2554-98-U Henry Savage, Ken Beharry, Mohammed G. Khan, Roy Ramkissoon, Peter Chung, Greg Kazarian, Everett Bess, Nina Nguyen, Thedung Nguyen, Soe Maung, Norris Maynard, Quang Vuong, Thich-Mai, Martin Ayow, Oscar Monteiro, Cao Ngoe Anit, Tommy Ngo, Nghia Dan, Rosanne Seto, Ha Tran, Tim Walker, Ram Ramoutar, Jon Healey, Lester Sinanansingh, Soogrim Bickram and Peter Ives, Applicants v. The International Association of Machinists and Aerospace Workers, Local Lodge #2113, Responding Party v. Visteon Automotive Systems (formerly known as Ford Electronics), Intervenor.
BEFORE: Caroline Rowan, Vice-Chair.
APPEARANCES: Kevin McGee for the applicants; Michael D. Wright, Rod Reynolds and Colin Cherry for the responding party; Derek Rogers and Michael Hyland for the intervenor.
DECISION OF THE BOARD; February 22, 2000
The style of cause is hereby amended by adding the following individuals as applicants “Tim Walker”, “Ram Ramoutar”, “Jon Healey”, Lester Sinanansingh”, “Soogrim Bickram” and “Peter Ives” in these proceedings.
This is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) alleging that the responding party, The International Association of Machinists and Aerospace Workers, Local Lodge #2113 (the “union”), breached its duty of fair representation under section 74 of the Act. The application was brought by a group of employees working in the Quality Assurance Test Lab (“QA”) department of the intervenor, Visteon Automotive Systems (the “employer”). The applicants complain about the union’s handling of their classification grievance.
As there was no substantial dispute between the parties regarding the facts in this case, the application will be dealt with based on the representations of the parties at the consultation.
Nature of the Complaint
On or about November 13, 1995, the union filed a classification grievance on behalf of employees at job level 16.1 working as Inspectors, Grade II, which included employees working in the QA and Material Quality Service (“MQS”) departments. The union sought an upgrade for these employees from level 16.1 to job level 19.2, which has a corresponding classification of Test Equipment Technician, Training Grade II under the terms of the collective agreement.
The union took the position in the grievance that there had been a substantial change to the responsibilities of the positions at job level 16.1 and therefore that an upgrade in classification was warranted. The union, however, ultimately decided to withdraw the grievance in so far as it related to employees in the QA department on the day of the arbitration hearing scheduled to be heard on April 28, 1998. At that time, the employer and the union entered into a settlement of the grievance, under which the employer agreed to upgrade only the employees in the MQS department and the union agreed to withdraw the grievance as it related to employees in the QA department. In its defense to this application, the union indicates that it did so on the basis of union counsel’s opinion that there was sufficient evidence to support an upgrade for employees in the MQS department, but not for employees in the QA department.
The applicants allege that the union breached its duty of fair representation to them when it withdrew the grievance as it related to QA employees. In this regard, the applicants allege that the union settled the grievance on the morning of the scheduled arbitration hearing simply because the union was not prepared to proceed with the arbitration. As such, the applicants allege that the union acted in a manner that was arbitrary within the meaning of section 74 of the Act. The applicants also submit that the union’s conduct in referring to the applicants as “inspectors” rather than as “technicians” in its response to this application is an indication of bad faith on the part of the union within the meaning of section 74 of the Act.
The applicants rely on numerous facts in support of their position that the union acted arbitrarily in its handling of their grievance, which they have outlined under the following headings.
Timeliness
- The applicants firstly submit that the union acted arbitrarily in the handling of their grievance by failing to proceed with it expeditiously. The applicants submit that, in the past, it would generally take only approximately one to seven months for a grievance to proceed to arbitration. However, in this case, the arbitration hearing was not scheduled until approximately twenty-nine (29) months after the grievance was filed. The applicants state that they suffered inherent prejudice from the union’s lengthy delay in referring their grievance to arbitration. They also indicate that the time limits set out in the collective agreement for referring a matter to arbitration are mandatory and that any failure to adhere to those time limits is fatal to the grievance.
Preparation for the Arbitration Hearing
A. Arranging the meeting
In support of their position that the union was unprepared to proceed with the arbitration, the applicants firstly indicate that the union did not schedule a preparation meeting until the day before the arbitration hearing. They submit that this was inadequate since preparation for the grievance required a consideration and review of both technical evidence and possible procedural objections.
The applicants also note that they warned representatives of the union on a number of occasions that ample time was needed to prepare for the arbitration hearing because of the technical nature of the evidence. Despite these warnings, Mr. Murphy, a representative of the union, advised the applicants on Friday, April 24, 1998 that a preparation meeting with union counsel was set for 9:30 a.m. on April 27, 1998, the day before the arbitration. He also advised them, at that time, that Ms. Turkington would be handling the case and not Mr. Hayes, who had met with a number of the grievors once before to review the grievance.
B. Meeting with Lawyer on April 27, 1998
- The applicants take the position that the preparation meeting held on April 27, 1998 with Ms.Turkington was inadequate. In this regard, they note that Ms. Turkington did not visit the QA and MQS technical labs and did not review extensive documentation relevant to their grievance in the course of her preparation for the hearing. More specifically, the applicants indicate that union counsel only reviewed a single four page document, which generally summarizes the responsibilities of the positions in issue. Although the applicants only brought this document with them to the meeting, Mr. Savage, one of the applicants, advised union counsel at the time that there were numerous other documents at the workplace, which should be reviewed as well. Mr. Savage indicates that there are some thousands of pages of documents, which support (or prove) the information that he provided to union counsel orally at the meeting. However, Ms. Turkington did not take steps to obtain or review these documents prior to the hearing.
C. Evidence Considered /Concerns with the Response
The applicants also refer to discrepancies between the information that they provided to Ms. Turkington and that pleaded by the union in its response in support of their position that the union’s assessment of their grievance was arbitrary. For example, the applicants note that the union pleads in its response that two of the grievors, Mr. Savage and Mr. Kazarian, described the changes to their positions as “creeping changes”. They point out, however, that Ms. Turkington’s notes reveal that it was Mr. Murphy, the union representative, and not the grievors who referred to the changes as “creeping”. In addition, although the union’s response correctly notes that the work performed by QA employees continued to be performed off the line, it incorrectly indicates that the nature of their work did not risk the halting of production. The applicants argue that some of the discrepancies noted reveal that the union overstated the extent of union counsel’s preparation for the arbitration in its response. For example, the union’s response refers to union counsel’s review of “numerous” documents and the fact that counsel had “several” telephone discussions with union representatives.
The applicants also allege that union counsel erred in her assessment of the merits of their grievance when she relied on information provided by Mr. Walker, an employee who had previously worked in the QA department. In this regard, they note that paragraph 43 of the union’s response indicates that union counsel based her opinion on her lengthy discussions with Mr. Savage and Mr. Kazarian, her review of all of the documentation, her discussions with Mr. Walker, and her review of the arbitration jurisprudence. The applicants, however, indicate that the reason Mr. Walker met with union counsel was in order to address differences between the MQS and QA positions. They submit that, because Mr. Walker had not worked in the QA department since 1982, he was not in a position to speak to changes occurring thereafter.
D. Evidence Not Considered or Given Little Weight
- The applicants also allege that union counsel erred in her assessment of the evidence on which they base their claim for an upgrade. For example, the applicants point out that the QA employees are independent of the foreman and that there is a high degree of interaction between QA employees and the engineers. They state that the evidence supports their claim for an upgrade and therefore that the union either failed to consider, or give sufficient weight to, this evidence when it assessed the merits of their grievance. The applicants indicate that they advised union counsel of all of the facts relied upon here in support of their claim for an upgrade during the course of their meeting with her. Notwithstanding this, union counsel expressed the opinion that their grievance was unlikely to succeed.
Intention not to Proceed
- In support of their position that the union mishandled their grievance, the applicants also allege that the union president, Mr. Reynolds, made two mistakes when filling out the grievance. Firstly, he requested that the 16.1 classification be upgraded to level 19.2 when that level was already occupied by test equipment technicians. Secondly, he advised that it was not necessary to have MQS employees sign the grievance.
Settlement and its Aftermath
- Finally, the applicants complain that the union did not obtain the consent of the grievors before deciding to settle the grievance in the manner in which it did. The applicants indicate that had they been consulted that they would not have consented, because the settlement called for an upgrade of only one of the two groups of employees at job level 16.1. As such, a job posting would be required, which would, in turn, likely result in certain MQS employees losing their positions. The applicants note that this is, in fact, precisely what occurred as a result of the settlement reached. Tension between employees in the two departments has resulted. The applicants therefore submit, in essence, that the settlement reached was not in the best interests of the bargaining unit as a whole and that they would have preferred an all-or-nothing approach to the disposition of the grievance.
Decision
Section 74 of the Act reads as follows:
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.
The applicants allege that the union acted in a manner that was both arbitrary and in bad faith within the meaning of section 74 of the Act.
Allegations of Arbitrariness
The Board will first consider the allegations that the union mishandled the grievance to the applicants’ detriment. With respect to the allegation that there was an inordinate delay in the scheduling of the arbitration hearing, the Board finds that the applicants suffered little or no actual prejudice as a result of the delay. Since the employer never raised any objection to the timeliness of the grievance, there was no impediment to the arbitration of the grievance on its merits on the ground of delay or any restriction on the quantum of damages that could be claimed. There is further no suggestion that the applicants’ ability to present their case was hampered in any way by the passage of time either because of the fading of memories or because of the loss of material evidence. In all of these circumstances, the Board declines to inquire further into this aspect of the applicants’ complaint.
As previously indicated, the applicants also submit that the union made two errors when filling out the grievance, which the applicants suggest prejudiced their interests. With respect to the first alleged error, the Board notes that, on the morning of the arbitration, the employer took the position that the grievance did not relate to the MQS employees, since they had not signed the attached schedule to the grievance. It is, however, questionable whether or not the employer’s position in this respect would have been sustained at arbitration given the relatively broad language used in the text of the grievance. It is not therefore clear that the union’s failure to have the MQS employees sign the grievance can, in fact, be characterized as a mistake.
However, even if the Board assumes for these purposes that the union’s failure to obtain signatures from the MQS employees was an error, the Board finds in all of the circumstances that this mistake was, at worst, an honest mistake, which does not normally attract liability under section 74 of the Act. As the Board said in I.T.E. Industries Ltd., [1980] OLRB Rep. July 1001:
It is clear that in order to establish a breach of section [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.
Even if it accepts that the union erred in its understanding that the grievance was drafted sufficiently broadly to cover the MQS employees without their signatures, the Board is not satisfied that the alleged error breaches this standard.
Similar considerations apply to the union’s alleged second mistake. The union indicates in its response that the classification at level 19.2 was empty at the time of the arbitration hearing, since those who had previously worked in the classification at that level were upgraded to level 20. It is therefore unclear whether or not the union’s request for an upgrade to level 19.2 would be foreclosed on the basis that that level had previously been occupied by test equipment technicians. However, even if the union’s request for an upgrade to level 19.2 does constitute an error, the Board is not satisfied that the union’s mistake here was so unreasonable, considered alone or together with the other alleged error, as to suggest an “uncaring attitude” toward the interests of the applicants.
In any event, the union’s decision to settle the grievance was not based on any alleged mistakes in the form of the grievance. Instead, the union indicates that it decided to enter into the settlement reached in view of union counsel’s opinion that the grievance in respect of the QA employees was unlikely to succeed on its merits, but that the grievance in respect of the MQS employees had merit. The union therefore determined that it was in the best interests of the bargaining unit as a whole to ensure that the group with a meritorious grievance received an upgrade.
The Board’s case law with respect to the obligation imposed on a trade union under section 74 of the Act makes clear that a trade union is not required to take every grievance to arbitration. In fact, the Board has commented that the mere fact that the union has not processed a grievance to arbitration does not constitute a prima facie case of a violation of section 74 of the Act. In Perino Smith, [1991] OLRB Rep. July 912, the Board made the following comments regarding the obligations imposed by section 68 [now 74] of the Act as it relates to the union’s decision about whether or not to process a grievance to arbitration:
The Board has made clear in many cases that what is required of a union in relation to a decision on whether or not to take a grievance to arbitration is that it turn its mind to the problem and consider it in a manner free from irrelevant considerations and arbitrary, discriminatory or bad faith behaviour. See, among others, the case of Dominic Gattellaro, [1983] OLRB Rep. June 844 at paragraph 9 where the Board said:
Section 68 of the Labour Relations Act does not require that a trade union carry a grievance through to arbitration merely because the grievor wants it to do so. Unless the collective agreement gives the grievor that right, it is for the union to decide whether or not to take a grievance to arbitration. Section 68 requires that the union make that decision in a manner which is not arbitrary, discriminatory or in bad faith. It does not provide an appeal to the Board from the union’s decision. The question for the Board is not whether the union’s decision is the one which this Board would have made in the circumstances, it is whether the union’s decision is the result of a process of reasoning grounded on a consideration of relevant matters and free from the influence of irrelevant ones: see Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, 6 CLNRB (NS) 134, at paragraphs 36 to 39. The Board has recognized that considerations relevant to a decision whether or not to press a grievance to arbitration include the merits of the grievance and likelihood of its success, the financial commitment involved in proceeding to arbitration and the claims or interests of other individuals or groups within the bargaining unit who may be affected by the arbitration proceedings and their possible results: See Catherine Syme, [1983] OLRB Rep. May 775 at paragraph 120.
The union therefore has a considerable discretion on whether or not to take a grievance to arbitration. This discretion must, however, be exercised following a proper review of the grievance and with appropriate consideration of the significance of the grievance to the grievors and the legitimate interests of the union.
The Board therefore now considers the allegation that the union did not conduct a thorough review of their grievance prior to making its decision to enter into the settlement. In this respect, the Board notes that the fact that a preparation meeting did not occur until the day before the arbitration hearing is not, on its own, determinative of whether or not the union was sufficiently prepared to proceed in a given case. In some circumstances, meeting with the grievors the day before the hearing will be adequate and, in other cases, it will not.
The applicants indicate that, in the circumstances of the present case, union counsel did not have a sufficient opportunity to review the extensive documentation in support of their grievance or to take a view of the technical labs in the course of her preparation for the arbitration hearing. Mr. Savage advised the Board that this documentation confirmed the information that he and Mr. Kazarian provided to Ms. Turkington at their meeting of April 27, 1998 regarding the responsibilities of, and/or changes to, their position in the QA department. According to Mr. Savage, the documentation supports the assertions made by them about the changes to the position. In other words, the oral evidence of the applicants could be confirmed by reference to the voluminous documentation to which they refer.
The Board notes that the applicants do not assert that the voluminous documentation, if reviewed, would have revealed further additional changes to the position, of which union counsel was unaware when she offered her opinion to the union that the grievance was unlikely to succeed. In these circumstances, the Board finds that union counsel’s opinion that the grievance was unlikely to succeed was based on the applicants’ best case. Her opinion was based on the information provided to her orally at the meeting and did not refer to whether the applicants’ oral evidence of alleged changes was supported by the written documentation.
In the Board’s view, counsel is entitled to consider first whether or not a grievance is likely to succeed having regard to the grievors’ best case. If, in counsel’s opinion, a grievance is unlikely to succeed even when all of the information provided by the grievors is assumed to be true and provable, there will not generally be any need to then consider whether or not the changes alleged by the grievors can be confirmed by reference to the written documentation. For all of these reasons, the Board is not satisfied that union counsel’s failure to review the alleged extensive documentation in support of the oral evidence provided by Mr. Savage and Mr. Kazarian supports a conclusion that her assessment of the merits of the grievance was inadequate.
With respect to union counsel’s failure to visit the technical labs, the Board notes that the applicants did not explain why taking a view of the QA and MQS technical labs was essential to a proper understanding of their grievance. They have simply said that the nature of their grievance involves a consideration of technical evidence. In the absence of any further explanation, the Board is not persuaded that union counsel’s failure take a view of the technical labs establishes that the union did not properly turn its mind to the merits of the grievance or that it failed to prepare adequately for the arbitration hearing.
With respect to the allegations that the union failed to consider or give adequate weight to certain facts, the applicants indicated at the consultation in this matter that they provided all of these facts to union counsel at their meeting on April 27, 1998. The applicants allege that these facts support their claim for an upgrade and therefore that union counsel could not have considered these facts or, alternatively, could not have given them sufficient weight when she provided the union with her opinion that the grievance was unlikely to succeed.
The Board notes that the applicants’ submissions here do not indicate that they had insufficient time to review the basis on which they claim entitlement to an upgrade at their meeting with union counsel. Union counsel reached her conclusion that the grievance was unlikely to succeed after having been fully apprised of the alleged changes to the QA position referred to by the applicants at the consultation in this matter. Having considered these alleged changes, the Board is not persuaded that there is any reason to “second guess” union counsel’s assessment of the merits of the grievance as it relates to QA employees.
In addition, the Board is not persuaded that there was anything improper about union counsel’s reliance on information provided by Mr. Walker in arriving at her opinion. In this respect, the Board notes that the applicants’ position had last been reclassified in 1973 and therefore changes occurring thereafter are at least arguably relevant to an assessment of the merits of the grievance. The fact that Mr. Walker may not have been in a position to speak to changes occurring after 1982 when he left the QA department does not mean that his input should have be disregarded altogether. The Board notes that the union made clear in its response that the information provided by Mr. Walker was not the only information considered by union counsel. On the contrary, the union indicated that, in rendering her opinion, she also relied on the information provided by Mr. Savage and Mr. Kazarian, who were employed in the QA department at the time of the arbitration hearing and therefore could provide her with information concerning more recent changes.
The Board is further not satisfied that the discrepancies noted between the information contained in the union’s response and that contained in union counsel’s grievance file suggest that the union acted arbitrarily within the meaning of the Act. In this respect, the Board notes that union counsel’s grievance file contains extensive type written notes, including a prepared opening statement, made in preparation for the arbitration hearing, which suggest that a considerable amount of time was spent preparing for the hearing. The applicants appear to have reviewed the union’s response and union counsel’s grievance file with a “finetooth comb” to find discrepancies.
In addition, even if the Board accepts the applicants’ contention that the union’s response overstates the extent of union counsel’s preparation for the arbitration, the Board is not persuaded in all of the circumstances that her preparation for the hearing and/or assessment of the grievance was inadequate. As previously noted, the applicants had a full opportunity to explain to union counsel the facts on which they base their claim for an upgrade at their lengthy meeting on April 27, 1998. All of the bases raised at the consultation in this matter in support of the applicants’ claim for an upgrade were raised with Ms. Turkington at that time. The applicants simply disagree with union counsel’s assessment of the facts and her conclusion that the grievance was unlikely to succeed.
In all of the circumstances, the Board finds that the union was entitled to rely on its counsel’s opinion and to settle the grievance in the manner in which it did without the applicants’ consent. The union has a right and indeed an obligation to make assessments about the best course of action to take with respect to the disposition of a grievance. The union reached a compromise, which ensured increased compensation for the group of employees whose claim for an upgrade it believed had merit and otherwise withdrew its claim for an upgrade in respect of the group whose claim for an upgrade, in its opinion, did not. This decision was not made arbitrarily, but rather was made following a thorough review of the facts and following receipt by the union of a legal opinion that the grievance as it relates to QA employees was unlikely to succeed.
For all of these reasons, the Board is not satisfied that the union acted arbitrarily within the meaning of section 74 of the Act.
Allegations of Bad Faith
The Board is further not satisfied that the references to the applicants as “inspectors” and not “technicians” in the union’s response is in any way indicative of bad faith on the part of the union as alleged by the applicants. In this respect, the Board firstly notes that paragraph 10 of the application itself states that “[a]ll employees of the QA and MQS departments are classified as Inspectors, Grade II, with a job level of 16.1 as defined in Appendix “A” of the collective agreement.” (emphasis added) The intervention filed by the employer also confirms the fact that the job classification described in the collective agreement identifies them as “inspectors” not technicians.
The fact that the QA positions at another employer’s operations (such as at “Ford”) may be described as QA technicians or that the applicants may be colloquially referred to as “technicians” in the workplace does not change the fact that their current classification is described in the collective agreement as “inspectors”. The Board therefore finds nothing untoward about the fact that the union said so in its response. In any event, a review of the notes of the opening statement prepared by union counsel for the arbitration reveals that Ms. Turkington had every intention of positioning the QA and MQS employees as “technicians” at the arbitration hearing as the applicants had wanted.
For all of these reasons, the Board is not persuaded that there is any basis on which to conclude that the union acted in bad faith in its handling of the applicants’ grievance.
DISPOSITION
- For all of these reasons, this application is hereby dismissed.
“Caroline Rowan”
for the Board