1674-01-U Ivan Pletikos, Applicant v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 112, Responding Party v. Bombardier Aerospace, Intervenor.

BEFORE: Anthony Brown, Vice-Chair.

DECISION OF THE BOARD; November 8, 2001

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

2The applicant’s complaint under section 74 is that the responding party union has entered into an agreement with the intervenor to settle four grievances filed by the applicant. He asserts that the grievances had been “signed into arbitration” and that the union was therefore obligated to proceed to have them heard by an arbitrator. He asserts that the union did not consult him or obtain his consent prior to entering into the settlement, and that the union had no right to enter into the settlement without his consent.

3The responding party and intervenor submit that the application should be dismissed as disclosing no prima facie case. The responding party asserts that it has the right, as exclusive bargaining agent, to settle grievances, and is not obligated to refer grievances to arbitration. It states that the matters raised by the applicant in this application were essentially dealt with by the Board in an earlier section 74 complaint in Board File 2125-00-U, and should not be heard again by the Board. It states that the applicant was informed of its intention to settle the grievances and that the settlement package is advantageous to the applicant..

4The responding party states that two of the grievances mentioned by the applicant involved five-day suspensions, and the employer has agreed to pay the applicant for the entire 10 days of lost wages. The union states that this is an improvement over what had been contained in previous offers by the employer, and, because of the passage of time, the suspensions are no longer considered part of the applicant’s disciplinary record.

5The settlement required the withdrawal of two other grievances. One grievance dealt with equalization of overtime, and the union states that it was satisfied after discussing the matter with the employer and reviewing the employer’s records, that the applicant had little likelihood of success at arbitration. The other grievance dealt with the applicant’s desire to be transferred back to his former department. Here, again, the union states that, after considering the merits of the matter, it exercised its discretion to withdraw the grievance in the context of the overall settlement. It felt that an arbitrator would be unlikely to order a return of the applicant to the former department, where the applicant had had a number of conflicts with co-workers.

6The responding party submits that it had, in fact, advised the applicant of its intention to settle the grievances. Indeed, the applicant himself agrees that Plant Chairperson Bob Hamilton called him about the tentative settlement on May 16, 2001. The applicant informed Mr. Hamilton that he did not agree with the tentative settlement, and indicated his own terms for agreeing. The applicant also agrees that the employer and the union mentioned their tentative settlement during a consultation before the Board on May 30, 2001 in respect of Board File 2125‑00-U. Only after the Board dismissed the section 74 complaint in Board File 2125-00-U, did the union and employer finalize their settlement.

Decision

7The issue before the Board is whether or not this application should be dismissed without a consultation or hearing on the ground that the applicant has not pleaded a prima facie case. The Board has discretion not to hear an application made pursuant to section 96 and may decline to do so if the applicant would be unlikely to succeed even if the facts pleaded by the applicant are assumed to be true.

8In Board File 2125-00-U, the Board dealt with an application by Mr. Pletikos under section 74 of the Act, in which he complained about the responding party’s handling of several grievances, some of which had already been resolved and others of which were outstanding. The Board found that the union’s handling of Mr. Pletikos’ grievances to that point did not violate section 74. The settlement agreement in the instant application covers the grievances that were unresolved (but tentatively settled) as of the date of the consultation in Board File 2125-00-U.

9Do any of the material facts pleaded by the applicant point to a violation of section 74, that is, conduct by the union that was arbitrary, discriminatory or in bad faith? Clearly, no particulars of such conduct have been pleaded. Mr. Pletikos’ argument is about the fundamental nature of a union’s obligation under section 74. However, the Board has stated on many occasions that a union has carriage of a grievance. Provided that it is not arbitrary, discriminatory, or motivated by bad faith, it has the right to withdraw, settle or proceed with a grievance, taking into account the interests of the individual member of the bargaining unit and of the unit as a whole.

10In Marcia Robertson, [1990] OLRB Rep. Aug. 886, a case in which a union failed to take a discharge grievance to arbitration, the Board reviewed the general principles that are applicable under section 74 (then s.68) to a union’s handling of grievances (keeping in mind that the instant application does not involve a termination of employment). The Board stated:

16. Section 68 of the Act requires that the actions of a trade union in representing the employees for whom it is the exclusive bargaining agent be free of any subjective ill will. Also, the actions of a trade union can be arbitrary, and therefore contrary to section 68, without any ill will. The mere fact that a trade union has refused to take a grievance to arbitration does not necessarily establish a breach of the duty of fair representation imposed by section 68. In that respect, the Supreme Court of Canada, in Canadian Merchant Service Guild v. Guy Gagnon, 1984 CanLII 18 (SCC), 1 S.C.R. 509, reviewed the principles that apply to a trade union’s duty to represent employees with respect to a grievance as follows:

17. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.

18. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.

19. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other.

20. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.

21. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.

I find this statement of principle to be a useful general guideline against which the conduct of a trade union may be measured. It is also consistent with the Board’s jurisprudence in this area. In that respect, it is now trite law that a trade union is not required to take an employee’s grievance to arbitration merely because the employee wants it to.

17. A review of the Board’s jurisprudence reveals that honest mistakes, innocent misunderstandings, simple negligence, or errors in judgement will not of themselves, constitute arbitrary conduct within the meaning of section 68. Words like “implausible”, “so reckless as to be unworthy of protection”, “unreasonable”, “capricious”, “grossly negligent”, and “demonstrative of a non-caring attitude” have been used to describe conduct which is arbitrary within the meaning of section 68 (see Consumers Glass Co. Ltd., [1979] OLRB Rep. Sept. 861; ITE Industries, [1980] OLRB Rep. July 1001; North York General Hospital, [1982] OLRB Rep. Aug. 1190; Seagram Corporation Ltd., [1982] OLRB Rep. Oct. 1571; Cryovac, Division of W.R. Grace and Co. Ltd., [1983] OLRB Rep. June 886; Smith & Stone (1982) Inc., [1984] OLRB Rep. Nov. 1609; Howard J. Howes, [1987] OLRB Rep. Jan. 55; George Xerri, [1987] OLRB Rep. March 444, among others). Such strong words may be applicable to the more obvious cases but may not accurately describe the entire spectrum of conduct which might be arbitrary. As the jurisprudence also illustrates, what will constitute arbitrary conduct will depend on the circumstances.

18. In that respect, complaints that a trade union has acted in a manner contrary to section 68 of the Act often relate to the manner in which the trade union has handled one or more grievances of the complainant. In such complaints, the Board does not act as an arbitrator. The Board’s jurisdiction is to adjudicate the complaint under the Act and is quite different from the jurisdiction of a Board of Arbitration constituted to hear a grievance. However, some of the evidence which would be relevant to the arbitration of a grievance will also inevitably be relevant to the proper assessment of a trade union’s conduct with respect to the grievance, and in some cases (see, for example, Angelo Ritrovato, [1986] OLRB Rep. Oct. 1401, to the assessment of the appropriate remedy where a breach of section 68 is found. Also relevant to the Board’s considerations in such complaints are the importance of the particular grievance(s) to the employee, the implications of the grievance(s) for the rest of the bargaining unit and the trade union, the degree of consideration given to the grievance(s) by the trade union, and the factors, both relevant and irrelevant, considered by the trade union in deciding to not deliver a grievance or, having delivered one, to not take it to arbitration. The experience and qualifications of the trade union representatives involved has also often been cited as a factor which the Board will consider (see, for example, Ford Motor Co. Ltd. [1973] OLRB Rep. Oct. 549, at paragraph 40: Canadian Union of Public Employees Local 1000 – Ontario Hydro Employees Union (sometimes cited as Walter Prinesdomu), [1975] OLRB Rep. May 444, at paragraph 26). I agree that it is appropriate to consider the experience and training of the trade union representatives involved in order to keep the matter in its proper perspective. But that does not mean that it is appropriate to apply a subjective standard in fair representation matters. The standard to be applied is an objective one. Trade unions have an obligation to fairly represent employees for whom they have bargaining rights. The inexperience and lack of training of a trade union’s representatives may explain their conduct but it will not necessarily excuse it.

11In Board File 2125-00-U, the Board, in dealing with the union’s handling of Mr. Pletikos’ grievances to the date of the consultation, found that the applicant had not demonstrated even a prima facie case for violation of section 74. The union’s conduct up to the point at which the four grievances were settled has therefore been dealt with by the Board and the Board declines to revisit those matters. The instant application therefore concerns the union’s conduct vis-à-vis the settlement itself. Here, again, there is no prima facie case showing violation of section 74. The settlement redresses the applicant for ten days’ wages lost as a result of two 5-day suspensions. There is nothing materially to be gained by proceeding to arbitration on these matters, when the employer has agreed to redress the lost wages. The union, being fully apprised of the nature of the other two grievances, decided to withdraw them in the context of the overall settlement. One dealt with an overtime equalization issue that the employer had explained and dealt with to the union’s satisfaction. The other dealt with a transfer issue and the union considered that an arbitrator was unlikely to order the applicant back into his old department, given the pertinent history of discord. The applicant has not pleaded any material facts showing that the union made the decision to withdraw these grievances in an arbitrary or discriminatory fashion, or that the union was motivated by bad faith. Indeed, in my view, the union appears to have been extraordinarily successful in obtaining an advantageous settlement for the applicant.

12As the Board in Marcia Robertson (supra) stated, it is now trite law that a trade union is not required to take an employee’s grievance to arbitration merely because the employee wants it to. The responding party was not required to consult the applicant or obtain his consent to the settlement. Moreover, it is admitted by the applicant that the union did advise him of the tentative settlement.

13The applicant has not pleaded facts showing a prima facie violation of section 74 of the Act. Merely pleading that he has a right to have the matters go to arbitration and that he has a right to approve any settlement is a conclusion that he has reached on his own as to the nature of the union’s duty under section 74, but his conclusion is contrary to the Board’s well-established principles as to the duty of fair representation.

14For the foregoing reasons, the Board has decided not to inquire further into this complaint. The application is dismissed.

“Anthony Brown”

for the Board