C.U.P.E. Local 543 v. Corporation of the City of Windsor
[1981] OLRB Rep. February 142
1535-80-U C.U.P.E. Local 543, Complainant, v. Corporation of the City of Windsor, Respondent.
BEFORE: George W. Adams, Chairman, and Board Members C. G. Bourne and O. Hodges.
DECISION OF THE BOARD; February 17, 1981
Reasons for Decision
1This complaint filed under section 79 of the Act alleges that the respondent has dealt with the complainant and Kathy Langlois contrary to section 37 of The Labour Relations Act and requests that "the Board order the respondent to cease its practice of denying the union the right to have legal counsel present during grievance proceedings involving disciplinary matters particularly when the charge against the employee is serious in nature and when the grievance involves complex legal and factual issues."
2The particulars filed with the complaint state:
"On or about September 16th and 19th, 1980, the grievor was dealt with by the City Administrator Mr. Hilary Payne of the respondent contrary to the provisions of section 37 of The Labour Relations Act in that he did on his own behalf or on behalf of the respondent refuse to allow C.U.P.E. Local 543 and Kathy Langlois the right to have legal counsel present during a grievance hearing before the City Administrator."
The complaint notes that the decision of the City Administrator to refuse legal counsel to be present is being taken to arbitration and further states:
"Although The Labour Relations Act does not expressly provide for a right of counsel it is respectfully submitted that the Act incorporates the rules of natural justice whenever they are otherwise applicable. In some situations particularly where there is a disciplinary grievance involving complex legal and factual issues the union must be entitled to have legal counsel present if it is to be able to effectively exercise its right to have matters resolved by grievance procedures and arbitration as guaranteed in section 37 of The Labour Relations Act."
3After delivery of the complaint to the respondent, counsel for the respondent moved before the Board to dismiss the complaint under Rule 46 of the Board's Rules of Procedure upon the following grounds:
"The Application, on its face, concedes that the proceedings in which the right to Counsel was allegedly denied occurred during the course of grievance proceedings established under a Collective Agreement (to which the Complainant and Respondent are parties).
The right to Arbitration of the grievance is assured to the Complainant if the complaint is not resolved to the satisfaction of the Complainant.
A copy of the Collective Agreement has been filed by the Respondent with the Minister pursuant to Section 74 of the Act and is available to the Board for study and consideration.
Consideration of any matter during the course of grievance proceedings
(and before Arbitration) are not "proceedings" within the meaning of the
Statutory Powers Procedure Act and the City Administrator, Mr. Hilary
Payne, is not a "tribunal" as defined by that same legislation.
The Application, on its face, concedes that the Ontario Labour Relations Act does not make any express provision for a right to Counsel.
The Common Law does not confer a right to Counsel even in proceedings before an Arbitrator.
See list of cases annexed.
Reference to a violation of Section 37 of the Act is misconstrued in that the proceedings referred to in the Application were not proceedings before an Arbitrator but, rather, proceedings during the course of the "in house" grievance procedure before the matter was submitted to Arbitration."
4In its reply, counsel for the union opens his submission by stating:
"With respect, the right to counsel issue, I readily concede that there is no bvious breach of the Ontario Labour Relations Act."
Counsel goes on to argue that section 37 of the Act contemplates that a grievance procedure will exist in a collective agreement, and further that because complex legal rights may arise or may be affected during the grievance procedure, implicit in section 37 is the right of a trade union to have counsel present during the grievance meetings with the employer. Counsel further submits that the decision to exclude counsel was made arbitrarily, that the City Administrator did not exercise his discretion properly, and that there is an apprehension of bias because the City Administrator who conducted the grievance hearing was also involved in the management decision to discharge the grievor. In essence, counsel argues that there has been a denial of natural justice and that the City Administrator has therefore violated The Labour Relations Act by denying the grievor and the union the right to have a lawyer present during the hearing under the grievance procedure.
5The complainant relies upon section 37 of The Labour Relations Act as the statutory basis for his submission that there is a right to have counsel present during the grievance procedure. However, section 37 of the Act does not require a grievance procedure to be contained in every collective agreement and, in any event, a grievance procedure is essentially a private process intended to resolve amicably differences between the parties prior to arbitration. The grievance procedure is not a quasi-judicial proceeding. Therefore, there cannot be a denial of natural justice, nor can there be any basis for alleging a violation of the Act because there is an apprehension of bias on the part of the employer representative who is dealing with the grievance. Simply put, the trappings of judicial process are not applicable to grievance procedures in the private sector. Therefore, it cannot be said that a party has a "right" to call witnesses; a "right" to cross-examination; and a "right" to counsel in connection with a grievance procedure meeting. To the extent that the complaint is brought on this basis, it is ill-founded and is therefore, pursuant to Rule 46(1) of the Board's Rules of Procedure, dismissed.
6However, sections 3 and 56, inter alia, of The Labour Relations Act envisage that the extent of trade union representation is an internal trade union matter. The employer's interest in such matters is explicitly limited. For example, in applying these sections this Board has said that an employer can have no objection to the composition of a trade union s bargaining committee. See, for example, Regina ex rel Daley v. No-Sag Spring Company Ltd 68 CLLC ¶ 14,088; House of Braemore Upholstered Furniture 67 CLLC ¶ 16,028; Mars hall-Wells Co. Ltd. 55 CLLC 1118,002; Superior Box Co. Ltd. 61 CLLC 1116,189. It is debatable that the same reasoning applies to the composition of any group the