Ontario Labour Relations Board
0897-99-U Mukhtar Ahmad, Applicant v. United Steelworkers of America, Responding Party; Amcan Castings Limited, Intervenor.
BEFORE: Patrick Kelly, Vice-Chair.
APPEARANCES: Thomas Pratt and Mukhtar Ahmad for the applicant; Travis Kearns, Bryan Adamczyk and Peter Cowely for the responding party; Richard Anstruther, Darla Huber and Paul Darling for the intervenor.
DECISION OF THE BOARD; February 25, 2000
1This is an application filed pursuant to section. 96 of the Labour Relations Act, 1995 (the "Act") alleging a violation of section 74 of the Act.
2Section 74 reads as follows:
- 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.
3This matter came before me as a consultation scheduled for February 17, 2000.
4At the outset of the consultation the Board determined that, because the matter involved solely an allegation of a violation of section 74 of the Act, Amcan Castings Limited, listed as a responding party, should be identified as the intervenor. Moreover, it was further determined that the remaining responding party was properly identified as: "United Steelworkers of America". The style of cause is accordingly amended.
5The Board entertained preliminary motions by the intervenor (the "company") and the responding party (the "union"). The union's representative argued that the application failed to set out how the union was alleged to have violated section 74 of the Act, and requested that the application be dismissed. In the alternative, the union's representative asked the Board to order the applicant to particularize its allegations and specify what it is that the union did that was arbitrary, discriminatory or in bad faith in its representation of the applicant.
6Counsel for the company also asked the Board to dismiss the application on the basis that it pleaded no facts, but was merely an assortment of various and sundry documents which failed to explain what the union allegedly did or did not do to attract liability under section 74.
7Following the submissions on the preliminary motions, I adjourned the consultation in order to consider whether to dismiss the application or to permit counsel for the applicant a short period of time to file an amended application. This decision deals solely with the preliminary matters.
8Counsel for the applicant explained that he had been retained recently, and that the applicant himself had prepared the application filed in June of 1999 without legal advice. Counsel for the applicant corresponded with the Board by letter dated February 11, 2000, (received by the Board via Priority Post on February 14, 2000), requesting the Board to send him a copy of the application filed by the applicant. Counsel acknowledged receiving the materials from the Board on February 15, 2000.
9Counsel for the applicant acknowledged that the application lacked any organization, but submitted that it contained all the information upon which the applicant relied in asserting a violation of section 74. Counsel pointed out that the union and the company submitted detailed responses indicating that they had discerned the substance of the applicant's case. Counsel contended that the proper course of action would be to file an amended application within a short period of time, which would clearly organize the allegations and explain how it is that the union allegedly violated the Act.
10In response to questions put by the Board, counsel for the applicant submitted that the applicant's case rested upon two related allegations. One of these related to the applicant's treatment by his supervisor, which became the subject of a grievance filed by the union on October 4, 1998. The union eventually withdrew this grievance, and counsel for the applicant contended that the union either did not investigate the matter, or conducted a completely inadequate investigation. Either way, the applicant, it was argued did not get fair representation by his union when it withdrew this grievance on April 21, 1999 following a mediation meeting to which the applicant had been invited but which the application declined to attend.
11The second focus of the applicant's case is on the arbitration and settlement of his termination grievance. The applicant was terminated on November 10, 1998, and his grievance concerning same was referred to arbitration which was scheduled for May 10, 1999. At the arbitration, minutes of settlement were executed by the company, the union and the applicant. Counsel for the applicant contended that the applicant's signature was obtained by the union's intimidation and coercion, and that the applicant suspected his allegations concerning his supervisor were behind the union's alleged interest in achieving a settlement that would result in the applicant's severance from the workplace. In response to questions from the Board, counsel for the applicant revealed that the applicant's evidence would establish that during the discussions between the union and the applicant on the day of the arbitration, the union told the applicant that he had no real choice but to accept the company's offer to settle, that the union knew what was best for the applicant in this regard. Counsel also contended that the union denied the applicant any opportunity to consult an independent lawyer of his own choosing, and refused to seek an adjournment of the arbitration hearing for the purpose of allowing the applicant to further consider the company's offer to settle. Finally, counsel advised the Board that the applicant's evidence would reveal that the union confronted the applicant with a letter produced by a private investigation firm hired by the company. The letter alleged that the applicant was a part-owner of a jewelry store. The applicant adamantly denies that allegation. Notwithstanding his denial, the applicant would give evidence that the union told him he should accept the settlement because a jewelry store owner was not in need of larger sums of money than those offered by the company.
12In addition to outlining the nature of the evidence that would be adduced in support of the applicant's case, counsel took issue with the portions of the minutes of settlement that purport to insulate the union from any claims by the applicant in respect of section 74 of the Act or to any human rights liability pursuant to the Human Rights Code. Although there was no evidence as to how the minutes of settlement were drafted, and at whose insistence the various clauses were inserted into the document, counsel for the applicant appeared to be saying that it was improper for the union to be a signatory to a settlement that specifically insulated it from liability with regard to the applicant.
13Taking the applicant's case at its highest, the Board is of the view that, even if the allegations were proved, no violation of section 74 of the Act would be made out. The circumstances leading to the execution of the minutes of settlement are not extraordinary. The applicant found himself in a pressure situation on the day of the arbitration, a situation that frequently presents itself to litigants faced with last-minute settlement offers on the day of a hearing. Even if the allegations regarding the union's behaviour towards the applicant are true – and the union strongly denies them – they do not amount to the kind of treatment of the applicant that would cause the Board to set aside an otherwise binding agreement of the parties, an agreement that specifically states that the applicant received fair representation by the union. The union had carriage of the grievance, and as such, it was not obliged to permit the applicant to get further independent legal advice, nor was it required to seek an adjournment of the hearing so that the applicant could more fully consider his options: see Service Employees International Union (SEIU), Local 204, [1996] O.L.R.D. No. 459 where the Board found that the union in that case acted reasonably in refusing the complainant's request for a "cooling off period" to obtain a legal opinion regarding a settlement. Moreover, it bears noting that following the execution of the minutes of settlement, the applicant received all the benefits of the transaction, and never attempted to return them under protest. The applicant secured for himself the benefits of the settlement, and then filed this application.
14As the Board noted in Etobicoke General Hospital, [1999] O.L.R.D. No. 291, there is an "inherently [economic] coercive aspect" in settlement negotiations of this kind. In that case, as in the present one, the applicant had a choice not to sign the settlement. There, as here, the applicant understood the nature of the document he signed. There are no allegations that he was in any way incapacitated or under threat of physical harm. He may have formed an opinion that he had no other option but to sign the settlement, but in fact there is no basis for that opinion. He had a very clear alternative: refuse to sign and insist that the hearing continue. Had the union refused to continue with the case, the applicant might have had a remedy under section 74.
15This finding renders moot the applicant's further concern regarding the union's alleged failure to properly investigate his complaint about the treatment he faced at the hands of his supervisor. By voluntarily entering into the minutes of settlement, the applicant agreed to end his employment relationship with the company, and to forego all claims related to his employment. That included any claims or grievances against the company for the actions of its employees. In any event, no meaningful remedy could issue as a result of an inquiry by this Board into this aspect of the applicant's section 74 complaint.
16The application is dismissed.
"Patrick Kelly"
for the Board