Ontario Labour Relations Board
3779-00-U John Steadman, Applicant v. Canadian Automotive Workers Union (CAW), Responding Party.
BEFORE: Bram Herlich, Vice-Chair.
APPEARANCES: John Steadman appeared on his own behalf; Geoff Dalziel, Tom Dattilol and Shawn Williams appeared on behalf of the responding party.
DECISION OF THE BOARD; September 12, 2001
This is an application filed pursuant to section 96 of the Labour Relations Act (the “Act”) alleging that the union has violated section 74 of the Act.
A consultation was held on August 24, 2001. The parties were provided with a full opportunity to make their submissions and to describe the relevant facts as they understood them.
Before, to the brief extent necessary for the current purposes, outlining the basic facts of the case, it may be helpful to describe the nature of the Board’s inquiry in cases of this type.
Section 74 of the Act regulates trade union conduct. It was for that reason that in a previous decision the Board (differently constituted) dismissed this application as against Mountain Springs Lodge (the “employer”). That dismissal underscores the important point that applications of this sort are not a vehicle or opportunity for unhappy employees to seek to have this Board adjudicate the merits of grievances which were either never filed or, if filed, were disposed of in a fashion unsatisfactory to the affected employee.
The focus in these types of applications is on the union’s conduct not necessarily on the merits of selected grievances. So long as the union has not acted in a fashion which is either arbitrary, discriminatory or in bad faith, the Board (whatever its views may be as to the merits of the grievance(s) in question) will not interfere.
With that background, I turn to a review of the salient facts. I note firstly, however, that the parties’ submissions and the materials filed do disclose some differences in the facts alleged. I have, for the most part, accepted the applicant’s description of events so long as I have been able to accept those as reasonably plausible.
The applicant had been employed by the employer for some six years. For the last year or so he held a maintenance position.
It would appear that allegations about the applicant’s conduct and attitude (allegations he does not accept as true) contributed to the demise of his employment relationship.
None of the parties before me were very precise about the specific dates of various events. However, the essential chronology appears to be as follows.
Sometime in the fall of 2000, the applicant was (on more than one occasion) called to meet with the employer’s general manager. Complaints about his conduct were brought to his attention. It appears that Peggy Varley, the union’s unit chairperson, may have been the source of, or at least the vehicle for some of these complaints which may have originated with another bargaining unit member.
At the conclusion of these meetings, the applicant was advised not to argue about the issue and not to discuss the matter with anyone further. No discipline was imposed at that time.
Despite the admonition it appears that the applicant went directly from the meeting to confront the bargaining unit employee in question. It appears that confrontation was quite upsetting for the other employee. The applicant was suspended as a result.
He discussed the discipline with Ms. Varley who advised him that she was in a conflict of interest in the case. A meeting was held, however, with the employer and the applicant, who was represented by another union official, Dolly Grant.
At that meeting the employer agreed to permit the applicant to return to work but declined to compensate him for any lost time thus converting his absence into a three day suspension.
A grievance was filed. The applicant approached Peggy Varley (despite her indication of conflict) to discuss the matter. In that discussion Ms. Varley warned the applicant that if he pursued his grievance he might risk termination. And while she assured the applicant that the union would challenge any such termination, she also cautioned him that that might take some time.
The applicant weighed the situation and decided to withdraw his grievance. (I note that the union has also indicated its view that there may well have been some grounds for discipline, and that the applicant may well have been in breach of the existing anti-harassment policy which provides for zero tolerance).
A number of weeks later the applicant was again called to meet with the employer on two separate occasions. The subject of his conduct and attitude were again raised by the employer. At the second of these meetings the employer asked the applicant if he recalled indicating his desire to resign at an earlier meeting. The applicant was told that if he left his maintenance position he could return to his former (lower rated) housekeeping position. The applicant denies having indicated any intention to resign (but I note without making any specific finding that there are contrary indications from materials filed with the Board).
In what was perhaps the most curious piece of the applicant’s presentation, he recounted that, at that meeting and, in particular, after not being able to pursue his (prior) grievance, he felt that he had no choice but to accept the employer’s proposal. Despite that, however, he also asserts that he told the employer he did not wish to resign and left the meeting.
The applicant did not approach the union for advice or assistance subsequent to that meeting.
Several weeks later, the employer posted the maintenance position the applicant had been performing. The applicant did not apply for the position and neither did he approach the union for any assistance or advice as a result of the posting. As he put it, he felt there was no point in grieving it – it probably would not go anywhere and if he grieved it he would probably be “left out on the street” so he did nothing.
The posting process was protracted. By some time near the end of February 2001 the maintenance position was awarded to another employee. The applicant did not approach the union for advice or assistance at that time.
Once the new maintenance person began to perform that job, the applicant returned to his former housekeeping position. He did not seek the advice or assistance of the union at that time.
Some weeks after returning to his former housekeeping position, the applicant did approach the union. He felt that although he was now performing the housekeeping duties that he should continue to be paid at the higher maintenance rate.
The union declined to advance that particular grievance.
It was at that point, on or about March 12, 2001, that the applicant “gave up” and resigned his employment.
The applicant now seeks an order from this Board to direct the union to file a grievance “to get his job back”:
On the basis of the materials before me and the presentation of the parties, I am not persuaded that the applicant makes out a case for any intervention by the Board in this matter.
In coming to that conclusion I have considered the following. First of all, there is no issue with respect to the applicant’s first grievance (regarding the three day suspension). The applicant decided to and did withdraw that grievance and it ought not to now be revived.
Further, and perhaps most significantly, despite all of the intervening events, despite the applicant’s own level of sophistication (he is a former union steward), the applicant candidly concedes that from the withdrawal of his first grievance (in November 2000) until March of 2001 and the eve of his ultimate resignation he never once sought the assistance, support or advice of his union.
And while the applicant may, for whatever reasons, have come to the conclusion that it was better not to complain or file any grievances, the union cannot be held accountable for that conclusion when its input was never even sought. I also note in this regard that despite the applicant’s “feeling” that the union was not supportive, there is no concrete positive evidence before me to support or even suggest such a conclusion.
Finally, when the applicant did approach the union for assistance, the only issue he raised as a concern was his desire to be paid at the maintenance rate for doing the housekeeping work. Even putting aside the union’s submissions about time limits and equal pay for work of equal value, I was not provided with any remotely plausible collective agreement basis upon which such a claim could be founded. In those circumstances, I cannot see how the union’s declining to advance a grievance without any apparent merit can possibly be suggested to amount to unlawful conduct.
Finally, even if the parameters of the complaint were broadened (and I do not believe it would be appropriate to do so) to include the applicant’s newly found desire to advance a grievance “to get his job back”, I cannot ignore the fact that the applicant chose to resign his employment.
There is some irony in that an earlier discussion where the applicant was warned that asserting his rights could have employment consequences, he chose to waive those rights despite having been told that the union would have advanced his suspension grievance. Subsequently, when faced with further employment difficulties, he chose to not even consult with the union until very late in the chronology and, even then, only raised the issue of his rate of pay. It is only after he resigned and filed this complaint that he appears to express any concern whatsoever about “getting his job back”.
In these circumstances I cannot fault the union for its alleged lack of representation. That representation was not sought and even when it ultimately was it was sought within a very narrow compass.
The application is dismissed.
“Bram Herlich”
for the Board