Ontario Labour Relations Board

0139-01-U; 0214-01-U Al Russo, Applicant v. National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW-Canada), Responding Party v SKD Company, Intervenor

APPEARANCES: Winston Mattis, Daryl Hall and Albert Russo for the Applicant; Vince Bailey, Cecil Moore, David Tavares and Wayne Gillis for the Responding Party; Richard Anstruther and John Rapp for the Intervenor

BEFORE: Mary Anne McKellar, Vice-Chair

DECISION OF THE BOARD; October 9, 2001

1These are applications under section 96 of the Labour Relations Act, 1995 (the Act). Board File No. 0391-01-U alleges that the National Automobile, Aerospace, Transportation and General Workers of Canada (CAW – Canada), Local 1285 (the Union) contravened section 74 of the Act. Board File No. 0214-01-U alleges that he Union and the SKD Company (the Employer) contravened section 76 of the Act. The applications were filed on April 11, 2001 and were scheduled for consultation and hearing respectively on August 29, 2001.

2The Union was not represented by counsel. The Board advised the Union that there was no requirement that the parties appearing before the Board retain legal counsel and that the Board often conducts hearings where one or more of the parties are not represented by legal counsel. The Board also advised the Union, however, that consultations and hearings before the Board are legal proceedings and that the Board’s role is to adjudicate the issues in dispute. The Board cannot act as an advocate for or as an advisor to any party merely because legal counsel did not represent that party. To do so would be inconsistent with the Board’s role as a neutral adjudicator.

General description of the allegations

3Except for some minor differences in the remedial relief requested, the applications contained identical allegations of fact, recounting the applicant’s history of employment with the Employer, his difficult relations with a particular supervisor, the Union’s representation of him in connection with those difficult relations, and the circumstances surrounding his execution on November 1, 2000, of a “buy-out” package negotiated by the Union and Employer (the Settlement).

4The provisions of the Settlement included terms expressly precluding the applicant from making any claim against the Employer under the Act, and expressly acknowledging that the Union had fulfilled its obligation to represent him in the manner required by section 74 of the Act. The Settlement contained a further provision specifying that in executing the Settlement the applicant agreed and acknowledged having read, understood and freely agreed to its terms, and having had adequate opportunity to seek advice about the Settlement prior to its execution.

5If the Settlement is binding on the applicant, these applications must be dismissed. The applicant alleged in his applications, however, that the Settlement was not binding on him because he lacked the mental capacity to appreciate the nature and effect of signing it and he had not been provided with adequate opportunity to consult legal counsel in respect of it.

Preliminary motion to dismiss for lack of a prima facie case

6The Board convened a hearing to deal with three preliminary motions of the Employer in respect of Board File No. 0214-01-U. The Employer sought: to strike certain paragraphs of the applicant’s statement of fact for failure to comply with Rule 38 of the Board’s Rules of Practice; to have the application dismissed as against it for failure to state a prima facie case; and to have the application dismissed on the basis that the applicant had entered into written minutes of settlement. The Union supported the motions, but made no submissions.

7After hearing the Employer’s submissions with respect to all three motions, the Board directed the applicant to respond to the motion to dismiss for lack of a prima facie case. At the conclusion of those submissions, and after hearing brief reply submissions from the Employer, the Board made the following oral ruling:

The application in Board File No 0214-01-U does not state a prima facie case for the relief requested against either respondent under section 76 of the Act. That application is dismissed and the Board’s reasons will follow.

Reasons for dismissing the application in Board File No. 0214-01-U

8Section 76 of the Act reads:

No person, trade union or employers’ organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers’ organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

9The accepted test applied in respect of motions to dismiss for lack of a prima facie case may be briefly stated: assuming that all the facts alleged in the application are capable of being proven, could the Board grant the relief requested on the basis of those facts? The Employer’s counsel argued that the application in Board File No. 0214-01-U contained no allegations respecting the status of the applicant’s union membership, nor any allegations respecting any kind of interference with his attempts to assert any other rights under the Act.

10The applicant’s counsel argued that his client did not want to accept the Settlement and that his mental condition at the time and certain time constraints attached to the offer resulted in a situation in which he was coerced or intimidated into executing it. Furthermore, since the Settlement obliged the applicant to resign his employment, his counsel argued that it had the effect of causing him to cease to be a member of a trade union, such that the Union and Employer’s conduct in connection with the negotiation and execution of the Settlement contravened the prohibition in section 76 of the Act against compelling someone to cease to be a member of a trade union.

11An employee may seek to rescind his union membership, or a union may, as a matter of internal discipline, strip him of that membership. Neither of those events is alleged to have occurred here. An employee does not cease by operation of law to be a union member because of the cessation of his employment. There was simply no evidentiary basis on which the Board might conclude that the applicant ceased to be a member of the Union. In fact, such conclusion would be inconsistent with the term in the Settlement contemplating that a grievance in respect of the applicant might be filed to enforce compliance with its terms. The Board also notes that the application did not allege that the applicant had ceased to be a Union member, nor did it seek as a remedy the reinstatement of his Union membership. For these reasons, the Board found that the application in Board File No. 0214-01-U did not state a prima facie case.

Consultation in respect of Board File No. 0139-01-U

12After orally dismissing the application in Board File No. 0214-01-U, the Board then convened the consultation with respect to Board File No. 0139-01-U. The Board commenced by describing the consultation process, noting that the Vice-Chair plays a much more active role in a consultation than she would in a hearing in terms of questioning parties and their representatives, that the process involves determining what matters are in dispute and what are agreed, and that it normally does not involve testimony under oath. Finally, the Board indicated that the consultation would result in one of four outcomes:

• a decision not to inquire further into the application;
• the dismissal of the application;
• the granting of the application; or
• the scheduling of the matter for a full hearing before the Board.

Section 74 of the Act

13Section 74 of the Act reads 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.

Undisputed Facts

14During the consultation it became clear that the following facts are undisputed:

• That the Employer had previously (through the Union) offered the applicant a severance package, which he had rejected and he had continued working
• That the applicant viewed his supervisor’s behaviour towards him as constituting harassment and had communicated his difficulties to the Union.
• That the applicant’s difficulties with his supervisor culminated in the applicant’s laying of assault charges against the supervisor in or about July/August 2000.
• That the applicant was presented with a copy of the Settlement at a meeting sometime on October 31, 2000 (the exact time at which he obtained the copy is disputed);
• That he had the document in his possession overnight and brought it with him to a meeting he attended on November 1, 2000;
• That the Settlement was executed by the applicant, the Employer and the Union at that meeting on November 1, 2000;
• That pursuant to the Settlement, in addition to the terms referred to earlier in this decision, the applicant agreed to resign his employment, in consideration of which the Employer agreed to pay him the equivalent of 18 months salary (less certain specified deductions) in equal weekly instalments with provision of a mechanism for an accelerated but reduced lump-sum payment in the event the applicant obtained other employment within that 18-month period;
• That the Employer has made and continues to make payments pursuant to the Settlement from the week following his resignation (November 2000) to the present;

Disputed facts

15The applicant makes a number of assertions that the Union disputes, which the Board notes below.

• The applicant asserts that the Union refused his request to file a grievance in the summer of 2000 with respect to his relationship with his supervisor, and that the Union never even turned its mind to assisting the applicant in resolving what he characterized as a harassing course of conduct. The Union asserts that a grievance was filed, and furthermore that its endeavours in negotiating the Settlement were in furtherance of resolving the applicant’s workplace difficulties, including his relationship with his supervisor.
• The applicant says that he first found out about the Settlement when he attended the meeting on October 31, 2000, and that he thought the purpose of that meeting was to talk about his continued employment, and would not have attended had he known otherwise. The Union says that the applicant and the Union discussed the possibility of the latter’s negotiating the Settlement on the applicant’s behalf on at least two occasions during the month of August 2000, that the applicant specifically authorized the Union to approach the Employer about doing so, and that he knew that the sole reason for the October 31, 2000 meeting was to finalize those negotiations. In fact, the Union states that a meeting to finalize the deal had been previously scheduled but cancelled because the applicant was away from work for medical reasons. The Union stated that it did not take any steps with respect to the negotiation/execution of the Settlement except pursuant to the express directions of the applicant.
• The applicant asserts in his statement of facts that on October 31, 2000 he requested and was denied four days in which to consider the terms of the Settlement and to consult legal counsel. He stated that he was given the offer at 4:30 p.m. and had until 7:30 a.m. the following morning to consider it. The Union states that the applicant requested and was given the opportunity to consider the offer overnight, and that he had a copy of the Settlement by no later than 12:00 p.m., October 31, 2000.
• The applicant asserts that he was suffering from stress and lacked the mental capacity to appreciate the nature and effect of signing the Settlement, and that he was “shocked” when it was presented to him, and that he informed the Union of these matters. The Union denies that the applicant told them he did not understand the agreement, and states that although the applicant had been off work for medical reasons, he had been cleared to return to work by October 31, 2000, and its representative did not perceive the applicant to be in “shock”. Both the Union and the Employer state that on each of October 31, 2000 and November 1, 2000, the applicant and representatives of both the Union and the Employer had lunch together at the Employer’s expense to celebrate the deal.

Admissions

16In response to questions from the Board, the applicant admitted that he knew at the time he executed the Settlement that it was a legal document, intended to have legal consequences. Indeed, this is consistent with his allegation that he requested the opportunity to obtain legal counsel. There was never any suggestion that the applicant did not understand English or could not read the document.

17In response to questions from the Board, the applicant also admitted that he had a copy of the Settlement overnight, but that notwithstanding his assertion in his application that he did not understand the document, he did not seek to have anyone review and explain its terms to him.

Remedies sought

18The remedies sought are set out s follows in Schedule “A” to the application:

a. An order referring the matter to arbitration with counsel of the Applicant’s choice at the expense of the union;

b. A declaration that the Respondents [sic] breached the provision of both ss. 74 of the Labour Relations Act;

c. A declaration that Article 7.1 of the applicable collective agreement contravenes the provision [sic] of the Labour Relations Act and the Ontario Human Rights Code;

d. An order directing the Respondents [sic] to post and distribute to each and every member of the bargaining unit the Board’s decision in this Application;

e. An Order directing the Respondents [sic] to cease their coercive and intimidating conduct against the Applicant;

f. An Order reading down the provisions of Article 7.1 of the collective agreement to comply with the provision of the Ontario Labour Relations Act and the Ontario Human Rights Code;

g. Such other relief as counsel may advise and to the Board that [sic] seems just.

19Even assuming the success of the application, the Board is of the view that the remedies sought are either inappropriate, would serve no labour relations purpose, or are ones it is without jurisdiction to order.

20Applicant’s counsel conceded that the relief requested in (e.) was referable to the complaint of a section 76 contravention, and was not an appropriate remedy in an application with respect to section 74 of the Act.

21The relief requested in (c.) and (f.) was premised on section 54 of the Act, which was not referred to anywhere in the application. The Board is of the view that those are not appropriate remedies in view of the applicant’s allegations, even if the Board had the jurisdiction to amend collective agreements, which it does not. In any event, as Employer’s counsel noted, section 48(12) of the Act specifically authorizes an arbitrator to interpret and apply the Code notwithstanding the provisions of a collective agreement, such that the protections against discrimination in a collective agreement are already effectively coextensive with the protections contained in the Code.

22In paragraph (a.) the applicant seeks to have “the matter” referred to arbitration. Normally, a grievance is referred to arbitration. There has, however, been no grievance filed in this case, and there is no “matter” arising under a collective agreement that can be referred to arbitration. The applicant specifically did not want an order merely requiring the Union to file a grievance, since the Union might then decide not to proceed to arbitration with it. Of course the Union could do precisely that, so long as it did not act in contravention of section 74 in reaching that decision.

23Upon questioning by the Board, the applicant’s counsel asserted that the impact of his client’s alleged mental incapacity was to make the Settlement null and void. Notwithstanding that assertion, the application does not seek to have the Board make such declaration, nor has the applicant made any attempts to repudiate the Settlement or to return payments received under it. The effect of a finding that the Settlement is null and void, of course, would be that his resignation was ineffective, that the payments received must be returned, and that he would be in the same situation he was in immediately prior to the Settlement’s execution, that is, at the risk of having the Employer terminate him, and having the Union then decide whether or not to file and proceed with a grievance in respect of that termination, which could include the settlement or withdrawal of that grievance without his consent, so long as those decisions were not made in bad faith or in an arbitrary or discriminatory fashion.

24In any event, even if the Board could declare the Settlement null and void, or could now set it aside, it would not do so at this juncture, having regard to the extreme prejudice that would result to the Employer, who has honoured its obligations by making weekly payments for almost 10 months.

25The remaining two remedies sought in (b.) and (d.) would serve no useful labour relations purpose in the circumstances of this case.

Disposition

26Notwithstanding that there are a number of factual issues in dispute, the Board is of the view that this application can be disposed of without a full hearing on the merits. There are several grounds on which the Board would be justified in dismissing this matter or in exercising its discretion not to enquire further into it.

27The workplace issues relating to the applicant were resolved on his behalf by the Union pursuant to the Settlement, which was executed by the parties to the application. Contrary to the assertions in the application, and based on his own admissions, the Board finds that the applicant was aware that the Settlement was a legal document with legal consequences. The Board further notes that the applicant attended voluntarily at the November 1, 2000 meeting when it was clear that the sole purpose of that meeting was to finalize the Settlement, and after having had an opportunity to consider the offer overnight. The Board has repeatedly found that there is no element of coercion present sufficient to overturn a settlement or to successfully found a contravention of section 74 where the time constraints respecting consideration of it are much more stringent, noting that it is always open to an employee to refuse to sign on the spot, call the employer’s bluff and walk away. See Etobicoke General Hospital, [1999] O.L.R.D. No. 291 (at Paragraph 8). Furthermore, the statutory duty of fair representation does not oblige the Union to provide the applicant with an opportunity to seek legal counsel to review the terms of the Settlement. See Service Employees International Union, Local 2904, [1996] O.L.R.D. No. 459 (at Paragraph 20). There is no reason to set aside the Settlement or any part of it. Its terms preclude the application and its dismissal is warranted on that basis alone. The Board notes that this was the conclusion reached in Amcan Castings Ltd., [2000] O.L.R.D. No. 325, where the application involved assertions similar to those made here:

13. . . . The applicant found himself in a pressure situation on the day of the arbitration, a situation that frequently presents itself to litigants faced with last minute settlement offers on the day of a hearing. Even if the allegations regarding the union’s behaviour towards the applicant are true – and the union strongly denies them – they do not amount to the kind of treatment of the applicant that would cause the Board to set aside an otherwise binding agreement of the parties, an agreement that specifically states that the applicant received fair representation by the union. The union had carriage of the grievance, and as such, it was not obliged to permit the applicant to get further independent legal advice, nor was it required to seek an adjournment of the hearing so the applicant could more fully consider his options. . . Moreover, it bears noting that following the execution of the minutes of settlement, the applicant received all the benefits of the transaction, and never attempted to return them under protest. The applicant secured for himself the benefits of the settlement, and then filed this application.

28Even if the circumstances set out in the application could constitute a contravention of section 74, the remedies sought by the applicant would not be appropriate, nor was the applicant interested in pursuing any of the remedies that might have been available on such an application. These considerations would have persuaded the Board not to inquire further into the application, had it not determined that the application should be dismissed.

29The application in Board File No. 0139-01-U is hereby dismissed.

“Mary Anne McKellar”

for the Board