1656-00-U Robert P. Duranleau Jr., Applicant v. Communications, Energy and Paperworkers Union of Canada Local 156, Responding Party v. Domtar Inc. Eddy Specialty Papers, Intervenor.
BEFORE: Timothy W. Sargeant, Vice-Chair.
APPEARANCES: Robert Duranleau and Andree Duranleau for the applicant; D. Wray, Tim Howard and Fred Bond for the responding party; Samara B. Kaplan and Ken Becker for the Intervenor.
DECISION OF THE BOARD; July 4, 2001
This is an application made pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as amended (the “Act”) alleging that the responding party has breached section 74 of the Act.
The applicant was terminated by the employer in accordance with a letter dated May 17, 2000, such termination to be effective from May 12, 2000. He was terminated for his “continued inabilities to address his chronic attendance problem”.
The applicant did not have an enviable work record and had been warned several times that further absences would lead to his termination.
The incident that lead to his termination was related to a work injury suffered on April 26, 2000. He received a doctor’s certificate that he should not work for four weeks. When he brought the certificate to the employer, the employer placed him on the modified work program. During the first and second week on such a program the applicant was late on several occasions. It was these lates that led to the applicant’s ultimate termination.
Procedurally the Union filed a grievance on behalf of the applicant and processed such grievance through the various steps in the grievance procedure. Prior to the last step the Union executive (including the national representative) had met with the applicant and asked what he sought. He indicated that he wished his job back. The Union advised that it might be necessary to record a suspension if the Union was successful in having the applicant reinstated. The applicant agreed. However, the employer was unwilling to change its position. The Union then sought a buyout pursuant to the request of the applicant, but this again was refused by the employer.
After the final step the union notified the applicant both in writing and verbally that it would call a special Union membership meeting to consider whether the applicant’s grievance should proceed to arbitration. The applicant was advised by letter and at least twice by the Local Union President that he should attend these meetings. The Local President advised the applicant that if he didn’t attend these meetings, the members might regard his absence in an unfavourable light. This was reiterated at a one on one meeting requested by the applicant with the Local President on June 20, 2000, two days prior to the meeting. The applicant was also told that the executive would support taking the grievance to arbitration.
It is this Local’s practice that prior to proceeding to arbitration the matter is brought to the membership for a secret ballot vote. It is also the practice of this Local to receive a legal opinion concerning the merits of the grievance.
In this instance the Local did receive a legal opinion dated June 22, 2000 that reinstatement was an “unlikely outcome”.
Special membership meetings were held on June 22, 2000 at two separate times. The applicant did not attend at either meeting. At these meetings notwithstanding the legal opinion, which was read to the attending members, the executive advised it was prepared to go to arbitration on behalf of the applicant. At the meeting questions were raised concerning the absence of the applicant and concerning the costs of proceeding to arbitration. Ultimately the membership by vote of 19 to 6 elected not to proceed to arbitration. The applicant was informed of this decision of the Local which ultimately led to this application.
The applicant felt he should not have been terminated in these circumstances. He felt he had a legitimate medical certificate that should have been honoured and supported by the Union. However, he did admit that when he returned to work from the injury he told the Local President what happened and that he would attend the Modified Work Program for at least two weeks. He agreed he never asked the Union to intervene concerning the medical certificate and the assignment to modified work. In fact, the applicant’s view concerning this matter and other disciplines received was that though he did not ask for Union assistance, such assistance should have been provided as he was ignorant as to how a Union worked. (It is to be noted the Union submits it always asked the applicant what he wished in relation to any discipline received and was always told not to proceed, that the applicant would become a “model employee”).
The applicant further felt that the vote of the membership was tainted , first by talk in the plant and secondly by reading the opinion letter at the meeting. He felt the feeling was very negative prior to the vote. Further due to a recent marital breakdown and the stress he was under, he felt he could not attend the membership meeting as he would break down. He states he told this to the Local President (which is strongly denied). Finally he feels that the meeting was very small as only 25 members out of 125-150 bargaining unit attended. He felt the Union should not have relied on the vote of such a small turnout.
Further the applicant submitted he felt intimidated by the Local Union President. In the meeting with the Local Union President on June 20, 2000 admittedly at one point the conversation became heated and the applicant was told words to the effect of stop acting like a “little twerp”. The applicant stated that he felt intimidated by such a comment. It should be noted that this meeting was held at the request of the applicant and that the Local Union President had come in from his vacation to attend the meeting.
Finally the applicant felt the legal opinion should have dealt more favourably with the merits of his situation, and should have noted the improvement in his attendance record in the past two years. Again it is to be noted that even in these later two years there had been a number of disciplinary matters including a number of suspensions.
The applicant submits that in the circumstances the union has acted arbitrarily, has not represented the applicant fairly and therefore has breached section 74 of the Act.
Counsel for the Union submits that even assuming all the facts are true as stated by the applicant there has been no breach of section 74 of the Act.
Decision
- Section 74 of the Act 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 order to establish that a union has contravened section 74 of the Act an applicant must demonstrate that the union’s actions are:
(1) “arbitrary” – that is, flagrant, capricious, totally unreasonable, or grossly negligent [see for example, I.T.E. Industries Limited, [1980] OLRB Rep. July 1001]; or
(2) “discriminatory” – that is, based on invidious distinctions without reasonable justification or labour relations rationale; or
(3) “in bad faith” – that is motivated by ill-will, malice hostility or dishonesty.
In assessing a complaint, the Board considers whether the actions of the union fall into one of these three categories. Mistakes or misjudgements by the union are not illegal under the Act. Further, the fact that a grievance does not go to arbitration does not, in itself, establish any arguable breach of the Act.
In this instance though understanding the disappointment of the applicant, I am of the opinion no breach of section 74 of the Act has occurred.
In this matter the Union met with the applicant, on several occasions, put its mind to the merits of grievance, sought a legal opinion (which in my view does deal with the merits of the grievance) and sought the advise of its membership. While one of the meetings may have been heated, there was in my view no attempts to intimidate the applicant. Further the decision not to proceed to arbitration by the membership is a reasonable decision. While others may have decided differently that is not the issue before this panel. Neither do I find fault in the manner in which the membership meeting was called and conducted.
In my view even assuming the facts as stated by the applicant, such facts do not support a finding that in this instance the Union has acted in such a way that may be described as implausible, so reckless as to be unworthy of protection, unreasonable, suspicious or negligent. Thus I do not find that the Union has acted in a matter that is arbitrary, discriminatory, or in bad faith as those terms have been interpreted by the Board in considering an application alleging a breach of section 74 of the Act. Certainly there is no evidence that in my view would support a finding that the Union was motivated by hostility, ill will or other improper considerations.
In these circumstances having heard the submissions of the parties, and considered the pleadings the Board exercises its discretion and for all the above reasons dismisses the complaint.
“Timothy W. Sargeant”
for the Board