Reasons for decision
François Blanchet,
complainant,
and
International Association of Machinists and Aerospace Workers, Local 712,
respondent,
and
L-3 Communications MAS (Canada) Inc.,
employer.
Board File: 26753-C
Neutral Citation: 2008 CIRB 467
May 29, 2008
[Please note that the Board has decided to reissue this previously unreported decision in a Reasons for decision format to make it more easily accessible to the labour community.]
The Board, composed of Mr. Graham J. Clarke, Vice-Chairperson, and Messrs. Norman Rivard and André Lecavalier, Members, considered the above-noted complaint.
Section 16.1 of the Code provides that the Board may decide any matter before it without holding an oral hearing. The Board considered all the documents filed by the complainant and is satisfied that they are sufficient for it to decide the matter without a hearing.
Counsel on Record
Mr. Pierre-Louis Trudeau, for Mr. Blanchet;
Mr. Dave Chartrand, for the International Association of Machinists and Aerospace Workers, Local 712;
Ms. Marie-Claude Ferland, for the L-3 Communications MAS (Canada) Inc.
I - Nature of the Complaint
[1] On March 4, 2008, Mr. François Blanchet filed a complaint with the Board under section 37 of the Code, which reads as follows:
37. A trade union or representative of a trade union that is the bargaining agent for 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 with respect to their rights under the collective agreement that is applicable to them.
[2] In the complaint, he alleges that his union, the International Association of Machinists and Aerospace Workers, Local 712 (the IAM) breached its duty of fair representation.
II - Issue
[3] Did Mr. Blanchet establish a prima facie case that the IAM violated section 37 of the Code?
[4] Since January 2006, the Board has been applying a preliminary prima facie test to section 37 complaints.
[5] To determine if a complainant has established a prima facie case, the Board asks itself whether, if all the complainant’s allegations were found to have merit, it would arrive at a finding of violation of the Code. The onus is therefore on the complainant to provide sufficient material facts that, if proven, would allow the Board to find that there was a violation of section 37 of the Code. If the Board determines that there is a prima facie case, it will then ask the union and the employer to respond to the complaint.
[6] The question, therefore, is this: if the Board deemed all of Mr. Blanchet’s allegations to be true, could it find that the IAM violated the Code?
III - Analysis and Decision
[7] Mr. Blanchet alleges that the IAM’s decision to not refer his grievance to arbitration was an arbitrary decision.
[8] Mr. Blanchet had been employed by L-3 Communications MAS (Canada) Inc. (L-3 Communications) since 1989. His is a serious case given the consequences associated with the dismissal of an employee with close to 20 years of service.
[9] The documents submitted by Mr. Blanchet in support of his complaint show that the IAM filed a grievance against his dismissal on July 20, 2007. This was the second time L-3 Communications had dismissed Mr. Blanchet. He had first been dismissed on November 7, 2006, but the IAM had succeeded in negotiating a reinstatement agreement on November 10, 2006, under which Mr. Blanchet was to be reinstated in his job with L-3 Communications. The IAM, L-3 Communications and Mr. Blanchet had all signed this agreement confirming the reinstatement.
[10] The agreement in turn set out conditions respecting conduct that Mr. Blanchet would have to meet, failing which he would be dismissed. In labour relations, this type of agreement is generally described as a “last chance agreement.”
[11] In July 2007, L-3 Communications determined that Mr. Blanchet had not abided by the conditions of this last chance agreement and dismissed him again. The IAM asked its counsel to review Mr. Blanchet’s situation and provide an opinion on the chances of winning at arbitration, given the last chance agreement signed after the first dismissal.
[12] The independent counsel’s opinion was not in Mr. Blanchet’s favour. The IAM decided not to take the grievance to arbitration. A review of the case law shows that a union is not required to refer every grievance to arbitration.
[13] Acting in an arbitrary manner, for the purposes of section 37 of the Code, generally involves a total lack of representation by a union. For example, if a union does not inquire into a situation, its final decision may be deemed arbitrary.
[14] In this case, based solely on the evidence submitted by Mr. Blanchet, and assuming that all his allegations are true, the Board has determined that Mr. Blanchet did not succeed in establishing a prima facie case that the IAM violated section 37 of the Code. Mr. Blanchet does not agree with the IAM’s final decision to not refer his grievance to arbitration. However, all of the facts set out in the complaint and the documents submitted in support thereof show that the IAM did not act in an arbitrary manner when it considered whether to take the grievance to arbitration. In fact, the IAM fulfilled its duty under the Code.
[15] For the above-noted reasons, the Board dismisses the complaint.
[16] This is a unanimous decision of the Board and it is signed on its behalf by