Ansia Mordowanec v. Ontario Nurses' Association and Windsor Western Hospital (Riverview Unit), 1984 CanLII 1078

[1984] OLRB Rep. November 1643

2287-83-U;2526-83-U Ansia Mordowanec, Complainant, v. Ontario Nurses' Association and Windsor Western Hospital (Riverview Unit), Respondents; Ontario Nurses' Association, Complainant, v. Windsor Western Hospital (River­view Unit), Respondent

BEFORE: Kevin M. Burkett, Vice-Chairman, and Board Members A. Grant and B. K. Lee.

APPEARANCES: Donald F. Hersey, Q. C. and David Murray for the Ontario Nurses' Association; George W King, Leonard P. Kavanaugh, Q.C., Sharon R. Morris, A. J. Lopes and M. I. Whiteside for the respondent hospital; Mary Cornish, Susan Sapin and Ansia Mor­dowanec for the complainant Ansia Mordowanec.

DECISION OF THE BOARD; November 9, 1984

I

1. The Board directs that the above complaints be and the same are hereby consolidated.

2. The Board has before it two complaints. The first, filed by Mrs. A. Mordowanec on January 5, 1984, alleges that the union breached its duty of fair representation under section 68 of the Act in its representation of her in connection with her termination from employment on June 9, 1982. The first complaint was later amended to include an alleged breach of sections 64 and 66 of the Act against the employer hospital. The second complaint, filed by the union, alleges that the employer hospital violated sections 64 and 66 of the Act in its handling of the disciplinary meeting held on June 9, 1982. More specifically, it is alleged that the Hospital interfered with the union's right to represent Mrs. Mordowanec at that meeting.

3. The Board heard a number of preliminary arguments and hereby confirms its oral rulings given at the hearing. With respect to the objection of the respondents that the Board should not hear the complaint filed by Mrs. Mordowanec because of the delay in the filing of the complaint, the Board ruled as follows:

The Board has a discretion under section 89 of the Act to either entertain or refuse to entertain a complaint. The Board has exercised this discretion to refuse to hear complaints which are untimely in the sense that there has been an "extreme" delay in the filing of the complaint such that the respondent(s) would be prejudiced if the complaint was to be heard on the merits. The factors which are considered by the Board in exercising its discretion in this regard are set out at paragraph 22 of Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420. Although this is by no means an easy case, on a consideration of these factors we are not prepared to rule that we should refuse to hear the complaint on its merits because of the delay in the filing of the complaint. This is not to say that the grievor is not partially to blame for the delay and, if successful on the merits, that the award of compensation against either the Hospital and/or the Ontario Nurses' Association should not reflect this fact.

With respect to the objection raised that the Board should apply a doctrine analogous to res judicata and find that the issue of the voluntariness of Mrs. Mordowanec's resignation has already been decided on the basis of the same facts that will be put in evidence in this matter, the Board ruled as follows:

It is acknowledged that this matter is not res judicata but rather, it is argued that on the basis of similar principles the Board should exercise its discretion under section 89 of the Act not to entertain this matter. The award of Arbitrator Palmer is relied upon in this regard. While we acknowledge that on a reading of that award, including the dissent, the arbitrator was aware that the grievor did not receive the representation she sought at the meeting of June 9, 1982 in coming to the decision that she voluntarily quit her employment on that date, it was never put to the arbitrator that the decision of the local union to provide to the grievor at that meeting a representative who was not aligned in interest with her constituted a breach of section 68 of the Act or that the conduct of the Hospital in connection with this meeting breached section 64 of the Act. Indeed, although such an argument might have caused the arbitrator to put his mind to the quality of the representation vis-a-vis section 68 of the Act he had no authority to rule upon an alleged breach of that section in any event. This Board has the exclusive jurisdiction to determine if the Act has been violated. There is a prima facie complaint of a serious violation of section 68 before us that we are not prepared to dismiss on the preliminary grounds suggested by counsel for the respondent Ontario Nurses Association. There is also before us an alleged breach of sections 64 and 66 of the Act. It is within the exclusive jurisdiction of the Board to determine these matters.

We reiterate that any question as to whether the grievor has a statutory right to representation at the point of discharge, and if so, whether that representation was adequate, and whether it was unlawfully interferred with, are all questions confined to this tribunal's exclusive jurisdiction.

II

4. With this background we turn to the evidence. Mrs. Mordowanec, a registered nurse with 27 years' service at the hospital, was suspended on May 31, 1982 pending an investigation for allegedly force-feeding a patient who subsequently aspirated and had to be rushed to a general hospital. Her charge nurse at the time of the alleged wrongdoing giving rise to the suspension was Mrs. Mary DeByl-Wowchuk. Mrs. DeByl-Wowchuk, as charge nurse, filed a report critical of Mrs. Mordowanec with Mrs. M. I. Whiteside, the Director of Nursing. Mrs. DeByl-Wowchuk, in her capacity as a charge nurse, had previously filed other reports with Mrs. Whiteside which were critical of the grievor. Mrs. DeByl-Wowchuk was also the president of the local union at all relevant times.

5. Mrs. Mordowanec was contacted by Mrs. Whiteside on June 8, 1982, and advised that the Hospital had completed its investigation, and asked to attend a meeting that afternoon. She replied that she was unavailable and was then told that the meeting would be at 10:00 a.m. the next morning and that she would be represented by Mrs. DeByl-Wowchuk. Mrs. Mor­dowanec's immediate response was that she wanted someone else to represent her. The day shift union representative was away on vacation at the time and, therefore, was unavailable. Mrs. Whiteside called back to say that the time of the meeting could not be changed and that Mrs. DeByl-Wowchuk would be her representative. Mrs. Mordowanec advised Mrs. Whiteside that she was scheduled to meet with the union's employee relations officer from London (Ms. Jan Davidson) at 4:00 p.m. and again asked to have the meeting postponed so that Ms. Davidson could be in attendance. Mrs. Whiteside again refused her request. There was no evidence led by the Hospital to explain why the meeting could not have been postponed until the afternoon when the representative sought by Mrs. Mordowanec would have been available.

6. Ms. Davidson was called to testify by the union. It is her evidence that Ms. DeByl­Wowchuk, the union president, called her on June 2, 1982 and advised her of Mrs. Mordowan­ec' s suspension and asked her to handle the case on behalf of the union because she had professional concerns with respect to the nursing practice of Mrs. Mordowanec. Ms. Davidson acknowledged in cross-examination that she concluded from her conversation with Ms. DeByl­Wowchuk on June 2nd that she "probably had profound concerns with respect to Mrs. Mordowanec's right to practice" and was "not in a position to represent Mrs. Mordowanec." Ms. Davidson called Mrs. Mordowanec on June 2nd, the same day she had spoken with Mrs. DeByl-Wowchuk, and arranged to meet with her in Windsor at 4:00 p.m. on June 9, 1982. Mrs. Mordowanec in turn called her on June 8th when advised of the meeting set for 10:00 a.m. on June 9th. It is Ms. Davidson's evidence that Mrs. Mordowanec said that she did not want Mary DeByl-Wowchuk there and requested her attendance instead. Ms. Davidson asked her to arrange an extension which, as we have recounted, she was unsuccessful in doing. Ms. Davidson testified that at this time she told Mrs. Mordowanec not to commit herself to anything and not to sign anything. Mrs. Mordowanec denies that she was so advised. Mrs. DeByl-Wowchuk also called Ms. Davidson and asked her to attend the meeting scheduled for 10:00 a.m. on June 9,1982. Ms. Davidson was already committed to a 10:00 a.m. meeting at the Windsor Health Unit and, therefore, instructed Mrs. DeByl-Wowchuk to attend and told her "to take notes only and not to say anything." It is Ms. Davidson's evidence that she gave this instruction because she did not want Mrs. Mordowanec prejudiced and so that she could use the notes to represent Mrs. Mordowanec at another point. Ms. Davidson acknowl­edged in cross-examination that she did not advise Mrs. Mordowanec that Mrs. DeByl-Wow­chuk would only be taking notes; that she did not contact the Hospital herself with a view to having the meeting rescheduled, that she did not tell Mrs. Mordowanec not to attend or provide her with a phone number at which she could be reached during the course of the meeting, that she did not tell Mrs. DeByl-Wowchuk to make sure that Mrs. Mordowanec did not sign anything and that she made no attempt to have the afternoon shift representative or the night shift representative stand in for the day shift representative in place of Mrs. DeByl-Wowchuk. She explained that it never occurred to her that the Hospital might attempt to obtain a resignation from Mrs. Mordowanec. She testified as well that she never thought of attempting to substitute the afternoon shift or night shift representative for Mrs. DeByl-Wowchuk.

7. The collective agreement between the Hospital and the Association under which the suspension of Mrs. Mordowanec and subsequent discipline meeting was carried out is very specific with respect to the representation rights of those covered by it. The collective agreement

provides in part as follows:

ARTICLE 6 — REPRESENTATION AND COMMITTEES

6.08 The Hospital agrees to give representatives of the Ontario Nurses' Association access to the premises of the Hospital for the purpose of attending grievance meetings or otherwise assisting in the ad­ministration of this Agreement, provided prior arrangements are made with the Administrator. Such representatives shall have access to the premises only with the approval of the Administrator which will not be unreasonably withheld.

ARTICLE 7 — GRIEVANCE PROCEDUREUR

7.01 For the purposes of this Agreement, a grievance is defined as a difference arising between the parties relating to the interpreta­tion, application, administration or alleged violation of the Agree­ment including any question as to whether a matter is arbitrable.

7.02 At the time formal discipline is imposed or at any stage of the grievance procedure, including the complaint stage, a nurse is entitled to be represented by her nurse representative.

8. Mrs. Mordowanec attended the meeting with the Hospital scheduled for 10:00 a.m. June 9, 1982. Present at the meeting besides Mrs. Mordowanec and Ms. DeByl-Wowchuk were Mrs. Whiteside, the Director of Nursing, Mrs. G. Sahli, the senior nursing supervisor, and Mr. Cainen, an administrative assistant. Mrs. Whiteside opened the meeting by advising the grievor that she had the choice of resigning her employment or being terminated. It is Mrs. Mordowanec's uncontradicted evidence that she asked to have the meeting postponed so that she could seek advice from Ms. Davidson, a lawyer or her husband. Her request was refused. It is her uncontradicted evidence that Mrs. Whiteside said she could not wait until 4:00 p.m. Mrs. Mordowanec testified that she was confused and upset and understood from what was said to her at the meeting that if she resigned she would not be reported to the College of Nurses. After holding the letter of resignation for ten or fifteen minutes and asking once more for time to seek advice, and being refused, Mrs. Mordowanec signed the letter.

9. Mrs. DeByl-Wowchuk, as instructed, did not speak throughout the meeting but took notes of what was said. She did not make representations in support of Mrs. Mordowanec, nor did she advance any opinion or argument with respect to whether or not the employer's conduct was in accordance with the collective agreement which prohibits the discharge of employees without just cause. Mrs. DeByl-Wowchuk did not seek to represent Mrs. Mordowanec, but merely recorded the details of her discharge. The notes which she took were put in evidence by the Hospital and were accepted by Mrs. Mordowanec as essentially accurate. They read in part as follows:

Mrs. Whiteside then asked Mrs. Mordowanec if she would resign or not.

Mrs. Mordowanec said she wanted to talk to the "lady from London" (referring to Jan Davidson) her husband, and a lawyer before deciding. Mrs. Whiteside asked Mr. Cainen if this could be allowed and Mr. Cainen stated that a decision had to be made at the meeting. Mrs. Mordowanec again stated she wanted to wait till she had spoken with her husband and the "lady from London." Mrs. Whiteside stated she would not wait for an answer and if she refused to resign she would be given a Letter of Dismissal.

Mr. Cainen interjected again and told Mrs. Mordowanec that she was being given a choice to resign but if she did not resign, she would be terminated as of the day of the incident. "Thus logically" it followed that if Mrs. Mor­dowanec resigned it would still be a termination but it would not coincide with the date of the incident. Mrs. Mordowanec again stated she wanted to wait until she spoke with the "lady from London." Mr. Cainen again spoke telling Mrs. Mordowanec that no one could influence her decision, especially when talking about a resignation — that such a decision could only be made by her. Mrs. Mordowanec agreed that such a decision "could only be made by me."

Mr. Cainen interrupted that the purpose of the meeting was not to discuss the incident but rather to allow Mrs. Mordowanec the choice to resign. Mrs. Whiteside then gave the letter to Mrs. Mordowanec telling her that the letter was the acceptance by Mrs. Whiteside of Mrs. Mordowanec's verbal resignation and that it required Mrs. Mordowanec's signature. Mrs. Mordowanec read the letter and again stated she wanted to talk it over first before she signed.

Mrs. Whiteside then informed Mrs. Mordowanec that if she chose not to resign then on her dismissal Mrs. Whiteside would report her to the College of Nurses for Professional Misconduct. Mrs. Mordowanec asked what would be reported and Mrs. Whiteside informed her it would be things such as the incident, past evaluations and other reports and incidents. Mrs. Whi­teside went on to explain that there was a complaints procedure and that a Complaints Officer would come and speak to Mrs. Mordowanec, go thru [sic] her file and question other staff who had worked with Mrs. Mordawan­ec. The findings of the Complaints Officer would be brought before the Complaints Committee and if warranted, would go before the Council of Nurses.

Mrs. Mordowanec then asked "what worse could be done to me than what you have done to me already?" Mrs. Whiteside informed Mrs. Mordowanec that the Council could take Mrs. Mordowanec's registration away from her prohibiting her from practising in the Province of Ontario.

Mr. Cainen went on to say that it would look better to resign than to be terminated-and if she ever wanted to work somewhere else — Mrs. Mor­dowanec interrupted with — "work somewhere else Ha!" in a scornful tone, then Mr. Cainen continued. It would look better to say you had resigned. Mrs. Mordowanec remarked — "Oh sure and they would call Mrs. White-side and that would be it." Mr. Cainen then asked Mrs. Mordowanec to pass the letter back if she was not going to sign.

Mrs. Mordowanec then said "where do I sign." Mrs. Sahli showed

Mrs. Mordowanec where to sign. Mrs. Whiteside stated again to Mrs. Mor­dowanec that by signing the letter she was resigning and that the letter was Mrs. Whiteside's acceptance of Mrs. Mordowanec's verbal resignation. Mrs. Mordowanec signed but kept the letter in her hand and asked that if she decided at home that she didn't want to sign after talking to her husband would they destroy the letter. Mrs. Whiteside stated that by signing the letter she had resigned and that the letter would not be destroyed. Mrs. Mor­dowanec replied "nobody is safe here."

Mr. Cainen then said again that by signing the letter she had resigned but if someone called later about the letter it would not be destroyed, however they were willing to make copies of the letter and she could take them home.

Mrs. Mordowanec then passed the letter back stating "I still don't know if this is right."

10. Ms. Davidson visited Mrs. Mordowanec at her home at 4:00 p.m. on June 9th (following the above-described meeting) as she had promised. She found Mrs. Mordowanec extremely distraught. She testified that she was surprised to learn that Mrs. Mordowanec had signed a letter of resignation and that she convinced her that she should sign another letter revoking her resignation. Ms. Davidson delivered the letter revoking the resignation to the Hospital that evening. The response of the Hospital was that even of Mrs. Mordowanec had not resigned she was terminated for cause. Ms. Davidson acknowledged in cross-examination that if Mrs. Mordowanec had been represented at the discipline meeting she would have been advised not to sign the resignation letter. She testified that representatives are instructed to attempt to prevent employees from committing themselves and that any nurses' representative who had attended a union workshop would have known that Mrs. Mordowanec, who had been employed as a nurse at the Hospital for some 27 years, should not sign the letter of resignation. She acknowledged that if she had been at the meeting she would have put Mrs. Mordowanec straight with respect to the requirement of the Hospital to report her to the College regardless of whether she resigned or was terminated.

11. The Hospital did report Mrs. Mordowanec to the College of Nurses. A hearing was held to deal with the six typed pages of charges against her and in a decision of the discipline committee dated October 18, 1983 a finding of not guilty of Sections 83(3) and (4) charges of professional misconduct and incompetence was made. The action taken by the College was to dismiss the charges. For our purposes the relevant fact with respect to the College of Nurses proceeding is that Ms. DeByl-Wowchuk filed a lengthy statement with the College dated September 27, 1982 chronicling a number of alleged improper incidents involving Mrs. Mor­dowanec. She later testified against Mrs. Mordowanec at the hearing before the college.

12. The union grieved the termination of Mrs. Mordowanec. By way of a preliminary objection to the jurisdiction of the arbitration board to hear the matter, the Hospital took the position that Mrs. Mordowanec had not been terminated but had resigned her employment. The majority of the arbitration board, chaired by Professor Palmer, which heard much of the same evidence that was put before this Board, in upholding the preliminary objection of the Hospital and denying Mrs. Mordowanec a hearing on the merits, ruled as follows:

Having considered the foregoing, it is the view of the Board in this matter that the grievance must be dismissed and the Company argument accepted.

As the Board understands the arbitral jurisprudence in this area, the cases cited all go to the question of whether the decision of the relevant grievor to resign as opposed to be terminated is one which is, in fact, the true wish of the grievor. Put another way, the cases in question suggest that in some circumstances statements of grievors that they wish to resign are not indica­tive of the true feelings of that grievor and, consequently, it is inappropriate to hold that grievor to such a position. In this regard, the circumstances of all the cases in question deal with the facts which would support the question of whether this is a "true view" of the relevant grievor.

Given this approach to the cases set out above, it would seem that the Hospital position is correct. In this regard, the evidence clearly discloses that the grievor, Mrs. Mordowanec, was aware that at the hearing on June 9th the question of her dismissal would arise. Obviously, she wished as much support in coming to a decision as to the appropriate course of action on this matter as would be available. However, on the day before this meeting she was apprised of the Hospital position on this matter, i.e., she would not be allowed representation by an Association Representative from London, but only by Mrs. DeByl-Wowchuk. Consequently, she came to the meeting knowing the position of her Employer in this regard.

Looking at the evidence of the hearing, it is clear that the grievor was agitated and wished further assistance as to what she should do. This, however, was refused by the Hospital. At that point, Mrs. Mordowanec was in a position where she could refuse to continue in the hearing and accept the results of this course of action or make her decision. In fact, she accepted the latter option. Indeed, her evidence suggests that she did this under the mistaken belief that this might preclude further difficulties in other areas. In this regard, she was clearly mistaken, but this was not the fault of the Employer. The obvious result, however, is that Mrs. Mordowanec had come to the conclusion, on whatever basis, that the appropriate course of action for her to take was to resign. She took this course of action. Consequently, at the time of her decision to resign, as witnessed by the written document given to the Hospital, there can be little question that this was her true intent and that this had been passed to the Hospital.

The basic case for the grievor, in the view of the Union, is that she changed her view subsequent to the meeting. In other words, she had second thoughts about what she should do. This, of course, is witnessed by her question at the time she signed the document whether she could later withdraw it and received a negative response. As stated by counsel for the Hospital, it seems unreasonable that a person, in the circumstances of this case, should ask whether she could later change it and be given a negative answer and be later allowed to act to the contrary. Mrs. Mordowanec was given the oppor­tunity to decide the appropriate course of action and she chose it. It is not sufficient, in the opinion of the Board, to say that the alternative of dismissal was some form of undue duress which should somehow cloud the issue in her favour.

In result, then, the decision of this Board is that Mrs. Mordowanec, in effect, had terminated her employment by her voluntary resignation on June 9th. Consequently, having reached this decision, she was not in a position to withdraw it at a later date and subsequently file the grievance in question.

In result, then, this grievance is dismissed.

The Association argued that the resignation was involuntary and, therefore, should not be given effect. It was not argued before the Palmer Board, as it is before us, that the conduct of both the Association and the Hospital in the treatment of Mrs. Mordowanec in respect of the time as of which and the manner in which the disciplinary meeting of June 9, 1982 was conducted, was in breach of the Labour Relations Act. The arbitration board did not have to decide, as this Board must, whether the resignation letter upon which it based its decision was the product of a double illegality: a breach of the union's duty of fair representation combined with refusal by the employer to permit active union representation in support of Mrs. Mordowanec.

13. There were no witnesses called to testify by the Hospital.

III

14. Counsel for Mrs. Mordowanec argues that even if we accept the evidence of Ms. Da­vidson that she counselled Mrs. Mordowanec not to sign anything in advance of the June 9th meeting with the Hospital management, the failure of the Association to provide representation at the June 9th meeting or to take any steps to have the meeting adjourned constitutes a breach of Section 68 of the Act. Counsel argues that Mrs. Mordowanec was discriminated against within the meaning of section 68 of the Act because she received no representations in circumstances where, prima facie, employees covered by the collective agreement are entitled to and receive representation. Counsel further argues that Mrs. Mordowanec was the victim of bad faith within the meaning of section 68 of the Act, in that the Association president, who was hostile to Mrs. Mordowanec, did not disqualify herself from appearing at the June 9th meeting for the ostensible purpose of representing Mrs. Mordowanec and then remained silent and allowed Mrs. Mordowanec to sign a letter of resignation. This complainant submits that once the letter of resignation was signed, the subsequent actions of Ms. Davidson could not and, indeed, did not cure the damage that had already been done. Finally, the complainant argues that the total lack of representation accorded Mrs. Mordowanec, in the face of what must be found to have been the Association's knowledge that a critical job interest was at stake, constitutes arbitrary conduct on the part of the union within the meaning of section 68 of the Act.

15. Turning to the allegations against the Hospital under sections 64 and 66(c) of the Act, counsel for Mrs. Mordowanec argues that we must infer from the reports filed by Mrs. DeByl-Wowchuk in respect of the professional competence of Mrs. Mordowanec, includ­ing the report that precipitated the investigation preceding the June 9th meeting, that the Hospital knew that Mrs. DeByl-Wowchuk had a conflict of interest vis-a-vis the representation of Mrs. Mordowanec. In the face of its knowledge of this conflict of interest and the evidence that it required her attendance at the June 9th meeting and repeatedly refused Mrs. Mordowan­ec's requests for an adjournment (both before and during the meeting) so that she could obtain representation, and in the absence of any explanation from the Hospital as to why it could not have adjourned the meeting for a few hours, to allow Mrs. Mordowanec time to obtain the representation to which she was entitled, this complainant asks us to find that the Hospital interfered with Mrs. Mordowanec's right to union representation in contravention of sections 64 and 66(c) of the Act. The complainant maintains that the resignation of Mrs. Mordowanec was obtained by means of the unlawful conduct of both the union and the Hospital and, therefore, cannot be relied upon by the Hospital. In the alternative, it is argued that the remedial authority of the Board under section 89 of the Act gives the Board the power to order a hearing on the merits in response to the Association's breach of section 68 of the Act.

16. The Association disputes that a breach of Section 68 has been established. The Association maintains that the standard under Section 68 is not one of perfection and, while the Association could have conducted itself differently, it argues that the most that has been established is perhaps certain inadvertent errors on its part. The Association cautions the Board against engaging in an exercise of "Monday morning quarterbacking" in respect of the quality of its representation of Mrs. Mordowanec. The Association submits that in the face of the evidence that Ms. Davidson did not know what position the Hospital would take at the June 9th meeting, that she nevertheless unsuccessfully attempted to have the meeting time changed to 4:00 p.m. through Mrs. Mordowanec, counselled Mrs. Mordowanec not to sign anything at that meeting, instructed Mrs. DeByl-Wowchuk to take complete notes and, subsequent to the letter of resignation having been signed, solicited a retraction from Mrs. Mordowanec and delivered it to the Hospital, filed a grievance on behalf of Mrs. Mordowanec which was processed to arbitration and assisted Mrs. Mordowanec before the College, a finding of arbitratory, discriminatory or bad faith conduct within the meaning of Section 68 cannot be found. The Association asks the Board to find that it has not breached its duty of fair representation in respect of Mrs. Mordowanec.

17. The Association adopts the arguments advanced by the complainant in support of its allegation that the Hospital breached Sections 64 and 66 of the Act. The Association submits that on the evidence it must be found that Mrs. Whiteside knew that Mrs. DeByl-Wowchuk was opposed in interest to Mrs. Mordowanec and that it refused to delay the meeting because it did not want Ms. Davidson there to represent her. The union asks the Board to find that Mrs. Mordowanec was entitled to unbiased objective representation and argues that the refusal of the Hospital to delay the meeting when it knew that she would not have the type of representation to which she was entitled at that meeting and when it knew that it would be presenting her with the alternative of resigning or being terminated, constitutes a breach of the Act. The union submits that the Hospital cannot rely on the collective agreement as a defence to its refusal to adjourn the June 9th meeting until Mrs. Mordowanec could be properly represented. Having already found that the issue before the Board is not res judicata, the Association submits that the Board has the authority to refer it back to arbitration for a hearing on the merits.

18. The Hospital reminds the Board that it has an obligation to ensure the care of its patients and submits that it acted under this obligation at all relevant times and assumed at all relevant times that the Association conducted its affairs properly. The Hospital submits firstly, that it did not know in advance of the June 9th meeting that there was a conflict between Mrs. DeByl-Wowchuk and Mrs. Mordowanec as would have prevented Mrs. DeByl-Wowchuk, as association president, from representing Mrs. Mordowanec at the June 9th meeting. The Hospital draws a distinction between actions taken by Mrs. DeByl-Wowchuk as charge nurse, on the one hand, and as association president, on the other. The Hospital submits secondly that it did not know in advance of the June 9th meeting that Mrs. DeByl-Wowchuk had been instructed to take notes but not to speak at that meeting. The Hospital submits thirdly, that Mrs. Mordowanec knew that the meeting of June 9th concerned her continued employment and that she would be represented by Mrs. DeByl-Wowchuk and that she voluntarily consented to attend. The Hospital argues that in the absence of the day shift representative, Mrs. DeByl­Wowchuk, as the highest ranking elected official of the local, was properly present as a representative of Mrs. Mordowanec at the meeting of June 9th and that the Hospital could assume that she would be fulfilling her duty as a representative. The Hospital also submits that Mrs. Mordowanec acknowledged in her evidence that she would have resigned regardless of who was there to represent her. In all of these circumstances, the Hospital argues that it cannot be found that it in any way interfered with the rights of Mrs. Mordowanec under the Labour Relations Act or under the collective agreement. The Hospital submits that absent any finding of a breach of the Act by it, the Board cannot frame a remedy to a section 68 breach that runs against it. In any event, the Hospital argues that the Board does not have an appellate function in respect of a binding arbitration award made pursuant to the mandatory arbitration provisions of the Act. It is the position of the Hospital that an arbitration award handed down by a properly constituted arbitration board following a fair and impartial hearing, as with the award of the Palmer Board in this case, cannot be overruled or in any way interfered with by this Board. The Hospital submits that regardless of a possible 68 breach by the Association, the finding of the arbitration Board that Mrs. Mordowanec resigned from her employment is res judicata and must stand. In summary, the Hospital asks the Board to find that it did not breach the Act and further submits that if the Association breached section 68 of the Act, the remedy for that breach must go against the Association but, in any event, the remedial authority of the Board does not extend to overturning the award of the board of arbitration that Mrs. Mordowanec voluntarily resigned from her employment.

IV

19. The standard against which the Board will assess the representation provided by a trade union to its individual members in determining whether or not the trade union has been arbitrary within the meaning of section 68 of the Act is set out in ITE Industries, [1980] OLRB Rep. July 1001 as follows:

It is clear that in order to establish a breach of section 60 [now section 68], a complainant must do more than demonstrate an honest mistake or even negligence. The union must have committed a "flagrant error" consistent with a "non caring attitude", or have acted in a manner that is "implausible" or "so reckless as to be unworthy of protection". In other words, the trade union's conduct must be so unreasonable, capricious, or grossly negligent, that the Board can conclude that the union simply did not give sufficient consideration to the individual employee's concerns. Honest mistakes or innocent misunderstandings are clearly beyond the parameters and do not attract liability.

While implausible, summary or reckless actions attract Section 68 liability as arbitrary, honest mistakes, innocent misunderstandings and simple negligence do not. However, the Board has made it clear that in assessing the quality of the representation provided by a trade union it will do so in light of the importance of the job interest that is at stake (see Re Walter Princesdomu, [1975] OLRB Rep. May 444, North York General Hospital, [1982] OLRB Rep. Aug. 1190 and Swing Stage Ltd. [1983] OLRB Rep. Nov. 1920).

20. There is some divergence in the jurisprudence with respect to whether subjective ill will is a necessary requirement to a finding of discriminatory treatment under section 68 or whether a finding of discriminatory treatment can be made on the basis of objective differences in the quality of representations between members regardless of the presence or absence of subjective ill will. The Board stated in Douglas Aircraft Canada Ltd., [1976] OLRB Rep. Dec. 779, that hostility or subjective ill will are not prerequisites to a finding of discriminatory treatment within the meaning of Section 68 of the Act. Similarly, the definition of discrimina­tion found in Savage Shoes, [1983] OLRB Rep. Dec. 2067 does not require hostility or objective ill will. Discriminatory conduct is defined in that case as:

the making of distinctions between employees and groups of employees on bases which have no relevance to legitimate collective bargaining concerns.

However, in a number of other cases the Board has tied discriminatory conduct to ill will or hostility (see for e.g., Walter Princesdomu, supra; Antonio Melillo, [1976] OLRB Rep. Oct. 613; De Havilland Aircraft of Canada Limited, [1979] OLRB Rep. Oct. 933).

21. The term "bad faith" as found in Section 68 of the Act has been consistently interpreted by the Board to refer to the absence of honesty or the existence of personal animosity in union decision-making as it impacts upon individual employees (see Savage Shoes, supra; Walter Princesdomu, supra).

22. The divergence in the jurisprudence with respect to whether subjective ill will is a requirement of discriminatory treatment under section 68 of the Act, can be reconciled, for all practical purposes, by reference to the definitions of "arbitrary" and "bad faith" that have been developed by the Board. Conduct that is found to be either "arbitrary" or in "bad faith" will also be "discriminatory" in that it will result in a difference in treatment that has no labour relations rationale. This is so even though there may not be any subjective ill will in the discrimination resulting from arbitrary union conduct. Given the policy reasons underpinning the Board's reluctance to hold a union liable for honest mistakes or simple negligence, we are hard pressed to imagine the circumstances which might cause the Board to make a finding of discriminatory conduct that would not also result in a finding of either arbitrary conduct or bad faith. In our view, the terms "arbitrary", "discriminatory" and "bad faith", as they are used in section 68 of the Labour Relations Act, must be read together as prohibiting union conduct in the representation of those for whom it holds bargaining rights that is implausible, summary, reckless or motivated by hostility or subjective ill will.

23. We must now scrutinize the conduct of the Association in this matter against the statutory duty of fair representation as it has been defined by the Board. The evidence establishes that a critical job interest (the continued employment of a registered nurse with 27 years' service) was at stake and that the Association, which knew that Mrs. Mordowanec had been suspended pending an investigation of her conduct vis-a-vis the treatment of a patient at the Hospital and which had negotiated the collective agreement provisions which entitle a nurse covered by the agreement to be represented at the time discipline is imposed, knew or ought to have known that a critical job interest was at stake. Under the terms of the collective agreement Mrs. Mordowanec was entitled to be represented by a nurse representative at the meeting of June 9, 1982. Mrs. DeByl-Wowchuk, who was both association president and charge nurse over Mrs. Mordowanec at the relevant time, considered herself in a conflict of interest vis-a-vis her professional duty as a charge nurse and her duty as association president and stand-in nurse representative, to represent Mrs. Mordowanec and advised Ms. Davidson, the paid union official with responsibility over the local, of this conflict. Ms. Davidson, who knew that Mrs. DeByl-Wowchuk had been asked to represent Mrs. Mordowanec, did not attempt to contact the Hospital with a view to adjourning the meeting, did not attempt to substitute the afternoon or evening nurse representative for Mrs. DeByl-Wowchuk, did not attempt to rearrange her schedule to be present at the meeting, did not instruct Mrs. Mordowanec not to attend, but rather, suggested to Mrs. Mordowanec that she attempt to have the meeting adjourned and instructed Mrs. DeByl-Wowchuk to appear at the meeting and to take notes but not say anything. Ms. Davidson did not advise Mrs. Mordowanec in advance of the meeting that Mrs. DeByl-Wowchuk had been instructed to take notes only. There was no discussion of the merits of the complaint against Mrs. Mordowanec at the meeting but rather, she was presented with the option of resigning or being terminated, was pressured to resign and in the mistaken belief that she could avoid a hearing before the College if she resigned (a belief she could reasonably have had as a result of what was said to her by the Hospital officials present at the meeting) she signed a letter of resignation. Ms. DeByl-Wowchuk remained silent throughout the meeting and at no time attempted to represent Mrs. Mordowanec. The Hospital subsequently relied upon the letter of resignation signed by Mrs. Mordowanec at the June 9th meeting to successfully challenge the jurisdiction of the arbitration board to consider the merits of the decision to terminate Mrs. Mordowanec.

24. Notwithstanding the conflict of interest which confronted Mrs. DeByl-Wowchuk, we have not been convinced that Mrs. DeByl-Wowchuk was in any way motivated by personal hostility or subjective ill will towards Mrs. Mordowanec. Mrs. DeByl-Wowchuk made certain assessments of Mrs. Mordowanec's work, whether right or wrong, in her capacity as charge nurse, and, as required of a charge nurse in her professional capacity, filed the necessary reports. She recognized the conflict between her duty as a charge nurse and her duty as a union representative and asked to be relieved of her duties as a union representative; hardly the request of an individual harbouring ill will towards the individual she had been asked to represent. In any event, Mrs. DeByl-Wowchuk attended the June 9th meeting only after attempting to have herself replaced and after having been told by a paid union official to restrict herself to taking notes. In these circumstances, her silence cannot be considered as an act of hostility or ill will towards Mrs. Mordowanec. Similarly, there is no evidence that Ms. Davidson was in any way motivated by ill will or hostility towards Mrs. Mordowanec. Indeed, the actions which she took on behalf of Mrs. Mordowanec subsequent to the July 9th meeting belie any hostility on her part.

25. Although the Association was not in any way motivated by ill will or hostility in its representation of Mrs. Mordowanec, we must nevertheless find that it did act in an arbitrary and discriminatory fashion towards her, as proscribed by section 68 of the Act. In simple terms Ms. Davidson, as a paid union official, either did not put her mind to the seriousness of the possible consequences faced by Mrs. Mordowanec or, if she did, responded in a summary and careless fashion in not taking steps to either remove Mrs. Mordowanec from the face to face meeting with management or provide her with the representation to which she was entitled. Instead she directed Mrs. DeByl-Wowchuk, who had admitted a conflict of interest, to attend at the meeting for the purpose of taking notes but to say nothing. The effect of Ms. Davidson's response was to deny Mrs. Mordowanec meaningful union representation at a time when she was entitled and clearly in need of such representation. In the face of the various alternative options that were open to Ms. Davidson and in the absence of any compelling reason for making the decision that she did, we must characterize her conduct as arbitrary within the meaning of section 68 of the Act.

26. In addition, and insofar as Mrs. Mordowanec was arbitrarily denied meaningful representation in circumstances where all employees are entitled to and, prima facie, receive union representation, we must find that the Association also discriminated against Mrs. Mor­dowanec within the meaning of section 68 of the Act. Mrs. Mordowanec did not testify that she would have signed the letter of resignation regardless of who was at the meeting to represent her, as was suggested by the Hospital in its submissions. The issue, however, is not what she might have done if she had the benefit of meaningful union representation in the person of someone who would have advanced her case and counselled and cautioned her with respect to whatever actions she was contemplating (as Ms. Davidson testified that a nurses' representa­tive would have done) but rather, the issue is whether, in the circumstances, the failure of the Association to provide representation at the June 9th meeting, at which Mrs. Mordowanec signed a letter of resignation was in breach of section 68 of the Act. We are satisfied and hereby find that the failure of the Association to provide representation constitutes both arbitrary and discriminatory treatment as proscribed by section 68 of the Act.

27. We are reinforced in our decision in this regard by the decision of the Canada Labour Relations Board in Re Tom Forester, [1980] 3 Can. LRBR 491 wherein it was found that "a total lack of representation" in support of employees who, on the advice of the union, had signed letters of resignation in lieu of accepting discharge, constituted a breach of the requirement to represent "fairly and without discrimination" under the Canada Labour Code. The Board stated:

We cannot accept as fair representation a total lack of representation whatever its cause . . . (the complainants) received none of the support, advice or advocacy that the serious and critical issue of discharge should receive.

Whereas the union did represent Mrs. Mordowanec after June 9th, it provided no representation at the time she was pressured into signing a letter of resignation that has prevented her from obtaining a hearing on the merits of her termination. We reiterate that in all the circumstances the failure of the union to provide any form of meaningful representation at the June 9th meeting constituted a breach of section 68 of the Act.

28. We now turn to the allegations against the Hospital. In essence it is alleged by the Association and the complainant that the Hospital interfered with the representation of an employee within the meaning of section 64 of the Act. We start by accepting that representation within the meaning of section 64 of the Act includes the representation of employees at the time that formal discipline is imposed and during the processing of any subsequent grievance. Although this Board has never before been required to articulate the extent of the union's right in this regard, it flows naturally from the overriding purpose of the Act; that is, to redress the imbalance that exists when an individual employee is forced to deal with his employer in respect of his employment relations. The United States Supreme Court in upholding an interpretation of section 7 of the National Labour Relations Act, which gives employees the statutory right to union assistance in a disciplinary proceeding, observed that sound policy reasons support the finding of an independent right to union representation at such a hearing. (See J. Weingar­ten Inc. and Retail Clerks, Local 455, (1973) 485 F. 2d 1135 84 LRRM 2436 U.S.C.A 5th circuit) certiorari granted (1975) 430 U.S. 251 (Sup Ct.).) Section 7 of the National Labour Relations Act entitles employees "to bargain collectively.., and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection". The U.S. Supreme Court in Weingarten, supra, ruled that:

... Requiring a lone employee to attend an investigatory interview which he reasonably believes may result in the imposition of discipline perpetuates the inequality the Act was designed to eliminate and has recourse to the safeguards the Act provides to redress the perceived imbalance of economic power between labour and management.

(See also Chapdelaine v. Emballage Domfar Ltee, 84 CLLC ¶ 14,013 (Que. L.C.) for the only Canadian authority on point, in which the Quebec Labour Court held that an employee was entitled to union representation at a disciplinary interview under the "freedom of association' article of the Quebec Labour Code).

29. The whole scheme of our Act is to reverse the imbalance that exists between individual employee and employer. The Act provides for the certification of trade unions to act as collective representative for all of those falling within a bargaining unit found to be appropriate for collective bargaining. It is clear on a reading of the Act as a whole that the right to collective representation encompasses not only the negotiation of the collective agreement but the representation of individual employees in pursuit of or in protection of their rights under the collective agreement. It follows that just as under the American and Quebec statutes, which are designed to serve essentially the same purpose, the right to collective representation under the Labour Relations Act (embodied in the right accorded to all persons under section 3 of the Act to join a trade union and participate in its lawful activities and the prohibition in section 64 of the Act against interference with the representation of employees by a trade union) extends to include union representation at a meeting called by the employer to charge an employee with misconduct or to impose discipline. While the statute does not give an employee the right to choose his union representative, it does protect the right to representation and prohibits employer interference with this right. It is not for the employer to decide who will be the employee's representative at a discipline meeting or to put impediments in place that can not be reasonably justified.

30. We make the following findings of fact on the evidence before us with respect to the employer's conduct vis-a-vis the representation rights of Mrs. Mordowanec at the June 9th disciplinary meeting. We find firstly, that at all relevant times the Hospital knew that it would be putting before Mrs. Mordowanec the option of resigning or of being terminated. We find secondly, on the basis of the manner in which the meeting was conducted, that the Hospital preferred (for reasons that are self-evident) that Mrs. Mordowanec resign. We find thirdly, on the basis of the prior adverse reports filed with the Hospital by Mrs. DeByl-Wowchuk in respect of Mrs. Mordowanec, the request by Mrs. Mordowanec that someone other than Mrs. DeByl-Wowchuk represent her, and the silence of Mrs. DeByl-Wowchuk at the meeting, that the Hospital knew or should have known in advance of the meeting, or, at the very latest, during the meeting, that Mrs. DeByl-Wowchuk was in a conflict of interest vis-a-vis her duty to represent Mrs. Mordowanec and would not be representing her. We find, fourthly that, notwithstanding the requests by Mrs. Mordowanec, both before and during the meeting, to put off the meeting or adjourn itso that she could obtain advice, the Hospital refused and insisted that the meeting commence at 10:00 a.m. on June 9th and be carried to a conclusion without adjournment. In the face of these findings of fact and in the absence of any explanation as to why the meeting could not have been put off to allow Mrs. Mordowanec to be properly represented (the Hospital chose to call no evidence), we are compelled to find that the Hospital intentionally exploited its authority over Mrs. Mordowanec to interfere with her right to be represented at the discipline hearing (as provided in the Act and under the collective agreement) and thereby breached section 64 of the Act.

V

31. The Board has a broad remedial authority under section 89(4) of the Act which empowers it to determine what if anything an employer, employers' organization, trade union or person that has acted contrary to this Act shall do or refrain from doing "notwithstanding the provisions of any collective agreement." In this case Mrs. Mordowanec signed a letter of resignation (which was subsequently found by a board of arbitration constituted under a collective agreement to bar its jurisdiction to hear the merits of her discharge grievance), in circumstances where she was entitled to, but was without representation, as a result of a breach of section 68 by her trade union and a breach of section 64 of the Act by her employer. She asks this Board to remedy the breaches of the Act that it has found by directing that her grievance challenging the Hospital's decision to terminate her employment be heard on its merits. The Hospital argues that, regardless of whatever breaches of the Act are established, the Board lacks the remedial authority to do what Mrs. Mordowanec asks it to do. We do not agree.

32. The Palmer Board of Arbitration was not asked to rule, nor did it have the authority to rule, on the legality of the actions of the Hospital and the Association in connection with the resignation of Mrs. Mordowanec. While the Palmer Board found the resignation to be voluntary, its award was made without knowledge that the document upon which it relied was obtained by means of unlawful conduct. In the result the award of that board, which is "final and binding upon the parties" under the provisions deemed to be included in every collective agreement under section 44(2) of the Act, runs headlong into the remedial authority of the Board under section 89(4) of the Act which may operate "notwithstanding the provisions of any collective agreement". As we read these two sections of the Act, the Board has a discretion, although it is not to be lightly exercised, to make a remedial order that overrides the terms of a collective agreement, including the term of a collective agreement that stipulates that the award of a board of arbitration is final and binding.

33. Given the scope of our remedial authority, the nature of the illegal acts committed by both the union and the Hospital and the manner in which these illegal acts have impacted upon Mrs. Mordowanec, the responsible exercise of our remedial authority requires that we provide her with a hearing on the merits of her termination notwithstanding the finding made by the Board of Arbitration constituted to hear the grievance filed by the union on behalf of Mrs. Mordowanec, that it was without jurisdiction to hear the grievance on its merits. Mrs. Mordowanec must be placed in the position she would have been in had it not been for the unlawful conduct of the union and the Hospital and, most certainly, the Hospital ought not to be permitted to harvest the fruits of its illegal conduct.

34. We find judicial support for our remedial approach in Traugott Construction, [1981] OLRB Rep. Nov. 1680 affirmed on reconsideration [1982] OLRB Rep. June 958, upheld on judicial review 84 CLLC ¶ 14,025. In that case a union brought a grievance under section 124 of the Act claiming breach of a collective agreement. The respondent employer argued in defence that the collective agreement under which the grievance was brought had been obtained by the pressure brought to bear by an illegal strike. The Board satisfied itself that the collective agreement had been obtained by an illegal strike and found, therefore, that there was no collective bargaining relationship between the applicant and the respondent, such as would entitle the Board to hear the referral of a grievance under section 124 of the Act. In refusing to reconsider its decision the Board stated:

... the very bargaining rights on which the applicant claimed to have a collective agreement were the result of an unlawful strike which was clearly intended to avoid the certification proceedings under the Labour Relations Act. For the Board to deal with such a grievance would be tantamount to the Board turning a blind eye on violations of the Act which go to the very purpose of the Labour Relations Act.

The matter was taken for judicial review. The Court framed the issue before it as follows;

This Court is asked by way of judicial review to strike down the Board's decision and, in effect, to place its own stamp of approval upon a collective agreement obtained by means of an unlawful strike.

After acknowledging the comprehensive nature of the Board's privative clause, the Court found that the Board, in finding that "the piece of paper did not create a legal relationship" as would have allowed it to hear a grievance under section 124 of the Act was not "patently unreasonable" and, therefore, was immune from review. The Court then went on to find in the alternative, after considering the broad scope of the Board's remedial authority under Section 89(4) of the Act that:

If necessary, therefore, we are prepared to look on the Board's refusal to administer the collective agreement by making an award under the arbitra­tion section, 124, as a remedy fashioned to meet the consequences of the illegal act upon which the so called agreement was based.

The Court concluded its judgment by holding that even if its analysis was misconceived it would nevertheless refuse to exercise its discretion to overturn the decision of the Board and thereby allow the complainant union to benefit from its wrongdoing. The Court stated:

One final word on the subject of discretion. In the final analysis, judicial review is a discretionary remedy. In view of the circumstances, if all that I have written above should be held to be misconceived, it would still be my view that our discretion should not be excised in favour of the applicant. No words are more apt than those of Lord Mansfield in Holman v. Johnson (1775), 1 Cowp. 341,98 E.R. 1120, as follows:

No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiffs own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.

It is to be observed that the Board followed a similar approach in Fotomat Canada, [1980] OLRB Rep. Oct. 1397, [1980] OLRB Rep. Nov. 1643. In that case it was found that the employer's unfair labour practices had prolonged a strike past the six month expiry date for mandatory reinstatement of strikers. The Board refused to allow the employer to rely on the expiration of the six-month period, and thereby benefit from its unlawful conduct, and exercised its remedial authority under section 89(4) of the Act to reinstate the striking employees.

35. The Hospital extracted a letter of resignation from Mrs. Mordowanec by unlawful means (and in circumstances where the union breached its statutory duty of fair representation to her), successfully relied on that letter before an arbitration board that was unaware that it had been obtained by illegal means and now seeks to shield itself from any attempt by this Board to go behind the award of that board of arbitration. Just as the Board and the Court in Traugott refused to give any force or effect to a document obtained by illegal means, so also we are not prepared to give any force or effect to the ktter of resignation obtained by illegal means or the arbitration award that relied on that letter in refusing to provide Mrs. Mordowanec with a hearing on the merits. Mrs. Mordowanec, a nurse with 27 years of service with the Hospital, is entitled to be put in the position she would have been in had it not been for the breach. We have the authority under section 89(4) of the Act to direct a hearing on the merits and in all the circumstances we hereby exercise our discretion to direct, notwithstanding the time limits in the collective agreement, that Mrs. Mordowanec's grievance with respect to her termination of employment be heard on the merits. The parties are directed to forthwith appoint their respective nominees to the arbitration board and to recommence the arbitration process established under the collective agreement for the purpose of determining if the Hospital had just cause to terminate the employment of Mrs. Mordowanec.

36. The Board will remain seized in the event of any difficulty with the implementation of our remedial order, and in addition, we will remain siezed in the event that Mrs. Mordowanec is successful at arbitration and there is some dispute with respect to compensation.