[20161 L.R.B.D. No. 13

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1 [20161 L.R.B.D. No. 13 IN THE MATTER of the Labour Relations Act, R.S.N.L. 1990, chapter L-1 and an application pursuant to Section 130 of the Act affecting Michael Gum Applicant - and - United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 9342 Respondent - and - Securitas Canada Limited Before: Sheilagh M. Murphy, Q.C. Chairperson William Parsons John McGrath Board Members Employer Introduction REASONS FOR DECISION Mr. Ginn has been employed with Securitas Canada Limited ( the employer ) since June 1, Approximately two weeks after he was hired, he moved from a site-based position to a mobile patrol position. This resulted in a change in his wage rate. From time to time, he also worked shifts as a security officer, which was another wage rate. He remained as a mobile patrol officer until February 2015, when he moved into a site guard position. This resulted in another change in his wage rate. 2. Mr. Ginn has alleged that there were errors with his pay on his first pay stub and on each pay stub thereafter. He claimed the employer failed to pay him for scheduled shifts, for unscheduled shifts, and for overtime. He also alleged that the employer failed to properly reimburse him for mileage and other expenses for his personal vehicle use at work. He attempted to resolve the complaints with the employer directly and later engaged the help of his union. His union representative reviewed the materials provided by Mr. Ginn, attended meetings with the employer, filed grievances on his behalf with respect to the payroll errors from November , and assisted with the settlement of Mr. Ginn s outstanding claims pursuant to that grievance. The union did not file a grievance for the alleged payroll errors from June - November Mr. Ginn did not ask that one be filed until after the settlement of the first grievances.

2 3. Mr. Ginn brought the within complaint against his union pursuant to s. 130 of the Labour Relations Act, RSNL 1990 c. L-1, arguing that the union acted in a manner that was arbitrary, discriminatory or in bad faith in how it handled his attempt to file a grievance with respect to the errors on his pay stubs and the alleged outstanding pay issues for The Board received and reviewed the application in this matter and it made the following order, rejecting the application: WHEREAS pursuant to Section 130 of the Labour Relations Act, the Labour Relations Board has received a complaint from Michael Ginn alleging that United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 9342 has acted in a manner that is arbitrary or discriminatory or in bad faith in the handling of a grievance he has filed or attempted to file with his bargaining agent against Securitas Canada Limited; AND WHEREAS the Board, following investigation and consideration of the representations of the interested parties, has determined that: 1. the grievance is timely; and, 2. the Respondent has not acted in a manner that is arbitrary or discriminatory or in bad faith in the handling of a grievance that the Applicant has filed or attempted to file against the Employer; NOW THEREFORE it is hereby ordered by the Labour Relations Board that the complaint be and it is hereby rejected. THE official seal of the Board was hereunto affixed and attested to by the Chief Executive Officer of the Board at the City of St. John s in the Province of Newfoundland and Labrador this 19th day of October, Mr. Ginn requested reasons for the Board s decision in this matter. These follow. Facts 6. The employer and the union admitted that Mr. Ginn experienced errors with his pay from June April, However, the union and the employer argued that the only 2

3 mid reason Mr. Ginn has not been paid the full amount he has requested for the pre-november 2014 pay irregularities is that he has been unable to provide to the employer and the union sufficient proof to justify the full amount claimed. 7. Mr. Ginn raised his overall payroll concerns with the union on September 27, 2014 in a conversation with Mr. Burry, the president of local The union advised him to sit with the employer, in accordance with the terms of the collective agreement, and attempt work out a solution before filing a grievance. Mr. Ginn followed the union s advice, pursuant to article of the collective agreement, and sat with the employer on a number of occasions in order to resolve the matter. 8. Article of the collective agreement states: It is generally understood that an employee has no grievance until he/she has first given his/her Branch Manager (BM) an opportunity to first adjust the complaint. If, after registering the written complaint, with the BM, and such complaint is not settled within five (5) working days or within a longer period, which may have been agreed to between the parties, in writing, then the following steps of the Grievance Procedure may be invoked; STEP ONE The grievance shall be initiated and submitted by the employee, in writing, on a Form approved by the Union and the Area Vice President or his/ her designate. 9. After much discussion and document review, the employer assessed Mr. Ginn s claim and sent him a cheque for an amount it thought was suitable. Mr. Ginn disagreed with the amount. He continued to negotiate with various representatives of the employer including individuals in human resources and the client service manager. From the latter part of 2014 January 2015 Mr. Ginn followed-up with Mr. Burry of the union to inform him of his progress or lack thereof in obtaining his compensation. Mr. Ginn admits that he did not seek to file a grievance during that period. 10. On February 5, 2015 Mr. Ginn sent a letter to the union and the employer which was meant to be a formal letter of grievance against Securitas for the payroll errors. The timeframe for the grievance was June 1, November The payroll errors which occurred after November 7, 2014 were the subject of other grievances filed on behalf of Mr. Ginn by the union. Those grievances have been settled and are not part of this complaint. 11. Neither the union nor Securitas treated the letter of complaint as a filed grievance in accordance with the collective agreement because it was not submitted on a form approved by the union, as articulated in section of the collective agreement (quoted

4 November above) and sent to the union area vice president for filing. In order for the union to be involved, the union admitted that a formal grievance must be filed. 12. The union agreed that it never did file a grievance form on Mr. Ginn s behalf with respect to the June- November 2014 payroll errors because the payroll complaint had already been addressed by the employer. The union argued that following the settlement of the other grievances, Mr. Ginn, the union, and the employer agreed that Mr. Ginn would need to provide additional documentation to the union and employer in order to warrant any further payment from the employer. Mr. Burry explained the grievance process to Mr. Ginn and Mr. Ginn understood that the form had to be completed in order to file a grievance. The union agreed that it would not file the further grievance until Mr. Ginn provided more documentation in support of his claim. Mr. Ginn argued that he did not have the documentation and that the employer was in a better place to provide it. He has not produced any further documentation since receiving the settlement cheque from the employer in Mr. Ginn argued that following the settlement of his complaints with respect to the November April 2016 payroll discrepancies, it was clearly his intent to file an additional grievance for June His correspondence to the employer and the union, he argued, ought to have been accepted as a formal grievance. He had separated the claims into distinct claims because he was dealing with a different individual at the employer s payroll department during the different periods and therefore wanted to keep them separate. 14. The employer offered to settle the outstanding amounts for 2014 and contacted the union. The union attempted to contact Mr. Ginn on february 6, 9, 11, 12 and 18, 2016 but received no answer. By the time the union representative was able to reach Mr. Ginn, he had received the letter of settlement offer from the employer. The employer offered to settle the 2014 claim on condition that Mr. Ginn provided a letter stating that he had resolved the issue of providing documentation for the gas mileage claim and other issues. Only then would a cheque be issued. The union and Mr. Ginn agree that Mr. Ginn was unable to provide further documentation in support of his remaining claims for The union and Mr. Ginn agree that Mr. Burry met with Mr. Ginn on multiple occasions to discuss the payroll records and to review the large volume of material given to him. Mr. Buny spent hours reviewing Mr. Ginn s personal records in support of the claims, and attended meetings with the employer on his behalf in an attempt to settle the claims in total. Mr. Ginn agreed that Mr. Burry negotiated a settlement of certain funds and negotiated away the employer s request for a written statement from Mr. Buny with respect to certain items claimed. 16. The Union argued that it was and remains willing to pursue Mr. Ginn s grievance with respect to the June November 2014 claim, but it needs Mr. Ginn to provide the documents necessary to prove his claim. The union, Mr. Ginn, and the employer admit 4

5 that the employer paid Mr. Ginn $1, (less deductions) on April 27, 2015 for the pre-november 2014 payroll errors based on the payroll documentation in the employer s file and the documentation provided by Mr. Ginn. The employer noted that when Mr. Ginn received those funds he was aware that he would receive no further payment for that period until he provided further documentation as required by the employer. The employer argued that that payment was settlement of the pre-november 2014 payroll errors, it was not grieved, and if Mr. Ginn had not agreed with it then he ought not to have accepted the money. The union agreed. 17. Mr. Ginn requested the following as a remedy from the Labour Relations Board: I want to be paid $5,418.22, including $ in non-taxable mileage. If the company or union will not offer a settlement I want arbitration to either force the payment or force an audit of my work to account for every hour and km, and to be paid for every missing hr/km for which it can be reasonably proven that I worked: using my records and those of Securitas and also want extra for interest and damages, if possible for time, effort, stress, and financial hardship from this situation. Issues: 1 Was the application timely? 2 Did the United Steelworkers of America, Local 9342 act in a manner that was arbitrary, discriminatory or in bad faith in the handling of Mr. Ginn s attempt to file a grievance? Issue 1: The application was timely 18. Section 130 of the Act states: 130. (1) An employee in a bargaining unit, who claims to be aggrieved because his or her bargaining agent has acted in a manner that is arbitrary or discriminatory or in bad faith in the handling of a grievance that he or she has filed or attempted to file with that bargaining agent in accordance with a procedure that has been established by the bargaining agent may make a written complaint to the board. (2) A complaint made under subsection (1) shall be made within 90 days from the date on which the complainant knew or, in the opinion of the board, ought to have known, of the action or circumstances, giving rise to the complaint. 19. There was no dispute that at all times material to this matter Mr. Ginn was an employee in the bargaining unit represented by the union. The question became whether Mr. Ginn brought his complaint to the board within 90 days of having known or when he ought to have known of the action or circumstances giving rise to the complaint. This begs the question: what action or circumstances gave rise to the complaint? At a meeting with the 5

6 union on April 7, 2016 Mr. Ginn was notified that the settlement agreement had been reached with respect to his claims for the payroll errors for The union argued that it never did tell Mr. Ginn it would not proceed with any further grievances; rather, it reminded him at that time that until he provided more information to support his claims the union would not be filing any further grievance with respect to the 2014 payroll errors. Mr. Ginn and the union admitted that Mr. Burry had a follow-up conversation with him to that effect on April 14, Mr. Ginn knew or ought to have known that the union was taking no further steps on his behalf with respect to the payroll errors by, at the latest, April 14, The complaint needed to be filed with the Board within 90 days of that date. The complaint was filed on July 6, There are 83 days between April 14 and July 6. Even if the timeline ran from the April 7, 2016 meeting, when he was initially told that the claim had been settled in its entirety unless Mr. Ginn provided more information, the application was filed on the 90th day and fell within the prescribed time limit. The Board therefore found that the complaint was timely. Issue 2: Did the United Steelworkers of America, Local 9342 act in a manner that was arbitrary, discriminatory or in bad faith in the handling of Mr. Ginn s attempt to file a grievance? 21. Mr. Ginn argued that the grievances filed on his behalf by the union with respect to all wage claims from November April 2016 are not the subject of the within complaint. The board must determine whether the Union acted in a way that was arbitrary, discriminatory, or in bad faith in how it handled Mr. Ginn s payroll irregularity complaints. To begin, there was no evidence put forward to show that there was anything underhanded going on or that there was any ill will or ill intent on part of the Union and no allegation of bad faith behaviour. There has been no argument or evidence in support of an argument of bad faith behaviour on the union s behalf. Likewise, there was no argument or evidence put forward alleging that Mr. Ginn is being treated any differently than any other union member has been in similar circumstances i.e. he has been treated in a way that is discriminatory. There having been no allegation of bad faith or discriminatory action on the union s part, the Board undertook an analysis as to whether the Union s treatment of this employee was arbitrary. 22. Section 130 of the Labour Relations Act states: Complaints of employees to board 130. (1) An employee in a bargaining unit, who claims to be aggrieved because his or her bargaining agent has acted in a manner that is arbitrary or discriminatory or in bad faith in the handling of a grievance that he or she has filed or attempted to file with that bargaining agent in accordance 6

7 the with a procedure that has been established by the bargaining agent may make a written complaint to the board. (2) A complaint made under subsection (1) shall be made within 90 days from the date on which the complainant knew or, in the opinion of the board, ought to have known, of the action or circumstances, giving rise to the complaint. 23. Mr. Ginn alleges that the union s behaviour was arbitrary because the union did not follow the proper grievance procedure in accordance with the collective agreement and that the union unfairly accepted the employer s position that the onus was on him to provide additional proof of his outstanding claim for The union agrees that it did not follow the proper grievance procedure in this matter. In fact, the employer initially denied all Mr. Ginn s complaints as he had failed to file a grievance within the timelines prescribed in the collective agreement. However, Mr. Burry convinced the employer to consider Mr. Ginn s claims regardless of any deadline set out in the collective agreement in order to appropriately settle Mr. Ginn s claims through the grievance process. It was this failure to follow the strict rules of the collective agreement that arguably allowed the union to file the four successful grievances which resulted in full compensation to Mr. Ginn, with the exception of the full settlement he sought for the 2014 payroll discrepancies. 25. With respect to the argument that the union unfairly accepted the employer s position that the onus was on him to provide additional proof of his outstanding claim for 2014, the union argued that before it files a grievance, it needs to understand what it is that is being claimed. The union had spent considerable time and resources reviewing Mr. Ginn s documentation, ing him regularly, answering his telephone calls and enquiries, meeting with him, meeting with the employer on his behalf, and filing at least four grievances with respect to the payroll irregularities. The union successfully managed to obtain settlements for the full amounts claimed by Mr. Ginn from November 2014-April The only remaining piece was the settlement of the June-November 2014 claim. The union noted that Mr. Burry didn t have enough documentation to justify filing the grievance for those alleged outstanding funds, in light of the settlement Mr. Ginn had already received for that period, and left it open to Mr. Ginn to provide sufficient documentation to back up his claim or to walk away. 26. It is important to remember that the decision whether to file a grievance and whether to proceed to arbitration rests squarely with the union and not with the bargaining unit member. The duty of fair representation is important union must exercise its discretion to file a grievance (or not file one) carefully. However, the fact that a union did not file a grievance does not automatically equate to a finding of arbitrary, discriminatory or bad faith behaviour by the union. 7 9vft

8 November The only participants in the arbitration process contemplated by the legislation are the union and the employer. Accordingly, apart from specific provisions in the agreement, only the employer and the union can participate in grievance procedure meetings, in selecting an arbitrator, in settling or withdrawing the grievance, in raising a preliminary objection, or in taking carriage of the proceedings. (Brown & Beatty, Canadian Labour Arbitration 3rd ed. at 3:12) (emphasis added) 27. While the employee s wishes ought to be taken into account, ultimately it is the union s decision as to whether to file the grievance with the employer. The union must be sure not to treat an employee s concerns in a perfunctory manner and must be sure to make an informed decision. Regardless of how strongly an employee may feel otherwise, it is the union s decision to make. As long as the union makes the decision in good faith, having given proper consideration to the matter, without being arbitrary or discriminatory or acting in bad faith or with gross negligence in its decision-making process, and acts in accordance with the provisions in the collective agreement, the board must not interfere with the union s decision to file (or not file) a grievance and proceed (or not proceed) to arbitration. 28. Mr. Ginn argued that it was solely the union s conduct with respect to the period of June- November 2014 that ought to be considered in this matter, but the board disagrees. It is important to look at the union s conduct throughout its handling of Mr. Ginn s payroll complaints in order to get a true picture of what it is the union did or failed to do in its representation of this individual. 29. The uncontested evidence was that the union s representative, Mr. Burry, provided Mr. Ginn with guidance and support from the time he first notified the union of his complaint. He advised Mr. Ginn of his obligation to try and discuss with the employer pursuant to section of the collective agreement and, when Mr. Ginn was unable to go further in his negotiations with the employer, Mr. Burry then spent hours reviewing all Mr. Ginn s documentation, to the point that he would consider the documents in 6-week batches so as to ensure he was able to review them all and to ensure that each issue could be dealt with for specific timeframes. He met with the employer s representatives and with Mr. Ginn on multiple occasions, had regular and telephone contact with Mr. Ginn, and negotiated a settlement with the employer which resulted in Mr. Ginn obtaining everything he asked for, with the exception of a portion of his alleged outstanding payments from June Mr. Burry also negotiated away the employer s requirement for a release of any further claims for 2014 if Mr. Ginn took what he regarded as a partial payment of the June - November 2014 claim. 8

9 30. With respect to the six months remaining in the 2014 claim, the evidence was clear: the union notified Mr. Ginn that without further information to support the claim, no grievance could be filed as there was nothing to support the grievance. The union reviewed all potential outcomes based on the documentation it had been provided by the employee and the employer and was unable to determine that the grievance for 2014 had merit, so it decided to not file it until such time as the documentation was supplied. 31. There are five general principles governing a union s duty of representation with respect to grievances (known as the Gagnon principles): 1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit. 2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion. 3. This discretion must be exercised in good faith, objectively and honestly, afier a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other. 4. The union s decisions must not be arbitrary, capricious, discriminatory or wrongful. 5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility toward the employee. Gagnon v. Canadian Merchant Service Guild [1984] 1 S.C.R. 509 (emphasis added) 32. In John P. Nelson and United Brotherhood of Carpenters and Joiners ofamerica, Local 579 and Chester Dawe CANADA Inc.( A Subsidiary of RONA),( [2010] L.R.B.D. No. 5) this board has further discussed those principles and their treatment by the Ontario labour relations board: 20. The Gagnon principles are particularly appropriate given that Section 130 of our Act was amended, in 2006, to encompass conduct which is arbitrary or discriminatory or in bad faith. The Board has further analyzed whether a bargaining agent has acted in a manner that is arbitrary, discriminatory or in 9

10 bad faith and the Board has referred to the Ontario Labour Relations Board decision in Pasquale Mastroianni and International Union and Allied Craftworkers, Local 28 et al. [2005] O.L.R.D. No at paragraphs 6 and 7, as cited by this Board in Re Kevin Burke and Newfoundland and Labrador Association and Memorial University the Ontario Board (and then this Board) indicated what is meant by these terms: of Bricklayers of Public and Private Employees of Newfoundland, [2007] LR.B.D. No. 17 where Honest mistakes, innocent misunderstandings, simple negligence, or errors in judgment will not, of themselves, constitute arbitrary conduct within the meaning of section 69 right to be wrong. Terms like implausible, so reckless as to be unworthy of protection, unreasonable, capricious, negligent, and demonstrative of a non-caring attitude have been used to describe conduct found to be arbitrary within the meaning of section 69 Such strong words are applicable to the more obvious cases but may not accurately describe the entire spectrum of conduct which could be considered to be arbitrary. As the demonstrates, whether conduct will be considered to be will depend on the circumstances. (emphasis added) particular jurisprudence arbitrary 21. The [Ontario] Board also commented on what constitutes arbitrary representation by a trade union in adopting the decision of the Ontario Labour Relations Board in I.TE.INDUSTRIES LIMITED, [1980] OLRB Rep. July 1001 at paragraph 19: It is clear that in order to establish a breach of section 60 [now section 74], a complainant must do more than demonstrate an honest mistake or even negligence. The union must have committed a flagrant error consistent with a non caring attitude, or have acted in a manner that is implausible or so reckless as to be unworthy of protection. 33. There was no evidence to support an allegation that the union was negligent in how it handled Mr. Ginn s attempt to file a grievance. There was no flagrant error, no implausible or reckless behaviour by the union, and no unreasonable or capricious behaviour. The board did not find that the union acted in a non-caring or perfunctory manner toward Mr. Ginn s grievance 10

11 34. The Union argued that the application ought to be dismissed because the union s actions in the handling of the grievance were not arbitrary, discriminatory, or in bad faith. The board agreed. Mr. Ginn s complaint is that in deciding to not file the grievance the union acted in a manner that was arbitrary. The board disagrees. There was no callous disregard for Mr. Ginn s circumstances. The union didn t fail to communicate with him or fail to take his complaint seriously: Mr. Burry worked diligently to try and find a resolution of Mr. Ginn s complaints and was largely successful in his efforts. In taking a measured account of the information available to support the requested grievance, the union made an informed decision to not proceed with the grievance until it had appropriate documentation in order to support the claim. The documentation was not produced, so the union chose not to proceed with a grievance that, in its measured opinion, it could not win. The board found that decision was not made in a manner that was arbitrary, discriminatory or in bad faith and therefore dismissed the application. Conclusion 35. for the reasons articulated above, the board determined that the application was filed in a timely fashion. The Board denied the application on the merits and found that the union did not act in a manner that was arbitrary, discriminatory or in bad faith in how it handled Mr. Ginn s attempt to file a grievance with respect to the 2014 payroll errors. 36. Because the board dismissed the application outright, it did not need to address whether the relief sought by Mr. Ghm was appropriate or within the board s jurisdiction. 37. The Board made its order accordingly. DATED at St. John s in the Province of Newfoundland and Labrador this 9th day of December, for,oard Sheilagh Mt Murphy Q.C. Chairperson 11