Kathy Bullock v. United Steelworkers of America, Local 3313, 2000 CanLII 12925

BEFORE: David A. McKee, Vice-Chair.

DECISION OF THE BOARD; July 14, 2000

1This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995, ch. 1 (“the Act”) in which the applicant alleges that her bargaining agent has violated the duty of fair representation set out in section 74 of the Act. The applicant is employed at Streamline Copper & Brass Ltd. (“the Company”). She is in a bargaining unit represented by the United Steelworkers of America, Local 3313 (“the Union”).

2The Union has filed a response and has asked the Board to dismiss the application without a hearing or a consultation on the basis that it does not disclose a “prima facie” case. Rule 46 of the Board’s Rules of Procedure provides as follows:

Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.

In considering this type of motion, the Board must look only at the facts as stated in the application and assume that all of them are true. The Board does not look at anything alleged in the Union’s response at all.

3This application is a difficult matter. The applicant’s concerns are not frivolous and she clearly feels very deeply about the subject matter of her complaint. However, the test on this type of motion is not the level of sincerity of the applicant or the depth of her quite genuine feelings. The issue is whether the Union has failed to live up to its obligation under section 74. This section 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.

4The Board has, over the years, given various examples of how a trade union may act in a way which constitutes a breach of section 74. These include:

(a) committed a “flagrant error” consistent with a “non-caring attitude” or to have acted in a manner “so reckless as to be unworthy of protection” (ITE Industries, [1980] OLRB Rep. July 1001 at para. 19);

(b) failed to direct its mind to relevant issues (Town of Oakville, [1984] OLRB Rep. May 731 at para. 14);

(d) failed to act on available evidence or to conduct a meaningful inquiry to obtain the information necessary to make a decision (North York General Hospital, [1982] OLRB Rep. Aug. 1190 at para. 25);

(e) to have acted in a manner which is indifferent, summary, capricious or perfunctory:

… where the decision maker, on the other hand, misapprehends facts and circumstances which the Board considers “patent” and arrives at an “almost perverse” understanding of the facts and circumstances, the Board will conclude that union effectively barred itself from “directing its mind to the real question”, and that in so doing it has acted in an arbitrary fashion: The Corporation of the County of Hastings, [1976] OLRB Rep. Nov. 1072 ¶22. Where it is difficult to see a rational pathway between the facts and circumstances said to have been taken into account and the interests said to have been balanced on the one hand, and the result on the other, then there arises a rebuttable presumption that the decision was arbitrary. (Susan Shoes Ltd., [1983] OLRB Rep. Dec. 2067 at para. 38).

5The applicant has complained of essentially three matters between herself and the Union.

6First, she alleges that another employee displaced her from certain tasks, claiming that she had a right to do so. The applicant is unhappy about this and initially complained to both the Company and the Union, disputing the other employee’s assertion that she had a right to displace her. However, she has shown the wisdom and maturity to voluntarily accept the running of machines when work in the packing area is slow. While she is to be commended for her attitude to what is clearly, for her, an annoying problem, she has in essence solved the problem herself. There is no ongoing dispute which requires any action by the Union at all.

7The second incident relates to the same fellow employee using offensive language towards her. The Company recognized that this was inappropriate behaviour and issued a warning letter to the employee. This action was not disputed by the other employee or by the Union. While the incident is regrettable, both the Company and the Union (and in her attempt to apologize, the other employee) have responded appropriately. There is nothing else the Union could have done for the applicant in this case.

8The incident which is the most serious is the third. The applicant states that she was physically assaulted by a different fellow employee. The Company discharged him. The Union filed and is pursuing a grievance on his behalf, seeking among other things, reinstatement. The applicant is understandably distressed at this action and has asked the Union to provide her with representation at the arbitration hearing or to withdraw the grievance. Her request for relief from the Board seeks to have the Board order the Union to withdraw the grievance.

9The applicant did not feel comfortable discussing this with her Local Union representative. That representative put her in touch with a regional representative. This representative advised her that the Union felt an obligation to fight for the other employee’s job as he had twenty years of service with the Company. The Union has offered to provide her with counselling (I take it by a professional outside the Union), but has not promised to provide representation for her at arbitration.

10Once again, it is impossible to say that the Union has failed in its duty of fair representation to the applicant. Cases of this sort are the most difficult for a union, as the union has an obligation to represent all members of the bargaining unit, even when they are in conflict with one another. Twenty years of service does not justify an assault. Nothing does. However, an employee with twenty years of service is entitled to representation by his union in respect of critical job interests. Indeed, if the Union had refused to process his grievance, and the other employee had filed a complaint under section 74, the Board would likely scrutinize a refusal by the Union very closely. Accordingly, the Union is behaving properly in proceeding with the grievance of that other employee. On the basis of the facts set out in this application, it is not at all clear that the Union can provide separate representation for the applicant at the hearing. Even if it can, the Board does not find that, in the circumstances of this case, it is a breach of section 74 for the Union to refuse to do so.

11For all of these reasons, this application is dismissed.

“David A. McKee”

for the Board