[1990] OLRB Rep. April 423
2828-88-U Rhonda Deneau, Complainant v. Glass, Molders, Pottery, Plastics & Allied Workers International Union, Local #49, Respondent v. Multi-Fittings, Intervener
BEFORE: Ken Pet ryshen, Vice-Chair.
APPEARANCES: Andrew Camman and Rhonda Deneau for the complainant; Edward C. Witthames and Denis Brewin for the respondent; A. P. Tarasuk, L. Pickering and C. Richman for the intervener.
DECISION OF THE BOARD; April 6, 1990
The name of the respondent is amended to read: "Glass, Molders, Pottery, Plastics & Allied Workers International Union, Local #49".
This is a complaint under section 89 of the Labour Relations Act in which Ms. Deneau
alleges that the Glass, Molders, Pottery, Plastics and Allied Workers International Union, Local
#49 (hereinafter referred to as "Local 49") has contravened section 68 of the Act.
When this matter first came on for hearing on August 19, 1989, counsel for the intervener employer, Multi-Fittings, argued that the Board did not have jurisdiction in the circumstances of this case to award a remedy that would have any impact on Multi-Fittings. Very briefly, this position was based on the following circumstances. Ms. Deneau's discharge grievance was scheduled to be arbitrated on October 9, 1987. Local 49 and Multi-Fittings settled the grievance on that day after appearing before a sole arbitrator. The parties requested the arbitrator to incorporate the terms of the settlement into an award. The arbitrator complied with this request and issued the award on November 13, 1987. Generally, Ms. Deneau alleges that the failure of Local 49 to properly communicate the terms of the settlement to her constitutes a contravention of section 68. Given the broad remedial request initially made by the complainant, Multi-Fittings took the position that the arbitration award precluded the Board from issuing any remedy that would affect it and, in asserting this position, relied on the Divisional Court decision in Re Windsor Western Hospital Centre Inc. and Mordowanec et al, (1987), 1986 CanLII 2635 (ON HCJ), 56 O.R. (2d) 297. Local 49 supported Multi-Fittings' position while Ms. Deneau opposed it. After entertaining submissions and after recessing to consider the matter, the Board advised the parties that it would reserve its decision on the point and would proceed to hear the merits of the complaint. After certain continuation dates were fixed on agreement of the parties, the matter was adjourned on August 19, 1989.
When the complaint next came on for hearing, counsel for Ms. Deneau at the outset advised the Board and the parties that Ms. Deneau was no longer seeking a remedy that would affect Multi-Fittings. More specifically, counsel indicated that Ms. Deneau no longer sought resnstatement or an arbitration of her discharge and only requested an order for damages against Local 49. With this announcement, Multi-Fittings and its counsel elected not to participate in the matter any further and left the hearing. Although the representative for Local 49 requested that the Board still decide the issue raised by Multi-Fittings, the Board finds it unnecessary to do so in these circumstances.
Ms. Deneau testified in support of the complaint, as did two other employees of Multi-Fittings. Local 49 called Denis Brewin, the plant chairperson, to give evidence. Mr. Witthames, Local 49's representative at the Board hearing and the individual who represented Local 49 at the arbitration proceeding, did not testify. In determining the facts, the Board has carefully reviewed the evidence of the witnesses and the parties' submissions.
Ms. Deneau's employment with Multi-Fittings began in August 1985. She is thirty-five years old, married with three children, and she left school after grade 10. Ms. Deneau was employed by Multi-Fittings as a machine operator and her last day of work was November 9, 1986. Approximately 2½ weeks prior to November 9, she sustained a work-related injury to her arm which she reported to the plant nurse and doctor. Ms. Deneau attempted to continue working but was unable to work beyond November 9 due to her injury. Up until November 1986, Ms. Deneau had a good work record and was absent for only three days for medical reasons.
Ms. Deneau saw her family doctor as well as two specialists in order to obtain treatment for her arm. She was unhappy with the approach of the first specialist who appeared to her to be of little assistance, particularly when he suggested that she seek other employment. In early 1987, Ms. Deneau saw another specialist who recommended that she initially try therapy, then cortisone and finally surgery, if necessary. In June 1987, Ms. Deneau discovered she was pregnant and was advised to stop the treatment for her injury. At this time, she was advised by her specialist that a date would be set for surgery after she delivered her baby.
In February 1987, Ms. Deneau received a letter from Multi-Fittings advising her that her employment was terminated since she could no longer do the job. She filed a grievance challenging the discharge and an arbitration hearing before a sole arbitrator was scheduled for October 9, 1987. When by early September she had not yet been contacted by Local 49 about her arbitration, Ms. Deneau contacted Jack Erskine, a union representative, about the matter. This led to the setting up of a pre-arbitration meeting between Ms. Deneau and Mr. Witthames on September 26, 1987.
The arbitration proceeding on October 9,1987 began with the representatives of both sides making opening statements to the arbitrator. After the opening statements and before any evidence was called, the representatives of the parties and the arbitrator left the hearing room. The representatives were engaged in settlement discussions and eventually reached a settlement in the early afternoon of October 9. During the settlement discussions, Mr. Witthames returned to discuss certain matters with Ms. Deneau. On the first such occasion, he asked her whether she was covered for medical benefits. The evidence concerning what was discussed on the second occasion is very sketchy. Ms. Deneau and Mr. Brewin have little recollection of what was said in this discussion. Mr. Alexander testified that he did not hear all of the discussion but he understood that Mr. Witthames came to ask Ms. Deneau about "some sort of agreement" Mr. Alexander testified he understood that if Ms. Deneau was unable to attend at work by a certain time only because of her work-related injury, her discharge would be arbitrated in August 1988. It is unclear from the evidence whether the second discussion occurred at a time when the settlement discussions had been completed and whether the purpose of the discussion was to determine if Ms. Denean agreed to the terms of the settlement.
The parties did not execute minutes of settlement. The hearing reconvened and the parties conveyed to the arbitrator the terms of the settlement and requested that they be incorporated in an award. The arbitrator then advised the parties that she would issue an award and went over the terms that would be included in the award. At this point, the proceedings terminated. The substance of the award issued by the arbitrator on November 13, 1987 in connection with the Deneau arbitration proceeding is as follows:
AWARD
A hearing in this matter was convened in London, Ontario on October 9, 1987. In the course of the hearing, I was advised that the parties had agreed to adjourn the matter on the following terms:
the Grievor agrees to present herself for work on or before July 5, 1988;
if the Grievor fails to present herself for work on or before July 5th, the grievance will be withdrawn;
if the Grievor presents herself for work before July 5th and the Company accepts her as being fit to return to work but she is again discharged before July 5th, then, if the Union so requests, the grievance will be arbitrated in accordance with the provisions set out in paragraph 6 herein;
if the Grievor presents herself for work on or before July 5th and the Company accepts her as being fit to return to work and she is not subsequently discharged before July 5th, the grievance will be considered to be resolved;
if the Grievor presents herself for work on or before July 5th and the Company refuses to allow her to return to work, then, if the Union so requests, the grievance will be arbitrated in accordance with the provisions set out in paragraph 6 herein;
the arbitration hearing will take place before this Arbitrator on August 2, 1988. The only issue to be determined at the arbitration hearing is whether the Grievor was fit to return to work as of July 5,1988. If the Arbitrator finds that the Grievor was fit to return to work as of July 5th, the Grievor will be reinstated with or without compensation. If the Arbitrator finds that the Grievor was not fit to return to work as of July 5th, the grievance will be dismissed;
the Grievor will be entitled to have her life insurance coverage reinstated forthwith. She will be entitled to no other benefit coverage under Article 31 of the collective agreement; and
the Union will assume the costs of the arbitration hearing of October 9, 1987, i.e. the fees and disbursements incurred by the Arbitrator.
This agreement has the same force and effect as if it were an award of an Arbitrator.
I will remain seized of this matter until the grievance is resolved between the parties in accordance with the terms set out above.
In reviewing the merits of the grievance, Local 49 determined that the circumstances required it to attempt to gain time. Ms. Deneau was not fit for work by October 9,1987 and, given that she required surgery and would not be able to have the operation for some time due to her pregnancy, it was not certain when she would be fit for work. In Local 49's view, the settlement achieved its objective of giving Ms. Deneau more time to become fit for work. Ms. Deneau does not take issue with the substance of the settlement. Her complaint is that she was not adequately advised on October 9, 1987 or subsequently about the terms of the settlement, particularly the significance of the July 5 date, and her obligations under the settlement. Ms. Deneau claims that she was never advised that she was required to present herself for work on or before July 5, 1988 and that her failure to do so would result in her grievance being withdrawn. Ms. Deneau did not report for work on or before July 5, 1988, with the result that her grievance was withdrawn.
Ms. Deneau testified that Mr. Witthames explained the settlement to her in the presence of Mr. Alexander and Mr. Brewin for approximately five to ten minutes as they were on their way out to the parking lot after the arbitration proceeding had concluded. She stated that what she understood from this explanation was that she had to return to work by July 5, 1988 and that if she did not return to work by that time because of her work-related injury, there would be an arbitration held on August 2, 1988 to deal with her discharge grievance. Ms. !Deneau did not testify as to what Mr. Witthames precisely said at this time. Although her recollection was not the best concerning what occurred at the arbitration proceeding, she strongly asserted that she was not told that she had to present herself at work on or before July 5 and that her failure to do so would lead to the withdrawal of her grievance. Ms. Deneau testified that if the arbitrator reconvened the hearing, she was not present. She stated that after the arbitrator left with the representatives of the parties just after the hearing commenced, she never saw the arbitrator again and was not present when the arbitrator disclosed to the parties what the award would contain. Ms. Deneau testified that she never went back down to the hearing room after she had left it. Ms. Deneau stated that she had lunch on October 9 with Mr. Alexander and Mr. Brewin after the arbitration hearing and, although the settlement terms were discussed, nothing was said which altered her understanding of what Mr. Witthames told her. Ms. Deneau was not provided with a copy of the arbitration award until after July 5, 1988.
As noted earlier, Ms. Deneau's specialist would not fix a date for her surgery until after her child was born. Shortly after the birth on December 9,1987, she contacted her specialist and June 1988 was fixed for her surgery. Ms. Deneau stated that she had her name placed on a cancellation list in order to ensure that the operation would be done earlier if possible. Ms. Deneau advised Mr. Brewin of the date of her surgery and had some other conversations with him directly and other contacts via Ms. Coody prior to July 5, 1988. She testified that she advised Mr. Brewin that she would be unable to return to work by July 5, 1988 and that he responded by saying that she did not have to worry since she had the August 2 arbitration date. She stated that at no time did Mr. Brewin advise her that she must present herself at Multi-Fittings on or before July 5. Near the end of July 1988, Ms. Deneau contacted Mr. Erskine and asked if Mr. Witthames would be contacting her soon in order to prepare for the August 2nd arbitration. As a result of this contact she was eventually provided with a copy of the arbitration award and she testified that the first time she became aware of the significance of the July 5, 1988 date was when she read the award. Ms. Deneau was shown a copy of the award while testifying and stated that she could clearly understand from reading the first and second points that the settlement required her to present herself for work no later than July 5. She stated that she would have reported for work before July 5 if she had known of this requirement. She also stated that she would never agree to the terms of the settlement relating to the July 5 date given that she was unaware of when the surgery would be performed. Ms. Deneau was not fit for work until the end of October 1988.
As noted earlier, Mr. Alexander is a union steward and he was present at the arbitration hearing as an observer. He was served a summons by the complainant and it was quite clear that he was not comfortable with the role of testifying for the complainant against Local 49. Mr. Alexander stated that he did not understand that the settlement required Ms. Deneau to present herself at work by July 5. Mr. Alexander also indicated that he and Ms. Deneau were not present if and when the arbitrator reconvened the hearing.
As plant chairperson, Mr. Brewin is involved in processing grievances and he attends arbitration hearings. Mr. Brewin stated that he would handle a grievance during the initial stages and then the matter would be "out of his hands" once it was referred to arbitration. Mr. Brewin acknowledged that he would receive a copy of an arbitration award but that grievors usually do not. He indicated in his evidence that Ms. Deneau did attend when the arbitrator reconvened the hearing and disclosed what would be set out in the award. Although present at the arbitration, Mr. Brewin was not directly involved in the settlement discussions. His understanding of what was agreed to by the parties is based on what the arbitrator and Mr. Witthames said. Mr. Brewin stated that he understood that the settlement required Ms. Deneau to return to work or to attempt to return to work by July 5. Mr. Brewin did have some conversations with Ms. Deneau subsequent to October 9, 1987 but he does not recall her telling him the precise date of her surgery. In his conversations with Ms. Deneau, Mr. Brewin did not specifically tell her to report for work by July 5 since he thought she understood this. Mr. Brewin agreed in cross-examination that the settlement was risky given that the surgery date was unknown. He also agreed that it was unreasonable to believe that Ms. Deneau would be fit to report to work on July 5 if her surgery was in June.
Section 68 of the Labour Relations Act provides as follows:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
Counsel for Ms. Deneau argued that Local 49 acted arbitrarily in representing Ms. Deneau with respect to her discharge from Multi-Fittings. As noted earlier, the complainant does not base her attack on the substantive features of the settlement. However, counsel argues that, irrespective of how good a settlement is, a trade union fails in its duty to fairly represent an employee when it does not communicate or poorly communicates important aspects of a settlement. In this instance, it is argued that Local 49 did not properly advise Ms. Deneau of the significance of the July 5 date with the result that her grievance was withdrawn. Such a failure in circumstances such as these, it is argued, constitutes a breach of section 68 of the Act which entitles Ms. Deneau to damages for loss of an opportunity. Local 49's submissions were brief and, in essence, were to the effect that it had done all it could for Ms. Deneau.
Local 49 was involved in this instance in representing an employee discharged by her employer. The Board has often noted that a trade union s conduct will be closely scrutinized by the Board where it is alleged that it has contravened its fair representation duty towards a discharged employee. Although the jurisprudence concerning the content of the duty of fair representation is extensive, the Board finds it unnecessary to refer to that jurisprudence in addressing the alleged contravention in this case. We agree with counsel for the complainant that the failure of a trade union to advise an employee of settlement terms which in turn causes the employee to fail to comply with the settlement so as to lead to the withdrawal of a discharge grievance can constitute arbitrary conduct within the meaning of section 68.
On the evidence before it, the Board accepts counsel's assertion that Ms. Deneau was determined to regain her employment with Multi-Fittings and that she would take any reasonable step to ensure that her objective was met. She had a good record with the company, liked her job and she undoubtedly felt that her discharge as a result of a work-related injury was unfair. The Board is satisfied that Ms. Deneau did not understand the significance of those terms of the settlement relating to the July 5 date. In particular, she did not understand that the settlement of October 9, 1987 required her to present herself for work by July 5, 1988. We accept her evidence to the effect that if she had been aware of such a requirement she would have attempted to comply with it. Whether her misunderstanding of the settlement can be attributed to Local 49 is a more difficult question. The parties did not settle Ms. Deneau's grievance by executing minutes of settlement signed by Ms. Deneau. Ms. Deneau did not receive a copy of the arbitrator's award from Local 49. In other words, Ms. Deneau was never presented with the written terms of the settlement prior to July 5, 1988. Although there is conflicting evidence on the point, the Board is satisfied that Ms. Deneau was not present when the arbitrator reconvened the hearing and reviewed the terms of the settlement. The Board believes Mr. Brewin when he stated that the arbitrator reconvened the hearing, but it does not prefer his recollection to that of Ms. Deneau and Mr. Alexander concerning the matter of whether Ms. Deneau was present at the relevant time. The Board is left to determine what Mr. Witthames said to Ms. Deneau. The clarity of the evidence with respect to this issue left a lot to be desired. Mr. Brewin was the only witness called by Local 49 to give evidence. But Mr. Brewin was not the person who was responsible for representing Ms. Deneau at the arbitration hearing. He did not participate in the settlement discussions with Multi-Fittings and it appears he was present at the arbitration hearing simply as an observer. His evidence concerning his understanding of the settlement terms, particularly the significance of the July 5 date, is not entirely consistent with the settlement terms. Given the nature of the evidence called by the complainant, the evidentiary onus shifted to the respondent. For the reasons stated above, Mr. Brew-in's evidence did not satisfy Local 49's evidentiary onus. Since Mr. Witthames did not testify, the Board does not have the benefit of his version of what he said to Ms. Deneau about the settlement of October 9,1987. It may be the case that Mr. Witthames advised Ms. Deneau of all the settlement terms in such a way that a reasonable employee would be expected to understand them. However, the Board cannot reach such a conclusion in the absence of evidence from Mr. Witthames. In the circumstances of this case, the Board can only conclude that Local 49 has not satisfied its evidentiary onus. The Board is satisfied that Local 49 failed to properly communicate the terms of the October 9, 1987 settlement to Ms. Deneau and that such conduct constitutes arbitrary conduct within the meaning of section 68 of the Act.
Subsequent to October 9,1987, Ms. Deneau viewed Mr. Brewin as the Local 49 official to whom she should report any new developments. In their conversations which occurred between January and July, 1987, Mr. Brewin contributed to Ms. Deneau's misunderstanding of the settlement terms even though he had a copy of the arbitration award. By telling Ms. Deneau not to worry about the surgery date since there was the August 2 arbitration date, Mr. Brewin contributed to her misunderstanding of the significance of the July 5, 1988 date.
Counsel for Ms. Deneau argues that Ms. Deneau is entitled to damages for loss of opportunity. The Board has recognized that damages can be awarded for the loss of an opportunity in appropriate circumstances (see Angelo Ritrovato, [1986] OLRB Rep. Oct. 1401). In determining whether such damages are appropriate in a particular case, the Board must determine whether there has been a loss of an opportunity as a result of the contravention of the Act. Counsel for Ms. Deneau argued that the respondent's contravention of section 68 resulted in Ms. Deneau losing the opportunity to have her discharge grievance arbitrated and the opportunity to attempt to become fit for work before July 5, 1988.
The above submissions must be considered in the context of the terms of the October 9, 1987 settlement, which have not been challenged, as well as Ms. Deneau's physical fitness during the relevant period. In effect, the settlement required that Ms. Deneau must be fit for work no later than July 5, 1988. It provided that the only issue at arbitration would be whether Ms. Deneau was fit to return to work as of July 5, 1988. The settlement specifically provided that the grievance would be dismissed if the arbitrator found that Ms. Deneau was not fit to return to work on or before July 5, 1988. Ms. Deneau was not fit to return to her job at Multi-Fittings until the end of October 1988. In these circumstances, the Board cannot conclude that, standing alone, there is any monetary value flowing to Ms. Deneau as a result of her losing the opportunity to have her discharge arbitrated. What she lost in this respect is of no value since what she lost was merely the opportunity to lose at arbitration. The dismissal of the grievance by the arbitrator was highly likely given Ms. Deneau's physical condition as of July 5, 1988 and the narrow issue to be arbitrated.
Did Ms. Deneau lose the opportunity to attempt to become fit for work by July 5, 1988 as a result of Local 49's contravention of section 68 of the Act? Since Ms. Deneau was unaware of the significance of the July 5 date on October 9, 1987, the Board is satisfied that she did lose the opportunity to attempt to become fit for work by July 5, 1988. The more significant question is whether the loss of this opportunity is of any value to her. It appears clear that without the surgery Ms. Deneau would have been unable to return to work at Multi-Fittings. The Board can only speculate as to whether Ms. Deneau could have done anything more to obtain an earlier surgery date. The parties agreed that the Board would remain seized concerning the quantum of damages.
Accordingly, this complaint is allowed. The parties will have the opportunity to resolve between themselves the quantum of damages, if any, owing to Ms. Deneau. The Board hereby appoints a Labour Relations Officer to assist the parties in this endeavour. If the parties are unable to settle the quantum of damages, if any, owing to Ms. Deneau, the Board will schedule a hearing to deal with the issue upon request.