2972-00-U Daryl W. Alvaro, Applicant v. NABET 700 CEP – National Association of Broadcast Employees and Technicians Association of Film Craftsmen, Communications, Energy and Paperworks Union of Canada, Responding Party v. QAF Productions Limited, Intervenor.

BEFORE: Laura Trachuk, Vice-Chair.

APPEAREANCES: Robert J. Stoangi, Mary-Anne Alvaro and Daryl W. Alvaro for the applicant; D. Wray and Ross Leslie for the responding party; John Barrack, Cara Martin, Steve Wakefield and Noella Nesdoly for the intervenor.

DECISION OF THE BOARD; August 24, 2001

1. This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as amended (the “Act”) alleging that the responding party (referred to as the “union”) has violated section 74. A consultation was held with respect to this matter. The nature of a consultation was explained to the parties and they all a full opportunity to advise the Board with respect to the facts and arguments they considered to be relevant to the application.

The Facts

2. The relevant facts are as follows. The applicant is a key grip and a member of the union. The union has a collective agreement with Dufferin Gate Productions Inc. and Temple Street Productions Ltd. for 2000 and 2001 productions. The union had a letter of understanding with those companies dated July 27, 2000 for the production of “Queer as Folk”. The applicant signed a deal memo to work on Queer as Folk on June 19, 2000. When he filled out the deal memo he filled in a start date of June 19, 2000 and an end date of March 2001. Those were the full dates of the production. When the production manager, Noella Nesdoly, received the deal memo from Mr. Alvaro she scratched out the end date as she considered him to be employed on a weekly basis. The union says that after Ms. Nesdoly made the change and initialled it, she gave the deal memo back to Mr. Alvaro for his initials. The union does not know what happened to it after that. Ms. Nesdoly never signed the deal memo. Mr. Alvaro said that it was his understanding that she refused to sign it. Mr. Alvaro signed it both as employee and department head since he was the key grip. He commenced working on June 19, 2000. The intervenor terminated his employment on November 20, 2000.

3. In the letter of termination, Ms. Nesdoly advises that the applicant is being terminated for leaving the production for three hours without asking, or notifying; her; for leaving before the crew wrap and leaving the crew short handed; and for approving a false time sheet which did not deduct the lost time. (As Mr. Alvaro was the department head he had to approve his own time sheet.) He was also accused of leaving work at crew lunch without asking, or notifying, Ms. Nesdoly.

4. Mr. Alvaro does not deny that he left the set without telling Ms. Nesdoly directly but says that he had a doctor’s appointment and could not find her. He therefore told the best boy, Duncan McKee, the assistant director, Rob Fowler and the director of photography, Tom Best, to tell her. He does not deny that he also left before the crew wrap but claims that it was only a few minutes early and he denies that the crew was short handed. He does not deny leaving during the crew lunch but says that he told Ms. Nesdoly that morning that he had to return to the doctor. He acknowledges that he approved a time sheet for himself which was incorrect but says that he did it by mistake. He says that the error should have been identified by someone else before he was paid. He says he was prepared to pay the money back but was told to keep it when he was terminated.

5. Mr. Alvaro sent a grievance to the union about his termination on November 23. The letter setting out the grievance provided a detailed account of Mr. Alvaro’s version of events. The union confirmed receipt of the grievance and then investigated the matter by speaking to the best boy, Duncan McKee. Mr. McKee had been given the applicant’s job after his termination. Mr. McKee was not a member of the applicant. Mr. McKee told the union’s business agent that the applicant left work a number of times before he “got caught”. Subsequently the union’s business agent, Ross Leslie, met with Ms. Nesdoly on December 6, 2000 with respect to the grievance. Ms. Nesdoly denied that she was absent when the applicant left the set and said that in any case she was available by walkie-talkie. She denied that anyone told her that Mr. Alvaro had left. She denied the grievance stating that the applicant was terminated for cause. The applicant was not advised of the conversations with Mr. McKee or Ms. Nesdoly. On November 24, 2000 a grievance summary was prepared by the business agent to be used when the matter went before the executive board. Mr. Alvaro was provided with a copy of that. On January 5, 2001 Mr. Alvaro wrote to the union complaining about the delay in processing his grievance and threatening to file this complaint with the Board on January 10 if the union did not act. That letter provided a detailed explanation as to why Mr. Alvaro thought the union should proceed with his grievance. This application was then filed on January 10, 2001. On January 18, 2001 the union wrote to Ms. Nesdoly seeking one weeks pay for Mr. Alvaro which it claimed was required by the collective agreement. Mr. Alvaro was copied on the letter.

6. The decision as to whether to pursue a grievance to arbitration is made by the union’s executive board. The executive board considered Mr. Alvaro’s grievance at its meeting on January 22, 2001. It decided that the intervenor had just cause to terminate Mr. Alvaro and that it would therefore not pursue the grievance. It was explained at the consultation that the executive board considered its reputation and ongoing relationship with the producer. It was explained that under the contract there are strict obligations on a producer. For example, if the technicians work five minutes over their contracted hours they start getting paid overtime in 15 minute increments. However, the executive board considered that those obligations had to go both ways. The union also has obligations. The executive board felt that it could not support the grievance of someone who approved a false time card and expect to be treated seriously or to get the respect the union needs in its relationship with the producers.

7. Mr. Alvaro was advised of the executive board’s decision in a letter dated January 23, 2001. That decision was confirmed in a letter dated February 15, 2001. In that letter Mr. Alvaro was also advised that he could appeal the decision at the next general membership meeting and when that meeting was. He was also told that the union was advising the intervenor that the matter was proceeding to arbitration in case the membership decided that it should. The intervenor was in fact informed that the grievance was withdrawn on January 23. However, it was also advised that Mr. Alvaro could decide to appeal to the membership which might result in the matter proceeding to arbitration. The intervenor confirmed that it understood that the matter would proceed to arbitration if that was what the membership decided . The applicant did appeal the decision to the membership on March 25, 2001. He spoke at the meeting as did the business representative. The majority of the members attending the meeting upheld the decision of the executive board.

8. The relevant provision of the collective agreement are as follows:

6.1 The Company shall have the right to dismiss a technician for just and sufficient cause, provided that he/she shall be replaced by another qualified union member. The Union shall be given notice promptly in writing of such action and the reason(s) for such action. If the union believes such action to be unjustified the matter shall be considered a grievance and shall be handled as in the Article 5. In no event shall any such action result in shortening the total crew manpower.

6.3 Any technician hired on a weekly basis, shall receive at least one (1) weeks notice, or one (1) weeks pay in lieu of notice should such employment be terminated prior to its agreed terminal date.

9. The union and the intervenor agree that article 6.3 means that technicians terminated without cause or notice are only entitled to one week’s pay. They both advise that it is industry practice that technicians are hired on a daily or weekly basis. They say that was what occurred on this production as well. They claim that the collective agreement reflects the industry practice. Mr. Alvaro says that the technicians expect to work to the end of the show.

Submissions

10. The applicant argues that the union’s investigation of the matter was arbitrary and superficial and did not meet its obligations under the Act. It asserts that the business agent should have spoken to the assistant director, Rob Fowler and the director of photography, Tom Best because Mr. Alvaro claims to have spoken to them when he was looking for Ms. Nesdoly prior to leaving the workplace. Furthermore, the union failed to get the applicant’s response to what was said by Mr. McKee and Ms. Nesdoly after speaking with them. The applicant also claims that the union was doing nothing to pursue his claim until after he filed this application.

11. The applicant also disputes the basis upon which the executive board decided not to pursue his grievance. He says that there was a dispute about the facts because he had good explanations for each of the incidents the intervenor relied upon in terminating him.

12. The applicant also disputes the union’s claim that he would only be entitled to one week’s pay in any case. He claims that since the deal memo was not signed he was working on a verbal contract on the terms he included in that memo, ie. that he would work until March 2001. He asserts that the union’s interpretation of the collective agreement should not apply to him as he was not hired on a weekly basis. He denies that it is industry practice for employees to be hired on a weekly basis and notes that under the collective agreement he would be required to get agreement from the employer if he wanted to quit prior to the end of the production.

13. The union argues that its interpretation of Article 6 is correct and reflects the industry practice. It also claims that Mr. Alvaro was hired on a weekly basis consistent with that practice and other technicians working on this production. It argues that it met all procedural requirements in the process it followed with respect to Mr. Alvaro’s grievance. It also asserts that its decision not to proceed to arbitration was not arbitrary as Mr. Alvaro admitted that he left without telling Ms. Nesdoly and, more significantly, that he admitted to submitting the false time sheet.

14. The intervenor agrees with the arguments submitted by the union. It also argues that the collective agreement contemplates only daily or weekly contracts because it does not contain a probation clause. It claims that if contracts were for longer fixed terms there would need to be provision for a probation period.

Decision

15. Section 74 of the Act provides as follows:

16. 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.

17. Section 74 does not require a trade union to take every grievance to arbitration. A trade union is required to investigate and consider a grievance utilizing a process free of arbitrariness, discrimination or bad faith. Its reasons for not pursuing a grievance must also be free of bad faith, discrimination or arbitrariness. As long as that standard is met the Board will not interfere in a union’s decision. There is no suggestion that the union acted in bad faith or discriminatorily in this case and there are no facts which could support such a claim. The applicant claims that the union acted arbitrarily. The investigation of the grievance in this case could have been more thorough and Mr. Alvaro should have been advised of the information provided by Mr. McKee and Ms. Nesdoly. Nevertheless, the investigation was sufficient to meet the union’s obligation under the Act. Mr. Alvaro provided a detailed explanation of his version of the events that led to his termination and that explanation was considered by the executive board in making its decision. It was also considered by the membership to the extent that Mr. Alvaro took the opportunity to explain it to them. However, the executive board and the membership decided not to pursue the grievance to arbitration. In making that decision the executive board did consider that Mr. Alvaro left the set without specifically speaking to Ms. Nesdoly. If that was all it had relied upon, the deficiencies in the investigation may have caused the Board more concern. However, the main reason that the executive board chose not to pursue the grievance was that Mr. Alvaro unquestionably approved a time sheet for himself which was false. Mr. Alvaro never denied that he did so, he just claimed that it was a mistake. There was no need for the executive to accept Mr. Alvaro’s assertion that it was a mistake and even if it did believe him, it did not have to accept that that was a sufficient excuse. If the union considered that there was only one week’s pay at stake, versus the cost of an arbitration or the cost to its relationship with the producer if it proceeded, those were relevant considerations. The Board accepts that it is industry practice for technicians such as Mr. Alvaro to be hired on a weekly basis. The deal memo that was scratched out and never signed by the producer does not demonstrate that Mr. Alvaro was hired for the duration of the production, if anything, it shows the opposite.

18. For all of the above reasons the Board finds that the union did not act arbitrarily, discriminatory or in bad faith in deciding not to proceed with Mr. Alvaro’s grievance and this application is therefore dismissed.

“Laura Trachuk”

for the Board