Karamjit Kaur Gill v. Labourers’ International Union of North America, Local 183
File No.: 1169-99-U Date: January 5, 2000
Applicant: Karamjit Kaur Gill Responding Party: Labourers’ International Union of North America, Local 183 Intervenor: Hurley Corporation
Before: Russell Goodfellow, Vice-Chair
Decision of the Board
1Further to the decision in this matter dated September 23, 1999, the Board has received and reviewed the additional material filed by the applicant.
2The core of the complaint is that the trade union failed to represent the applicant fairly when it settled her discharge grievance without her authorization. Pursuant to the settlement, the applicant was to be reinstated to her employment without compensation and with the substitution of a suspension and a leave of absence for the period of time that she had been off work. The length of the suspension was to mirror that given to another employee (following the settlement of the other employee’s grievance) who had been involved in a workplace altercation with the applicant. The portion of the settlement to which the applicant appears to have objected most strenuously was to her return to employment with less than 44 hours of regularly scheduled work per week on the day-shift. Although the applicant had been working that many hours before the discharge, the employer took the position that with the intervening exercise of seniority rights by other employees, the applicant was only entitled to three scheduled day-shifts. At the same time, however, the employer indicated that the applicant could continue to receive between 40 and 44 hours of work per week by filling in for other employees on the night shift.
3At the applicant’s request, the union investigated the employer’s assertion and determined it to be true: for reasons unrelated to her termination, the applicant’s seniority would only entitle her to three scheduled day shifts. The union advised the applicant accordingly, indicating that, in the circumstances, the settlement was a good one and should be accepted. (The circumstances included an assertion by the employer that the applicant’s grievance was untimely because, through what the pleadings establish was the applicant’s inattention, the grievance had been filed late.) The union indicated however, that if the applicant had any other concerns about the negotiated settlement it would be prepared to investigate them as well. Failing that, however, the union would sign the settlement so as to preserve the applicant’s job and the employer would likely expect the applicant to return to work on pain of further termination. All of this was comprehensively explained to the applicant in written correspondence.
4The applicant responded that she could not agree to the proposed number of hours of work, as well as to the periods of suspension and unpaid absence. In reply, the union contacted the applicant and explained, again, the circumstances of the other employee’s treatment and the basis for the proposed settlement. Once again, the applicant refused to agree and, as previously indicated, the union signed the settlement on the applicant’s behalf. As predicted, the employer then contacted the applicant and notified her of the requirement to return to work. When the applicant did not do so, the employer advised her that she was deemed to have quit.
5There may be something to be said for unswerving determination and loyalty to purpose, no matter the merits, but not at the cost of one’s job. It is clear from the material filed that the union conducted itself appropriately in the circumstances and that the applicant is solely responsible for the situation in which she finds herself. The union was not responsible for the grievance having been filed late and it kept the applicant abreast of the settlement discussions. It explained the merits of the settlement and invited the applicant to provide any facts that would contradict their determination that it was a good one. Such facts were not forthcoming.
6As an employee’s lawful bargaining agent, a trade union is entitled to refuse to file a grievance, to withdraw a grievance, or to settle a grievance in accordance with its assessment of the interests of the employee(s) and the bargaining unit as a whole. It is not a mere cypher or agent of individual employee interests but must, of necessity, make independent choices on behalf of its overall constituency. The trade union’s only statutory obligation is to comply with the requirements of section 74 of the Act, which 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.
In this case, the union negotiated a reasonable settlement on the employee’s behalf and kept her well informed of the developments and the positions taken. It explained its own position and invited the applicant to explain hers. It concluded, not unreasonably, that the applicant’s position lacked merit. It advised the applicant that it would sign the settlement and what she could expect when it did. The applicant could have, but chose not to, show up for work and retain her job while, perhaps, proceeding with a section 74 application at that time. Instead, she remained as impassive with respect to the settlement process as she had been with respect to the filing of the grievance in the first place.
7On the basis of the material filed, to which the applicant had the opportunity to respond, the union cannot be said to have acted “arbitrarily”, “discriminatorily” or in “bad faith”; indeed, it appears to have acted both competently and professionally in all respects.
8Accordingly, the application is dismissed.
"Russell Goodfellow" for the Board