0631-99-U Kenneth Aldridge, Applicant v. United Steelworkers of America, Local 6720, Collins and Aikman Plastics Ltd., Stratford Division, Responding Parties.

BEFORE: Anthony Brown, Vice-Chair.

APPEARANCES: Ken Aldridge and Phill Hamberg for the applicant; David Doorey, Doug Brown, Ben Haynes and Steve Neziol for the responding party United Steelworkers of America Local 6720.

DECISION OF THE BOARD; May 12, 2000

1This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging violation of section 74 of the Act. The complaint pertains to the handling and settlement of grievances filed by the applicant. A consultation was held on December 2, 1999. The complaint against Collins and Aikman Plastics Ltd. was dismissed on September 20, 1999 because it is not a trade union.

The Facts

2The applicant was employed by Collins and Aikman Plastics Ltd. (referred to as “the employer” or “the company”) from October 2, 1995 to January 19, 1999. He worked as an assembler in the company’s manufacturing plant. On January 19, 1999, the applicant’s employment was terminated by the company. The reasons cited for the dismissal were that, after he was given a verbal warning for careless workmanship on January 14, 1999, he told his supervisor he did not care about the warning and left the office. He then “swiped out” and left the building without permission. This was cited by the employer as a violation of plant rules. The termination was grieved by the union on January 20, 1999.

3Following a mediation meeting on or about March 4, 1999, to deal with all of the applicant’s outstanding grievances, the applicant, the responding party and the employer signed minutes of settlement stating that:

1. The grievor is deemed to have resigned and his discipline file will be sealed along with other personal correspondence.

2. As full and final settlement of all issues concerning the grievor’s employment with the employer, the employer agrees to pay the grievor the sum of $7500.00 less minimum statutory deductions to be paid on or before 15 March 1999.

3. The grievor acknowledges that the union has discharged its duty of fair representation as set out in the Ontario Labour Relations Act and is agreeing to this settlement of his own volition.

4. This settlement is made without prejudice or precedent to either party in any other matter.

4From the significant number of background documents filed by the applicant, it is readily apparent to the Board that, at least since 1996, the applicant was experiencing various difficulties at work. He injured his shoulder. He filed a claim with the Workplace Safety and Insurance Board and was put on modified duties for a period of time. He was warned several times by his supervisor to pay more assiduous attention to his duties as an assembler. It appears that he viewed these warnings as a form of harassment by the employer. On August 13, 1998, he reported to the Workplace Safety and Insurance Board that he had injured his back. He made a claim for lumbar strain for injury at work but this was denied by WSIB. He missed work from September 2, 1998 to October 6, 1998 because of migraine headaches. Upon return from sick leave he was given modified duties because of his shoulder injury. He got into a dispute with his employer about what kind of duties he should be performing.

The Applicant’s Complaint

5The applicant asserts that he filed a grievance on August 18, 1998 concerning alleged harassment and human rights violations. He asserts that after he informed the union as to how the matter should be settled, he never heard anything else concerning this grievance up to his termination.

6The applicant further alleges that the union mishandled grievances filed on November 5 and 6, 1998. He alleges that these grievances were not dealt with according to the timelines in the collective agreement. The grievances were in response to two warnings from the employer for interfering with production after he asked to see a union steward.

7The applicant further alleges bad faith on the part of the union in respect of its handling of certain matters between the applicant and the Workplace Safety and Insurance Board (WSIB). He claims that he had authorized the union to act on his behalf with respect to WSIB but that the union never submitted this authorization to the WSIB. The applicant also makes an allegation that the union showed “bad faith” in respect of a dispute between him and his employer about what duties he should have been assigned to at work.

8Most importantly, in the context of this application, the applicant asserts that the union reached an unsatisfactory settlement of his grievances with the employer and that the settlement prejudiced his claimed right to reinstatement under the Workplace Safety and Insurance Act. In an undated letter to Doug Brown, a union staff representative, the applicant describes the essence of this allegation:

Dear Doug

Thanks for responding to my letter April-6-98 so quickly. But I need to know the union’s intention. Since the terms are still breached by prejudice. I signed this agreement on the 4th of March. On March 8, 1998 I was told by my claims adjudicator that she was trying to get my job back and that because I resigned I may have pouched my chance at re-employment. Simply had I not signed the agreement I would still have a job. Add to this the fact that I had signed over power of attorney concerning all WSIB matters to the union several months earlier you can see why the agreement should never have been signed somebody should have known of the company’s responsibility to WSIB. I was not all that happy that you helped the company comply with the terms of the agreement. I’m upset with myself for not being clear enough. So I will not make the same mistake. I need to know what measure’s (sic) you have taken to force the company to comply with the prejudice to WSIB.

P.S. Once again I will ask for a speedy reply as the Labour Relations Board does have time limit …… thanks.

9The applicant was not receiving WSIB benefits at the time of his termination.

The Union’s Response

10The union asserts that the August 18, 1998 grievance was resolved when the applicant agreed to the terms of settlement referenced above.

11The union states that it filed two grievances on November 5, 1998 and two grievances on November 6, 1998 in response to the warnings issued to the applicant. The union requested and received an extension of time limits in respect of these grievances because it was involved in collective bargaining with the employer at the time. It asserts that these grievances were resolved through the aforementioned terms of settlement.

12The union states that, on or about January 14, 1999, the applicant’s supervisor, Rob Million, met with the applicant and a shop steward in Mr. Million’s office. The purpose of the meeting was to issue a verbal warning to the applicant for poor work performance. The union asserts that in the middle of the meeting the applicant stated that he did not care about the warning and left the workplace during his shift, without permission. The applicant did not report for work on January 15 or 18, 1999. On January 19, 1999 his employment was terminated. The union states that it filed a grievance on January 20, 1999 against the termination. It also filed two grievances in respect of the warning issued on January 14, 1999.

13The union states that the employer, the union and the applicant agreed to attempt mediation to resolve all of the applicant’s grievances, the dismissal grievance obviously being the most important. The union asserts that, at the mediation meeting, the employer made it clear that it was not prepared to reinstate the applicant. The applicant was asked if he wished to consider a monetary settlement and indicated that he did. At the mediation meeting, the employer alleged that the applicant had sent threatening or harassing e-mails to members of management following his termination. According to the union, the applicant did not deny that these e-mails had been sent. In one such e-mail, filed, the applicant wrote that he was unlikely to return to work as long as the present management remained and demanded $250,000 to settle his grievances. In the instant application, the application seeks an award of damages in the amount of $250,000.

Submissions

14The applicant asserts that the settlement of his grievance was unsatisfactory, and that the matter should have been referred to arbitration. Furthermore, he contends that the Workplace Safety and Insurance Board (WSIB) would have forced the company to reinstate him had the union not advised him to resign. He bases this assertion upon information received from a WSIB claims adjudicator to the effect that his resignation foreclosed the possibility of reinstatement.

15The union states that it filed many grievances on behalf of the applicant. The applicant voluntarily agreed to a settlement that resolved all of his grievances. It asserts that the purpose of this application is simply to obtain more money than he obtained in the settlement, and that he has not provided particulars in support of his claim for $250,000.

16The union asserts that its official, Doug Brown, considered the merits of the dismissal grievance and advised the applicant that there was a strong possibility that the grievance would fail at arbitration. He based this opinion on the applicant’s prior disciplinary record, on the nature of the culminating incident on January 14, 1999 and on the applicant’s post-discharge conduct. The union denies informing the applicant that it would not refer the matter to arbitration if he did not accept a monetary settlement. It also asserts that going to mediation would not have prevented the matter from going to arbitration.

17The union submits that the applicant’s complaint that it failed to advise him of his “reinstatement rights” under the Workplace Safety and Insurance Act (WSIA) is beyond the scope of section 74. It states that, in any event, the applicant was informed and understood that the terms of the settlement resolved all issues relating to his employment and that he would not be reinstated if he signed the settlement. It further states that WSIA does not prevent an employer from terminating an employee for cause.

The Statutory Provision

18Section 74 of the Act states:

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.

Decision

19The issue in this application is whether the union violated section 74 of the Act in its handling and settlement of the applicant’s grievances. A second issue is whether or not it violated its duty of fair representation by not advising the applicant about his alleged right to reinstatement under WSIA.

20In Savage Shoes Ltd. [1983] OLRB Rep. Dec. 2067, the Board described the union’s duty under section 74 [then s.68] this way:

36. Section 68 requires that each trade union decision be grounded on a consideration of relevant matters, free from the influence of irrelevant considerations. The requirement that a trade union not act in a manner which is in bad faith protects the legitimate expectation that an individual employee’s bargaining agent will act honestly and free of any personal animosity toward him. The requirement that a trade union not act in a discriminatory manner protects against the making of distinctions between employees and groups of employees on bases which have no relevance to legitimate collective bargaining concerns. “Bad faith” and “discriminatory”, therefore, test for the presence, in the process or results of union decision-making, of factors which should not be present. “Arbitrary”, on the other hand, describes the absence in decision-making of those things which should be present. A decision will be arbitrary if it is not the result of a process of reasoning applied to relevant considerations. The duty not to act arbitrarily requires a trade union to turn its mind to the matter at hand.

21It is well-established that a union has a right to settle (or withdraw) a grievance, even without the consent of an individual grievor. In doing so, it must, of course, turn its mind to the merits of the grievance and consider, among other things, the potential consequences of the settlement or withdrawal upon the individual, the likelihood of success at arbitration and the interests of the bargaining unit as a whole. (See Dennis Leonard [1990] OLRB Rep. May 575 and Catherine Syme [1983] OLRB Rep. May 775 at para. 20 and 21.)

22There is no evidence before the Board to suggest that the union failed or refused to file any of the applicant’s grievances or to investigate them. There is no evidence of ill-will on the part of the union toward the applicant, or that it treated the applicant’s grievances in a cavalier or arbitrary fashion. The applicant, far from being ignored, was an active participant in the mediation and signed the terms of settlement.

23It was eminently reasonable for the company, applicant and union to agree to meet with a mediator to resolve the applicant’s outstanding grievances. When it was clear that the company would not voluntarily reinstate the applicant, the parties to the mediation turned their attention to arriving at a financial settlement in exchange for a resignation. The union felt that its bargaining position was weakened by the applicant’s post-termination correspondence to his former employer. After signing the settlement and receiving a payment from the employer (admittedly with a relatively inconsequential mix-up about how the payment was delivered), the applicant decided that the settlement was inadequate. He wrote to the employer demanding more money. The employer declined to re-open the deal, and the union also considered the matter closed.

24The union maintains that it had no obligation to advise the applicant about his rights, if any, under the Workplace Safety and Insurance Act. The Board agrees that a union’s duty under section 74 does not require it to advise a union member with respect to the member’s rights under that Act or to represent the member in his or her dealings with the Workplace Safety and Insurance Board. (See Luis Lopez [1989] OLRB Rep. May 464.)

25The applicant argues that the union assumed the obligation to protect his rights under the WSIA when he gave the union permission to speak with WSIB employees on his behalf. In the Board’s view, this argument fails on two counts. First, if the union did assume such an obligation, this does not necessarily mean that its alleged failure to fulfil the obligation is within the ambit of section 74 (See Luis Lopez (supra) at para. 24). Secondly, even if circumstances could exist in which a union might be subject to a section 74 complaint as a result of having assumed an obligation to advise or protect a member with respect to matters falling squarely within the Workplace Safety and Insurance Act there is no evidence in this case that the union did assume this obligation. The union did not play a role in respect of the applicant’s disability claim to the extent that the applicant could be regarded as having handed the whole matter over to his union. The documents filed with the Board show that the applicant corresponded (heavily) with the Workplace Safety and Insurance Board (WSIB) about his claim. The fact that the applicant gave the union some sort of “release” which enabled it to speak with the WSIB about his claim does not mean that the union assumed the role of his representative or advocate in respect of the WSIB.

26For the foregoing reasons, the Board finds that the applicant has failed to adduce evidence that the union treated him in a manner that was arbitrary, discriminatory or in bad faith, contrary to section 74.

27The application is dismissed.

“Anthony Brown”

for the Board