David See-Wai Wu v. Canadian Union of Public Employees Local 1692, 1982 CanLII 956

[1982] OLRB Rep. August 1190

0043-82-U David See-Wai Wu, Complainant, v. Canadian Union of Public Employees Local 1692, Respondent, v. North York General Hospital, Intervener

BEFORE: Pamela C. Picher, Vice-Chairman

APPEARANCES: David See-Wai Wu on his own behalf Brian Atkinson, Gary Dennis and Walter .1. Lavigne for the respondent, Corinne F. Murray and Donna M. Gillis for the intervener.

DECISION OF THE BOARD; August 12, 1982

1. Mr. David Wu has filed a complaint under section 68 of the Labour Relations Act. He maintains that following his discharge from his employment at North York General Hospital the respondent union dealt with him in a manner that was in breach of its duty of fair representation. Section 68 of the Act 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.

2. On January 7, 1982 Mr. Wu was suspended from his position as a porter in the food services department of the Hospital. On January 8th Mr. Wu met with Mr. Gary Dennis, the chief shop steward, to discuss his suspension and the possibility of filing a grievance. Mr. Dennis advised Mr. Wu that he should wait to receive the documentation from the Hospital. On January 11th Mr. Wu was advised by the Hospital that Mrs. Denise Read, the manager of dietetic services, wanted to deliver a letter of discharge to him the following day.

3. When Mr. Wu went to his meeting with the Hospital on January 12th neither Mr. Dennis, the chief steward, nor Mr. Borge Westerman, another union representative with whom he had previously spoken about his situation, was at work. The Hospital, however, located a shop steward from another section of the Hospital, Mr. Wally Lavigne, and the meeting commenced with Mrs. Read giving Mr. Wu his letter of discharge.

4. The Board concludes from the evidence of the various witnesses that the meeting progressed as follows: Mr. Wu read his letter of discharge and stated that it contained three mistakes which he wanted to explain to the Hospital. Mrs. Read replied that if there were parts of the discharge letter that he did not agree with it was his right to present a grievance. Mr. Wu indicated that that was what he wanted to do and he and Mr. Lavigne then talked between themselves about the filing of a grievance. Mr. Lavigne informed Mr. Wu that he had only a few days to file a grievance. Mr. Wu though explained to Mr. Lavigne that he had to catch a train in about an hour to make an urgent trip to Chatham. He indicated that he would be back the following Monday. Of particular importance to Mr. Wu's complaint is the further evidence that Mr. Wu specifically asked Mr. Lavigne if there would be any problem with his filing a grievance in one week, immediately upon his return from Chatham. Mr. Lavigne, in his evidence, acknowledged both that Mr. Wu asked him if there would be any problem with not filing his grievance for one week and that he, Mr. Lavigne, told him there would be no problem. Mr. Lavigne acknowledged that he told Mr. Wu that he couldn't see why he couldn't be away until Monday and see Mr. Dennis, the chief steward, to discuss his grievance when he got back from Chatham.

5. The evidence reveals that Mr. Lavigne did not inform Mr. Dennis of Mr. Wu's situation following Mr. Wu's receipt of his letter of discharge. More specifically, he did not tell Mr. Dennis that Mr. Wu would be away for one week and would not be able to file a grievance until his return on January 18th. Mr. Dennis confirmed that he heard nothing about Mr. Wu's situation between his initial conversation with Mr. Wu on January 8th and Mr. Wu's return from Chatham on January 18th.

6. When Mr. Wu returned from Chatham on January 18th he contacted Mr. Dennis immediately to see if his grievance had been filed. Mr. Dennis testified that he informed Mr. Wu that because he had spent a week in Chatham immediately following the receipt of his letter of discharge his grievance would not be timely and that he would have to investigate the matter. Mr. Dennis told the Board that at that point he had heard that there was something going on in Mr. Wu's department and that when one employee had refused to do something the supervisor asked Mr. Wu to do it and he refused. Mr. Dennis stated that he tried to impress upon Mr. Wu on January 18th that by refusing to do the work he had given merit to management's position in the matter.

7. It is common to the testimony of both Mr. Wu and Mr. Dennis that on January 18th Mr. Dennis told Mr. Wu that he would look into the matter and get back to Mr. Wu in two days. Their further consistent evidence reveals that when Mr. Dennis called Mr. Wu in two days Mr. Dennis told him that they would be submitting a grievance and he would contact him again in a couple of days. Mr. Wu testified without contradiction that following this conversation Mr. Dennis never called him back. Mr. Dennis confirmed that contrary to what he had indicated to Mr. Wu, he did not at this point file a grievance.

8. After about a week, or on or about January 28th, Mr. Wu went to see Mr. Dennis about his grievance. According to Mr. Wu, Mr. Dennis told him at that point that he could not file his grievance because he had received too many disciplinary letters. Mr. Dennis confirmed in his evidence that it was only in the early part of February or approximately a month following his discharge that he looked at Mr. Wu's file and became aware of the prior letters from the Hospital.

9. On or about February 8, 1982 Mr. Wu went to the union's offices to see a Mr. Randy Millage, a union representative to whom he had been referred by someone at the Hospital. Mr. Wu explained his situation to Mr. Millage. Thereafter, on February 11th, Mr. Millage instructed Mr. Dennis to prepare a grievance for Mr. Wu to sign for filing with the Hospital.

10. Mr. Wu's grievance was filed by the union on February 12th. Through a letter dated February 15th the Hospital denied Mr. Wu's grievance on the following basis:

February 15, 1982

Mr. David Wu

Apartment 1202

1338 York Mills Road

Don Mills, Ontario

M3A 3M3

Dear Mr. Wu:

Your grievance was left in the office of the Director of Personnel & Labour Relations on Friday, February 12, 1982.

Article 7, Grievance Procedure, in the Collective Agreement between the North York General Hospital and the Canadian Union of Public Employees, Local 1692, outlines the procedure for filing a grievance. You have not submitted your grievance within the time limits provided, therefore, according to the Collective Agreement, if there is a grievance, it has to be deemed to be settled.

Further, you have not followed the procedure outlined in the Collective Agreement, Article 7, in that you did not discuss this complaint with your Supervisor, Ms. Elaine Walker, you did not submit the grievance to your Department Head, Mrs. D. Read, and your Steward did not sign the grievance.

Accordingly, your grievance is not a proper grievance because you have failed to follow the procedure outlined in Article 7.

Yours truly, ks cc: Mrs. D. Read (Ms.) Donna M. Gillis cc: C.U.P.E. Director of Personnel & Labour Relations cc: Personnel

The Hospital denied Mr. Wu's grievance both because he did not follow the procedure outlined in article 7 of the collective agreement and because he did not file his grievance within the appropriate time limits. The relevant provisions of the collective agreement are set out below:

(Provisions of collective agreement omitted).

600

11. In an attempt to reverse the Hospital's decision, Mr. Wu prepared a letter addressed to the personnel department of the Hospital along with an explanation of what had happened on the day of his suspension. He then took them to Mr. Millage who undertook to talk the situation over with the Hospital and call Mr. Wu if he received any news. When Mr. Wu had not heard from Mr. Millage for one week he telephoned him. Mr. Millage informed him that there was nothing new and instructed Mr. Wu to call him again in another week. When Mr. Wu called back a week later he was again informed there was nothing new and was again instructed to call back in another week. When he called back a week later he was directed to call a particular union representative at the Hospital, Mr. Bill McKinnon. When Mr. Wu called Mr. McKinnon, Mr. McKinnon stated that he would make inquiries on his behalf. After three days Mr. Wu phoned Mr. McKinnon. He was told that the Hospital would not accept his grievance because it was too late and because Mr. Wu had received five previous letters from the Hospital. It was at that point that Mr. Wu filed the instant complaint alleging that the union had violated its duty of fair representation.

12. Mr. Dennis testified to the procedures regularly followed by the union for deciding whether a grievance should proceed to arbitration. He explained that the union has a grievance committee composed at the relevant time of three persons to decide whether a grievance should proceed to arbitration. Mr. Dennis testified that he and one of the other persons on the committee discussed Mr. Wu's grievance in their locker room on a break. He testified that they decided that Mr. Wu's grievance should not proceed to arbitration because there are too many points against them. Mr. Dennis acknowledged that his exchange with the other member of the grievance committee was really just a discussion and was not an official or formal meeting of the grievance committee. The evidence reveals that the third member of the committee was not given notice of or invited to the discussion. Mr. Dennis indicated that the grievance committee has regular monthly meetings where outstanding grievances are regularly discussed. Mr. Wu's grievance was not discussed at one of these regular meetings. With respect to the rationale for their decision not to process Mr. Wu's grievance to arbitration, Mr. Dennis stated that the previous disciplinary letters in Mr. Wu's file did not bear on their decision. Instead, he indicated, they were mainly influenced by the fact that Mr. Wu had refused a work assignment.

13. Mr. Dennis stated that a grievor has the right to appeal a negative decision of the grievance committee to the union membership. He acknowledged, however, that he did not inform Mr. Wu of this right.

14. Mr. Wu stated that the basis of his complaint against the union is that Mr. Lavigne led him to believe that there would be no problem if he went to Chatham for a week to attend to an urgent matter prior to filing a grievance concerning his discharge. Mr. Wu complains that as a result of being misled in this manner his grievance was denied for procedural defects and was not considered on its merits. In contrast, the union argues that the late filing of the grievance had no adverse impact on Mr. Wu because after reviewing the merits of Mr. Wu's grievance, the union decided not to proceed to arbitration in any event.

15. A union is under a duty to represent the employees in a bargaining unit in a manner that is not arbitrary, discriminatory, or in bad faith. Mr. Wu does not suggest that the union either acted in bad faith or discriminated against him. The issue then is whether the union represented Mr. Wu in an arbitrary manner.

16. A union is not required to be correct in every step it takes on behalf of an employee. Moreover, mere negligence on the part of a union official does not ordinarily constitute a breach of section 68. See Ford Motor Company of Canada Limited, [1973] OLRB Rep. Oct. 519; Walter Princesdomu and The Canadian Union of Public Employees, Local 1000, [1975] OLRB Rep. May 444. There comes a point, however, when "mere negligence" becomes "gross negligence" and when gross negligence reflects a complete disregard for critical consequences to an employee then that action may be viewed as arbitrary for the purposes of section 68 of the Act. In Princesdomu, supra, the Board said at pp 464-465:

Accordingly at least flagrant errors in processing grievances—errors consistent with a "not caring" attitude—must be inconsistent with the duty of fair representation. An approach to a grievance may be wrong or a provision inadvertently overlooked and section 60 has no application. The duty is not designed to remedy these kinds of errors. But when the importance of the grievance is taken into account and the experience and identity of the decision-maker ascertained the Board may decide that a course of conduct is so, implausible, so summary or so reckless to be unworthy of protection. Such circumstances cannot and should not be distinguished from a blind refusal to consider the complaint.

(See John Adema, [1979] OLRB Rep. Jan. 1 for a subsequent case citing with approval the above quoted principle.)

17. It is well established that a union is not required to take every grievance to arbitration. In deciding whether or not to take a grievance to arbitration, however, the union is required to direct its mind to the merits of the grievance and make its decision on available facts. See Ford Motor Company Limited, supra, Princesdomu, supra; Zorzi and Nadaline, [1975] OLRB Rep. Oct. 791 and Antonio Melillo, [1976] OLRB Rep. Oct. 613.

18. At the hearing, the union stated that it is mandatory under the collective agreement for a discharge grievance to be filed within three days. It is not the role of this Board in this proceedings to interpret the terms of the collective agreement. Accordingly, for the purposes of this decision we adopt the union s interpretation on this point particularly as it is an interpretation which was further accepted by the other parties.

19. In his testimony Mr. Lavigne insisted that he informed Mr. Wu at his discharge meeting that he had only a few days to file his grievance. At the same time, however, he acknowledged that when Mr. Wu specifically asked if there would be any problem with his making his urgent trip to Chatham first, he replied that there would not and that he could speak to Mr. Dennis immediately upon his return. In further describing his conversation with

Mr. Wu, Mr. Lavigne indicated that he found Mr. Wu difficult to understand and felt that they were not communicating clearly. At the hearing the Board employed the services of a translator for Mr. Wu whose first language is Chinese. Mr. Lavigne stated that at the time of his exchange with Mr. Wu about his trip to Chatham he felt that they were "miles apart in their communication". He said, "I don't think I was getting across to him too clearly and he was not getting across to me." Although Mr. Lavigne acknowledged that he was aware that there were other people at the Hospital who spoke Chinese, he did not seek the assistance of anyone to insure that his communication with Mr. Wu, on the critical matter of the timely filing of his discharge grievance, was clear. It is apparent on the evidence that notwithstanding Mr. Wu's direct inquiry, Mr. Lavigne never apprised Mr. Wu of the risk in leaving for Chatham before filing a grievance.

20. Mr. Lavigne did not suggest that he was not aware that the grievance had to be filed within three days of the discharge. The Board is compelled to conclude on the evidence that Mr. Lavigne, while fully aware of the time limits, responded to Mr. Wu's clear inquiries about a possible risk in making his trip to Chatham in a manner that led Mr. Wu to believe that he could go to Chatham for a week and have no problem filing this grievance upon his return.

21. In the Board's opinion the union's communication to Mr. Wu on the matter of his trip to Chatham constitutes such disregard for its natural adverse consequences that it must be viewed as gross negligence constituting arbitrary conduct within the meaning of section 68 of the Act. The conversation must be characterized either as willfully misleading or, focusing on Mr. Lavigne's comment that they were "miles apart in their communication", as reflecting a reckless disregard for whether Mr. Wu was misled or not. In a matter of such importance as the timely filing of an employees' discharge grievance, the Board is of the opinion that a union violates its duty of fair representation if, as in this case, it leaves its communication with an employee who is specifically inquiring about possible risks in following a proposed course of conduct in a state in which the union is either aware or readily ought to have been aware that the employee, to his detriment, has been misled as to a critical consequence of his proposed act.

22. The union argues that it should not be found to have violated its duty of fair representation because the late filing of Mr. Wu's grievance really had no adverse impact on him given that the union subsequently considered the merits of his grievance and decided not to take the matter to arbitration. The Board cannot conclude on the evidence, however, that the subsequent conduct of the union rectified the initial breach of section 68 set out above.

23. According to Mr. Dennis, the procedure regularly followed by the union to determine whether grievances should go to arbitration is for the grievance committee to review the merits of a grievance and make a decision. In this case Mr. Dennis acknowledged that Mr. Wu's grievance was not considered at a regular or official meeting of the grievance committee or even discussed by all of the members. Instead Mr. Dennis met one of the two other members of the grievance committee in the locker room on a break during which they had a discussion about Mr. Wu's grievance and decided that it should not go to arbitration. In discussing the investigation he made prior to deciding not to take the matter to arbitration Mr. Dennis stated that he spoke to two or three other Chinese co-workers to ask if anyone had seen what had taken place on the day of Mr. Wu's suspension. He stated that he wanted to see what Mr. Wu was like to work with and whether what Mr. Wu had told him was true. Mr. Dennis did not state in evidence, however, what he learned or concluded from his conversations with Mr. Wu's co-workers. He confirmed that he never discussed the matter with Mrs. Read who Mr. Wu described as his department head. Mr. Dennis further acknowledged that while he discussed the incident precipitating Mr. Wu's discharge with him following the suspension, he never again discussed the merits of the situation with Mr. Wu after the suspension was transformed into a discharge. At the meeting with the Hospital when Mr. Wu was given his letter of discharge he clearly stated to Mr. Lavigne that the letter contained three mistakes he wanted to discuss with the Hospital. The Board cannot conclude from the evidence that the union ever inquired into the nature or merit of these alleged mistakes.

24. The Board concludes on the evidence of this case that the union has not discharged the evidentiary burden which has shifted to it of establishing that its subsequent conduct nullified its initial breach of section 68. The Board is not satisfied that the union in accordance with its own procedures adequately directed its mind to the merits of Mr. Wu's complaint prior to deciding not to process it to arbitration to rectify its prior conduct.

25. For the reasons set out above therefore the Board concludes that the union violated its duty of fair representation in the manner in which it dealt with Mr. Wu following his discharge. The appropriate remedy in the circumstances of this case is, in part, to send Mr. Wu's grievance to arbitration for a hearing on the merits. (See Ford Motor Company, supra; Leonard Murphy [1977] OLRB Rep. March 146; Shafickool Mohammed, [1977] OLRB Rep. April 216; Reginald Walker, [1980] OLRB Rep. Oct. 1561 and Bedard Girard Ontario [1981] OLRB Rep. Oct. 1338).

26. Accordingly, the Board makes the following order:

27. that the respondent union forthwith submit the grievance of Mr. Wu's discharge to arbitration for a hearing on its merits;

28. that the Hospital, for its part, forthwith take the steps that are necessary for bringing Mr. Wu's grievance to arbitration

29. that the Hospital waive any preliminary objection it might have under the collective agreement that would preclude Mr. Wu's grievance from being heard on its merits;

30. that, in the event that Mr. Wu's grievance is successful and an arbitrator or board of arbitration makes an order of compensation, the union bear the burden of paying whatever compensation may be attributable to the delay caused by its violation of the Labour Relations Act, specifically, any compensation owing from January 18th through to and including the date of the issuance of this decision;

31. that, the respondent forthwith provide copies of the attached notice marked "Appendix", signed by the respondent's authorized representative, to the intervener employer in sufficient numbers for posting in the employer's premises;

32. that the intervener post forthwith copies of the attached notice marked "Appendix", duly signed by the respondent's authorized representative, in conspicuous places at the Hospital where bargaining unit employees work including all places where notices to employees are customarily posted, and to keep these notices posted for 60 consecutive working days. Reasonable steps shall be taken by the intervener to insure that the said notices are not altered, defaced or covered by any other material.

33. The Board remains seized in the event that a dispute arises over the interpretation or implementation of its Order.

34. The complaint is hereby allowed.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE, LOCAL NO. 1692 OF THE CANADIAN UNION OF PUBLIC EMPLOYEES, HAVE ISSUED THIS NOTICE IN COMPLIANCE NITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH WE PARTICIPATED. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT AND HAS ORDERED US TO INFORM ALL EMPLOYEES IN THE BARGAINING UNIT OF THEIR RIGHTS.

THE ACT GIVES INDIVIDUAL EMPLOYEES THESE RIGHTS:

TO BE REPRESENTED BY A TRADE UNION AND TO PARTICIPATE IN ITS LAWFUL ACTIVITIES.

TO BE REPRESENTED BY A TRADE UNION IN A WAY THAT IS NOT ARBITRARY, DISCRIMINATORY

OR IN BAD FAITH, HHETHER OR NOT THEY ARE MEMBERS OF THAT TRADE UNION.

WE ASSURE ALL EMPLOYEES REPRESENTED BY LOCAL NO. 1692 OF THE CANADIAN

UNION OF PUBLIC EMPLOYEES THAT:

WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS.

WE WILL NOT ENGAGE IN ANY CONDUCT THAT IS ARBITRARY, DISCRIMINATORY OR IN BAD FAITH IN THE REPRESENTATION OP ANY MEMBER OR EMPLOYEE.

WE WILL COMPLY WITH ALL ORDERS OF THE ONTARIO LABOUR RELATIONS OARD.

WE WILL FORTHWITH SUBMIT MR. DAVID WU's GRIEVANCE RELATING TO HIS DISCHARGE TO ARBITRATION.

IF MR. WU'S GRIEVANCE IS SUCCESSFUL AND AN ORDER OF COMPENSATION IS MADE BY THE BOARD OF ARBITRATION, HE WILL PAY THAT PORTION ATTRIBUTABLE TOTE DELA CAUSED BY OUR VIOLATION OF TH LABOUR MELATI MS ACT AS ORDERED BY THE ONTARIO LABOUR RELATIONS BOARD.

LOCAL No. 1692, CANADIAN UNION OF PUBLIC LMPLOYEES

PER:

AUTHORIZED REPRESENTATIVE

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 60 consecutive working days.

DATED this 12th day of AUGUST . 1982