[1986] OLRB Rep. June 753
0597-85-U Jean Liebman, Complainant, v. York University Staff Association, Respondent, v. York University, Intervener
BEFORE: Owen V. Gray, Vice-Chairman.
APPEARANCES: James Fysche, Charles Campbell and Jean Liebman for the complainant; William A. Harrison, Celia Harte, David Parry and Roderick Bennett for the respondent; D. J. Mitchell, S. Young and J. O'Keefe for the intervener.
DECISION OF THE BOARD; June 27, 1986
- When this complaint came on for hearing, 50 year old Jean Liebman had been employed for over 17 years by York University ("York") as a secretary in a bargaining unit represented in collective bargaining by the York University Staff Association ("YUSA"). Ms. Liebman's complaint is that YUSA's decision on June 6, 1985. to withdraw her transfer grievance on the eve of hearing by an arbitration board constituted a breach of section 68 of the Labour Relations Act ("the Act"), which 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 1983, Jean Liebman started complaining - to staff, faculty members, members of York's management and, ultimately, her trade union - that false accusations about her work performance in the Sociology department, where she had been working for all but the first few months of her employment, were being made against her without explanation or justification. With the exception of an apparently disciplinary remark by the department's Chairman, a matter which was resolved after the union intervened, the reaction of the YUSA officials to whom Ms. Liebman made her frequent complaints was that those complaints concerned disputes between bargaining unit employees which could not be dealt with in the grievance procedure under YUSA's collective agreement with York.
Ms. Liebman was persistent in pressing her complaints. Eventually, YUSA requested a labour-management meeting, in the hope that this might resolve the situation. The result of the meeting was an agreement that York would engage an outside consultant to review the department. When the consultant completed his review, his report recommended that both Liebman and a supervisor in the bargaining unit be dismissed or transferred out of the department. On November 8,1984, Liebman was transferred from the Sociology department to a secretarial pool position elsewhere in the Faculty of Arts. She filed a grievance which the union executive, after some initial reluctance, decided it would take to arbitration.
In the meantime, following an earlier suggestion by a member of the union's executive that she sue the persons she felt were mistreating her, Ms. Liebman had retained a lawyer, Mr. Campbell, to consider the possibility of a civil action for defamation. The union rejected her request that it allow Mr. Fyshe, another lawyer in Campbell's office, to represent the union at the arbitration of her grievance. YUSA preferred to use Mr. Harrison, who represents the union on a regular basis. The arbitration of Liebman's grievance was scheduled for hearing on June 7, 1985. As a result of discussions with Harrison, Campbell saw the arbitration as holding more promise for Ms. Liebman than a defamation action. Campbell represented Liebman in discussions with Harrison about the arbitration in the period leading up to the scheduled hearing.
Shirley MacDonald was President of YUSA in June, 1985. She testified that the union's executive met on the evening of June 4, 1985, and made a motion that the union would withdraw Liebman's grievance from arbitration if she should refuse a reasonable offer of settlement from York. Although the union thought York would make a settlement offer, according to MacDonald none had been received when this motion was passed. Campbell was told of this motion on June 5th. That day, York made two successive settlement offers. The first was rejected by Ms. Liebman. The second (hereafter referred to as "the offer") resulted from a four-way telephone conversation between Don Mitchell (York's Personnel Director), M;acDonald, Harrison and Campbell. Harrison described the offer this way in a confirming letter to Campbell dated June 6, 1985:
The second offer was that Mrs. Liebman will be given three months paid leave of absence after which upon her return she will be offered two positions by York University from which to choose. In addition, her legal costs up to $1,500.00 will be paid. On top of that an apology will be provided to her and her file purged to her satisfaction. In exchange, the University requests that she provide an undertaking whereby she will no longer carry on in her battle with the University or her fellow employees.
[emphasis added]
The emphasized words are Harrison's characterization of that aspect of the offer. Neither he nor Mitchell testified. Campbell and MacDonald both did, and neither said Mitchell used the word "battle". They understood from Mitchell that the University wanted Ms. Liebman to treat the settlement as finally resolving all her past complaints and to refrain from any further discussions of those past complaints with anyone.
Campbell arranged to and did meet with Liebman on the evening of June 5th to discuss the offer. Liebman told him she would have to think about it overnight. He told her of the union's position with respect to withdrawal of the grievance from arbitration if she rejected a reasonable offer, and asked her to let him know by 10 o'clock the following morning. For her part, MacDonald spoke by telephone with members of the YUSA executive and told them the details of the offer. By early morning on June 6th, before the call from Mitchell described in paragraph 9 hereof, MacDonald had ascertained that a majority of members of the YUSA executive felt that this offer was a reasonable offer and that the union should withdraw the arbitration if Liebman rejected it.
Liebman had doubts about the offer. She was not sure of the University's ability to bring her difficulties to an end. At about half past 7 o'clock in the morning on June 6th, she decided to and did speak by telephone with her local member of provincial parliament, to whom she had never before spoken. In response to her story, which he now recalls only in general terms, Liebman's MPP suggested that she speak to the President of York University, Harry Arthurs. He asked if she would like him to arrange an appointment for her. She said she would. He called the President's office and spoke to a secretary or assistant, who said Mr. Arthurs was out of town but that she would look into the matter and get back to him about his constituent's request.
It was not put to Liebman's MPP when he testified before the Board that calling the President should have seemed to him an inappropriate response to whatever Ms. Liebman told him that morning. It was put to Liebman and to Campbell., however, that contact with the President's office on June 6th was inappropriate because it represented a continuation of "the battle" and that it was an implied term of the offer that "the battle" not continue while acceptance was under consideration. Both denied that there was any implied term that Liebman not speak to anyone at York before deciding whether to accept or reject the offer. Liebman said she agreed to her MPP's calling to make an appointment for her because, in a meeting with members of YUSA a few months earlier, Mr. Arthurs had said he had an open door policy and that staff should feel free to discuss problems with him. She said the purpose of the proposed meeting was not to continue a battle but to seek assurances that a battle would end. In any event, no meeting could be arranged at that point. Liebman called Campbell just before 10 o'clock to say that she agreed with the settlement in principle, subject to satisfactory negotiation of the form of the University's apology and the form of her undertaking. Campbell called Harrison's office shortly after 10 o'clock. He was told Harrison was not in, so he left a message that Liebman had accepted the offer in principle.
In the meantime, Mitchell had called MacDonald, told her of the call by Liebman's MPP to the President's office and suggested it appeared Liebman had rejected the offer. MacDonald called the President's office and was told that Liebman's MPP had, indeed, requested an appointment and that Liebman herself had been contacted to confirm the request. After speaking to Harrison, MacDonald called Mitchell and told him the union was withdrawing Ms. Liebman's grievance from arbitration. She did so, she said, because YUSA's executive had decided that should be done if Liebman rejected York's offer and it appeared to MacDonald that Liebman had rejected that offer. She came to that conclusion without first speaking to Liebman or having Harrison speak to Campbell to ascertain whether the MPP's call to the President's office reflected a decision by Liebman to reject the offer. She said she felt that withdrawing the grievance from arbitration was a matter of urgency because the arbitration hearing was scheduled to start the following day. It did not occur to MacDonald to seek an adjournment of the arbitration hearing and it is not at all apparent why the call to Mitchell to withdraw the grievance could not have awaited a call to Liebman or Campbell.
When Harrison returned Campbell's call later that day, he told Campbell that the University had withdrawn its offer because of the call Liebman's MPP made to the President's office and that the union had withdrawn the grievance. He later confirmed this advice in a letter to Campbell dated June 7, 1985. I am bound to observe that Ms. MacDonald's evidence of her conversations with Mitchell was inconsistent with Harrison's representations to Campbell: in her testimony, MacDonald did not suggest that Mitchell had withdrawn the offer at any point before she withdrew the arbitration. (Although Harrison and Mitchell acted for YUSA and York, respectively, at the hearing of this complaint, neither testified.)
This complaint was filed June 12, 1985 and heard January 22 and February 5, 1986. The complainant's position is that it was arbitrary of the union to act as though she had rejected York's settlement offer without speaking to her or her lawyer to ascertain whether or not she had. YUSA's defence is that the failure to do so was, at most, an honest mistake or error of judgment of the sort which does not violate section 68. YUSA also argues that if there was a breach of section 68, Liebman suffered no loss as a result.
In Catharine Syme, [1983] OLRB Rep. May 775, the Board said:
Section 68 requires a trade union to act fairly, inter alia, in the handling of employee grievances. But it does not require a trade union to carry any particular grievance through to arbitration simply because an employee wishes this to be done. A trade union is entitled to consider the merits of the grievance, the likelihood of its success, and the claims or interests of other individuals or groups within the bargaining unit who may be affected by the result of the arbitration. The trade union must give each grievance its honest consideration, but so long as the arbitration process involves a significant financial commitment and has ramifications beyond the individual case, a trade union is not only entitled to settle grievances, in many cases it should do so. And, as has been pointed out in a number of cases, in assessing the merits of a grievance a trade union official - especially an elected one - cannot be expected to exhibit the skills, ability, training and judgement of a lawyer.
Nothing in the evidence before me suggests that YUSA acted in an arbitrary, discriminatory or bad faith manner in its representation of the complainant prior to June 6, 1985. Nothing in that evidence suggests that either the union's appraisal of the potential risks and benefits of arbitrating her grievance or its conclusion that York's last offer was an appropriate settlement of that grievance was unreasonable. Although it did seem curious that the trade union s executive voted on what it would do in the face of a reasonable offer before they received one, their expectation that one would be forthcoming was borne out and, having heard Ms. Liebman testify, I can understand the union's concern that she might reject an objectively reasonable offer if she thought she could still have her day in court.
YUSA's decision to withdraw the complainant's grievance from arbitration would not have violated section 68 if she had told it that she rejected York's offer. That, however, is not what occurred. YUSA did not withdraw the grievance because of something she or her solicitor told it, in a call for which it was waiting that morning and for which Liebman and her solicitor were entitled to expect it would wait. It was not an express or implied condition of the offer that Ms. Liebman have no communication with anyone at York before accepting or rejecting it, yet YUSA withdrew the grievance from arbitration because it had learned from York that she had tried to make an appointment to see York's President. On the basis of that fact it assumed, incorrectly, that Liebman had decided to reject the offer. It acted on that assumption without first speaking to Liebman or Campbell, as it could easily have done within the time constraints it faced.
As the Board noted in the above-quoted passage from Catherine Syme, supra, when dealing with a decision whether to take a grievance to arbitration, "[t]he trade union must give [the] grievance its honest consideration..." It is essential to the honest consideration of a grievance that the union ascertain from the grievor, or afford her an opportunity to discuss with it, her version or explanation of the relevant events and circumstances, particularly those which it may weigh against her in deciding whether to pursue that grievance. As the Board observed in Swing Stage Ltd., [1983] OLRB Rep. Nov. 1920, at paragraph 48:
The union cannot be said to have directed its mind to the merits of a grievance or potential grievance if it has not ascertained the grievor's version of the situation.
The same applies to those events or circumstances from which a trade union may be disposed to conclude that a grievor no longer wishes his grievance pursued to arbitration: Consumers Glass Company Limited, [1979] OLRB Rep. Sept. 861. As a general proposition, it can be said that a trade union will breach section 68 if it fails to take reasonable steps to ascertain from its grievor, or to afford her an opportunity to discuss with it, her version or explanation of events and circumstances which, if not contradicted or satisfactorily explained, would lead the trade union to act against that grievor's interest with respect to her grievance. Like any other general statement of principle, this one will be found to have its limits and exceptions. The facts of this case, however, fall squarely within the ambit of this important principle, whatever form of words might be chosen to state and delimit it. Having defined as critical the question whether or not its grievor would decide one way or the other with respect to a settlement offer, the union acted arbitrarily and breached section 68 by making an assumption on the point without asking the grievor, either directly or through counsel, what decision she had made.
The object in fashioning a remedy under subsection 89(4) of the Act is to put the complainant in the same position, so far as possible, as if the Act had not been violated. Counsel for the respondent union argues that Liebman's position was unaffected by the withdrawal of her grievance from arbitration, having regard to evidence that the university was still willing to offer her two comparable positions. Counsel for the complainant takes the same position her solicitor took at the time - that the withdrawal of the grievance must inevitably have had an effect on Liebman's bargaining position thereafter, as appears from the fact that York had withdrawn other elements of its June 5th offer. On the evidence before me it seems more likely than not that the withdrawal did have some effect which could best be remedied by reinstating the arbitration of the grievance. In the event the grievance is not settled before hearing and results in an arbitration award, liability for any monetary compensation awarded to Ms. Liebman with respect to the period between June 6, 1985, and the date of this decision shall be borne by the union. Because of this aspect of the remedy, the arbitration should be performed by a sole arbitrator and not a tripartite board of arbitration. The intervener will be required not to raise either the earlier withdrawal or the consequent delay as a bar or defence in arbitration of the grievance.
In addition to reinstatement of the arbitration, the complainant asks for an order entitling her to representation by counsel of her choice at arbitration and that the union pay her costs of this complaint. I am not aware of any decision of this Board in which either order has been made part of a remedy for a breach of section 68. This case presents no feature which would warrant reconsidering or departing from the approach to claims for costs taken by the Board in such cases as Repac Construction & Materials Ltd., [1976] OLRB Rep. Oct. 610, Radio Shack, [1979] OLRB Rep. Dec. 1220, Grey Owen Sound Health Unit, [1980] OLRB Rep. Feb. 223, Comstock Funeral Home Ltd., [1981] OLRB Rep. Dec. 1755, Silknit Ltd., [19831 OLRB Rep. Nov. 1913, Daynes Health Care Ltd., [1984] OLRB Rep. Feb. 224, Luciano D'Alessandro, [1984] OLRB Rep. Aug. 1088 and John Glykis, [1985] OLRB Rep. Mar. 420. For reasons set out in those cases, the complainant will not be awarded costs. As for representation at arbitration, the Board does not always make an order giving the successful section 68 complainant a say in who will present her grievance at arbitration: Phillip Wayne Bradley, [1983] OLRB Rep. June 865 and John Glykis, supra. When such an order is made, the union's continuing interest in the matter is taken into account by requiring that it retain counsel jointly selected by it and the complainant: Leonard Murphy, [1977] OLRB Rep. Mar. 146, [1977] 1 Can. LRBR 422, Bedard Girard Ontario Ltd., [1981] OLRB Rep. Oct. 1338, and Central Stampings Limited, [1984] OLRB Rep. Feb. 215 and [1984] OLRB Rep. Oct. 1383. It is appropriate in this case to make an order in that form.
While this decision requires that the arbitration of Ms. Liebman's grievance be reinstated and rescheduled for hearing before a sole arbitrator, it does not require that the arbitration hearing inevitably take place. It need not, if the grievance can be settled in the meantime. The union has the right to settle grievances without the consent of grievors, subject only to the requirements of section 68. The remedy in this case will not include a direction that the grievance not be settled without the complainant's consent, but only that the union not agree to a settlement without first advising the complainant of the proposed terms and affording her or her representative an opportunity to discuss them with those who will make the union's decision whether to agree to the settlement. It is important for Ms. Liebman to understand that if the union can obtain a settlement of her grievance which gives her as good a remedy as an arbitrator might reasonably be expected to award with respect to the alleged improper job transfer, she will not then be in a position to insist that the grievance proceed to a hearing.
In summary, the Board finds and declares that the respondent trade union acted arbitrarily in deciding to withdraw the complainant's transfer grievance on June 6, 1985, contrary to section 68 of the Labour Relations Act, and orders and directs that:
(a) the respondent and intervener shall reinstate the arbitration of the complainant's transfer grievance and reschedule it for hearing by a sole arbitrator agreed upon by the respondent, complainant and intervener. If those parties are unable to agree on a sole arbitrator, the respondent and intervener shall jointly request of the Minister of Labour that he appoint one.
(b) The intervener shall not raise either the earlier withdrawal of the grievance or the consequent delay as a bar or defence in the arbitration of the grievance. If any monetary compensation is awarded to the complainant with respect to the period between June 6, 1985, and the date of this decision, it shall be paid by the respondent union rather than the intervener employer.
(c) The respondent union shall retain counsel jointly selected by it and the complainant to act in its name at and in connection with the arbitration of the grievance.
(d) The respondent union shall not agree with the intervener employer to a settlement of the complainant's grievance without first advising the complainant of the proposed terms of settlement and affording her or her representative an opportunity to discuss them with those who will make the union's decision whether to agree to the proposed settlement.
The Board remains seized of this matter to resolve any dispute arising over the interpretation or implementation of these directions and orders.