Robert Demers v. Canadian Union of Public Employees, Local 24

File No.: 1200-00-U Date: October 26, 2001 Ontario Labour Relations Board

Before: Caroline Rowan, Vice-Chair.

Appearances: Andrew Lister and Robert Demers for the applicant; Nancy Rosenberg, Charlene Avon, Kelly Whitman-McKie and George Campbell for the responding party; Grant Radley-Walters and Ray Brazeau for the intervenor.

DECISION OF THE BOARD; October 26, 2001

1This is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) filed by Robert Demers, the applicant, in which he alleges that Canadian Union of Public Employees, Local 24 (the “union”), violated section 74 of the Act. More specifically, the applicant complains that the union acted in “bad faith” toward him within the meaning of that section when it failed to refer his job competition grievance to arbitration.

2This application was heard by way of consultation. After hearing the applicant’s and the union’s presentation of the facts relevant to this application, the Board determined that it was also necessary to hear sworn testimony concerning two areas in which the material facts were in dispute. The first of these areas concerns the union’s advice to the applicant about the merits of his grievance. The second area relates to what transpired at the union membership meeting on March 9, 1999, at which time the membership determined not to refer his grievance to arbitration. The Board therefore heard sworn testimony about these matters from the applicant and from two representatives of the union, Ms. Whitman-McKie, the local union president at the relevant time, and Ms. Charlene Avon, the union’s national representative.

3In assessing the disputed evidence and arriving at my findings of fact, I have considered all of the evidence and undisputed facts and have taken into account such factors as the demeanour of the witnesses, the clarity of their evidence, the witnesses’ apparent ability to recall events and to resist the tug of self-interest in their responses to the questions, and what seems most reasonable and probable in all of the circumstances having regard to the evidence as a whole.

4The facts relevant to the applicant’s complaint against the union as well as the parties’ positions with respect to those facts may be summarized as follows.

Facts and Positions of the Parties

5The applicant is employed by the City of Pembroke (the “employer”) and is covered by a collective agreement between the intervenor and the union (the “Collective Agreement”).

The Period leading up to the Job Posting

6On or about April 12, 1999, an employee in the position of sub-foreman (Mr. Denis Holiday) was placed in the position of foreman. Mr. Ron Conroy was, in turn, then placed in the position of sub-foreman. On or about that time, the applicant approached a member of the executive of the union and asked that a grievance be filed on his behalf, since he felt that he was the most senior qualified employee for the position of sub-foreman. The applicant states that in response he was told that there was nothing he could do at that time, since the assignment was just a temporary one. Approximately two months later, the applicant again approached Mr. Campbell about the fact that the position had not yet been posted. The applicant states that Mr. Campbell responded by telling him that “he did not want to irritate management”.

7The applicant notes that on or about July 14, 1999 Mr. Holiday was officially placed in the position of foreman. The applicant felt that the sub-foreman position had become “vacant” as of that date and therefore that the position should now be posted. The applicant states that from July 16, 1999 onward he checked regularly with Mr. Campbell regarding management’s delay in posting. Mr. Campbell told him that management did not need to post the position immediately.

8In response, the union explains that, in or about April 1999, Mr. MacDowell (who at that time held the position of foreman) left for health reasons and that it was unclear at that time whether or not he would be returning to the position. The employer therefore filled the position temporarily by putting the then sub-foreman, Mr. Holiday, into the position of foreman. The employer indicated its intentions in this regard to the union and advised that it would review the situation in three months. The union did not object to that proposal.

9The union notes that although Mr. Holiday was permanently given the foreman position on or about July 14, 1999, he was entitled to a three-month trial period under the terms of the Collective Agreement. The intervenor advised the union that it did not intend to post the position of sub-foreman until after the end of that trial period to avoid a domino effect and because it wanted to avoid posting the position during the summer vacation period. Although the union did not specifically agree to wait to the end of the trial period, the union did not, at least initially, object to that proposal.

10When the applicant approached Mr. Campbell in the period after July 14, 1999 about posting the position, Mr. Campbell explained to him what the employer had communicated and that the union had not objected to that procedure. As the applicant insisted that the position should be posted, Mr. Campbell then spoke to Mr. Church, a representative of management, on several occasions about the need to post the sub-foreman position. As a consequence, the sub-foreman position was ultimately posted at the beginning of September 1999.

11The union agrees that Mr. Campbell told the applicant that he did not want to irritate management. Mr. Campbell did so in the context of the applicant asking him to go back again and speak to Mr. Church about posting the position. The union explains that Mr. Campbell recognized that it was the summer and states that the union was willing to wait until September, for the position to be posted particularly since the Collective Agreement does not prescribe any specific timelines within which a vacancy must be posted. The union submits that it was operating within the confines of the language of the Collective Agreement and a desire to be flexible. It submits that its conduct in this regard in no way reflects bad faith on its part.

The Job Posting, Job Competition and Subsequent Grievance

12On or about September 8, 1999, the intervenor posted the position of sub-foreman in the Parks and Facilities Department. The applicant applied for that position and was granted an interview by the intervenor on or about the beginning of November 1999. The applicant was one of four candidates interviewed for the position by a panel consisting of four representatives of the intervenor.

13Candidates were rated in three parts. The interview counted for sixty (60%) percent of the total job competition score. Education, previous experience and other related training represented fifteen (15%) percent of the total score. The remaining twenty-five (25%) of the total score took into account any other relevant consideration.

14Mr. Ron Conroy, the candidate with the lowest seniority ranking of the four candidates interviewed, was awarded the position of sub-foreman. Mr. Demers ranked second behind Mr. Conroy on all three components of the job competition for a total differential of 12.4% behind Mr. Conroy (and 11 points out of 110 less than Mr. Conroy on the interview component). Although Mr. Demers has more seniority than Mr. Conroy, the other two candidates have greater seniority still than Mr. Demers.

15On or about November 10, 1999, the intervenor advised Mr. Demers by memorandum of that date that Mr. Conroy had been the successful applicant and invited Mr. Demers to meet with a representative of management on the selection panel to discuss further his standing. The union points out that this was done in accordance with Article 6.02 (b) of the Collective Agreement, which contemplates that employees applying for posted positions “…shall be sent the name of the successful applicant and an evaluation of their standing in the competition so that they may be able to upgrade themselves for further vacancy within the Bargaining Unit.”

16The applicant filed a job competition grievance on or about November 15, 1999 alleging that he should have been awarded the position of sub-foreman. The applicant complains that when he brought the grievance to his union representative, Mr. George Campbell, was reluctant to sign it and advised him to wait until he had had an opportunity to meet with management. Mr. Campbell told the applicant not to worry since Mr. Brazeau, the CAO, would extend the time limits. The applicant states that he nonetheless remained concerned about the three (3) day time limit for filing a grievance prescribed under the Collective Agreement. When Mr. Demers insisted that the grievance be filed, Ms. Whitman-McKie agreed to file it right away on his behalf and, in fact, did so. The applicant nonetheless “…felt that the union and the employer were coercing together to prevent [him] from putting in a grievance within the proper time limit”.

The Union’s Conduct during the Course of the Grievance Procedure

17The union processed the grievance through each of the steps of the grievance procedure including to the fourth step, which involves taking the matter up with City Council. The applicant states that he was generally satisfied with the union’s representation of his interests during the course of the grievance procedure. In particular, he indicates that he was content with his representation by the union’s national representative, Ms. Charlene Avon, during this period and concedes that the union adequately turned its mind to the merits of his grievance.

18In this regard, the Board notes that it was not disputed that Ms. Avon as well as other representatives of the union met with the applicant on numerous occasions during the course of the grievance procedure to discuss his grievance with him. Ms. Avon also researched arbitration decisions involving similar job competition clauses and prepared and presented his grievance to management in a competent manner during the course of the grievance procedure. There was no suggestion that the applicant needed to press representatives of the union to make these efforts on his behalf.

(i) The union’s decision to drop the allegations relating to Article 6.01 and 6.04

19The applicant, however, complains about the union’s decision to drop the allegation in his grievance that the intervenor violated Article 6.01 of the Collective Agreement when it failed to post the position in a timely manner as well as the allegation that the intervenor violated Article 6.04 when it failed to provide him with a trial period in the position of sub-foreman. The applicant argues that the union’s decision in this regard is further evidence of the union’s bad faith toward him. The applicant notes that the employer had requested that the union drop these allegations during the course of the grievance procedure and that the union had agreed to do so.

20Article 6.01 and 6.04 of the Collective Agreement read as follows:

6.01 JOB POSTINGS

The Corporation shall post on all bulletin boards, job postings for all vacant positions for probationary and regular employees or when a new position is created within the Bargaining Unit. Such notices shall be posted for a minimum of seven (7) calendar days in order that all members will know about the position and be able to make a written application.

No employee shall be transferred to a position outside the Bargaining Unit without his or her consent. Positions to be filled shall be advertised.

6.04 TRIAL PERIOD

An employee within the Bargaining Unit who has successfully applied for a position which has been posted, shall be given up to three (3) months trial period to demonstrate his ability and efficiency and if the employee or the Corporation finds he is unable to perform the duties of the classification, he shall be returned to his former position without loss of seniority. Any other employee promoted or transferred because of rearrangement of positions shall also be returned to his former position, wage or salary rate without loss of seniority. Any employee determined to be competent may be confirmed in the position prior to the end of the third month of the probationary period.

21The union contends that it had only agreed to drop these allegations during the course of the grievance procedure after discussing their merits with the applicant. More specifically, the union indicates that it advised the applicant of its view that these allegations would not succeed having regard to the language of the Collective Agreement and that the applicant had specifically agreed to its recommendation to drop them. The Board notes that the applicant did not dispute the union’s contention that he had agreed to the union’s proposal to drop reference to those articles during the course of the grievance procedure.

22With respect to the merits of these allegations, the union points out that Article 6.01 of the Collective Agreement merely requires the intervenor to post a vacancy for a period of seven days (which was done) and does not prescribe any specific time period within which a vacancy must be posted. The union further states that Article 6.04 has no application to the present case as it merely prescribes that a bargaining unit employee who has successfully applied for a position which has been posted is entitled to a trial period. The union points out that the applicant “had not successfully applied for a position” and accordingly was not entitled to a trial period under this provision.

(ii) Obtaining information from the Intervenor concerning the Job Competition Results

23In support of his contention that the union acted in bad faith toward him, the applicant also refers to the fact that the union was never successful in getting the employer to provide it with details of its position that the incumbent was more qualified than him.

24During the course of the grievance procedure, the union asked management on several occasions to provide it with information concerning the scoring of the various candidates, but the employer refused to provide that information. On or about February 2, 2000, the union also wrote a letter to Mr. Brazeau, the Chief Administration Officer, specifically asking him to provide the union with the questions asked in the testing that was done as well as the test scores. Mr. Brazeau responded in a brief letter to Ms. Avon dated February 9, 2000 as follows:

Prior to considering your request, we would appreciate your advising what is wrong with the process in that you require this information.

25The union made a further attempt to obtain this information on the morning of the union membership meeting of March 9, 2000, at which time a representative of management finally verbally disclosed to the union the difference between the applicant’s and the incumbent’s scores.

(iii) The Union’s Comments on the merits of the Grievance

26The applicant contends that Ms. Avon advised him during the course of the grievance procedure that his case was good and after further review stated that it was a “clear cut and dried case.” According to the applicant, Ms. Avon indicated to him that his case had strong merits, that he had the “qualifications” and “seniority”, and that the employer would try to argue that he did not have the “ability”. She noted, however, that the employer had the onus to prove that fact.

27He testified that Ms. Avon had also referred to an arbitration decision, in which the chair had ruled that the only time a junior person would succeed in a competition is if he/she had an overabundance of qualifications. Ms. Avon had indicated to him that she would try to get the competition scores and if they were only within a couple of points, they would have a good chance.

28The applicant also contends that Ms. Avon commented after the Step 2 grievance meeting that it was unfortunate that “favouritism is still going on in the workplace.” The applicant feels that Ms. Avon had lead him to believe at all levels that he had a good case and that the only time that changed was at the vote held at the membership meeting on March 9, 2000.

29Ms. Avon disputes that she ever suggested to the applicant that his case was a “clear cut and dried” one or that she suggested that it was a case of “favouritism”. She indicated that the applicant had suggested to her that there was favouritism involved in the employer’s decision and that she may have responded simply “that’s possible I don’t know”. She explained that she would never indicate to a grievor that his case is cut and dried nor would she give any guarantees. Ms. Avon states that she had, in fact, told the applicant that proving “ability” was difficult at times.

30Having considered the conflicting evidence, I accept the applicant’s relatively detailed account of his discussions with Ms. Avon throughout the course of the grievance procedure outlined above with two important exceptions. I am not persuaded that Ms. Avon, who is an experienced union representative, told the applicant that his case was “clear, cut and dried” or that it was a case of “favouritism”. In this regard, I accept Ms. Avon’s explanation that she would never have made this type of statement to a grievor and would never provide a “guarantee” of success if the grievance proceeded to arbitration. If Ms. Avon made these statements at all, it seems more likely that she did so in the course of her presentation of the applicant’s grievance to the employer at the grievance step meetings.

31While I found the applicant to be a generally credible and reliable witness who related events to the best of his recollection, it seems likely that the applicant did not distinguish sufficiently between Ms. Avon’s positive presentation of the merits of his grievance to the employer during the course of the grievance procedure and her more qualified comments about the likelihood of success made to him before and after those meetings.

32During those meetings without the employer, I find that Ms. Avon was generally positive as the applicant suggested, but that she also qualified her opinion as she claimed by stating that there was a good chance of success if the competition scores were only within a few points and that “ability” was difficult to prove. In that context, it is not surprising that representatives of the union became less positive on the day of the vote when they learned that there was a substantial difference between the applicant’s and the incumbent’s scores.

(iv) The Union Membership Meeting held on March 9, 2000

33Following the step 4 grievance meeting on March 7, 2000, the applicant had a brief meeting with Ms. Avon, and the President and Vice-President of the local, at which time they discussed the local’s practice of putting a decision about whether to go to arbitration to a vote at a membership meeting. Although the current local union executive could not recall referring a grievance to arbitration in recent years, it has referred a couple of grievances to mediation. Prior to doing so, it has put the decision about whether or not to proceed to mediation to a vote.

34During their discussion on March 7, 2000 about holding such a meeting and vote on March 9, 2000, Ms. Avon indicated that she could not attend on that date. Ms. Avon asked Ms. Whitman-McKie if she felt comfortable presenting the applicant’s grievance to the membership and Ms. Whitman-McKie responded that she was. The union also states (and the applicant did not dispute) that at no time did the applicant raise the fact that he was uncomfortable about the fact that Ms. Avon would not be attending. In fact, Ms. Avon specifically asked him if he was comfortable about the fact that she would not be attending and he indicated that he was. The union states that had he indicated otherwise, the date of the proposed meeting could have been changed.

35At the consultation, the applicant indicated that he was indeed very uncomfortable about the fact that Ms. Avon would not be able to attend to present his grievance to the membership because of what had happened when he had initially tried to file the grievance with the local union executive. In this regard, he referred to the fact that the local union executive had suggested that he delay filing the grievance despite the three-day time limit prescribed under the Collective Agreement. He notes that it was also the same two members of the union’s executive who had wanted him to remove the two articles referred to above from his grievance.

36The applicant also expressed concern at the consultation in this matter about the fact that he had heard from various individuals in the bargaining unit shortly prior to the meeting of March 9, 2000 that they understood that the proposed meeting had been cancelled. The applicant did not, however, suggest that representatives of the union were in any way involved in disseminating this misinformation. The applicant also conceded that he saw a notice of the meeting of March 9, 2000 posted in the workplace on March 8, 2000. The Minutes of the meeting further indicate that there were thirty-six out of fifty-seven members in attendance at the meeting. The union states (and the applicant did not dispute) that that relatively high turnout is fairly usual for meetings of this nature.

37The applicant also complains about the fact that he noticed that the incumbent was in attendance with a number of his friends when he arrived at the meeting on March 9, 2000. He feels that they had a conflict of interest and should not therefore have been eligible to vote. For his part, the applicant states that he had asked a few people to come to the meeting, but he did not phone anyone to try to solicit their attendance. The applicant, like the incumbent and all other members of the bargaining unit, was eligible to vote.

38The applicant and Ms. Whitman-McKie’s account of what happened at the membership meeting differed in certain respects. Their evidence concerning Ms. Whitman-McKie’s presentation of his grievance was not that different, except that the applicant perceived her comments to be generally negative whereas Ms. Whitman-McKie believed her comments to be merely factual.

39Having considered their respective accounts of her presentation, I find that Ms. Whitman-McKie informed the membership about the nature of the grievance, that Mr. Conroy had been the successful candidate, but that the applicant had greater seniority than Mr. Conroy. She referred to the applicant’s claim that he had received a positive performance appraisal, which might assist his case, but noted that the applicant did not have a copy of it and that the employer had advised the union that a management witness would testify that such an appraisal had never taken place. She further noted that the union had just received the score results verbally from the employer and that there was a substantial point differential between the applicant’s and the incumbent’s scores. She also indicated that the applicant had the qualifications for the position.

40In addition, Ms. Whitman-McKie raised the issue of the cost of going to arbitration and the fact that the local did not have the funds to go to arbitration but that the national union could provide it with a no interest or low interest loan. She pointed out that membership dues were expected to increase (which had already been anticipated), but indicated that that increase would occur regardless of whether or not the applicant’s grievance went to arbitration. I also accept that she discussed, albeit briefly, the union’s obligation to fairly represent its members. At the conclusion of her presentation, she did not make any recommendation to the membership.

41The applicant also had an opportunity to, and did, make a presentation to the membership. He states that at that time he tried to raise the arguments in favour of his grievance made by Ms. Avon at the grievance meetings. He states that Ms. Whitman-McKie shook her head at various points. Although Ms. Whitman-McKie did not recall doing so, I accept the applicant’s evidence that she did so at some point during his presentation. In this respect, I find that she likely did do so in response to the applicant’s statement to the membership that Ms. Avon had indicated that it was “a clear cut and dried case”. Ms. Whitman-McKie, in any event, later responded to his version by stating to the membership at that meeting that Ms. Avon had never said that.

42I also accept the applicant’s testimony that during the meeting one of the union’s executive members appeared to be joking with Mr. Brazeau’s son in a private discussion between them. I also accept Ms. Whitman-McKie’s suggestion that there was not an unusual amount of private discussion amongst those in attendance. Although the meeting in question was not, as Ms. Whitman-McKie indicated, the most formal business meeting, those in attendance were generally paying attention to the topic under discussion.

43At the conclusion of these presentations and following a few questions from those in attendance, a vote was conducted at which time only six people voted in favour of proceeding to arbitration.

Decision

44Section 74 of the Act provides as follows:

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.

45The Board's case law with respect to the obligation imposed on trade unions under section 74 of the Act makes clear that this provision does not require trade unions to take every grievance to arbitration. In fact, the Board has commented that the mere fact that the union has not processed a grievance to arbitration does not constitute a prima facie case of a violation of section 74. In Perino Smith, [1991] OLRB Rep. July 912, the Board made the following comments regarding the obligations imposed by section 68 [now 74] of the Act as it relates to the union's decision about whether or not to process a grievance to arbitration:

The Board has made it clear in many cases that what is required of a union in relation to a decision on whether or not to take a grievance to arbitration is that it turn its mind to the problem and consider it in a manner free from irrelevant considerations and arbitrary, discriminatory or bad faith behaviour. See, among others, the case of Domenic Gattellaro, [1987] OLRB Rep. June 844 at paragraph 9 where the Board said:

Section 68 [now 74] of the Labour Relations Act does not require that a trade union carry a grievance through to arbitration merely because the grievor wants it to do so. Unless the collective agreement gives the grievor that right, it is for the union to decide whether or not to take a grievance to arbitration. Section [74], requires that the union make that decision in a manner which is not arbitrary, discriminatory or in bad faith. It does not provide an appeal to the Board from the union's decision. The question for the Board is not whether the union's decision is the one which this Board would have made in the circumstances, it is whether the union's decision is the result of a process of reasoning grounded on a consideration of relevant matters and free from the influence of irrelevant ones: see Savage Shoes Limited, [1983] OLRB Rep. Dec. 2067, 6 CLRBR (NS) 134, at paragraphs 36 to 39. The Board has recognized that considerations relevant to a decision whether or not to press a grievance to arbitration include the merits of the grievance and likelihood of its success, the financial commitment involved in proceeding to arbitration and the claims or interests of other individuals or Groups within the bargaining unit who may be affected by the arbitration proceedings and their possible results: see Catherine Syme, [1983] OLRB Rep. May 775 at paragraph 120.

The Board has also noted on a number of occasions that union officials cannot be expected to exhibit the skill, ability, training and judgement of a lawyer when assessing the merits of a grievance (see for example, Catherine Syme, supra).

46In the present case, the applicant concedes that the union adequately turned its mind to the merits of his grievance and notes that he was content with Ms. Avon’s representation of his interests during the course of the grievance procedure. His contention is that the union acted “in bad faith” toward him within the meaning of section 74 of the Act.

47In support of his position that the union acted in bad faith toward him, the applicant refers to the union’s conduct in the period prior to the filing of his grievance, and to the union’s decision made during the course of the grievance procedure to agree to the employer’s request to drop the allegations of a violation of Article 6.01 and 6.04 of the Collective Agreement from his grievance. The applicant also refers to the union’s lack of success in pressing the employer to provide it with details of the job competition scores and to the manner in which representatives of the union handled the union membership meeting held on March 9, 2000, at which time the membership determined not to refer his grievance to arbitration.

48In order to establish that the union acted in bad faith, the applicant must demonstrate that the union’s actions were motivated by ill will, malice, hostility or dishonesty. Having carefully considered the undisputed facts and evidence in this case, I am unable to find that the union’s handling of the applicant’s grievance suggests bad faith on the union’s part for the following reasons.

49There is firstly nothing untoward or even unusual in Mr. Campbell’s suggestion that the union delay filing a grievance on his behalf in order to give the union an opportunity to investigate the facts further through discussions with the employer. This is because Mr. Campbell made clear that he was proposing to do so only on the understanding that the employer would agree to waive the time limits for filing a grievance prescribed under the Collective Agreement. This is not an unusual practice and does not in and of itself give rise to any suspicion about the union’s motives.

50Rather, it appears based on the union’s explanation in this regard that the local union representatives were attempting to provide the applicant with what it considered to be the best representation possible. The union explains that the grievance procedure prescribed under the Collective Agreement does not have an oral step and proceeds immediately to written grievance. The union believes from experience that it is preferable to discuss the issue with the employer first so that it can obtain as much information as possible from the employer before a written grievance is filed.

51The union stated that, in its experience, once a written grievance is filed, positions become hardened and it becomes more difficult to obtain information. The union points out that that is precisely what happened in this case. After the applicant’s grievance was filed, it became difficult for the union to obtain any information from the employer about the competition process despite its repeated requests both orally and in writing for such disclosure.

52The Board is further unable to agree with the applicant’s suggestion that the union’s lack of success in obtaining disclosure from the employer about the competition process should be construed as evidence of bad faith toward him in the circumstances. In this respect, the Board notes that the union made repeated requests both orally and in writing for this information and had no ability to compel such disclosure during the course of the grievance procedure (i.e. prior to a referral to arbitration).

53The Board is also not persuaded that the union’s decision to drop certain allegations from his grievance during the course of the grievance procedure gives rise to an inference of bad faith toward him. In the present case, the union decided to do so only after assessing that those allegations had no merit and only after securing the applicant’s agreement to proceed in that fashion. The union decided to do so in view of its assessment that those allegations lacked merit in an effort to put a credible case forward on the applicant’s behalf.

54The union turned its mind to the merits of those allegations and determined that Article 6.04 does not provide the applicant with the right to a trial period and that Article 6.01 does not require the employer to post a vacant position within seven (7) days of a vacancy as contended by the applicant. The union’s interpretation is that that latter provision does not prescribe any definite time lines within which a vacancy must be posted.

55Having considered the union’s explanation, the Board finds that its assessment was not unreasonable. As noted above, the issue before the Board is not whether or not the union’s decision was the correct one or was one the Board would have made, but rather whether or not it is one that the union could reasonably have made. As previously noted, union officials cannot be expected to exhibit the skill and ability of a lawyer in making these types of assessments. (Anna Wilson, [1990] OLRB Rep. November 1167).

56The Board is also unable to find that the union’s failure to press the employer to post the position earlier suggests bad faith on its part in view of the union’s assessment that no specific time lines for such a posting are prescribed under the Collective Agreement. The union, in any event, made several requests for an immediate posting after Mr. Holiday was officially placed in the foreman position on or about July 14, 2001 with the result that the position was, in fact, posted approximately six weeks later and well before the end of Mr. Holiday’s trial period.

57Although the applicant states that he did not feel comfortable with various aspects of the union’s representation, it appears that he did not always voice these concerns at the time. Had he done so, the union would have had the opportunity to address his concerns through further discussion and may have decided to proceed differently. In these circumstances, it is difficult to fault the union for proceeding as it did and more difficult still to infer bad faith from the union’s conduct.

58For example, it is difficult to characterize the union’s conduct in dropping the allegations relating to Article 6.01 and 6.04 from his grievance as indicative of ill will toward the applicant when the applicant specifically agreed at the time with the union’s recommendation to drop those allegations. It is similarly difficult to infer malice from the union’s decision to proceed with the membership meeting in Ms. Avon’s absence when representatives of the union specifically asked the applicant if he was comfortable with proceeding in that manner and he indicated that he was.

59With respect to the question of the adequacy of the union’s notice of the membership meeting, the Board firstly notes that the applicant concedes that on or about March 8, 2000 he saw a notice of the meeting in the workplace scheduled for the following day. In these circumstances, it is of little consequence that the union no longer has a copy of that notice. The Board also observes that there is no suggestion that the union was responsible for disseminating false information that the meeting was cancelled or that the union even had reason to question the level of employee turnout at the meeting. Simply put, there is nothing in these concerns that gives rise to an inference of bad faith.

60There is finally nothing in the union’s conduct of that membership meeting as detailed above which suggests bad faith toward the applicant. There is, for example, nothing in the manner in which Ms. Whitman-McKie presented the applicant’s grievance to the membership, which suggests that the union attempted to, or did, turn the issue of whether to refer the applicant’s grievance to arbitration into a popularity contest between the applicant and the incumbent. The union’s responsibility before the membership was to indicate fairly both the pros and the cons. In that context, it is not surprising that Ms. Whitman-McKie’s presentation may have differed in tone from that of Ms. Avon at the grievance meetings with the employer.

61The Board finds that Ms. Whitman-McKie’s presentation was factual and balanced. For example, she referred to the fact that the applicant had the qualifications for the position and had greater seniority than the incumbent on the one hand but that his competition score was substantially lower on the other. Ms Whitman-Mckie did not raise any irrelevant considerations in her presentation, nor did she conceal any relevant information. While raising the cost of arbitration and the fact that dues were expected to increase may have been perceived by the applicant as negative, these are relevant considerations which the union was entitled to raise in the manner in which it did.

62The facts in the present case are therefore distinguishable from those in Gerald Lecuyer, [1985] OLRB Rep 1099 cited by the applicant. In that case, the Board found that the union had acted arbitrarily and in bad faith when it withheld from the members relevant information it needed in order to properly assess what should be done with the grievance in issue. That did not occur in the present case.

63The facts in the present case are also distinguishable from those in Ivan Cvicek, [1995] OLRB Rep. February 105 cited by the applicant. In Ivan Cvicek, supra, the Board found that the union had acted arbitrarily when it refused to allow the grievor in a discharge case to be present at a monthly meeting of the local executive and stewards, at which time the issue of whether or not to proceed to arbitration with his discharge grievance was raised. At that time, one of the union stewards who had had an altercation with the grievor, which had lead to the grievor’s discharge, had had an opportunity to present his version of events. The grievor in that case had had no opportunity to present his case at the meeting. In the present case, however, the applicant had a full and fair opportunity to present his case to the membership and did so prior to the vote.

64In all of the circumstances, the Board is unable to find that the union acted in “bad faith” toward the applicant within the meaning of section 74 of the Act as alleged. This application is accordingly hereby dismissed.

“Caroline Rowan”

for the Board