Jeanette Kirkpatrick v. The Canadian Union of Public Employees, Local 1329 et al., 1984 CanLII 996

[1984] OLRB Rep. May 731

2444-83-U Jeanette Kirkpatrick, Complainant, v. The Canadian Union of Public Em­ployees, Local 1329, Canadian Union of Public Employees, Grace Hartman, Gordon J. Allan, Paul Gilbert, and John Vlahovic, Respondents, v. The Corporation of the Town of Oakville, Employer

BEFORE: Robert D. Howe, Acting Chairman.

APPEARANCES: Crawford N. McNair and Jeanette Kirkpatrick for the complainant; S. R. Hennessy, Paul Gilbert and Gordon]. Allan for the respondents; D. K. Laidlaw, Q. C., E. M. Stewart, Lois Payne and Arthur Bishop for the employer.

DECISION OF THE BOARD; May 1, 1984

1. This is a complaint under section 89 of the Labour Relations Act in which the com­plainant alleges that she has been dealt with by the respondents contrary to section 68 of the Act. The essence of the complaint is that the respondents arbitrarily failed to arbitrate the complainant's grievance dated May 25, 1983, concerning her "constructive dismissal" by the Town of Oakville (the "Town").

2. Section 68 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 I. TE. Industries Limited, [1980] OLRB Rep. July 1001, the Board described the scope and effect of section 68 (then section 60) as follows:

17 The Labour Relations Act constitutes the trade union as the em­ployees' exclusive bargaining agent. Within the framework of collective bargaining an employee must depend upon the union to represent him, and cannot bargain individually to establish his terms and conditions of employment. However, the trade union's right to represent employees is not unfettered, and its exclusive bargaining agency carries with it a com­mensurate responsibility; the union must represent each employee in the bargaining unit, in a manner that is neither "arbitrary, discriminatory, or in bad faith." By enacting section 60 the Legislature has sought to tem­per the union's authority and prevent abuses which might arise if that authority was entirely unreviewable.

18. Bad faith, malice, discrimination, or subjective ill will are clearly proscribed and readily ascertainable; the real difficulty is to determine when a union's conduct may be properly regarded as "arbitrary" — bear­ing in mind that the union's affairs may be conducted by laymen with limited formal education, or elected officials who may have been chosen for qualities other than their legal training or understanding of parlia­mentary procedure. While the Legislature undoubtedly sought to protect the employee from an abuse of the union's authority, I do not think it was intended that every miscalculation, honest mistake, or error in judge­ment would constitute a breach of a public statute. The standard to which a union must adhere was described in Ford Motor Company Limited, [19731 OLRB Rep. Oct. 519 as follows (at paragraph 40):

"40. In deciding whether a union has violated the Act the standards to be applied are important. We recognize that union affairs are con­ducted for the most part by laymen. In some situations there are ex­perienced full time officials of a trade union who conduct the union affairs; in other situations, the union affairs are conducted by em­ployees in their spare time, while in yet other situations employees may be given a limited amount of paid time by their employers to engage in trade union matters. This Board does not decide cases on the basis of whether a mistake may have been made or whether there was negligence, nor is the standard based on what this Board might have done in a particular situation after having the leisure and time to reflect upon the merits. Rather, the standard must consider the per­sons who are performing the collective bargaining functions, the norms of the industrial community and the measures and solutions that have gained acceptance within that community; see Fisher v. Pemberton et al. 1969 CanLII 726 (BC SC), 8 D.L.R. (3d) 521 at p. 546."

See also Savage Shoes Limited, [1983] OLRB Rep. Dec. 2067 in which the Board wrote:

36. Section 68 requires that each trade union decision be grounded on a consideration of relevant matters, free from the influence of irrelevant considerations. The requirement that a trade union not act in a manner which is in bad faith protects the legitimate expectation that an individual employee's bargaining agent will act honestly and free of any personal animosity toward him. The requirement that a trade union not act in a discriminatory manner protects against the making of distinctions between employees and groups of employees on bases which have no relevance to legitimate collective bargaining concerns. "Bad faith" and "discrim­inatory", therefore, test for the presence, in the process or results of union decision-making, of factors which should not be present. "Arbi­trary", on the other hand, describes the absence in decision-making of those things which should be present. A decision will be arbitrary if it is not the result of a process of reasoning applied to relevant consider­ations. The duty not to act arbitrarily requires a trade union to turn its mind to the matter at hand.

37. Although this duty is imposed on the trade union as an institution, the trade union observes or breaches the duty through the actions of its officials or decision-making bodies. Especially where an impugned de­cision is that of single official, there are obvious difficulties in reviewing the process by which that decision was made. Only the union official knows what his thought processes were and what facts and circumstances he actually took into account in the course of arriving at his decision. His ability to recall and articulate what took place in his mind may be influenced, sub-consciously or otherwise, by self-interest and by the knowledge that he is the only witness to these crucial mental events.

38. With these thinking process hidden from direct examination, a review of the behaviour of a trade union official must necessarily focus on what he did and the context in which he did it, as well as on what he says he thought. The result of the decision-making process is weighed against the facts and circumstances on which it is said to have operated. If the resulting interpretation of facts or of a collective agreement is found by the Board to be "reasonable" (Clifford Renaud, [1976] OLRB Rep. Jan. 967, ¶22; Jay Sussman, [1976] OLRB rep. July 349 ¶11; I.TE. Indus­tries Limited, [1980] OLRB Rep. July 1001, ¶20), "not unreasonable" (Ivan Pletikos, [1977] OLRB rep. November 776, ¶13), "not open to challenge" (Oil, Chemical & Automatic Workers International Union and its Local 9-698, [1972] OLRB May 521, ¶3), or at least "not implau­sible" (Canadian Union of Public Employees Local 1000 — Ontario fly­dro Employees Union, [1975] May 444, ¶32), then the Board is inclined to find that the decision is not arbitrary. Where the decision maker, on the other hand, misapprehends facts and circumstances which the Board considers "patent" and arrives at an "almost perverse" understanding of the facts and circumstances, the Board will conclude that union ef­fectively barred itself from "directing its mind to the real question", and that in so doing it had acted in a arbitrary fashion: The Corporation of the County of Hastings, [1976] OLRB Rep. November 1072, ¶22. Where it is difficult to see a rational pathway between the facts and circum­stances said to have been taken into account and the interests said to have been balanced on the one hand, and the result on the other, then there arises a rebuttable presumption that the decision was arbitrary.

39. The required thought process may involve more than the simple ap­plication of logic to the information then at hand. Decision making may be arbitrary if, before making its decision, the union fails to identify and seek out sources of further relevant information which should be taken into account in making that decision: Canadian Union of Public Em­ployees Local 2327, [1981] OLRB Rep. June 523, ¶30; Swing Stage re Alvin Plummer [1983] OLRB Rep. Nov. 1920.

(See also Swing Stage Ltd., [1983] OLRB Rep. Nov. 1920; Catharine Syme, [1983] OLRB Rep. May 775; George Lazenkas, [1983] OLRB Rep. Jan. 83; General Motors of Canada Lim­ited, [1982] OLRB Rep. Feb. 181; and Bedard Girard Ontario, [1981] OLRB Rep. Oct. 1338.

3. During the course of settlement discussions which preceded the hearing of this mat­ter, the Canadian Union of Public Employees, Local 1329 ("Local 1329") conceded that it had contravened section 68 of the Act at its June 29, 1983 meeting, at which the decision was made not to refer the complainant's grievance to arbitration. The complainant and the respondents then entered into the following Minutes of Settlement with a view to rectifying that contravention:

1. The Local and the National will seek the following orders from the Ontario Labour Relations Board:

(a) requiring the Local to proceed to arbitration with Mrs. Kirkpa­trick's grievance.

(b) waiving the procedural and timeliness requirements of the col­lective agreement in order to enable the grievance to proceed to ar­bitration on the merits.

(c) ordering the Local to pay, in the event the arbitrator awards back pay and benefits, the amount which is attributable to the failure to proceed to arbitration.

2. The Local agrees to take Mrs. Kirkpatrick's grievance to arbitration to seek her reinstatement with back pay and benefits and it is agreed that either Jean Hennessy or John Elder will argue the case on her behalf; and on behalf of the Local.

3. The Local agrees to pay that portion of any back pay and benefits found owing by the arbitrator which is attributable to the delay in pro­ceeding to arbitration.

4. Mrs. Kirkpatrick agrees that the above agreement constitutes full set­tlement of her claims against all respondents with respect to the section 68 complaint in Board File 2444-83-U, subject to acceptance by the O.L.R.B.

The Town did not find that settlement to be acceptable and, accordingly, refused to be bound by it.

4. This complaint initially came on for hearing before Vice-Chairman Owen V. Gray on April 9, 1984, at which time Vice-Chairman Gray delivered an oral ruling with respect to certain preliminary matters. The text of that ruling, together with supplementary reasons, is set forth in a decision dated April 13, 1984 (now reported at [1984] OLRB Rep. Apr. 640). The final paragraph of that decision reads as follows:

8. In my oral ruling of April 9th, I said:

For reasons to be delivered at a later date, I am satisfied that in fash­ioning remedies for violations of the Act, the Board does have ju­risdiction in appropriate circumstances to order that time limits be waived by the parties to a collective agreement.

For the reasons now set out in this decision, that ruling is hereby con­firmed. The oral ruling went on to provide:

Before any remedy can be granted, however, a violation must be established. If a remedy sought affects the employer, as the remedy sought does here, the employer is entitled to a hearing with respect to any issues relating to the granting of such a remedy, including is­sues as to the existence of a breach of the Act and as to circum­stances which might lead the Board to grant any particular, or any, remedy for the violation. In this regard, delay in filing the complaint and the reasons for the delay can have an important effect on remedy.

The Town is a respondent in a real sense, and will be so treated in these proceedings. It is entitled to a hearing on any issue which materially affects it. The issue of remedy is such an issue. That issue does not arise until a breach of the Act has been established.

In short, the Board cannot dispose of this complaint in the manner asked by the complainant and trade union respondents without hear­ing evidence and determining that the evidence warrants the relief sought. In essence, the Town puts the complainant to the proof of her case insofar as it may affect the Town. That is what the complainant must do.

5. This complaint came on before me for hearing on the merits on April 16 and 17, 1984. In addition to certain facts which were agreed upon by the parties to this complaint, and certain documents which were entered as exhibits without formal proof, on the consent of the parties, I also had the benefit of viva voce evidence given by the complainant, various other exhibits introduced through the complainant during the course of her testimony, and the complainant's tape recording (and transcript) of the aforementioned meeting of June 29, 1983 (introduced into evidence during cross-examination of the complainant at the instance of the Town). The complainant's tape recording and transcript of a grievance meeting held on June 10, 1983 were also entered as exhibits by counsel for the Town during his cross-examination of the complainant, after the Board directed their production at the request of Town counsel. Although the complaint as originally filed with the Board alleges contraventions of section 68 based upon that meeting, the complainant elected not to pursue that aspect (and a number of other aspects) of her complaint at the hearing of this matter, in view of the respondents' ad­mission that Local 1329 contravened section 68 at the aforementioned meeting of June 29, and in an effort to avoid any unnecessary prolongation of the hearing of this matter.

6. The complainant commenced employment with the Town in August of 1974 as a draftsman. Although she received very favourable ratings in respect of her employment per­formance and always received her annual merit increases, the complainant received no pro­motion during the course of her employment with the Town. This lack of promotion, coupled with other actions by Town officials (including her immediate supervisor, John Vlahovic) which the complainant considered to constitute discrimination and harassment, ultimately prompted her to file a complaint with the Ontario Human Rights Commission in January of 1983. The tension generated by those events caused great anxiety on the part of the complainant, who became very depressed and suffered from a loss of appetite and an inability to sleep. Since her "nerves couldn't take it any longer", she was given sedatives and anti-depressants by her physician, who advised her to stay off work.

7. Commencing on April 9, 1983, the complainant ceased to report for work due to the poor state of her health. On April 12 she submitted to the Town a photocopy of a medical certificate (dated that same day) written on a prescription form from the office of Dr. G. 0. Warr, the complainant's family physician. Since Dr. Warr was away at that time, the com­plainant was seen by another physician, Dr. Vincent Chan, who signed the certificate, which specifies that it is "for Jeanet [sic] Kirkpatrick", and reads:

Please excuse the above from work for 1 — 2 weeks because of illness. Thanks.

The words "for 1 — 2 weeks" are written between the first two lines of that certificate, above another word which has been stroked out. They are followed by the initials "V. C.", which Dr. Chan apparently printed in parentheses beside the alteration to confirm that it was he who had made that change.

8. In a letter dated April 14, 1983, Ron Foy, the Town's Planning Director, acknowl­edged receipt of a copy of that medical certificate, but went on to state:

Our regular practice is to require the original Medical Certificate, and it would be appreciated if you would forward this to me at your convenience.

On April 20, 1983, Arthur A. Bishop, the Town's Director of Personnel, wrote to the com­plainant as follows:

I have a copy of the doctor's slip provided in respect of your current absence. I also have a copy of Mr. Foy's letter requesting that you pro­vide the original of that form to us.

Inasmuch as that slip appears to have been changed to cover a one to two week period of absence, would you please have a certificate provided which will more clearly substantiate the nature and duration of absence which may be expected in accordance with the provisions of Clause 18.02 of our Collective Agreement with C.U.P.E. Local 1329.

I hope you will appreciate the necessity of providing this certificate and will not be severely inconvenienced in obtaining it for us.

9. Clause 18.02 of the collective agreement that was binding upon the parties at all material times provides:

The Head of the Department and/or the Director of Personnel may re­quire a doctor's report regarding an employee's sickness at any time. In any case, an employee who is absent from work for more than three (3) consecutive working days shall provide his immediate supervisor with a certificate satisfactory to the Corporation, not later than seven (7) days after the commencement of his sickness or upon return to work, which­ever occurs first, reporting the nature and duration or probable duration of that period of sickness. Where any period of sickness is for more than fifteen (15) consecutive working days, a certificate from the employee's personal physician reporting the nature and duration or probable duration of the sickness with the first and most recent dates of attendance on the employee, shall be provided within the first fifteen (15) days of absence and every subsequent fifteen (15) days of absence therefrom.

10. On April 25, 1983, the complainant obtained from Dr. Warr a note in which he indicated that the complainant had been "absent from work from April 9 to May 21, 1983 inclusive, because of illness." In response to her request that he indicate the nature of her illness, Dr. Warr advised the complainant that it was not his policy to specify the nature of a person's illness on an "open" medical certificate. The complainant delivered a copy of that note to the Town, by leaving it with the Town's switchboard operator, on April 29. She re­tained the original because she thought that the Ontario Human Rights Commission might want it. It was also her uncontradicted evidence that she had submitted photocopies of medical cer­tificates to the Town on previous occasions without any suggestion having been made that an original was required.

11. On May 4, 1983, Mr. Bishop caused the following letter to be sent to the com­plainant by registered mail:

A photostatic copy of a form from your doctor, which you apparently delivered to our switchboard on April 29th, has been forwarded to this office.

I did write to you on April 20, 1983, requesting you provide a report from your doctor outlining the nature and expected duration of your sick­ness in accordance with the provision of Article 18.02 of our Collective Agreement. Unless that document is in my hands by Wednesday, May 11, I will be forced to recommend no further payment be provided as sick pay and that your actions be interpreted as a quit.

Since the complainant was not at home when the postman attempted to deliver that letter, cards were left in her mailbox advising her that it would be held at the Oakville Post Office for fifteen days. The complainant received cards in respect of two other registered letters at or about that time and attended at the Post Office on May 18 to pick up those three registered letters. Thus, she did not become aware of Mr. Bishop's letter of May 4 and its contents until approximately a week after the May 11th deadline specified in that letter. Indeed, her first indication that she had been "deemed" by the Town to have quit her employment came on May 17, near the end of an Ontario Human Rights Commission fact finding session which had commenced at 10:00 that morning, in respect of her aforementioned complaint of dis­crimination by the Town and its officials. At that fact finding session, the complainant, with the assistance of her husband, put forward a conciliation proposal concerning her complaint, but it was rejected by the Town, which did not advance any proposal of its own at that meet­ing. Mr. Vlahovic opposed her complaint and asserted at that fact finding session that the "relationship had broken down" between the complainant and himself. At approximately 3:45 that afternoon, Mr. Bishop raised the subject of the complainant's medical certificates and ad­vised the complainant that she had been deemed by the Town to have quit her employment. Notwithstanding the fact that the complainant immediately informed the Town that she had not received Mr. Bishop's registered letter of May 4, the Town persisted in its view that the complainant's failure to respond to the request contained in that letter left the Town "no al­ternative" but to treat her as having quit her employment. That view was confirmed in a letter dated May 19, 1983, which Mr. Bishop caused to be hand delivered to the complainant.

12. On May 19 the complainant delivered a letter to Paul Gilbert, the President of Lo­cal 1329, together with a copy of Mr. Bishop's letter of May 4. In her letter, the complainant noted that she had not received Mr. Bishop's letter of May 4 until May 18, and also expressed the view that she had not quit her employment with the Town. Accordingly, she requested Mr. Gilbert to take the required actions to grieve her "constructive dismissal" by the Town.

13. Being dissatisfied with the way in which Mr. Gilbert was handling the matter, the complainant took it upon herself to dictate over the telephone to union steward Marilyn Pa­terson the following grievance, which was filed with the Town on or about May 25:

I wish to grieve that the Corporation of the Town of Oakville has ter­minated my employment through "constructive dismissal". This is in contravention of Article 3 Corporation's Rights, Clause 3.01 of the agreement between the Corporation of The Town of Oakville and Canadian Union of Public Employees Local 1329. On May 17th, 1983 I was informed that I was no longer employed by the Corporation and that my benefits and salaries ceased on May 13th, 1983.

On May 27 an addendum to that grievance was drafted by Local 1329 and attached to the grievance without the complainant's instructions. The addendum requested that the complain­ant be reinstated in her employment with no loss of wages, seniority or benefits as of May 13, 1983.

14. On May 27 the complainant's grievance was reviewed and denied by the Town's Planning Director and the complainant was notified accordingly. By letter dated May 31 from Mr. Gilbert to K. C. Needham, Town Administrator, Local 1329 requested that the grievance be referred to Mr. Needham for a decision in accordance with the collective agreement. On June 10, the complainant attended before Mr. Needham to argue her grievance. At that meet­ing, at which she was represented and advised by officials of Local 1329, the complainant made it clear that although Local 1329 was requesting reinstatement on her behalf, she was personally seeking only compensation for her "constructive dismissal" and was not seeking reinstatement since the working relationship between herself and her employer had broken down to such an extent that she was suffering ill health as a result of it and could not go back to work under such conditions.

15. Mr. Needham subsequently denied her grievance by means of the following letter dated June 17:

Thank you for appearing at the Grievance Hearing held in my office on Friday, June 10, 1983. At that Hearing, although the representatives of C.U.P.E. Local 1329 stated they wished to have you reinstated as a Draftsperson Grade III effective May 13, 1983, without loss of pay, sen­iority and other benefits, you indicated you could not return to work for the Corporation and you were making a claim for "compensation and damages".

With respect to the Canadian Union of Public Employees' claim for re­dress, I must deny the grievance. Notwithstanding letters from the Di­rector of Planning and the Director of Personnel, you failed to provide the information the Employer sought and was entitled to under the terms of the Collective Agreement, nor did you make any offer to provide that information either at the meeting or at any time.

With regard to your request for "compensation and damages", I believe both matters are outside the terms of the Collective Agreement.

16. On June 29 Local 1329 held a membership meeting to deal with, among other things, the question of whether the complainant's grievance should proceed to arbitration. Having carefully considered all of the evidence before the Board concerning that meeting, including the aforementioned tape recording and transcript, I have concluded that Local 1329 did contravene section 68 of the Act as alleged by the complainant and admitted by Local 1329. It appears from the evidence that no consideration was given to the complainant's em­ployment history of almost nine years of exemplary service to the Town. Moreover, no con­sideration was given to the chain of employment related circumstances which had given rise to the severe anxiety and depression that had necessitated the complainant's absence from work at the time in question. Indeed, there is no evidence that any Union official made any in­vestigation concerning those matters which would clearly be of considerable relevance in the event that the Town's assertion that the complainant had "quit" her employment was rejected at arbitration, and her termination was treated as a discharge. Just before a motion not to support going to arbitration with the complainant's grievance was unexplainably substituted for C.U.P.E. National Representative Gordon J. Allan's proposal that the motion be to proceed to arbitration, an official of Local 1329 raised the completely irrelevant matter of the com­plainant's earlier (unsuccessful) attempt to withdraw from the Local. Despite his obvious con­flict of interest, union steward John Vlahovic, who was also the complainant's immediate supervisor and one of the targets of her complaint to the Ontario Human Rights Commission, was permitted by officials of Local 1329 to unfairly impugn the complainant's credibility and unduly influence the deliberations. Moreover, the advice of the Union's lawyer that the case should proceed to arbitration was disregarded by Local 1329. No reasonable explanation has been provided for the Local's decision to "not support" the complainant's discharge griev­ance, despite the strong prima facie case of a meritorious grievance that was presented by the complainant at that meeting, with the assistance of Mr. Allan, whose views on the matter were also disregarded by the Local. Under the circumstances, notwithstanding Mr. Laidlaw's very able argument to the contrary, I am satisfied that a breach of section 68 of the Act has been duly established in these proceedings.

17. Following that meeting, Mr. Allan advised Mr. Needham by letter dated July 5 that Local 1329 had decided not to proceed to arbitration with the complainant's grievance. The complainant testified that "a week or so after the [June 29] meeting" she changed her mind and decided to seek reinstatement with the Town because she "really thought that what had happened was wrong". However, she conceded in cross-examination that she did not com­municate that decision to anyone in the Town until she filed the present complaint in January of 1984. It is common ground among the parties that if the complainant were to be reinstated into her previous position, "it would dislocate one or more present employees from their pres­ent position to some extent".

18. With respect to the matter of remedy, I have concluded that this is an appropriate case in which to direct Local 1329 to refer the complainant's grievance to arbitration, and in which to make an award of compensation against the Local, contingent upon the grievance succeeding at arbitration and an arbitral award of compensation being made, in respect of the period from June29, 1983 to April 9, 1984 inclusive, which is the period during which Local 1329's breach of section 68 of the Act prevented her grievance from being arbitrated. (With respect to the matter of remedy in section 68 cases involving failure to arbitrate a discharge grievance see, generally, North York General Hospital, [1982] OLRB Rep. Aug. 1190, and Leonard Murphy, [1977] OLRB Rep. March 146.) The Board will also direct the parties to waive all procedural and timeliness requirements of the collective agreement in order to enable the grievance to proceed to arbitration on the merits. However, nothing in this decision is intended to, or shall be construed to preclude the Town from arguing at the arbitration of this matter that reinstatement of the complainant ought not to be directed in the circumstances and that only compensation should be awarded in view of the fact the complainant consistently advised the Town at all material times that she wanted only compensation and did not wish to be reinstated.

19. For the foregoing reasons, the Board, pursuant to section 89(5) of the Labour Re­lations Act, hereby orders, notwithstanding the provisions of the collective agreement binding upon the parties hereto:

(1) that the respondent Local 1329 forthwith refer to arbitration the complainant's discharge grievance dated May 25, 1983, as amended by the addendum dated May 27, 1983;

(2) that the respondent Local 1329 and the respondent Town of Oak­ville take all steps necessary to have the aforementioned grievance referred to arbitration for a hearing on the merits, and waive all procedural and timeliness requirements which might preclude such hearing;

(3) that the respondent Local 1329 take all steps necessary to assure that it and the complainant are represented at the arbitration hear­ing by Jean Hennessy, John Elder, or another representative mu­tually acceptable to the complainant and Local 1329, at Local 1329's expense; and

(4) in the event that an arbitration award provides for compensation to the paid to the complainant, that the respondent Local 1329

compensate the complainant for all wages and benefit losses in­curred by her during the period from June 29, 1983, to April9, 1984, inclusive.

20. The Board remains seized of this complaint for the purpose of resolving any matter arising out of the interpretation or implementation of the above order.