2563-00-U Frank Rossi, Applicant v. CAW Local 676, Responding Party.

BEFORE: Anthony Brown, Vice-Chair.

APPEARANCES: Frank Rossi appearing on his own behalf; Tim Lambert, Gabe MacNally and Barton Ward for the responding party; Paul Teeple and Scott Gilmore for Dana Canada Inc.

DECISION OF THE BOARD; August 2, 2001

1. This is an application pursuant to section 96 of the Labour Relations Act, 1995, alleging violation of section 74.

2. A consultation was held in this matter on May 25, 2001, at the end of which the Board delivered an oral bottom line decision dismissing the application. These are the reasons for the Board’s decision.

3. This application is about the responding party’s handling of the applicant’s appeal to the Workplace Safety and Insurance Board in respect of workplace injuries. The applicant seeks an order that the union represent him before the Workplace Safety and Insurance Appeals Tribunal.

4. The applicant asserts that he was injured at work on or about March 5, 1999. His claim for benefits under the Workplace Safety and Insurance Act was turned down and he sought a hearing on the matter before the Workplace Safety and Insurance Board (WSIB). A hearing before the WSIB was scheduled to take place on May 3, 2000. Mr. Tim Lambert, President of CAW Local 676 was representing him on the file. However, prior to the hearing, Mr. Lambert notified the applicant in writing by letter dated April 28, 2000, that he was withdrawing as the applicant’s representative in the WSIB matter, in view of the fact that the applicant had alleged that Mr. Lambert had a “conflict of interest”. The letter to the applicant from Mr. Lambert indicates that Mr. Lambert had requested of WSIB that the matter be placed on inactive status until Mr. Rossi decided whether to pursue it.

5. Mr. Rossi decided to proceed with the hearing on the scheduled date before the WSIB on his own. He had lost three months’ pay. He considered that he had an “open and shut” case and that he would win. Mr. Paul Teeple, V.P. Human Resources for Dana Canada Inc., emphasized at the consultation that the WSIB claim was a matter of some complexity. The WSIB denied the claim and, as of the date of the consultation, it was under appeal to the Workplace Safety and Insurance Appeals Tribunal (WSIAT).

6. There is a dispute about when Mr. Rossi first made his allegation about Mr. Lambert’s conflict of interest. He claims that the allegation was raised soon after the accident although he was unable to specify a date. Mr. Lambert asserts that the allegation was made on April 26, 2000, precipitating the aforementioned letter of April 28, 2000 to Mr. Rossi. In any event, it is agreed that Mr. Lambert withdrew as representative on April 28, 2000, shortly before the hearing and arranged for the file to be put on inactive status.

7. After the WSIB denied the claim, the parties could not agree about the handling of the appeal to the WSIAT. The responding party offered Mr. Rossi the opportunity to consult with a knowledgeable staff person in its National Office. This offer was refused by Mr. Rossi. There is no dispute that Mr. Rossi demanded a representative from the CAW “automotive” sector rather than the “building” sector, and that he also refused to sign a release or waiver to permit a national representative to advise him on his file. Mr. Rossi also admits that he refused to claim for paid sick leave during his absence from work. This sick leave would be “refunded” if the WSIB claim ultimately succeeded; otherwise the absence would remain recorded as sick leave.

8. At the time of the consultation, the responding party still offered to assist Mr. Rossi by having an expert staff member review the merits of his file, if he chose to sign a confidentiality waiver.

Submissions

9. The applicant submits that the late withdrawal by Mr. Lambert, shortly before the WSIB hearing, was an act of bad faith, contrary to section 74. He also asserts that the union continues to fail to represent him in respect of his appeal to WSIAT by not arranging for him to speak with a CAW representative from the automotive sector.

10. The union asserts that its duty of fair representation does not extend to workers’ compensation matters. It further asserts that Mr. Lambert decided prior to the hearing to accede to Mr. Rossi’s wish that Mr. Lambert not be involved in the file. Mr. Lambert then took steps to ensure that the WSIB file could remain inactive until Mr. Rossi could obtain another representative. However, Mr. Rossi proceeded with the WSIB hearing on his own. The union also asserts that it is not under any obligation to help Mr. Rossi further with his WSIB matter, but that, if it were to appoint a staff member to look at the file, Mr. Rossi does not have the right to insist on a staff person from the automotive sector.

Decision

11. For the purpose of deciding this application, it is not necessary for me to determine whether, in the circumstances of this particular case, the responding party had any duty under section 74 of the Act to fairly represent Mr. Rossi in respect of his WSIB claim. Even assuming that such a duty might exist in limited circumstances, there is insufficient evidence before the Board of a violation of section 74 of the Act.

12. Section 74 states:

13. 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.

14. In Savage Shoes Ltd. [1983] OLRB Rep. Dec. 2067, the Board described a union’s duty under section 74 [then section 68] this way:

15. 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.

16. In my view, it is unfortunate that Mr. Lambert withdrew as Mr. Rossi’s representative only days before the hearing. In some circumstances, this could have left a claimant in a seriously prejudicial predicament. However, there is no evidence that the timing was motivated by bad faith, as alleged by Mr. Rossi.

17. The withdrawal itself was at Mr. Rossi’ request. Moreover, potential prejudice to Mr. Rossi could have been avoided. Mr. Rossi did not have to proceed. It is undisputed that Mr. Lambert notified the WSIB of the situation in order that Mr. Rossi’s right to a WSIB hearing not be jeopardized. Faced with this admittedly less than ideal situation, Mr. Rossi rashly decided to press ahead with the hearing without a representative. It is understandable that he wanted the matter resolved as quickly as possible, but the union is not responsible for financial pressures caused by his decision not to apply for paid sick leave under a provision in the collective agreement designed to alleviate exactly the kind of circumstances in which he found himself.

18. After the WSIB denied the claim, Mr. Rossi refused the assistance offered by CAW National Office to have an expert look at the file. In my view, Mr. Rossi did not have a right to insist on a representative from the automotive sector. The allocation of human resources by CAW National Office is up to the CAW, and section 74 does not give the applicant the right to dictate whom he wishes to speak to.

19. The responding party’s conduct in this matter falls far short of the conduct necessary for a violation of section 74. The responding party was involved in trying to help Mr. Rossi even after Mr. Rossi proceeded at the hearing on his own, but it could not help further unless Mr. Rossi cooperated by signing the necessary waiver to permit National Office to look at his file.

20. For the foregoing reasons, the Board finds that the responding party did not violate section 74. The application is dismissed.

“Anthony Brown”

for the Board