Henry Roos v. United Food and Commercial Workers International Union, Locals 175 and 633, CLC, AFL-CIO, 2001 CanLII 9240

1641-01-U Henry Roos, Applicant v. United Food and Commercial Workers International Union, Locals 175 and 633, CLC, AFL-CIO, Responding Parties.

BEFORE: David A. McKee, Vice-Chair.

DECISION OF THE BOARD; November 26, 2001

This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995, ch. 1 (“the Act”) in which the applicant alleges that his bargaining agent has violated the duty of fair representation set out in section 74 of the Act. The Board is not obliged to hold a hearing in such matters. Section 99(3) of the Act provides:

99.(3) The Board is not required to hold a hearing to determine a complaint under this section.

Further, Rule 46 provides as follows:

Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.

The responding party (“the Union”) has sought dismissal of this complaint on the grounds that the applicant has failed to plead a prima facie case, i.e. pursuant to Rule 46.

The application itself sets out a detailed history of the applicant’s medical history and the problems associated with his attempts to return to work. Understandably, his emphasis in this statement was on the merits of his case. The Union filed a response which did not so much contradict this set of facts as complemented it with facts known to the Union about how the matter had progressed through the grievance procedure. In order to be certain that I had all of the relevant facts on which the applicant would seek to rely in advancing his case, I directed him in a decision dated October 19, 2001 to respond to the Union’s pleadings. He did so in admirable detail.
The facts in this decision are taken exclusively from the facts as alleged by the applicant, and those facts asserted by the Union with which he agrees. Where the Union has asserted a fact with which the applicant disagrees, I have disregarded that statement. The statement of facts below does not include all of the facts set out in the application. Many of these are undoubtedly important to Mr. Roos on a personal level, and have, no doubt, fuelled his sense of having been poorly treated by his Union and his employer. However, not all of them are relevant to the issue before the Board, and I have selected only those which are germane to the issues arising out of section 74 of the Act.
The facts are as follows. Mr. Roos began employment with Firestone Textiles on April 18, 1970. The bargaining agent for employees in this plant was originally the Textile Workers of America, Local 115. Ultimately, this Local Union merged with the United Food and Commercial Workers into a separate local and then ultimately into United Food and Commercial Workers, Local 175. There is no issue as to the continuity of the union party throughout this time. Mr. Roos sustained two injuries to his left hand and wrist, one in 1987 and one in 1989. This seriously affected his ability to work. In 1990 Firestone Textiles attempted to discharge him, although he was reinstated pursuant to a settlement arranged by the Ontario Human Rights Commission. He attempted to return to work in July of 1991, but found that his injuries to his hand and wrist made it impossible for him to perform the functions of his job. In 1992, he underwent surgery which he describes as “tan carpal fusion”, which involved both a bone graft and the insertion of a plate (although the plate was later removed).
In 1994 he sought to return to work. Firestone refused on the grounds that he was unable to perform the functions of his job. No grievance was filed at that time.
In 1995, he was awarded a permanent partial disability pension, amounting to 13.5% of his pre-accident wages. He had further discussions with his employer about returning to work or receiving termination pay in 1996 and 1997, neither of which produced any result. In 1999, he sought to return to work once again. Again, Firestone refused on the grounds that he was unable to perform the functions required of him in his job. On August 10, 1999, after some difficulty in contacting the Union, or getting the grievance signed, he did in fact file a grievance seeking reinstatement. This matter was progressed through the grievance procedure and the employer denied the grievance at each stage. There is a dispute about the nature of settlement discussions which took place in April 2000. For the purposes of this decision, I accept the version given by Mr. Roos, although in the end, it is sufficient to note that no settlement was achieved.
On January 7, 2001 a medical report was obtained from a Dr. Tom McDonagh. This report appears to be a detailed medical report and was based on examinations of roughly an hour and a half each on November 17, 2000, November 22, 2000 and December 13, 2000, as well as a visit to the Firestone plant in Woodstock on December 22, 2000. Dr. McDonagh also had the medical file from the orthopaedic surgeon who performed surgery on Mr. Roos. The conclusion reached by Dr. McDonagh is as follows:

“My opinion is that this man has a permanent partial disability of his left wrist area. He is not able to do the essential duties of his pre-accident job as described in 1989. He is capable of working with his left hand and wrist, but this is within the limitations of his now fixed joint. If this needs to be clarified any further, I would suggest a Functional Assessment Evaluation (“FAE”)/Job Analysis if some suitable employment was available or put forward. This will give a better idea of his limitations in light of his job expectation”.

In fact, an FAE was performed on January 26, 2001 which noted the limits of his ability to lift, push and pull, in terms of weight limitations and noted that he could not bend or twist his wrist due to a lack of range of motion. The assessment goes on to say that his left wrist is permanently restricted in all movements. If Mr. Roos were to return to work, then he ought to do so on a very limited basis, starting at four hours per week.
Mr. Roos indicated that at one time, the report from Dr. McDonagh was produced in only a partial form. However, he does not dispute the accuracy of that report, nor that it was available for the Union.
Mr. Roos does not suggest that there was a modified job which could have been created to accommodate his disability. That is, he has not suggested a series of job tasks or functions which might logically be put together to create a job which he could perform. This apparently has never been a subject of discussions among any of the parties.
On the basis of this information, the Union refused to process the grievance filed by Mr. Roos in August of 1999 to arbitration. Mr. Roos was informed of this decision and exercised his right to appeal the matter internally within the Union, up to the level of the President of the Local. The Union’s decision remained unchanged. It is that decision which is the basis of this complaint.
Grievances involving the return to work of persons who have suffered an injury or medical problem are difficult cases. The facts are frequently difficult to ascertain, and there is always a certain amount of unpredictability in determining when and to what an employee is able to return to work. In this case, Firestone refused the applicant’s request to return to work twice. He did not grieve those refusals, and accordingly, they are not relevant for the purposes of this decision.
He did grieve a refusal to permit him to return to work in August of 1999. The Union responded as it ought to have done at that time. Regardless of how the medical assessment was arranged, this was clearly a thorough and careful assessment. The suggestion of a functional assessment evaluation was taken up and performed. It was that information that the Union had to base its decision on.
Section 74 sets a standard to which unions must adhere in the representation of members in the bargaining unit. The section provides:

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.

The section does not require that the Union make the “right” decision in every case. It requires that the union not be arbitrary, discriminatory or act in bad faith. Nothing in Mr. Roos’ pleadings suggests bad faith or discriminatory behaviour, and indeed, Mr. Roos does not allege anything of the sort. The issue then is whether or not, in refusing to proceed to arbitration, the Union was arbitrary. The term “arbitrary” as it is used in section 74 has been defined to mean a number of things:

(a) committed a “flagrant error” consistent with a “non-caring attitude” or to have acted in a manner “so reckless as to be unworthy of protection” (ITE Industries, [1980] OLRB Rep. July 1001 at para. 19);

(b) failed to direct its mind to relevant issues (Town of Oakville, [1984] OLRB Rep. May 731 at para. 14);

(d) failed to act on available evidence or to conduct a meaningful inquiry to obtain the information necessary to make a decision (North York General Hospital, [1982] OLRB Rep. Aug. 1190 at para. 25);

(e) to have acted in a manner which is indifferent, summary, capricious or perfunctory:

… where the decision maker, on the other hand, misapprehends facts and circumstances which the Board considers “patent” and arrives at an “almost perverse” understanding of the facts and circumstances, the Board will conclude that union effectively barred itself from “directing its mind to the real question”, and that in so doing it has acted in an arbitrary fashion: The Corporation of the County of Hastings, [1976] OLRB Rep. Nov. 1072 ¶22. Where it is difficult to see a rational pathway between the facts and circumstances said to have been taken into account and the interests said to have been balanced on the one hand, and the result on the other, then there arises a rebuttable presumption that the decision was arbitrary. (Susan Shoes Ltd., [1983] OLRB Rep. Dec. 2067 at para. 38).

That is, the Board does not answer the question of whether the union’s actions were the “correct” ones in the circumstances or whether they are the actions the Board itself would have taken. The issue is whether the union’s actions fall outside any reasonable standard of behaviour.

In this case, it is hard to know what else the Union could have done. It addressed the correct issue, that is, whether or not Mr. Roos was able to return to work. It sought the relevant evidence from medical sources to determine whether or not there was the factual basis for a case. Again, there is no allegation by Mr. Roos that there was a modified set of job duties that he could have performed. The question therefore is whether or not he could return to his previous job. Given the statements in the medical assessments, the Union’s decision not to proceed to arbitration appears to be entirely reasonable.
However, it is not necessary for me to find that the Union was correct. It is enough to find that it was not arbitrary in its handling of the applicant’s grievance. On the facts as stated or agreed to by the applicant, there is nothing on which this Board could make a finding of arbitrariness. There is, therefore, no reason to hold a hearing or a consultation in this matter. I have before me all of the facts Mr. Roos wishes to put forward, and accepting them at their highest, they do not make out a case of arbitrariness on behalf of the Union.
This application is dismissed.

“David A. McKee”

for the Board