Ontario Labour Relations Board
[1985] OLRB Rep. April 612
1255-84-U Eleanor Thibodeau, Complainant, v. Ontario Nurses' Association, Respondent
BEFORE: M. G. Mitchnick, Vice-Chairman.
APPEARANCES: Paul L. Thibodeau and Eleanor Thibodeau for the complainant; Donald F.O. Hersey, Q.C. and Marilyn Nairn for the respondent.
DECISION OF THE BOARD; November 9, 1984
The name of the complainant is amended to read: Eleanor Thibodeau.
This is a complaint filed under section 89 of the Labour Relations Act, alleging that the complaint, Eleanor Thibodeau, was dealt with by her bargaining agent, the Ontario Nurses' Association, in a manner which contravened section 68 of the Labour Relations Act.
The complainant had been employed for a number of years as a Registered Nurse at New Orchard Lodge, and it was in that capacity that the respondent Nurses' Association represented her as bargaining agent. The matters of which the complainant challenges the handling on the part of her bargaining agent were in fact the subject of an arbitration case which the respondent Nurses' Association fought and lost for her. Critical to these proceedings are the opening paragraphs of that arbitration award setting out some of the background facts to the events spawning the grievance, in a manner which the complainant agrees is accurate. That portion of the award reads:
In September. 1981, the grievor felt the need for a change in her work and made application for employment at two or three places. The Royal Ottawa Hospital's Rehabilitation Centre, a new facility, seemed to offer an attractive position. The grievor was interviewed by the Head Nurse of the Amputee and Stroke Floor with the result, said the grievor, that she was offered a position starting with orientation on September 8. The grievor asked for an extension, so that she could give New Orchard two weeks' notice. She testified that she was told she could start September 21, and that she was safe to resign her present job.
The grievor then proceeded to tell Helen Mills, the Director of Care at New Orchard Lodge, that she was resigning. This was confirmed in a handwritten letter dated September 4, 1981 in which the grievor resigned as of September 18.
The problems which have arisen in the life of the complainant all evolve from there. The complainant never did join the staff of the Royal Ottawa Hospital. Rather, the complainant was advised by the Royal Ottawa Hospital on September 16th that, as a result of a letter of reference received from New Orchard Lodge, the offer of employment to her was withdrawn. The complainant was exceedingly upset, and attempted in vain to persuade the Royal Ottawa Hospital to change its mind. She then approached New Orchard Lodge and asked whether they would consider giving her her old job back. She was told that that job had been filled, but was apparently offered a job on another shift. The complainant maintains that she then worked out an agreement with the Lodge that if she could obtain the consent of an employee at the Lodge to switch with her, she would be given her former job back. The complainant further maintains that she succeeded in obtaining such consent, but that the Lodge then refused to hire her.
The respondent Association filed a grievance on the complainant's behalf, and, as noted, took the matter all the way to arbitration. The grievance essentially concerned itself with trying to force the complainant's former employer to rectify the letter of reference it had issued, since employment at the Royal Ottawa Hospital had always been the complainant's primary goal, but alternatively the Association tried to argue that the Lodge had been in breach of its agreement to re-hire the complainant if certain conditions had been met. It is the respondent's handling of this grievance, and the matters which form the subject of this grievance, which the complainant seeks to challenge before the Board in the present proceedings. It should be noted that the complainant also retained legal counsel on her own and on his advice filed a law suit against the Royal Ottawa Hospital for breach of promise, and against New Orchard Lodge (Extendicare) for breach of promise (to re-hire) and wrongful dismissal. With respect to the former, the Royal Ottawa agreed upon a monetary settlement out of Court, while the action against New Orchard Lodge was dismissed with costs.
It is the position of the respondent that neither of the matters for which the respondent made its effort to seek relief for the complainant were matters falling within the duty of fair representation encompassed in section 68, once the complainant had voluntarily resigned her employment with the Lodge, as she clearly admits she did. Rather, the respondent asserts, it pursued these matters from the outset not out of a sense of obligation, but simply out of a desire to assist the complainant as much as it could, being a matter in which the respondent itself felt that the complainant had not been fairly treated.
The Board must agree with the submission of the respondent that the matters in question here do not fall within the ambit of the duty of fair representation, and are outside the scope of the Board's scrutiny under section 68. That section of the Act provides:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
In attempting to define the limits of the duty set forth in the above section, the Board has frequently made reference to the problem of bargaining-agent exclusivity which constitutes the starting-point from which the duty has evolved. In Ford Motor Company, [1973] OLRB Rep. Oct. 519, the Board commented:
- The union's exclusivity is summed up by the Supreme Court of Canada in Le Syndicat catholique des Employees de Magasins de Quebec Inc. v. La Compagnie Paquet Ltee (1959) 1959 CanLII 51 (SCC), 18 D.L.R. (2d) 346, by Judson J., as follows:
The union is, by virtue of its incorporation under the Professional Syndicates' Act and its certification under the Labour Relations Act, the representative of all employees in the unit for the purpose of negotiating the labour agreement. There is no room left for private negotiation between employer and employee. Certainly to the extent of the matters covered by the collective agreement, freedom of contract between master and individual servant is abrogated. The collective agreement tells the employer on what terms he must in the future conduct his master and servant relations. When this collective agreement was made, it then became the duty of the employer to modify his contracts of employment in accordance with its terms so far as the inclusion of those terms is authorized by the governing statutes. The terms of employment are defined for all employees, and whether or not they are members of the union, they are identical for all… It was not within the power of the employee to insist on retaining his employment on his own terms, or on any terms other than those lawfully inserted in the collective agreement.
While that case was concerned with the statutes of a different Province the conclusions of Judson J. are applicable to the legislation of this Province. Thus, the individual collective interests of the members of the bargaining unit.
- Section 60 [now 68] of The Labour Relations Act is to ensure that individual rights are not abused by the majority of the bargaining unit; it is an attempt to achieve a balance between the individual interests and the majority interest by recognizing that the exclusive bargaining agent has a duty to consider all the separate interests in the performance of its obligations. The duty has been described as the duty of fair representation.
The duty applies, in other words, to protect employees who are represented by a trade union in a bargaining unit, in the words of the statute, and for whom the trade union has exclusive bargaining rights. It is because the trade union acquires the exclusive right to represent the employee in matters falling within the purview of its bargaining rights, eliminating individual rights of recourse for the employee herself, that the duty came to be evolved. The duty thus extends no further than matters falling within the realm of the Union's exclusive bargaining rights. In A. J. Roberts, e.g., [1974] OLRB Rep. Mar. 169, the Board concluded that the duty could not be extended to the union's role in assisting (or otherwise) an individual in actually being hired by an employer. What is now section 69 of the Act was added specifically to overcome that problem in situations where, as in the construction industry, the trade union has the exclusive right to refer prospective employees to employment, but that is not the situation with the parties in the present case.
Here the respondent, not out of compulsion, but, as it says, acting gratuitously, sought to render what assistance it could by grieving the matters of concern to the complainant as if they were matters covered by the collective agreement; that is, as if they were matters about which the respondent was entitled to enforce relief for the complainant through the arbitration provisions and the collective agreement. But they were not such matters. Rather, both were matters falling outside of those aspects of the employment relationship for which the respondent was the complainant's exclusive bargaining agent. One was the impact of the Lodge's letter of reference on employment elsewhere than at New Orchard Lodge, and the other concerned the efforts of the complainant to have New Orchard Lodge re-hire her as an employee and accept her again into a position in the bargaining unit. The board of arbitration correctly held that the former was not a matter which the respondent could properly grieve under its collective agreement, and could have said the same with respect to the second (had it chosen to deal with the matter), in light of the unqualified admission by the complainant that she had voluntarily resigned her employment to begin with. No collective agreement provides relief against an employer who has accepted a voluntary offer of resignation from an employee (whether or not the employee continues to work out her period of notice), and it is not suggested that the instant collective agreement contained special provisions on hiring which would have brought this matter within the ambit of the arbitration machinery of the collective agreement. Once the employer refused, therefore, to accede to the respondent's overtures in the grievance procedure, the complainant was inevitably left with no recourse through the arbitration machinery of the collective agreement, and was compelled to pursue her claims through common-law actions in the Courts, as in fact she did. It is unfortunate, from the complainant's point of view, that these actions in the Courts could not have ended with a more satisfactory result, but the Board must conclude, as a matter of law, that the respondent Ontario Nurses' Association owed no duty under section 68 to assist the complainant with respect to the dilemma the complainant found herself in, and its gratuitous efforts on her behalf, at least on the facts of the case before us, lie outside the scope of this Board's scrutiny.
The complaint is accordingly dismissed.