[1987] OLRB Rep. July 1011
0445-87-U Jean Liebman, Complainant v. York University Staff Association and York University, Respondents
BEFORE: R. O. MacDowell, Alternate Chair.
APPEARANCES: James Fyshe and Jean Liebman for the applicant; James Hayes, Celia Harte and John Carter for the York University Staff Association; Don J. Mitchell and S. Young for York University.
DECISION OF THE BOARD; July 31, 1987
I
- This is the complaint of Jean Liebman who contends that she has been dealt with by the
York University Staff Association ("the Union") contrary to section 68 of the Labour Relations
Act. 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.
Ms. Liebman contends that the union acted improperly, and in breach of its section 68 obligation, when it decided to settle her grievance against York University, rather than proceed with it to arbitration. Ms. Liebman maintains that this decision was "arbitrary", and undertaken without sufficient consultation with her or her solicitor. She further complains that the union has failed to pay certain legal costs which, she says, it was obliged to do.
A hearing in this matter was held, in Toronto, on June 23, 1987. All parties were represented and extended the opportunity to lead evidence and make their submissions. The complainant and the union both took that opportunity. The University did not call evidence, but made representations as to the result which the Board should reach on the basis of the evidence before it.
Credibility, as such, is not really an issue in this case. I do not doubt that ins. Liebman was accurately recounting the situation as she saw it. Nevertheless, I am bound to observe that I prefer the evidence of the complainant's regular counsel, Mr. Charles Campbell, and the evidence of the union's regular counsel, Ms. Susan Ballantyne, whenever their version of events contradicts that of the complainant. (I say "regular counsel" because, at material times, communication between the parties was conducted by counsel who later testified before me - waiving questions of privilege - but who necessarily were unable to represent Ms. Liebman in these particular proceedings). The complainant was frequently confused and demonstrably reluctant to accept any factual assertion inconsistent with her own view of reality or "justice". For example, she initially testified that she was surprised by, and had almost no notice of, an important union meeting on February 24, 1987, when, in fact, she had at least ten days' notice. She denied ever receiving a letter from the union concerning the proposed settlement of which she now complains, when, in fact, she must have received it (and her counsel certainly did). She testified that, throughout her long dispute with York, and later with her union, she has tried to maintain a "low profile", has never intentionally fueled the controversy, or drawn attention to herself and only raised that issue when other employees approached her. However, it is quite clear, that she voiced her complaints to almost anyone who would listen and, directly, or through her counsel, initiated contact with the local press which resulted in a certain amount of media coverage. There was nothing wrong with that, of course, because Ms. Liebman felt deeply aggrieved by the way in which she had been treated, and I do not think much turns upon the fact that she made her grievances known to fellow employees or the media. It is simply that her recollection of the facts is shaped by her own particular perspective and may not, for that reason, be entirely accurate.
In order to appreciate the context in which the present proceeding arises, it is necessary to sketch in the factual background. Some of these matters have already been canvassed in an earlier Board decision involving these same parties (hereinafter sometimes refered to as the "Gray" decision). Other issues were amplified or clarified in the proceedings before me. However, it is important to stress at the outset, that this case involves Ms. Liebman's complaint of improper treatment by her trade union. The fairness or otherwise of her treatment by York University, is not directly in issue.
II
Jean Liebman is a secretary. She was first employed by the University in 1968. She subsequently worked in the sociology department for approximately 17 years. She was happy there. She had a degree of security, and a certain sense of "place", because she had her own office and was not working in the general office area with her fellow secretaries of similar rank. She had been there a long time, and, in her view, had done a good job. There is nothing in the evidence before me to suggest otherwise.
This happy situation changed in or around 1983, when the University installed a new department head, and introduced changes in the way that work was organized and distributed among the secretarial staff. Ms. Liebman was shifted into the general office area and her former office was re-allocated to faculty members who had previously had to share office space.
Ms. Liebman resisted these changes to her relationship with management, faculty members, and other employees. She regarded them as unfair and a form of harassment. As a result, there was growing friction and discord within the department.
As the earlier Board decision records, Ms. Liebman was pressing and persistent in voicing her complaints to staff, faculty members, members of the University's administration, and ultimately to her trade union. Before me, her regular counsel frequently lapsed into military metaphor, referring to "the campaign", "the battle", and, ultimately, to his efforts to achieve a "peace treaty". To the extent that her complaints involved the working relationship with other bargaining unit employees, she was told by the union that these disputes could not be dealt with in the grievance procedure which governs the relationship between the employer and its employees. No one suggests otherwise.
Eventually, the union requested a union-management meeting, in the hope that this might resolve the deteriorating situation in the sociology department. The result of that meeting was an agreement that York would retain the services of an independent consultant to review the problems in the department and make recommendations. That was done.
The consultant interviewed quite a number of faculty members and support staff about "the problem". Their comments are recorded in the consultant's report and if that report accurately reflects what was said (leaving aside, for now, what was true), the views were quite mixed. There were a number of conflicting opinions about the real source of the difficulties and the most appropriate solution.
Whatever its truth or validity, the consultant's report was not very complimentary to any of the disputants, or factions in the sociology department. It was critical of Ms. Liebman, her immediate supervisor, other members of management and what was described as a "fractious" faculty group with too much time on their hands. The consultant concluded that some members of faculty had used Ms. Liebman' s resistance to change as a vehicle for their own resistance. In some cases, there was a rather cynical attempt to keep Ms. Liebman as, in effect, their own private secretary to the exclusion of other legitimate claims upon her time. The situation had descended into pettiness and backbiting, and, in the consultant's opinion, indicated a strong lack of "cohesiveness" and direction within the department.
The consultant recommended that the solution to the problem was the lateral transfer of Ms. Liebman to an equivalent position elsewhere in the Faculty of Arts, and the lateral transfer of her immediate supervisor to a similar level position elsewhere in the University. The consultant recommended that those transfers be implemented "quickly and concurrently". They were. On November 8, 1984, Ms. Liebman was transferred from the sociology department to a position in the same salary grade in the secretarial pool in the Faculty of Arts. She suffered no loss of income or other benefits as a result of this transfer. However, she considered it to be a "slander on her name", and filed a grievance alleging a breach of the collective agreement. She also retained counsel and launched a civil action for slander against the University and the Dean of the Arts Faculty.
Ms. Liebman's grievance was processed through the various discussion stages of the grievance procedure and, with some reluctance, the union decided to proceed with it to the arbitration stage. The union was not at all sanguine that an arbitrator would find Ms. Liebman's lateral transfer to be a breach of the collective agreement, or that s/he would direct that Ms. Liebman be returned to her former job in the sociology department. The arbitration of Ms. Liebman's claim was not without its risks, and of course, her quest for vindication would necessarily involve protracted and expensive litigation. That is why the union eventually accepted what it considered to be a reasonable offer from York to settle the entire matter.
The union's dealings with Ms. Liebman prior to June 6, 1985, were described by the earlier Board panel as follows:
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 the 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 the grievance was unreasonable.
The Board added:
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.
I can also understand that concern. It is entirely borne out by the evidence before me.
- The arbitration of Ms. Liebman's grievance was scheduled to begin on June 7, 1985. On June 5, 1985, York made two settlement offers. The first was that Ms. Lieb man could resign and would be paid the equivalent of six months' salary. That offer was rejected. The second offer was described by the union's then solicitor in a letter dated June 6,1985 (although there is now some doubt about whether it accurately portrayed York's position):
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.
The union was anxious to have Ms. Liebman's answer. The majority of the members of the YUSA executive felt that this offer was a reasonable one and that the union should withdraw the arbitration if Ms. Liebman rejected it. As I have already noted, although framed in the double negative, ("not unreasonable"), the earlier panel did not quarrel with the union's assessment of the merits of the grievance, or the union's judgement that the proposed settlement was appropriate.
On the evening of June 5th, Ms. Liebman met with Charles Campbell, her personal solicitor. Mr. Campbell had been retained in April of 1985, and has been advising her ever since. They discussed the offer. Ms. Liebman was not prepared to accept it right away. She had reservations. She did not think that the offer went far enough or was sufficiently detailed.
The following morning Ms. Liebman contacted her local MPP and sought to arrange a meeting with the President of York University to seek further assurances. He indicated that he would try to arrange such a meeting. Ms. Liebman called Campbell just before 10 o'clock in the morning to say that she agreed with the proposed settlement "in principle", subject to satisfactory negotiation of the form of the University's apology, and the form of her personal undertaking not to "pursue the battle" with York and her fellow employees.
It is debatable whether that agreement in principle would ever have been translated into a settlement in fact. Certainly it seems unlikely that this could have been done before June 7th. Mr. Campbell testified before me that he anticipated "tough bargaining" about the form of the apology, because the complainant's position was that a return to the sociology department was the only real "exoneration", and failing that, she wanted to go to arbitration. Since the University later denied that it had undertaken to apologize at all, it seems very doubtful that it would have agreed to an apology sufficiently abject and sweeping to satisfy Ms. Liebman. My impression is that, if pressed, it is more likely than not that Ms. Liebman would have rejected the 1985 settlement proposal as she later rejected the proposal made in 1987.
The union concluded that Ms. Liebman's contact with her MPP, and the University President represented an implicit rejection of the settlement offer which the union considered to be reasonable. Accordingly, the union withdrew the grievance. It did so without actually confirming that rejection with Ms. Liebman or her solicitor. That is what troubled the earlier panel of the Board, which observed:
It was not an express or implied condition of the offer that Ms. Liebman have no communication with anyone at York before accepting it or rejecting it, yet YU5A 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.... 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 Board directed that the grievance be reinstated and rescheduled for arbitration, but it was careful to point out that:
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.
[emphasis added]
The Board rejected Ms. Liebman's demand for costs and the unilateral right to select counsel for the arbitration hearing if her case were not settled. The Board directed, inter alia 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.
(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.
Item (c) of the Board's remedial order later turned out to be a matter of some controversy. Ms. Liebman insisted on being represented by Mr. Campbell who had advised her throughout, and continued to represent her in her civil action against the University. She would not agree to anyone else. The union was prepared to agree to any lawyer in the City of Toronto who regularly acted on behalf of trade unions in contested collective bargaining matters. In a letter dated September 18, 1986, the union's new counsel, Ms. Susan Ballantyne, listed eight law firms whose partners or associates would be acceptable. The list includes virtually all of the members of Toronto's "labour bar" other than those in Ms. Balantyne's own firm; however, out of an abundance of caution she added: "YUSA would be happy to agree to any other union labour lawyer who might have been inadvertently omitted from this list. The union's only criteria is that the lawyer must specialize in labour relations". Ms. Ballantyne is herself an experienced labour lawyer who has practised for some years in this field. Her firm was retained by the union after the OLRB hearing but before the Board issued its first decision.
What was the union's concern? According to Ms. Ballantyne, it was two-fold. Mr. Campbell, whatever his qualifications as a litigator, was not experienced in the law or practice of labour arbitration; moreover, the Liebman grievance would be the first time that an arbitrator would be called upon to interpret the transfer provisions of the collective agreement. Any interpretation rendered by that arbitrator in what is admittedly an unusual case, could have ramifications for the entire bargaining unit.
The union's other concern was monetary. It wanted some indication of the total cost of the proceeding - bearing in mind that Ms. Liebman's crusade for personal vindication would necessarily be financed by her fellow employees in the bargaining unit. The union wanted some assurances that the legal costs incurred prior to the Board's decision, or the costs that were associated with her civil action against the University, would not creep into the final bill.
In the end Ms. Liebman got her way. By summarily rejecting all of the lawyers proposed by the union, YUSA was left with the option of either accepting Mr. Campbell or litigating the issue before the Board with whatever legal costs that entailed (and, of course, once again, such costs would ultimately be borne by the other employees in the bargaining unit). Mr. Campbell was eventually accepted. To address the fee issue, the parties executed the following agreement:
The Union agrees to retain Mr. Charles Campbell to represent Ms. Liebman at the arbitration of her transfer grievance. This agreement is on the condition that Mr. Campbell's fees will not exceed $2,500.00 for the first day of the arbitration, and $1,000.00 per day of hearing thereafter.
Mr. Campbell explained that he ordinarily bills his time at a stipulated hourly rate, but learned that it was the custom of labour law practitioners to "build in" a block amount for the first arbitration day to compensate for their preparation. He and his client were content with that formula. That is why the agreement stipulates that he will be paid $2,500.00 for the first day of hearing and $1,000.00 for every day thereafter.
The parties anticipated a long hearing. Eventually, ten days were set aside by the arbitrator, and it is not clear whether even that would have been enough. What is clear, is that the legal and arbitration costs associated with this one case, involving a lateral transfer in which Ms. Liebman had suffered no direct financial loss, would likely exhaust the union's entire annual legal budget. To arbitrate this one case, in the way that Ms. Liebman wished, would likely entail expenditures in the order of $20-30,000.00 - or perhaps more. Moreover, as it turned out, Ms. Liebman hoped to use the arbitration process to complain not only about her transfer in 1984, but also about certain consequences associated with a subsequent layoff in 1986. That matter deserves brief mention.
In February 1986, Ms. Liebman was given notice of layoff from her position in the secretarial services group of the Faculty of Arts because, in her employer's opinion, she had not "proved suitable for retraining" on the new equipment which York wished to introduce. She was to be maintained at her current salary for about a month, and, thereafter, would have the right under the collective agreement to exercise her seniority rights to move to another position within the University, (displacing a less senior person), provided that she was qualified to perform the duties of the selected job.
There is no evidence before me that Ms. Liebman ever sought to exercise her seniority rights to "bump" into another position. She accepted the layoff and filed a grievance. That grievance was resolved to her apparent satisfaction (and with the advice of her counsel) in a settlement identified before me as exhibit 5:
RE: LAYOFF GRIEVANCE OF JEAN LIEBMAN
- The parties agree that the Grievor will receive sick pay for the period April 23 – July 23, 1986, and that the appropriate deductions will be made from her sick leave bank.
It is understood that the Unemployment Insurance Commission will be reimbursed for any monies paid to her during this period.
The parties agree that the Grievor will return to her position in secretarial services on November 10, 1986, or such later date as may be required to allow for completion of training.
The parties agree that for the purpose of her entitlement to seniority, vacation, sick leave credits, pension and benefits, the Grievor will be treated by the Employer as if she had been working for the period April 23 to "the date of recommencement of employment".
The parties further agree that if, on January 31, 1987, the Grievor has proven herself to be satisfactorily retrained on the word processing equipment in use in her position, she will be fully compensated for all wages lost during the period July 24 - November 9, 1986, on the following basis:
a) 50% of the total amount to be paid by the Employer; b) 50% of the total amount to be paid by the Union.
The parties agree that in the event the Grievor is assessed to be "unsuitable for retraining" (within the meaning of Article 16.07), she is still entitled to the rights guaranteed her by Article 16.07 of the 86/87 Collective Agreement. The parties also agree that she is entitled to grieve any assessment of her job performance or retraining that is inaccurate, unjust or otherwise in violation of the Collective Agreement.
The Union and the Grievor agree to withdraw the grievance.
DATED this 6th day of November, 1986.
As a result of that settlement, during a period of nine months when the complainant was absent from work, she received her full salary. It was agreed that because, during part of this period, she was experiencing physical and emotional difficulties, she would be treated as being "on sick leave", and that, accordingly, an appropriate number of days would be deducted from her '~bank" of sick leave credits. It is not disputed that, at this stage, her actual "loss" in this regard remains indefinite, and perhaps hypothetical. It will only crystalize if, over the next few years, she contracts illnesses which require absences beyond the total number of days remaining in her sick leave bank. For the remainder of her layoff period Ms. Liebman was fully reimbursed for all income lost, with the union paying half of the agreed amount. The settlement preserved Ms. Liebman's right to challenge York's initial assessment that she was unsuitable for retraining, as well as her right to grieve such assessment. In the result, Ms. Liebman was away from work for nine months, but was paid her full salary for that period.
Ms. Liebman expressed no dissatisfaction with that resolution at the time, and, as I have already mentioned, she signed the settlement document after taking legal advice. Later though, she complained that her total accumulated bank of sick days had been reduced by the number of days when she was indisposed but on layoff. It is not disputed that under the terms of the collective agreement then prevailing, a laid-off employee would not have been entitled to claim any sick pay at all.
Ms. Liebman does not suggest that there was anything improper in the way that the union represented her in 1986, nor does she resile, directly, from the settlement of her 1986 grievance. She does suggest now, that her illness in 1986, following her layoff, is causally connected to her job transfer in 1984, and that, therefore, despite the settlement of her layoff grievance, she should be entitled to claim compensation for that alleged "loss" in 1986, in any arbitration concerning the 1984 transfer. At the time that her layoff grievance was settled pursuant to the terms of exhibit 5, she did not share that theory with either her union or the employer. As far as they were concerned the layoff grievance was settled. Ms. Liebman's current complaint surfaced only later, as one of a number of reasons why she was not prepared to accept a settlement of her 1984 transfer grievance.
The arbitration hearing proceeded, as scheduled, on February 6, 1987. Ms. Liebman was not represented by Mr. Campbell. She was represented by James Fyshe, her counsel in the former and present proceedings before this Board, but not the lawyer whom the parties had agreed would represent her.
The union was annoyed about that - not least because of Ms. Liebman's earlier insistence that only Mr Campbell could represent her, the union's eventual agreement to retain him, and the negotiations concerning the payment of his fees. After Ms. Liebman's insistence that absolutely no one except Mr. Campbell could represent her, the union was a little surprised when Mr. Fyshe unexpectedly appeared on the scene. In addition, during the hearing, Mr. Fyshe apparently made certain allegations that the union was being unco-operative. The union considered those allegations to be totally unwarranted, and protested to Mr. Campbell.
Mr. Campbell explained that he had been called away unexpectedly to a jury trial and he apologized for not advising the union, in advance, that he would not be appearing. With respect to the other assertions he commented:
With respect to the documentation requested upon which Mr. Fyshe commented during the arbitration that seems to me a simple misunderstanding for which appropriate apologies were tendered.
On or about February 11, 1987, Ms. Ballantyne was advised that York was considering another settlement proposal. The terms of the proposal were not then known, however, it was canvassed at a meeting attended by Don Mitchell, Sheila Young and Susan Bisset (counsel) on behalf of the University, and Celia Harte and Ms. Ballantyne on behalf of the union. Mr. Campbell was not in attendance. Ms. Ballantyne explained that the settlement proposal was rather unexpected and she wanted to determine how serious it was, and to get some sense of the employer's "bottom line" before pursuing the matter further with Ms. Liebman or her counsel. Neither Ms. Ballantyne nor the union had any intention of agreeing to anything without first consulting with the complainant and her solicitor.
Ms. Bisset indicated that if the complainant was still unhappy with her present job, the University was prepared to offer her the first available vacant position, at the grade 4 secretarial level, anywhere in the Faculty of Arts, except the sociology department. The University was not prepared to return her to the sociology department because her old position no longer existed and, more importantly, it did not want a recurrence of its past problems. When pressed by Ms. Ballantyne, the employer modified its position somewhat, indicating that it would give the complainant a right of first refusal with respect to the first two vacancies in her job category anywhere in the Faculty of Arts, and further, that it would waive any reliance on the 30-day trial period specified in the collective agreement. This concession was made because the union expressed concern that any alleged performance problems arising during the first 30 days could effectively diminish the real value of the employer's current offer. For its part, the union agreed to waive the job posting provisions in the agreement because, if it did not do so, Ms. Liebman would have to compete with other equally or better qualified members of the bargaining unit for any available openings. By waiving the job posting requirements, Ms. Liebman was assured of an unfettered choice of the next two job openings which might arise. Finally, York undertook to purge Ms. Liebman's personnel file of any adverse comments or documents which the University might otherwise be entitled to rely upon in its future dealings with her. She would have a completely clean employment record.
There was some dispute about whether in June 1985, the University had ever offered to provide Ms. Liebman with a formal written apology, and whether if such possibility was discussed it would or should have been part of a final settlement with her. But, of course, there was no settlement in 1985, and by 1987, that debate had become academic. Ms. Bisset made it clear that the University was not prepared to offer an apology now.
By letter dated February 12, 1987, Ms. Ballantyne advised both the complainant and her solicitor of the proposed settlement terms:
Dear Ms. Liebman:
Re: Your Transfer Grievance
The University has indicated to YUSA that it is interested in settling your transfer grievance, and has made an offer which YUSA has decided to recommend to you.
I understand that you would like your former position of research secretary (Secretary 4) in the sociology department back. Unfortunately, the University tells me that following your transfer from the sociology department, there was a reorganization of the secretarial staff there, and your former position no longer exists. (It is indisputable that no one has had that position since you were transferred from it in November, 1984.) In these circumstances, the arbitrator hearing your transfer grievance is most unlikely to order that you be reinstated to your former position (assuming your grievance succeeds). In the absence of language in the collective agreement to the contrary, it is well within an employer's rights to reorganize its work force - even if this means the loss of one or more positions. Arbitrators are exceedingly loathe to interfere with that exercise of "management rights'. In our opinion, the most you can expect from an arbitrator is an order requiring the employer to place you in a position equivalent to the one you were transferred from.
The University has offered to do this. They are prepared to give you your choice between the two first available Grade 4 secretarial positions that come open within any academic department of the Faculty of Arts except sociology.
We are advised that in 1986 there were approximately 8 such vacancies in the Faculty of Arts. This will give you an idea of the frequency of vacancies.
If, within 30 working days, you find you do not like the new position, you have an unconditional right to transfer back to your present Grade 4 position in Secretarial Services. The University is waiving its right to use the same 30 day period as a trial period - in other words, if you decide that you like the new job, it's yours. If you accept such a transfer, YUSA would waive job posting requirements pertaining to the transfer.
The University has also agreed to remove from your file any disciplinary material relating to your transfer. This would include all documents containing adverse comments on your work performance.
I am not sure whether you recall a reference to an apology that was allegedly offered during the original attempts to settle your grievance. I inquired about this, to see if this part of the "offer" was still available. Ms. Bisset, counsel for the employer, advises me that no such offer was ever made. The reference to an apology in a letter to Mr. Campbell from Mr. Harrison (then counsel for YUSA) was apparently the result of a misunderstanding. The University is not prepared (and say they never have been) to offer an apology.
In our view, this offer is a very good one, and we strongly recommend that you accept it. The offer gives you substantially all that you could hope to achieve through arbitration, and does so now instead of several months from now. You must be aware that there is always a risk that you will not succeed, no matter how strong you believe your case to be. I understand that you are seeking punitive damages and damages for mental distress. I'm sure your counsel will have advised you of the unlikeliness of such an award. There is no arbitral authority for such damages, and in my opinion, it is most unlikely that the law will be changed in your arbitration case.
The University's offer is without prejudice to their position, and the settlement (if one is reached) would be without prejudice to your position, the University's or YUSA's. It is also not intended to set a precedent for any future proceeding, nor is it an admission of liability on any side. (Your counsel will tell you that these are normal stipulations in any settlement.)
Should a settlement be reached, the University and YUSA are both prepared to declare that they regret the length of time and inconvenience involved in bringing your grievance to a conclusion.
If you decide to accept this offer, you would, of course, have to agree to have your grievance withdrawn and settlement terms would be incorporated in a written Memorandum of Settlement between the parties. If you do decide to accept, could you please let me know as soon as possible.
If you decide to reject it, I must have written notice of this by 4:00 p.m. on Friday, February 20, 1987. If you reject the offer, the executive of YUSA would like to hear from you and/or your counsel your reasons for so doing.
The executive will then consider these reasons, and will decide what course to follow. The next meeting of the executive following February 20 is Tuesday, February 24, at 5:30 p.m. You and your counsel are welcome to attend, should this step be necessary.
Please call me (or have your counsel call me) if you have any questions.
In the complainant's view, this proposed settlement of her 1984 transfer grievance was totally unacceptable. It did not include an offer of a further three months off, with pay, which had been part of the University's settlement proposal in 1985 - although to keep matters in perspective, it must be remembered that Ms. Liebman had already been away from work, and paid, for approximately nine months between February and November 1986. The settlement proposal would not reimburse her for her legal fees. It did not address the depletion of her accumulated bank of sick days in 1986 (i.e., the matter purportedly settled by exhibit 5). If she got sick in the future, she would have fewer days to draw upon. And the proposed settlement did not contain an apology.
Ms. Liebman testified that, in her view, the only redress that she wanted was a transfer back to her old job in the sociology department. The only acceptable alternative way of "clearing her name" that she could conceive of, was a full arbitration of the merits of her transfer grievance. This question was put to her in several ways and the answer was always the same. Having regard to the evidence before me, it is difficult to resist the conclusion that nothing short of protracted litigation or a transfer to her old job would satisfy Ms. Liebman.
Ms. Liebman's solicitor was also unhappy about the settlement proposal, but from a somewhat different perspective. Mr. Campbell conceded, in evidence, that if the matter were arbitrated, Ms. Liebman was unlikely to recover her legal costs. He was not aware of any arbitration decision awarding such costs, and in her successful proceeding before the Board this same request had been rejected. Nor was Mr. Campbell aware of any arbitration award in which a grievor had received damages for "mental distress" either in circumstances similar to those of Ms. Liebman, or at all. Some recent court decisions suggest that in a wrongful dismissal action, (which this is not), compensation under this head may be recoverable, however, even in that context, recovery is problematic and the context here is quite different. Mr. Campbell was also unaware of any arbitration award in which an employer had been directed to tender an apology, but, he said, that really did not matter. The real objective was to secure Ms. Liebman' s reinstatement to the sociology department and, from that perspective, an apology was secondary. Indeed, in a letter to Ms. Ballantyne dated February 23, 1987, he suggested that "an apology at this stage will make little difference".
There is no indication that the University has ever been prepared to put Ms. Liebman back in the sociology department, nor was that part of the 1985 settlement proposal which Ms. Liebman says she accepted "in principle."
Mr. Campbell hoped to use the prospect of protracted litigation with its attendant expense and potential for adverse publicity, to wring further concessions from the University - and, in particular, either Ms. Liebman's reinstatement to the sociology department or an apology that would totally vindicate her. However, he did not share that "game plan" with the union. Nor did he indicate his intention to argue that the grievor's illness in 1986 was connected to her lateral transfer two years earlier, so that the arbitrator of that grievance, (despite the settlement mentioned above) could restore her lost sick leave credits. Indeed, Mr. Campbell testified that he did not share with the union any of the results of his investigation or preparation for the arbitration case or the position(s) he proposed to take. He had carriage of the proceeding, the union's relationship with his client was obviously a difficult one, and he felt himself to be under no particular obligation to reveal to the union his intended course of action. Although formally retained and paid by the union, pursuant to the Board's order, he was acting for Ms. Liebman. That is why the union considered it appropriate to have its own representative at the arbitration hearing. It had no guarantee that Mr. Campbell's (entirely proper) zeal to advance his client's interest, would not result in positions or suggested interpretations of the collective agreement which might be inconsistent with the intentions of the bargaining parties or adversely affect other employee members of the bargaining unit in other situations.
The University's latest settlement offer sparked a spirited exchange of views between Ms. Ballantyne and Mr. Campbell. Both solicitors debated, with some vigour and vituperation, the merits of the settlement proposal. They disagreed, fundamentally. Ms. Ballantyne thought that the proposal was probably the best that could be obtained in the circumstances, while Mr. Campbell maintained that it was not as good as the earlier settlement offer and, therefore, should be rejected.
The union's ultimate decision was influenced, in large measure, by Ms. Ballantyne's legal advice, her judgement about the merits of Ms. Liebman's grievance and the prospects of an arbitrator making a favourable award. These matters were canvassed, once again, at a YUSA executive board meeting held on February 24, 1987. Although specifically invited to attend, neither Ms. Liebman nor her counsel chose to do so. Mr. Campbell testified that he had already made all of the representations he considered necessary either in his letters to Ms. Ballantyne or his conversations with her. Ms. Liebman testified that she had nothing to add. The tenor of the debate is accurately reflected in the minutes of the executive board meeting which read as follows:
LIEBMAN TRANSFER GRIEVANCE
Harte informed the Executive Board that the University had offered a settlement of the Liebman transfer grievance at a meeting of the Union and the University and their respective legal counsels on February 11, 1987. The Executive Board was asked to read the recent correspondence between Ballantyne and C. Campbell, legal counsel for Jean Liebman, regarding the offer. (Copies of the correspondence were provided for Executive Board members and copies are attached to the minutes.) Harte explained that the Executive Board's task was to decide whether to accept or reject the offer. Ballantyne was invited to attend the meeting to answer questions on the case and clarify the rights and responsibilities of the Executive in making such a decision.
After the Executive Board had finished reading the correspondence, Ballantyne briefly reviewed the set of events which resulted in Liebman filing a Section 68 complaint with the Ontario Labour Relations Board. In reviewing the decision on the Section 68 complaint, Ballantyne noted that the Board had found that YUSA had violated the Labour Relations Act. By both withdrawing the grievance and not accepting the settlement offer, the Union had left the grievor with no recourse. As a remedy, the Board ordered that the grievance be revived and ordered the parties to proceed to arbitration. The Board also ordered YUSA and Liebman to jointly select legal counsel to represent the Union at the arbitration. The Board stated that if the Union and the University wanted to settle the arbitration, it could not do so without first giving Liebman the opportunity to discuss it with the Executive Board.
It was noted that Liebman and her counsel had been invited to discuss the matter with the Executive at this meeting, but there was no response to that invitation.
Ballantyne next addressed the question at hand - should the offer by the University be accepted? The letters which Ballantyne has received to date from Liebman's legal counsel imply that Liebman is rejecting the offer, although Campbell does not state this directly in the letters. Ballantyne advised the Executive Board that it does have the right to settle the grievance without Liebman's consent. She pointed out that YUSA is the bargaining agent for Liebman and that grievance-arbitration procedures are between the legal parties, i.e. the Union and the University.
In making the decision, Ballantyne cautioned the Executive Board to consider what the grievor could be awarded from a favourable arbitration decision, not what she would like to be awarded. She pointed out that Liebman lost no compensation by being transferred to Secretarial Services. The best possible arbitration award would put her in a position equivalent to the one she held before the transfer. Ballantyne noted that the position from which Liebman was transferred no longer exists in Sociology (Arts). In the absence of evidence that the position was eliminated as a means to get rid of Liebman, Ballantyne stated that an arbitrator would not order the reinstatement of the position. In a favourable decision, an arbitrator would likely order that she be placed in the next vacancy equivalent to the job from which she was transferred. Ballantyne pointed out that through negotiating with the University, the Union has improved upon this. The University has agreed that Liebman will be given the choice of the first two grade 4 secretarial positions that come open within any academic department in the Faculty of Arts except Sociology. Ballantyne noted that excepting the Department of Sociology from the offer is not unreasonable. She also advised the Board that a settlement does not have to include everything that might be won in a favourable arbitration award. Ballantyne also pointed out that the University has agreed to remove from Liebman's Personal File any disciplinary material relating to the transfer, including any documents containing negative comments about work performance.
Ballantyne compared the time it will take to receive an arbitration award with the time it will take to implement the present offer. With respect to the latter, Liebman will be offered the next vacancy. If the arbitration proceeds, however, there will be at least seven or eight days of hearings and the time it will take the arbitrator to consider the case and write his decision. Ballantyne stated that, at best, YUSA could expect to win what the University is offering now, three to four months later. She also pointed out that the Union may not be successful in the arbitration.
Ballantyne next addressed the items which Campbell suggests Liebman would like to see in an offer:
DAMAGES: Liebman would like to be awarded damages for mental distress. Ballantyne stated that no arbitrator has ever given damages for mental distress and the arbitrator is not likely to do so in this case.
AN APOLOGY: Ballantyne stated that Campbell implies in his letters that Liebman would like an apology from the University. Campbell claims that the University offered an apology in the 1984 offer. Ballantyne and Harte noted that they do not know with certainty whether an apology was part of the previous offer; however, the University does not have to offer it now. Ballantyne pointed out that there is no basis in the case law for obtaining an apology. Arbitrators consider this to be outside their jurisdiction. In her opinion, it would be appropriate for arbitrators to order apologies
in many cases and arbitrators may do so in the future, but it is highly unlikely that this will occur in this case.
SICK LEAVE: Campbell objects to the current offer because it includes no reference to sick leave. Ballantyne pointed out that Liebman was fully paid for her sick leave under the terms of the layoff settlement. Liebman was fully aware of the terms of that settlement. Fyshe and Campbell were her legal advisors at that time.
PAID VACATION: Campbell contends that the University offered a lengthy paid vacation to Liebman in its earlier offer. Ballantyne stated that it is a misnomer to call it a paid vacation. She advised the Executive Board that an arbitrator could not order a paid vacation for Liebman because she has not been off work and did not lose compensation. There is no wrong to rectify.
LEGAL FEES: Ballantyne noted that the University previously offered to pay $1,500 towards Liebman's legal expenses. The University is not prepared to make such an offer now. Ballantyne reminded Executive Board members that the legal fees for this arbitration will be paid for by YUSA, providing Campbell acts as legal counsel. She advised Executive Board members that an arbitrator would not order that legal fees be paid that were incurred for a different proceeding.
In summing up, Ballantyne advised the Executive Board to judge the University's offer by comparing it with what Liebman could reasonably hope to get in an arbitration award.
At this point, Harte invited questions from the Executive Board. Kirby asked whether Liebman could appeal the Executive's decision, if the Executive decided to accept the offer. Ballantyne replied that Liebman could not appeal the decision, although she could file a Section 68 complaint with the Labour Relations Board; however, it is unlikely that she would be successful. One Executive Board member asked whether Ballantyne's letter constituted a sufficient explanation and advisement of the offer. Ballantyne replied that they did and reiterated that Liebman had been told twice in the letters of the date and time of the Executive's meeting. The Section 68 decision orders YUSA to afford Liebman the opportunity to discuss the proposed terms of the settlement. YUSA has clearly done this.
Ballantyne noted that the arbitration will cost YUSA approximately $1,500 per day (even without its legal counsel present). An Executive Board member asked whether costs were a legitimate consideration. Ballantyne pointed out that the Executive Board has a responsibility to the YUSA membership to spend financial resources wisely, and therefore, the cost of the arbitration is a legitimate consideration.
As there were no further questions, Harte asked the Executive Board if there were any objections if Ballantyne stayed to hear the Board's decision. There were no objections.
In discussion, Streb noted that the University's offer to remove derogatory comments from Liebman's record goes a long way towards an apology. It was also noted by the Executive, that should a settlement be reached, the Union and the University are both prepared to declare that they regret the length of time and inconvenience involved in bringing the grievance to a close.
The discussion touched upon and accurately explored the weaknesses of the complainant's case.
As is evident, Ms. Ballantyne was rather pessimistic about the prospects of securing, from an arbitrator, the results which Ms. Liebman demanded. In fact, even Mr. Campbell was pessimistic about that - hoping, instead, to use the threat of a costly, protracted and potentially embarrassing arbitration hearing to obtain those concessions from the University through a process of negotiations. On the other hand, the University's new settlement proposal did offer the complainant some benefits or advantages to which she would not otherwise be entitled and which an arbitrator was unlikely to award.
The executive board considered the options. Eventually, it was determined that the case should be settled along the lines suggested by the University. The union decided that this settlement was a reasonable one. Formal minutes of settlement were executed on March 5, 1987.
In making its decision, the executive board was well aware that the settlement was unlikely to be acceptable to Ms. Liebman. Only a week before (and despite express language to the contrary at paragraph 17 of the Gray decision), Ms. Liebman's counsel had asserted the unilateral right to control the arbitration proceedings and to accept or reject any settlement offer. The executive board anticipated (correctly as it turned out) a new section 68 complaint, and, in an effort to avoid that possibility passed the following motion:
In view of the fact that Owen Gray of the Ontario Labour Relations Board remains seized of the section 68 complaint, it is moved that we should offer to join Mrs. Liebman in putting the matter back before the Board.
The union was not seeking to shirk its responsibilities. It was content to have its decision scrutinized by the Board Vice-Chair who had found against it in the first instance. Ms. Liebman was not content with that proposal. She filed a new complaint.
III
The question before me is really a relatively narrow one: has the union acted in a manner that is: arbitrary, discriminatory, or in bad faith? In answering that question, it may be useful to refer (as did Vice-Chair Owen Gray) to the decision of the Board in Catherine Syme, [1983] OLRB Rep. May 775. There, too, the Board was faced with a complaint that an employee's grievance had been improperly settled. The Board made these observations:
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 that this 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.
Most collective agreements contain a grievance procedure to which resort must be made before a matter can proceed to arbitration. The grievance procedure involves several stages of pre-arbitration discussion in which (as in the present case) the parties seek to amicably resolve their differences. As in the ordinary civil litigation process, it may be in the interests of both parties to seek an "out of court" settlement which is more modest than either of them might have obtained had they been entirely successful before an adjudicator. A settlement is a compromise solution which avoids the costs and uncertainties of litigation, and where it appears that the claim is without legal foundation or cannot be proved it makes little sense to proceed further.
These considerations are equally applicable to the settlement of disputes arising out of collective agreements. But there is an important difference. Unlike most parties in civil matters, the trade union and employer are bound together in a relationship which will subsist so long as the employees continue to support the union and the employer remains in existence. That relationship, despite its adversarial aspects and legal veneer, is neither wholly adversarial nor strictly legal. It is essentially an economic partnership in which both parties must be concerned about the ongoing relationship and the equitable resolution of disputes which occasionally arise. Like a successful marriage, a productive bargaining relationship depends upon the development of a spirit of cooperation and compromise. Regardless of the arguable importance of any particular grievance, it will inevitably be only one of many which the parties will be required to resolve during the currency of their relationship; and, if either party obstinately adheres to an unreasonable position, or continually presses trivial claims, the entire settlement process could be undermined, and their long-term relationship prejudiced. It can hardly further mutual trust and respect if union and management officials are required to spend needless hours discussing inconsequential or unfounded grievances. As a practical matter, a rigid insistence on one's "strict legal rights" or an insistence on proceeding to arbitration with doubtful claims is likely to provoke a response in mind, and yield only short terms gains. As a matter of good judgement, and in the interests of sound industrial relations, a trade union should make reasonable efforts to settle grievances early in the process. I do not think there is any justification for processing obviously groundless claims simply because an individual employee demands his "day in court". Such position not only represents a waste of the employees' money in counsel and other fees associated with the arbitration process, but could also prejudice the ongoing and informal resolution of disputes, short of arbitration, where there might well be some contractual basis for the union's claim.
In the instant case, there is no serious allegation and, in my view, no reliable evidence to suggest that the union acted in a manner that is either "discriminatory" or "in bad faith". On the contrary, the evidence indicates that in this, as in the previous problems which the complainant has had with her employer, the union did what it reasonably could to support her position. Nor, in all the circumstances, do I think that the union's decision can be characterized as "arbitrary". The union officials were not unsympathetic to the complainant's position, but ultimately decided that it was without substantial merit and did not justify proceeding to arbitration. In reaching that decision and, indeed, in all of its dealings with the complainant following the Gray decision, the union was acting on the advice of its counsel, Ms. Ballantyne. And apart from its error in failing to actually verify Ms. Liebman's acceptance or rejection of the June 1985 settlement offer, the Gray panel found no fault in the union's previous dealings with her.
In 1987, the union settled Ms. Liebman's grievance because, it was advised by its counsel that an arbitrator was not likely to grant the relief she requested. That legal advice is most probably right, is an eminently reasonable reading of the facts and the current state of the arbitral jurisprudence, and I do not think that it can be said that the union acted in an "arbitrary way" when it was relying upon its solicitor's advice.
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. Hiring a lawyer may not erase or successfully redress a previous breach of the duty of fair representation, and there may well be extraordinary cases in which the sins of a solicitor will be visited upon his/her union client under section 68 of the Act, leaving the union with whatever remedies may be available to it in the civil courts. But this is not one of them. Ms. Ballantyne's advice was no less reasonable or professional than that of Mr. Campbell, and while the two lawyers differed about questions of law and tactics, I do not think that when YUSA followed its own lawyer's quite sensible advice, it was acting "arbitrarily" and in breach of the Labour Relations Act.
Counsel for the complainant asks, parenthetically: How can the Board condone a settlement which is inferior to the one offered in 1985, when the Board has already found that the acceptance of the earlier offer was improper? The answer to that question is to be found in a careful reading of the earlier Board decision and an appreciation of what it did, and did not decide.
The Board did not definitively determine whether the 1985 settlement offer was objectively reasonable, but a fair reading of the Board's decision, in its totality, suggests that it was; and that is certainly the view that I take of it. The Board did not decide whether, on that basis, the offer should or should not have been accepted or whether the union's decision in this regard would be "arbitrary". The Board did not question the union's right to settle grievances, including Ms. Liebman's on a reasonable basis, whether or not she was satisfied with the result. The Board decided only that, if the union itself made her opinion an important element in the decision-making process, the union should find out what her opinion was. The decision focussed quite narrowly on the procedure that the union adopted rather than the substantive merits of its position, and does not really explore the significant probability that if Ms. Liebman had been pressed for a definitive answer, as she should have been, it would have been "no” or its practical equivalent. Finally the Gray decision did not direct the arbitration of Ms. Liebman's grievance, nor prohibit the union from entering into a reasonable settlement. On the contrary; paragraph 17 of the decision contemplates precisely that possibility. What we have here, then, is a situation in which Ms. Liebman has been presented with, but for various reasons has not taken up, two objectively reasonable proposed settlements of her 1984 transfer grievance; and to the extent that she now complains that the 1987 proposal is inferior to the 1985 offer, it must be remembered that, at the time, she did not immediately and unequivocally embrace the 1985 offer either. Had she done so, the grievance would have been settled on that basis and two proceedings before the Labour Relations Board would have been avoided.
What about Ms. Liebman's claim that the union should have paid more towards her legal expenses? In my view, that issue is answered quite definitively in the agreement that she signed, wherein the union undertook to retain Mr. Campbell and pay him the sum of $2,500.00 for the first day of hearing, which sum included a component for preparation time. I do not doubt (and it is not disputed) that he may have spent more time preparing for a case which, potentially at least, could consume many hearing days. But the fact remains that the fees agreement is very clear: Mr. Campbell is to be retained and the union will underwrite his fees to the total of $2,500.00 for the first day of hearing and $1,000.00 for each succeeding hearing day. There is no undertaking to pay Mr. Fyshe or anyone else, and no obvious obligation to pay more than $2,500.00 in a case which, in the result, only lasted one day. No one doubts the propriety or fairness of Mr. Campbell's bill; but, with respect to Ms. Liebman, the union was not acting in a manner that was arbitrary, discriminatory, or in bad faith, when it declined to pay more than the amount previously agreed to.
For the foregoing reasons, this complaint is dismissed.