0112-00-U Robert W. Chapman, 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: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; May 3, 2000
This is an application pursuant to section 74 of the Labour Relations Act (the “Act”). The applicant alleges that the CAW-Canada Local 636 (the union), breached its duty of fair representation to him in deliberately misrepresenting to him that he would receive a pension based on his 30 years of service, in return for withdrawing two grievances related to his termination from employment. As I understand it, the pension that the applicant received was based on his approximately 27 years as a bargaining unit member. This does not (and cannot according to the information provided by the employer) include the years he spent as a supervisor. That service is credited in another pension plan, the benefits of which the applicant will not receive until 2002.
Both the union and TRW Automotive (Kelsey Hayes Canada Limited) (the employer) have asked that this application be dismissed because it discloses no prima facie or arguable case. Or put another way, the union and the employer maintain that even if all the facts alleged by the applicant are proved, he will not be entitled to the remedies requested.
I conclude that the applicant had made out a prima facie or arguable case for one of the remedies sought. If the applicant is able to prove that the union acted in bad faith with respect to the advice it gave, or the actions it took on the applicant's behalf, then the Board might well find a violation of the Act. However, of the remedies that the applicant seeks only one of them would the Board consider in the event that the Board concluded that the union had breached the Act. The applicant maintains that if he had known that he would not receive a pension based on his 30 years of service, he would not have accepted the deal offered by the employer. As a remedy, he seeks to have his termination grieved. It goes without saying, I hope, that if such a remedy was awarded, the applicant would lose the special pension arrangement that the union negotiated on his behalf. The applicant cannot, on the one hand, seek to unravel the deal, while still claiming the benefit of it.
In the past, the Board has, where it has found that the union has breached a duty to fairly represent an employee with respect to a grievance, ordered that the union process the grievance. But the applicant needs to be aware of the risks in "winning" such a remedy from the Board. A trade union is not required to advance every grievance to arbitration. The Board understands from the union and the employer's pleadings that the termination arose in the context of an alleged breach of the applicant's second "last chance" agreement. If the union and the employer's information is correct, then the applicant needs to understand that a termination grievance in the circumstances of a "last chance" agreement is very grave and risky matter for trade unions and employees. Even if the union decided to advance the matter to arbitration, it could lose. And if the union was unsuccessful at arbitration, the applicant would remain terminated, and without the special pension arrangement. I urge the applicant to obtain professional advice before proceeding further.
As additional remedies, the applicant seeks to have his pension adjusted to reflect service of 30 years, and damages plus interest, for the difference between his present pension and what he would have received had he been credited with 30 years service. Neither is an appropriate remedy for breach of section 74 of the Act. The union admits that it made a mistake when it told the applicant that his pension would reflect 30 years service. Even accepting (for the moment) the applicant's allegation that the union acted in bad faith, intentionally misrepresenting the truth, it does not follow that the applicant gets the benefit of the "mistake", particularly where the union, no doubt, has no control over pension entitlements. The only appropriate remedy, if the Board finds that such a breach occurred, is to put the applicant in the position he would have been in had the breach not occurred. The applicant states that if he had known that his 30 years of service would not be credited, he would have rejected the deal and demanded that the matter continue through the grievance procedure. In my view, then, the highest remedy available to the applicant is an order of the Board that his termination grievance be processed.
Consequently, the Board concludes that the applicant has made out a prima facie case for the first remedy outlined in paragraph 7 of the application but not with respect to the other remedies set out.
The matter is remitted to Labour Relations Specialist, Pat Whyte, to continue his efforts to help the parties resolve this matter.
“Mary Ellen Cummings”
for the Board