2630-99-U Michael Teskey, Applicant v. Amalgamated Transit Union Local 113, Responding Party v. Toronto Transit Commission, Intervenor.
BEFORE: Christopher J. Albertyn, Vice-Chair.
APPEARANCES: D. Pouliot, Michael Teskey, G. Sawyer, M. Aldred, G. Johnson, M. LeBlanc, J. Carruthers, E. Kacin and W. McNaught for the applicant; Ian J. Fellows, Bruce Hare and Roy Hinds for the responding party; Dolores M. Barbini and Mike Aziz for the intervenor.
DECISION OF THE BOARD; November 7, 2000
The Issue
1This is an application filed pursuant to section 96 of the Labour Relations Act, 1995, R.S.O. 1995, c.1, as amended (“the Act”) alleging that the responding union (“the union”) has violated section 74 of the Act. The employer (“the TTC”) has filed an intervention.
2A consultation was held on November 2, 2000. A summary of the parties’ respective positions was presented by each of the parties’ counsel. There are few disputes of fact between the parties, but to the extent there are, I will draw attention to them.
3The applicant’s complaint is that the union represented him in a perfunctory and lackadaisical manner. He was terminated from his employment by the TTC on July 10, 1999. Eight other employees were dismissed at the same time, and for similar reasons. All of them were identified, on one or more occasions, as being involved in the consumption of intoxicating liquor or drugs at work and while on duty, or of being impaired at work as a result of such consumption or of being in possession of an intoxicating beverage or drug, or of drug trafficking. The allegation against the applicant was that he was involved in all of these offences on various occasions in June and July 1999.
The Facts
4The applicant was a car house operator. His job was to move trains around the cleaning and maintenance area. At the time of his discharge he had 21 months service with the TTC.
5Under the collective agreement between the TTC and the union four offences are treated different from all others. The TTC is empowered to impose “the specific penalty of discharge” for any of the following offences:
a) Theft from the Commission; save and except theft of goods having a nominal value.
b) Consuming an intoxicating beverage, or drug for other than medicinal purposes, while on duty.
c) Being impaired while on duty by reason of consumption of an intoxicating beverage, or drug for other than medicinal purposes.
d) Being in possession of an intoxicating beverage, or drug, for other than medicinal purposes, while on duty.
The provision goes on to explain the limited jurisdiction of a board of arbitration when considering a challenge to discipline for one or more of those offences:
The grievance procedure provided for herein shall apply to all cases where a specific penalty may be imposed; but at arbitration the factual basis only for the application of the above specific penalties may be reviewed. If the factual basis is substantiated, the Arbitration Board shall not inquire into the propriety of the specific penalty.
6This means that, in the event of the TTC establishing that the applicant was actually guilty of one or more of the specified offences, the union could not argue for an amelioration of the sanction. In other words, assuming inculpating evidence from the TTC’s witnesses, the union would have an evidentiary onus to show, on the facts, that the applicant was not guilty of any of the offences. Failing to meet that onus would result in the applicant’s discharge being upheld.
7The TTC alleges that the applicant was guilty of three of the cardinal offences described in the collective agreement: (b), (c) and (d).
8The applicant was charged criminally for possession of marijuana and for trafficking in marijuana. His locker was searched at work, and he was represented by a union representative while the search took place.
9A grievance was filed challenging the applicant’s dismissal.
10The applicant’s dismissal was founded upon a report received by the TTC from an independent, undercover investigator, Mr. Philip Sofianos (“the informant”), whose identity was not revealed to the union and the applicant until August 19, 1999. The report reads:
Name: Michael Teskey
Badge: #50075
Position: Carhouse Helper
Shift: 8:30 PM – 5:00 AM
Off Days: Weds./Thurs.
OCCURENCES
Monday May 31, 1999
1:45 AM
Observation: Smoking a marijuana cigarette with a fellow employee Philip Sofianos.
Statement: Not uncommon for himself and Rudy Infusino while working at the TTC to smoke marijuana and get stoned.
3:45 AM
Observation: Smoking a small marijuana cigarette with fellow employee Philip Sofianos.
Statement: New Year’s Eve all employees on duty were drinking and “smoking” without worry.
Wednesday June 9, 1999
8:30 PM
Observation: In possession of substance determined to be marijuana.
Sunday June 13, 1999
11:00 PM
Observed: Smoking marijuana cigarette with fellow employees Murray Aldred and Philip Sofianos.
Friday June 25, 1999
8:30 PM
Observation: Smoking marijuana cigarette with fellow employees Maurice Leblanc and Philip Sofianos.
Monday July 5, 1999
1:30 AM
Observation: Selling an illegal drug (cannabis) to fellow employee Philip Sofianos.
2:00 AM
Observation: Smoking marijuana cigarette with fellow employees Philip Sofianos. Cathy McCormack, Paulo Freitas. Sandy Ellis and Roger Allen.
11The TTC did not provide the union with all of the documents in its possession which were relevant to this matter. After the Step 1 grievance meeting, though, the TTC provided a detailed record of the allegations against the applicant, drawn from the above report. The documents which were not provided were the above report, the informant’s hand written notes and a signed statement he produced confirming the report. The union wrote to the TTC asking for all of the documents to be provided, but the TTC refused.
12The union discovered, as part of its investigation of the discharges, that shortly after the dismissal of the nine employees a meeting was held among some of them at which they discussed a common approach to the allegations against them. Among those present was the informant, although, at that time, the others were unaware that he was the source of the accusations against them.
13The union interviewed each of the nine employees who were discharged. Many of them denied any involvement. Two of them eventually admitted to an involvement and they corroborated the allegations which had been made of them by the informant. They were unwilling to reveal the identity of the person with whom they were smoking marijuana, although in the informant’s report they are claimed to have been smoking with the applicant.
14The union acted for each of the nine employees who were dismissed. It was able to persuade the TTC that three of them be returned to employment, four were given the option of resigning (three of them elected to do so, the other employee did not). The union was unable to persuade the employer to give any relief to two of the employees who were dismissed, among them the applicant. Of the nine employees, only the applicant filed a grievance.
15The union represented the applicant at each stage of the grievance procedure. During the course of Step 2 of the procedure, a possible discrepancy was pointed out as regards the informant’s report. He claimed to have observed the applicant in possession of marijuana on Wednesday, June 9, 1999. That was a day when the applicant was off duty. He was not paid for that day. It is clear, though, that the informant was aware that was an off-day because he said so when describing the applicant’s work schedule at the top of his report. The TTC’s response was that the applicant may not have been on duty, but he was at the workplace at that time, in possession of marijuana.
16The union is not obliged to take a grievance to mediation. It chose to do so in this case. A mediation session was held at the instance of the union on August 19, 1999. It was not successful in resolving the grievance.
17As stated, the applicant faced criminal charges. His solicitor in the criminal proceedings advised him not to provide any details to anyone concerning the charges, pending the outcome of the criminal case. When the steps of the grievance procedure were exhausted the union was concerned to protect the applicant’s rights, pending the outcome of his criminal case. On September 10, 1999 the union sought agreement from the TTC to extend the period of operation of the grievance. The TTC refused.
18The union’s Executive Committee met with the applicant on October 14, 1999 to consider whether to pursue his grievance. He was invited to say anything he thought would advance his cause to pursue his grievance to arbitration. He was questioned by members of the Executive. He responded by denying all of the informant’s report, although he provided nothing more than a general denial. He was not able to answer any questions put to him because of the advice he had received from his solicitor in the criminal case. The applicant did not suggest any alibi, nor did he give any leads which might have assisted the union to come to the conclusion that the informant was misinformed or improperly motivated in relation to the applicant.
19The union’s Executive Committee considered the applicant’s grievance and concluded that it had no reasonable prospect of pursuing it to arbitration, particularly having regard to the provisions of the collective agreement. The Executive took account of the facts that at least two of the employees who were named in the report corroborated its content (to the extent it referred to them) and the applicant could provide nothing more than a bald denial. The TTC had an independent witness in the person of the informant who clearly identified the applicant as being involved in very serious acts of misconduct. The Executive concluded that it would recommend to the General Meeting of the union that the union decline to take the applicant’s grievance to arbitration.
20A union General Meeting was convened on October 17, 1999. The applicant had an opportunity to address the general membership. The union’s Executive recommended against pursuing the grievance. There is some dispute as to the focus of attention at the meeting. The union says that the merits of the applicant’s grievance were discussed and considered. The applicant says that did not happen. He says the focus of discussion was the risk the union and its members faced by pursuing the grievance because of the danger of mandatory drug testing emerging as the outcome of the arbitration.
21I gather from the dispute over what occurred at the General Meeting that there was some discussion of the merits of the applicant’s grievance, although I give the applicant the benefit of any doubt in this regard. I accept that the principal topic of discussion was how a weak and doubtful grievance might create a risk that mandatory testing could become a reality as a consequence of pursuing the matter to arbitration.
Submissions and Decision
22The applicant suggests, and the union accepts, that the union must meet a higher standard of care when dealing with a member’s discharge than in other circumstances. The union contends it has met that standard in this case. The standard, though, must still be evaluated within the parameters of a union’s obligations under section 74 of the Act. In other words, a discharge does not impose a greater obligation upon a union towards a member than is required under section 74.
23The applicant challenges the union’s conduct on the basis that it did not properly investigate the facts and evidence concerning his discharge. He complains that the union was not persistent enough to obtain all of the relevant documents in the TTC’s possession. He suggests that when the TTC refused to give the documents, the union ought to have pursued the grievance to arbitration in order to be able to obtain the documents, and then make a full assessment of the merits of his case. The applicant goes on to suggest that had the union obtained the informant’s hand written notes, it would have identified certain discrepancies or inconsistencies from what is contained in the informant’s report.
24The informant’s hand written notes, from which he prepared his report, were not presented at the consultation. However, the TTC’s counsel contends that there is no discrepancy or inconsistency whatsoever between the notes and the report. Counsel for the union, while acknowledging that he had not undertaken a detailed comparison of the two, had not noticed any inconsistency. The applicant’s counsel did not bring to my attention any actual discrepancies between the two, nor did he suggest any material or significant difference. I conclude from this that, if there are any inconsistencies, they are not material or significant.
25The union answers its failure to obtain the relevant documents in the TTC’s possession, by pointing out that it requested the documents, and sought to obtain them from the TTC. It received a detailed summary of the allegations against the applicant after the Step 1 grievance meeting. Those facts gave all of the information which was contained in the informant’s report. Moreover, the informant’s report was corroborated in the confidential statements made to the union by two of the individuals named in his report.
26The applicant suggests that his absence from duty on June 9, 1999, when he was allegedly seen by the informant at work, should have alerted the union to a possible error in the informant’s report. The union responds that it did raise this matter with the TTC, at the Step 2 grievance meeting, and the TTC’s response was that the applicant was on the TTC’s premises in possession of marijuana on the day in question, even if he was not on duty at the time. The union says that at no time did the applicant give the union any substantive basis for challenging the version of events of the informant. He gave no alibi, he made no suggestion that he was elsewhere at any of the times when he was identified by the informant, and he gave no reasons or suggestion as to why the informant would falsely or erroneously identify him in the manner he did. As a consequence, the union contends, it had no basis, other than the applicant’s denial, to question anything contained in the informant’s report.
27The applicant initially suggested that the union had not interviewed the people mentioned in the informant’s report. That turned out during the consultation to have been mistaken. The union had in fact interviewed all of the nine employees who were dismissed as a consequence of the informant’s report. The union acted for all of them, securing some variation of the discharge for seven of the nine.
28The applicant criticizes the union for the conduct of the General Meeting of union members when the possible pursuit of his grievance to arbitration was put to a secret ballot vote. He says that those present were effectively voting upon whether the risk of mandatory drug testing should be opened up, rather than upon the merit of pursuing his discharge grievance. The union answers this, as I have said, by denying that the merits of the grievance were not considered, but points out that the general interests of the members was a consideration in the deliberations and, in its view, that was properly so. It contends that a union properly takes into consideration the possibility of an adverse result in an arbitration which could have broad implications for the union and its members. The union accepts that the risk of mandatory drug testing played a part in the deliberations of the union’s members at the General Meeting, and it submits that the membership should have taken account of that consideration because it was a possible issue which the union might have faced had the applicant’s grievance been pursued to arbitration. The union argues that the applicant could have said something in support of his grievance being pursued to arbitration. Instead he made no comment during the meeting besides denying the veracity of the informant’s report.
29The union suggests, although the applicant acted properly in accordance with the instructions and directions given to him by his solicitor in the criminal case to say nothing concerning what had happened, that advice, and his acting upon it, had certain consequences for him for which the union is not responsible. Those consequences were that the union’s representatives, its Executive and its members at the General Meeting had no inkling of what might have been an exculpatory explanation by the applicant. The applicant’s solicitor clearly had good reasons to advise the applicant as was done, but, as a consequence, the union was faced with no factual basis for challenging the version of events as described by the informant. It was reasonable in those circumstances, submits the union’s counsel, for the union to be wary of the prospects of pursuing the grievance to arbitration.
30From the union’s perspective, what it faced when deciding whether to pursue the applicant’s grievance to arbitration was the following: a detailed factual statement from the informant which clearly and repeatedly incriminated the applicant in extremely serious acts of misconduct, each of which on its own was an offence for which the specific sanction of dismissal is provided in the collective agreement. The union had no right to challenge the discharge if the TTC’s factual basis for the discharge were established. Hence the union was faced with the prospect of having to prove that the informant’s version of events was false or so erroneous as to be unbelievable. The union’s arsenal to undertake this daunting task consisted of a bald denial from the applicant, with no alternative or exonerating explanation, and statements from two of those named in the informant’s report which substantially corroborated and gave credence to his version of events. As suggested by the union, the applicant was effectively asking the union to carry out a full investigation, without any assistance from him on facts which were peculiarly within his own knowledge.
31In the circumstances the union was faced with what it determined to be an almost insurmountable task of establishing the applicant’s innocence. It decided that its prospects of success were so poor that it would not spend the union’s resources pursuing the matter. It also thought there was some risk of an adverse finding by an arbitrator which might lead, directly or indirectly, to mandatory drug testing at work.
32There is no suggestion by the applicant of bad faith or discrimination against him by the union. His complaint is that the union acted arbitrarily and in a perfunctory manner in reviewing and dealing with his grievance. I do not agree. The applicant was alleged to have committed specific penalty offences under the collective agreement. If he was guilty of them, the sanction of discharge could not be varied by the board of arbitration. He had little service to assist him; less than two years. The union thoroughly investigated the allegations against him. It interviewed everyone named in the informant’s statement. It acted for each of those who was dismissed, trying to secure their employment. It applied its mind to each of their individual circumstances. There is no suggestion that the applicant was treated any differently. He gave the union no basis for challenging the informant’s version of his serious misconduct. He had an opportunity to make representations to the union’s Executive Committee and to its General Meeting, but he failed to give any information which might have assisted the union to give substance to his denial of the allegations the TTC made against him.
33In light of these circumstances, even accepting the applicant’s version of events on the disputed matters, I cannot conclude that the union was remiss in its investigation or that it did not apply its mind carefully to the applicant’s individual circumstances. I find there was no caprice or arbitrariness in the way the union conducted its investigation into the applicant’s grievance, nor was there any lack of care on its part in its representation of the applicant in relation to the TTC. The union’s conclusion that the union’s resources should not be used to advance the applicant’s grievance to arbitration was a considered decision based upon a realistic assessment of the prospects of success of doing so. In deciding not to pursue the grievance to arbitration the union did not act in a manner which was arbitrary, discriminatory or in bad faith. In the circumstances of the case, given the information in the union’s possession, it was not unreasonable for the union to decide that it would not take the grievance to arbitration merely to obtain full disclosure of the documents in the TTC’s possession.
34In the circumstances I am satisfied that the applicant cannot establish any breach of the union’s duty of fair representation to him under section 74 of the Act. The Board should inquire no further into the matter. The application is dismissed.
“Christopher J. Albertyn”
for the Board