to some extent this may be justified. Ideally, the union should have notified Mr. Perroni of its intent to withdraw the grievance, in advance of the withdrawal. This would have given Mr. Perroni another opportunity to try to convince the union to go to arbitration, and, if nothing else, would have alleviated the shock of finding out about the withdrawal “after the fact”. Ideally, the union should have followed its usual practice of holding a vote on the grievance by a show of hands. Here, however, the union already knew where its members stood. Its members did not see any purpose in proceeding with the grievance. The union had an obligation to weigh these views, along with Mr. Perroni’s, in deciding what to do. The Board was not provided with evidence that the Constitution or By-laws of the union would have required it to act only in accordance with the outcome of a vote, had one been taken.

14As National Automotive (above) indicates, the duty of fair representation does not require “ideal” or “perfect” conduct. Here, the material facts show no evidence of improper motive or personal antagonism toward Mr. Perroni on the part of the union. He was aware of the meeting on June 2, 1998. The grievance was in fact processed to Step Three; it was not ignored or treated lightly. Although there were relatively minor procedural “flaws”, which the union concedes, those flaws do not, in my view, amount to a violation of section 74.

15Therefore, having carefully considered the submissions of the parties, I find that the union did not violate its duty under section 74. Accordingly, the application is dismissed.

“Anthony Brown”

for the Board