[1992] OLRB Rep. June 708
0237-92-U The Former RNA'S of Mount Sinai Hospital, Complainant v. Service Employees International Union, Local 204, Respondent
BEFORE: S. Liang, Vice-Chair.
DECISION OF THE BOARD; June 15, 1992
This is a complaint under section 91 of the Labour Relations Act. In this complaint, a group of Registered Nursing Assistants (referred to in this decision as "the RNA's") represented by the respondent, the Service Employees International Union, Local 204 (referred to in this decision as "the union"), complain that they have been misled and improperly represented by the union. The RNA's state that the union did not make them fully aware of all of the consequences of withdrawing from a policy grievance, and signing a release. In particular, they complain that the union failed to tell them that several days after their signing of a release, the union would settle the grievance on behalf of the remaining RNA's, for greater compensation.
On the consent of all parties, Mount Sinai Hospital has been removed as a respondent to the complaint, but given status to participate in the proceedings.
This complaint is based on section 69 of the Act, which states:
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.
Valda Lee and Gloria Bernard testified on behalf of the group of RNA's, and Brad Philp, a business agent, on behalf of the union. It was agreed between the parties that the Board would accept Ms. Bernard's and Ms. Lee's evidence as going to the complaints of all the members of the group.
The complaint is based on events which took place after Mount Sinai Hospital decided to lay off all the RNA's working for the hospital. The union was advised of this lay-off, which included other employees in addition to the RNA's, on February 6, 1992. In all, 27 full-time and 25 part-time RNA's received notices of lay-off on this date. The lay-off took effect on April 3, 1992. On February 14, 1992, the union filed a policy grievance on behalf of the employees. Under this grievance, among other things, the union requested reinstatement with full compensation for the employees. The grievance is based essentially on an allegation that the hospital failed to give proper notice and an opportunity for discussion of its decision. The union also filed a complaint with the Pay Equity Commission with respect to the hospital's decision to lay off all its RNA's.
On March 30, a meeting was held with the RNA group, and representatives from the hospital and the union. In this meeting, the hospital representative, Sally Lewis, explained to the RNA's that they had two options. If they wished to receive immediately the severance pay to which they were entitled under the Employment Standards Act, they would be asked to sign a release. It was explained to the group that the consequence of signing the release would be that the employee had withdrawn her claim under the grievance. However, if an RNA chose not to sign the release and chose to continue with the grievance, she would not get the severance pay immediately, but have to wait the outcome of the grievance. It was explained that all RNA's had the right to receive severance pay, but that the decision over whether or not to sign the release would affect the timing of the payment of the severance pay. Ms. Lewis also explained that in the hospital's opinion, the grievance would not succeed in reinstating the RNA's.
During this meeting, the employees were handed a letter signed by Brad Philp (who was also in attendance), stating as follows:
The Union wishes everyone to know that anyone signing this release will no longer have any right to argue that they should be reinstated to their job at Mount Sinai but will be entitled to receive their severance payment immediately.
Those not signing the release will not be entitled to receive their severance payment at this time but they will continue to have the right to argue before an arbitration hearing scheduled for April 9th that their termination was improper and they should be reinstated with compensation for any loss of wages or benefits. If the grievance is unsuccessful and an employees is not reinstated, then such an employee would be entitled at that time to receive the severance payment now being paid to those who are signing the release.
While the first hearing date is scheduled for April 9th, it is uncertain when a decision will be made as to whether employees who do not sign the release are to be reinstated or not.
If you require any further information concerning this matter, please contact the Union office.
The text of the above letter was drafted by the lawyer for the union. The terms of the release referred to during this meeting were approved by the lawyers for the hospital and the union. Mr. Philp stated that he wanted to give the RNA's the letter of March 30 because he felt that the release would not be clear to them, and he wanted an explanation in laypersons' language of the consequences of signing the release.
After the meeting with the hospital, Brad Philp held a separate meeting with the RNA's. Among other things, he stated in this meeting that despite the hospital's opinion that the grievance would not succeed, the union intended to go ahead with the grievance. He also confirmed that the first day for the arbitration hearing was scheduled for April 9. In response to questions, he stated that it was possible that the grievance may take 18 months to conclude (one of the witnesses stated that she heard Mr. Philp say it could take 18 months to two years). One of the employees stated that there was a rumour that the hospital was offering a cash settlement. Mr. Philps stated that he had not heard that, but if it was true, the union would take a look at it. Nothing else was said or asked about the possibilities of settlement.
Between March 30 and April 3, 28 RNA's signed the release in the hospital's personnel office. There was no contact between the RNA's and the union on these issues between the meeting of March 30 and the signing of the release by individual RNA's. The form of this release is as follows:
RELEASE
Re Notice of Layoff to R.N.A. 's
The undersigned hereby acknowledges receipt of the appropriate severance pay under Section 40a(lc) of the Employment Standards Act and proper notice under Section 40. The undersigned has elected to accept such severance pay and waives any right of recall under the provisions of the applicable Collective Agreement. In consideration of the payment of such severance pay, the undersigned hereby abandons any remedy, including reinstatement, that may otherwise have been appropriate under an alleged "Policy Grievance" filed on my behalf February 14, 1992 by Service Employees International Union, Local 204 or any other grievance that may have been or will be filed by me or on my behalf and arising out of my notice of layoff on or about February 6, 1992.
Date
Date Mount Sinai Hospital
Date Service Employees International
Union, Local 204
Sometime after March 30, Mr. Philp was informed of a meeting to be held between the hospital and the union on April 6. This meeting was arranged between the lawyers for the hospital and the union. The lawyers for both sides were present at this meeting, along with representatives of the hospital and union. At this meeting, a settlement was reached in which the hospital agreed to compensate the, remaining grievors for the wages lost during a period of 45 calendar days, in addition to their severance pay. The settlement was without prejudice to the union's complaint under the Pay Equity Act.
Upon hearing of the terms of the settlement, the RNA's who had signed releases prior to the settlement meeting became very upset. A few phoned Mr. Philp. Valda Lee and Mr. Philp both testified about a conversation between them over the telephone on the issue. They have conflicting versions of the conversation, but it is clear that Ms. Lee was angry with Mr. Philp and felt that he had misled the RNA's, and made that known to him. Ms. Lee states that he was rude to her during this telephone conversation and at one point, threatened to sue her. This is denied by Mr. Philp. On April 22, this complaint was filed with the Board.
Joanne Amatuzio spoke on behalf of the group. She states that the RNA's feel they were not made aware by the union of all of the options. At the time they signed the release, they were not aware that a few days later, the union would enter into a settlement which provided the group of RNA's remaining in the grievance with monetary compensation on top of severance pay. The group feels that the union should have told them there might have been a cash settlement. Ms. Amatuzio stated that the RNA's have no complaint as to the settlement itself, but feels they should have been told it was an option. Their understanding of the grievance was essentially that it was about reinstatement. If the grievance won, the RNA's would be reinstated. If the grievance lost, they would not be reinstated; however, they would still get severance pay. The RNA's look for an apology from Mr. Philp and the union, and payment equal to the settlement given to the other RNA's.
Counsel for the union, Ms. Trachuk, states that the evidence before the Board does not support a conclusion that the union acted in bad faith, or was arbitrary or discriminatory in the way it handled this issue. Mr. Philp testified that up until the meeting of April 6, he did not know of or expect there to be any settlement of the grievance. In fact, Ms. Trachuk submits, it is very likely that the grievance settled precisely because so many people indicated they were unwilling to participate in it, by their signing of the releases. She states that the documents given to the employees, the letter and the release, make it clear to the RNA's that there is a monetary aspect to the grievance, i.e. that the claim under the grievance included reinstatement with back pay and benefits. Also, Ms. Bernard stated in evidence that it was her understanding that a possible outcome of the grievance was that the RNA's would be reinstated with pay and then laid off again once the hospital had given proper notice. Thus, the RNA's could not say that they did not or could not have known that there was a monetary element to the grievance. Further, even if there was confusion amongst the employees on this, it was not as the result of any conduct by the union in violation of section 69.
Ms. Trachuk also stated that there was nothing objectionable in the results of the settlement meeting. At that point, the union understood there to be 18 people remaining in the grievance, and negotiated the settlement on that basis.
Further, she points out that, in fact, the union in no way encouraged any R.N.A. to sign the release. Instead, the evidence was that the hospital stated its opinion that the grievance would fail, while Mr. Philp made it clear to the group that the union would continue to fight the layoffs through the grievance. Mr. Philp testified that he thought he had succeeded in discouraging the group from signing the release, and he was not pleased to find that so many of them had decided to abandon the grievance. He stated that he only found out at the meeting of April 6, from the hospital, exactly who had decided to sign a release. Ms. Trachuk states that the union cannot be held responsible if employees chose to believe the hospital's view of the merits of the grievance, instead of the union's.
Decision of the Board
The decision I have to make in this case is whether the union violated the Labour Relations Act when it failed to tell the complainants before they signed the releases, that a few days later, there would or might be a settlement giving the remaining RNA's more monetary compensation.
As set out above, section 69 of the Labour Relations Act is quite specific in the kind of conduct that it prohibits. It states that a union shall not be arbitrary, discriminatory, nor shall it act in bad faith in its representation of employees. What do the words of section 69 mean? In Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, the Board stated:
Section 68 [now section 691 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.
The concepts of "bad faith" and "discrimination" are relatively easy to understand. A union acts in bad faith or is discriminatory when its actions towards an employee are motivated by animosity, prejudice or spite. In this case, the complaint is that the RNA's were left completely in the dark about what might happen, and were misled into signing a release which resulted in disadvantage to them. Although they cannot know for sure, the RNA's question whether the union knew as of March 30, that there would very shortly be a settlement of the grievances, with additional monetary compensation.
I might view this as a case of bad faith or discrimination if I could conclude that there was some deliberate deception or withholding of information on the part of the union, motivated by ill-will or prejudice. However, Mr. Philp testified, and I accept his evidence, that as of March 30, he had no reason to think that there would be any settlement of the grievance. He states that he was not feeling very optimistic about any settlement of the grievance at all. As of March 30, he did not know that there was to be a meeting to discuss settlement on April 6. Further, I do not have any evidence that would lead me to conclude that Mr. Philp bears ill-will or prejudice towards the RNA's. There is no doubt that heated words were exchanged between Mr. Philp and Ms. Lee after April 6; however, I do not conclude from this that his actions towards the RNA's before April 6 were motivated by ill-will towards the group, or that he discriminated against the group.
If the union did not act in bad faith and did not discriminate against the RNA's, were its actions nevertheless "arbitrary"? In a previous decision, I. T.E. Industries Ltd., [1980] OLRB Rep. July 1001, the Board has discussed the standard of behavior required from a union so as not to be "arbitrary":
…..While the Legislature undoubtedly sought to protect the employee from an abuse of the union's authority, I do not think it was intended that every miscalculation, honest mistake, or error in judgment would constitute a breach of public statute. The standard to which a union must adhere was described in Ford Motor Company Limited, [1973] OLRB Rep. Oct. 519 as follows (at paragraph 40):
"40. In deciding whether a union has violated the Act the standards to be applied are important. We recognize that union affairs are conducted for the most part by laymen. In some situations there are experienced full time officials of a trade union who conduct the union affairs; in other situations, the union affairs are conducted by employees in their spare time, while in yet other situations employees may be given a limited amount of paid time by their employers to engage in trade union matters. This Board does not decide cases on the basis of whether a mistake may have been made or whether there was negligence, nor is the standard based on what this Board might have done in a particular situation after having the leisure and time to reflect upon the merits. Rather, the standard must consider the persons who are performing the collective bargaining functions, the forms of the industrial community and the measures and solutions that have gained acceptance within that community; see Fisher v. Pemberton et al, 8 D.L.R. (3d) at p. 546".
It is clear that in order to establish a breach of section 60, a complainant must do more than demonstrate an honest mistake or even negligence. The union must have committed a "flagrant error” consistent with a "non caring attitude", or have acted in a manner that is "implausible" or "so reckless as to be unworthy of protection". In other words, the trade union's conduct must be so unreasonable, capricious, or grossly negligent, that the Board can conclude that the union simply did not give sufficient consideration to the individual employee's concerns. Honest mistakes or innocent misunderstandings are clearly beyond these parameters and do not attract liability.
It is clear, then, that a union does not violate the Act simply because it has been careless, neglectful or made an error in judgment, unless the carelessness or error is as a result of a complete failure to put its mind to the problem. The Act does not require the union to justify every decision or action to the satisfaction of the Board, but does require the union to show that it considered the problem and fairly and honestly dealt with it.
On the evidence, I conclude that the union did consider the issue it was faced with, and tried to deal with the matter fairly and honestly. The union filed a grievance on behalf of the group of RNA's. As of March 30, it had no reason to think that the grievance would be settled. The hospital was prepared to pay immediate severance pay to the RNA's, but any RNA wishing to receive severance pay immediately would have to sign a release and withdraw from the grievance. A release was agreed to between the lawyers for the hospital and for the union. Then, the union had an additional letter drafted, dated March 30, which it hoped would explain the purpose of the release in more easily understood language. During the meeting of March 30, Mr. Philp did not encourage anyone to sign the release, but stated that the union had the intention of continuing with the grievance.
I see the letter of March 30, and the meeting that Mr. Philp held with the RNA's, as an honest attempt to deal with the issues facing the RNA's at that time. Unfortunately, the one area he did not cover either in the letter or in the meeting, was the possibility that the hospital may agree to settle the grievances with an additional payment to the RNA's. I consider this an oversight on the part of the union. I accept that it is possible, as it is argued, that the hospital's willingness to settle the grievances less than a week later came about only because a large group of RNA's had decided to withdraw from the grievance. However, in any grievance process, there is always a possibility of settlement, and settlements involving some compensation in exchange for withdrawal of a grievance are not uncommon. Although as of March 30, Mr. Philp had no reason to think that this grievance would settle, he would also know that this was always a possibility. The fact that one of the RNA's at the meeting of March 30 raised the rumour of an additional cash offer from the hospital shows how monetary settlements are commonly discussed.
Thus, I conclude that the union would have been wiser to have mentioned the possibility, however remote it seemed on March 30, that the grievance might settle for monetary compensation. The way the issue was put to the RNA's left them thinking that the only alternatives available were immediate payment of severance pay and withdrawal from the grievance, or a potentially lengthy grievance process. However, because I accept that the union had no reason to believe that there would be a settlement until April 6, I also conclude that the union's failure to mention this possibility was an honest oversight.
In the circumstances, I can understand the frustrations of this group of RNA's. Lacking any information as to what the union knew or should have known on March 30, it is not surprising that the RNA's felt that they had been treated unfairly once they learned of the settlement that was made on April 6. However, after hearing the evidence of both the RNA's and the union, I find that the union did not act in bad faith, nor was it discriminatory or arbitrary in its conduct and advice. Accordingly, this complaint is dismissed.