[1989] OLRB Rep. December 1246
0503-89-U Maria Mlakar, Complainant v. CUPE Local 79, Respondent v. The Municipality of Metropolitan Toronto, Intervener
BEFORE: M. A. Nairn, Vice-Chair.
APPEARANCES: David Zimmer for the complainant; Douglas J. Wray and Linda Jewitt for the respondent; Robert Avinoam and Mike Moffat for the intervener.
DECISION OF THE BOARD; November 27, 1989
This is a section 89 complaint alleging that the respondent union violated section 68 of the Labour Relations Act. After hearing the evidence and submissions of the parties I advised them that I was dismissing the complaint with reasons to follow. I now provide those reasons.
Section 68 of the Act provides 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.
The intervener employer ("Metro") conducted a job promotion competition. The complainant was the successful candidate in that competition. A Ms. Fekete was the unsuccessful candidate. Both employees are members of the bargaining unit represented by the respondent. Ms. Fekete filed a grievance alleging that Metro had violated the collective agreement in awarding the job to the complainant. The respondent union chose to proceed to arbitration with Ms. Fekete's grievance. The first day of the arbitration hearing was held on March 20, 1989. This complaint was filed on May 23, 1989. Further days have been scheduled for the continuation of the arbitration hearing.
In her complaint the complainant alleges that the union violated section 68 of the Act by failing to represent her at the arbitration hearing of Ms. Fekete's grievance. As a remedy, the complainant requests that the union be required to provide her with counsel at the continuation of the arbitration. Ms. Mlakar also alleges that she was informed by the union that they usually lose promotion cases at arbitration and therefore she had no reason to worry about its outcome having any effect on her.
At the outset of the hearing counsel for the complainant sought leave of the Board to amend the complaint to request that the union be required to withdraw Ms. Fekete's grievance. Inherent in that request was the unparticularized allegation that the union's decision to refer Ms. Fekete's grievance to arbitration was improper. It was common ground among the parties that if the amendment were allowed, an adjournment would be required. I denied the request to amend the complaint in that it raised a completely new matter. It would be inappropriate to occasion the delay and consequent prejudice to the other parties in having this complaint dealt with.
The facts leading up to this complaint are, with certain exceptions, fairly straightforward. The complainant has been employed by Metro since 1979. During that time she has progressed from a clerk grade five position to a point at the time of this complaint where she was working as a clerk grade one. In August 1987, a job call was posted for a clerk grade one position and the complainant (at that time a clerk grade two) applied. However she was not the successful applicant based on the fact that she did not yet have the required two years of experience as a clerk grade two. The complainant filed a grievance in September, 1987 challenging that decision of Metro. In the course of pursuing that grievance she dealt with Ms. Linda Jewitt, a national representative of the union assigned the responsibility of servicing the bargaining unit of which the complainant is a member. In February, 1988 the union decided that it would not pursue that grievance to arbitration. The complainant was so advised and was advised of her right to appeal that union decision. No appeal was made and that grievance proceeded no further.
Subsequently, in February 1988 another job call for a clerk grade one was posted and the complainant again applied. Her application was again initially unsuccessful based on her lack of the required length of experience. However, the complainant approached her union steward, Mr. F. Spratt and he contacted Metro. The ensuing result was that the complainant was able to satisfy Metro that she had sufficient hours of equivalent experience to warrant her continued consideration in the job competition. The next step of that process was an oral examination. The complainant and one other individual, a Ms. Fekete were the only remaining candidates for the position at this stage. Following the oral exam Ms. Fekete was disqualified as a candidate as she did not score a high enough mark in order to continue and the job was awarded to the complainant.
Unknown to the complainant at that time, Ms. Fekete wished to pursue a grievance with respect to Metro's decision. Under the terms of the collective agreement, promotion grievances commence at Step 2 of the grievance procedure. It is the usual practice of the union for the national representative responsible for the local to be involved at that stage. Ms. Jewitt participated in the grievance procedure on behalf of Ms. Fekete. The decision whether or not to refer the grievance to arbitration is taken not by the national representative, however, but by the union's grievance committee. It is comprised of the union's Second Vice-President and six unit officers all of which are elected positions. This committee meets regularly. The national representative concerned will prepare the information they have obtained concerning the grievance for the committee~s review. This will include the grievance itself, any response to it from the employer and its reasons for denying the grievance, information gleaned from the grievor and others involved, and the reasons why the grievor wishes to continue to arbitration. The representative will also as a rule provide an opinion as to the likelihood of success or failure at arbitration and something of the personal impact of the grievance on the grievor.
In this particular case, the information that Ms. Jewitt provided to the grievance committee included the facts (acknowledged by the complainant) that Ms. Fekete had nine years more seniority than the complainant, that she had worked as a clerk grade two since approximately 1974 and that she had been performing the duties of a clerk grade one on a temporary basis to the satisfaction of the employer. In addition, the union had been approached by another employee who was prepared to provide evidence, based on a conversation she had had with a member of the board conducting the job competition, that the examination process had been conducted improperly.
As a result of the grievance committee's decision to refer the grievance to arbitration, Ms. Jew