[1990] OLRB Rep. May 621
1518-89-U Professor Uday Singh, Complainant v. Laurentian University Faculty Association, Respondent
BEFORE: Nimal V. Dissanayake, Vice-Chair.
APPEARANCES: Uday Singh for the complainant; Howard Snow and Harriet McMorran for the respondent.
DECISION OF THE BOARD; May 25, 1990
The name of the respondent is amended to read: "Laurentian University Faculty Association".
The Board first convened as a three person panel to hear this complaint, which alleged violation of "sections 64 to 71 inclusive and section 80, in particular section 68". After the complainant's opening remarks, he agreed that the sole focus of his complaint was that the respondent had contravened section 68 by failing to seek judicial review of an arbitral award ("The O'Shea award"), wherein his discharge grievance was dismissed. Accordingly, the Board proceeded to hear this complaint with just the Vice-Chair sitting alone.
The complainant commenced employment with Laurentian University in September 1961 as a lecturer. At the time of his dismissal in 1988, he was a tenured Assistant Professor. On April 18, 1988 the respondent filed a grievance on behalf of the complainant alleging that the University had contravened Articles 1.22 and 2.41 of the collective agreement and seeking reinstatement with full compensation.
The grievance was not resolved through the grievance procedure and the respondent applied under section 45 of the Labour Relations Act for the appointment of an arbitrator. The Ministry appointed arbitrator O'Shea, who conducted hearings on September 21, 22 and November 2 and 3, 1988. The arbitrator's ultimate award, issued on November 15, 1988, dismissed the grievance.
On February 9, 1989 the complainant filed a complaint under section 89, inter alia. claiming in essence that the respondent had contravened section 68 of the Act in the manner it conducted the arbitration proceeding before Mr. O'Shea. In a decision dated April 24, 1989 (OLRB File No. 2414-88-U) the Board dismissed the complaint.
The complainant felt that the decision of arbitrator O'Shea was patently wrong. He urged the respondent to seek judicial review of that award. The respondent decided not to do so. This decision was communicated to the complainant by the following letter dated June 7, 1989:
In reply to your letter of April 5, 1989, the Faculty Association, after consultation with our legal representative, wish to advise you that we do not feel that there are grounds for Judicial Review.
It is the complainant's contention in this complaint that in refusing to apply for judicial review of the O'Shea award the respondent contravened section 68 of the Act.
Section 68 reads as follows:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
The complainant represented himself at the hearing. At the commencement of the hearing the Board explained, and the complainant appeared to agree, that the University's conduct in its dealings with the complainant including his dismissal and the respondent's conduct in handling his grievance challenging the discharge, were not before the Board in this complaint. Nevertheless, much of the evidence, oral and documentary, and submissions tendered by the complainant pertained to those issues. The employer's conduct was the subject of a grievance and an arbitrator duly appointed under the Act determined that grievance. The complainant's complaint alleging that the respondent contravened section 68 in the manner it dealt with his arbitration came before the Board and was also determined. Obviously, the complainant does not agree with the arbitrator's award or the Board's decision. However, this Board has no jurisdiction over those matters in the course of determining this complaint.
The sole issue here is whether the respondent acted in a manner that was arbitrary, discriminatory or in bad faith in refusing to apply for judicial review of the O'Shea award. Therefore, no purpose will be served by reviewing evidence that does not pertain to that narrow issue.
Quite understandably, the complainant did not articulate whether he was specifically alleging arbitrariness, discrimination or bad faith. All those elements of "unfair representation" were mentioned during the complainant's testimony. Several times the allegation was made that the legal counsel for the respondent conspired with the University and the arbitrator to defeat his grievance. At another point it was alleged that he would not have been treated in the manner he was if he was "a white man". However, these were bold allegations which were not substantiated by any evidence.
The only way to characterize the complainant's case is as follows. It is his position that the O'Shea award is so patently wrong, that it should have been obvious to the respondent that a successful application for judicial review could have been launched. Therefore, a decision not to proceed in the face of that must be arbitrary, discriminatory or in bad faith.
In his request dated April 5th that the O'Shea award be judicially reviewed, the grievor stated as follows:
In response to your letter dated March 15, 1989, to my lawyer Mr. Charles Roach, I wish to state that a review of Mr. O'Shea's decision is warranted on several grounds, four among them being the following:
The hearing leading to the decision was conducted in my absence, which therefore had to be and was partial.
The decision ignores violations by the University of the collective agreement (specifically of Article 2.41 para. 6).
The decision does not even mention monies due to me from the University, for example that under terms of Ontario's Bill 85, besides others, and
The decision itself is full of lies, for example the last sentence of its page 17 is a deliberate lie.
The chances of such a review's success in court are obvious. To any impartial judge the basic truth of my stand can be proved in a matter of minutes. Of course LUFA knows all that.
At the hearing the complainant relied on these four grounds as obvious reasons for a successful judicial review. The respondent took the position that these grounds are unfounded and not likely to be upheld by the courts. The evidence is that it is the usual practice of the respondent to agree to judicially review an arbitration award only if it is satisfied that there are legal grounds for doing so. The evidence indicates that the Chairperson of the Joint Grievance Committee met with the President of the respondent association and the respondent's legal advisor and discussed possible grounds for judicial review of the O'Shea award, including the grounds that had been spelled out in the complainant's letter of April 5th. It was their conclusion that no legal grounds existed to successfully launch an application to the courts.
Can it be said that in the particular circumstances the refusal by the respondent to seek judicial review of the O'Shea award constituted arbitrariness, discrimination or bad faith? In my view, the answer is clearly no. In Chrysler Canada Limited, [1982] OLRB Rep. Oct. 1417 at 1434 this Board has commented as follows regarding a trade union's obligation when an unsuccessful grievor requests that the unfavourable award be judicially reviewed:
The fact that Mr. Dwyer demanded his own lawyer does not mean that the union acted arbitrarily when it refused to accede to that demand. Nor given the contractual and legislative requirement that the arbitration process be final and binding, should this Board readily infer that section 68 creates an obligation to seek judicial review or that a trade union acts improperly when it declines to do so. There may be exceptional circumstances where an arbitrator's award is so perverse and pervasive in effect, that regardless of the expense, a union might be considered to be acting arbitrarily if it did not seek review. But that would be a highly exceptional case - unlike the present one. Here there is no basis for the argument that the union acted arbitrarily by declining to finance or participate in a review of the Hinnegan award, or by declining to provide Mr. Dwyer with his own lawyer.
- In the case of the complainant, his job is at stake. The Board has held that in that situation a union must demonstrate some objective justification for its actions. (Dufferin Aggregates, [1982] OLRB Rep. Jan. 35). However, in determining whether there was objective justification the Board does not substitute its own view for the union's by simply asking whether the Board would have reached the same decision as the union. The test was stated in Dufferin Aggregates, (supra), as follows:
The appropriate standard to be adopted by this Board is not unlike that expressed by the Court in the judicial review of the decisions of arbitrators: the Board should ask not whether the decision is right or wrong or whether it agrees with it - rather it should ask whether it is a decision that could reasonably be made in all of the circumstances, even if the Board might itself be inclined to disagree with it. Used in this sense "reasonable" must mean by the rational application of relevant factors, after considering and balancing all legitimate interests and without regard to extraneous factors.
Applying that standard to the case at hand, I have no difficulty concluding that the respondent's decision that it had no legal grounds to seek judicial review is a reasonable one. Therefore, it did not act improperly when it refused to pursue litigation which it reasonably believed was doomed to failure.
In this particular case the Board not only feels that the respondent's decision was not unreasonable, but is inclined to agree with it. The first ground relied on by the complainant for challenging the arbitrator's award is not likely to receive any weight from a court. The evidence is very clear that the complainant demanded that he be allowed to make his own presentation of the grievance to the arbitrator. The arbitrator ruled that the respondent union had carriage of the grievance under the collective agreement and that the complainant was not entitled to make independent representations. In the face of this ruling, the complainant refused to participate in the proceedings and left. Therefore, the respondent had to decide whether to withdraw the grievance or to proceed without the benefit of the complainant's instructions or evidence. It chose the latter option. Therefore, the complainant's absence at the hearing was a result of his own decision to leave because the ruling was not in his favour. Since the respondent did not withdraw the grievance, the arbitrator had no choice but to proceed with the hearing.
The complainant's allegation that the arbitration award "ignores violations by the University of the collective agreement (specifically of Article 2.41 para. 16)" is nothing but a statement of disagreement with the arbitrator's interpretation of Article 2.41. The arbitrator did not ignore that article. On the contrary, with detailed reasoning, he has found that there was no violation of the article in question.
It is also not surprising that the arbitrator did not deal with the issue of whether the University owed any monies to the complainant. Assuming that the complainant was in fact entitled to the money under the legislation as claimed, that was not properly an issue before the arbitrator. The sole issue before him was whether or not the complainant was discharged for just cause. The collateral issue of pay entitlement does not properly arise in determining that issue.
As for the claim that the arbitrator's award is "full of lies", it may be that the complainant disagrees with some of the conclusions of fact reached by the arbitrator. Indeed, it is even possible that some of those facts are in fact inaccurate. Nevertheless, the fact remains that the arbitrator based his conclusions on the evidence before him. The complainant pointed out several instances where witnesses called by the University allegedly gave inaccurate testimony. If the complainant had been at the hearing he would have had the opportunity to properly instruct the respondent's counsel to call evidence to contradict the University's evidence. As it was, the University's evidence went in uncontradicted and unchallenged. The arbitrator can hardly be blamed for accepting the evidence in that situation.
The complainant testified that in the past on two occasions he had been invited to attend meetings of the Joint Grievance Committee, when his grievances were being discussed. He argued that the failure to invite him to the meeting at which his request that the O'Shea award be reviewed was discussed, was evidence of bad faith. The respondent's evidence was that it was not the usual practice to invite grievors to attend these meetings. Even assuming that the usual practice was to allow grievors to attend grievance meetings, in the particular circumstances of this case the failure to permit the complainant to attend the meeting does not indicate any impropriety. In his interim award dated September 27, 1988, Arbitrator commented, based on his observation of the complainant's demeanor, that he had a propensity to be "disruptive and argumentative". The complainant demonstrated that same propensity at the hearing before this Board. This Board has held that not permitting a grievor, who is prone to antagonistic behaviour to attend a grievance meeting is not a violation even where the union's general practice is to invite grievors to such meetings. (North York General Hospital, [1984] OLRB Rep. Feb. 286). For the same reason, a violation of section 68 is not indicated by the respondent's failure to invite the complainant to the grievance meeting in question.
On the basis of the evidence before the Board, it cannot conclude that any of the representatives of the respondent, who were involved in the decision not to seek review of the O'Shea award acted in a manner that was arbitrary, discriminatory or in bad faith. The individuals concerned discussed the possible grounds for a successful review, including the ones relied on by the complainant. It had the benefit of a lawyer's advice. There is no basis on which to conclude that the decision not to seek judicial review was taken for any other reason than their honest belief that no legal grounds existed to challenge the arbitrator's award.
For the foregoing reasons, this complaint is dismissed.