Ontario Labour Relations Board
2125-00-U Ivan Pletikos, Applicant v. National Automobile, Aerospace, Transportation and General Workers Unions of Canada (CAW-Canada) and its Local 112, Responding Party v. Bombardier Aerospace, Intervenor.
BEFORE: Anthony Brown, Vice-Chair.
APPEARANCES: Ivan Pletikos and Frank Pletikos for the applicant; Catherine Gilbert, Bob Hamilton, Roy Kellett, Phil Fryer and John Bettes for the responding party; Dirk Van de Kamer and Richard Skipper for the intervenor.
DECISION OF THE BOARD; August 2 , 2001
The name of the responding party in the title of proceedings is amended to read: “National Automobile, Aerospace, Transportation and General Workers Unions of Canada (CAW-Canada) and its Local 112”.
This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging violation of section 74.
A consultation was held by the Board on May 30, 2001. At the end of the applicant’s submissions during the consultation, the Board exercised its discretion to dismiss the application as not disclosing a prima facie case. These are the reasons for the Board’s decision.
At all material times, the applicant was employed by the intervenor, Bombardier Aerospace and was a member of the responding party union.
The applicant’s complaint against the union is primarily about the way in which it handled his grievances. As of the date of the application the applicant had a number of grievances still outstanding against his employer and these grievances had been referred to the arbitration stage under the grievance process in the collective agreement between the union and intervenor, although they had not been scheduled to be heard by an arbitrator.
The applicant seeks an order from the Board requiring that his grievances be scheduled before an arbitrator. The grievances seek redress for “ten years of harassment” by the employer, wrongful suspensions and transfers, and non-equalization of overtime.
There are several specific allegations which the applicant asserts are evidence of an “uncaring attitude” on the part of the union. He asserts that Mr. Roy Kellett, the Skills Trade Representative of CAW Local 112 delayed the processing of his grievances and did not follow the grievance procedures outlined in the collective agreement. However, the applicant did not adduce evidence as to how Mr. Kellett’s alleged mishandling of his grievances actually resulted in any prejudice to him, other than the aggravation of delay. The applicant cites one instance in which Mr. Kellett allegedly failed to process a grievance to Step Two for approximately 18 months. No specific harm other than delay appears to have resulted from this conduct. It is undisputed that all of the applicant’s grievances were processed and were eventually either settled or referred at his request to the arbitration stage. The employer did not raise any technical objection, such as timeliness, to the way the grievances were processed by Mr. Kellett.
At the applicant’s workplace, a very small percentage of grievances are actually ever heard by an arbitrator. The remainder are settled or withdrawn, as is not untypical of many workplaces. Some grievances are resolved in the process of collective bargaining. The applicant is a member of a large bargaining unit and the union has numerous grievances outstanding. For example on December 31, 1999, there were 1290 outstanding grievances. In the year 2000, the employer and responding party engaged in what they referred to as a “grievance burndown”, which involved a concerned effort to resolve the huge number of grievances. By July 5, 2000, they were able to reduce the number of outstanding grievances to 362.
Under the collective agreement, grievances are scheduled for arbitration according to a priority classification set out in the agreement, with discharge grievances being given highest priority.
In respect of some of the applicant’s grievances, the union and employer attempted settlement only to be rebuffed by the applicant who insisted that they be forwarded for arbitration.
The applicant asserts that the reason why he has found it necessary to file so many grievances is that Mr. Kellett will not act promptly on his behalf to resolve workplace issues. The reason for this, he asserts, is that Mr. Kellett is a close friend of the applicant’s supervisor, Mr. Torrance and does not wish to impede Mr. Torrance’s alleged plot to dismiss the applicant. The responding party and intervenor both deny that there is a close friendship between Mr. Kellett and Mr. Torrance or that Mr. Kellett’s conduct was influenced by any association between the two gentlemen. It is undisputed that Mr. Kellett has around 25 years experience handling grievances for the union.
Decision
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.
In the Board’s view, the applicant failed to adduce sufficient evidence of a violation of section 74 of the Act, even assuming that his material allegations are true. If the Board assumes, for instance, that Mr. Kellett and Mr. Torrance are good friends, there is nothing before the Board to show that their friendship affected Mr. Kellett’s handling of grievances on behalf of the applicant. The union has filed the applicant’s numerous grievances and they have been handled with the same dispatch as many other grievances at the workplace. There is no evidence that the delay in processing, or the alleged processing irregularities (which are minor in nature), have had any impact on the likelihood of success at arbitration or on the union’s prospects of settling the grievances. Moreover, there is nothing before the Board to substantiate the bald allegation of a union plot to help Mr. Torrance dismiss the applicant. (The applicant has not been dismissed but has been suspended a few times on the ground of “behaviour”.)
It is understandable that the applicant is concerned about delays in the handling of his grievance. However, if Mr. Kellett’s actions did result in inordinate delay in the grievance process, this alone did not violate section 74. Even if the applicant’s material allegations are true, they pertain more to Mr. Kellett’s efficiency than to any conduct that violates section 74. Mr. Kellett, as a union representative, is not held to a standard of perfection. There is no evidence before the Board that he was grossly negligent. Indeed, as I have stated, the union did process the grievances and, as of the date of the consultation, the union and employer had reached a tentative settlement of them, as is their right. The applicant has not shown how anything done or not done by Mr. Kellett had any materially prejudicial effect on the applicant.
The applicant also asserts that the union failed to try to resolve his grievances at the bargaining table during collective negotiations. However, the union is in the best position to determine how to barter grievances in that context, and it is not for an individual grievor to dictate to the union what to do in that regard. Indeed, the union has carriage of a grievance and there may be any number of valid reasons why, after properly considering the matter, it may decide against placing a particular grievance before an arbitrator or against resolving it during collective bargaining. Those decisions are the union’s to make, as exclusive bargaining agent. It is not for the applicant to instruct the union as to how to handle his grievance. There is no evidence before the Board that the union’s handling of the grievances was arbitrary, discriminatory or in bad faith.
In Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, the Board described a union’s duty under section 74 [then section 68] this way:
Section 68 requires that each trade union decision be grounded on a consideration of relevant matters, free from the influence of irrelevant considerations. The requirement that a trade union not act in a manner which is in bad faith protects the legitimate expectation that an individual employee’s bargaining agent will act honestly and free of any personal animosity toward him. The requirement that a trade union not act in a discriminatory manner protects against the making of distinctions between employees and groups of employees on bases which have no relevance to legitimate collective bargaining concerns. “Bad faith” and “discriminatory”, therefore, test for the presence, in the process or results of union decision-making, of factors which should not be present. “Arbitrary”, on the other hand, describes the absence in decision-making of those things which should be present. A decision will be arbitrary if it is not the result of a process of reasoning applied to relevant considerations. The duty not to act arbitrarily requires a trade union to turn its mind to the matter at hand.
For the foregoing reasons, the Board determined at the consultation that the applicant had failed to adduce even a prima facie case that the responding party violated section 74 of the Act.
The application is dismissed.
“Anthony Brown”
for the Board