Anna Wilson v. Ontario Public Service Employees Union Local 110, 1990 CanLII 5752

[1990] OLRB Rep. November 1167

0368-89-U; 0369-89-U; 0857-89-U Anna Wilson, Complainant v. Ontario Public Service Employees Union Local 110, Respondent v. Fanshawe College and the Ontario Council of Regents for Colleges of Applied Arts and Technology, Inter­veners; Anna Wilson, Complainant v. Ontario Public Service Employees Union Local 110, Respondent v. Fanshawe College and the Ontario Council of Regents for Colleges of Applied Arts and Technology, Interveners; Anna Wilson, Com­plainant v. Ontario Public Service Employees Union, Local 110 and Ontario Pub­lic Service Employees Union, Respondents v. Fanshawe College and the Ontario Council of Regents for Colleges of Applied Arts and Technology, Interveners

BEFORE: Judith McCormack, Vice-Chair, and Board Members R. M. Sloan and B. L. Arm­strong.

APPEARANCES: Julius Melnitzer, Joseph Hoffer and Anna Wilson for the complainant; Stephen T. Goudge, R. Ross Wells, Paddy Musson, Gary Fordyce and Tom Geldard for the respondents; Brenda Bowlby and Guy Giorno for the interveners.

DECISION OF THE BOARD; November 9, 1990

1. These cases are three complaints which were scheduled to be heard together, all alleg­ing that the union respondents have violated section 76 of the Colleges Collective Bargaining Act. Although there is only one complainant, Anna Wilson, she is joined by a number of grievors listed in the complaints, whom we will also refer to as "the complainants" for the purpose of this deci­sion. In Board File 0368-89-U those complainants are Sheilagh Hunt, Betty Sweatman, Mary Ann Tobin, Michael Grunwell and Sharon Warmuth. All of these persons are also named on Board Files 0369-89-U and 0857-89-U, together with Jeremy Gurofsky and Robert Wilson. The complain­ants are all professors employed by Fanshawe College, a community college in the London area. The respondents are the Ontario Public Service Employees Union ("OPSEU") and Local 110 of OPSEU ("the Local"). Fanshawe College ("the College") and the Ontario Council of Regents for Colleges of Applied Arts and Technology ("the Council of Regents") have intervened in these proceedings. The latter represents twenty-two community colleges in collective bargaining with OPSEU.

2. The hearings in this matter took place on September 25th, 1989, October 31st, Novem­ber 14th, January 8th, 1990, January 16th, January 17th, January 22nd, January 23rd, January 29th, January 30th, January 31st, February 13th, March 5th, March 6th, March 7th, March 12th, March 13th, March 14th, April 30th, May 2nd, June 13th, and June 14th. Over the course of these days of hearing, we heard the evidence of twelve witnesses and received over 250 exhibits. In mak­ing our findings of fact we have carefully considered all of the oral and documentary evidence, the parties' submissions and the usual indicia of credibility, including the demeanour of witnesses, the firmness of their memories, the internal consistency and probability of their accounts, and their ability to resist the influence of self-interest on their testimony. Many of the basic facts in this mat­ter were not in dispute, although there were considerable differences in how the parties interpreted and coloured those facts. We find it neither necessary nor desirable to recite every detail of the evi­dence before us, and as a result, the following represents our findings on the more salient facts.

I The Facts

3. The essence of these complaints is that the respondents violated section 76 through a series of events which include the settlement of compensation relating to a number of workload complaints, agreement on a consent arbitration award, and the amendment of a collective agree­ment between the Ontario Council of Regents for Colleges of Applied Arts and Technology and OPSEU. The recent history of these matters begins in 1984 when Paddy Musson, the current Presi­dent of Local 110, defeated Jeremy Gurofsky, one of the complainants, in an election for that posi­tion. Mr. Gurofsky, complainants Michael Grunwell and Robert and Anna Wilson, and to a lesser extent complainants Hunt and Warmuth, have been active in Local politics for a number of years and have between them held many different Local offices.

4. It was evident that some of the complainants had difficulty accepting Mr. Gurofsky's defeat. The day of the election, Gary Fordyce, the incoming Chief Steward, met with Mr. Gain-well, the outgoing President who had custody of the Local's grievance files, to ascertain the current state of affairs with respect to grievances. Mr. Grunwell angrily accused Mr. Fordyce of running for a position he was not competent to hold, and told him both that he was inexperienced and that he had no right to be the chief steward. He also said to Mr. Fordyce that if the latter stepped out of line just once, Mr. Grunwell would lay charges against him. Mr. Fordyce asked Mr. Grunwell for the Local's grievance files and Mr. Grunwell eventually brought in some of them. However, Mr. Fordyce later found out that there were other files Mr. Grunwell had kept, on the grounds that he was representing the individuals involved in his capacity as a Local Steward. (There are approxi­mately 30 Stewards in the Local who are supervised by the Chief Steward). Over the telephone, Mr. Grunwell listed a number of people to Mr. Fordyce that he would be continuing to represent if a grievance was filed by them. Mr. Fordyce was not sure from this conversation whether these peo­ple actually had current outstanding grievances or not. He asked Mr. Grunwell for any files con­nected with these people as well and requested that Mr. Grunwell keep him informed with respect to their grievances, which Mr. Grunwell did not do.

5. There were other indications that at least Mr. Grunwell and Mr. Gurofsky were finding it hard to relinquish powers they had previously exercised in various Local capacities. Normally, the President or Chief Steward signs or authorizes settlements of grievances. Several months after the election, nine grievances were settled prior to arbitration by minutes of settlement signed by the grievor involved, the College, and Mr. Gurofsky, apparently on behalf of Local 110. Similarly, Mr. Gurofsky also requested information from the College with respect to grievances dropped or abandoned by the Local. Because of the nature of the information requested, it was apparent that the request related to union grievances only, not individual grievances, again an area usually han­dled by the Chief Steward or President. And in July of 1984 Mr. Grunwell wrote to OPSEU's grievance department asking that a particular union grievance which had been dismissed by an arbitrator be sent for a legal opinion with respect to judicial review. At that point, his only role was as a Local Steward, and he did not have carriage of or responsibility for union grievances.

6. It rapidly became apparent that at least Mr. Grunwell, Mr. Gurofsky, Mr. Wilson and Mrs. Wilson were also of the view that a grievor was entitled to choose his or her representative for the grievance procedure, whether or not that representative was currently a steward, and whether or not he or she was the designated steward for the grievor's work area. In addition, in their opin­ion, the newly-elected Local executive had no business being involved in any way in those griev­ances. This philosophy surfaced in a number of different ways and created various problems for the Local.

7. Large numbers of grievances were filed either by Mr. Gurofsky or Mr. Grunwell, or by persons whom they represented about which the Local executive was told nothing. If the griev­ances did not settle in the grievance procedure, they sent the files directly to the OPSEU grievance department for referral to arbitration. The Local found out about these grievances only when they received a copy of a letter from the OPSEU grievance department to the College referring a griev­ance to arbitration. These letters simply contained the name of the grievor, and a brief notation of the subject of the grievance. The grievance form which was attached to the letter sometimes pro­vided more information and sometimes did not.

8. The Local also received a quarterly listing from the Colleges of Applied Arts and Tech­nology ("CAAT") Grievance Scheduling Committee, a committee elected from the academic and support employees from twenty-two community colleges who bargain together. The function of this committee is to decide on the actual scheduling of arbitrations for grievances in conjunction with a management committee. At any one time, there are over 300 grievances from the academic division awaiting arbitration. Quarterly lists of grievances are sent to locals, which are then con­tacted by the committee for information with respect to what priority various grievances should have. Since Local 110 did not have information about many of the grievances filed by the com­plainants or by employees represented by them, its officers could not provide this information to the Scheduling Committee.

9. Similar problems occurred in the steps of the grievance procedure. Mr. Grunwell, Mr. Gurofsky, and Mr. and Mrs. Wilson were of the view that no one from the Local executive, includ­ing the Chief Steward, was entitled to attend grievance meetings for their grievances or the griev­ances of employees they were representing. Mr. Fordyce testified that there were at least twelve grievance meetings which he had tried to attend where Mr. Grunwell objected to his presence. More than one of these grievance meetings was aborted when the College allowed Mr. Fordyce to remain and Mr. Grunwell and the grievor walked out. Mr. Fordyce was content to have Mr. Grun­well speak on behalf of grievors at these meetings; however, he was of the view that he was enti­tled to attend as well. The collective agreement refers to "the Union steward" being present at these meetings. The Local interpreted this to mean either the grievor's work area steward, or the Chief Steward. The Local was, however, prepared to allow the grievor to have any other represen­tative attend and speak on his or her behalf, albeit in an unofficial capacity.

10. Mr. Grunwell's view was that if he was not recognized by the College as the grievor's only representative, he would not be on equal footing with the College in these meetings. Mr. Grunwell, Mr. Gurofsky and Mrs. Wilson maintained that the Local was attempting to insert itself as a "third party" into the grievance procedure, which in their opinion was primarily a proceeding between a grievor and the College. The complainants interpreted "the Union steward" as referring to the grievor's chosen representative, whether or not he or she was the grievor's work area stew­ard, and whether or not he or she was a steward at all.

11. These difficulties continued even after grievances were referred to arbitration. In May of 1984 Sean O'Flynn, then President of OPSEU, wrote to all local presidents, indicating that last minute adjournments and cancellations of arbitrations had cost the union thousands of dollars in unnecessary cancellation fees. As a result, he was sending them the draft schedule for grievance arbitrations for the next quarter. Locals were to have two weeks to confirm the acceptability of the scheduled dates for hearing. A lack of response would be treated as confirmation. Once the dates had been confirmed, an adjournment that was sought by a local would be at the expense of the local.

12. Following receipt of this letter, Mr. Fordyce developed a form for obtaining confirma­tion that grievors, their witnesses and any stewards needed would all be available on the tentative arbitration date set out in the draft schedule. Mr. Gurofsky and some of the other complainants declined to provide the information requested, apparently reflecting their view that the Local had no right to know anything about these grievances.

13. A similar problem arose with respect to a grievance arbitration which had been sched­uled for hearing shortly after the election. Ms. Musson was informed by Michael Pratt, then the co-ordinator of OPSEU's grievance department, that a preparation meeting would take place with OPSEU's lawyer the evening before the arbitration. Mr. Pratt testified that generally OPSEU encourages local executive members to become involved in grievance arbitrations. Ms. Musson attended at the meeting, only to be told by Mr. Grunwell, who was acting as the grievor's steward, that she was not entitled to be present. Mr. Pratt was called to the hotel where the meeting was to be held to resolve this dispute, but was unable to do so. Mr. Grunwell adamantly maintained that he was the grievor's representative, that he was her only representative, and that if Ms. Musson insisted on attending the meeting, he would have the grievor rent her own hotel room where the meeting would take place so that Ms. Musson would be excluded. Eventually, because the time allotted for the preparation of the grievor's case was being consumed by the dispute, Ms. Musson decided not to pursue the matter that evening and departed.

14. As time went on, these problems continued. The College proposed to the Local that common grievances be "bundled", or organized and grouped for arbitration on the basis that they dealt with the same issues or the same set of events. The Local, who was not opposed in theory to this proposition, was not able to act upon it because of the lack of information available with respect to grievances filed by some of the complainants or on which some of the complainants acted as representatives. This was especially problematic because in certain cases, Mr. Grunwell and Mr. Gurofsky had filed multiple grievances with respect to the same event. In one case, Mr. Gurofsky filed twenty-four grievances with respect to the same memo to him from the College. As a result, the Local's inability to "bundle" grievances was a real hindrance.

15. In addition, it also appears that some of the files referred directly to the OPSEU griev­ance department rather than through the Local were incomplete. In 1985, Lillian Stevens, then co­ordinator of the department, requested that the Local's staff representative meet with Mr. Gurofsky to obtain the missing documentation, and recommended that grievances be processed through the Local and Regional Office so that all necessary background documentation could be obtained prior to the referral to arbitration. This some of the complainants did not do.

16. All of these difficulties were compounded by the numbers of grievances involved. One quarterly report from the CAAT Grievance Scheduling Committee dated August 6, 1986, shows employees at Fanshawe College as having filed 57 per cent of all grievances waiting to be sched­uled for arbitration from both the support and academic divisions of twenty-two community col­leges. Three individuals, Mr. Gurofsky, Jean Lovelock, another Fanshawe College professor who apparently shared some of the complainants' views, and Mr. Grunwell were responsible for 47 per cent of all grievances, and Mr. Gurofsky himself was responsible for 32 per cent of all grievances. These divisions cover approximately 15,000 employees.

17. This state of affairs became more and more difficult in the two years following the elec­tion of Ms. Musson. Finally, at a general membership meeting on September 11th, 1986 Mr. For­dyce proposed the following motion:

That in order for the president of Local 110 to instruct the CAAT academic grievance schedul­ing committee to schedule a grievance, a gnievor must notify, in writing, the chief steward at step I of the grievance procedure and provide documentation. As well, for grievances referred to arbitration but not yet scheduled, the grievor must provide the documentation to the chief steward. This procedure will allow the union local to meet its obligation under article 11. [Article II is the grievance procedure article of the collective agreement].

18. At the meeting Mr. Fordyce explained to members the problems that the Local had been experiencing. A discussion followed in which Mr. Grunwell, Mr. Gurofsky and Mrs. Wilson spoke against the motion, stating they would not supply the documentation described in the motion, and arguing that the motion was a violation of their rights. In the end the motion was carried, and was sent to members with an explanatory letter signed by Ms. Musson, once again citing the numerous problems the Local had encountered and indicating that grievances would not be prioritized for arbitration where the information to do so had not been provided to the Local. This was followed by a letter from Mr. Grunwell to members to the effect that he and two other mem­bers had been "denounced" and that the denunciation was based on a collection of distortions and half truths. He described Ms. Musson's assertion that the Local needed to know about grievances to be able to prioritize them as a "complete fraud", and suggested that Ms. Musson was using favouritism in prioritizing grievances. Mr. Grunwell then went on to refer to the Local executive as members of the "ailing junta" and accused them of using the authority invested in their offices and union funds to punish certain members and reward others. This is not untypical of the writing style adopted by Mr. Grunwell, Mr. Gurofsky, and to a lesser extent Mrs. Wilson, from time to time during these events.

19. Mrs. Wilson also wrote to Ms. Musson with a copy to James Clancy, then President of OPSEU, describing Ms. Musson's statement about prioritizing as a threat to punish members. Ms. Musson replied that she had not intended to make any threats, explained again that she needed to know when grievances were filed and what they were about, both so that she could advise the Scheduling Committee and so she could decide whether a staff representative would be required at the grievance meeting, an option under the Collective Agreement. She also reiterated that all indi­viduals would have grievances referred to arbitration, and all would be represented.

20. The motion had little impact on the situation. Although Ms. Lovelock did start bringing in copies of grievances to the Local, Mr. Grunwell, Mr. Gurofsky and Mrs. Wilson continued to refuse to provide information to the Local executive with respect to grievances. In the fall of 1986, the Local was still in the uncomfortable position of having to obtain information about grievances from the College. The College was willing to provide this information, but took the view that it did so voluntarily, and that there was no legal obligation upon it in this regard. On one occasion, the College slipped up and did not notify the Local of several grievances. From the Local's point of view, this was not a satisfactory state of affairs.

21. At this point the Local decided to grieve the College's failure to provide its officers with information about a particular grievance. It was the view of Mr. Fordyce and Ms. Musson that there was an obligation on the College to provide them with this information under the grievance procedure in the collective agreement, and it was apparent that they were still having considerable difficulty obtaining it elsewhere. A grievance was filed, and in August of 1988, the College and the Local entered into a settlement of that grievance which was incorporated into a consent award issued by a board of arbitration chaired by Kenneth P. Swan. That award, which is the subject of one of the complaints before us, provided as follows:

CONSENT AWARD

By letter dated August 9, 1988, the parties advised us that they were able to reach an agreement on matters in dispute between them in relation to the present grievance. They have also asked us to incorporate the terms of their minutes of settlement in an award.

Accordingly, we adopt the following terms as the award of the Board of arbitration in this mat­ter:

1. The parties agree that the following terms of settlement shall be in effect for a trial period of one year from the date of signing. At the end of the trial period the College will notify the Union if they find the settlement unsatisfactory. In that event, the Union shall reserve the night to bring the grievance back before the Board of Arbitration. At the end of the trial period the college will notify the Union if they find the settlement satisfactory. In that event the Union will withdraw this grievance and these Minutes of Settlement shall remain in effect until such time as the language of Article ii is significantly changed in negotiation.

2. The parties agree that references in Article 11 to "the Union Steward" mean either the Stew­ard elected in the work area of the gnievor or the Chief Steward. The College shall provide a copy of the grievance and will inform, in advance, the Chief Steward of all scheduled Step 1 and Step 2 grievances.

3. The parties recognize that it is not the business of the College to determine what union mem­ber(s) other than the grievor attend grievance hearings. However, the College does reserve the right to limit the Union representatives who appear at hearings to the minimum number speci­fied in Article 11.

4. Consent of the Local Union, the College and the gnievon is required to waive a Step 2 hear­ing.

5. The parties adjourn the above-mentioned grievance sine die for the trial period.

6. The parties agree that these Minutes of Settlement clarify the operation of Article 11 as set out above and shall become an order of the Board of Arbitration pursuant to Article 11.04. These minutes do not address past actions of either party. These minutes are without prejudice to any position either party may take should a hearing become necessary.

DATED AT TORONTO, Ontario this 19th day of August, 1988.

22. After the Swan award issued, Mr. Fordyce continued to attend grievance step meetings in his capacity as Chief Steward. The Local also continued to take the position that grievors would be allowed to have any other person present in addition to provide them with comfort and assis­tance. In other words, the grievor' s union steward at grievance meetings was to be the work area steward or the Chief Steward, but the grievor could also bring along Mr. Grunwell or Mr. Gurof­sky or anyone else to provide assistance in an unofficial capacity.

23. The complainants objected strenuously to the Swan consent award. In addition to their earlier arguments, they took the position that the Local was precluded from attending grievance meetings as a result of the Freedom of Information and Protection of Privacy Act, and that the Col­lege was prevented from providing the Local with information about grievances for the same rea­son. During the winter of 1988/1989, complainants A. Wilson, R. Wilson, Hunt, Warmuth, Sweat-man, Tobin, and Grunwell all filed grievances relating to the Swan consent award or its application to specific grievance meetings.

24. In the meantime, the next round of negotiations between the community colleges and OPSEU was due to begin. Bargaining in this sector takes place between twenty-two colleges and OPSEU locals together, and results in one province-wide collective agreement for academic staff. In preparation for negotiations, each local of OPSEU holds demand-setting meetings in which any member has the right to bring forward proposals for changes in the collective agreement. Those that are passed by a majority vote are forwarded to the outgoing provincial negotiating team, which puts together a booklet of all the local proposals collected in this manner. A provincial demand-setting meeting is then attended by delegates elected from locals, together with local Pres­idents. A new provincial bargaining team is elected by delegates and the various proposals are dis­cussed and prioritized by voting. Since there are usually more demands than time for discussion, those remaining are routinely the subject of an enabling motion, giving the newly-elected bargain­ing team the responsibility for dealing with them. The bargaining team then prepares the final pro­posals in accordance with the motions, directions and priorities established at the provincial demand-setting meeting. Those local proposals that were not discussed at the provincial meeting are also debated by the bargaining team until consensus is reached on them.

25. Local 110's demand-setting meeting was held on October 26, 1988. At that meeting, a number of proposals were discussed, mostly centering on wage and benefit issues of various kinds. Among them was one made by Mr. Fordyce and Tom Geldard, 1st Vice-President of the Local, who proposed changes to Article 11 to clarify the Local's right to designate union representatives for grievance procedure meetings. This motion was discussed and then carried over the objections of Mr. Grunwell, Mrs. Wilson, Mr. Wilson and Ms. Hunt.

26. All the Local 110 proposals were then forwarded to the provincial negotiating team and incorporated into the booklet of proposals to be discussed at the provincial demand-setting meet­ing. That meeting was held in December of 1988 and was attended by the duly-elected delegates from each Local. In addition, Mr. Grunwell, Mr. Gurofsky, Mrs. Wilson and Ms. Sweatman went to the hotel where the meeting was held, apparently to lobby delegates against the grievance pro­cedure proposal emanating from Local 110. A new bargaining team was elected by the delegates, and Ms. Musson, who had been the Vice-Chair of the team during the preceding round of negotia­tions, was selected as the Chair.

27. Not surprisingly, the contested Local 110 proposal did not get discussed during the pro­vincial meeting. It fell under the category of "union business" which was seventh in priority after job security, salaries, workload, benefits/leaves, pensions, and sick leave. The meeting had only reached priority number four, benefits/leaves, when it came time to adjourn. As a result, all the remaining proposals were referred to the bargaining team. They were discussed by that team and adopted, in the case of Local 110's grievance procedure proposal, in a somewhat modified form.

28. OPSEU and the Colleges agreed on language in this regard in the spring of 1989, and these changes eventually found their way into a subsequent collective agreement, arrived at after a strike and a mediated/arbitrated settlement. The proposal that lead to these changes (and later the changes themselves) are the subject of one of the complaints before us.

29. At the same time as these events were unfolding, another series of incidents was taking place with respect to workload complaints filed by complainants A. Wilson, Hunt, Sweatman, Tobin and Warmuth (the "workload grievors".) The collective agreement covering Fanshawe Col­lege and Local 110 includes an extensive provision with respect to the workload of professors and a mechanism for resolving disputes in this regard. When a complaint is not resolved with a profes­sor's immediate supervisor, it may be referred to a body called the Workload Monitoring Group, composed of equal numbers of management and union representatives. If a complaint is not resolved by this group, it can be referred to a Workload Resolution Arbitrator, who issues a writ­ten award.

30. In this case, the workload complaints were not resolved by the grievors' immediate supervisors, and were referred to the Workload Monitoring Group. Prior to the meeting of that group, Mr. Geldard, Mr. Fordyce and Lou Newell, all members of the Local executive, met with the workload grievors to prepare their presentation to the Workload Monitoring Group. Some­times the Group invited the professors to attend its meetings to address their concerns; often the union representatives in the Group would simply present the complaints. In this case, the grievors were invited to attend. Presentations with respect to their workload complaints took place over four meetings of the Group held in the fall of 1986. The complaints were not resolved, and they were eventually referred to a Workload Resolution Arbitrator in the person of Morley Gorsky. Again, members of the Local executive met with the workload grievors to prepare their presenta­tion for the Workload Resolution Arbitrator. Hearings were held by arbitrator Gorsky in the fall and winter of 1986/1987, during which Mr. Fordyce, Mr. Geldard, and the workload grievors pre­sented the complaints. A series of awards were issued by the arbitrator between August and Octo­ber of 1987. On certain matters, the issues of compensation and implementation were left to the parties to resolve.

31. In October of 1987, Patricia Kirkby, Dean of Health Sciences and Human Services where the workload grievors were employed, convened a meeting with the workload grievors, Mr. Geldard, Mr. Fordyce and John Sunseth, Academic Vice-President of the College, to discuss the compensation stemming from the Gorsky awards. At that meeting, a number of items were dis­cussed in relation to these awards. By the conclusion of the meeting it was clear that the meeting participants had been able to resolve a great deal of the implementation of the awards. At the request of the grievors, the Local subsequently asked the College to pay the grievors for at least those compensation issues which had been settled, in light of the fact that they had been waiting some time for their money and the Christmas season was approaching. The College agreed, and on December 23rd, 1988 the workload grievors were paid the following amounts:

S. Hunt $21,506.39 B. Sweatman 20,612.12 M. Tobin 25,071.26 S. Warmuth 24,310.02 A. Wilson 22,100.88

32. Further meetings were scheduled in January and February of 1988 between the College, the workload grievors, Mr. Geldard and Mr. Fordyce. At this point, the only significant issues out­standing appeared to be the "fifty minute hour" issue and the "complementary functions" issue. The "fifty minute hour" issue relates to a provision in the collective agreement which reads as fol­lows:

Article 4.01(3)

Each teaching contact hour shall be assigned as a fifty (50) minute block plus a break of up to ten (10) minutes.

33. The workload grievors argued before Mr. Gorsky that they were entitled to receive class schedules showing fifty minute teaching contact periods and ten minute breaks while teaching clinical nursing courses. As a remedy, they requested that their standard workload forms be amended to reflect the number of teaching contact hours actually worked as a consequence of the College failing to provide such schedules. In addition, they asked for overtime payments and the provision of faculty time-tables in accordance with the collective agreement.

34. At the workload arbitration hearings, the parties agreed that the faculty time-tables would be the subject of settlement discussions. Arbitrator Gorsky noted this and left the adjust­ment of the standard workload forms until those discussions were completed, as they might well resolve that matter as well. He did, however, say as follows:

I would merely state that if there is any dispute between the parties concerning whether the spe­cial circumstances affecting nursing teachers alters the meaning of article 4.01(3) requiring that:

"each teaching contact hour shall be assigned as a fifty (50) minute block plus a break of up to ten (10) minutes", I would find that it cannot.

This was largely the position the union had asserted.

35. At the October meeting convened by Dean Kirkby to discuss implementation of the Gorsky awards, the College agreed in regard to the fifty minute hour issue to adjust the standard workload forms in accordance with the award. This meant, for example, that for grievors Wilson, Tobin, Hunt, and Warmuth, certain standard workload forms which reflected six teaching contact hours in each of two days would actually show six and a half teaching contact hours, including a one-half hour unpaid lunch break. However, the Local and the College also interpreted Article 4.01(3) to mean that there could be no partial teaching hours. As a result, the College was pre­pared to round up the additional one-half hour to a whole hour, so that the standard workload forms would now show a total of fourteen hours over a two day period, rather than twelve hours.

36. This change then had other consequences, since each teaching contact hour attracts other attributed work hours such as preparation, evaluation and feedback time under the collective agreement. All of this the College was prepared to grant the workload grievors at the October implementation meeting. In addition, however, the workload grievors argued that they had not been able to take their breaks during the days in question. It appears that although they were actu­ally able to take some time off, they did not feel that this time was a break within the meaning of section 4.01(3) because they were still responsible for the clinical performance of their students during these times. The workload grievors were of the view that formal breaks should have been scheduled or assigned by the College. The College's view was that it had directed the professors to take their own breaks, that there were fifty-five other nursing professors who had no difficulty tak­ing their breaks, and that the College should not have had to specifically assign breaks.

37. When this issue was raised at the October meeting, Dean Kirkby agreed to provide the professors with a further payment for their breaks. This she calculated by taking, for example, the now amended fourteen hours of teaching over two days and multiplying fourteen times ten minutes for a total of one hundred and forty minutes of break time. She then subtracted two one-half hour periods for lunch periods on each of the two days which the workload grievors acknowledged they had received, leaving eighty minutes or 1.3 hours of break time for which she was prepared to pay them.

38. After the October meeting, Mr. Geldard and Mr. Fordyce discussed the 1.3 hour pay­ment with the workload complainants who had attended the meeting. In at least the view of Mr. Geldard and Mr. Fordyce, Dean Kirkby had given the grievors a windfall because the payment for break time had not been requested before Mr. Gorsky, nor had it been awarded. In addition, they thought that Mr. Gorsky would not have awarded it to them, even if he had been asked to do so. Since the grievors had actually only worked for six hours, in the view of Mr. Geldard and Mr. For­dyce paying them for seven hours effectively paid them for six ten minute breaks as well. They assumed that Dean Kirkby had volunteered the payment because she was a new Dean, and wanted to settle the matter and put it behind her. This was confirmed by Dean Kirkby in her testimony, in which she told the Board that although she thought the grievors had actually taken their breaks, she had no proof of this a year later and she simply wanted to resolve the matter by means of a compromise.

39. The grievors on the other hand were of the view that the 1.3 hours Dean Kirkby was prepared to pay them represented time they had worked instead of time which should have been taken for breaks, and as a result the 1.3 hours should be considered teaching contact hours. Thus it should also be rounded up to two hours, (there being no partial teaching contact hours) and itself attract further attributed hours such as preparation, evaluation and feedback time. They testified that Dean Kirkby told them at the October meeting that the 1.3 hours were teaching contact hours, and in addition had partially recognized the attributed hours in the College's compensation calculations. This, then, was the fifty minute hour issue which remained outstanding at the begin­ning of 1988.

40. The complementary functions issue related to the first week in September in which Mrs. Wilson was assigned four hours of audio-visual review, which she argued fell into the category of curriculum development. She was of the view that these hours were either complementary func­tions, a category of work under the collective agreement, or preparation attributed hours. This meant that the first week of September must be considered a teaching week. The result was that the total number of teaching weeks during the year would be in excess of that permitted, and that overtime would be payable.

41. The College took the position that the audio-visual review did not represent teaching contact hours because there was no teaching contact with students, and it was not assigned in lieu of teaching as no classes were held that week. As a result, the first week in September was not a teaching contact week and Ms. Wilson had not taught a sufficient number of weeks to trigger over­time. The Local was of the view again that this issue had not been either put to or decided by Mr. Gorsky. In addition Mr. Geldard and Mr. Fordyce testified that Mrs. Wilson told them she had not actually performed the four hours of review, a statement Mrs. Wilson denied.

42. An implementation meeting which had been scheduled for February 8th was cancelled and instead, Dean Kirkby sent a memo to the workload grievors and Mr. Geldard and Mr. For­dyce, indicating that the College was maintaining its position on the fifty minute hour issue and the complementary functions issue, and clearing up several remaining details.

43. The workload grievors then wrote directly to Barry Moore, President of the College, who confirmed that Dean Kirkby's memo represented the College's position on the two outstand­ing issues. It was apparent at that point that the workload grievors' view of the carriage of the workload complaints mirrored their views on grievances generally. That is, they considered that they had the right to deal with them as they wished, and that the Local had no say in the matter. In addition, they had briefly discussed referring the matter back to arbitrator Gorsky with Mr. Gel­dard, and the differences between the Local and the grievors on the appropriate quantum of com­pensation had not yet hardened to the point they did subsequently.

44. Consistent with their views on carriage, the workload grievors wrote directly to Mr. Gorsky in March of 1988, asking him to resolve the two outstanding issues arising out of the imple­mentation meetings, and setting out their position on those issues in great detail. They sent copies of this letter to the secretary of the Workload Monitoring Group and to the College, but not to the Local. Mr. Gorsky, apparently unaware that there was any difference in opinion between the grievors and the Local, responded by suggesting various options for hearing and resolving the dis­pute, and asking for some indication from the parties as to their preference in this regard.

45. At this point, the differing views of the workload grievors and the Local on the two out­standing issues had crystallized. The Local felt that the 1.3 hours payment for breaks on the fifty minute hour issue was itself a windfall, and that the workload grievors claim to round it up and add attributed hours to it was inconsistent with the fact that the payment was for breaks, not teaching contact hours. In their view, the workload grievors' position was tantamount to pyramiding. On the complementary functions issue, Mr. Fordyce and Mr. Geldard had concerns about whether the work had been actually done and the Local was of the opinion that neither issue had been raised in front of the Workload Monitoring Group or the Workload Resolution Arbitrator, that they had not been dealt with in the Gorsky awards, and that if the arbitrator had been presented with the two issues, he would not have awarded the remedies for which the workload grievors were now asking. In their view, the amounts actually paid to the workload grievors up to that point repre­sented more than full implementation of the awards.

46. The grievors on the other hand continued to maintain their position that the 1.3 hours should be rounded up and attract attributed hours because it represented teaching contact hours. In their opinion, their position on the two issues flowed logically from the implementation of the awards, the terms of the hearings were not so rigid as to preclude the raising of the matters at this point, and that in any event, they had been raised previously, if somewhat indirectly. What the grievors wanted, Mrs. Wilson made clear in her testimony, was not that the matter of compensa­tion as a whole under the fifty minute hour or the complementary issues be referred back to Mr. Gorsky but only the specific points outstanding, for example, the 1.3 hour payment. She denied in cross-examination that this was because the grievors were concerned that the arbitrator might not award even the amounts the College had already paid to them.

47. Nonetheless, Mr. Geldard and Mr. Fordyce continued to present the workload grievors' views to the College during the spring of 1988. However, when the Local became aware that the workload grievors were attempting to refer the issues back to Gorsky on their own initiative, it is apparent that their differences of opinion on implementation came into sharper focus. In addition, it is fair to say the continuing tension between the grievors and the Local with respect to control of grievances spilled over into this context.

48. On May 17th, Ms. Musson wrote to the workload grievors to the effect that if they made independent arrangements with the Workload Resolution Arbitrator, they did so at their own expense. If they had problems regarding the implementation of the awards, she asked them to contact the union Local. Shortly thereafter, Mr. Grunwell wrote to Ms. Musson, asserting that the workload grievors had a unilateral right to take the issues back before Mr. Gorsky, that they had already contacted the union Local in the person of himself, and that the Local had no right to interfere or to refuse to pay. He insisted upon a retraction of Ms. Musson's statement and threat­ened legal proceedings. Subsequently, it appears that the workload grievors realized that it was up to the Local and the College to refer matters back to the Workload Resolution Arbitrator, at least in the technical sense, and they wrote to both calling upon them to do so.

49. In the summer of 1988, Ms. Musson and Mr. Geldard met with Howard Rundle, then the Academic Vice-President of the College, to make one final attempt to resolve the matter. They agreed upon a proposal for implementation which they decided to refer to the Workload Monitor­ing Group. The Workload Monitoring Group had on a number of occasions in the past dealt with implementation problems arising from workload awards. When the College suggested this to the grievors, they wrote to the College, with a copy to Ms. Musson, rejecting this approach on the basis that it was unethical to take the matter back from Gorsky and that it was "sheer imperti­nence" to suggest that this was a proper process for addressing the problem. Earlier they had writ­ten to Ms. Musson reiterating their call to reconvene the hearings before Mr. Gorsky, and issuing an ultimatum to the effect that if they did not receive a response from her within one week, includ­ing a copy of a letter to Mr. Gorsky requesting him to resume the hearings, they would consider that she had breached her duty to represent them and might take action in this regard.

50. In the fall of 1988, Ms. Musson wrote to the workload grievors indicating that she had sent the matter to the Workload Monitoring Group in an effort to get the matter resolved and to avoid unnecessary expense and inconvenience. She also said in her memo that if they were not sat­isfied with the result or the procedure, she would put the matter before Mr. Gorsky. At that time, she was aware that the workload grievors objected to any procedure other than referring the mat­ter back to the Workload Resolution Arbitrator.

51. The Workload Monitoring Group met on September 28th and September 30th of 1988. Among other things, the Group reviewed the proposal with respect to implementation of the Gor­sky awards, and agreed upon a resolution of the matter. Predictably, the resolution reflected the views of the College and the Local at that point. The text of the resolution is as follows:

Whereas the WMG has considered the Gonsky awards as outlined in his correspondence of 1987 08 11, 198708 13, 198708 17, 1987 0826, 1987 1027 and 1987 10 28 and the evidence (oral and written) of A. Wilson, S. Warmuth, M. Tobin, B. Sweatman and S. Hunt and reports of several joint union/management negotiating sessions:

It is moved that the following shall constitute full and final implementation of the above awards:

Total monetary payment made as follows to:

S. Hunt $ 21,506.39 B. Sweatman 20,612.12 M. Tobin 25,071.26 S. Warmuth 24,310.02 A. Wilson 22,100.88

The interpretation of the award in so far as it applies to the total teaching contact hours under­taken by the teachers on a clinical assignment is that a full day's clinical assignment constituted seven teaching contact hours. This is arrived at by assuming that each teacher was assigned teaching contact hours which began at the beginning of the timetable assignment, ended at the end of the timetable assignment, reduced each day by the scheduled time for lunch and breaks taken by the teachers.

The college agrees that the assignment of curriculum development work during weeks in which a teacher is not assigned any teaching contact hours and where such assignment is in lieu of teaching (ie. during the 36-38 week permissible teaching contact weeks for Group 1/2 teachers) will be recorded on a SWF under "Complementary Functions for Academic year," and limited to a maximum of 39 hours pen week. The weeks of this curriculum development work assigned in lieu of teaching will be deemed teaching contact weeks.

Curriculum development activity outside of the teaching contact period for teachers will be done only where the activity is undertaken by mutual consent. This work need not be recorded on a SWF.

The last two paragraphs of the resolution did not provide Mrs. Wilson with any more compensa­tion for the audio-visual review, but did set up guidelines for the future handling and compensation of curriculum development in specific circumstances. On October 4th, this resolution was sent to Ms. Musson, the workload grievors and the College by the Workload Monitoring Group.

52. Not surprisingly, the workload grievors were not satisfied with this resolution and insisted that the matter be sent back to Mr. Gorsky. At this point, however, the Local was begin­ning to reassess whether the issues should be referred back to him at all. Ms. Musson sent a letter to Mr. Gorsky advising him that the Workload Monitoring Group had reached a decision on com­pensation, but that the workload grievors were not satisfied with it. She then asked him for direc­tions and enclosed a copy of the resolution passed by the Workload Monitoring Group.

53. By this time, Mr. Gorsky was aware of the dispute, as he had been the recipient of copies of various exchanges of correspondence as well as a number of letters directly from the workload grievors. He wrote back suggesting various options for adjudicating the outstanding issues. The Local found this latest communication confusing. As a result, Ms. Musson called Mr. Gorsky in late October in Winnipeg to ask him what he had meant when he had originally left it to "the parties" to deal with implementation. Mr. Gorsky informed her that by "the parties", he had meant the Local and the College, and that that phrase did not include the grievors.

54. At that point, the Local executive officers considered their position. In their view, the Local and the College had the right under the collective agreement to resolve the compensation flowing from the awards. In addition, compensation and implementation had been specifically referred by Mr. Gorsky to the parties, that is, the Local and the College. The Local and the Col­lege were in agreement on a proposal and the Workload Monitoring Group had approved it. They read the collective agreement as providing that when the Workload Monitoring Group reaches a decision, it was final and binding. In the Local's view, the Workload Monitoring Group's resolu­tion represented more than the full implementation of the Gorsky awards. They did not think that the grievors were entitled to more, both in terms of what had been originally requested and in terms of what was awarded. Moreover, in practical terms they did not think that the workload grievors would obtain anything more if the matter was referred back to Mr. Gorsky. After discus­sing the matter with the OPSEU grievance department and one of OPSEU's lawyers, the Local decided not to reconvene the hearings before Mr. Gorsky. The Local and the College did send Mr. Gorsky a joint communique on December 6, 1988 which read as follows:

This letter is to advise you that the parties agree that your awards have been fully and com­pletely implemented in the cases of Wilson, Tobin, Warmuth, Sweatman, and Hunt. The copy of the agreement reached between the parties is attached.

If you feel this to be a satisfactory implementation of your awards, please consider this matter closed. We extend to you our appreciation for your time and effort in assisting us. If you do not agree, please advise us.

As a result of an oversight, the agreement, which was in the form of the Workload Monitoring Group's resolution, was not enclosed with this particular letter to Mr. Gorsky. He had, however, received it previously with the letter in October asking for directions.

55. In the meantime, Mr. Grunwell had been pursuing the College on behalf of the work­load grievors with respect to how the matter would be resolved. On December 9th, the College advised Mr. Grunwell of the joint communique, but told him that the Local had asked to take responsibility for indicating the content of this communication to its members, and the College had agreed with that request. This letter was copied to Ms. Musson.

56. The union did not initiate any communication to the workload grievors with respect to the contents of the joint communique to Mr. Gorsky. What Mr. Geldard did do was write to the complainants on December 14th, indicating that the Local was awaiting a response from Mr. Gor­sky and that the Local would be in touch with them in the new year. The Local knew from the Col­lege's letter to Mr. Grunwell that Mr. Grunwell knew about the joint communique, and the offi­cers agreed among themselves that if the workload grievors asked for it, the Local would provide it to them.

57. On December 15th, the workload grievors wrote again to Mr. Gorsky, asking him to reconvene the hearings. By February 13th, the Local executive had not heard from Mr. Gorsky. As a result of the way the joint communique was framed, they considered the matter to be closed, at least as far as Mr. Gorsky was concerned. Mr. Geldard accordingly advised the complainants of this, enclosing a copy of the joint communique which in turn attached the resolution of the Work­load Monitoring Group, which the workload grievors had received earlier. On Febaiary 17th, Mrs. Wilson, Ms. Warmuth and Ms. Hunt sent a memo to Mr. Geldard, saying among other things, that he had "colluded with management to 'knee-cap' [them]".

58. On February 23rd, Mr. Gorsky wrote indicating that because the parties had settled the implementation of his awards, there was nothing further for him to do. As a result, he had not pur­sued the matter further and had considered it closed. However, he had since received the Decem­ber 15th letter from the workload grievors. He indicated that subject to a request from the parties, he regarded his role as having been completed in this matter and did not see that he could unilater­ally continue to exercise jurisdiction. Mr. Gorsky also sent a copy of his letter to Mrs. Wilson, with a covering letter advising her that given the settlement of the details of his awards, he had con­cluded that he was without further jurisdiction to act in these matters. This ended the matter for the moment. The Local's conduct with respect to implementation of the workload complaints is the subject of the third complaint before us.

59. Looking at the picture as a whole, by November of 1988, the Swan consent award had been issued, the Workload Monitoring Group had passed the resolution with respect to the Gorsky awards, and Local 110's proposals, including those affecting the grievance procedure were on their way to the provincial demand-setting meeting. As the objections of the complainants became more and more strenuous, Ms. Musson wrote to Mr. Clancy outlining the views of the Local with respect to some of the matters dealt with in the Swan consent award and in Local 110's bargaining propos­als and appealing to him for assistance. It is also evident from the material before us that by this point, Vic Cooper, then the staff representative for the Local, had become embroiled in the situation, and Ms. Musson requested a meeting with the co-ordinator of the grievance department and a constitutional advisor to clarify the situation. This was the beginning of a great deal of correspon­dence, primarily between the complainants and Mr. Clancy. In December, Mr. Grunwell also wrote to Mr. Clancy, making a wide range of accusations against Ms. Musson and setting out his views with respect to some of the issues in the Swan consent award and the contentious Local 110 bargaining proposal. He referred both to what he describes as Ms. Musson's "less savoury schemes" and a letter from the workload grievors which he asserted describes in detail a conspiracy by the Local and the College to deprive them of their right to arbitration. His letter concluded by asserting that action had to be taken permanently to stop Ms. Musson from abridging members' rights.

60. As it turned out, the workload grievors did write to Mr. Clancy on December 21st, objecting to Ms. Musson and Mr. Geldard attending the hearing of another Workload Resoltition Arbitrator and describing them as "interlopers". They also accused the Local of colluding with management in a joint effort to interfere with their right to have the workload award compensation issues arbitrated, and asserted that this constituted failure to represent them contrary to section 76 of the Colleges Collective Bargaining Act. As a result, they asked that the Local be placed in trust­eeship until an official investigation was conducted and the question of the continued fitness of the current officers to hold office was resolved.

61. Several weeks later, Mr. Gurofsky wrote to Mr. Clancy indicating his view that the Local had no right to find out anything from grievors or their representatives about grievances which were taken to arbitration since the Local would receive both a copy of the grievance when it was referred to arbitration and a copy of the arbitration decision. This was all it needed to know, according to Mr. Gurofsky, and the Local had no legitimate interest in grievance settlements or grievance arbitration strategy. More specifically, he wrote, because there was an obligation on an arbitrator to give notice to another employee who may be adversely affected by a grievance, a per­sonal grievance could have no affect on other Local members not notified in this manner. He also described his view of the Swan consent award and made a number of accusations dating back some four years with respect to Ms. Musson and the Local.

62. On January 10th, 1989 Mr. Clancy advised Ms. Musson, Mr. Grunwell, Mr. Gurofsky and the workload grievors that he intended to appoint an ad hoc committee to inquire into the matters raised and make recommendations. All interested persons in Local 110 would be given an opportunity to meet the committee and make whatever representations they wish~d. Because of the volume of work preceding OPSEU's imminent convention, Mr. Clancy indicated that it might not be possible to appoint the committee until early February, but that the committee would con­duct its task with dispatch once appointed.

63. In the meantime, matters had heated up considerably, and a flurry of correspondence followed Mr. Clancy's announcement. In addition, a number of skirmishes were taking place with respect to particular grievance meetings, reflecting once again the differing views of the Local and the complainants with respect to representation in the grievance and arbitration process. Some of these conflicts took place in the context of the complainants' grievances with respect to the Swan consent award. The complainants particularly objected to Mr. Fordyce's presence at these griev­ances since he had been involved in the Local's decision to sign the Swan agreement. At one point Mr. Grunwell compared Ms. Musson to a Nazi in a letter to Mr. Clancy, and he and the other complainants made repeated demands for trusteeship. Mrs. Wilson advised Mr. Clancy in Febru­ary that the workload grievors had been given "the kiss of death" by Local 110 in collusion with management in regard to the Gorsky award implementation.

64. By January 31st of 1989, the workload grievors had set out a number of conditions which had to be met before they would co-operate with the ad hoc committee. These conditions included the Local being placed in interim trusteeship pending the inquiry, and a requirement that the committee's terms of reference include a provision limiting participation to those with direct knowledge of events. This last condition resulted from the complainants' concerns about the grow­ing show of support for the executive by Local members. As a result of the call for trusteeship and other allegations, the Local executive had passed a motion of confidence in Ms. Musson and had called a general meeting at which both sides were to present their views. The complainants declined to attend as they had decided that a members' meeting was not an appropriate forum to deal with the dispute, which in their view was essentially legal or constitutional in nature. The Local arranged to have the meeting chaired by a neutral person from outside the Local, and the accusations made by the complainants were read and responded to by the Local executive. The general membership then passed a motion of confidence in the Local executive. As a result, the complainants were concerned that their position at the inquiry not be undermined by their lack of support from Local members.

65. On March 2nd, Mr. Clancy announced that he had appointed Martin Teplitsky to con­duct the inquiry described earlier. He sent a copy of the terms of reference for Mr. Teplitsky to the various correspondents, which read as follows:

66. To inquire into and recommend to the OPSEU president whether a grievon has the right to be represented at Steps 1 and 2 by the steward of his/hen choice~ on whether the night is circumscribed, limited on otherwise defined by law, the collective agreement/on the OPSEU constitution on maybe so circumscribed, limited or defined by the union Local, and to what degree.

67. Flowing from the conclusions reached under (1) above, to recommend what course of action, if any, the union should take with respect to a) the Swan award; b) the Gorsky awards.

68. To inquire into any other related matters that may appear to be relevant.

69. To hear representatives with respect to the above from the parties involved, and to that end, to determine the order of business in procedures to be followed at such hearing.

70. To report to the OPSEU president with recommendations as soon as possible, but in any event no later than April 15th, 1990. A hearing was scheduled for Wednesday, March 15th in London to allow for verbal representations.

71. Shortly thereafter, the complainants wrote to Mr. Clancy, setting out further conditions for their participation in the Teplitsky inquiry. Although Mr. Clancy had appointed a lawyer, which they had requested, they objected to the choice of Mr. Teplitsky, suggesting that he was biased as a result of holding pre-existing views about the limitations of union members' rights in general and about Mr. Gurofsky's grievances in particular. Although Mr. Clancy had indicated that only those with direct knowledge should participate in the proceedings, as requested by Mrs. Wilson, the complainants also now required that OPSEU waive any timeliness objections should the complainants subsequently lodge proceedings under section 76. In addition, the complainants again insisted that the Local be placed in trusteeship pending the inquiry, and that the complain­ants be compensated for their participation in the hearing. They asked for a guarantee that they would be given copies of the Teplitsky report, and requested that any union funding for the Local either be denied or apportioned equally to the Local and complainants.

72. There was some discussion between Mr. Clancy's executive assistant and the complainants with respect to payments for time spent at the hearing. However, these discussions did not sat­isfy the complainants and some of the other conditions remained unmet. When Mr. Teplitsky con­ducted his hearing in March of 1989, the complainants declined to attend. Subsequently, he issued a report, which Mr. Clancy sent to the complainants and the Local. Generally speaking, it is fair to say that Mr. Teplitsky upheld the Local's position (or went even further) with respect to all matters except the Gorsky awards. With respect to the Gorsky awards, Mr. Teplitsky concluded that under the collective agreement the Local did not have the right to settle a grievor's workload complaint without his or her permission.

73. Mr. Clancy then wrote to the complainants and the Local, indicating that he had received Mr. Teplitsky's report, and adopting it in large measure, including the finding with respect to the workload complaints. Upon receipt of Mr. Clancy's letter, the Local wrote to him to the effect that they disagreed with Mr. Teplitsky's conclusion with respect to the Gorsky awards. However, in the circumstances Ms. Musson suggested that the Local put the settlement to Mr. Gorsky, that the grievors be allowed to make any submissions they wished, and that Mr. Gorsky would then decide if the settlement properly implemented the awards. Mr. Clancy had no objec­tion to this proposal and asked Ms. Musson to canvas the grievors' views on it. Around this time, however, the complainants filed these complaints and the matter became the subject of correspon­dence between counsel. Although some of this correspondence was specifically labelled as "with prejudice" and included offers not contingent upon settlement of the complaints, we do not find it particularly useful in shedding light on the matters before us, given that litigation had already com­menced. In addition, since the exchange subsequently segued into what might well be described as settlement negotiations, we find this correspondence too close to a number of policy considerations attached to such negotiations, and in light of the complainants' objections we have decided not to recite it or place any weight on it.

II The Decision

69. Section 76 of the Colleges Collective Bargaining Act provides as follows:

70. An employee organization shall not act in a manner that is arbitrary, discriminatory on in bad faith in the representation of any of the employees, whether members of the employee organization or not.

It was conceded that the standard a union must meet under section 76 is essentially the same as that under section 68 of the Labour Relations Act and as a result, we will draw upon the jurispru­dence under section 68 in the course of these reasons.

70. In Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, the Board set out its approach to section 68 in general terms:

71. Section 68 requires that each trade union decision be grounded on a consideration of rele­vant matters, free from the influence of irrelevant considerations. The requirement that a trade union not act in a manner which is in bad faith protects the legitimate expectation that an indi­vidual employee's bargaining agent will act honestly and free of any personal animosity toward him. The requirement that a trade union not act in a discriminatory manner protects against the making of distinctions between employees and groups of employees on bases which have no rel­evance to legitimate collective bargaining concerns. "Bad Faith" and "discriminatory", there­fore, test for the presence, in the process or results of union decision-making, of factors which should not be present. "Arbitrary", on the other hand, describes the absence in decision-mak­ing of those things which should be present. A decision will be arbitrary if it is not the result of a process of reasoning applied to relevant considerations. The duty not to act arbitrarily requires a trade union to turn its mind to the matter at hand.

72. The Board has also said that it must assess the union's conduct in light of the fact that most of the individuals conducting its affairs are laypeople, and the standard of assessment "must consider the persons who are performing the collective bargaining functions, the norms of the industrial community and the measures and solutions that have gained acceptance within that com­munity" (Ford Motor Company Limited, [1973] OLRB Rep. Oct. 519). The duty of fair represen­tation does not require a union to take a grievance to arbitration simply because an employee so requests (Catherine Syme, [1983] OLRB Rep. May 775). However, the union must apprise itself of the facts of the situation and then evaluate the grievance in a fair and honest manner (Savage Shoes, supra and Swing Stage Ltd., [1983] OLRB Rep. Nov. 1920). In considering the actions of a union in these circumstances, the Board does not decide whether a particular decision was right or wrong, or whether the Board agrees with it, but rather whether it is one which could reasonably be made in the circumstances (Dufferin Aggregates, [1982] OLRB Rep. Jan. 35). However, flagrant errors consistent with a non-caring attitude may breach the duty of fair representation if the union's conduct "is so implausible, so summary, or so reckless to be unworthy of protection" (Walter Princesdomu, [1975] OLRB Rep. May 444).

73. With this in mind, we turn first to the complaint with respect to the compensation flow­ing from the workload awards. It is not suggested that the Local engaged in any wrongdoing prior to the issuance of those awards. Indeed, it appears that Mr. Geldard, Mr. Fordyce and the work­load grievors were able to work together in somewhat unusual harmony through the initial Work­load Monitoring Group and Workload Arbitration proceedings, and even during the meetings with Dean Kirkby. Rather, it is the Local's conduct in settling the compensation flowing from the Gor­sky awards over the objection of the workload grievors, and its failure to refer the matter back to Mr. Gorsky for resolution, together with its overall handling of events subsequent to the awards which counsel for the complainants argues constitutes a breach of the respondents' statutory obli­gation under section 76. That conduct is alleged to be arbitrary, discriminatory or to be motivated by bad faith on the part of the Local towards the grievors.

74. The key issue in this regard is whether the Local was entitled to settle the compensation owing on the awards in the face of the workload grievors' opposition. Counsel takes the position that the grievors had an absolute right to have the compensation dispute referred back to Mr. Gor­sky by virtue of the collective agreement and OPSEU's constitution. In the alternative, he argues, if the Local had some discretion in this regard, it exercised it in a manner that was arbitrary, discri­minatory or indicates the presence of bad faith.

75. In coming to its conclusion that the duty of fair representation does not require a union to take a grievance to arbitration simply because the grievor wishes it, the Board has described its reasons in the following manner in Douglas Aircraft of Canada, [1979] OLRB Rep. Aug. 745:

76. Section 60 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, but 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 judgment of a lawyer. Union officials are entitled to make honest mistakes.

77. 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 the parties seek to amicably resolve their differences. As in the ordinary civil litigation process, it may be in the interest of both parties to seek an "out of court" settlement which is more modest than either might have obtained had it been entirely successful before the adjudicator. A settlement is a compromise solution which avoids the costs and uncertainties of litigation. The generosity of the settlement will depend upon the skills of the negotiating parties, the merits of the claim, the cost of the litigation process and the degree of "downside risk", i.e., the long-term ramifications of an adverse judgment. These consider­ations are equally applicable to the settlement of disputes arising out of collective agreements; but there is one 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. The 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 profitability of the enterprise and the equitable resolution of disputes which occasionally arise. Like a success­ful marriage, a productive collective bargaining relationship depends upon the development of a spirit of compromise and co-operation. Regardless of the importance of any particular griev­ance, it will inevitably be only one of many (perhaps thousands) which the parties will be required to resolve during the currency of their relationship. It is in this context that the griev­ance procedure must be viewed. If either party obstinately adheres to an unreasonable position, on 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 spend needless hours discussing inconsequential or ill-founded griev­ances. Moreover, as a practical matter, a rigid insistence on one's "strict legal rights" is likely to provoke a response in kind, and yield only short term gains.

In Nick Bachiu, [1975] OLRB Rep. Dec. 919 the Board drew upon Vaca v. Sipes (1967) 386 U.S. 1971 to express its views:

12. An employee has no absolute night to have his grievance taken to arbitration. And a trade union, as an employee's exclusive bargaining agent, has the legal authority to settle on withdraw a grievance without an employee's consent. The labour relations policy supporting this legal conclusion was made express in the following excerpt taken from Vaca v. Sipes (1967) 386 U.S. 1971:

Though we accept the proposition that a union may not arbitrarily ignore a meritori­ous grievance or process it in perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement. In LMRA Section 203(d), 29 USC Section 173(d), Congress declared that "Final adjustment by a method agreed upon by the parties is.. .the desirable method for settlement of griev­ance disputes arising oven the application or interpretation of an existing collective-bargaining agreement." In providing for a grievance and arbitration procedure which gives the union discretion to supervise the grievance machinery and to invoke arbitra­tion, the employer and the union contemplate that each will endeavour in good faith to settle grievances short of arbitration. Through this settlement process, frivolous grievances are ended prior to the most costly and time-consuming step in the griev­ance procedures. Moreover, both sides are assured that similar complaints will be treated consistently, and major problem areas in the interpretation of the collective bargaining contract can be isolated and perhaps resolved. And finally, the settlement process furthers the interest of the union as a statutory agent and as coauthor of the bargaining agreement in representing the employees in the enforcement of that agree­ment. See Cox, Rights Under a Labor Agreement, 69 Harv. L Rev. 601(1956).

If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined, thus destroying the employer's confidence in the union's authority and returning the individual grievance to the vagaries of independent and unsystematic negotiation. Moreover, under such a rule, a significantly greater number of griev­ances would proceed to arbitration. This would greatly increase the cost of the griev­ance machinery and could so overburden the arbitration process as to prevent it from functioning successfully... It can well be doubted whether the parties to collective bargaining agreements would long continue to provide for detailed grievance and arbitra­tion procedures of the kind encouraged by LMRA Section 203(d), supra, if their power to settle the majority of grievances short of the costlier and more time-consuming steps was limited by a rule permitting the grievance unilaterally to invoke arbitration. Non do we see substantial danger to the interest of the individual employee if his statutory agent is given the contractual power honestly and in good faith to settle grievances short of arbitration. For these reasons, we conclude that a union does not breach its duty of fain representation, and thereby open up a suit by the employee for breach of contract, merely because it settled the grievance short of arbitration.

And in Catherine Syme, [1983] OLRB Rep. May 775, the Board said:

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 a 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.

75. While these cases largely address initial referrals to arbitration and there are some dis­tinctions which can be drawn between the different stages of the grievance and arbitration process, we find these passages speak authoritatively to a decision to settle compensation flowing from a workload complaint arbitration as well. The same concerns for sapping the vitality of the process, the development and maintenance of a viable relationship in which the adversarial interests of an employer and a union can be handled in a reasonable fashion, the importance of ensuring that the union can advocate the interests of employees in an effective manner, and the responsibility for administering union funds and making choices about priorities for limited resources are all valid and important considerations for a union at a later as well as an earlier point in the process and for workload complaints as well as grievances. As a result, we find that section 76 in itself contains no inherent duty on the part of the union to refer a compensation dispute back to a workload arbitra­tor on the request of a grievor.

76. It is in this context that we must consider the complainants' argument that the collective agreement and OPSEU's constitution created such a duty in the present case. Turning first to the collective agreement between OPSEU and the Council of Regents, all counsel pointed to different sections of the workload dispute procedure set out in Article 4 in support of their arguments with respect to the various rights and obligations of the Local, the College and the individual professors. It is not necessary to describe in detail those arguments. Suffice it to say that the settlement, or the referral of compensation difficulties back to the Workload Resolution Arbitrator is not specifically addressed by the language of Article 4, and to the extent that assistance on this point may be drawn from its provisions by inference, logic or analogy, the best that can be said for the complain­ants' position is that the results are ambiguous. For example, Article 4.02(5)(a) provides that where a matter is not resolved following a review by the Workload Monitoring Group, the profes­sor may forward the matter to the Workload Resolution Arbitrator. Although this was clearly intended to address the initial referral, it might suggest that the individual has some continuing car­riage rights. On the other hand, Article 4.02(4) provides that a decision on an individual workload assignment by a majority of the Workload Monitoring Group is binding on the College, the Local and the professor. Although again, this provision is clearly directed at a decision prior to the initial referral to an arbitrator, it might also suggest that where the Workload Monitoring Group has arrived even at an implementation decision, that decision is binding on the professor, thus nullify­ing any inference of individual carriage rights.

77. Similarly, the standard grievance procedure set out in Article 11 specifically provides an individual carriage right up to and including arbitration. Article 4 contains no such provision, an absence which thus seems more significant. On the other hand, Article 4.02(1) indicates that griev­ances arising with respect to Article 4 will be handled in accordance with Article 11, although arti­cles 4.01 and 4.02 which set out the dispute resolution mechanism are specifically excluded from this. It is possible to point to numerous examples like this in the language of Article 4, without obtaining any clear indication of the negotiating parties' intention. This is not surprising since the collective agreement is usually considered to be a document which spells out the rights and obliga­tions of the employer and the union, rather than those as between the union and individual employees.

78. Whether the collective agreement gives the grievors an absolute right to refer their dis­putes back to a workload resolution arbitrator was, of course, one of the subjects of Mr. Teplit­sky's report. It is not necessary for us to decide whether we agree with his determination in this regard, nor are we in the unenviable position of Mr. Teplitsky who had to make sense of the vari­ous subsections of Article 4 and reach a conclusion as to the respective rights of the grievors and the Local. There are two reasons for this. Firstly, the collective agreement is not a contract between the union and its members enforceable in and of itself through section 76. Although its provisions may have some implications for our assessment of the union's conduct, our task here is to decide not whether there was in fact a right under the collective agreement, but whether the union's interpretation that there was not was so untenable as to be arbitrary, discriminatory, or reflective of bad faith. Secondly, the Board's jurisprudence indicates that the issue before us is not whether the union was correct, for example, in its interpretation of the collective agreement, but whether that interpretation is one which could reasonably be taken in the circumstances. (See, for example, Smith & Stone (1982) Inc., [1984] OLRB Rep. Nov. 1609.)

79. Having heard from all three parties at great length on this subject (an advantage, we note in passing, that Mr. Teplitsky did not have) and having analyzed the collective agreement in considerable detail, we find that the Local's interpretation which allowed it to settle the compensa­tion arising from the Gorsky awards over the objection of the grievors was an eminently reason­able one. Indeed, there is considerable support for their view to be found in the collective agree­ment. In addition to those sub-articles referred to earlier, Articles 4.02(6)(a), 4.02(6)(b), 4.02(6)(c), 4.02(6)(d), 4.02(6)(g), 4.02(6)(i) and 4.02(6)(j) all appear to point to the essentially bilateral character of the Workload Resolution Arbitration proceedings, the identity of the parties as the Union and the College, and the pre-eminence of those parties in controlling the proceed­ings. Looking at the provisions as a whole, the Local's reading was a logical and sensible interpre­tation, and one consonant with the labour relations context.

80. However, the complainants also argue that OPSEU's constitution gave the workload grievors an absolute right to take the compensation dispute back to Mr. Gorsky. Although unlike the collective agreement, this document may in fact be a contract of sorts between members (see Astgen v. Smith 1969 CanLII 488 (ON CA), [1970] 1 O.R. 129, 7 D.L.R. (3d) 657), it is again not one directly enforceable through section 76. Rather, we must consider whether the constitution sheds some light on whether the Local's conduct was arbitrary, discriminatory or engendered by ill-will towards the workload grievors.

81. The complainants rely on Article 24.2 of the constitution which provides as follows:

24.2 The policy of the union is that no grievor will be denied representation at any time.

82. It is not clear to us that this article applies to the workload grievors at all. We have referred to them as "the workload grievors" for simplicity, to distinguish this group from the larger group of complainants, but in fact where Article 4.01 and 4.02 refer to individuals, they describe them as "teachers", and the dispute as a "complaint", an "assignment" or the "matter", and so forth. (This was prior to the most recent settlement in which the parties agreed that the term "pro­fessor" would replace "teacher".) In contrast, Article 11 of the collective agreement uses the usual grievor/grievance terminology. However, even assuming that the workload grievors are "grievors" within the meaning of Article 24.2 of the OPSEU constitution, it is difficult to construe "represen­tation" as conferring on the workload grievors an absolute right to refer the compensation dispute back to Mr. Gorsky.

83. The complainants take this view because they consider "representation" in Article 24.2, and union representation in general to consist of a sort of spokesperson role, unmediated by any differing interests or views. In other words, to them a union representative was essentially a mouthpiece, advocating whatever position a grievor wished, regardless of its merits or the interests of other members of the bargaining unit.

84. The Board has set out a different model in its jurisprudence which reflects a more com­plex view of union representation where the interests of the bargaining unit as a whole may from time to time be at odds with those of individual members. This approach was also well-expressed by the British Columbia Labour Board in Rayonier and L W.A., Local 1-217, [1975] 2 Can. LRBR 196:

While a grievance may originally be brought by one individual, it is not unusual for it to involve a conflict with other employees as well as with the employer. Occasionally, this is true even in the facts of a particular case, but more often it arises from the implications of the general inter­pretation of the agreement upon which the particular grievor is relying. By necessity, a collec­tive agreement speaks obliquely to many new and unforeseen problems arising during the course of its administration. Rather than relying on the arbitrator's interpretation of the vague language of the agreement drafted a long time ago, it is normally more sensible for the parties to settle that type of current problem by face-to-face discussions in the grievance procedure, with the participation of those individuals who are familiar with the objectives of the agreement and the need of the operation and are thus best able to improvise a satisfactory solution. Again, if the employees are to have the benefit of this process and of the willing participation of the employer in it, the law must allow the parties to make the settlement binding, rather than allow­ing a dissenting employee to finesse it by pressing his grievance to arbitration. As Archibald Cox put it: 'Allowing an individual to carry a claim to arbitration whenever he is dissatisfied with the adjustment worked out by the company and the union treats issues that arise in the administra­tion of a contract as if there were always a 'right' interpretation to be divined from the instru­ment. It discourages the kind of day-to-day co-operation between company and union which is normally the mark of sound industrial relations - a dynamic human relationship in which griev­ances are treated as problems to be solved and contract clauses serve as guideposts. Because management and employees are involved in continuing relationships, their disposition of griev­ances and the arbitrator's rulings may become a body of subordinate rules for the future conduct of the enterprise... When the interest of several groups conflict, or future needs run contrary to present desires, or when the individual's claim endangers group interests, the union's function is to resolve the competition by reaching an accommodation of striking a balance. The process is political. It involves a melange of power, numerical strength, mutual aid, reason, prejudice, and emotion. Limits must be placed on the authority of the group, but within the zone of fairness and rationality this method of self-government probably works better than the edicts of any out­side tribunal.' Cox, Law and the National Labour Policy, at pp. 83-88.

85. As a result a union is entitled to make difficult choices about competing interests, evalu­ate a variety of members' claims, consider the best interests of the bargaining unit as a whole and ensure that the dues of members are not squandered on futile or unmeritorious litigation. Union representation involves more than being an ad hoc advocate although that is often a critical facet of its role. It also includes protecting the interests of bargaining unit employees in a variety of long term, short-term, individual and collective ways.

86. In this context, we find the complainants' view that Article 24.2 on its face obligated the Local executive to refer the compensation dispute back to the arbitrator against their better judge­ment singularly unpersuasive. Some kind of obligation is contained in this article but "representa­tion" does not indicate much about the content of that obligation, and certainly nothing as specific as the right the complainants' claim.

87. We were given to understand by the parties that OPSEU has in the past interpreted this article to mean that grievances will be taken to arbitration at the request of the grievor, regardless of the merit of the grievance. However, there was no evidence before us that this interpretation of Article 24.2 had been applied to workload complaints or even to the implementation phase of grievances. There are valid distinctions which may be drawn between such complaints and the usual sort of grievance. The workload provisions in the collective agreement are complex and tech­nical and the parties have seen fit to develop an entirely new procedure to handle complaints under those provisions. This procedure does not parallel the arbitration procedure in a number of ways. For example, the Workload Monitoring Group is a standing body set up along the lines of a joint union management committee, in contrast to the ad hoc step meetings contemplated by the griev­ance procedure. Most tellingly, as we noted earlier, there is no provision in Article 4 like Article 11.05(h) which clearly provides individual carriage rights. Of course, there are some similarities between the two procedures as well. However, looking at the situation as a whole, we find that there are sufficient differences in both the form and purpose of the workload provisions and proce­dures that the Local's unwillingness to extend OPSEU's interpretation of Article 24.2 to workload complaints, and to the compensation stage of such complaints at that, was not arbitrary, discrimi­natory or suggestive of bad faith towards the complainants. Indeed, there is nothing to prevent the union from limiting the application of their policy under Article 24.2 or even changing it, so long as that change is not improperly motivated, arbitrary or applied in a discriminatory manner.

88. As a result, the Local's decision not to refer the compensation dispute back to Mr. Gor­sky was not improper in and of itself. However, it is possible to do the right thing for the wrong reasons, and we therefore must examine the grounds for the Local's decision. The evidence indi­cates that the executive officers were of the opinion that at least on the fifty minute hour issue, the workload grievors' position was erroneous, that the 1.3 hour payment was compensation for breaks not taken, rather than hours worked, and that the workload grievors were overreaching. In addition, they felt that the grievors had not raised the issue before the Workload Resolution Arbi­trator, that they were attempting to expand upon the litigation after the fact, and that they were not likely to be successful in any event before Mr. Gorsky.

89. It cannot be said on the evidence before us that the Local acted without regard to the complainants' views, or in so reckless and cavalier a fashion as to contravene section 76. On the contrary, by the time the Local reached agreement with the College in the summer of 1988, its offi­cers were fully apprised of the complainants' views and had given the matter a great deal of careful consideration. They ascertained the facts, solicited advice, discussed the matter at considerable length and reached an informed conclusion based on the merits of the workload grievors' claims in a manner that was entirely consistent with their obligations under section 76.

90. While these facts alone may suffice to meet the respondents' duty under section 76, we find it useful to say as well that in our view the Local's reasons for settling the compensation had considerable merit. Notes of the proceedings before Mr. Gorsky were placed before us, in addition to the awards themselves, and both witnesses and counsel took considerable pains to ensure that we were fully acquainted with the two outstanding compensation issues and the background to them. In light of all that evidence, we share the Local's view that the workload grievors had been fully compensated by the settlement, and that there was a degree of overreaching in their pursuit of the fifty minute hour and complementary functions issues.

91. The evidence before us also indicates that the two disputed issues were not raised in any distinguishable way before the Workload Resolution Arbitrator. We accept that when awards are implemented, compensation issues may arise which were not originally addressed in litigation, sim­ply because there was no need to do so until the outcome of the award was known. In this case, however, the two outstanding matters seemed to be several steps removed from the awards, arising (at least in the case of the fifty minute hour issue) from the settlement discussions as much as from the award.

92. It is a little more difficult to evaluate the Local's view that the Workload Resolution Arbitrator would not have awarded the compensation requested by the grievors in any event because there is no well-developed body of workload complaint jurisprudence against which the Local's assessment can be easily measured. In addition, there seem to be two aspects to this view:

firstly, that the arbitrator would not have awarded these items as part of the compensation at this point because they had not been requested earlier, and secondly, that he would not have awarded them in any event had they been specifically requested in the first round of hearings. In either case, however, the question is not whether it might have been possible to wring any more money from the awards, but whether the Local was arbitrary, discriminatory, or acting in bad faith when it declined to do so. In the circumstances set out above, we conclude that it was not. As the Board's jurisprudence indicates, a union is not required to pursue every claim to the limit regardless of its view of its merits. The excerpts set out above show that those merits may include not only the chances of success, but the union's view of the appropriateness or the "justness" of the claim. Moreover, that view is sufficiently well-founded here that it does not give rise to any inference of improper motivation.

93. The complainants also focused on the second Workload Monitoring Group meeting and the lack of notification to the grievors with respect to the College and the Local's joint communi­que to Mr. Gorsky as demonstrating bad faith. The former, they argue, was arranged in haste, the workload grievors were given no opportunity to appear and present their views, and the make-up of the group dictated the result in advance.

94. There is no doubt that the final Workload Monitoring Group meeting was something of a foregone conclusion. Given that the group was composed of management and union representa­tives and that the College and the Local had already reached agreement on the issue, the outcome was fairly predictable. However, there was no obligation on the part of the Local to provide the grievors with an opportunity to be heard at that point. The Workload Monitoring Group was a forum for union-management discussion and settlement, not an adjudicative tribunal. The evi­dence indicates that generally grievors attended only at the request of the Group, where its mem­bers felt this would be useful in discussing a particular workload complaint. In other words, there was no formal obligation to provide an opportunity for the workload grievors to be heard, and not inviting them to the meeting was not so unusual as to raise some concern on our part.

95. What the Local executive did have an obligation to do under section 76 was to ensure that it was aware of the grievors' point of view and to fairly consider it before making a decision. In this case, the grievors had voiced their opinions to Mr. Geldard and Mr. Fordyce and had set out their submissions on the two issues to Mr. Gorsky in great detail in a letter which was copied to the Workload Monitoring Group, including some members of the Local executive. As we noted ear­lier, we are satisfied that the Local was fully apprised of the grievors' views and considered them fairly before settling on the proposal with the College in the summer. If that settlement had been tainted, then the Workload Monitoring Group's final decision would not have saved it because it was so closely connected to the settlement. We do not think that the Local could have sheltered behind the collective agreement provisions that hold the Workload Monitoring Group's resolution of complaints to be final and binding if the settlement had been contrary to section 76. However, since there was nothing wrong with the settlement, the Workload Monitoring Group's resolution neither added nor took away from that settlement. It simply amounted to a more formal expres­sion of it, and in fact, there were some additional gains made by the Local with respect to curricu­lum review at that point.

96. On the matter of the joint communique, it might have been advisable for the Local to have sent it to the workload grievors more promptly than it did, if only to avoid fueling the com­plainants' view that there was a conspiracy against them. However, we do not find any obligation under section 76 to do so in these circumstances, where the grievors' approval was not necessary, and where the Local did keep them informed in a general way of events as they occurred. Of course, the complainants had received the Workload Monitoring Group resolution, and they knew of the joint communique, although they did not attempt to obtain it. It is a little difficult to avoid the conclusion that they were more concerned with tabulating what they considered to be the Local's misdeeds at this point than in actually obtaining the communique. We also have some understanding of Mr. Geldard's statement that the Local did not send them the communique because it did not want to receive "a pile of memos" from the complainants about the matter, at least until after it had received a response from Mr Gorsky. Every stage of the drama at this point seemed to bring forth the most vitriolic correspondence from the complainants. It is clear that the Local was becoming somewhat gun-shy at this point, more guarded in their conduct and unwilling to face another onslaught of accusations about their competence and character. This helps to explain their reluctance to provide much opportunity for the grievors to participate in events at this point.

97. The complainants were also of the view that the Local was obligated to pay its share of the cost of referring the dispute back to the Workload Resolution Arbitrator by Article 4.02(6)(j) which provides as follows:

4.02(6)(j) The Colleges and the Union shall each pay one-half of the remuneration and expenses of a WRA.

As a result, the complainants assert, Ms. Musson's memo to the effect that if the workload grievors made independent arrangements with Mr. Gorsky, they did so at their own expense was a violation of this provision and thus another indication of arbitrariness or bad faith.

98. We do not share this view. In the first place, Article 4.02(6)(j) is clearly directed at the usual apportionment of the costs of the Workload Resolution Arbitrator between the Local and College. It does not address an obligation on the part of the Local to the grievors. As a result, while it is possible that the Local would be liable to the College for its share of the costs of a subse­quent determination by Mr. Gorsky, a statement to the workload grievors that it would not pay for such proceedings if they were initiated without the Local's consent was not a violation of either the collective agreement, or of section 76. The former is an obligation to the College; the latter is an obligation toward the complainants and the one does not necessarily follow from the other. Sec­ondly, Mr. Gorsky was at that time resident in Manitoba, and a referral back to him had potential cost implications. It was quite legitimate for the Local to be concerned about members initiating arbitration proceedings without the consent of the Local, the cost for which the Local might well be liable to the College.

99. Ms. Musson indicated in her memo that if there were problems implementing the awards, the workload grievors should contact the Local. In other words, it is clear the Local was attempting to assert some control over the process. In our view the Local was entitled to monitor the use of union funds and the administration of the collective agreement. And although the com­plainants felt that this memo was the first salvo of the ensuing conflict, it is clear that some attempt to rein in the grievors was entirely predictable in light of the grievors' unilateral attempt to refer the compensation dispute back to arbitration, and the parties' differing views which was well-known to each other on the Local's role.

100. Counsel for the complainants also points to Ms. Musson's assurance to the workload grievors in the fall of 1988 as reflecting arbitrary conduct or bad faith on the part of the Local. That assurance was that if the grievors were not satisfied with either the result or the procedure of the subsequent referral to the Workload Monitoring Group, she would put the matter before Mr. Gor­sky. It was not suggested by Ms. Musson that either her subsequent letter to Mr. Gorsky enclosing the Workload Monitoring Group resolution and asking for direction in light of the grievors' dissat­isfaction, or the joint communique represented fulfilment of that assurance. Rather, she testified that in the fall of 1988, there was a growing realization amongst the Local executive members that they were not required to send the dispute on to Mr. Gorsky regardless of their own views of its merits. That realization culminated in Ms. Musson's discussion with Mr. Gorsky as to the identity of "the parties" to whom he had left the implementation of the awards. In other words, on further reflection and after soliciting advice from both Mr. Gorsky and their lawyers, they changed their minds.

101. The original assurance was not, of course, some kind of legally binding promise enforceable in and of itself under section 76. Neither do we find the Local's change in stance to be arbitrary, discriminatory or motivated by animosity toward the grievors. The issues that they were dealing with were complex, the answers were not obvious, and the Local's change was not so abrupt, artificial or ill-founded as to lead us to believe that it was capricious or reflected bad faith.

102. It seems apparent Ms. Musson's assurance was initially influenced by OPSEU's general approach to the carriage of grievances. However, the evidence indicates that the Local executive members had not systematically turned their minds to the problem of whether the Local was required to apply that approach with respect to compensation flowing from workload complaints until it became apparent that the Local and the grievors were so dramatically polarized on the out­standing matters. Indeed, we accept that the evolution of their thinking and discussion on this point was a gradual one, taking place over a period of several months. Looking at the evidence in its entirety, we find the Local's change of position to be free of improper considerations and based on reasonable grounds.

103. Although we have found that the union's conduct in this situation was reasonable, we do not fault Mr. Clancy's adoption of Mr. Teplitsky's report. Having appointed an independent adjudicator to conduct an inquiry on the matter, it was prudent for him then to adopt the results of that inquiry. (It should be noted that Mr. Teplitsky's mandate with respect to the workload com­plaints was to examine the technical issue of the workload grievors' rights; he was not asked to, nor did he make any findings about the propriety of the Local's conduct or the reasons for its decision.) Similarly, the Local's response to the Teplitsky report was quite appropriate. While the executive obviously disagreed with his finding on the workload complaints, they were prepared to accept the fact that they had lost on that issue, and proposed a method of assessing any differential between the settlement and what Mr. Gorsky might have awarded as compensation. This involved placing the settlement before him and giving the workload grievors an opportunity to make submissions. As noted earlier, the complaints were filed at this time and the complainants objected to us utiliz­ing the correspondence which followed in which this proposal and others were discussed. Suffice it to say that there was nothing in that correspondence which the complainants relied upon as show­ing a contravention of section 76.

104. Nor do we find that either the Teplitsky report or OPSEU and the Local's willingness to abide by it suggest that we should conclude that the Local's previous conduct was wrongful. As noted earlier, the terms of reference put to Mr. Teplitsky and the issues before us under section 76 are quite different, and it is not surprising that the results of our respective inquiries are not the same. In addition, the willingness of OPSEU and the Local to abide by the Teplitsky report reflects more about their respect for the independent inquiry process than it does about their views on its result.

105. The complainants also allege that the Local acted in bad faith in the sense that the pat­tern of their conduct as a whole in the workload complaints was motivated by the more general conflict between the Local and the complainants, or by a desire to punish them or attenuate their forces within the Local structure. Because of that background of conflict, we have scrutinized the activities of the Local more closely than we might otherwise have done, and have found no hint of punitiveness of vindictiveness on the part of the Local. Certainly the Local was exasperated by the difficulties they were having in maintaining some control of the grievance process, and to that extent their assertion of control over the workload complaints was not unrelated. However, we have found that it was entirely appropriate for them to wield some authority with respect to the workload complaints, and the manner in which they did so was responsible and careful. In these circumstances, we do not conclude that any of the steps taken by the Local were improperly moti­vated.

106. Mr. Gainwell indicated in his testimony that in his view, the Local and the employer were in collusion. One example he gave was the fact that the amounts paid to the grievors in December which were set out in the Workload Monitoring Group's final resolution must have been obtained from the College by the Local, as the Local had no way of otherwise knowing what those amounts were. This is not a very compelling proposition. After all, the Workload Monitoring Group included College representatives, and neither the resolution itself nor the information it contained suggested that there was less than an arm's length relationship between the Local and the College. An agreement or the exchange of information in and of itself is not evidence of collu­sion in these circumstances. Certainly it is both necessary and desirable that even such entrenched adversaries as a union and an employer agree from time to time; otherwise there would be few col­lective agreements. What is more pertinent is the content of that agreement, which in this case we have already found to be proper. Indeed, there was no indication in the evidence of anything underhanded on the part of the Local in this regard. We conclude that the respondents did not breach section 76 with respect to the complaint in Board File 0369-89-U.

107. We turn now to the Swan consent award which is the subject of Board File No. 0368-

89-U. It should be noted at this point that counsel for the complainants made it clear in final argu­ment that both the Swan award complaint and the bargaining proposals complaint were being pur­sued solely on the basis of bad faith, and not on the basis of arbitrariness or discrimination. How­ever, we have found it also useful from time to time to respond to the concerns the complainants addressed in their testimony before us.

108. The impugned paragraphs of the Swan award read as follows:

109. The parties agree that references in article II to "the union steward" mean either the steward elected in the work area of the gnievon or the chief steward. The College shall provide a copy of the grievance and will inform, in advance, the chief steward of all scheduled Step I and Step 2 grievances.

110. The parties recognized that it is not the business of the College to determine what union member(s) other than the grievor attend grievance hearings. However, the College does reserve the right to limit the union representatives who appear at hearings to the minimum number specified in article 11.

111. Consent of the Local union, the College and the gnievon is required to waive a Step 2 hearing.

112. Ms. Musson described to the Board the factors that entered into the Local's decision to sign this agreement. The executive considered the provisions of the OPSEU constitution, the col­lective agreement, and material provided in OPSEU training courses with respect to the structure and organization of OPSEU and the role of local stewards. Ms. Musson also conducted a tele­phone survey in which she spoke to persons at eighteen of the twenty-two community college aca­demic locals to ascertain each local's practices with respect to the role of stewards and the other matters dealt with in the Swan agreement. Finally, she discussed the matter with two of OPSEU's lawyers.

113. Ms. Musson testified that the purpose of the agreement expressed by the consent award was to resolve the problems described earlier with respect to the Local's knowledge and control of the grievance process. Paragraph 2 limits the union's steward in the grievance procedure to either the steward elected in the work area or the Chief Steward. Again, as noted earlier, this did not preclude a steward from another work area or a non-steward accompanying a grievor through the steps of the grievance procedure or speaking on his or her behalf in an unofficial capacity. In addi­tion, the College agreed to provide copies of grievances and notices of Step 1 and Step 2 grievance meetings so that the Local would have some source of information in this regard.

114. The complainants assert that in the past, persons who were not either the work area steward or the Chief Steward had officially represented grievors, and that this paragraph interfered with that practice continuing. We were not convinced that there had been such a consistent prac­tice in circumstances where we could infer that there was a c6nsensus within the Local membership to this effect. It was apparent that it had simply never been an issue before because there was not the same pattern of non-cooperation on the part of those acting as stewards in the past, particularly during the period when the Local executive was composed of some of the complainants.

115. In any event, even assuming that there was such an understanding, there was nothing to stop the Local from making changes in this regard when it became apparent that matters were get­ting out of hand. As we noted earlier, a union is entitled to monitor grievances under the collective agreement it has negotiated, for many reasons including its financial responsibilities to members, its credibility and effectiveness in the labour relationship, the obligations of union officials such as the Chief Steward to perform the duties required by their offices under the union's constitution, and so forth. The job of the union is to generally manage the union's affairs, and grievances are a crucial component of those affairs. In our view, it is ludicrous to suggest that the Local was not entitled to information about grievances or to have some control over who attended grievance meetings as its official representative. Although, as we have noted, the issue before us is different than that before Mr. Teplitsky, we find his comments useful in expressing our views on this point:

Thus, a gnievor is entitled, if he so chooses to be represented by the Union. However, the right to be represented does not include the right to choose by whom one is to be represented. If the gnievor wants union representation, he must take that union representation with certain implied conditions. First, the union chooses the person who appears on the gnievon's behalf. In making its choice the union may consider the grievor's preferences but the choice is the union's. This is essential because every grievance, albeit an individual one, carries with it implications for the bargaining unit as a whole. A union also has principles and ideals which cannot be departed from and which may conflict with what a particular grievor may prefer in the pursuit of his own self-interest as he perceives it. This dispute illustrates the intolerable problems which can arise if a grievor insists on his choice of steward, and, for example, the person chosen does not accept either the union's policies on its right to be informed fully at all stages of the grievance arbitra­tion procedure.

113. Of course, the effect of the consent award was to limit, for example, the activities of Mr. Grunwell as a sort of freelance steward. However, the award was clearly directed at the prob­lem the complainants had created, rather than the complainants themselves. The Local had an overwhelmingly legitimate interest in being involved in grievances, and its willingness to have non-stewards or non-work area stewards represent grievors in an unofficial capacity indicated that its response to the problem was not excessive in a way that would suggest bad faith.

114. The complainants were also of the view that paragraph 2 would allow the College to interfere with steward representation by manipulating the parameters of the various work areas. On the evidence before us, there was nothing to suggest even the remotest possibility that this might occur.

115. Paragraph 3 of the consent award appears to address a collective agreement provision which allows for a minimum of five persons to be released from work to attend arbitration hear­ings, among other things. The complainants' concern was that it could be used to limit their right to appear as a grievor's representative at hearing. Again, there was no indication that this had been a problem, either before or after the consent award, or that it was a factor in the Local's decision.

116. Paragraph 4 was inserted, according to Ms. Musson, to avoid the grievors waiving a Step 2 meeting for the purpose of precluding the involvement of the work area or Chief Steward. Since we have found that the Local has a legitimate interest in designating the appropriate steward and in having the grievance procedure properly followed, this paragraph does not offend section 76.

117. The complainants pointed to both Article 24.2 of the constitution and Article 11.05(h) of the collective agreement as indicating that the individual grievor is "supreme" (and thus able to designate who will act as his or her union steward for each grievance), and as an indication of the diminished role of the Local in a "special" union like OPSEU. We have set out Article 24.2 previ­ously and on its face, it suggests nothing which would differentiate OPSEU from other unions, most of whom have at least a statutory obligation to "represent" members. However, if it has been interpreted as requiring the union to take grievances to arbitration solely at the request of the grievor, that is a somewhat unusual proposition. In addition, Article 11.05(h) reads as follows:

It is understood that nothing contained in this Article shall prevent an employee from present­ing personally a grievance up to and including a Hearing by the Arbitration Board without refer­ence to any other person. However, a Union Steward may be present as an observer, commenc­ing at Step 1, if the steward so requests.

118. There is no doubt that Article 11.05(h) appears to provide grievors with an exceptional degree of independence with respect to the carriage of grievances. (As noted earlier, there is no similar provision in the workload complaint procedure). The complainants assert that these provi­sions set out the context within which the Local's conduct must be assessed.

119. We should say at the outset that there is nothing in the Swan award which conflicts with either Article 11.05(h) or Article 24.2. In addition, we are not prepared to read either of these pro­visions as transforming the entire labour relationship so that the grievance procedure becomes a proceeding between the individual and the employer, with the union as a "third party intruder" or a "interloper", as the complainants assert. In the first place, the right of the union steward is pre­served in Article 11.05(h), and the clause simply on its face stands for a much more limited proposition than that for which the complainants argue. The same can be said of Article 24.2, even as OPSEU has interpreted it. The fact that the parties have granted a grievor carriage rights in certain situations does not mean that the union is now excluded from the grievance process. Secondly, Article 11.05(h) is only one clause in a lengthy and sophisticated collective agreement, and we conclude that if the parties had meant to wholly recast their relationship in these terms, they would have done so in a less oblique fashion tharf this. Similarly, neither the vague wording of Article 24.2 nor its interpretation persuade us that the parties intended to rearrange their labour relations in such a profound manner.

120. It is difficult to avoid the conclusion that the complainants' philosophy owes as much to the fact that they are not aligned with those who presently hold office in the Local as it does to their oft-repeated assertions of principle. When the complainants or their allies lost power in the Local structure, it is evident that they developed a theory of labour relations which virtually elimi­nated the role of the Local executive and inflated their own rights as stewards, grievors or repre­sentatives. However, this is not a configuration which makes much sense in the labour relations context and it is not one supported by the constitution, the collective agreement, or any of the other evidence before us upon which the complainants relied. Having regard to that evidence and the overall labour relations between the union and the College, Article 11.05(h) and their interpre­tation of Article 24.2 are clearly the exceptions; we are not prepared to turn them into the rules. We therefore conclude that the respondents did not breach section 76 with respect to Board File 0369-89-U.

121. We turn now to the proposed changes to the collective agreement which were incorpo­rated into the new contract. The amendments proposed by the Local were as follows:

Article 11 motion by G. Fordyce/T. Geldand that the following be added to Article 11 after "union staff representative "..."or representative designated by the local union if requested by the employee, union local or the College".

CARRIED

Article 8, 11,14 motion by G. Fordyce/T. Geldand that where a Local action is required change 'union" to "local union" in Articles 8,11 and 14, to be consistent with Articles 4, 9, 10 and 13.

CARRIED

Mr. Gainwell conceded that the change from "union" to "local union" was an appropriate house­keeping measure and as a result, it was the first motion which was under attack by the complain­ants.

122. The proposals made by the provincial negotiating committee were slightly different, and the following was eventually agreed to by the parties:

Article 11

(a) 11.03

Step 1 - Change: ~'the Union Steward, if the Steward so requests" to "a Union Steward desig­nated by the Union Local, if the Union Local so requests".

Step 2 - Change: "the gnievon and the Union Steward" to "the gnievor and a Union Steward des­ignated by the Union Local".

• Change: "a Union staff representative" to "a representative designated by the Union Local".

123. The complainants were of the view that the Local's proposals reflected its continuing efforts to "insert itself' into the grievance procedure, that they represented an attempt to expand the Local's powers and that the provincial negotiating committee was not authorized by the provin­cial demand-setting meeting to either put the proposals at all, or put them in an amended form to the College. In addition, in their view the second amendment to Step 2 represented an attempt to preclude or supplant the involvement of a staff representative in Step 2 meetings, motivated at least in part because Vic Cooper had taken the complainants' part in one particular skirmish.

124. We have already addressed the concept of the Local as a third party and its role in mon­itoring grievances. On the subject of whether the provincial negotiating committee was properly "authorized" by the provincial demand-setting meeting, our attention was not brought to any arti­cle in the constitution which would suggest that the procedure followed was improper, or that some additional steps should have been taken. The closing enabling motion passed at the provincial demand-setting meeting gave the provincial bargaining committee the ability to deal with the Local 110 proposal, and there was no evidence to indicate that they were precluded from changing or augmenting the proposals. In light of the process by which proposals come to the provincial bar­gaining team, it would not surprise us if there was a certain amount of reorganization, sorting out and rationalization necessary before OPSEU's package of proposals could be put to the Council of Regents. There was no evidence before us of anything that would suggest that the process from the Local demand-setting meeting to the final provincial settlement was anything but an open, and democratic exercise in collective bargaining. We are also hard put to conclude that the provision was aimed at Mr. Cooper or his successors, given that he had also sided with the Local executive from time to time.

125. We therefore conclude that with respect to all three complaints, the respondents did not conduct themselves in an arbitrary or discriminatory fashion towards the complainants, nor were their actions motivated by bad faith. As a result, the respondents did not violate section 76.

126. Because of the kinds of accusations made by the complainants, we feel compelled to make it clear that not only did the respondents not breach section 76 at any time, but that both the members of the Local executive and the College acted with considerable restraint and patience throughout these events. In particular, because so many of the complainants' allegations were directed at Ms. Musson, we wish to say that the evidence before us indicates that she conducted herself in a thoughtful, fair-minded and professional manner in the face of extremely trying circum­stances.

127. These complaints are dismissed.