[1985] OLRB Rep. June 889
3462-84-U Anisia Mordowanec, Complainant. v. Ontario Nurses Association (ONA), Respondent
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members P. Grasso and R. J. Gallivan.
APPEARANCES: Mary Cornish for complainant; D. F. O. Hersey, Q. C. and Dan Anderson for the respondent.
DECISION OF THE BOARD; June 14, 1985
I
- This is a complaint under section 89 of the Labour Relations Act alleging that the respondent union has contravened section 68 of the Act. The alleged breach of section 68 is based upon the union's decision not to take an active role in a judicial review of an earlier Board proceeding involving the complainant, and not to provide her with funds so that she could retain her own counsel. Section 68 reads as follows:
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 order to appreciate the context in which the present case arises, it may be useful to sketch in some of the background and the issues resolved in the earlier Board proceeding (Board Files 2287-83-U and 2526-83-U) which is now before the Court. For ease of reference, the respondent, the Ontario Nurses' Association, will be referred to as "ONA", and Windsor Western Hospital will be referred to simply as "the Hospital". The facts set out below are those established by the Board in the earlier case. (See, [1984] OLRB Rep. Nov. 1643.)
II
The complainant is a registered nurse. She has worked for the Hospital for some 27 years. On May 31, 1982, she was suspended pending investigation of alleged improper treatment of a patient.
At the time of the alleged wrongdoing, the complainant's charge nurse was Ms. Mary DeByl-Wowchuk. Ms. DeByl-Wowchuk was also the local union president. In her capacity as charge nurse, she filed critical reports questioning the complainant's competence. In her capacity as union president, she attended a "disciplinary interview" leading to the complainant's termination. The quality of representation provided at the disciplinary meeting was the basis for a complaint before this Board alleging that ONA had breached its duty of fair representation (Board File 2287-83-U).
The disciplinary meeting took place on June 9, 1982. The complainant was required to attend. Under the applicable collective agreement the complainant was clearly entitled to union representation. Ms. DeByl-Wowchuk was the only union official present at the meeting, however, it would be somewhat misleading to describe her as the complainant's "union representative". Ms. DeByl-Wowchuk took no active part in the meeting. She did not attempt to advise or represent the complainant. Ms. DeByl-Wowchuk only took notes.
At the meeting, the Hospital misled the complainant into believing that if she signed a resignation letter there would be no negative report to the College of Nurses. That assertion was false. The Hospital did report her to the College of Nurses, which conducted an enquiry into the charges of professional misconduct and incompetence. Ms. DeByl-Wowchuk gave evidence against the complainant. The charges were dismissed.
At the disciplinary meeting on June 9, 1982, the complainant was upset. She requested an adjournment so that she could talk to her husband or a lawyer. She requested a delay until that afternoon when Ms. Jan Davidson, a union employee relations officer, would be available to represent her. The complainant had already spoken to Ms. Davidson and arranged to meet her later that day. The complainant did not want to be represented by Ms. DeByl-Wowchuk. Ms. DeByl-Wowchuk was not impartial. The Hospital insisted on proceeding immediately.
Ms. DeByl-Wowchuk was in a conflict of interest position. She could not, and did not, assist or represent the complainant. Ms. Davidson would have been able to supply such union representation, but the Hospital was not prepared to await her arrival. It is difficult to resist the inference that the Hospital knew that if the complainant had Ms. Davidson's assistance, it would not be able to successfully mislead her and obtain a resignation letter; and, if it proceeded with a dismissal, it might have some difficulty establishing "just cause" for the discharge of an employee with twenty-seven years' service. The Hospital was content to engineer, and exploit, a situation in which the complainant was without any actual union representation. In any event, that was the unanimous opinion of the panel of this Board which heard the earlier case. The Hospital chose to call no evidence, and thus tendered no explanation as to why it could not await the arrival, later that afternoon, of the union representative the complainant had so clearly requested.
The resignation letter was signed late in the morning of June 9, 1982. That afternoon, the complainant did have occasion to discuss the matter with Ms. Davidson. That evening, the complainant delivered to the Hospital a written revocation of her resignation. The Hospital refused to accept it. The Hospital's response was that even if the complainant had not resigned she was terminated for cause.
Thereafter, the union filed a grievance on the complainant's behalf. The grievance was ultimately taken to arbitration. Unfortunately for the complainant, the arbitration board ruled that because of the resignation letter it had no jurisdiction to determine whether the Hospital had "just cause" to terminate the complainant's employment. She had "quit" voluntarily.
On January 5, 1984, the complainant filed an unfair labour practice complaint alleging that the union had breached its duty of fair representation. This complaint was later amended to include an alleged breach of sections 64 and 66 of the Act by the employer Hospital. The complaint against ONA was based upon the failure of ONA to provide proper representation at the disciplinary meeting. In addition, the union filed its own complaint against the employer Hospital alleging breaches of sections 64 and 66. The unfair labour practice complaints against the Hospital were both based upon the Hospital's purported interference with the complainant's statutory right to union representation at the disciplinary meeting. These two related cases (i.e. against ONA and the Hospital) were eventually heard by the same panel of the Board. Both were successful.
For reasons more particularly set out in the Board decision of November 9, 1984, the Board concluded that the union had breached its obligation under section 68 of the Act to properly represent the complainant at a time when the complainant's critical job interests were at stake. However, the Board also found that this absence of representation was brought about, in part, by the actions of the Hospital. The Board held that the Hospital had interfered with the complainant's statutory right to union representation which she had clearly requested and which, in practical terms, had been expressly denied. The Board cited with approval certain comments in 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 (Supreme Court), where the Supreme Court of the United States held that language similar to that found in the Labour Relations Act guaranteed an employee's right, upon request, to have union representation at a disciplinary meeting where his critical job interests are at stake. [See generally: C.J. Morris, Editor, The Developing Labour Law, B.N.A. Washington, 1983 at pp. 149-156. See also: the decision of the Quebec Labour Court in Chapdelaine v. Emballage Domtar Ltee, 84 CLLC 14,013 where that tribunal reached the same conclusion.] The Board did not explore the full ambit of this statutory right to representation (which has been well established in the United States), but observed that it was not for the employer to decide who would be the employee's representative at a disciplinary hearing, or to raise barriers to union representation which cannot be reasonably justified. No justification was advanced, because, as noted, the Hospital called no evidence.
The Board was then faced with the dilemma of how to fashion an appropriate remedy for these combined breaches of the Act. In a typical unfair labour practice discharge, the Board normally directs the reinstatement of the aggrieved employee with compensation for lost wages. However, the circumstances before the Board were somewhat novel. It was a little unusual for a termination to result from what might be described as a double illegality. Nor was it by any means clear how the liability should be apportioned between ONA and the Hospital, when it was arguable that, but for the Hospital's default, there might have been no termination, and any failure of representation on ONA's part would have been rectified. Finally, there was the matter of the complainant's own delay in launching these unfair labour practice complaints. Her discharge occurred in June of 1982, but it was not until January, 1984 that she sought to pursue any remedy before this Board against her employer or her bargaining agent. In a preliminary ruling, the Board decided that this delay would not be an absolute bar to a consideration of her complaint, but might well be a factor to be considered if the complaint were ultimately successful and the Board had to deal with the question of remedy or compensation.
Ultimately the Board decided that the crux of the problem was the termination letter, which it found, would not have been tendered, but for the illegal conduct of both the union and the Hospital. Without that termination letter, upon which the arbitration board relied, the employer would have had to rely upon its alternative position that the complainant had been discharged for cause. Whether or not that position could be sustained would depend upon the strength of the employer's case against her. While the opinion of the College of Nurses might suggest the likely result, it would not be binding upon an arbitration board which would have to make up its own mind based upon the evidence before it.
The collective agreement envisages arbitration as the appropriate mechanism for resolving such questions and, while the Board might well have decided to deal with all of these issues itself, it decided that the more appropriate route was to direct that the propriety of the complainant's discharge should be determined by a board of arbitration constituted pursuant to the terms of the collective agreement. The Board remained seized in the event that there was any difficulty in the implementation of this remedial order, and in the event that the complainant was successful at arbitration there was some dispute with respect to the amount or allocation of compensation (again, bearing in mind the complainant's own delay in launching these proceedings). The relevant portion of the earlier decision reads as follows:
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 letter 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.
The Board will remain seized in the event of any difficulty with the implementation of our remedial order, and in addition, we will remain seized in the event that Mrs. Mordowanec is successful at arbitration and there is some dispute with respect to compensation.
[emphasis added]
But the Board decision was not the end of the matter. The Hospital refused to comply with the Board's order. The Hospital refused to appoint its nominee to the board of arbitration. The Hospital takes the position that the Board decision is wrong, and that it should not have to justify its decision to terminate the complainant's employment.
The Hospital does not deny that it has failed to comply with the Board's order. The Hospital says that it has applied for judicial review. However, the Hospital has not sought a "stay" of the Board's direction as it is entitled to do pursuant to section 4 of the Judicial Review Procedure Act. Nor has it asserted that, pursuant to section 6, the case should be dealt with expeditiously by a single judge of the High Court. Meanwhile, of course, more than six months after a Board decision in her favour, almost three years after her termination, and despite a decision by the College of Nurses dismissing the allegations of incompetence and professional misconduct, the complainant remains unemployed, awaiting the establishment of a board of arbitration which will determine whether there was just cause for her termination.
Given the crowded Court calendar and the vagaries of litigation, it is difficult to predict when the Divisional Court might hear the application for judicial review (leaving aside any question of further appeals). The fall of 1985 appears to be a reasonable assumption. When the Court might render a decision is difficult to predict.
It is equally difficult to predict the results or the potential judicial outcomes. For example, if the Court were to hold that the arbitration remedy was beyond the Board's jurisdiction, but did not disturb the finding that the Hospital breached section 64, the Board might have to determine what remedy, if any, should flow where the union's illegality set the stage for an employee discharge, but the employer's illegal conduct effectively prevented a subsequent rectification of that problem. Indeed, how would one apportion liability if the Hospital's judicial review failed and the complainant's grievance succeeded - particularly given her own delay in seeking relief before this Board? These questions are novel, and it is probably inappropriate to speculate as to how they might be resolved.
With this background, we turn to the issues in the instant case.
III
The Hospital filed its application for judicial review in late January, 1984. In accordance with its usual practice, and pursuant to section 9 of the Judicial Review Procedure Act, the Ontario Labour Relations Board, by its counsel, entered an appearance so that it could address the Court on any questions concerning the Board's jurisdiction and the application, if any, of the "privative clause" in section 108 of the Act. As we have already mentioned, ONA has decided not to take an active role in the judicial review proceedings. It is not disputed that, because of the complainant's financial circumstances, she may not be able to retain counsel unless she is able to obtain the financial assistance of the Legal Aid Plan.
Although ONA may not be supporting the employer, attacking the adverse finding against ONA itself, or even taking an active role in the judicial review proceeding, ONA is not a disinterested party. Because the Hospital attacks the propriety of the Board's remedy, as well as its interpretation of the statute, ONA may well be left in a position where, if the Hospital is totally successful, ONA will bear full responsibility for any compensation ultimately payable to the complainant. Alternatively, if the Board remedy is set aside, but not its interpretation of section 64, ONA may subsequently be embroiled in further litigation before this Board to determine what alternative remedy would be appropriate. ONA is apparently prepared to take those risks.
Dan Anderson testified that ordinarily ONA took an active part in judicial review proceedings arising from arbitration awards favourable to the union and employee position. He was unable to recall any judicial review applications involving the Labour Relations Board. Moreover, in this case, ONA is in a somewhat unusual position. It was a co-respondent in the impugned proceedings. It was found by the Board to have breached the Act. It may ultimately be responsible for some portion of the compensation potentially payable to the complainant. Given the unusual circumstances, ONA sought the advice of its counsel, D.F.O. Hersey, Q.C. of the Toronto firm of McCarthy & McCarthy.
Mr. Hersey advised ONA that, in his view, the Hospital's application for judicial review was without merit and would not succeed. In Mr. Hersey 's opinion~ the grounds for judicial review raised by the Hospital were unlikely to be accepted by the Court as sufficient to warrant quashing the Board's decision. He also pointed out that the Labour Relations Board routinely retained experienced counsel to address any questions concerning the Board's jurisdiction or any assertion that the Board had exceeded its jurisdiction. In view of the privative clause, jurisdictional error was the only basis for review. Mr. Hersey advised that, in the circumstances, ONA's representations would be superfluous and a waste of money. For much the same reason, ONA also decided that it did not have any obligation to finance the complainant's participation in the judicial review of the Board decision, anymore than it had the responsibility to pay her legal costs for the successful proceeding before the Labour Relations Board itself.
We are a little troubled by ONA's decision not to take part in the judicial review proceeding. In so doing, ONA may be contributing to the rather unusual situation in which only the Labour Relations Board and the Hospital will be making representations on the application for judicial review. We do not think that the role of Board counsel is analogous to that of counsel for other interested parties, or that the submissions of Board counsel can or will necessarily be same. Regardless of the experience of Board counsel, he will be responding to the Board's instructions, not those of ONA, and may well be more circumscribed in his submissions than ONA would prefer. But the issue before this panel of the Board is not whether we agree with the wisdom of ONA's decision, or whether we would have counselled or taken a different course of action. The question before us is whether what ONA has done can be characterized as "arbitrary, discriminatory, or in bad faith". We do not think that it can.
Dealing first with ONXs direct participation in the judicial review proceedings, we repeat that the circumstances are somewhat unusual, and it is not at all inappropriate or surprising that ONA would seek the advice of counsel before making a decision. Counsel's advice was obtained and followed, and whether it was right or wrong, we do not think the union's conduct can be characterized as arbitrary, or in bad faith. Nor do the circumstances of a novel situation support the assertion of discrimination. There is no indication of subjective ill will or bad faith on the part of ONA or its officials. On the contrary, ONA has already been to arbitration once on the complainant's behalf, and ONA is actively pursuing the complainant's claim in the forum and in accordance with the procedure contemplated by the earlier Board decision. ONA does not stand to gain from its decision not to participate in the judicial review (or to finance the complainant for that matter). If anything, ONA is merely increasing its "downside risk". This is not to say that a lawyer's opinion will always provide a complete defence to a section 68 allegation, or that retaining counsel will provide a shield in every conceivable circumstance. There may well be extraordinary cases in which the sins of a solicitor will be visited upon his union client under section 68 of the Act, leaving the union with whatever remedies may be available to it in the Civil Courts. This is not one of them.
If ONA is not going to take an active role in the judicial review proceedings, is it under an obligation to finance the complainant's own participation? This is also a difficult question, particularly where, as here, the question might never have arisen had the union been more diligent in the first place. It is vaguely troubling that neither ONA nor the impecunious complainant may be present in Court to defend the process of arbitration to which ONA is prepared to submit, and which in collateral proceedings (see Board File 3080-84-M) it seeks to expeditiously engage. However it is not alleged, and cannot be said that ONA is intentionally trying to "throw the case", or facilitate a decision in favour of the employer. Here it appears that any "victory" by the employer in the application for judicial review will most likely complicate ONA's own position, and increase its potential financial liability. As things now stand, the Hospital is a co-respondent which could arguably bear at least some financial responsibility for the complainant's termination. If the Hospital is successful, through judicial review, in extricating itself entirely from the process, ONA may well be left with increased or perhaps sole responsibility for what has occurred. Accordingly, it is difficult to view ONA's decision not to participate or finance the complainant's independent participation as a scheme to thwart her interests, or the product of bad faith or discrimination.
The complainant does not assert that she is entitled to her "costs" of the successful complaint before the Labour Relations Board. The Board has a well-established policy of not awarding "costs" - not only because the statute does not contemplate "costs", but also because the Board would have no jurisdiction to award them to a successful respondent. But if the complainant is not entitled to her costs of the successful proceeding before this Board, why is she entitled to demand that ONA pay her legal expenses for a judicial review flowing from the Board proceeding or for any subsequent appeal? The issue is underlined by the fact that if ONA wished to do so, it could itself have applied for judicial review of those Board findings adverse to its interest, and would then have been arrayed against the complainant in the same way and in the same forum as the employer. Could the complainant then claim that she was entitled to call upon ONA to provide funds for counsel to intervene in the Divisional Court in opposition to ONA's application? We do not think so. If ONA is not required to subsidize the complainant's legal fees when ONA itself is aligned in interest against her, why should ONA have a higher obligation when, on the advice of counsel, it is taking a purportedly neutral stance?
The statutory duty of fair representation was initially conceived as a kind of ''counterbalance'' flowing from to the union's exclusive bargaining agency granted by statute (see Vaca v. Sipes, (1967) 386 U.S. 1971 (U.S.S.C.) and Walter Princedomu v. Canadian Union of Public Employees, Local 1,000 - Ontario Hydro Employees' Union, [1975] OLRB Rep. May 444). In the collective bargaining world the employee does not have the right to bargain his own individual terms and conditions of employment. Nor does he have the right to enforce or insist upon the enforcement of the terms of the collective agreement to which he is not a signatory party. Under our legislative scheme, those rights are vested exclusively in the trade union. The union is his statutory agent. In this context, it is hardly surprising that the Legislature would determine that the union must exercise its "monopoly position" in a manner that is neither arbitrary, discriminatory nor in bad faith. The statutory duty of fair representation is the natural concomitant of the union's position as exclusive bargaining agent. If the employee is not to be able to assert these collectively bargained rights on his own, he should at least have the assurance that his statutory bargaining agent will represent him fairly.
Here the situation is somewhat different. Apart from questions of funding, it does not appear that the complainant's right to participate in the application for judicial review depends upon or can be limited by the status of her union as exclusive bargaining agent any more than the union could have limited her right to bring an unfair labour practice complaint against her employer (as she, in fact, did). She may not be able to bargain individually with her employer, and she may not be able to insist on enforcement of an alleged violation of the collective agreement, but the union, as her statutory bargaining agent, cannot, and is not seeking to foreclose her participation in the judicial review proceeding. She has that right as a matter of law and quite apart from the Labour Relations Act and the union's statutory role. Whatever the general ambit of the union's representation obligation under section 68 of the Act (and we need make no decision in that regard), it does not extend in this case to underwriting the costs of her legal counsel in the pending judicial review proceedings.
For the foregoing reasons, this complaint is dismissed.