4137-98-U Rafael C. Ancheta, Applicant v. Mr. Gerry Crann (Teamster Local 424) Mr. Marvin Kalchman (Party to the Collective Agreement), Responding Party v. Medis Health and Pharmaceutical Services Limited, Intervenor.
BEFORE: Timothy W. Sargeant, Vice-Chair
APPEARANCES: Rafael C. Ancheta and Theresa S. Ancheta for the applicant; Steve Rodriquez Gerald Crann for the responding party; Marvin Kalchman for the intervenor.
DECISION OF THE BOARD; January 12, 2000
This is a complaint brought pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging that the responding party had breached section 74 of the Act. A consultation was scheduled for January 5, 2000. At the consultation the Board explained that it had authority to change the consultation into a hearing at any time.
The Board finding no settlement was possible, proceeded to hearing and heard evidence from the parties.
The Board pursuant to the request of the employer representative added the employer as an intervenor. The Board also dismissed the application against Mr. Marvin Kalchman, Human Resources Manager explaining to the applicant that section 74 of the Act may only be breached by the union, and not a member of management.
The Board heard evidence from the applicant, Mr. Rafael A. Ancheta (“Ancheta”). Mr. Ancheta testified that on May 31, 1998 he had come in at 7:00 p.m. (two hours early) to work as a forklift operator. According to his testimony a Union Officer, Mr. Paul Rettie (“Rettie”) asked for the forklift machine he was operating. Mr. Ancheta told Mr. Rettie there were two other machines available. Mr. Rettie returned in five minutes and bet Mr. Ancheta $50.00 that he could get the machine Mr. Ancheta was operating. About ten minutes later Mr. Ancheta was approached by Mr. Rettie and Mr. Rettie’s supervisor. The supervisor ordered Mr. Ancheta out of the forklift. Mr. Ancheta asked “Why?” and told the supervisor that two other machines were available. The supervisor told Mr. Ancheta the other machines were not “double reach”. Mr. Ancheta told the supervisor all the machines were double reach. The supervisor told Mr. Ancheta “I’m the supervisor, get down and give it to him”. Mr. Ancheta refused and asked “what is the difference between this machine and the other machines”. Mr. Ancheta saw another supervisor and asked him if the two other machines were “double reach”. The supervisor according to Mr. Ancheta indicated that they were “double reach”.
After about fifty minutes Mr. Ancheta saw Mr. Rettie in one of the other machines. He therefore thought all problems had been solved. After about another half hour Mr. Ancheta went back to his regular job as shipper and at that time gave his forklift to Mr. Rettie.
Mr. Ancheta worked his regular shift till 3:30 a.m. He was then asked by his immediate supervisor if he wanted to work overtime, which he did for another two hours. He was then told by his immediate supervisor that he was wanted at a meeting.
At that meeting a union representative was present. The outcome of the meeting was that Mr. Ancheta was suspended indefinitely for disobeying a direct order and insubordination.
Later Mr. Ancheta was informed at home that he has been suspended for three days. Mr. Ancheta had a meeting with Mr. Gerald Crann (“Crann”), a union representative, and asked Mr. Crann to file a grievance on Mr. Ancheta’s behalf. Mr. Crann refused, noting that Mr. Ancheta had had a previous suspension in March (just three months previously) for refusing a direct order.
Mr. Crann testified that he had been on vacation at the time of the incident. When he returned from vacation he was informed by a fellow union committee member, Mr. Bill Payton (“Payton”) that Mr. Ancheta had been suspended for disobeying a direct order. Mr. Crann arranged a meeting with himself, Mr. Ancheta and Mr. Lawson Henry, the union member who had represented Mr. Ancheta at the earlier discipline meeting. At this meeting Mr. Ancheta admitted that he had disobeyed a management directive at least twice. In the circumstances Mr.Crann testified that he told Mr. Ancheta there was little he felt he could do, but he would talk with the other committee members.
Mr. Crann did discuss this matter with the other Committee members. Given that Mr. Ancheta had admitted disobeying a direct order from a supervisor, and given that Mr. Ancheta had just three months previously been suspended for disobeying a direct order, all committee members felt there was not grievable issue.
Mr. Crann met with Mr. Ancheta and Mr. Payton on the warehouse floor and informed Mr. Ancheta that there was no grievable issue as he had disobeyed a direct order. Mr. Crann pointed out that the chief witnesses would be a union stewart and another union committee member. Mr. Crann further pointed out that this was the second occurrence of this nature in three months. Mr. Crann thus informed Mr. Ancheta that he would not file a grievance, but that he would see if he could have the suspension reduced at the next Labour Management meeting, though he held out little hope of success. Mr. Ancheta indicated he wanted a grievance filed, but Mr. Crann again told him it was not a grievable issue.
At the next Labour Management meeting held in August, Mr. Crann was successful in having the Company agree to reduce the penalty by one day. Mr. Ancheta, however, told Mr. Crann the deal was unacceptable. Mr. Crann told Mr. Ancheta as far as the union was concerned this matter was resolved and if Mr. Ancheta chose not to accept, that was his choice.
The essence of Mr. Ancheta’s argument is that he was discriminated against. In his view Mr. Rettie had caused the problem by asking for the machine Mr. Ancheta was using when the other machines were clearly available. It was Mr. Rettie that should have been disciplined, not Mr. Ancheta, as obviously Mr. Rettie and the Supervisor had no justification for asking Mr. Ancheta to step down from his machine. Thus he had refused. In the circumstances it is Mr. Ancheta’s submission that the union should have filed a grievance on his behalf, as he had been discriminated against.
Section 74 of the Act states:
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 terms “arbitrary”, “discriminatory” and in “bad faith” have been considered by the Board on a number of occasions. The Board has stated that only conduct which can be described as implausible, so reckless as to be unworthy of protection, unreasonable, suspicious or negligent will amount “arbitrary” conduct. The term “discriminatory” has been interpreted to refer to the disparate treatment of bargaining union members without cogent reasons. “Bad faith” has been interpreted to refer to actions or decisions motivated by hostility, ill-will or other improper considerations.
The fact that a grievance does not go to arbitration does not, in itself, establish any arguable breach of section 74. Further, the Board does not review a trade union’s conduct to see if what it has done is right or if it could have done better. Provided the union is not arbitrary, discriminatory or in bad faith it will not have violated section 74.
In this instance although Mr. Ancheta’s frustration may be understandable, he did on his own admission refuse a direct order of a supervisor. As Mr. Crann stated in cross examination the only reason to refuse a direct order is if the order is illegal or if the order is unsafe. Neither reason is alleged. If Mr. Ancheta felt aggrieved by the Supervisor’s order the proper recourse would be to obey the order and then grieve. As many arbitration decisions have held, a workplace is not a debating society.
In these circumstances given the previous suspension, the Board cannot find that the actions of the Union were in any way “arbitrary” “discriminatory” or in “bad faith” as those terms have been interpreted by the Board. In fact the union was successful in reducing the penalty by one day, though such settlement was not accepted by the applicant.
Accordingly the Board finds no breach of section 74, and dismisses this application.
“Timothy W. Sargeant ”
for the Board