The Ontario Public Service Employees Union v. The Children's Aid Society of Ottawa-Carleton, 1984 CanLII 1068

[1984] OLRB Rep. February 340

1987-83-U The Ontario Public Service Employees Union, Complainant, v. The Chil­dren's Aid Society of Ottawa-Carleton, Respondent

BEFORE: Richard M. Brown, Vice-Chairman, and Board Members C. A. Ballentine and J. Wilson.

APPEARANCES: P. A. Sheppard, Bernie Farber, Sherill Murray and Jeff Walker for the complainant; A. P. Tarasuk and J. Messner for the respondent.

DECISION OF THE BOARD: February 21, 1984

1. This complaint questions the authority of an employer to issue directions to an em­ployee, who is also a union officer, concerning the conduct of affairs associated with that of­fice. The Ontario Public Service Employees Union ("OPSEU") initiated proceedings against the Children's Aid Society of Ottawa-Carleton (the "Society"), under section 89 of the La­bour Relations Act, alleging a violation of sections 64 and 66(c).

I

2. The union officer is Bernie Farber who has been the president of OPSEU Local 454 since June, 1982. He is also a social worker in the employ of the Society. The employer sought to inquire into discussions between Mr. Farber and Lyne Sylvestre, a child care worker and fellow employee. Throughout the events in question, all concerned — including Ms. Syl­vestre — were under the false impression that she was a union member.

3. The triggering event was a telephone call made by Mr. Farber on September 16, 1983. He believed that he had reached Lynn Lamer, another employee, but he was in fact talking to Lyne Sylvestre. Sylvestre works at the residential treatment unit where Lamer re­sides. Farber was calling about an oral warning recently received by Lamer. According to Sylvestre, when she answered the phone, Farber used only a first name to identify the party with whom he wished to speak. She testified that he mentioned an oral warning recently issued by the employer, referred to the supervisor involved, Gilbert Gervais, as a "prick" and en­couraged her to grieve. According to Farber, he asked to speak to Lynn Lamer, suggested that a grievance be considered, but did not use the word "prick". Before the conversation ended, both parties realized that a mistake had been made.

4. Lyne Sylvestre reported this conversation to Gilbert Gervais who is her supervisor. Gervais in turn informed Mr. C. Chafe, the director of treatment services, who suggested that Sylvestre take the matter up with the union. Sylvestre wrote to Mr. Farber, objecting both to his carelessness in disclosing a warning given to a fellow employee and to his description of Mr. Gervais. (In the letter, Sylvestre referred to herself as a union member. Apparently, everyone who saw the letter assumed she was right.) Mr. Gervais arranged to have this letter typed and mailed it. Farber replied by letter, inviting Sylvestre to meet with him to discuss the matter. There was another exchange of letters between them, and two or three telephone conversations. To this point, nothing had been resolved. She was still unsatisfied with his re­sponse to her first letter. He wanted to meet with her, but she insisted upon a full answer in writing. Meanwhile, the September 16th telephone conversation was raised at a joint con­sultative committee meeting on September 29th. When the chief steward, Mr. J. Walker, said that staff morale was threatened by the employer's approach to discipline, Mr. Chafe replied that a union officer had acted in a way that undermined morale. Chafe then stated that Farber had encouraged an employee to grieve and had called a supervisor a "prick". Farber denied using this word. A few days later, Chafe obtained a copy of Sylvestre's letter to Farber and showed it to Joseph Messner, the Society's executive director. Messner then wrote to Farber, asking for his comments on Sylvestre's accusations. Farber visited Messner in his office and assured him that the word "prick" had not been uttered. The minutes of the September 29th joint consultative committee meeting, in their original form, made no mention of the Sep­tember 16th telephone conversation. At the next joint consultative meeting, Mr. Messner re­ferred to this oversight. According to Chafe, Farber said the conversation was an internal union matter and Messner agreed that it would not be the subject of further discussion.

5. A union membership meeting was held on October 19th. Without identifying Lyne Sylvestre by name, the union executive announced that a union member had disclosed to man­agement a conversation with a union official. The discussion revolved around article 22.1(g) of the constitution:

22.1 Any member of the Union shall be deemed to have committed an offence against the Union if s/he:

(g) Publishes or circulates, either within the Union or outside, false reports or mis-representations about the Union or any Of­ficer or member of the Union with respect to the activities of the Union or members in their capacity as members.

According to Sherill Murray, secretary of Local 454, members were concerned about a pos­sible "breach of confidentiality" and directed Farber to pass their concern on to the member concerned, saying that charges could be laid, but would not be in this case.

6. Farber telephoned Sylvestre on November 3rd. According to Sylvestre, he said that some "sisters and brothers" wanted to charge her under the union constitution for breach of confidentiality, but he was opposed to bringing charges. She testified that he also mentioned expulsion from membership as a possible penalty. According to Farber, he said union mem­bers were concerned there may have been a breach of confidentiality, but he made no mention of charges or expulsion. They agreed to meet at noon on November 8th. Sylvestre then called Gervais and recounted her version of her most recent conversation with Farber. The next day Gervais passed this information to Chafe. He called Sylvestre and learned she was reluctant to meet Farber. Chafe then reported what had transpired to Messner.

7. Messner decided to investigate the alleged "threat" relating to charges or explusion by calling Sylvestre and Farber to his office for a meeting at 11:00 on November 8th — one hour before Farber was scheduled to meet with Sylvestre. Prior to the meeting, Messner and Farber conversed over the telephone about the union president's attendance at the meeting called by the executive director. According to Messner, when Farber expressed his reluctance to attend, Messner "let him know he was expected to be there", and said a decision to impose discipline might be made in his absence if the "threat" was proven. By this time, Messner had consulted the city's solicitor about whether an employee could be required to attend a meeting and what could be done if the request was refused. According to Farber, he told Mes­sner the issue was an internal union matter, and Messner replied that he did not wish to issue an order to attend, but suggested he would if necessary.

8. What Messner had planned as an informal gathering turned into an adversarial con­frontation. Farber was accompanied by Walker and Sherill Murray whose minutes of the meet­ing were introduced into evidence. Chafe also took minutes which were not produced at the hearing. The minutes taken by Murray indicate that the union officials advised Messner that the matter was an internal union affair. Messner responded that the alleged "threat" was a corporate matter and admitted telling Farber that a failure to attend would lead to a discipli­nary letter. At one point, Messner stated that the purpose of the meeting was to ascertain the facts, but he later said that he would be the one to determine if what had happened was ap­propriate. When Walker suggested that the union officials might leave, Messner replied that employees are required to meet with him. Walker then advised the executive director that he was in contravention of the Labour Relations Act. The meeting ended, having produced more heat than light. Two days later Messner wrote to Farber saying that, in the absence of a denial by Farber, the employer must assume the "threat" had been made. Messner also requested Farber in future both to refrain from making threats and to abide by the spirit of the collective agreement in a joint effort to resolve grievances. The letter was addressed to Farber as pres­ident of the local union.

9. Putting these recent events to one side, both Farber and Messner described their collective bargaining relationship as harmonious.

10. Counsel for the Society referred us to the following articles in the collective agreement:

ARTICLE 3 - NO DISCRIMINATION

3.01 The Society and the Union agree that there will be no intimi­dation, discrimination, interference, restraining or coercion ex­ercised or practised by either of them or by any of their representatives or members because of any employee's member­ship or non-membership in the Union or because of her activity or lack of activity in the Union.

ARTICLE 5 - MANAGEMENT RIGHTS

5.01 The Union recognizes and acknowledges that the management of the Society's operations and direction of the employees are fixed exclusively in the Society and, without restricting the generality of the foregoing, the Union acknowledges that it is the exclusive function of the Society to:

(a) maintain order and efficiency;

(b) hire, promote, demote, classify, transfer, layoff, suspend and re­tire employees, and to discipline or discharge any employee provided that a claim by an employee who has acquired seniority that he has been discharged or otherwise disciplined without just cause may be the subject of a grievance and dealt with as hereinafter provided;

(c) make, enforce, and alter, from time to time reasonable rules and regulations to be observed by the employees, provided that they are not inconsistent with this agreement;

ARTICLE 10 - POLICY GRIEVANCES

10.01 It is understood that the Society may bring forward at any meet­ing held with the Union Executive Committee any complaint with respect to the conduct of officers, committee members or Union representatives, and if such complaint by the Society is not set­tled to the mutual satisfaction of the conferring parties it may be treated as a grievance and referred to Step 2 in the same way as a grievance of an employee.

II

11. This complaint is brought under sections 64 and 66(c).

64. No employer or employers' organization and no person acting on be­half of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute finan­cial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

65. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(c) shall seek by threat or dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or rep­resentative of a trade union or to cease to exercise any other rights under this Act.

12. A person who is both an employee and a union official sometimes wears one hat and sometimes the other, and an employer's lawful disciplinary authority is determined by the role being played at any particular time. So long as the individual in question is engaged in the role of an employee, he or she is subject to employer direction, and to resulting penalties for non-compliance, in the same way as any other employee. Consider, for example, the case of a union steward who takes a day off work, without permission, to go fishing, and who is disciplined for this unauthorized absence. These facts obviously disclose no violation of the Labour Relations Act, because any employee — union official or not — who acts in this way merits discipline.

13. But a person who plays the role of union official is viewed differently by the law. Section 3 recognizes an employee's right to "participate" in the "lawful activities of a trade union": this right includes the right to discharge the responsibilities entailed by union office. Section 66(a) prohibits an employer from disciplining, or threatening to discipline, an em­ployee for exercising any right under the Act. See generally St. Catherines General Hospital, [1982] OLRB Rep. Mar. 441 at para. 34 to 38 and United Steelworkers of America and Inglis Ltd., (1977) 1977 CanLII 1207 (ON HCJDC), 77 D.L.R. (3d) 722 (Ont. Div. Ct.).

14. One of the primary responsibilities of many union officials is processing grievances over alleged contractual violations. The enforcement of an agreement by union representatives is an essential part of the collective bargaining process. In other words, section 66(c) prohibits an employer from disciplining a union steward for submitting a grievance. See Valdi Inc. [1980] OLRB Rep. Aug. 1254 and Silknit Limited, [1983] OLRB Rep. Aug. 1362. An em­ployer who followed this course would also run afoul of section 64 by interfering in the administration of a trade union.

15. This does not mean that representatives of a union are immune from discipline in the grievance process. But the weight of authority suggests that a union official engaged in processing grievance enjoys some protection, under the Act, from discipline for conduct that if carried on while wearing only his or her employee hat would be insubordinate. In Valdi Inc., supra, the Board quoted with approval an arbitration award that recognized the need to ensure that union officials are not deterred by discipline from carrying out their duties:

For the purposes of assessing whether or not conduct is insubordination the standard of conduct that the company is entitled to expect should be different when applied to the acts of union committeemen engaged in the legitimate discharge of their duties. For, ... a committeemen is, while attempting to resolve grievances between employees and company per­sonnel, always functioning on the border line of insubordination. His role is to challenge company decisions, to argue out company decisions and, if the discharge of that role he is to be exposed to the threat of discipline for insubordination, his ability to carry out his role will be substantially compromised. This is not to say that a committeeman has a carte blanche to ignore at will management instructions and to instruct others not to carry them out. His immunity, if it may be called that, is limited to acts or omissions committed in the discharge of his functions and to acts or omissions which may reasonably be regarded as a legitimate exercise of that function. To put it succinctly, a committeeman is not entitled to punch a foreman in the nose as one of his means of attempting to bring about a settlement of a grievance. (Firestone Steel Products, (1975) 1975 CanLII 2068 (ON LA), 8 L.A. C. (2d) 164 (Brandt).

The National Labour Relations Board has followed a similar course. In May Dept. Stores Co., 220 NLRB 1096, 90 LRRM 1444 (1975), enforced 555. F 2d. 1338, 95 LRRM 2657 (CA 6, 1977), that Board found an employer had committed an unfair labour practice by discharging a union steward for being rude to a manager in the course of a heated debate over a jurisdictional grievance. But the NLRB has declined to protect a union official whose con­duct is "extraordinarily obnoxious, wholly unjustified, and departs from the res gestae of the grievance procedure." See Union Fork & Hoe Co., 241 NLRB 901, 101 LRRM 1014 (1979).

16. This Board has also considered the shelter afforded by the Act to a union official who publicly criticizes management's bargaining stance, either mid-contract or during nego­tiations to renew a collective agreement. As in the grievance process, a union representative enjoys some degree of protection, but not complete immunity. See St. Catharines General Hospital, supra. In the circumstances of that case, the Board found a public statement was protected activity.

17. Some union officials also attend to internal union affairs, such as policing adherence to the constitution by union members. Like grievance processing and negotiations, this activity is an integral part of our system of free collective bargaining. The constitution of a trade union defines the powers of officers as well as the rights and obligations of members. Without a constitution, an association of employees cannot function fairly and effectively as a trade union. This is why an applicant for certification must demonstrate that it has a valid constitution be­fore the Board treats it as a trade union entitled to be certified as a bargaining agent. See Tridon Limited, [1974] OLRB Rep. Jan. 16. The importance of a union's internal laws to col­lective bargaining does not end upon certification. The ongoing interest of a trade union in enforcing its constitution must be shielded from an employer's disciplinary power. Manage­ment cannot punish or threaten to punish, an official merely for enforcing the union's internal laws. The conduct of such internal union affairs is protected from discipline by sections 64 and 66(c).

18. The focus of the discussion to this point has been the use of discipline to control the activities of a union official. We turn now to consider the invocation of punishment by management to compel an official to divulge information about union activities, such as pol­icing its constitution or enforcing a collective agreement. Does an employer have the lawful authority to compel a union representative to disclose discussions with a grievor or with an employee who is alleged to have contravened the constitution? The answer is no, because dis­cipline skews the balance of power that the Labour Relations Act is designed to achieve be­tween union and employer. The use of an employer's disciplinary power upsets the balance in two ways: by undercutting the standing of union officials who are subordinated to man­agement; and by allowing the employer an unfair advantage, over the union, in access to in­formation — information that translates into power. An employer who invokes discipline to obtain such information from a union official thereby contravenes sections 64 and 66(c).

19. The use of discipline is what taints management's actions with illegality, not its in­terest in union activities. This Board has recognized that, depending upon the context, an em­ployer may have a legitimate interest in the laying of charges against a union member, and that management may lawfully use its economic power, at the bargaining table, to persuade a union not to take such action. In A. N. Shaw Restoration Ltd., [1976] OLRB Rep. Sept. 504, the employer sought a "no reprisals" clause that would have prevented the union from disciplining employees for working through a strike. The Board found no interference with the administration of a trade 'union, but noted that the use of economic leverage to influence union affairs would not be legal in all cases:

Section 56 [now 64], in our opinion, cannot be construed as creating a violation on every occasion where a collective agreement, or proposed collective agreement, may conflict with the conduct of internal union af­fairs. In fact, there is good authority for the proposition that, in certain circumstances, the collective agreement takes precedence over the inter­nal constitutional arrangements of a trade union. See Orenda Engines Ltd., (1958), 8 L.A.C. 116 (Laskin); Leader Masonry and Forming Ltd., 1119641 OLRB Rep. 156. It does not follow from these cases, however, that any collective agreement provision is justified, regardless of the de­gree to which it affects the conduct of union affairs. It is possible to con­template certain contractual provisions, such as one dictating the composition of a union's executive, that would effectively undermine the independence of the bargaining agent so as to constitute interference as contemplated by section 56 [now 64]. The distinction between merely affecting internal union affairs appears to be one of degree. Some at­tempt, therefore, must be made to measure the impact of this kind of employer conduct upon the union, the question being whether the con­duct of the employer affects the internal affairs of the union to such an extent as to threaten the existence of the union as a viable bargaining agent....

The no-reprisal clause that the respondent insists upon in this case is, in our opinion, just part of the normal wear and tear of collective bargain­ing. Undoubtedly, this restriction upon the power to discipline its mem­bers is unpalatable to the complainant, since it may affect its credibility with those members who did engage in the strike. On the other hand, it would appear that the respondent, although obviously attempting to maintain its credibility with the three employees that continued to work for it during the strike, was not attempting to undermine the existence of the union as a viable bargaining agent. The conduct of the negotiations clearly indicated the respondent's intention to continue to recognize the complainant as bargaining agent for its employees. Moreover, it should be pointed out that protection for the three employees also could have been achieved through the negotiated alteration of the union security pro­vision, a more drastic, but nevertheless legal, approach.

20. Can the statutory prohibition against disciplining union officials be waived in a col­lective agreement? All that need be said for present purposes is that any contract that does not expressly say that union officials are subject to discipline cannot be interpreted to waive the protection that is a central part of the legislative scheme. However, if a more definitive answer were necessary we would be strongly inclined to respond in the negative. A waiver of the statutory protection against discipline is tantamount to a negation of the rights enshrined in section 3. In United Steelworkers of America and Inglis Ltd., supra, section 3 was said to "guarantee" the right of an employee to participate in the activities of a trade union. The Court struck down an arbitration award which purported to curtail that right by precluding the grievor from holding union office for a period of two years. This holding strongly suggests that the right, guaranteed by statute, to carry out the duties of union office cannot be ov­erridden by contract. In the passage from A.N. Shaw Restoration Ltd., quoted above, the Board said a collective agreement that dictated the composition of the union executive would con­stitute unlawful interference in the administration of a trade union. The implicit message in this observation is that the protection provided by section 64 cannot be abrogated by contract, at least in these circumstances. In other jurisdictions, the. right to participate in an organizing campaign has been held to survive the negotiation of a collective agreement that purports to prohibit such conduct. See NLRB v. Magnavox Co., 415 U.S. 322, 85 LRRM 2475 (1974); and Cominco Ltd.. [1981] 3 CLRBR 499 (B.C.).

III

21. The collective agreement before us does not explicitly purport to allow the employer to discipline a union official for performing the duties of his or her office. The power to dis­cipline, found in article 5.01, is far too general to disclose an intention to override statutory safeguards. Article 3.01 does place certain restraints upon union representatives in their deal­ings with employees. (We need not decide whether or not those restraints are legal under the test set out in A. N. Shaw Restoration Ltd., supra.) And article 10.1 provides for the en­forcement of the restraints found in article 3.01 through the grievance and arbitration process. In the event of stone walling by the union, the remedy for management contemplated by these articles is arbitration, not discipline.

22. The Society has contravened sections 64 and 66(c), even if all of the conflicts in the evidence were to be resolved in management's favour. Messner held the meeting of No­vember 8th to discuss the conversation between Farber and Sylvestre on November 3rd. Be­fore calling the meeting, Messner had been informed of Sylvestre's recollection of this telephone call — according to her, Farber said that some members wanted to charge her for breach of confidentiality, that expulsion was a possible penalty, but that he was opposed to charges. Messner, like everyone else who saw the letter in which Sylvestre described herself as a union member, assumed that she was indeed a member of the union. When Messner spoke to Farber on the telephone about his attendance at the meeting, the president of Local 454 said his discussion with Sylvestre was an internal union matter. This characterization was perfectly consistent with everything Messner had already learned from other sources. Yet the executive director insisted that Farber attend a meeting to discuss this matter and told him that he might be disciplined in his absence if Sylvestre's accusations proved to be true. At the meeting on November 8th, Messner again stated that union officials are required, as em­ployees, to meet with the executive director. Messner also stated he would be the one to de­cide if Farber's conduct was appropriate. Even if the only purpose of the meeting was to investigate what had transpired, the threat of discipline was invoked to compel a union official to divulge information about the manner in which he had discharged the responsibilities of his office. However, in our view, Mr. Messner intended to do more than investigate. Messner believed that if Sylvestre's accusations were true, Farber had behaved improperly, and he was determined to prevent a reoccurrence. This message was clearly conveyed to the union pres­ident. In short, the threat of discipline was used in an attempt to control the conduct of a union official. We express no view on the wisdom of Mr. Farber's conduct. Although some of his actions may have been ill advised, he did not exceed bounds within which his conduct was protected.

23. Counsel for the union asked the Board to direct the Society to post a notice ac­knowledging a violation of the Act. We decline to direct a posting because a mere declaration that the Act has been contravened is a sufficient remedy in the circumstances. The effect of the violation was restricted to union officials who will no doubt learn of the Board's decision in the absence of a posting. Moreover, the local union president described this collective bar­gaining relationship as harmonious, excepting the isolated events recounted above.

CONCURRING DECISION OF BOARD MEMBER J. WILSON;

1. This complaint came to the Board because the Society was responding to allegations made by one of its employees about the conduct of the union's president towards her. It is clear from the evidence, and I agree with my colleagues' findings of fact, that Mr. Messner was attempting to resolve a problem between Ms. Sylvestre and Mr. Farber that was created by Mr. Farber. I am satisfied that Mr. Messner was acting in good faith for the purpose of achieving an amicable resolution of the dispute between Mr. Farber and Ms. Sylvestre when he called the meeting for November 8th. I am convinced that he did not want to interfere in the internal affairs or administration of the union. However, I must agree with the majority in holding that the conduct of Mr. Messner was a violation of the Act, albeit a technical one, caused in large part by the stance taken by the union president throughout the period from his phone call of September 16, 1983, to the meeting of November 8th.

2. I have had difficulty in reconciling the evidence presented by the parties. By putting all the events that transpired in chronological order, and using the dates given by both sides which corresponded very closely, I find the evidence given by Ms. Sylvestre to be much more believable than that of Mr. Farber.

3. Ms. Sylvestre's evidence was borne out in certain relevant parts by that of Mr. Messner and Mr. Chafe. Mr. Farber's evidence was supported by that of Sherill Murray in the matter of the union's general meeting but her evidence also supported that of Ms. Syl­vestre in certain areas, in particular the November 8th meeting. No other evidence was called to support Mr. Farber's contentions.

4. Mr. Farber laid great stress on Ms. Sylvestre having breached union confidentiality with her letters which were copied to Mr. Gervais. It was apparent to me that Mr. Farber's dependence on the union's constitution was selective. While it is conceded by everyone that Ms. Sylvestre was not a union member she was perceived by everyone to be one and thought so herself. While applying Article 22 of the Constitution in respect to a "breach of confi­dentiality" by Ms. Sylvestre, Mr. Farber overlooked section 22.4.1. which required a written charge within 45 days and section 22.4.2 which required a union member as a mediator in such cases. Surely Mr. Farber cannot be both a protagonist and a mediator.

5. I next turn to Mr. Farber's mandate from the union membership. Sherill Murray's evidence was that she didn't believe Article 22 of the Constitution was read out at the General Meeting and that she did not believe the members had copies of the Constitution. It is also significant that while the Constitution requires an Executive Meeting at least every three months and a General Meeting at least twice a year, in this case the union happened to have an Executive Meeting on October 13th - one day after Mr. Messner talked to Mr. Farber about the incident — and a General Meeting on October 19th — one day after a memo from Mr. Messner to Mr. Farber.

6. While I believe that Mr. Messner's violation of the Act was at least honestly mo­tivated, I cannot look at Mr. Farber's actions in the same light.

7. Nevertheless, the clear undisputed fact remains that Mr. Messner did threaten to impose discipline unless Mr. Farber attended a meeting to discuss what can only be char­acterized as an internal union matter. Unfortunately, despite the most honourable of intentions, an employer cannot under the Labour Relations Act use its disciplinary powers to intervene in such matters.

8. For these reasons, I have joined with the majority in issuing the declaration of a violation of the Act.