Ontario Labour Relations Board

[1981] OLRB Rep. August 1098

0781-81-U Betty Lavoie, Complainant, v. Office and Professional Employees International Union, Local 343, Respondent, v. International Association of Bridge, Structural and Ornamental Ironworkers, Local 700, Intervener.

BEFORE: R. O. MacDowell, Vice-Chairman and Board Members W. F. Rutherford and W. H. Wightman.

APPEARANCES: Vicki Robson, A.F. DeLuca and Betty Lavoie for the complainant; John Elder and Kathy Maddison for the respondent; S. B. D. Wahl and J. Harrower for the intervener.

DECISION OF THE BOARD; August 27, 1981

1. This is an application under section 79 of The Labour Relations Act. The grievor, Mrs. Betty Lavoie alleges that the respondent OPEIU has contravened sections 14 and 60 of the Act. Those sections read as follows:

Section 14

The parties shall meet within fifteen days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement.

Section 60

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.

Since both the respondent and the intervener are trade unions, it will be convenient to refer to the former as "the employer" or "the Ironworkers", and the latter as "the union" or "the OPEIU".

2. Most of the facts underlying the present complaint are not in dispute. Mrs. Lavoie has been employed by the Ironworkers for 27 years. On August 23rd, 1980s he was discharged. She filed a grievance alleging that her discharge was without just cause. Her union, the OPEIU, concluded that, in the rather unique circumstances of this case, there was no legal basis for taking her grievance to arbitration. It is this decision which underlies Mrs. Lavoie's contention that her union has acted in manner which is arbitrary, discriminatory, or in bad faith.

3. The OPEIU has been the bargaining agent for the Ironworkers' office staff since 1966. There have been a series of collective agreements since that time. The most recent agreement expired on August 15th, 1977. Shortly before the expiry of that agreement, the OPEIU served notice of its desire to enter into negotiations for a new agreement to replace the one which was about to expire. Positions were exchanged, and there were meetings between the union and the employer on December 17th, 1977 and February 4th, 1978. These meetings did not resolve the matters in dispute. The employer applied for the appointment of a conciliation officer, an officer was appointed, and a further meeting was held in early 1978; but again, the parties were unable to resolve their differences. On September 2 1st, 1978 the Minister advised the parties that he did not consider it appropriate to appoint a conciliation board. Accordingly, the parties were free to continue bargaining with the prospect that within fourteen days, either of them would be in a position to resort to the economic sanctions of a strike or lock-out. Neither occurred. In late October 1978, at the request of the union, the Minister of Labour appointed a mediator, but his intervention too, proved unsuccessful. The impasse remained and no new collective agreement was concluded.

4. Following the completion of the conciliation process in September 1978, Kathy Maddison, a business agent for the OPEl U discussed with Mrs. Lavoie and Ms. Tragunna, the other employee in the bargaining unit, the possibility of engaging in a strike to put pressure on their employer to reconsider its position. Maddison indicated that the union could provide whatever support it could if the employees decided to go on strike. Neither of them was prepared to do so at that time; however neither were they prepared to accept a collective agreement on the employer's terms. Maddison was in contact with the two employees periodically thereafter, but their position did not change. As winter approached Mrs. Lavoie told the Board that she and her co-worker were reluctant to contemplate a strike. In the spring, they were optimistic that the upcoming elections in the Ironworker's Union (scheduled for August 1980) would bring about a change in the bargaining climate. It did not; moreover, shortly thereafter, Local 700 was put under trusteeship. The trusteeship created new uncertainties which reinforced the employees' reluctance to strike or otherwise press for new negotiations. In consequence, when Mrs. Lavoie was discharged in August 1980, there was no collective agreement in existence, and had been no collective agreement in existence, and had been no agreement for some considerable time. But it was the collective agreement, now long expired, to which Mrs. Lavoie looked for her right to file a grievance and go to arbitration.

5. It is worth emphasizing that throughout this period the union did not abandon the employees. It was abiding by their instructions, that for one reason or another, the time was inopportune for pressing their bargaining demands or engaging in a strike. For its part, the employer did not consider it necessary to lock the employees out as it was legally entitled to do. In the circumstances, it is a little difficult to see what more the union could have done to advance the employees' position. There was really no basis for applying for further concilia­tion since there was no prospect that a third mediator would have any more success in bridging the gap between the parties than his predecessors. There was no indication of any change in their positions or any increased willingness on either side to make concessions.

6. The grievor contends that the OPEIU has failed to "bargain in good faith" and make every reasonable effort to make a collective agreement. There is no merit to this contention. The OPEIU did what it could under difficult circumstances. Even assuming that the grievor has status to bring a complaint of a violation of section 14 (the section appears to create rights and obligations only between the employer and the union, not between the union and its members-see: Canadian General Electric, [1980] OLRB Rep. Aug. 1179), there is no basis for such complaint in this case.

7. As we have already noted, the grievor was terminated on August 23rd, 1980. Mrs. Lavoie testified that the culminating incident was her handling of a subpoena, but the employer's stated reason for discharge was "persistent and habitual absenteeism and lateness as well as unsatisfactory work performance". There is clearly some substance to the employer's concern. It is acknowledged that following the death of Mrs. Lavoie's husband in 1975 she had a series of debilitating physical and emotional problems. She was off work for more than a year, from January 1977 to February 1978. Following her return in February 1978, she was terminated and filed a grievance which the union took to arbitration on her behalf. The case settled following the commencement of the arbitration proceeding, on the basis that Mrs. Lavoie would be "on probation" for a six month period during which she would be expected to maintain regular attendance at her job.

8. This was not the only grievance which the OPEIU took to arbitration on the grievor's behalf. An earlier grievance concerning her entitlement to sick pay was also taken to arbitration and resulted in an award in her favour. There is obviously no unwillingness on the union's part to take cases which, in its view, have some prospect of success. Nor is there any evidence whatsoever that the union has discriminated against Mrs. Lavoie or acted in bad faith. All of the evidence points to precisely the contrary. Mrs. Lavoie admits that she has had no complaints against the union other than the one arising out of her discharge. She even had Ms. Maddison's home phone number, and never had any difficulty reaching her to discuss her problems.

9. The union's treatment of Mrs. Lavoie's discharge grievance was not arbitrary, uncaring, or perfunctory. Ms. Lavoie's grievance was not dismissed out of hand. The grievance was accepted, and Ms. Maddison attempted to arrange a meeting with the employer to discuss the situation. The employer, however, took the position that since the agreement had long since expired, there was now no basis for claiming a contravention of its terms, or processing a grievance in accordance with a grievance procedure which was no longer in effect. This position, it will be observed, is probably correct in law, and is certainly supported by the preponderance of arbitral and judicial authority. (See most recently the Ontario Supreme Court decision in Re Bell Canada and Communications Union Canada (1979), 1979 CanLII 1739 (ON HCJ), 23 OR. (2d) 701). Ms. Maddison, on behalf of the OPEIU, was not sure. She considered it appropriate to obtain an independent legal opinion and she obtained the authorization of the union executive board to expend funds for this purpose.

10. The solicitors' opinion substantially confirmed the employer's position that one could not found a claim on the basis of a collective agreement that had expired by the time the complaint crystalized. In addition, having acknowledged the expiry of the old agreement and undertaken repeated efforts to replace it with a new one, the union's solicitors pointed out that it might well be stopped from contending that the old agreement continued in effect. On the basis of that opinion the union decided that there was no purpose in proceeding to arbitration with a claim which appeared certain fail. An arbitrator would have no jurisdiction to decide whether Mrs. Lavoie's absenteeism justified her discharge, because the contractual provisions restricting the employer's right to fire employees were no longer available. The union was not unsympathetic to Mrs. Lavoie's claim indeed, quite the opposite. It was simply that, on the basis of the legal advice it had received, there appeared to be little the union could do about it. And, while it may be unnecessary to do so, we might note that the position taken by the employer and confirmed by the solicitors for the OPEIU appears to be a correct statement of the law as it currently exists. In the absence of a collective agreement, there is no restriction on an employer's right to discharge an employee, except that imposed by the common law; and The Employment Standards Act. Neither rights can be enforced by an arbitrator.

11. Can it be said that the decision not to proceed to arbitration with Mrs. Lavoie's case is arbitrary, discriminatory, or in bad faith"? There is no evidence whatsoever of discrimina­tion or bad faith. On the contrary, the evidence indicates that in this, as in previous problems which she has had, the union did all that it could; and it cannot be considered "arbitrary" when a union decides not to proceed with a case which its own solicitors advise is without legal foundation and bound to fail. We would be disinclined to interfere with such decision in any case (i.e. to "second guess" the union's lawyers) but we certainly do not think we should do so when in our view those lawyers were right.

12. Is there anything more that the union could or should have done for Mrs. Lavoie? It is difficult to deal with this question in the abstract. The problem is, that following her receipt of a copy of the lawyer's opinion, Mrs. Lavoie made no effort to contact the union, or explore other possibilities. She simply filed a complaint with this Board alleging that her union was in breach of its statutory duty; and in this regard, it is perhaps significant that the only relief claimed in that application is that the grievor be reinstated or, alternatively, that this Board direct the employer and union to adhere to the terms of the agreement which expired some three years ago. In argument, and in response to questions from the Board, counsel for the complainant suggested other courses of action which the union might have taken; and accordingly other relief which this Board might direct. But if counsel did not contemplate these possibilities in framing the relief requested in the grievor's complaint, and if these possibilities were never suggested to the union, how can the union be reasonably expected to have acted upon them, and how can one find the union in breach of section 60 for not doing so?

13. It was suggested in particular, that the union should provide the funds, and absorb the costs, if the grievor commences a civil action in the Courts against her former employer. There are several difficulties with this proposition. In the first place, as we have already noted, there is no evidence that this suggestion was ever made to the union, and it is a little difficult to find that the union has broken the law by refusing to volunteer. More fundamentally, a civil action involves the assertion of common law rights which are personal to the grievor, and entirely remote from the sphere of collective bargaining in which the union operates and to which section 60 was intended to apply. Within the collective bargaining realm, the trade union is, by statute, the employee's exclusive bargaining agent, and an employee is unable to bargain on his own behalf or even act unilaterally to assert his rights under a collective agreement. In this context, it is easy to understand why the Legislature would impose upon the union a statutory obligation to act fairly. But the trade union has no right to bring a civil action on behalf of an employee, and could not be a party to that proceeding. A civil action has nothing to do with the employee's collective bargaining rights either directly or indirectly. Since a common law Court (unlike an arbitrator) cannot order the employee reinstated, the grievor's connection with her employer, the bargaining unit, and her union has now been permanently severed. Her sole remedy is in terms of damages if she is able to prove, contrary to her employer's assertion, that her absenteeism did not justify her termination. It is one thing to assert that a union must act fairly within the context of collective bargaining; it is quite another to suggest that the union has an obligation in respect of the personal, civil or common law rights of a former bargaining unit employee. We do not think that section 60 was ever intended to extend that far or that the union could be breaching its obligation as bargaining agent by failing to fund a collateral civil action.

14. The intervener raised an additional "technical" argument going to the jurisdiction of the Board. When Mrs. Lavoie was discharged, she was no longer an employee in the bargaining unit. Ordinarily, section 1(2) of the Act would apply to this situation. That section provides that an individual who is discharged contrary to a collective agreement or the Act, remains an employee" for the purpose of proceedings under the latter. But here, Mrs. Lavoie was not discharged contrary to the Act nor was she discharged contrary to a collective agreement there being none in existence. Thus, claims the intervener, she was not an employee in the bargaining unit when she launched the present complaint (i.e. about eleven months after her discharge), and section 60 can have no application to her. Since we are satisfied that there has been no breach of section 60 in any event, it is unnecessary for us to decide this question.

15. For the foregoing reasons, this application must be dismissed.