Walter Pinto v. CAW Local 385
0719-01-U Walter Pinto, Applicant v. CAW Local 385, Responding Party v. Coca-Cola Bottling Company, Intervenor.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; July 6, 2001
1This is an application filed pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (“the Act”) alleging a violation by the responding party (“the union”) of its duty of fair representation under section 74 of the Act.
2The union alleges that the application discloses no prima facie case of a violation of section 74.
3The application is concerned with a settlement of the applicant’s grievance, dated April 5, 2001, following the processing of the grievance through the grievance procedure. The applicant contends that the settlement was reached by the union and the intervenor (“the employer”) without his knowledge or consent, notwithstanding his earlier statement to the union that he was not inclined in any way to reach a compromise. It would appear, though it is not entirely clear, that certain actions taken by the employer in respect of the applicant caused the applicant distress, resulting in a leave of absence for some period of time from the workplace. As a further result, the applicant received less income than he would have earned had he been working for the employer in that period of time. It would seem that the settlement, while it achieved some measure of monetary compensation for the applicant, did not make the applicant entirely whole as far as he was concerned. He wants the grievance referred to arbitration.
4In my view, and having regard only to the material facts as alleged by the applicant, as well as those facts that appear not to be in dispute between the parties, the application discloses a prima facie case of a violation of section 74 of the Act, and requires the union to explain its actions. Having said that, it bears noting here that, if there is a rational reason for the union having entered into the settlement, a reason not tainted by bad faith, arbitrariness or discrimination, the application will fail. The Board has dealt on many occasions with similar allegations relating to unilateral settlement of bargaining unit members’ grievances by their bargaining agents. Trade unions do not violate section 74 merely by engaging in such unilateral action. There must be more in order to establish a violation of the duty of fair representation. In a recent unreported decision, York University Staff Association (April 3, 2000; Board File No.1539-98-U), the Board dealt with a matter similar in nature (but not factually) to this one, and made the following observations:
- As I have said, the essence of the applicant’s complaint is the union’s refusal to pursue the closing of her position to arbitration. The test in matters of this sort is set out in DDM Plastics Inc., [1997] O.L.R.D. No. 747 (Board File No. 3310-96-U):
This provision establishes what is commonly referred to as a “duty of fair representation”. It requires a trade union to represent all employees for whom it is the exclusive bargaining agent in a manner which is free of ill-will, and which is neither arbitrary nor discriminatory. Complaints that a trade union has failed to represent an employee fairly often involve a refusal by the union either to file a grievance for the employee or, if a grievance has been filed, a refusal to take it to arbitration. The duty of fair representation does not require a trade union to take the grievance to arbitration merely because the employee wants it to. Unless the collective agreement stipulates otherwise, the trade union has the authority and indeed the obligation to decide whether, upon a fair consideration of the relevant factors, a grievance will be either filed or taken to arbitration. The fact that a trade union has refused to take a grievance to arbitration will not by itself constitute a breach of the duty of fair representation imposed by section 74.
- A union necessarily takes some risk when it settles the grievance of an employee it represents without the consent of the employee. It needs to be satisfied that it has acted diligently and in the best interests of the employee concerned, and that it has not breached its statutory duty to fairly represent the employee. It must reasonably conclude that the employee’s expectations of what is achievable from pursuit of the grievance is either unreasonable or unrealistic. In coming to that conclusion, the union may legitimately conduct a costs-benefits analysis to compare what benefit is likely to accrue from pursuing a grievance as compared to the cost of doing so. It should weigh up whether the agreement it can achieve though negotiation sufficiently addresses the employee’s interests, given the costs of doing otherwise and the likely risks of the litigation.
5If the union in this matter can demonstrate that it diligently weighed the applicant’s expectations against what was reasonably or realistically achievable through the further pursuit of his grievance - that is, if the union conducted the kind of costs-benefit analysis contemplated by the Board’s decision referred to above – then in all likelihood, the union’s position in this matter will prevail. Certainly, the union’s filed response in this matter suggests that it did engage in the kind of required analysis before entering into a settlement without the applicant’s knowledge. The union states that it extracted a promise from the employer not to harass the applicant, and that the union assisted the applicant in obtaining income from the employer covering the applicant’s leave of absence. The union further contends that the applicant was to some degree responsible for the employer’s actions against him, and that this played some part in the union’s assessment of what constituted a fair settlement. These allegations, at face value, form the basis for a defence to the application.
6Except for the union’s allegations which are not disputed, I cannot consider the union’s material facts as set out in its filed response in dealing with the prima facie motion, but the panel of the Board assigned to the consultation of this matter, should it be necessary to schedule one, will consider the union’s position, as well as that of the other parties, in reaching a final determination on the merits of the application.
7The union’s prima facie motion is denied.
8This matter is referred to the Registrar.
“Patrick Kelly”
for the Board