Ontario Labour Relations Board

[1983] OLRB Rep. April 530

1717-82-U J. Lewis Humphreys, Complainant, v. Service Employees Union Local 204 A.F. of L. - C.I.O., C.L.C., Respondent

BEFORE: Ian Springate, Vice-Chairman.

APPEARANCES: R. Chris Wartman and J. Lewis Humphreys for the complainant; H. Goldblatt, Joe Jordan and J. Gooden for the respondent; Raimo T Heikkila for the Canadian National Institute for the Blind.

DECISION OF THE BOARD; April 14, 1983

1. This is a complaint under section 89 of the Labour Relations Act in which the complainant, Mr. J. Lewis Humphreys, contends that he was dealt with by the respondent trade union contrary to the provisions of section 68 of the Act.

2. Mr. Humphreys is an employee of the Canadian National Institute for the Blind (the "CNIB") and as such comes within a bargaining unit of CNIB employees who are represented by the respondent trade union. At all relevant times the employees within the bargaining unit were bound by the terms of a collective agreement between the CNIB and the trade union. Article 27 of the collective agreement provides for the posting of any job vacancies, and requires that the CNIB generally consider applicants for the vacancies on the following basis:

"Applicants will be considered on the basis of merit, ability, experience and seniority, and in all cases, employees already within the department in which the vacancy exists shall be considered before those with seniority in other departments."

Also relevant to the filling of job vacancies is article 11.05 which provides as follows:

"11.05 It is agreed that registered blind personnel will be given preference over sighted persons in all cases of job transfer, promotion, demotion, lay-off and recall."

3. Mr. Humphreys is fully sighted. Although he has been in the employ of the CNIB for only a relatively short period of time, it is clear that he has impressed management with both his abilities and his qualifications. Prior to the events giving rise to these proceedings, Mr. Humphreys had been employed in the CNIB's library as a "circulation clerk #1". In either April or May of 1982 the CNIB posted a notice indicating that there was a job vacancy for a "circulation clerk lead hand (Braille)". It appears that no one from the department involved applied for the position. However, both Mr. Humphreys and another library worker, Mrs. Beverley Devey, did apply. Mrs. Devey, who has greater seniority than Mr. Humphreys, is registered blind. The CNIB eventually selected Mr. Humphreys to fill the lead hand position, and he commenced performing the job on or about July 2, 1982.

4. Prior to his being awarded the lead hand position, Mr. Humphreys discussed the matter with Mr. J. Gooden, who is both the union steward for the CNIB library, as well as the bargaining unit's chief steward. During this discussion Mr. Gooden stated that in his view, under the terms of the collective agreement Mrs. Devey should be awarded the job because she was registered blind. Mr. Gooden testified that his interpretation of the collective agreement ruled out the possibility of a competition between blind and sighted employees but instead required that a blind employee who could perform a job be awarded it in preference to a sighted employee, even if the sighted employee was better qualified.

5. When Mrs. Devey was not awarded the lead hand position she filed a grievance requesting that she be awarded the job. During the grievance procedure the management of the CNIB discussed Mr. Humphreys' qualifications with the union and explained why he had been selected for the lead hand position over Mrs. Devey. When Mrs. Devey's grievance was not settled during the grievance procedure, the union decided, without any further discussion with Mr. Humphreys, to take it to arbitration. Although Mr. Humphreys was aware of Mrs. Devey's grievance and of the fact that the union had decided to take it to arbitration, he did not seek to discuss the matter with representatives of the union. The grievance was originally set to come before a board of arbitration on November 1, 1982. In that he might be removed from the lead hand position if the arbitration board were to uphold Mrs. Devey's grievance, Mr. Humphreys had a legal right to participate at the arbitration hearing and to be given advance notice of his right to do so. During the week prior to November 1, management of the CNIB did give Mr. Humphreys a brief notice setting out the date of the arbitration hearing. The notice, however, did not advise Mr. Humphreys of his right to be present at, and participate in, the hearing. The notice also failed to state the location of the hearing. Subsequent to his being given this notice by the CNIB, Mr. Humphreys was approached by Mr. Gooden, the union steward, and asked if he had received notice of the arbitration hearing from management. When Mr. Humphreys replied in the affirmative, Mr. Gooden did not pursue the matter any further.

6. When Mrs. Devey's grievance came on for hearing before the arbitration board on November 1, 1982, the chairman of the board inquired as to the type of notice that Mr. Humphreys had been given. Upon being advised of the contents of notice which the CNIB had given to Mr. Humphreys, the chairman telephoned Mr. Humphreys to fully advise him of his rights. During the resulting discussion, Mr. Humphreys requested that the hearing into Mrs. Devey's grievance be adjourned to a later date, and on the basis of this request it was adjourned to December 8, 1982.

7. On November 1, 1982 and November 16, 1982 counsel for the trade union wrote the following two letters to Mr. Humphreys:

"November 1, 1982

This will confirm that the hearing which was scheduled to take place today, November 1, 1982, has been adjourned at your request.

As you are undoubtedly aware, a grievance was filed by Ms. Beverley Devey on June 11, 1982, alleging that she had been improperly denied the posted position of Circulation Clerk Leadhand (Braille) without just or sufficient cause. The parties have not been able to resolve this grievance through the grievance procedure and, accordingly, the matter has been submitted to a Board of Arbitration for determination. The Board is chaired by Mr. Owen B. Shime, Q.C.

The hearing in this matter has been re-scheduled for Wednesday, December 8, 1982. As you were the successful applicant on the posting to the job in question, your rights to remain in that position may be adversely affected by the determination of the Board of Arbitration in this matter.

Accordingly, you are entitled to be present at this hearing, to participate fully therein and to be represented by counsel or by some other person as you so desire. If you do not attend on December 8, 1982, the hearing may well proceed in your absence. We will advise you as soon as we are informed as to the time and place of this hearing."

"November 16, 1982

On November 1, 1982, we wrote to you advising that the hearing in this matter would be held on December 8, 1982.

I have now been advised that the hearing will take place at 70 Bond Street, Suite 200. Toronto, Ontario at 10:00 a.m. I remind you of your rights with respect to this matter as outlined in our previous letter."

8. Subsequent to the adjournment of the arbitration hearing, Mr. Humphreys discussed his situation with the management of the CNIB. Management indicated to him that at the arbitration hearing its interests would be similar to his own. Mr. Humphreys also discussed the matter with Mr. Jordan, the union's business agent. Mr. Humphreys advised Mr. Jordan that in his view the union had a duty to represent him. Mr. Jordan's reply was that the union could not at the same time represent both he and Mrs. Devey, and that the union would be acting on behalf of Mrs. Devey. On November 24, 1982 Mr. Humphreys wrote the following letter to Mr. Jordan:

"This is to inform you that I received notice from Mr. Goldblatt regarding the new date of the arbitration hearing. The Union should realize that I feel I have a proper claim to the job in question. Prior to the original hearing date, the union failed to tell me that I would have no recourse if the Arbitration Board decided in Bev Devey's favour. I was not told I was entitled to representation or that I could be present. This situation was cleared up by the Arbitration Board chairman and not my union. According to The Labour Relations Act, Section 68, the Union has a Duty of Fair Representation and in this case is not living up to its responsibility. I am a dues paying member and have always been entitled to the same representation as Bev Devey. I request that the Union represent my interests at the Arbitration Board hearing. Your reply in this matter would be appreciated as soon as possible."

Mr. Jordan replied to this letter on November 26th. In his reply Mr. Jordan simply stated that at the arbitration hearing the union would be acting on behalf of Mrs. Devey.

9. The arbitration board reconvened on December 8, 1982, this time with Mr. Humphreys in attendance. The union's position at the hearing was that because Mrs. Devey was a registered blind person, pursuant to article 11.05 of the collective agreement she should have been awarded the lead hand position. Although the evidence on this point is not very clear, it appears that the CNIB questioned Mrs. Devey's qualifications for the lead hand position, and also contended that article 11.05 should be viewed as a "tie breaker" only, and that because of his superior qualifications Mr. Humphreys was clearly the better candidate for the job. Although entitled to do so, Mr. Humphreys chose not to actively participate at the arbitration hearing, apparently because he felt that his interests were being adequately represented by counsel for the CNIB. At the time of the hearing into this complaint, the arbitration board had not yet handed down a decision with respect to the merits of Mrs. Devey's grievance.

10. Mr. Humphreys alleges that the union's conduct violated section 68 of the Act. Section 68 provides as follows:

"A trade union or council of trade unions, so long as it continued 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."

11. At the hearing into this matter Mr. Humphreys contended that the union had violated section 68 because, in his view:

1. the union by taking up Mrs. Devey's grievance favoured her interests over his;

2. the union ignored his rights because he is sighted;

3. the union failed to meaningfully discuss or consider his interests;

4. the union failed to adequately advise him of the arbitration hearing set for November 1, 1982.

12. The simplest matter to be dealt with relates to the lack of proper notice of the arbitration hearing set for November 1, 1982. Mr. Gooden, on behalf of the union, did inquire of Mr. Humphreys as to whether he had received notice of the hearing from the CNIB, and Mr. Humphreys advised him that he had. If Mr. Gooden had pursued the matter further, he would likely have discovered that the notice from the CNIB had not been as full and detailed as it should have been. Mr. Gooden's failure to do so, however, cannot reasonably be characterized as conduct that was arbitrary, discriminatory or in bad faith. It is perhaps worth noting that Mr. Humphreys suffered no damages as a result of not receiving proper notice of the first date set for the arbitration hearing, and that it was the union that did give him proper notice of the second date set for the hearing.

13. The fact that the union decided to forward Mrs. Devey's interests and not those of Mr. Humphreys does not by itself establish a violation of section 68 of the Act. Trade unions in seeking to administer collective agreements are frequently obliged to take positions which will favour one employee over another, or one group of employees over another group and it cannot reasonably be said that each time they do so they violate the Act. That unions must at times decide between the interests of different employees is evidenced by the facts of the instant case. Mrs. Devey would not have been able to have her grievance heard by a board of arbitration without the support of the trade union. In the result, had it not taken Mrs. Devey's grievance to arbitration, the union would have been supporting Mr. Humphreys at the expense of Mrs. Devey since Mr. Humphreys would have remained unchallenged in the lead hand position.

14. At the time that the union made its decision to take Mrs. Devey's grievance to arbitration, and thereby challenge management's decision to award the lead hand position to Mr. Humphreys, it was required by section 68 of the Act to make its decision in good faith and not in a manner that was arbitrary or discriminatory. There is nothing before the Board to indicate bad faith on the part of the union towards Mr. Humphreys. The union made its decision to support Mrs. Devey's grievance not because of any ill will towards Mr. Humphreys, but only because it felt that under the collective agreement Mrs. Devey had a right to be awarded the lead hand position. The union did not act arbitrarily in the sense of not putting its mind to the issues involved. Even before the CNIB awarded the lead hand position to Mr. Humphreys, Mr. Gooden, the union steward, advised Mr. Humphreys that the wording of the collective agreement supported Mrs. Devey's claim to the job. Mr. Humphreys now claims that the union failed to meaningfully discuss or consider his interests. At no point, however, did Mr. Humphreys seek to convince the union that its interpretation of the collective agreement was in error. At the hearing into this matter Mr. Humphreys contended that the union should have inquired further into his own qualifications. In its decision making, however, the union was apparently prepared to accept management's contention that Mr. Humphreys was more qualified than Mrs. Devey. On the basis of its interpretation of the collective agreement the union felt that the question of who was the more qualified was simply not the determining factor. As to whether or not the union's interpretation of the collective agreement was the correct one is a matter for the arbitration board to decide. It is sufficient for these proceedings to conclude that the union's interpretation of the agreement was not so unreasonable as to indicate that it reached its interpretation in an arbitrary manner.

15. The only remaining issue, then, is whether in deciding to champion Mrs. Devey's grievance, the union acted in a discriminatory manner towards Mr. Humphreys. Mr. Humphreys' claim that his rights were ignored because he is sighted contains an implicit claim that he was discriminated against by the union because he is sighted. Article 11.05 of the collective agreement does clearly provide that preference in job postings is to be given to registered blind personnel. (In this regard, apparently the only issue in dispute between the union and the CNIB is the degree of preference a blind person should receive). If this type of differential treatment in the collective agreement is the type of "discrimination" section 68 of the Labour Relations Act is meant to prohibit, then in my view an attempt on the part of the union to enforce the article would amount to a breach of the Act.

16. In considering article 11.05, it must be kept in mind that frequently collective agreements give preference to one group of employees over another. For example, employees with more seniority commonly have certain preferences over employees with less seniority, and full-time employees frequently are given priority over part-time or casual employees. Every such preference cannot reasonably be viewed as a form of discrimination such that a trade union is prohibited from enforcing it under section 68 of the Act. In my view section 68 is aimed at protecting members of minority groups from being discriminated against on the basis of invidious and unsupportable grounds. Some assistance in discerning what the Act regards as improper discrimination can be found in section 48 of the Act wherein it provides that an agreement shall be deemed not to be a collective agreement "if it discriminates against any person because of his race, creed, colour, nationality, ancestry, age, sex or place of origin." None of these grounds are present in this case. We live in what is very much a sighted world. Unfortunately all too often blind persons are passed over for jobs even when they may be qualified to perform them. Against this background, I do not believe that a preference to registered blind the type of discrimination which the legislature sought to prohibit by section 68 of the Act. I find support for this conclusion in the provisions of the Human Rights Code. Although the Code prohibits discrimination with respect to employment because of a handicap, section 13 of the Act stipulates that a special program designed to relieve hardship or to assist disadvantaged persons is not a violation of the Code. Article 11.05 of the collective agreement may, or may not, amount to "a special program" under the Code. However, given the clear intent of the Code to allow special programs to help disadvantaged persons, such as those with a handicap, I do not believe that the legislature meant section 68 of the Labour Relations Act to prohibit similar provisions in a collective agreement, or to prohibit a union from trying to enforce its interpretation of such a provision.

17. Having regard to the above, this complaint is hereby dismissed.