0242-00-U Gary Sobeski, Applicant v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 636, Responding Party v. TRW Automotive (Kelsey-Hayes Canada Limited), Intervenor.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; July 19, 2000
1By a decision dated June 9, 2000 the Board directed the applicant as follows:
… on or before 5:00 p.m. July 7, 2000, to file a statement with the Board setting out which paragraphs of Schedule A of the response he agrees with, which he disagrees with and what other facts (if any) he says are relevant to this application. At the same time he shall provide a copy of this statement to the CAW and to Kelsey-Hayes Canada Ltd. If the applicant fails to do so, he will be deemed to have accepted as correct all the facts set out in the CAW’s response, and the Board will deal with it on that basis.
2As the date of this decision, the applicant has not made any submissions. Accordingly, the Board accepts as correct all of those facts pleaded in the application and those facts pleaded in the CAW’s response which are not specifically contradicted by anything in the application.
3The applicant was employed by the Intervenor (“Kelsey-Hayes”) for a period of three years. Shortly after the expiry of his probationary period, he began to experience difficulties which he said were medical difficulties arising from the performance of his duties. Some accommodation was made at the workplace, but apparently not enough to satisfy him. The applicant’s attendance record, on paper, appears very poor. He was absent, during the last six months of 1996, for 30 days; in 1997 he was absent for 87 days; in 1998 for 22 days and he was absent January 15 through April 23, 1999. During these three years, Kelsey-Hayes raised its concerns about the applicant’s attendance and his ability to perform the job with him and with his union on a number of occasions.
4On February 14, 1999 Kelsey-Hayes scheduled another meeting with the applicant and the CAW with respect to his attendance at work. At this time, Kelsey-Hayes offered the applicant 3-4 weeks’ salary in exchange for a resignation. He declined. He remained off work and in receipt of weekly indemnity benefits from the insurer, which provided the benefits required under the collective agreement.
5In late April the insurer denied the applicant’s claim for further weekly indemnity benefits. It also had him examined by an independent orthopedic surgeon. That independent surgeon’s report indicated that there was no specific problem which would prevent him from performing his job.
6At this point, according to the applicant, Kelsey-Hayes demanded his resignation. He refused. A proposal was read to him and he refused to execute it. The CAW representative then discussed the matter further with Kelsey-Hayes and obtained a better offer from it. The representative then advised the applicant that he ought to accept the offer as the alternative prospect, discharge, with no further access to any form of payment or “sick benefits” was a much less desirable proposition from the applicant’s point of view. The applicant does not dispute the CAW’s assertion that it advised him of his right to file a grievance and of the difficulties and uncertainties he faced if the matter proceeded to arbitration. Although the applicant had claimed his illness was due to an injury arising out of and in the course of employment, the WSIB had provided him only with medical benefits and no lost-time benefits. Accordingly, he had no income at that time.
7In the end, after consulting with friends, neighbours and co-workers, the applicant did sign the memorandum. He was paid a lump‑sum of $4,600.00 less statutory deductions. In exchange, he waived all rights as against Kelsey-Hayes.
8In or about June 1999 the applicant began work driving a truck for another company. In or about August 1999 he arrived at the union hall and spoke to two representatives of the CAW. He complained that he was not earning enough driving a truck and that his settlement package with Kelsey-Hayes had been too small. He claims in his application that he realized that he had “made a mistake” and sought to retract his consent to the memorandum. Kelsey-Hayes has refused to accept this retraction. The applicant asserts that the Treasurer of the CAW advised him that the agreement meant nothing. Notwithstanding this view, the CAW has refused to “retract” the agreement.
9The applicant does not explain the basis for his assertion that he made a mistake. He does say that he felt he was faced with the choice of accepting the deal offered or facing termination and the uncertain chances of arbitration. That is in fact precisely the situation that he found himself in, and the CAW was under an obligation to ensure he understood that. He also states he signed the agreement because he was under financial pressure and without any income. That is unfortunate, but not something the CAW was responsible for or could do anything about. It does not appear to the Board on the facts which are set out in the pleadings that any recommendation to sign the agreement was unreasonable. On those facts (which the applicant has not chosen to supplement or challenge), his chances of success at arbitration challenging a non-disciplinary discharge were very uncertain. He might well have received absolutely nothing.
10In this application, the applicant seeks to have the “memorandum retracted”. He further seeks to have his employment reinstated and to be paid all lost monies and benefits and to have his record made whole, as well as to be compensated for mental anguish at the hands of the union. In any case where it is alleged that the statute has been breached, the Board seeks to place the parties in the situation they would have been in had the breach not occurred. In this case the only breach alleged is a breach of section 74 by the CAW in the manner in which it assisted in obtaining the applicant’s consent to the memorandum of agreement. If there was a breach, the appropriate remedy would be to place the parties in the position they would have been in had the memorandum not been signed. That is, relief would be limited to an order requiring the parties to refer a grievance to arbitration (assuming Kelsey-Hayes would have followed through on its discharge) and to direct them not to rely on the memorandum of agreement or the passage of time since it was signed
11The question is whether the union has violated section 74. Section 74 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.
There is no question of bad faith or discrimination in this application. The only issue is whether or not the union was arbitrary. The term “arbitrary” as it is used in section 74 has been defined to mean a number of different things:
(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);
(c) acted on the basis of irrelevant factors on principles (Walter Hill Jr., [1995] OLRB Rep. Jan. 21 at para. 30);
(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).
That is, the Board does not answer the question of whether the union’s actions were the “correct” ones in the circumstances or whether they are the actions the Board itself would have taken. The issue is whether the union’s actions fall outside any reasonable standard of behaviour.
12The Board is not prepared to characterize the union’s actions as arbitrary. Whether or not the union (or the applicant) might have chosen a different course is not the issue. Nor is the issue the likely chance of success at arbitration of any grievance the applicant might have filed. The union’s advice was perhaps not the only advice that could have been given, but it was reasonable advice in the circumstances. That finding is sufficient to establish an answer to the allegation of a violation of section 74.
13More importantly, the applicant does not allege any facts with respect to the circumstances leading to his execution of the memorandum which would suggest fraud or coercion. The most he can complain of is bad advice (a charge the Board does not agree with). However, the quality of advice received does not nullify the applicant’s consent to the memorandum. Further, he did not attempt to revoke his consent until some four months had passed, and at a time when he said that it was in response to discovering that his income from his new job was less than expected.
14Parties are entitled to rely on agreements freely entered into. Nothing would be more disruptive to orderly labour relations than to permit parties to revoke agreements among employees, their trade union, and their employer into which the parties have entered to settle disputes or potential disputes. In Canadian Union of Public Employees (Board File No. 0911-98-U, unreported, March 3, 2000) the Board said as follows:
There was, in any event, no evidence of any coercive or untoward behaviour on the part of the representatives of the trade union at the mediation. At most the applicant asserted that she felt unsupported, that it was hopeless. I note that while the applicant felt that her grievances were being pre-judged, the union has some obligation to advise a grievor as to the risks and likelihood of success, or not, of any grievance, and to canvass the options available that might result in some satisfaction to a grievor. And it is clear that she was presented with her options. They advanced her request to seek a higher severance amount and a letter of reference, with limited success. There was no suggestion that the trade union was refusing to proceed to arbitration had she declined the settlement. Relative costs and benefits were reviewed. She was allowed time to seek other advice.
The trade union relied on Chitty on Contracts (27th ed., 1994) as setting out the appropriate standard for assessing capacity as follows:
In the case of contracts other than for necessaries, the general rule is that a mentally disordered person is bound by his contract unless he can show that owing to his mental condition he did not understand what he was doing, and further that the other party was aware of his incapacity. But if these two conditions are satisfied, the contract is voidable at his option…
… The understanding and competence required to uphold the validity of a transaction depend on the nature of the transaction. There is no fixed standard of sanity which is requisite for all transactions. What is required in relation to each particular matter or piece of business transacted, is that the party in question should have an understanding of the general nature of what he is doing. (at pages 463-464).
I accept this as an appropriate characterization of the test. To the extent that a party to a settlement is required to be aware of the incapacity I note that this includes the employer as well as the trade union. The employer had specifically rejected any medical condition. There was no indication to the employer on August 13, 1998 that the applicant was in any way disadvantaged in her ability to understand the nature of the proceedings or her role and available choices.
I find that the applicant has not established that she lacked the capacity to enter into the settlement on August 13, 1998. That settlement resolved all employment issues with the Regional Municipality of Hamilton-Wentworth in exchange for a payment of severance and a letter of employment. There is no dispute that the applicant received the benefit of the settlement dated August 13, 1998 and that she did not seek to repudiate that settlement until March 1999, even in the face of the availability of counsel’s advice.
(See also Elizabeth Balanyk, [1999] OLRB Rep. Dec. 947.)
15The Board finds that the facts as asserted or conceded by the applicant do not make out a case for the orders or remedies requested. Assuming all of the facts to be true, they do not establish an arguable case that the CAW breached section 74. Accordingly, this application is dismissed.
“David A. McKee”
for the Board