- and - United Steelworkers, Local 5442, - and - BEFORE: W.D. Hamilton, Chairperson

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1 Manitoba Labour Board Suite 500, 5 th Floor Hargrave Street Winnipeg, Manitoba, Canada R3C 3R8 T F DISMISSAL NO IN THE MATTER OF: THE LABOUR RELATIONS ACT IN THE MATTER OF: An Application by - and - S.A.N., - and - Applicant, United Steelworkers, Local 5442, - and - GERDAU MANITOBA, Bargaining Agent/Respondent, Employer. BEFORE: W.D. Hamilton, Chairperson This Decision/Order has been edited to protect the personal information of individuals by removing personal identifiers. WHEREAS: SUBSTANTIVE ORDER 1. On February 3, 2012, the Applicant filed an application (the Application ) with the Manitoba Labour Board (the Board ) seeking certain remedies for an alleged unfair labour practice committed by the Respondent, United Steelworkers Local 5442 (the Union ), contrary to Section 20 of The Labour Relations Act (the Act ). The Applicant, who was a probationary employee at the time of his dismissal on September 30, 2011, alleges that the Union breached its duty to properly represent him in respect of this dismissal. In the /2

2 DISMISSAL NO Page 2 Application, the Applicant alleges Since I did not meet the probationary hours, the Union would not help to defend me from an unfair termination. In particular, the Applicant alleges the Union failed to take proper steps or do a proper investigation in respect of the Applicant s dismissal. The Applicant alleges that he believes the Union did not fairly represent him as our contract directs and they did not follow the guidelines set out in Section 20 the Act. 2. As to remedial relief, the Applicant requests the Board order that the Union proceed with a grievance on the actual reasons of my termination and prove that I was wrongfully dismissed. 3. On March 2, 2012, following an extension of time, the Union, through Counsel, filed its Reply asserting that the Applicant has failed to establish a prima facie case under Section 20 of the Act. The Union asserts that the Application fails to disclose that, in representing the rights of the Applicant under the collective agreement between the Union and the Employer (the Agreement ), that the Union acted in a manner which is arbitrary, discriminatory or in bad faith or has failed to take reasonable care to represent the interests of the Applicant respecting his termination of employment. The Union asserts that, as the Applicant was terminated by the Employer during the probationary period established by the Agreement, the obligations of the Union must be tested against the probationary provisions in the Agreement itself which allow a probationary employee to be discharged without notice at any time in the sole and exclusive discretion of the Employer and that any such discharge shall be deemed to be for just cause and, further, that neither the Applicant nor the Union have the right to access the grievance and/or arbitration procedure in the event of a discharge. The sole recourse for an employee is to have a meeting with the Employer and obtain reasons for his/her termination. These requirements were fulfilled. The Union further asserts that, in light of the foregoing limitations contained in the Agreement, it took all reasonable steps to provide assistance to the Applicant and none of the steps taken by the Union can be characterized as arbitrary, discriminatory, in bad faith or nor did the Union fail to take reasonable steps in relation to his termination as a probationary employee without the right to grieve. 4. The Employer did not file a Reply to the Application. 5. The Board has reviewed and considered the material filed by the Applicant and the Union. A summary of the material facts relevant to the disposition of this case is as follows: a) By letter dated April 13, 2011, the Employer made an offer of employment to the Applicant for the position of Melt Shop Helper, which is a bargaining unit position. The projected start date was April 25, 2011 although the Application states that the Applicant started to work for the Employer on or about April 18, This discrepancy is immaterial..../3

3 DISMISSAL NO Page 3 b) Article 9.04 of the Agreement addresses the rights of probationary employees. This provision states as follows: 9.04 Effective May 25, 1997, a newly hired employee shall be on probation for an accumulated one thousand and forty (1,040) regular hours worked (exclusive of any overtime hours worked) since his original date of hire. During the probationary period, the employee shall be subject to the terms of this Agreement except where specifically excluded elsewhere in this Agreement and except that: (a) he may be discharged without notice at any time in the sole and exclusive discretion of the Company and such discharge shall be deemed to be for just cause; and (b) neither he nor the Union on his behalf shall have access to the grievance and/or arbitration procedure in the event of his discharge, his lay-off or the failure to recall him after lay-off; and (c) It is agreed that in the event the Company terminates any probationary employee in accordance with (a) above, the Company shall meet with the affected employee and the Union and provide reasons thereof. (d) It is agreed that upon completion of 520 regular hours worked (exclusive of any overtime hours worked) since his original date of hire, a probationary employee will be entitled to benefits, excluding weekly indemnity. Upon successful completion of the probationary period, the employee shall be credited with six months of service. (Emphasis added) c) At all material times, the Applicant was a probationary employee governed by Article 9.04, supra. d) Approximately 11 to 12 weeks into the Applicant s probationary period the Applicant was cautioned by a Shift Supervisor, in the presence of a Union Representative, that he was overloading the first charge bucket by three to four thousand pounds. It appears that the parties accepted this incident related to a training issue and the Applicant was given instructions not to exceed the scrap weight limit. e) Some four to five weeks later, a Supervisor warned the Applicant to be careful regarding how many skulls he was loading into the first charge bucket and, according to the Application itself, the Applicant acknowledged receipt of this warning..../4

4 DISMISSAL NO Page 4 f) On September 30, 2011, representatives of the Company met with the Applicant, who was accompanied by a Union Representative. At this meeting the Applicant was told that the Employer was letting him go. The reason advanced at this time was to the effect that things are not working out. Based on inquires made by the Applicant (or his father), the President of the Union, Mr. Peter Mandryk ( Mandryk ), convened a meeting with Employer and Union representatives on October 28, 2011, the purpose of which was to discuss whether or not the Applicant had actually worked hours beyond the probationary hours of 1,040 (exclusive of overtime). [See Article 9.04, supra, at sub-paragraph (b)]. There is no dispute that the result of this meeting confirmed that the Applicant was still on probation at the time of his dismissal on September 30, g) On or about November 15, 2011, the Human Resource Manager of the Employer verbally advised the Applicant that the two reasons he had been let go was because of the overloading of the scrap bucket and the incident with the skulls (see page 2 of the Statement attached to the Application). h) On or about October 4, 2011, the Union filed a grievance with the Employer at the third stage of the grievance procedure established under the Agreement alleging that the Employer had violated the Agreement as a whole, including Articles 9.04 and 9.05, in particular, as well as Section 80 of the Act by unjustly terminating the Applicant on September 30, The Board accepts that this Grievance was filed prior to the meeting with Employer officials on October 28, 2011 at which time the hours worked by the Applicant were subject to scrutiny in order to ensure that he was still a probationary employee at the time of his dismissal. The Grievance is attached as Tab 1 to the Union s Reply. Further, on October 19, 2011 [see Tab 2 of Union Reply], the matter of the Applicant s termination was advanced to arbitration. Again, this was prior to the meeting of October 28, 2011 and the Board accepts the Union s explanation that it was done to preserve the rights of the Applicant until all matters had been investigated by the Union, particularly those issues relating to the probationary status of the Applicant. i) By letter dated November 10, 2011, the Union notified the Employer that it was withdrawing, on a without prejudice and without precedent basis, the Grievance relating to the Applicant s dismissal [see Tab 3 of Union Reply]. The Board accepts the essence of the following statements contained in Paragraph 9 of the Union s Reply: To summarize, the Applicant s own materials disclose that he was terminated in accordance with the collective agreement as a probationary employee, that the Union conducted an investigation into the reasons of the termination, that the Applicant received a meeting.../5

5 DISMISSAL NO Page 5 and the reasons for his termination, that the Union conducted an investigation into whether the Applicant had achieved the necessary hours sufficient to complete his probation, and that the Union took appropriate steps to ensure the Applicant received a meeting with the Company and the reasons for his termination. 6. In the context of the material facts recited in Paragraph 5 and after considering the legal principles applied by the Board in its decisions defining conduct that constitutes breaches of Section 20 of the Act, the Board has DETERMINED the following: a) An oral hearing is not necessary as this matter can be determined by a review of the written material filed by the parties; b) Section 20 of the Act provides as follows: 20 Every bargaining agent which is a party to a collective agreement, and every person acting on behalf of the bargaining agent, which or who, in representing the rights of any employee under the collective agreement, (a) in the case of the dismissal of the employee, (i) acts in a manner which is arbitrary, discriminatory or in bad faith, or (ii) fails to take reasonable care to represent the interests of the employee; or (b) in any other case, acts in a manner which is arbitrary, discriminatory or in bad faith; commits an unfair labour practice. As the Applicant was dismissed, it is sub-section (a) of Section 20 which applies in these circumstances. c) The onus is on the Applicant to establish a prima facie violation of Section 20 of the Act. d) A summary of the meaning ascribed to the terms arbitrary, discriminatory and bad faith by the Board appears in Budde v. Canadian Union of Public Employees (2009), 164 C.L.R.B.R. (2d) 182 at page 190:.../6

6 DISMISSAL NO Page 6 "Arbitrary" conduct has been described as a failure to direct one's mind to the merits of the matter, or to inquire into or to act on available evidence, or to conduct any meaningful investigation to justify a decision. It has also been described as acting on the basis of irrelevant factors or principles, or displaying an attitude which is indifferent, summary, capricious, non-caring or perfunctory. Flagrant errors consistent with a non-caring attitude may also be arbitrary, but not honest mistakes, errors of judgment, or even negligence. "Bad faith" has been described as acting on the basis of hostility or ill-will, dealing dishonestly with an employee in an attempt to deceive, or refusing to process the grievance for sinister purposes. A knowing misrepresentation may constitute bad faith, as may conceal matters from the employee. The term "discriminatory" encompasses cases where the union distinguishes among its members without cogent reasons... e) The term reasonable care has been defined by the Board to mean the degree of care which a person of ordinary prudence and competence would exercise in the same or similar circumstances. See, for example, Perrin v. Manitoba Nurses' Union, [2007] 139 C.L.R.B.R. (2d) 152 and Henry v. C.U.P.E., Local 500, 2009 CLLC para f) The duty of fair representation as set forth in Section 20 of the Act does not impose perfection as the standard in defining the duty of diligence assumed by the union. The Board has previously stated that it does not sit in appeal of decisions made by unions, does not decide if a union s opinion of the likelihood of success of a grievance was correct and does not minutely assess and second guess every union action. The Board does not fasten upon minor flaws in a union s handling of a grievance as the basis to find a breach of Section 20 of the Act. g) Under Section 20, it is not the function of the Board to assume the role of a surrogate arbitrator and decide whether the Applicant would have succeeded if a grievance was taken to arbitration. In assessing the conduct of a union, an objective standard of review and not a subjective standard of review must be used, meaning that the proper question to be asked is whether the Union s decision is one that reasonably could have been made in the circumstances. h) Against the backdrop of these general principles, the Board must have regard to the specific issue in dispute under a collective agreement because the standards imposed on the Union must relate to the representational obligations of the Union regarding the rights of any employee under the collective agreement, to track the wording of Section 20 itself..../7

7 DISMISSAL NO Page 7 i) In this case, whether or not the Applicant has established a prima facie case that the Union breached Section 20 (a) of the Act, must be assessed in the context that, at all material times, the Applicant was a probationary employee under the Agreement whose rights were specifically defined by Article 9.04 of the Agreement [quoted, supra, at Para 5(b)]. In that provision, the parties have agreed that a probationer may be discharged without notice at any time in the sole and exclusive discretion of the Company and such discharge shall be deemed to be for just cause and, further, neither the probationary employee (here, the Applicant) nor the Union on his behalf may access the grievance/arbitration procedure in the event of a discharge. Article 9.04 goes on to provide that where an employee is terminated during probation then the obligation on the Employer is to meet with the affected employee and the union and provide reasons therefor. The Board cannot amend these provisions, binding as they are, on the Employer, the Union and the Applicant. j) Absent a specific exception negotiated into a collective agreement, the rights of all employees are governed by the provisions of Section 79(1) of the Act under which every collective agreement must contain a provision requiring that an Employer have just cause for disciplining or dismissing any employee in the unit covered by the agreement. Section 79(2) of the Act states that where a collective agreement does not contain such a provision then it is deemed to contain a provision to that effect (i.e. incorporating the just cause standard). However, Section 79(3) of the Act, in respect of probationary employees, authorizes the parties to a collective bargaining regime to negotiate a provision which ousts the just cause standard. Section 79(3) of the Act states: Where the parties so provide in the collective agreement, the provision which is required or deemed to be in the collective agreement under this section shall not apply to the probationary period of any employee in the unit bound by the collective agreement. (Emphasis added) Here, the Employer and the Union have negotiated a provision contemplated by Section 79(3) of the Act and have done so in explicit terms in Article 9.04, supra. k) The existence of Article of 9.04 does not require this Board to engage in any reconciliation of the considerable arbitral commentary and debate over the right of probationers to grieve a discharge or termination, including the debate over whether or not a provision merely barring procedural access to the grievance/arbitration procedure constitutes a complete answer to questioning the termination/dismissal of a probationer. The wording of Article 9.04 also makes it unnecessary to decide whether or not the mere existence of a probationary period.../8

8 DISMISSAL NO Page 8 (standing alone) requires an assessment of whether just cause existed and, if so, whether a broader perspective of just cause is warranted due to the fact that the generally accepted purpose of a probationary period is to allow an employer to assess the suitability of a probationer. Again, in Article 9.04, the parties have vested the sole and exclusive discretion in the Employer and have expressly stated that a decision taken under this provision shall be deemed to be for just cause. The making of such a decision non-grievable and non-arbitrable is ancillary to the substantive right vested in the Employer. l) The Board recognizes that Section 80 of the Act requires that every collective agreement contain a provision obliging the employer, in administering the agreement, to act reasonably, fairly, in good faith and in a manner consistent with the agreement as a whole. Where such a provision does not appear in the agreement then it is deemed to be included in the agreement [Section 80(2) of the Act]. So, in exercising (i.e. administering) its sole and exclusive discretion under Article 9.04, the Employer must act in accordance with Section 80 but, again, Article 9.04 provides the context for assessing whether or not there has been compliance with Section 80. m) The material discloses that the Employer s assessment of the Applicant during his probationary period was related to issues pertaining to the Applicant s performance of duties i.e. the overloading of the scrap bucket and the skulls incident [see Paragraphs 5(d) and (e), supra]. At the first incident, a Union representative was present and the Application itself acknowledged that the Applicant received the second skulls warning. This is not a case where the Applicant pleads that he was dismissed for a reason contrary to law (e.g. for one of the reasons prohibited by the Human Rights Code). n) Upon being apprised of the Applicant s dismissal, the Union filed a grievance to protect the interests of the Applicant until it could confirm that the Applicant was on probation. This was a reasonable step to take and it does not disclose arbitrariness, discriminatory conduct or bad faith or a failure to take reasonable care. Filing the grievance was done prior to the meeting of October 28, 2011 at which time it was confirmed that the Applicant was dismissed during his probationary period. It was after this date that the Union withdrew the grievance, based on the provisions of Article 9.04 and having satisfied itself that the reasons for the dismissal were based upon the Employer s assessment of the work habits of the Applicant. o) Although somewhat belatedly, the Applicant did receive reasons which led to the Employer s decision..../9

9 DISMISSAL NO Page 9 p) In the context of Article 9.04 of the Agreement, the Application, on its face, does not disclose a concise statement of material facts, actions or omissions on which the Applicant relies and which facts, if proven, would result in a finding that the Union acted in an arbitrary or discriminatory manner under Section 20, as those terms have been interpreted by the Board. Neither does the Application recite any material facts, acts or omissions on the part of the Union which, if proven, would establish that the Union made its decision not to proceed with the grievance/arbitration on the basis of irrelevant factors or that the Union, through its officers or agents, displayed an attitude which can be characterized as indifferent or capricious or that it acted in a non-caring or perfunctory manner. There are no facts pleaded in the Application which, if proven, would result in a finding that the Union acted on the basis of hostility, ill-will or dishonesty or that it attempted to deceive the Applicant or refuse to process the grievance for sinister purposes. In the context of the explicit wording of Article 9.04 of the Agreement, all of the objective steps taken by the Union in assessing whether it would proceed to arbitration, given the Applicant s status as a probationer, reflect a degree of care which a person of ordinary prudence and competence would exercise in the same or like circumstances. The Board is satisfied that the Union knew of and considered the reasons advanced by the Employer for the dismissal of the Applicant and assessed these reasons in the context of Article As the Board has noted in many decisions, a union is entitled to decide not to file a grievance; not to pursue a grievance to arbitration, or to settle a grievance without an employee s agreement so long as the union is not arbitrary, discriminatory, or acts in bad faith, or in the case of a dismissal, fails to take reasonable care to represent the employee s interests. The fact that the Applicant disagrees with the decision of the Union not to proceed to arbitration with a grievance does not, standing alone, constitute a breach of Section 20 of the Act. 7. For all of the reasons summarized in the foregoing paragraph, the Board has DETERMINED that the Applicant has failed to establish a prima facie case that the Union has breached Section 20 of the Act and the Application is without merit within the meaning of Section 140(8) of the Act. As noted, supra, this decision has been made in the context that the Union was responding to the dismissal of the Applicant during his probationary period, thereby bringing into operation the explicit provisions of Article 9.04 of the Agreement. In the result, the Board declines to take any further action on the complaint pursuant to Section 30(3) of the Act. Accordingly, the Application is to be dismissed..../10

10 DISMISSAL NO Page 10 T H E R E F O R E The Manitoba Labour Board HEREBY DISMISSES the Application filed by S.A.N. on February 3, DATED at WINNIPEG, Manitoba this 13 th day of April, 2012, and signed on behalf of the Manitoba Labour Board by WDH/lo/lo-s Original signed by W.D. Hamilton, Chairperson