0719-01-U Walter Pinto, Applicant CAW Local 385, Responding Party v. Coca-Cola Bottling Company, Intervenor.
BEFORE: Bram Herlich, Vice-Chair.
APPEARANCES: Walter F. Pinto appeared on his own behalf Thomas Park, Don Warner and Rob Hobbs appeared on behalf of the responding party; Shane Smith, Leslee Wills; Andy Anderson and David Irvine appeared on behalf of the intervenor.
DECISION OF THE BOARD; October 4, 2001
This is an application filed pursuant to section 96 of the Labour Relations Act, 1995, (“the Act”) alleging that the responding party trade union has violated section 74 of the Act. A consultation was held on September 25, 2001.
Essentially, the applicant complains about the settlement the union entered into in relation to a grievance filed on his behalf.
Before proceeding to outline some of the salient facts, it is useful to recall the parameters of this inquiry.
It is not the function of the Board, in these types of applications, to act as the surrogate arbitrator to hear and determine the grievance which could have been filed or advanced to arbitration. It is not the Board’s function to adjudicate the merits of any such grievance.
Rather, the Board is concerned with whether the responding party trade union has acted unlawfully, i.e. in a fashion which demonstrates arbitrariness discrimination or bad faith in its representation of the applicant.
So long as the union’s conduct (whether in declining to file or advance or in settling a grievance) is reasonable, the Board will not interfere even though it might have taken a different view of the merits of the grievance.
The events which gave rise to and the subsequent handling of the applicant’s grievance are largely undisputed.
While the applicant tended to downplay its significance, it appears that the events of March 29, 2001 were not the first time that his practice regarding taking breaks has caught the company’s attention.
An earlier grievance claiming harassment was filed and withdrawn. It was comments made by a supervisor that led to the filing of that grievance. The applicant acknowledged that criticism of his practice of taking breaks was part of the comments he viewed as harassment.
The applicant, a driver, apparently has a practice of taking all of his daily breaks together (including lunch) at the commencement of his shift. He lives close to the plant and might therefore punch in, go home and immediately commence his breaks while his truck was parked in a plaza close to both the plant and his home.
The first harassment grievance was ultimately withdrawn on the applicant’s instructions. And while he may have certain views of the agreements or undertakings that may have been exchanged at the time, there is no written record of any assurances of the type claimed by the applicant. And further, since the grievance was withdrawn on his direction (perhaps based on discussions he may have had directly with the employer), the union claims to be unaware of any such assurances.
In other words, it appears that the applicant’s practice of taking breaks was the subject of previous employer criticism, that criticism was the subject of a grievance but that grievance was withdrawn.
Those events transpired some two weeks (or, according to the grievor, two days) prior to the events which gave rise to the instant proceeding.
On March 29, 2001, it appears that the applicant again parked his truck in the plaza and went home to take his combined breaks.
The employer, in what must be described as some combination of management initiative and juvenile prank, arranged to have the applicant’s truck removed from the plaza lot and returned to the plant.
Thus, when the applicant returned to the plaza he found his truck had vanished. The impact and surprise the applicant would have experienced at his “disappeared” truck was no doubt exacerbated by the fact that he had been involved (approximately three years ago) in an incident where his truck was actually stolen. (Indeed, this fact may have appealed to the pranksterish component of the initiative.)
The applicant did not work again for some five or six weeks subsequent to this incident. He claimed and ultimately received weekly indemnity benefits supported by medical evidence.
On April 5, 2001 a grievance was filed on the applicant’s behalf. It claimed harassment asserting that the events of March 29^th^ caused extreme distress and sought “full redress”.
The grievance was referred to mediation at which time the company and the union executed a settlement. It provided for a payment of $1,700.00 to the applicant and stipulated that future discussions with the applicant were to be confirmed in writing. The settlement did not result in any discipline being imposed on the applicant (a possibility the employer had apparently raised).
The applicant was not consulted immediately prior to the execution of the settlement.
The union did contact him, however, earlier that same day. At that point the employer was offering $500.00 less than the amount finally settled upon. The applicant rejected the settlement. Indeed, the applicant indicated, as he had earlier and as he did again in the consultation before me that he was not prepared to waver or compromise, that he was only agreeable to receiving what he viewed as full and complete compensation. From his perspective that involved “full compensation” (i.e. the difference between his full wages and what he had received by way of weekly indemnity – a figure which he estimated before me to be between $2,000.00 and $2,500.00) and an apology from the employer for the manner in which it had handled the situation and spirited away the applicant’s truck.
It appears that the union was able to secure virtually, but not absolutely, everything the applicant was seeking.
First, with respect to the apology the applicant was demanding, I was told that, although not part of the formal settlement, the company had subsequently agreed to provide the requested apology. It also appears that the launching and progress of this application may have created an impediment to implementing that portion of the agreement.
However, I note that the very first submission made by employer counsel before me was an acknowledgement that it had perhaps not approached the situation in the best fashion by spiriting away the applicant’s truck. That acknowledgement was later underscored when the employer undertook to have an apology personally conveyed to the applicant by one of its representatives (such as Roy Nolan) for the manner in which the applicant’s truck was spirited away.
Thus, there is no longer any issue with respect to securing an apology.
In terms of the “full compensation” the applicant was seeking, the settlement of $1,700.00 leaves him $300.00-$800.00 short of that goal.
I am satisfied that the union’s decision to settle the matter on the basis that it did (and even without the grievor’s consent) was entirely reasonable in the circumstances.
It is perhaps unfortunate that the union did not provide the applicant with an opportunity to agree or disagree with the settlement before it was executed in its final form.
However, ultimately that factor is of little concern or import. For the union had been in touch with the applicant earlier in the day when he rejected a lesser offer. He repeated his view that nothing less than full compensation would have been acceptable. Thus, even had the union communicated the improved offer, there is every likelihood it would have been rejected.
In that context I am prepared to deal with the matter as if the union had knowingly entered into the settlement over the applicant’s explicit objection
Even in those circumstances, however, I am not persuaded that the union’s settlement was anything less than reasonable.
A number of factors lead me to that conclusion. While I have already indicated that it is not the Board’s function to adjudicate the merits of the grievance, I am prepared to acknowledge the possibility that the grievance, if advanced to arbitration, might have been entirely successful and provided the applicant with the full redress he was seeking.
Having said that, however, it is my view that a less favourable result was much more likely in the circumstances.
It is clear that part of the employer’s position (a position the union acknowledged might well have some merit) would have been that the applicant had engaged in misconduct having again taken his breaks in precisely the same fashion he had only very recently been warned not to. Thus, and if that position prevailed or had some influence in the arbitrator’s determination, it is extremely unlikely that the applicant would have secured “full compensation”. Indeed, had the employer opted to impose discipline and had the arbitrator found some cause for that discipline, the applicant might have faced a more substantial penalty (the applicant did not dispute the claim that his disciplinary record was less then exemplary).
More important perhaps, is the questionable basis of any specific collective agreement provision supporting the applicant’s claim. The applicant was unable to identify any such provision.
Finally, the union advised that it deferred to some extent or at least seriously considered the view presented to it by the mediator that the proposed settlement was reasonable. This, frankly, is a view which I share.
The applicant made his opposition to any compromise clear throughout the process. There may be cases where the unambiguous merits of a grievance warrant such a position. This is not such a case.
The union and the company settled the matter. Quite apart from the institutional values favouring the honouring of such settlement, it appears, that in this case, the settlement may well have provided the applicant with far more than he might have reasonably expected from arbitration.
In those circumstances and notwithstanding the applicant’s dissatisfaction with the settlement, I am unable to conclude that the union’s conduct was arbitrary, discriminatory or in bad faith.
This application is dismissed.
“Bram Herlich”
for the Board