[1986] OLRB Rep. January 164
1328-85-U Canadian Paperworkers Union, Local 304, Complainant, Sunworthy Wallcoverings a Division of Borden Company Limited, Respondent
BEFORE: S. A. Tacon, Vice-Chairman, and Board Members W. H. Wightman and P. J. O 'Keeffe.
APPEARANCES: Guy Beaulieu and Jim 0 'Mara for the complainant; L. Bertuzzi and K. Tracey for the respondent.
DECISION OF THE BOARD; January 29, 1986
The name of the respondent is amended to read: "Sunworthy Wallcoverings a Division of the Borden Company Limited".
This is a complaint under section 89 of the Labour Relations Act alleging violation of section 64 and 66.
The respondent raised a preliminary objection that the facts relied on by the complainant, even if accepted, did not constitute a prima facie violation of the Act. Before outlining the submissions of the parties with respect to the preliminary motion, it is necessary to sketch the factual context. The facts were not in dispute, except as noted.
The grievor was an employee of the respondent company. In September, 1984, the grievor received a thirty-day jail sentence. In October the grievor was discharged, by letter, for absenteeism while serving his sentence. A grievance was filed alleging that the discharge was unjust and that the discharge was a nullity because the respondent terminated the grievor without first holding a disciplinary meeting with the grievor and the union steward. The grievance proceeded through the usual steps in the internal grievance process and, then, to arbitration. In a unanimous decision, the arbitration board found that there was just cause for the discharge and the discharge was not a nullity. With respect to the latter procedural issue, the arbitration board concluded that the collective agreement provision regarding a meeting with the company, a steward and the employee prior to the imposition of discipline was directory only. Further, the arbitration board considered that, while the arbitration panel had the power to fashion a remedy for failure to comply with a directory provision (i.e., the letter of intent), there was no necessity for such a remedy in the instant case as "the evidence did not disclose any reason to anticipate that a discipline meeting, with union representation, would have been of assistance to the grievor" (at page 14 of the award dated May 24, 1985).
As noted earlier, the parties did not dispute the facts as found in the arbitration award dealing with the events concerning the grievor's discharge except where the award referred to the procedures followed in other grievances. Both parties did assert that there were other grievances or instances where, according to the union, the respondent had held "prediscipline" meetings and the union dissuaded the respondent from imposing discipline and, where, according to the respondent, discipline was imposed without any "pre-discipline" meeting. This clarifies the extent of the disagreement with the facts as found by the arbitration board and the Board notes the parties' reservation of their right to call evidence on those other grievances if necessary. It was conceded that, whatever the collective agreement may require, the respondent has not had a consistent practice of holding pre-discipline meetings.
The respondent submitted that the interpretation of the collective agreement was a matter for an arbitration panel, not the Board and where, as here, an arbitration panel has interpreted the collective agreement, that interpretation was binding on the Board. As the arbitration panel had found the "pre-discipline" meeting to be a directory provision, it was argued there was no mandatory "event" to which representational rights could attach. The respondent contended that the Board could not "create" the "event" (i.e., the pre-disciplinary meeting) in the face of the arbitration panel's ruling. Further, the respondent asserted the alleged "violation" of the letter of intent was without remedy. That is, subsequent to the termination, meetings were held in accordance with the grievance procedure and at which the union could make all the representations which could have been made prior to the imposition of discipline. The respondent distinguished the decision in Windsor Western Hospital, [1984] OLRB Rep. Nov. 1643 on the basis that the denial of union representation in that case resulted in an arbitration hearing which dealt with the issue of a "quit" rather than the merits of the alleged unjust discharge. In the instant case, the respondent stressed the arbitration board heard the merits of the discharge itself. In summary, the respondent submitted there must be a scenario or event at which the union's representational rights were interfered with for a prima facie case to be demonstrated. Here, there had been no pre-discipline meeting and the arbitration board concluded no such meeting was required. Therefore, it was argued the Board did not have the jurisdiction to create the requirement of a meeting and then to attach representational rights.
The union submitted the rights under the Act in the collective agreement were intertwined. It was argued the arbitration panel should have concluded the pre-discipline meeting was a mandatory provision because of the operation of the Act; Windsor Western Hospital, supra, was cited in support. That is, once the collective agreement contained a provision respecting pre-discipline meetings, that provision, notwithstanding its strength or weakness on its face, generated representational rights and becomes mandatory; non-compliance then constituted a violation of the Act as well as the collective agreement. For denial of the union's representational rights, the union argued the appropriate remedy was reinstatement of the grievor with full compensation; or, referral to a new arbitration board with the direction the pre-discipline meting was a mandatory provision or, at least, that provision could be used to mitigate the penalty imposed; or, the Board could fashion its own remedy for violation of the Act. The union submitted there was no point in directing a new "pre-disciplinary" meeting, in effect, repeating the internal grievance process. The union based its remedial request on the basis that the union had lost its opportunity under the Act and the collective agreement to represent the grievor prior to the imposition of discipline.
Given the union's reliance on Windsor Western Hospital, supra, it is appropriate to refer to the following passage from that decision wherein the conduct of the hospital is discussed:
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 oniy Canadian authority on point, in which the Quebec Labour Court held that an employee was entitied to union representation at a disciplinary interview under the "freedom of association" article of the Quebec Labour Code).
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.
We make the following findings of fact on the evidence before us with respect to the employer's conduct vis-a-vis the representation tights 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-Wowehuk in respect of Mrs. Mordowanec, the request by Mrs. Mordowanec that someone other than Mrs. DeBylWowchuk 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 it so 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.
It is true that some of the phraseology cited appears to support the union's position, i.e., "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" (at paragraph 28). However, the following sentence clarifies the context for those representation rights, namely, that the overriding purpose of the Act is "to redress the imbalance that exists when an individual is forced to deal with his employer in respect of his employment relations" (emphasis added). In Windsor Western Hospital, the grievor was required to attend a disciplinary meeting without adequate union representation (in part also because of a violation of section 68 of the Act) she was faced with a choice of resign or be fired, she requested the opportunity to speak to a union representative who would be available that afternoon and her request was denied. In these circumstances, the hospital was able to extract a resignation letter which it later raised as a bar to an arbitration of the merits of the grievor's termination. The instant facts stand in sharp contrast. Prior to the imposition of discipline, there was no meeting whatsoever: the grievor was not confronted by his employer in the context of an imbalance of power, with its resulting unfairness and during the grievance procedure, the grievor was represented. Thus, in the Board's view, the principles regarding representation rights enunciated in Windsor Western Hospital, do not assist the grievor. Whether the respondent violated the collective agreement in not conducting a pre-discipline meeting is a proper matter for an arbitration board to determine. The failure to hold such a meeting, at least in circumstances where, as here, a consistent practice of holding such pre-discipline meetings was not alleged, cannot be said to have unlawfully interfered with the complainant's right to representation guaranteed by section 64.
In fact, the procedural issue as to whether a pre-disciplinary meeting was required was heard by the arbitration board. As noted, the panel determined the provision was directory only. The Board does not accept the union's argument that the letter of intent is "transformed" into a mandatory provision by virtue of the Act. As is clear in Windsor Western Hospital, the representation rights operate independently, flow from section 64 of the Act itself. That is, even apart from express language in the collective agreement regarding representation at discipline and grievance meetings, section 64 creates representation rights, denial of which may constitute a violation of the Act.
The Board further wishes to stress another fundamental difference between Windsor Western Hospital and the instant case. In Windsor Western Hospital, the arbitrator only heard the preliminary objection that the grievor had voluntarily resigned. The issue as to whether, on the merits, the discharge was unjust was not heard (because of the violations of section 68 and 64 by the union and the hospital respectively). In the instant situation, the same cannot be said. The grievance proceeded through the grievance process and to arbitration on the merits. The "justness" of the discharge in all the circumstances was fully argued before the arbitration board. Unfortunately for the grievor, the discharge was upheld. In the Board's view, the union is really seeking to overturn the arbitration award by coming to the Board. The statutory rights in the Labour Relations Act, however, are not intended to create an alternate route to judicial review for challenging arbitration awards. Nor, in the Board's opinion, could Windsor Western Hospital be reasonably described to stand for such a proposition. There are, of course, circumstances in which the Board possesses jurisdiction to deal with an alleged unfair labour practice where the impugned conduct may also constitute a violation of a collective agreement. Whether the Board should defer to arbitration is determined generally by the principles enunciated in Valdi Inc., [1980] OLRB Rep. Aug. 1254. Even where the Board does so defer, the Board retains jurisdiction to deal with the unfair labour practice aspects, also as set out in Valdi, supra. In the instant facts, the grievor's loss was, at best, the loss of an opportunity to have a pre-discipline meeting with union representation. The grievor did receive union representation throughout the grievance procedure and a full hearing on the merits at arbitration. In the Board's view, there is not made out a prima facie case for the remedy requested. That is, even if a violation of section 64 representation rights was made out (and the Board has found no such violation on the facts as agreed), that violation would not lead to the remedy sought by the complainant or, as a matter of discretion, the Board would decline to exercise its discretion in these circumstances to provide the remedy sought given that the parties had the opportunity to fully argue the merits of the grievance at arbitration and did so.
For the foregoing reasons, the Board upholds the respondent's preliminary motion that the facts do not disclose a prima facie violation of the Act. The complaint, therefore, is dismissed.