Leila Yateman v. Canadian Union of Public Employees Local 1974, 1993 CanLII 7850

[1993] OLRB Rep. August 777

2650-90-U Leila Yateman, Complainant v. Canadian Union of Public Employees Local 1974 ("the Union"), Respondent v. Kingston General Hospital ("the Hospital"), Intervener

BEFORE: R. O. MacDo well, Alternate Chair.

APPEARANCES: Leila Yateman appearing on her own behalf; S. R. Hennessy, Linda Dumbleton, John Bastos, Louie Rodriguez and Sue Cupido-Lambert for the respondent; M. Jane Smale for the intervener.

DECISION OF THE BOARD; August 16, 1993

I

1. This is a complaint under section 89 [now 91] of the Labour Relations Act, alleging that the respondent trade union has contravened section 68 [now 69] of the Act. That section reads as follows:

2. 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.

3. Ms. Yateman contends that her trade union breached its section 69 duty when the Union settled a grievance she had filed against her employer rather than carrying the matter for­ward to arbitration. That grievance protests Ms. Yateman's involuntary transfer from "full-time" to "part-time" status which resulted in a change in benefits and take-home pay. Ms. Yateman maintains that her grievance should not have been settled and that the letter confirming the settlement is "discriminatory" because it indicates that the Union is prepared to condone her transfer, while reserving its right to challenge the transfer of someone else. That letter reads as follows:

Please be advised that CUPE Local 1974 will not be proceeding to arbitration with the above grievance.

This action is taken on a without prejudice basis and the Union is reserving its rights to pursue grievances on future matters of a similar nature

We appreciate the specific merits of this case and, like the Hospital, hope that this temporary period of part-time employment will result in an improved situation for Ms. Yateman.

The Union, however, does not endorses [sic] temporary assignments to part-time employment as an accepted method or [sic] problem-solving."

3. The Union replies that its decision not to proceed to arbitration was reasonable in all the circumstances, and, in any event, did not contravene section 69 of the Act. In the Union's sub­mission, the letter to which Ms. Yateman objects is "standard form", intended to keep the Union's options open should similar problems arise in the future. (There was no concrete allegation of dif­ferential treatment or evidence that other employees in similar circumstances had in fact been treated differently.)

4. It is important to note that this complaint is against the Union, not the Hospital. The Hospital is not bound by, and therefore cannot contravene, section 69 of the Act. Nevertheless, the Hospital appears in this matter as an "intervener" because it might be affected by any remedy directing that a grievance, long settled, must now be taken to arbitration. For practical purposes, though, the Hospital's position is the same as that of the Union: the settlement was a reasonable accommodation in all the circumstances, and could not be considered "arbitrary", "discriminatory undertaken "in bad faith".

5. This matter came on for hearing before me, in Kingston, on August 4, 1993. The Union and the employer both appeared with counsel and their witnesses. The complainant appeared on her own.

6. In the course of the hearing, I made several rulings, and after hearing the parties' evi­dence and representations, I indicated that I would reserve judgement on the merits of the case, and issue a written decision.

7. This decision, therefore, will deal with both the merits of Ms. Yateman's complaint against her union, and certain collateral rulings that were made at the opening of the hearing. However, because Ms. Yateman was not represented by counsel, and clearly does not understand the process she invoked by filing this complaint, it may be useful if I sketch in the general frame­work within which her rights must be determined. I will then turn to the initial rulings I was required to make and my ultimate decision on the merits of her complaint.

II

8. The Labour Relations Act is the main statute governing collective bargaining in Ontario. The Act is intended to promote orderly collective bargaining, and there are a number of sections regulating the way in which a union is selected or removed, the bargaining process, the contents of collective agreements, and the timing of strikes and lock-outs. The Act defines the rights and obligations of employers, unions and employees, and provides a mechanism for com­plaint if someone alleges that his/her rights have been violated.

9. The Labour Relations Act is not interpreted, administered or enforced by the Courts. The Act is administered by an independent tribunal called the Ontario Labour Relations Board. In some respects, however, the Board proceeds in the same way as a Court - it holds hearings, wit­nesses give evidence under oath, and Board decisions are legally binding. These proceedings are less formal than those of a Court, but legal rights are in question, and, for that reason, parties appearing before the Board are usually represented by a lawyer. Parties are not required to have legal representation, of course; but that is usually a wise thing to do, because it will be necessary to understand the Board's Rules, how a hearing works and the legal principles (or precedents) appli­cable to the proceeding. The Board does not and cannot advise parties in proceedings before it how those parties can best advance their positions or resist the case being put by the other side.

10. The Board has a field staff which includes a team of labour relations officers. These offi­cers are sometimes appointed to meet with the parties to attempt to facilitate settlement. This is a mediation function - something like marriage counselling - in which the officer meets with the par­ties to see if there can be a settlement of the problem without the requirement of a formal hearing. But if the case is not settled through this informal process, the next step may be a hearing.

11. If a hearing does take place, it is usually up to the party alleging a breach of the Act to bring forward his/her witnesses, and prove that a breach of the law has occurred. Unlike the Human Rights Commission, the Board does not investigate the complaint or help one side or the other to prepare its case. As in the civil Courts, that is the responsibility of the parties to a pro­ceeding.

12. It is important to understand that the Labour Relations Act is not the only source of rights or obligations in the workplace. There are quite a number of statutes which address particu­lar employment problems; e.g. the Worker Compensation Act, the Human Rights Code, the Employment Standards Act (minimum wages, hours of work, etc.), the Occupational Health and Safety Act, the Pay Equity Act, and, the Federal Unemployment Insurance Act. These statutes all cover different aspects of the employment relationship, and have their own enforcement mecha­nisms.

13. In a unionized setting, most of the employees' rights, and most of the rules in the work­place, are not set out in legislation at all. They are to be found in the collective agreement which the union and employer re-negotiate every year or two. It is the collective agreement which defines such things as: wage rates, working conditions, job classifications, promotions, demotions, trans­fers, discharge, seniority rights, filling job vacancies, lay-off procedures, and so on.

14. When interpreting the collective agreement, the general rule is this: management has the right to run its business in the manner it considers most efficient, unless the union or an unhappy employee can point to some specific restriction in the collective agreement. This general approach is usually referred to as the "reserved rights of management" and, in addition, is usually formalized in a "management rights clause" which is typically found near the beginning of the col­lective agreement. Thus, if the collective agreement provides a specific formula (seniority, for example) for promotions, transfers or lay-offs, that is the formula which the employer and employ­ees must follow. In the absence of some restriction in the collective agreement, an employer is entitled to promote, demote, transfer or assign work in the manner it considers most consistent with productivity and business needs.

15. If an employee believes that the employer has not complied with the terms of the collec­tive agreement, s/he can file a grievance in the way described in the "grievance procedure" found in the collective agreement itself. But that grievance would not be successful unless the unhappy employee is actually able to prove that the employer has breached the terms of the agreement. And, of course, the collective agreement may not cover the employee's particular concern, or may not provide a remedy.

16. What is the relationship between the employee rights (if any) set out in a collective agreement and the "duty of fair representation" prescribed by section 69 of the Act? This relation­ship is explained in the Guide to the Labour Relations Act which was published by the Board some years ago. The relevant portion of the Guide reads:

UNION'S DUTY OF FAIR REPRESENTATION

What is the nature of the union's duty?

The Labour Relations Act imposes a duty upon a trade union to fairly represent all of the employees in any bargaining unit for which it has bargaining rights, whether or not the employ­ees are union members. It is a violation of the Act for a union to represent employees in a man­ner that is arbitrary, discriminatory or in bad faith. If, for example, an employee's complaint concerns the alleged mishandling of a grievance~ a breach of that duty will not be established if the employee simply shows that the union could have, or even should have, treated the griev­ance differently. It is not whether the union was right or wrong that is the concern of the Board, but whether the union's actions were motivated by bad faith, whether it was discriminating against the employee or whether it acted in an arbitrary manner. For example, the Board has found that a union acts arbitrarily when it completely ignores a grievance or where it treats a matter in an indifferent or perfunctory fashion. However, it is not arbitrary for a union to put its mind to the complaint or grievance and honestly decide not to take the complaint or grievance further.

May a trade union refuse to process a grievance or to refer it to arbitration?

A trade union is entitled to make decisions that may adversely affect some employees in the bar­gaining unit as long as it is not acting on improper motives, and honestly considers the matter.

A trade union is entitled to settle or refuse to process a grievance provided it does not act in a manner that is arbitrary, discriminatory or in bad faith. Indeed, collective agreements often con­tain provisions requiring the parties to meet and endeavour to settle complaints or grievances short of arbitration. A union is not required to process a grievance or refer it to arbitration sim­ply because an employee feels that he or she has a 'good' case or 'wants his or her day in court'. The union is entitled to consider many factors, including the merits of the grievance, the relative chances of success and the interests of the bargaining unit as a whole, in determining how it will deal with an employee's grievance or complaint. Union officials may make honest mistakes or exercise poor judgement, but these occurrences may not in themselves be a violation of the Labour Relations Act.

Does the Board resolve the merits of an employee's grievance when the union refuses to refer it to arbitration?

No. While the merits of the grievance may be relevant in assessing the trade union's conduct, the Board will not resolve the merits of the grievance. This is a matter for a board of arbitration or arbitrator established in accordance with the terms of the collective agreement under the Labour Relations Act. However, when the union is found to have breached the Act, the Board may refer a grievance to arbitration.

17. These passages from the Guide are merely a summary, in layperson's terms, of the prin­ciples which have been developed over the years from countless cases that have been brought to the Board for adjudication. It is unnecessary, at this stage, to review those cases here. It suffices to mention just one of them. In Catherine Syme, [1983] OLRB Rep. May 775, the Board described the relationship between the grievance procedure and the duty of fair representation this way:

18. Section 68 [now 69] 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 union 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, 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 judgement of a lawyer.

19. 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 (as in the present case) the parties seek to amicably resolve their differences. As in the ordinary civil litigation process, it may be in the interests of both parties to seek an "out of court" settlement which is more modest than either of them might have obtained had they been entirely successful before an adjudicator. A settlement is a com­promise solution which avoids the costs and uncertainties of litigation, and where it appears that the claim is without legal foundation or cannot be proved it makes little sense to proceed fur­ther.

20. These considerations are equally applicable to the settlement of disputes arising out of col­lective agreements. But there is an 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. That 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 ongoing relationship and the equitable resolution of disputes which occasionally arise. Like a successful marriage, a productive bargaining relationship depends upon the development of a spirit of cooperation and compromise. Regardless of the arguable importance of any partic­ular grievance, it will inevitably be only one of many which the parties will be required to resolve during the currency of their relationship; and, if either party obstinately adheres to an unreasonable position, or 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 are required to spend needless hours discussing inconsequential or unfounded grievances. As a practical matter, a rigid insistence on one's strict legal rights" or an insistence on proceeding to arbitration with doubtful claims is likely to provoke a response in kind, and yield only short term gains. 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 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.

21. The Board held that a union is not required to carry forward a grievance, simply because an employee is unhappy or demands that the union do so. A union is entitled to consider whether an employee's grievance is one which is covered by the collective agreement and whether the grievance has merit. A union is not obliged to spend substantial amounts of the members' money on cases which are trivial, or on cases which are unlikely to be successful, or because a member "demands his day in court". Unions are also limited in what they can do by what the col­lective agreement provides, the strength of the evidence in support of the employee's position, whether grievance-arbitration will successfully provide a remedy for the problem, and what, in all the circumstances, "makes labour relations sense". And if the agreement itself is inadequate in some way, that is a matter which has to be dealt with at the bargaining table.

22. In determining whether there has been a breach of section 69 in the processing of an employee grievance, the Board recognizes that union affairs are conducted in most cases by layper­sons, who may not have the skills or training of a lawyer. As the Board said in Ford Motor Company, [1973] OLRB Rep. Oct. 519:

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 norms of the industrial community and the measures and solutions that have gained acceptance within that community.

Nevertheless, the union officials must honestly turn their minds to the merits of the grievance, must honestly assess the available evidence, and must take care not to act on the basis of irrelevant factors or principles. But honest mistakes or errors of judgement, however regrettable, do not amount to a breach of the law. As the Board observed in ITE Industries, [1980] OLRB Rep. July 1001:

It is clear that in order to establish a breach of section [68], 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.

Similarly, in Dufferin Aggregates, [1982] OLRB Rep. Jan. 35, the Board observed:

The Board must obviously use great care in assessing what is and what is not objective justifica­tion for a union's decision, particularly a decision relating to choices as to the allocation of goods in conditions of scarcity. In my view it would be clearly inappropriate for the Board to substitute its own view for the union's by simply asking itself whether it would have acted differ­ently. To do that is to substitute one subjective standard for another, and to consider the issue of objective justification. 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.

20. I do not think it is useful to further burden this decision with quotes from previous Board cases. Obviously, each case must be considered on its own merits, having regard to the problem which gave rise to the employee grievance, the terms of the collective agreement allegedly violated, and whether, in all the circumstances, the union's handling of the grievance could be said to be "arbitrary", "discriminatory", or "in bad faith".

21. But it is necessary to set out something of the history of this particular case, because that is linked to the rulings I was called upon to make at the opening of the hearing.

[Paragraphs 22 to 66 omitted. Editor]

67. On the basis of the evidence before me, I am unable to conclude that there is anything "arbitrary" or "discriminatory" in the way in which the Union represented the complainant, nor is there any evidence whatsoever of "bad faith". On the contrary, the Union acted in the utmost good faith. The Union considered the complainant's situation, weighed the facts and evidence as it understood them, and ultimately decided that the grievance should not be litigated because it was neither likely to succeed nor likely to result in any positive benefit to the complainant. The part-time position was not desirable from the complainant's perspective; however, it would preserve her employment, as well as the opportunity to establish that - despite contrary indications - she was able to attend work regularly and perform the duties of a clerk. Given the situation the Union faced, I cannot find that it acted contrary to section 69 of the Labour Relations Act.

68. Nor is there anything illegal or unusual in the Union's letter of November 27, 1991 informing the complainant of its decision. The letter contains standard "without prejudice" lan­guage and confirms that the Union did consider the special circumstances of Ms. Yateman's case. There is no evidence that anyone similarly situated has been or would be treated differently. There is no "discrimination" on the Union's part, no "bad faith", and nothing which could be considered "arbitrary" as that term is used in section 69 of the Labour Relations Act.

69. For the foregoing reasons, the complaint against her trade union is dismissed.