Federal Appeal

Administrative Law

Board should have held hearing to resolve conflict

Applicant, bus driver, suspended for failing to respect minimum rest periods. Union grieved but subsequently settled. Applicant terminated for continued failure to respect minimum rest periods and not correctly recording work hours. Union filed termination grievance but refused to proceed to arbitration. Union by-laws entitle members to refuse to take grievance to arbitration based on recommendation from union’s executive board. Applicant argued he was not informed in timely manner of board meeting during which termination grievance discussed nor was he given opportunity to present case before members. Members accepted recommendation that termination grievance not be taken to arbitration. Applicant complained to Canada Industrial Relations Board, alleging union breached duty of representation. Board declined to hold hearing but appointed industrial relations officer to investigate. Board concluded that applicant’s refusal to participate in meetings precluded board from finding union acted in arbitrary, discriminatory or bad faith manner. Board dismissed application for reconsideration, finding it was entitled to rule on matter without hearing and was not obliged to consider recording of members’ meeting since applicant refused to identify source. Applications for judicial review allowed. Employee generally does not have right to take grievance to arbitration without union’s consent so union cannot act in arbitrary, discriminatory or bad faith manner towards employee exercising collective agreement rights. Board failed to consider whether union conducted proper investigation and gathered sufficient information. Employee’s failure to participate was relevant factor but could not, itself, preclude board from finding that union breached duty of fair and equitable representation, particularly in context of termination grievance. Duty remained on union to fulfil duty of representation, regardless of employee’s conduct. Board required to examine union’s conduct to determine whether investigation and decision were fair and equitable. Failure to do so resulted in unreasonable initial and reconsideration decisions. Board breached duty of procedural fairness by refusing to consider recording of union members’ meeting submitted by applicant and by failing to hold hearing. Recording was clearly relevant to whether applicant attended meeting; union did not object to production. Board acknowledged it had contradictory evidence regarding applicant’s attendance and should have held hearing to resolve conflict.

Cadieux and ATU, Local 1415, Re

(Mar. 10, 2014, F.C.A., Johanne Gauthier J.A., Johanne Trudel J.A., and Robert M. Mainville J.A., File No. A-447-12, A-118-13) 239 A.C.W.S. (3d) 1011.

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