[1983] OLRB Rep. July 1025
0296-83-U Terry Davey, Complainant, v. Canadian Union of Public Employees, Local 16, Respondent
BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. A. Ronson and C. A. Ballentine.
APPEARANCES: Terry Davey, Irene Bovay, Della Rahn, Henry Bates, Jr, Shirley McCrea and Glenna Davey for the complainant; Helen O’Regan, R. J. Anderson, Paul Jordison, Ogilvy Russell and Tim Edwards for the respondent.
DECISION OF THE BOARD; July 12, 1983
This is a complaint under section 89 of the Labour Relations Act in which it is alleged that the respondent has not complied with the terms of settlement of certain earlier section 89 complaints, contrary to section 89(7) of the Act.
On January 5, 1983, the parties entered into a written settlement in respect of Board File Nos. 1627-82-U, 1629-82-U, and 1841-82-U. The parts of that settlement material to the present complaint provide as follows:
Between Terry Davey - Complainant
And - C. U. P. E. Local 16 - Respondent
Agreement of the Parties
In the above matters the parties have met together and following lengthy discussion agree to resolve their differences in the following manner:
In the matter of the "Irene Bovay" Complaint (Board File ~l629-82-U) the Respondent denies the allegation of failure to process a Complaint Grievance on behalf of the Grievor and hereby reiterates its position that it will promptly process a grievance on behalf of Irene Bovay claiming the difference in pay between a Caretaker and a Cleaner classification for the relevant two week period in July 1982, on the understanding that in the event consideration of arbitrating the grievance arises the decision to arbitrate or not to arbitrate shall be submitted to the regular membership meeting and shall be decided by the membership vote. Both parties and the grievor hereby agree to accept in good faith the decision of the membership on this quest ion.
The Respondent hereby confirms and reiterates its intention to support the Employment Standards Officer's position before the Referee at the forthcoming hearing.
At the hearing in this matter on June 15, 1983 in Sault Ste. Marie, the Board heard the testimony of seven witnesses and also received certain documentary evidence. Having regard to all of that evidence, the Board finds the relevant facts to be as follows.
There has been turmoil within the respondent Local for some time due, at least in part, to the fact that certain female employees of the Sault Ste. Marie Board of Education (the "employer") classified as cleaners are of the view that they have been the victims of sexual discrimination. In particular, they feel very strongly that there is no justification for paying them a lower hourly rate than that paid to "caretakers". As a result of their complaints to the Ministry of Labour, Employment Standards Officer Sandra Bernhardt conducted an investigation which culminated in the following report to the Director of Employment Standards:
"I hereby report to you that the Sault Ste Marie Board of Education may have paid female employees classified as cleaners class 2, at a lesser rate of pay than male employees classified as caretakers class 4, who were performing substantially the same work, contrary to section 33(1) of the Employment Standards Act. This contravention of the Act has continued since or about May 11, 1980, and is continuing."
The Director subsequently appointed Referee Rory F. Egan to hold a hearing. under section 51 of the Employment Standards Act, concerning that matter.
The Ministry was represented before the Referee by Ministry lawyer Donald Wilson, and by Ms. Bernhardt. The employer was also represented by counsel. The hearings before the Referee commenced on February 28, 1983 and continued on May 2, 3, 4, and 5, 1983. R. J. Anderson, the Ontario Regional Director of C.U.P.E.; Helen O'Regan, a C.U.P.E. National Representative; and Tim Edwards, the President of Local 16, were all in attendance on behalf of the respondent on the first day of the Employment Standards hearing, but did not participate in the proceedings. Mr. Edwards was the respondent's sole representative at the continuation of those proceedings on May 2, 3, 4, and 5, 1983. When, during the course of those proceedings, the Referee asked Mr. Edwards what he was doing there, Mr. Edwards replied that he was the President of Local 16 and was there "as an observer". During his testimony before the Board, Mr. Edwards confirmed that he "didn't want to take sides" between the two factions within the Local concerning the Employment Standards issue.
It is abundantly clear from the evidence that the respondent has failed to comply with paragraph three of the settlement, which some local officials of the respondent appear to have interpreted as merely requiring them to support the cleaners "philosophically" and to abide by the Referee's ultimate decision. While there may be some room for legitimate differences of opinion concerning precisely what an obligation to "support the Employment Standards Officer's position before the Referee" may entail, there can be no doubt that it required something more than mere attendance of an official of the respondent "as an observer". That the Referee did not perceive the respondent to be supportive of the Employment Standards Officer's position is evident from the following passage which appears on page 3 of his decision dated June 16, 1983, which is now a matter of public record:
"The union did not actively participate in these proceedings. Its position was that of the Board [of Education] namely that the differential was not based upon sex and does not constitute a violation of section 33 of the [Employment Standards] Act."
The only remedy requested by the complainant in respect of the respondent's failure to comply with paragraph three of the settlement, and the only remedy which appears to the Board to be appropriate in relation to that breach in the circumstances of this case, is a declaration. The Referee, who is highly experienced in such matters, after carefully considering the extensive evidence which was adduced before him by counsel, found that the employer had not contravened the Employment Standards Act. Although the respondent has contravened the Labour Relations Act by failing to support the Employment Standards Officer's position before the Referee as it had agreed to do in the January 5, 1983 settlement, we are satisfied that this contravention has not resulted in any compensable harm to the grievors represented by the complainant, since it appears to us on the balance of probabilities that the Referee's decision would have been the same irrespective of the position taken by the respondent before the Referee.
As indicated above, the complainant also alleges that the respondent has not complied with paragraph one of the settlement (as quoted above). On or about January 18, 1983, the respondent, pursuant to that paragraph, filed a grievance on behalf of Ms. Bovay. The grievance alleged that the employer had violated its collective agreement with the respondent by failing to properly pay her for assuming the duties of a caretaker from July 5, 1982 to July 15, 1982, and requested that she be reimbursed the difference in pay between her classification (a "cleaner class 2") and the classification of "caretaker class 5" for the period in question. The evidence concerning the steps taken by officials of the respondent in processing that grievance is quite sketchy. However, it appears that whatever may have occurred in the four-month period prior to May 25, 1983, on that date the respondent's grievance committee, chaired by Chester Edwards, indicated to management that Ms. Bovay's grievance was "resolved" because, in Mr. Edwards' view, "it did not have enough grounds based on contract agreement to succeed".
At the regular meeting of the respondent on June 4, 1983, Chester Edwards sought to place before the membership a recommendation of the grievance committee that Ms. Bovay's grievance not be further proceeded with. However, Paul Jordison, the C.U.P.E. National Representative assigned to the respondent at that time (and at the time of the hearing of this matter), in an effort to avoid further disagreement within the Local and to avoid a final disposition of the grievance, recommended that a decision by the membership on whether or not to refer the grievance to arbitration be postponed until after the Referee had issued his decision in the aforementioned proceedings under the Employment Standards Act. Although the issue involved in those proceedings was not the same as the issue raised by the grievance, we accept Mr. Jordison's evidence that he was of the opinion that the Employment Standards case might provide some "evidence" that would be pertinent to a decision concerning the advisability of referring Ms. Bovay's grievance to arbitration. That Mr. Jordison's view was not totally unreasonable is evident from the fact that Ms. Bovay was at least partially in agreement with that view, although her attitude toward the question of awaiting the Referee's decision was somewhat equivocal in that she was desirous of having the decision as a potential basis of support for her grievance, but was also desirous of ensuring that, if the Referee found no discrimination, his decision would not be used as a basis for refusing to refer her grievance to arbitration.
A substantial majority of the membership accepted Mr. Jordison's suggestion at the June 4th meeting, and directed the grievance committee to advise the employer that Ms. Bovay's grievance was still outstanding, and that the reason for not applying for arbitration at that point was that the Employment Standards decision had not yet issued. Unfortunately, in his letter to the employer concerning that matter, Chester Edwards, as the chairman of the respondent's grievance committee, not only advised the employer that the committee had been "overruled by the membership" which, in his view, had directed the committee "to further pursue the case through the grievance steps" with the employer, but also stated:
"Our committee which has now been directed by the membership in this matter is now requesting the Board [of Education] to hear the grievance at stage #5 or indicate to us it's [sic] rejection. Membership meetings are not held during July or August and therefore, if the Board rejects hearing the grievance further, the Union executive and the Union representative would have to decide whether or not to apply for Arbitration in the dispute."
A copy of that letter was sent to Ms. Bovay who, quite understandably, became very concerned that the respondent was not going to honour its agreement that "the decision to arbitrate or not to arbitrate" her grievance would be "decided by the membership".
- After Mr. Jordison received a copy of that letter, he wrote to Chester Edwards as follows on June 13, 1983:
"On June 8, 1983, I received a copy of your letter to Mr. Ken Cliffe [the employer's Manager of Employee Labour Relations] re the above, I notice in your letter you advised Mr. Cliffe that membership meetings are not held in July or August and therefore the union executive and representative will have to make a decision on whether or not to apply for arbitration in this case.
As I stated to you and the membership on Saturday, June 4th, the agreement between Terry Davey, Complainant and CUPE Local 16, Respondent, Board file numbers 1627-82-U, 1629-82-U and 1841-82-U requires that this decision be made by the membership. As you know, this can be done in one of two ways:
at a general membership meeting or
at a special membership meeting called for this purpose.
Although we have already discussed the terms of the Davey-CUPE agreement and I am sure you have had an opportunity to review it, I am enclosing a copy of the OLRB agreement in full...."
Since Ms. Bovay was not provided with a copy of that letter, it did nothing to alleviate her legitimate concern that the respondent did not intend to comply with paragraph one of the settlement.
Having regard to all the evidence and the submissions of the parties, we find that the respondent has failed to comply with paragraph one of the settlement in that it has failed to "promptly" process Ms. Bovay's grievance. It has also given her reasonable cause to fear that "the decision to arbitrate or not to arbitrate" her grievance will be made not by the membership, as agreed, but rather by the "Union executive and the Union representative".
For the foregoing reasons, the Board hereby declares that the respondent has failed to comply with paragraphs one and three of the January 5, 1983 settlement, contrary to section 89(7) of the Labour Relations Act, and hereby directs the respondent to forthwith call a special membership meeting for the purpose of deciding whether or not to arbitrate the grievance of Irene Bovay, dated January 18, 1983. A copy of this decision and the attached notice marked "Appendix", duly signed by a representative of the respondent, is to accompany each of the notices to the membership concerning that special meeting.
Appendix
The Labour Relations Act
NOTICE TO EMPLOYEES
We, Canadian Union of Public Employees, Local 16, have issued this notice in compliance with an order of the Ontario Labour Relations Board issued after a hearing in
which we, and certain members represented by Terry Davey, participated. The Ontario Labour Relations Board found that we violated the Labour Relations Act by failing to comply with paragraphs one and three of a written settlement which we entered into on January 5, 1983.
We assure all employees represented by us that:
WE WILL comply with the terms of the January 5, 1983 written settlement.
WE WILL NOT act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employees for whom we hold bargaining rights.
WE WILL forthwith call a special membership meeting for the purpose of deciding whether or not to arbitrate the grievance of Irene Bovay, dated January 18, 1983, as ordered by the Ontario Labour Relations Board.
Canadian Union of Public Employees, Local 16
per: __________________________
(Authorized Representative)
July 12, 1983
THIS IS AN OFFICIAL NOTICE
OF THE ONTARIO LABOUR RELATIONS BOARD