Ontario Labour Relations Board

[1980] OLRB Rep. April 555

1095-79-U; 1096-79-U Zoltan Zahoransky, Complainant, v. Michael Hren, Gamal R. Badawoy and Local 576, Ontario Public Service Employees Union, Respondents, v. Toronto East General and Orthopaedic Hospital Inc., Intervener.

BEFORE: Ian C.A. Springate, Vice-Chairman.

APPEARANCES: Elliott G. Posen for the complainant; George Richards, Gamal Badawoy and Richard Nabi for the respondents; Janice Baker, James D. Van Camp and Graham Sellar for the intervener.

DECISION OF THE BOARD; April 16, 1980.

1. These proceedings are hereby consolidated.

2. The complainant alleges that he has been treated by the respondents contrary to the provisions of section 60 of the Act. Section 60 provides as follows:

"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."

3. On May 1, 1978 the complainant was discharged from his position as senior blood bank technologist at the Toronto East General and Orthopaedic Hospital ("the Hospital"). He had been employed at the Hospital for some eleven years, four of them as senior blood bank technologist. At the time of his discharge the complainant was a member of a bargaining unit of paramedical personnel represented by Local 576 of the Ontario Public Service Employees Union ("OPSEU"). The respondent G. Badawoy was at the time the president of Local 576 while Mr. Hren was the complainant's union steward.

4. There is nothing in the evidence to indicate that prior to the events giving rise to these proceedings the complainant was singled out for improper treatment by Local 576, OPSEU's provincial office, Mr. Badawoy or Mr. Hren. The complainant had assisted in the initial organization of the bargaining unit and for a short period had served as president of Local 576. In 1977 a grievance filed by the complainant concerning his hours of work was taken to arbitration by the union, albeit unsuccessfully. In 1978 the complainant filed two grievances which were resolved to his satisfaction during the grievance procedure. With respect to all three of these grievances the complainant received the active assistance of Mr. M. Campbell, an OPSEU staff representative.

5. On Tuesday, April 25, 1978, a Toronto daily newspaper reported that in March of that year a patient at the Hospital had been administered the wrong type of blood. Although no challenge was ever made to the accuracy of the newspaper report, the staff of the Hospital became very upset that the error involved should have become public knowledge. For some reason a number of staff members concluded that the complainant had provided the information about the error to the newspaper. It is worth stressing at this point that at the hearing all of the parties either expressly or by implication acknowledged that the complainant had not, in fact, been the one to provide the information to the newspaper. It should also be noted that at no time did anyone contend that the complainant bore any responsibility for this particular error.

6. On Wednesday, April 26, 1978, a notice was posted in the Hospital indicating that there was to be a meeting on the following day concerning the newspaper article. The notice was addressed to the staff and signed by Mr. Hren as union steward. The meeting was held on April 27th in the blood bank department. Some thirty-five to thirty-nine persons attended the meeting, including not only personnel from the paramedical bargaining unit, but also a number of nurses involved in the administration of blood and certain persons employed in relatively junior managerial positions. Among the latter was Mrs. Kvas, the charge technologist to whom the complainant reported.

7. Just before the meeting of April 27th got underway, Mr. Hren closed the door of the meeting room and placed a table against the door. He then sat on the table and proceeded to open the meeting. Much of the meeting consisted of a discussion concerning the release of medical information to persons outside the Hospital. During the course of the meeting Mrs. Kvas began to question the complainant concerning certain alleged errors in the blood bank. The complainant declined to answer these questions in front of the assembled group. According to the complainant's uncontradicted testimony, when he indicated at one point that he did not have to answer a question, the others present began to chant in unison "yes, you do, yes, you do." Later during the meeting Mr. Hren called for the resignation of the "suspect" responsible for leaking the information about the mismatched blood to the press. Mr. Hren also indicated that if the suspect did not resign a petition would be circulated with respect to him.

8. The day after the meeting, Friday, April 28th, was a day off for the complainant. During the day a petition addressed to three senior members of the Hospital administration was circulated among the staff. The petition reads as follows:

'We the undersigned demand the dismissal of Mr. Zoltan Zahoransky by Tuesday, May 2nd, 1600 hours. If action has not been taken by that time we will withdraw our services until such time as he is dismissed."

The petition was signed by a number of employees and charge persons, including Mrs. Kvas. Among the employees signing were Mr. Hren, the complainant's union steward and Mr. Badawoy, the president of the union local.

9. The complainant returned to work on Monday, May 1, 1978. He was at the time working on the 4:00 p.m. to midnight shift. During his shift the complainant was called into a meeting with Mr. James Van Camp, the associate executive director of the Hospital, Mr. G. Sellar, the Hospital's personnel manager, Mrs. Kvas and Mr. Badawoy. The complainant testified that because of Mr. Badawoy's presence he concluded that the meeting was to be disciplinary in nature. The complainant further testified that he felt he would not be adequately represented by Mr. Badawoy and accordingly asked for a representative from the union's head office. It is of some interest to note that at the time the complainant raised his concern about Mr. Badawoy's presence, he had not yet seen the petition and hence was unaware of the fact that Mr. Badawoy had been one of those who had signed it. Mr. Van Camp advised the complainant that he could telephone Mr. Campbell, the OPSEU staff representative who had represented him in the past. According to the complainant, he did not think he would be able to contact Mr. Campbell because he did not know Mr. Campbell's phone number and also because Mr. Campbell lived some distance outside of town. The complainant's uncontradicted testimony was that when at the meeting he explained that he did not think that he could get in touch with Mr. Campbell, Mr. Van Camp indicated that the meeting would proceed and also that Mr. Badawoy was there to assist the complainant.

10. Once the meeting on May 1st got underway, Mr. Van Camp showed the petition to the complainant. In doing so, Mr. Van Camp stated that the petition should not have a bearing on the matters before them. The complainant was then questioned by Mr. Van Camp, Mr. Sellar and Mrs. Kvas concerning certain alleged breaches of confidentiality and certain alleged acts of incompetence. Mr. Van Camp also posed two question which were answered by Mr. Badawoy. One question concerned how you would recognize an entered unit, to which Mr. Badawoy correctly replied you can see the injection site. The other question was whether the mismatching of blood could have serious implications. The response of Mr. Badawoy was that it could. At the hearing the complainant indicated that this reply by Mr. Badawoy was correct in certain situations but not in others. Apart from answering Mr. Van Camp's questions, Mr. Badawoy apparently took no active part in the meeting.

11. The meeting on May 1st ended with Mr. Van Camp, Mr. Sellar and Mrs. Kvas retiring from the room, and some time later returning to hand the complainant a handwritten letter of discharge. The letter reads as follows:

"May 1, 1978

Mr. Zoltan Zahoransky

Senior Blood Bank Technologist

Toronto East General Hospital

Mr. Zahoransky

This document will serve to inform you that you are being discharged immediately from your position as senior blood bank technologist at the Toronto East General Hospital for the following reasons:

1. Incompetency & carelessness.

2. Breach of confidentiality of patient records.

You are being discharged as the result of both of these incidents sepa­rately as each of these reasons in and of themselves would lead to your discharge.

Any monies owing to you by the Hospital will be forwarded by regis­tered mail.

(sgd.) James D. Van Camp

Associate Executive Director"

12. Following his discharge the complainant contacted Mr. Campbell, the OPSEU staff representative. Mr. Campbell apparently assisted the complainant in grieving his discharge. When the grievance was not settled, the matter was taken on to arbitration. Although the arbitration was conducted in the name of Local 576, in fact all arrangements for the arbitration appear to have been handled on behalf of the union by Mr. Richard Nabi, OPSEU's co-ordinator of grievances and classifications. To present the union's case before the arbitration board, a lawyer experienced in labour relations matters was retained by the union. The hearing before the arbitration board lasted three days. Although the complainant stated that in retrospect the union's case might have been handled differently at the arbitration hearing, there appears to be no question but that a strong defence was mounted in support of the complainant at the hearing.

13. On or about March 2, 1979 the chairman of the arbitration board issued his award in which the Hospital nominee on the board concurred. The union nominee issued a dissent to the chairman's award which prompted an addendum by the chairman dated March 22, 1979.

14. The chairman of the arbitration board found that the complainant had made a number of errors in the course of his duties between January 16, 1977 and April 25, 1978. With respect to the April 25th incident, the chairman concluded that the complainant had cross-matched a donor unit of blood for a patient which had already been entered and was not as full as a normal unit. In reaching this conclusion the chairman rejected the complainant's contention that at the time he had cross-matched the unit it was full and unentered, and that someone must have later entered the unit and removed some of the blood in order to "get" him. With respect to the incidents prior to April 25th, the chairman concluded that they could be considered in determining the appropriate discipline for the events of April 25th. In reaching this conclusion, the chairman was of the view that although notes issued to the complainant as well as oral warnings concerning these earlier incidents had not been recorded in a central personnel file, as was the Hospital's general practice with disciplinary matters, arid although the notes issued to the complainant were not specifically identified as being disciplinary, nevertheless, they constituted a record of progressive discipline in that they would have informed the complainant that his work was unsatisfactory and that his job was in jeopardy if he did not improve. Taking these considerations into account, as well as the standard of conduct to be expected in a hospital environment, the chairman of the arbitration board concluded that the Hospital did have proper cause to discharge the complainant. The final portion of the award reads as follows:

"In applying the principles enunciated in the foregoing cases to this fact situation, it is clear that the conduct of the Grievor, on several occa­sions, fell far short of the standard of performance to be expected of an employee in his position. I am satisfied that the Hospital personnel made efforts to correct the situation and that the Grievor was fully aware of his employer's dissatisfaction with his level of performance and with the potential circumstances of a failure to comply with the em­ployer's wishes. The pattern of conduct would indicate that the Grievor was not prepared to make the necessary adjustments and to meet the standard of performance reasonably required by the employer and that the termination of his employment constituted a reasonable and proper disciplinary response on the part of the Hospital."

15. The arbitration board was of the view that there was no evidence to support the suggestion that the complainant had provided any information to the press, although it did conclude that to assist his position in an earlier arbitration the complainant had copied certain information from patient records. The chairman indicated that he did not put much weight on this particular episode. With respect to the petition demanding the complainant's discharge under threat of a withdrawal of services by other employees, the chairman of the board of arbitration had the following to say:

"There was an unfortunate coincidence of timing in that the discharge of the Grievor coincided with certain articles in the press relating to the Hospital and the fact that the Grievor had admittedly made copies of Hospital records may well have created in the minds of Hospital employees and officials a suspicion that the Grievor was responsible for providing the information to the press. There is, in fact, no evidence in support of any such suggestion. That suspicion most likely gave rise to the petition of other members of the Hospital staff which was referred to in evidence to the effect that those employees demanded the dismissal of the Grievor and, in lieu thereof, threatened to withdraw all services until he was dismissed. I am satisfied on the evidence that while that petition existed to the knowledge of the Hospital, the decision of discharge itself primarily related to the incidents previously enumerated. The Hospital expressly disclaimed any reliance on that petition in reaching its conclusion and Dr. Hart stated that he personally did not believe that it was the Grievor who leaked the information to the press." [Emphasis added]

16. Following the release of the arbitration award, the complainant approached Mr. Sean O'Flynn, the president of OPSEU, and asked that the union apply to have the award judicially reviewed. Subsequently, Mr. Nabi, the union's co-ordinator of grievances and classifications, was asked to prepare an opinion letter concerning a possible application for judicial review for consideration by Mr. O'Flynn. After discussing the matter with the lawyer who represented the union at the arbitration hearing, Mr. Nabi on April 23, 1979 recommended against taking the matter to judicial review. The relevant portion of Mr. Nabi's recommendation is set out below:

"After considering all of the aspects of this case that appear relevant, I

have determined that it would not be prudent for the Union to seek ju­dicial review in this matter. This then, is my recommendation to the President and I anticipate that the President will concur with my deci­sion.

I believe that the union has made every reasonable effort on behalf of our Brother Zahoransky to provide relief against his misfortune. While the dissent of our Brother Allan Millard adequately points out some of the deficiencies in the award itself, I am assured that there is no better than a 35 per cent chance for success before the courts. Even if we were successful with judicial review I am sure we could look forward to only having a 'trial de novo' and, then we would have to go through the arbitration process all over again. If we found ourselves in that position it is my view that we would stand a lesser chance of success since, the employer's counsel would be able to judge from his mistakes in the earlier arbitration what evidence was required and how it should be adduced. The employer is now familiar with all the union arguments and the Union have [sic] essentially learned nothing from the employer's case. Therefore, it is highly unlikely that a second arbitration of the case would be successful.

Even though money is not the most important consideration it still is a consideration and it is my view that the Union has amply supported this case with available funds. To add now to the cost of the arbitration and to our legal fees would in my estimation simply be wasting money. The money spent so far by the Union in this case has been substantial and in my view, indicates that we have done everything that could be reasonably expected of a good Union in cases such as this."

At the hearing Mr. Nabi added to these reasons by explaining that in his view, even if the chairman of the arbitration board had reached certain erroneous conclusions, he had not left much room for a successful judicial review of his decision. On May 14, 1979 Mr. O'Flynn, the president of OPSEU, wrote to the complainant informing him that the union was not prepared to seek judicial review of the arbitration award. The reasons given by Mr. O'Flynn were essentially those set out by Mr. Nabi in his above-quoted recommendation.

17. Subsequent to the union's decision not to apply for judicial review, the complainant retained his own legal counsel. On June 22, 1979 the complainant's counsel wrote to Mr. Nabi and put to him the following three questions:

"1. Will O.P.S.E.U. authorize its own solicitor to undertake an appli­cation for judicial review on behalf of Mr. Zahoransky?

2 If the Answer to Question No. 1 is no, will the Trade Union au­thorize Mr. Zahoransky to undertake the application for Judicial review by retaining his own Solicitor who in the process will be representing the Trade Union?

3 If the answer to Question No. 2 is Yes, under what terms will the Trade Union authorize Mr. Zahoransky to proceed to Judicial review?"

18. By letter dated June 28, 1979, Mr. Nabi indicated to the complainant's counsel that OPSEU was not willing to retain its own solicitor to seek judicial review of the arbitration award, but that it would allow the complainant to use the union's name for such an application if one precondition was met. This precondition was set out in the following terms:

"The union, however, is prepared to allow your client to pursue an application for judicial review under one condition. We ask that before application is made for judicial review, Mr. Zahoransky and his legal spouse both, execute and deliver to us, a document indemnifying the union for any costs that may be awarded against the union in the event that the application is unsuccessful. Since costs and possible damages were of major concern to our organization at the time we originally considered taking action on behalf of your client, we could not in good conscience allow you to proceed in our name without receiving the aforementioned indemnification."

Mr. Nabi testified that the union sought to have the complainant's wife sign the indemnification because although she was employed the complainant was not, and the union was concerned that he would not be capable of paying any costs awarded against the union if an application for judicial review proved to be unsuccessful.

19. The complainant objected to the requirement that his wife sign an indemnification, and apparently she herself declined to do so. By letter to the complainant's solicitor dated July 30, 1979, Mr. Nabi raised the possibility that the complainant might offer some other alternative to having his wife sign the indemnification. Mr. Nabi testified that he had been willing to consider any reasonable alternative, such as a relative of the complainant offering a personal guarantee. The only alternative put forward by the complainant was that he alone sign the indemnification, a proposal which was unacceptable to the union. Following this stand-off, the complainant filed the complaints giving rise to these proceedings. It might be noted that at the time of the hearing into the complaints the complainant was still unemployed.

20. The position taken by the complainant is that Mr. Hren and Mr. Badawoy, acting on behalf of Local 576, violated section 60 of the Act by their actions connected with the complainant's dismissal and, more particularly, by their involvement with the petition. Counsel for the complainant submitted that it was the threat of a work stoppage contained in the petition which in fact had led to the complainant being discharged by the Hospital. In his filings, the complainant also alleged that the union's decision not to seek judicial review of the arbitration award was a breach of section 60. By way of remedy, at the hearing counsel for the complainant submitted that the Board should direct Mr. Hren and Mr. Badawoy to financially compensate the complainant and also direct the union to seek judicial review of the arbitration award.

21. The representative of the union took the position that Mr. Badawoy and Mr. Hren had not signed the petition in their capacity as union officials, but rather as individual employees. He further contended that at the relevant time both Mr. Badawoy and Mr. Hren would have been concerned with their reputations, and for them not to have joined in signing the petition might well have resulted in their being ostracized by the other employees. The union representative also referred to the finding of the arbitration board that the Hospital's decision to discharge the complainant primarily related to matters other than the petition.

22. The Board proposes to deal first with the allegation that section 60 of the Act was breached by the decision of OPSEU not to make an application for judicial review with respect to the award of the arbitration board. Section 60 cannot reasonably be interpreted to require a trade union to make an application for judicial review with respect to every adverse arbitration award. Rather, the requirements of the section would be met if in considering a possible application for judicial review a union does not act in a manner that is arbitrary, discriminatory or in bad faith. In the instant case the recommendation that no application for judicial review be filed was made by Mr. Nabi after consulting with legal counsel about the matter. The final decision was made by Mr. O'Flynn who, it is to be remembered, had earlier discussed the matter with the complainant. There is absolutely no basis for concluding that either Mr. Nabi or Mr. O'Flynn harboured any ill will towards the complainant or that they treated his case any differently than they would have if some other individual had been involved. Instead, all indications are that both Mr. Nabi and Mr. 0'Flynn put their minds to the chances of success in the matter and without any malice or ill will decided that the chances of ultimate success did not justify the expenditure of additional union funds Whether or not one agrees with their assessment, it cannot reasonably be said that they acted in a manner that was arbitrary, discriminatory or in bad faith such as to constitute a violation of section 60.

23. As for the union's condition for allowing its name to be used in an application for judicial review commenced by a solicitor retained by the complainant, here again no breach of section 60 has been made out. Having decided against filing an application for judicial review because of what it perceived to be the poor chances of success of such an application, it was not unreasonable for the union to seek to ensure that if its name were used in an application for judicial review filed by the complainant's own solicitor, the union would be indemnified for any costs awarded against it if the application proved to be unsuccessful. Mr. Nabi was of the view that the complainant lacked the financial resources to indemnify the union, and accordingly he sought to ensure that the money would be available from some other source. Although he initially proposed that the complainant's wife sign an indemnification, when this was not accepted Mr. Nabi indicated that he was open to other suggestions. At no time did Mr. Nabi's actions in this regard indicate that he was acting in a manner that was arbitrary, discriminatory or in bad faith.

24. Having regard to the above conclusions, and generally to the actions of OPSEU subsequent to the complainant's discharge, the Board is satisfied that at all times after the discharge the union met its obligation to fairly represent the complainant and that its actions did not involve a breach of section 60 of the Act.

25. The Board now turns to consider the events prior to the complainant's discharge. Mr. Hren, the complainant's union steward, was the person who called and opened the meeting on April 27, 1978. It was also Mr. Hren who proposed the circulation of a petition against the "suspect" responsible for leaking information to the press. Both Mr. Hren and Mr. Badawoy, the local's president, signed the petition, indicating that they would take part in what could only have been an unlawful work stoppage if the complainant were not discharged. As noted above, the union representative contended at the hearing that Mr. Hren and Mr. Badawoy were at the time acting as individual employees and not in their capacity as union officials. However, neither of these gentlemen came forward to testify to that fact at the hearing. More importantly, there is nothing to indicate that either of them made such a statement at the meeting on April 27th or at the time that they signed the petition. When Mr. Hren signed the notice informing the staff of the meeting on April 26th, he expressly signed it as union steward and he also took an active leadership role during the meeting itself. Taking all these considerations into account, the Board is not prepared to infer that at the relevant time either Mr. Hren or Mr. Badawoy were acting simply as individual employees and not as representatives of Local 576.

26. There may well be situations in which a union official is justified in requesting that management remove an employee from the workplace. One example that comes to mind is that of an employee who consistently engages in unsafe conduct which poses a direct threat to the well-being of other bargaining unit employees. Even where a union official is concerned with the continued presence of an employee in the workplace, however, he must bear in mind that he still owes a duty of fair representation to that particular employee. The union official owes it to the employee to address himself to the merits of any allegations raised against the employee and not demand his removal simply on the basis of rumour or unfounded suspicions. In the instant case Mr. Hren and Mr. Badawoy engaged in conduct specifically designed to achieve the complainant's discharge. Their actions appear not to have been preceded by any investigation of the facts surrounding the leaking of the information to the press, and at no time did they give the complainant a reasonable opportunity to respond to the allegations against him. On the evidence led at the hearing, the Board is drawn to the irresistible conclusion that neither Mr. Hren nor Mr. Badawoy even addressed himself to the merits of the allegations against the complainant. In other words, they de­manded his discharge solely on the basis of false rumours and unfounded suspicions which they never bothered to investigate or seek to verify. Such a cavalier and insensitive approach to something as important to the complainant as his continued employment can only be described as shocking. The Board has no hesitation whatsoever in concluding that the conduct of Mr. Badawoy and Mr. Hren, and through them Local 576, indicated such a non-caring attitude towards the complainant as to amount to arbitrary conduct in violation of the union's duty to the complainant under section 60 of the Act.

27. The Board rejects completely the contention raised at the hearing that Mr. Hren and Mr. Badawoy were required to act in the manner in which they did in order to avoid being ostracized by the other employees. Union officials cannot justify their demand for the discharge of an employee on the basis of a need "to go along with the crowd" when the crowd itself is acting on the basis of rumours and unsupported suspicions. One of the very purposes of section 60 is to protect individual employees from majority employee conduct when the majority is acting in an arbitrary manner.

28. The complainant did not allege that Mr. Badawoy's attendance at the meeting of May 1,1979 which culminated in the complainant's termination involved a violation of section 60. With respect to this incident the Board would simply note that if only as a matter of judgment, since he had signed the petition demanding the complainant's dismissal, Mr. Badawoy should have disqualified himself from the meeting and himself attempted to arrange for someone else to attend on behalf of the union.

29. As indicated earlier, counsel for the complainant contended that it was the union's breach of section 60 related to the petition which had caused the complainant's discharges and on this basis he requested both monetary compensation for the complainant as well as a direction to the union to apply to have the arbitration award judicially reviewed. For their part, counsel for the Hospital and the representative of the union both relied on the arbitration award as establishing that the petition had nothing to do with the complainant's dismissal, that the Hospital discharged him for other reasons completely, and that these other reasons constituted just-cause for discharge. On the basis of this reasoning they contended that the complainant suffered no ill effects from any breach of section 60 by the union prior to his discharge and accordingly he was not entitled to the benefit of any remedial action.

30. In matters such as this, it is a board of arbitration which is assigned the task of determining whether or not just-cause existed for an employer to discharge an employee. Absent any element of deceit, bad faith or arbitrariness on the part of the union in presenting a discharged employee's case before a board of arbitration, it is not for this Board in the guise of formulating a remedy to a section 60 violation to overturn the findings of a board of arbitration on the question of whether or not the employer had just-cause for discharging an employee. This, however, does not fully answer the question of whether the complainant suffered any ill effects from the breach of section 60. The chairman of the arbitration board concluded that the complainant's discharge was "primarily related" to matters other than the petition and that these other matters constituted just-cause for discharge. The question remains, however, as to whether the petition is what caused the Hospital to even consider discharging the complainant and whether absent the petition the Hospital would have put its mind to the question of whether any grounds existed which might justify his discharge.

31. In seeking to determine the answer to this question a number of factors stand out. In favour of the possibility that the Hospital might have considered terminating the complainant on May 1, 1978, even if there had been no petition, is the fact that on April 25,1978 a donor unit of blood which the complainant had cross-matched was discovered not to be as full as a normal unit. On the other hand, however, no evidence was led before the Board, and there is nothing in the arbitration award to indicate, that prior to the circulation of the petition on April 28th management of the Hospital even considered discharging the complainant. Management apparently acted only after it had received the petition. In addition to this, in support of its action in discharging the complainant the Hospital relied upon a number of incidents going back to January 16, 1977. However, at the time that these incidents actually occurred the Hospital did not use them as a basis for imposing any formal discipline on the complainant. Finally, there is the timing of the complainant's discharge. The petition indicated that if the complainant was not dismissed prior to 4.00 p.m. on May 2, 1978 there would be an unlawful work stoppage. Because of his hours of work and his days off, the only time that the complainant could have been confronted with any charges of alleged misconduct and been dismissed prior to the deadline was on May 1st which is when he was, in fact, called into a meeting with management and dismissed. In taking all of these considerations into account, the Board is led to the conclusion that it was likely the threat of an unlawful work stoppage contained in the petition which caused the Hospital to consider discharging the complainant and in this regard to review his work record to see if any grounds existed which might justify such a move. The Board is satisfied that absent the petition the Hospital would not have discharged the complainant on May 1, 1978.

32. The Board is also satisfied that the reason the Hospital considered discharging the complainant can be traced back to the breach of section 60 by Mr. Hren and Mr. Badawoy. Mr. Hren, the complainant's steward, was the one who called and conducted the meeting on April 27, 1978. It was also Mr. Hren who proposed the circulation of a petition with respect to the "suspect." Absent Mr. Hren's involvement, it appears that there likely would not have been any petition at all. Mr. Badawoy's action in signing the petition when he was president of the local could have only added weight to the threat contained in the petition that an unlawful work stoppage would occur if the complainant were not discharged.

33. It is possible that absent the petition and related breach of section 60 the Hospital would never have put its mind to a possible discharge of the complainant. On the other hand, it is also possible that even without the petition the Hospital might at some point in time subsequent to May 1, 1978 have addressed itself to the complainant's continued suitability as an employee. The problem in seeking to frame a remedy for the breach of section 60 lies in trying to assess the degree of responsibility which should be placed on the union for the situation which the complainant now finds himself in. The Board proposes to use the date of the award of the chairman of the board of arbitration as a cut-off date for assessing any liability against the union. As of this date there existed a determination by a neutral person that just-cause did exist for the Hospital to discharge the complainant.

34. To compensate the complainant for the union's breach of section 60, the Board directs Local 576, Ontario Public Service Employees Union, to pay to the complainant an amount equivalent to what he would have earned, had he not been discharged, between the date of his discharge and the issuance of the initial decision of the chairman of the board of arbitration. In that the union's decision not to seek judicial review of the arbitration award did not involve a breach of section 60, the Board declines to direct the union to now file an application for judicial review. However, keeping in mind the compensation award in favor of the complainant, it is possible that the complainant and the union may be able to agree on a formula which will allow the complainant to realize his goal of having the arbitration award taken up on judicial review, while at the same time meeting the union's concerns about an award of costs being made against it should an application for judicial review prove to be unsuccessful.