1452-01-U Quang Chiem, Applicant v. United Steelworkers of America Local 4970, Responding Party v. Coltec Aerospace Canada Ltd., operating as Goodrich Turbomachinery Products, Intervenor.

BEFORE: Inge M. Stamp, Vice-Chair.

DECISION OF THE BOARD; December 3, 2001

1. Further to the Board’s decision in this matter dated November 5, 2001 the parties have filed additional submissions regarding the preliminary objections raised by the responding party, United Steelworkers of America Local 4970 (“Steelworkers”).

2. The material filed by the intervenor, Coltec Aerospace Canada Ltd. operating as Goodrich Turbomachinery Products (“Coltec”) and the Steelworkers contained detailed explanations for the conduct of the parties in dealing with the applicant, Mr. Quang Chiem. The applicant in his further submissions dated November 20, 2001 responded to the responding party’s submissions in Scheduled “A” paragraphs 1 through to 28. The applicant was directed to indicate his position with respect to each of the paragraphs with which he disagrees.

3. It appears from the material filed by the parties that the applicant was terminated effective August 21, 2000. It appears the company offered to accommodate the applicant’s medical restrictions and requested an updated list of those restrictions in the event that there had been any changes. The applicant was to have returned to work on August 14, 2001.

4. The applicant does not dispute that the union filed a grievance on his behalf on or about September 6, 2000 relating to denial of benefits and the termination of his employment. A copy of the grievance was filed by the responding party. The grievance was subsequently withdrawn by the union.

5. The applicant in his submissions repeatedly states that the responding party’s submissions are lies and are inconsistent. There are a number of references to the union and the company’s failure to follow the grievance procedure and the failure to involve the grievance committee.

6. Paragraph 16 of the union’s response indicated that there was a meeting with the union representative and the applicant at the workplace on October 4, 2000 to discuss the applicant’s grievance. Certain relevant documents were made available by the company at that meeting.

7. The applicant does not deny that he was present at that meeting but states that the grievance procedure was not followed and that the “grievance committee was not aware of any of these things”. The applicant’s comments were mostly rhetorical and did not address the issues. However, the applicant did not dispute that a grievance was filed on his behalf and that a meeting took place.

8. The union takes the position that in any event the matter has been settled. It is the responding party and the intervenor’s position that the applicant signed a release with respect to all matters arising out of his termination.

9. The applicant asserts that the only aspect of his grievance that has been resolved through civil action is with respect to his disability benefits. The applicant provided a copy of the proceeding in the Ontario Court (General Division). A Full and Final Release was signed on November 22, 2000 relating to a claim under the Insurance Act.

10. The applicant did not comment or dispute that he signed a further release on December 27, 2000. Paragraph 1 and 2 of the union’s response states:

1. The Union understands that during the period both prior to filing the grievance and after it was withdrawn, the Complainant had a civil action against the Company. The Union understands that the civil action was filed June of 1999, before he requested that the Union file a grievance. Furthermore, the civil action related to the denial of benefits, which was one of the subjects of the grievance. The Union is lead to believe that the civil action was settled in December of 2000 and that the Complainant received a monetary payment and signed a release, which reads in part:

“I Minh Quang Chiem, hereby agree and confirm that I have been fully paid and provided all entitlements arising from my hiring, employment and the termination of my employment...including but not limited to ...all entitlement to wages… right to reinstatement… or any other employment benefit”.

2. It is clear that the Complainant has settled all matters relating to his employment and termination of his employment on a full and final basis. As a result, he can not seek to have his termination and denial of benefits processed to arbitration.

11. The applicant’s response to paragraphs 1 and 2 state:

Paragraph 1

I totally disagree with this Paragraph. Yes I did file a civil action Law Suit against the Company on June 1999. This Law Suit was for denial of Sick Benefits while I was sick from June 98 to Jan. 99 Ex. “A”. A grievance was filed for this matter and I did not hear anything about this grievance from the union after that. So I did proceed with the civil action. The settlement which I made was for this civil action Law Suit and NOT for subsequent grievance date Sept. 6/2000 for denial of Sick benefits (Sick from June/2000 till) [sic] and subsequent termination.

Paragraph 2

I do not agree with the unions view on this paragraph. Labour relations matters can only be settled by the parties to an Agreement. The union and the Company. How can I an individual settle with the Company unilaterally. It does not make Sense and its unlawful.

12. The applicant does not deny he signed the release dated December 27, 2000 but appears to suggest it might be unlawful. The release was sent to counsel for the employer by counsel for the applicant on December 28, 2000. The letter states “enclosed herewith please find the Full and Final Release, in duplicate, duly executed by our client” (the applicant in the instant case). The Release states in part:

RELEASE AND INDEMNITY

IN CONSIDERATION of the payment of $9,500.00, less statutory deductions required by law, I, Minh Quang Chiem, (which includes my heirs, executors, administrators and assigns) hereby agree and confirm that I have been fully paid and provided all entitlements arising from my hiring, employment and the termination of my employment with Coltec Aerospace Canada Ltd. (hereinafter referred to as the “Company”, which term includes and its related, subsidiary and affiliated companies, and their respective officers, directors, agents, and employees), including but not limited to, all entitlements to wages, bonus payments, holiday pay, vacation pay, overtime pay, commissions, right to reinstatement, benefit entitlements, disability payments, pension entitlements, notice of termination or payment in lieu of notice, severance pay, or any other employment benefit, whether arising pursuant the Employment Standards Act or any other provincial, federal or common law and I hereby release and forever discharge the Company from any and all actions, causes of action, debts, liabilities, claims, demands and other complaints of any kind, whether statutory or otherwise, which have existed, exist now or may exist by reason of any matter arising out of my hiring, my employment or termination of employment, and I consent to the dismissal, without costs, of the court action in Ontario Superior Court of Justice Court File No. 99-CV-171436SR. The foregoing shall not include an action for enforcement of this Agreement. I agree that I have not been subjected to any form of discrimination or harassment whatsoever and I undertake not to file any complaint pursuant to the Ontario Human Rights Code or under any provincial, federal or common law which addresses discrimination on any basis.

I HEREBY ACKNOWLEDGE AND AGREE that I do execute this Release and Indemnity voluntarily with full knowledge of its terms and conditions and I confirm that I have obtained independent legal advice with respect to this settlement and I confirm that I voluntarily accept the payments provided for herein.

I HEREBY ACKNOWLEDGE AND AGREE that this agreement constitutes the sole agreement remaining in effect between myself and the Company, and that apart from this agreement, all other agreements, written or oral, which may exist between myself and the Company, are hereby revoked and terminated.

IN WITNESS WHEREOF, I, Minh Quang Chiem, do execute this Release and Indemnity at December on the 27th day of December, 2000.

SIGNED, SEALED and DELIVERED )

In the presence of )

(“Illegible Signature”) ) (“Minh Quang Chiem”)

Witness Minh Quang Chiem

Decision

13. The issue in this application is whether the responding party violated section 74 of the Act. Section 74 states:

74. 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. The Board notes the remedy of reinstatement with full redress requested by the applicant is not the typical form of relief sought or granted even in successful section 74 cases. The remedy in such cases, if a violation of section 74 is found, is to direct the union to take the matter to arbitration. If the grievance were ultimately successful in front of the arbitrator the applicant might obtain the relief requested.

15. In Marcia Robertson, [1990] OLRB Rep. Aug. 886 the Board considered 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 section 68) to a union’s handling of grievances. 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.

19. In this case, the complainant’s grievances were with respect to the termination of her employment. As such they were of the utmost importance to her. Where it is possible that relief could be obtained at arbitration, a trade union which has failed to process a discharge grievance to arbitration bears the burden of accounting for its decision (Swing Stage Ltd., [1983] OLRB Rep. Nov. 1920; Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067; Howard J. Howes, supra).

16. With these general principles in mind and reviewing the applicant’s submissions I do not find that the responding party has violated section 74. In any event the applicant did sign a Full and Final Release in which he confirmed that he had been fully paid and provided all entitlements arising from his hiring, employment and the termination of his employment with the intervenor including all entitlements to wages, ….right to reinstatement, benefit entitlements, disability payments.

17. In the circumstances, even if the union had violated section 74 which the Board expressly finds it did not, the Board would exercise its discretion under section 96 to dismiss this application. The applicant did not suggest that he did not signed the Release dated December 28, 2000 but rather stated he disagreed with the union’s view in paragraph 2 of the response.

18. In all the circumstances this application is hereby dismissed.

“Inge M. Stamp”

for the Board