[1994] OLRB Rep. June 627
2339-93-U Mirza Alam, Brian Ames, Mahmood Ansari, Mohd Aslam, Bruce Boulton, Robert Campbell, Ashton Caspersz, Jana Cibulka, Ed Foden, Arthur Gleghorn, Nikolas Ilkos, Joe Karol, Steve Kirilovic, Anthony Korsman, Shu-Tak Kwan, Fred La Roche, Mahendar Makim, Carolyn Oaks, Raj Pun, Vince Risi, Phil Russell, Danny Samson, Frank Sindelar, Hank Teeuwissen, Stan Trakalo, Bill Tyndall and Michael Wong, Applicants v. Power Workers' Union – CUPE Local 1000, Responding Party v. Ontario Hydro, Intervenor
BEFORE: R. O. MacDowell, Alternate Chair.
APPEARANCES: H. Kopyto for the applicants; Chris Dassios and Dan Heffernan for the responding party; David Akande and Kern Whyte for the intervenor.
DECISION OF THE BOARD; June 28, 1994
I
The name of the responding party is amended to read: "Power Workers' Union - CUPE Local 1000".
This is a complaint under section 91 of the Labour Relations Act. The complainants contend that the respondent union has contravened section 69 of the Act. That section 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 complainants assert that the union breached its section 69 duty, when the union decided not to take their grievance to arbitration.
Section 69 concerns the way in which a trade union is required to represent the employees for whom it is the bargaining agent. Section 69 imposes no obligation upon an employer. Nor can an employer contravene section 69. Nevertheless, Ontario Hydro is an "intervenor" in this proceeding, because it may be affected by the remedy which the complainants seek.
A hearing in this matter was held in Toronto, on March 24, 1994. The purpose of that hearing was to receive the parties' representations on what the union and Ontario Hydro described as a "preliminary issue": whether the Board should exercise its discretion to inquire into this complaint, having regard to its timing, the remedy requested, and the decision in an earlier Board proceeding arising from the same circumstances (Board File No. 3400-92-U, decision released December 10, 1993).
In order to understand what this complaint is about and why the union and Hydro object to proceeding, it is necessary to sketch in some background.
Most of this background is not in dispute.
II
The 27 complainants are employees (or former employees) of Ontario Hydro. They are (or were) part of a bargaining unit that encompasses many thousands of employees across Ontario. Their terms and conditions of employment are prescribed in a negotiated collective agreement.
In early 1990, Hydro had 11 job openings for a position described as "Design Draftsperson, Electrical Grade 64". These job vacancies were posted so that employees interested in promotion or transfer could make application. There were 79 such applicants. The 27 complainants were among them. However, the complainants were not among the 11 employees eventually selected to fill these positions.
The vacancies in question were considered to be "supervisory positions". The filling of "supervisory positions" is governed by article 10 of the collective agreement:
In filling vacancies and making transfers, or promotions among employees represented by the Union, Ontario Hydro will take into consideration whether the position is supervisory or non-supervisory and the following procedure will apply.
(a) Supervisory Positions
(1) In considering applications for supervisor positions, primary consideration should not be given to seniority, but to personal qualities such as leadership, reliability, judgment, ability to organize and instruct and an understanding and a display of the practice of good human relations. For supervisory positions, an endeavour will be made to promote the most promising employees.
(2) Only those possessing these characteristics should be considered. Where practicable, applicants for supervisor positions should be interviewed by the supervisor responsible for the selection. Only in cases where there does not appear in Ontario Hydro's opinion, to be much difference in qualifications will seniority govern.
The collective agreement provides that seniority should not be given primary consideration when the employer is choosing supervisors. The determination is to be based upon the employer's assessment of an individual's "personal qualities". Seniority governs only where, in Hydro's opinion there is not much difference in qualifications.
This clause has been in the parties' collective agreement for many years, and has been the subject of several arbitration proceedings. In each of these cases the union has challenged the employer's selection, asserting that the senior candidate was more qualified, or at least as qualified as the individual selected. In each case the union argued that the senior employee should have been given the job. And in each case the union was ultimately unable to reverse management's decision.
Arbitrators have consistently held that, under article 10, Hydro has a "wide leeway" in choosing among applicants for a supervisory position, and that seniority is to be a subordinate factor, relevant only when in the opinion of the employer, the candidates were relatively equal. Arbitrators have held that the employer is entitled to make an essentially subjective assessment of the candidates' personal qualities. For as arbitrator K. P. Swan commented:
The emphasis on the amorphous personal qualities set out in article 10.2(a) and the consignment of a substantial discretion to management to determine which candidates possess those qualities and in what relative quantity, is part of the bargain made between the parties. All that we are entitled to do is to assess a particular promotion competition against those standards and determine whether, on the balance of probabilities, the union has made out a case that a particular promotion decision was contrary to the collective agreement.
- As long as Hydro had a reasonable basis for its decision, arbitrators were not inclined to intervene; moreover, the employer was entitled to put its own weighting on the relevant importance of the specified selection criteria. In the circumstances, arbitrator H. D. Brown observed:
It must be recognized that it is difficult for an employee who applies for a supervisory position to establish that the management has acted incorrectly in applying the subjective criteria set out in Article 10.2 and thereby violated that Article so as to support his claim as against those of other applicants for that position. The burden on such an employee is substantial, and it is not sufficient for a Board of arbitration to conclude that it would have made a different decision from that made by management, but rather, in view of the discretion left with management in the determination of the difference in qualifications among applicants, providing that decision is reasonably based, the Board is not empowered to substitute its decision for that of the Company where management is given the discretion based on its "opinion".
(See generally the decisions of arbitrators Adel, McCamus, Swinton, Brown and Swan, dated respectively, February 14, 1979, August 7,1979, September 1, 1982, April 30, 1983, and March 29, 1984.)
In summary, then, union challenges to the application of article 10 have been singularly unsuccessful. The scope of the arbitral review is limited; and, given the way in which article 10 is framed, it has been exceedingly difficult to challenge the employer's subjective judgment.
For completeness I should note that in one instance where an employer error was found, the arbitrator was still not prepared to give the grievor the job. The arbitrator held that to give the job to the grieving employee would "derogate from the rights of other employees who entered into the competition in good faith, and who ought not to be deprived of a fair chance for promotion simply by reason of the employer's improper treatment of the grievor". Nor was the arbitrator prepared to direct the employer to re-run a competition that had been completed several years before. The arbitrator indicated that this might have been an appropriate remedy if the error had been established earlier, however by the time the Award was made, it was simply too late for that. Accordingly, even a successful challenge to the selection process turned out to be a Pyrrhic victory.
This was the legal/contractual framework in place in 1990, at the time of the postings for the job of "design draftsperson".
According to Hydro, the job competition for the "design draftsperson" involved a number of steps: a review of the candidates' applications and resumes; a test to evaluate the candidates' technical knowledge and supervisory/coaching skills; personal interviews with those whom Hydro considered to be the "top rated" candidates; and work checks with supervisors. Hydro indicates that its initial intention was to interview only the top 21 candidates; however, after the written test was administered, Hydro also decided to interview a number of senior candidates with lower scores.
Some 79 employees applied for the eleven posted vacancies. Seventy candidates were given the written test. Thirty-one candidates were interviewed and ranked, following a work check with their supervisors. The eleven successful candidates were chosen from this group of thirty-one.
The persons chosen were not the most senior applicants. They were the individuals who, in Hydro's opinion, were the most suitable for the posted vacancies. And, of course, there were quite a number of unsuccessful applicants.
Following the job competition the union filed "group grievances" on behalf of the group of unsuccessful candidates [Union's Book of Documents - Tab 8-11]. These grievances challenged the form of notice, the testing process, the test weighting, the exclusion of certain candidates from writing the test, and the lack of experience of some of the decision-makers. The union asserted that a number of employees were both qualified for the job and more senior than those selected.
These challenges were similar to those that the union had mounted (albeit unsuccessfully) in the earlier arbitration proceedings.
The group grievances were processed through several steps of the grievance procedure. Ultimately, though, the executive committee of the union decided not to proceed to arbitration. Its stated reasons for withdrawing the grievances, are outlined in a letter from G. H. Holland, Senior Collective Agreement and Grievance Officer, to Cal Carter, Chief Union Steward, dated October 7, 1992 [Union's Book of Documents - Tab 13]:
You have asked why the Executive Committee decided not to take these cases to arbitration.
My understanding is that they felt there was no chance of having more senior people actually selected to the jobs as a result of these grievances. We did win one supervisory selection arbitration a number of years ago, but only because Management argued they did not have to introduce any evidence to support their decision. We subsequently lost four or five supervisory selections in a row despite having very strong cases. As a result, we had to conclude the words in Article 10.1.3, A2 that "seniority will govern only in cases where there does not appear, in Ontario Hydro's opinion, to be much difference in qualifications" were an insurmountable barrier. Hydro has only to produce some information which provides a basis for its opinion to succeed. Arbitrators are very reluctant to substitute their judgements for Management's in a selection case and have refused to do so in our supervisory selection arbitrations where the words clearly give a great deal of discretion to Management.
The Committee also considered the merits of proceeding on the basis that even if we could not get the grievors selected we might be able to force Management to run the selection process over again because of flaws in the process. They decided not to do so in part because it was by no means clear that we could convince an Arbitration Board that the process was so badly flawed that it should be repeated. For example, one of our complaints was that all the applicants were not interviewed. However, the clause we rely on in the Agreement says, "Where practicable, applicants for supervisory positions should be interviewed by the supervisor responsible for the selection." An Arbitration Board might well rule that with roughly 70 applicants it clearly would not be practical to interview all of them. Further, even if an Arbitration Board found there were some flaws there is a tendency on the part of Arbitrators to try to minimize the effect of such defects and go along with the original selection decision if they can rationalize some way of doing so. The clearest example of this was a supervisory selection arbitration where the Board found one of the two members of the selection team had a personality conflict with the grievor. The Board went on to reject the grievance since the decision of the other member of the selection team also felt the grievor should be bypassed.
The Committee also felt that the bottom line for your grievors is securing one of the positions and even if we convinced an Arbitration Board to order a new process there would be no certainty that any of the grievors would actually win a position. In other words, Management could repeat the selection process following the directions of the Arbitration Board and reach the same or virtually the same result as they did the first time. If Management did so, there would be no chance to do anything effective about it because of the discretion that Management has with regard to supervisory selections. In the meantime, both the grievors and the people originally selected would be up in the air.
In the end, after extensive discussion, the Executive Committee concluded the grievances should not go forward to arbitration.
I hope this will allow you to explain the decision to your members. I understand that an appeal to the Executive Board has been filed, and therefore, there is no need to outline that procedure.
- On November 30, 1992, the decision of the Union's Executive Committee was confirmed by the Union's full Executive Board.
III
The complainants assert that the union's decision not to take the group grievance to arbitration contravenes section 69 of the Act. In their submission, the union was required to assess the merits of their claims on an individual basis; and if it had done that, it would have discovered (so the complainants assert) that each of them is substantially more qualified than the employees that Hydro selected to fill the vacancies. In the alternative, the complainants contend that they are at least as qualified as the successful candidates, and that therefore their seniority should have been the governing factor.
The complainants do not accept the union's reasons for refusing to take their case to arbitration (which they characterize as insubstantial, spurious, inappropriate, etc.). The complainants assert that there were serious irregularities in the job selection process.
The complaint also includes this allegation:
The Applicants further state and rely on the fact that the majority of them are members of ethnic or racial minorities and that, where this is the case, they further rely on the fact that the decision not to accept them for the vacant job openings resulted, at least in part, from systemic and institutional discrimination against them within Ontario Hydro. The Respondent knew or ought to have known that this was an additional factor in their refusal for the vacant job openings and by its conduct as set forth herein, condoned and rationalized such practice by Ontario Hydro in further breach of its duty to the Applicants.
This allegation of "systemic" or "institutional" discrimination is an additional ground relied upon by those complainants who are members of racial minorities. As I understand it, the allegation against the union is that, over the years, it has been complicit in condoning an environment which has either poisoned the selection process or prejudiced the minority complainants' ability to succeed.
I emphasize the phrase "against the union" because, of course, it was Hydro that made the decision that the complainants challenge, and it is evident that the complainants could not all have been successful. Moreover, this is a complaint against the union. Hydro cannot contravene section 69.
I do not know how many of the complainants come from visible or ethnic minorities. Nor do I know how many of the 79 applicants or the 11 successful applicants come from visible or ethnic minorities.
The union's reply includes the following submissions:
In deciding not to proceed to arbitration the Executive Committee and thereafter the Executive Board of the Union considered the language of the collective agreement at Article 10.2 with regard to supervisory selection, which Article specifically recognizes the discretion of Ontario Hydro. Further the Executive Committee and thereafter the Executive Board considered that in supervisory selection grievances which had been taken to arbitration the Union had won one case in 1978 when the employer failed to call evidence (CW5-131) but had thereafter lost four supervisory selection grievances: 0-284 (August 7, 1979), 0-299 (5eptember 1, 19982) [sic], W5-487 (April 30, 1983) and W5-106 (March 29, 1984).
The Union denies that its decision not to take the grievances forward to arbitration was in any way arbitrary, discriminatory or in bad faith but was a reasonable decision in face of the language of the collective agreement and the history of arbitration awards between the Union and Ontario Hydro concerning supervisory selection grievances.
The applicants were content to have their cases dealt with on a group grievance basis. The Union did an investigation and took into account all facts presented by the applicants in determining that the grievances were not likely to succeed. The Union could see no serious flaws in the selection process and could find no reasonable evidence to support the grievances, given the subjective test contained in Article 10.2 of the collective agreement.
As regards the allegations contained in paragraph 10 of Appendix "A" [systemic discrimination] to the complaint, the applicants do not even suggest that they ever raised the issue of discrimination with the Union. In any event, the Union was aware that the process used by Ontario Hydro in this selection had been vetted by an industrial psychologist, Roland Mallett and took this into account in analyzing the grievances.
The Union sought out any information that might have been able to found a complaint regarding the selection process being tainted by racial discrimination. It could obtain none.
The Union has in the past consistently put pressure on Ontario Hydro to make better efforts towards eliminating discrimination in the workplace.
The Union did not act in a discriminatory fashion in respect of any of these applicants as it investigated fully the allegations raised and honestly came to the conclusion that this selection could not be successfully challenged at arbitration.
The union's reply repeats the explanation given to Cal Carter, its Chief Steward, in October 1992.
The union asserts that its position has been consistent since 1992, and is based upon its assessment of the overall circumstances, and its arbitral experience in the 1980's. In the union's submission it withdrew the group grievances because: it did not think it could win; it did not think it could successfully obtain jobs for the grieving employees (senior, minority or otherwise); it did not think it could unravel a selection process completed in 1990; and it therefore saw little practical utility in a time consuming and expensive litigation process.
I note, parenthetically, that each of the above-mentioned unsuccessful arbitration cases, involved a single individual, and generally took a couple of days to litigate. It is impossible to predict how long the group grievances would have taken to litigate or when that arbitration proceeding might be completed. It is clear, though, that any arbitration proceedings were likely to be protracted and costly.
IV
This is not the first time that the union's decision to withdraw these group grievances has been challenged at the Board. On the contrary. On February 19th, 1993, Anwar Chaudri filed a similar complaint alleging that the withdrawal of the group grievances was a breach of section 69 of the Act. Like the complainants, Mr. Chaudri was an unsuccessful job applicant who thinks that one of the jobs should have been given to him.
Mr. Chaudri was represented by Harry Kopyto, the agent for the complainants in the instant case, and Mr. Chaudri's allegations were very similar to those raised by the complainants in this proceeding. There, as here, Mr. Chaudri claimed that he was more qualified than the persons selected, and that the selection process was flawed. There, as here, there was an assertion that the union was obliged to conduct an individualized assessment of Mr. Chaudri's qualifications in relation to the other job applicants. There, as here, there was a claim of invidious or systemic discrimination - although I am told that this was not a dominant theme in the earlier case.
The Chaudri complaint came on for hearing before the Board, (differently constituted)
for three days, in June and July, 1993. The decision of the Board was released on December 10,
After considering the evidence and representations before it, the Board dismissed the Chaudri complaint. The Board found that, in all the circumstances, the union's decision to withdraw the group grievances was not a breach of section 69 of the Act.
The Board decision of December 10, 1993 includes the following analysis of the case:
The applicant's position is two-fold. First, he claims that Ontario Hydro applied the wrong provision in the collective agreement to the selection process, and that the union breached section 69 by not pursuing this issue to arbitration. 5econd, Mr. Chaudri claims that regardless of the criteria applied he was substantially more qualified than the successful candidates and senior to all but two. This information having been known to the union, Mr. Chaudri says, it breached section 69 by failing to form an opinion as to whether there was "much difference" between himself and the successful candidates.
Issue No. I - The Application of Article 10.1.3Ab
- The provision applied to the selection process was the following:
10.1.3
In filling vacancies within the CUPE Local 1000 bargaining unit, Ontario Hydro will take into consideration whether the vacant position is supervisory or non-supervisory.
The following will apply:
A. Supervisory Positions
In considering applicants for supervisory positions, primary consideration should not be given to seniority but to personal qualities such as leadership, reliability, judgement, ability to organize and instruct and an understanding and a display of the practice of good human relations. For supervisory positions, an endeavour will be made to select the most promising candidate.
Only those individuals satisfactorily possessing the above characteristics, as assessed by Ontario Hydro, should be considered. Where practicable, applicants for supervisory positions should be interviewed by the supervisor responsible for the selection.
Seniority will govern only in cases where there does not appear, in Ontario Hydro's opinion, to be much difference in qualifications. (emphasis added)
Article 10.1.3A deals with supervisory positions and emphasizes "personal qualities" rather than seniority. Mr. Chaudri says that the Design Draftsperson position is non-supervisory and, accordingly, the company should have applied Article 10.1 .3B, which requires it to take the most senior employee from among the qualified applicants.
strictly speaking, whether or not the Design Draftsperson position is supervisory within the meaning of Article 10 is not the issue before the Board. The issue is whether the union breached section 69 by not pursuing the grievances to arbitration. To the extent, however, that the supervisory nature of the position was central to the union's thinking, it must be addressed by the Board.
The Job Identification Data for the Design Draftsperson position indicates that the number of employees supervised directly is "up to six". Under "Responsibility for Supervision" the document states: “requires assigning, providing advice and checking the work of members of the group". This may be contrasted with the Job Identification Data for Mr. Chaudri's current position which indicates the number supervised to be "0" and describes responsibility for supervision as: "may on occasions require showing others how to perform tasks or duties". These documents bear out the verbal evidence given by Mr. Chaudri, Cal Carter, the chief steward who initiated the grievances and another unsuccessful candidate, and Eric Eissler, Mr. Chaudri's former supervising Group Leader. Each of these individuals indicated that the degree of supervision in the Design Draftsperson position was "small", but none suggested that it was entirely lacking. In addition, Mr. Carter acknowledged that at Grade 64 the Design Draftsperson position was the "highest level of union supervisory position within the company". In this context, Mr. Chaudri's evidence that he is currently performing the same supervisory functions as 5enior Draftsperson is equally consistent with the interpretation that his current tasks may be considered supervisory or that he is working beyond his job document.
More important in the present context, however, is the evidence that the Design Draftsperson position is assigned "degree 3" for the purposes of pay, with degree referring to the level of supervision. Mr. Chaudri's current position is assigned degree "0", while the supervising Group Leader position is designated degree "6". Mr. Jim Zafiropoulous, the union's second Vice-President and a member of the Executive Committee and Executive Board that considered the grievances, testified that to have taken to arbitration the position advanced by Mr. Chaudri could have resulted in the pay level being driven down two grades. This, according to Mr. Zafiropoulous, would have been contrary to the efforts made by the union to have the position rated degree 3 and would not have been in the interests of the bargaining unit as a whole.
On the basis of this evidence, the Board is satisfied that the union's decision not to press the "non-supervisory" arguments to arbitration was not in breach of section 69.
Issue No. 2 - The inquirv undertaken by the union
The essence of the second aspect of Mr. Chaudri's complaint is that the union failed to turn its mind to the issue of whether there was "much difference" between himself and the successful candidates.
Mr. Chaudri gave considerable evidence as to his own qualifications for the position, and also as to a corresponding lack of qualifications on the part of the successful candidates. This evidence appeared to have been intended to demonstrate that the union's decision not to proceed to arbitration could only have resulted from a failure to properly turn its mind to the issues involved. Mr. Chaudri's view of his own qualifications, however, differed from those of Hydro which ranked him in the average category in seven of the eleven assessment criteria employed and below average in two. Consistent with Article 10.1.3A, many of these criteria were of a "subjective" non-technical nature. Mr; Chaudri also referred to certain conflicts he had had in the past with Mr. Fred Wood, the Chief Draftsperson, who was a member of the selection committee. Mr. Chaudri says that these conflicts resulted in a bias against him. (These and other concerns apparently resulted in a human rights investigation by the company into the management practices in the Design Office. The complaint appears to have been supported by the investigation but its relationship to the competition was unclear from the evidence.) Mr. Chaudri testified that he gave all of this information to the union as part of the grievance process.
Apart from Mr. Chaudri's allegations concerning a lack of qualifications on the part of the successful candidates, much of this evidence was undisputed. Mr. Chaudri's portrayal of his own qualifications was essentially confirmed by Mr. Eissler, who had recommended him for a promotion to Design Draftsperson in 1987 or 1988. Mr. Eissler was also aware of Mr. Chaudri's problems with Mr. Wood, but described them as being very early on in Mr. Chaudri's employment.
On behalf of the union, Mr. Zafiropoulous testified that nothing presented at the hearing was new to him. The importance of Mr. Chaudri's qualifications and seniority were impressed upon Mr. Zafiropoulous over the course of several conversations throughout the grievance process. Mr. Zafiropoulous also acknowledged that the union had no independent method of determining the relative qualifications of the successful and unsuccessful candidates. He explained the union's approach, however, in a number of ways. First, he indicated that as part of the grievance process the union requested and obtained information from the company and the grievors as to the manner in which the selections were conducted, including the nature of the test and the matters covered in the interviews. The union could find nothing improper. As the grievances dragged on, Mr. Zafiropoulous also requested that Mr. Chaudri provide him with the results of the internal human rights investigation. Mr. Chaudri refused to comply.
Second, Mr. Zafiropoulous was familiar with at least four arbitration awards which hold that Article 10.1.3A gives the company a "wide leeway" in selecting the successful candidates. The awards also establish that management's decisions will not be overturned provided it has a "reasonable basis" for a belief that there is a "significant difference" between the successful and unsuccessful candidates. The union's only success under this provision came when the company refused to call any evidence, arguing instead that its discretion was "virtually total". Some of these grievances had been filed by Mr. Zafiropoulous, who believed at the time that the grievors' cases were strong ones.
Third, apart from Mr. Chaudri's own opinion, Mr. Zafiropoulous had nothing to suggest that the successful candidates were not much more qualified for the job. Mr. Eissler's evidence did not go this far.
The Board then concluded:
Weighing all of these factors, together with the financial costs involved, the possibility that success on the grievances might only mean a re-run of the competition with a potential for the same outcome some years after the fact, the interests of the successful incumbents, and the union's on going relationship with the company, the union decided that it would not be in the interests of the bargaining unit as a whole to pursue the grievances to arbitration.
In evaluating the union's conduct against the duty imposed by section 69, the Board must bear in mind that section 69 "does not require that a trade union champion every employee grievance or complaint", but only that it "put its mind to the issues involved and make a good faith decision as to whether or not a matter is worthy of pursuing": Boise Cascade Canada Ltd., [1982] OLRB Rep. July 981. In fleshing out these obligations in the present context, the Board is aware of the fact that posting grievances are among the most difficult for a union to manage. Unlike "standard" discharge grievances, posting grievances require the union to broker a variety of competing interests, including those of the grievors' and the successful candidates. The extent to which a union will be able to "mediate" a particular result will depend upon a good faith assessment of these factors in light of the particular collective agreement provision in issue.
Having regard to the evidence of Mr. Zafiropoulous, the Board is satisfied that the union complied with the duty imposed by section 69. The evidence is that through first hand experience Mr. Zafiropoulous was intimately acquainted with the issues and risks involved, including those which extended beyond the interests of Mr. Chaudri and the other unsuccessful candidates. While the union may not have undertaken an individual assessment of the merits of Mr. Chaudri's case against each of the successful candidates, section 69 ought not to be construed as requiring the union to "re-run" the competition, especially where the collective agreement makes clear that it is management's 'opinion" that governs on a variety of essentially subjective criteria. For the purposes of section 69, it is enough that the union turned its mind to Mr. Chaudri's case and made a good faith assessment of the issues and risks involved before deciding not to pursue the grievances further.
The application is dismissed.
[emphasis added]
As will be seen, the Board reviewed the union's reasons for withdrawing the group grievances and concluded that there was nothing improper about the way in which the union made that decision. It was not "arbitrary", "discriminatory" or "bad faith" for the union to evaluate the group grievance on a generalized basis, taking into account the various factors, risks, and potential outcomes mentioned in the Board's decision. Likewise, it was not arbitrary, discriminatory or bad faith for the union to conclude that, all things considered, it was not worthwhile pursuing the group grievances to arbitration. The union was not obliged (notionally) to "rerun" the competition or make individualized assessments of the merits of each unsuccessful applicant's claim in relation to the successful applicants and each other. The union was entitled to assess the group grievances on the basis of general considerations, and to conclude, on balance, that litigation would not be a worthwhile exercise -
As of March 24, 1994, the date of the hearing before me, there had been no request to reconsider, vary or revoke the Board decision of December 10, 1993.
V
- The instant complaint was filed on October 13, 1993 - 8 months after the Chaudri complaint, almost a year after the grievances were withdrawn, and three years after the job competition in which the complainants were unsuccessful. As in the Chaudri case, the complainants are unsuccessful job applicants who challenge the union's decision to withdraw their "group" grievances. They are members of the same "group" as Mr. Chaudri.
VI
Hydro denies that there was any error in its assessment of the complainants' abilities relative to others, or any breach of the collective agreement back in 1990 (the collective agreement then in effect has long since expired). Hydro points out that it cannot breach section 69 and no other section is cited, nor are its actions properly subject to review by the Board. Hydro also denies any impropriety or "systemic discrimination", and points out further that there are no particulars whatsoever, despite the Board's Rules requiring specific pleadings. In Hydro's submission, there is nothing but a "bald allegation".
Hydro further points out that the situation today is quite different than it was in 1990, when the job competition was conducted, or even 1992 when the grievances were withdrawn. The corporation has undertaken a massive re-organization which has affected thousands of employees. Neither the environment nor the organization are the same as they once were.
Hydro asserts that of the 11 successful candidates for the 1990 vacancies, eight have since left the corporation under special retirement or voluntary separation packages. The other three successful candidates remain as design draftspersons - electrical, although they may have a somewhat different status under what counsel describes as the "new Hydro" organization.
Of the 27 complainants in this case, 7 have left Ontario Hydro under special retirement or voluntary separation packages. They are no longer employees in the bargaining unit.
Of the remaining 20 complainants, 4 were recently promoted to the position of design draftsperson electrical - that is the same position and occupational code as the remaining successful candidates from 1990.
The other 16 complainants are senior draftspersons, but are not all under the same occupation code. Some of them have been or will be assigned to nuclear, fossil or Hydro Electric head office jobs. Others have been successful in obtaining positions at nuclear generating stations.
The work situation of the interested employees (job applicants, incumbents and complainants) is very different from what it was in 1990.
Counsel submits that in the "new Ontario Hydro" organization, no further "design draftspersons electrical" are required and since 1990 the overall complement has been significantly reduced. Persons holding this position in the "old Hydro" organization, and still on staff (a number have left) have been redistributed and reassigned along new location and organizational lines.
Counsel for Hydro further submits that since the 1990 job competition there has been a significant re-organization in Hydro's departmental structural, including the elimination of the central drawing production department (of approximately 400 draftspersons) which was responsible for staffing the central department and the project groups. Now, staffing is done on a decentralized basis, with each "line of business" responsible for its own staffing. Accordingly, counsel submits that any re-run of the selection process pertaining to design draftspersons positions would involve different departmental considerations and a different kind of selection team.
Hydro counsel submits that there were three members on the original selection team: two chief draftspersons and one human resources officer. One chief draftsperson, Jim McGowin has retired. The other Fred Wood, left Ontario Hydro under the voluntary program. The human resources officer, remains employed by the corporation, but it would be difficult, at this stage, to review the selection process in 1990.
In summary, neither the employee complement, nor Hydro's organizational structure, nor the work distribution, nor the situation of the various complainants is the same as it was in 1990 when Hydro conducted the job competition which is the subject of collateral attack in these proceedings. The situation has changed since 1990, and the changes are ongoing.
I have used the phrase "collateral attack" in the preceding paragraph because it must be remembered that Hydro is not a "respondent" in these proceedings, and cannot contravene section 69 of the Act. This complaint against the union's decision in 1992 is the vehicle by which the complainants seek redress for what they contend is a flawed selection of process undertaken by Hydro in 1990. This litigation against the union, is about the union's failure to pursue litigation against Hydro. In this sense, the present proceeding is derivative. That is why the remedies sought include a requirement that the union resurrect and litigate the grievances withdrawn in 1992.
VII
The union and Hydro contend that the Board should exercise its discretion not to inquire into this complaint, because of the complainants delay in filing it, because the substance of the complaint has already been adjudicated by another panel of the Board, and because it is simply too late, now, to try to reconstruct a competition process that was concluded four years ago (indeed, it may not be possible). In their submission, the allegations do not provide an arguable basis for liability, the arguments have been considered before, and the Board should not embark upon an expensive and protracted proceeding which ultimately will serve no concrete labour relations purpose.
For its part, Hydro denies that it is a proper party to a proceeding of this kind or at this time, and questions whether the Board can or should resurrect a grievance settled under a collective agreement long since expired. Hydro denies that there was any impropriety in the way the 1990 competition was conducted; and maintains that if there was any complaint about the union's handling of the grievances it should have been raised long before October 1993. Hydro maintains that there was no "systemic" or other discrimination influencing the competition; but if the Board is disposed to hear that allegation, it should direct full particulars for what is now just a "bald allegation".
The union and Hydro also point out that the allegation of systemic discrimination has recently been made the subject of a complaint to the Ontario Human Rights Commission. In their submission, the Board should not abet multiple proceedings, in different forums, arising out of the same circumstances - especially where the Board itself has already examined those circumstances at a formal hearing. Likewise, they submit that members of the group covered by the group grievances should not be permitted to litigate their complainants piecemeal, waiting to see how the hearing with Mr. Chaudri went before filing their own complaint.
The complainants reply that they moved with reasonable dispatch (having regard to the time it took to process the grievances), that the earlier Board decision is wrongly decided and not binding upon me, that they were not parties to that proceeding, and that the Board has considerable flexibility with respect to remedy - a matter which, in any event, should be explored only after a violation has been established. That is the appropriate time to address the effect (if any) of Hydro's reorganization.
In the complainants' submission, the hearing in this matter need not be protracted, since much of the background (they say) is not in dispute; and if the "discrimination allegations" require amplification, that can be accomplished by a direction to provide further particulars prior to the hearing.
In the complainants' submission, it does not matter that they are challenging the 1990 job competition in a complaint recently filed with the Human Rights Commission. Mr. Kopyto contends that the availability of an alternative proceeding under another statute should not preclude his clients from seeking redress in a proceeding before the Board.
Decision
I have carefully considered both the overall labour relations context and the parties' representations.
I have come to the conclusion that, in all the circumstances, this is an appropriate case for the Board to exercise its discretion not to inquire into this particular complaint.
In reaching that conclusion, I have taken into account a number of things.
I begin with the observation that, section 69 of the Act does not require a trade union to proceed to arbitration with an employee grievance simply because the employee demands that it do so. The union is entitled to settle or withdraw such employee grievances; and when making that decision the union may take into account the general circumstances, the cost, the likelihood of success, and so on. There is nothing unusual or improper about that. The fact that the union has decided not to take a case to arbitration does not, in itself, establish a prima facie case of a breach of section 69.
A "grievance" is an allegation of a breach of the collective agreement. It is relatively easy to file one. There is no cost involved, nor is there much formal paperwork. An employee need only allege that s/he has been dealt with contrary to the terms of the collective agreement, and the grievance procedure is triggered - whether or not there is a contractual foundation for the employee claim.
Once a grievance is filed most collective agreements require several steps of discussion before a matter may be referred to arbitration. The purpose of that discussion is to allow the parties to consider their positions and resolve their differences - again, whether or not there is a contractual foundation for the employee claim. In the ordinary course, one would expect that most claims would be granted, settled or withdrawn. The discussion process should reveal the relative strength of the parties' positions, and thus, the desirability or utility of formal litigation. That is what the "grievance procedure" is for.
A union would be remiss in its obligations to the membership if it proceeded to litigation with claims that were unlikely to be successful. Indeed, there are good labour relations reasons for not doing so. In Catherine Syme, [1983] OLRB Rep. May 775, the Board described the situation this way:
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 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, 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.
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.
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 interest 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.
The focus in Catherine Syme, was the settlement of doubtful claims. But the same observations apply to their withdrawal. "Fighting regardless of the odds" may have rhetorical attraction - particularly for those who do not "foot the bill". But it may not be a sensible stance for a collective bargaining agent to take.
No adverse inference arises from the fact that a grievance has been withdrawn. That is an everyday occurrence in the labour relations world (where, of course, the union and the employer return to the bargaining table every year or two, to re-negotiate the terms of their relationship).
This is not to say that section 69 can have no application to the grievance process. But in order to trigger a breach of section 69, the union's action must be:
(a) "arbitrary" - that is flagrant, capricious or grossly negligent;
(b) "discriminatory" - that is, based on invidious distinction without labour relations rationale; or
(c) "in bad faith" - that is, activated by ill-will, malice, hostility or dishonesty.
Mistakes or misjudgments do not fall within the ambit of section 69 [see, for example, the comments of Vice-Chair Adams (now Adams J.) in Re Walter Princesdomu, Ontario Hydro and CUPE Local 1000, [1975] OLRB Rep. May 444, and compare I. T.E. Industries, [1980] OLRB Rep. July 1001]; and as I have already mentioned a trade union is the employees' collective bargaining agent. It has a wider range of concerns than a lawyer representing a client in a piece of civil litigation. On that client's instructions a lawyer may feel obliged to launch litigation regardless of the cost or the likelihood of success. A union has to consider the broader impact, and is under no such obligation.
There is much to be said for the union's assertion that the complainants' allegations do not make out a prima facie case of a breach of section 69. The withdrawal of a grievance is a normal and, in itself, neutral event. The fact that the complainants may be (or believe themselves to be) better qualified than the successful candidates does not make the union's decision "wrong" - let alone "arbitrary" (etc.) - and their characterization of that decision really doesn't advance the case one way or the other.
The question the union had to consider was not whether Hydro was right or wrong, but whether litigation was a useful exercise. The question this Board has to consider is not whether the union was right or wrong, but whether the union's decision was "arbitrary", "discriminatory" or "in bad faith".
Whether or not the complainants' allegations make out a "prima facie" case for a breach of section 69, I do not think that they have made out a strong primafacie case.
Despite the complainants' assertion to the contrary, the union's enunciated reasons for withdrawing the group grievance are entirely consistent with its section 69 duty, and with the contractual framework within which the complainants' positions would have to be assessed. The complainants may disagree with Hydro's assessment of their qualifications. They may disagree with the union's decision not to go to arbitration. But ultimately their right to challenge Hydro's assessment, and their ability to challenge it successfully, depend upon the language of the collective agreement, and, as Arbitrator Brown noted (see above) any individual challenging the employer's selection process under article 10 will encounter considerable difficulty in proving a breach of the collective agreement (the onus being on the challenger).
There is nothing implausible about the union's accepting this reality even if the complainants do not. This state of affairs may suggest a need to re-negotiate the contract language to limit the employer's discretion, but it also suggests that litigation may not be a particularly prudent way to spend the members' money.
These are all legitimate considerations for the union to take into account.
It is also important not to lose sight of what is involved in this proceeding and in the selection process that was completed in 1990. The complainants delayed almost a year before filing this complaint, and in considering the effect of that delay and the general discretion under section 91, I think it is useful to bear in mind both the nature and likely outcome of the proceeding they urge upon the Board.
In 1990, some 79 individuals applied for 11 vacancies. Now 27 of the 59 (or so) unsuccessful applicants challenge the union's decision in 1992 not to challenge the employer's selection in 1990.
Suppose the Board were to hear this complaint and find that there was some defect in the union's decision-making process in 1992. Suppose further that the Board found that the union was not simply unwise, or wrong, or insufficiently aggressive, but in breach of section 69. Suppose also that the appropriate remedy was to resurrect the grievance and direct that it be taken to arbitration under the now expired former collective agreement. What would be the likely result?
By definition, the 27 complainants could not all be successful in securing the jobs they sought in 1990 even if those jobs still existed (which they probably do not - see below). Even if the competition had been properly run, only 11 employees would have been selected. And to decide today who should have been chosen in 1990 would require a complex comparative evaluation, weighing the 27 complainants against each other, the other unsuccessful applicants, and the 11 successful ones in order to see whether one or more "stars" emerged, who could then attempt the "uphill battle" to which Arbitrator Brown referred. Such arbitration proceeding would necessarily be protracted and extremely problematic.
Nevertheless, suppose further that at the end of the day (probably many hearing days) the arbitrator eventually found that Hydro had erred in 1990. What would s/he do about it? It seems to me highly probable that the most that an arbitrator might do is to require a re-running of the 1990 competition. But even that is problematic.
In Falconbridge Nickel Mines, 1973 CanLII 846 (ON CA), [1973] 1 OR 136, the Ontario Court of Appeal held that an arbitrator had no jurisdiction to award a position to a successful grievor when there were other unsuccessful job applicants. If the selection process was defective, the arbitrator was limited to directing the employer to do it again. The arbitrator could not usurp the authority of management and make the employee selection.
It is difficult to see a different result in this case, where the contract language gives such weight to the employer's subjective assessment. It is doubtful whether an arbitrator could or would do more than direct a re-running of the 1990 competition - assuming that to be possible years later. As I have already noted, the one arbitrator faced with that situation declined to do even that because of the passage of time and the artificiality of the exercise and it is by no means clear that the disputed jobs even exist in the context as it was in 1990.
In the circumstances, it is not surprising that the union was reluctant to proceed, nor can any adverse inference be drawn from such reluctance. By the same token, the situation raises real doubts about the practical utility of embarking upon these layers of litigation.
If the jobs themselves would be difficult to obtain, what about a damages remedy? In my view, the same evaluation problem arises.
"Loss of opportunity damages" might conceivably be assessed by an arbitrator or this Board, but that too would require a complex assessment of the individuals' likelihood of success. For if an individual could not establish that more probably than not s/he would have succeeded had the selection been done properly, there would be no basis for a monetary award from an arbitrator, and no loss flowing from the union's failure to go to arbitration. In other words, one would still have to decide, what Hydro would have likely decided in 1990.
I do not think these remedy problems can be ignored - particularly when the complainants delayed a year before filing their complaint, and in the meantime, the Chaudri allegations have been fully litigated.
The allegations which the complainants raise are not new ones. They have already been considered in the Chaudri case, which involved the same circumstances and the same attack on the union’s decision to withdraw the same group grievances.
There, as here, an unhappy member of the group sought to challenge the union’s decision to withdraw these grievances. There, as here, there was an allegation that the union had contravened section 69 of the Act. There, as here, there was an assertion or undercurrent of alleged discrimination. And, in consequence, the union’s decision-making process was scrutinized by the Board over the course of a three day hearing, during which the Board considered both the individual complainant’s “credentials”, and the union’s various reasons for deciding not to proceed to arbitration with the group grievances.
That is what the present complainants ask the Board to do again.
However, in Chaudri the Board concluded that the union did not breach section 69 when it withdrew those grievances. Nor, in the Board’s view, did the union contravene the statute
when it made a generalized determination without considering the particular circumstances of individual employees like Mr. Chaudri. The Board reviewed the nature and history of the problem, considered the language of the collective agreement, noted the past arbitral experience, and concluded that the union had reasonably assessed the situation before it, and did not act “arbitrarily” (etc.) when it decided not to pursue the group grievance to arbitration.
Now, strictly speaking, this earlier decision may not be binding upon me (although as of the hearing before me, three months after its release, there had been no request for reconsideration). And, strictly speaking, “res judicata” may not apply, because the complainants were not nominal parties in the earlier case (although they were part of the same “group” as Mr. Chaudri, and now make the same allegations). But the Board would be ignoring labour relations reality if it did not recognize the link between the present complaint and the earlier one – not least because the complainants waited until October, 1993 to file this complaint, which is almost a year after the union’s decision, eight months after the Chaudri complaint was filed, and weeks after the completion of the hearing in the Chaudri matter.
There is no reason why the complainants could not have filed a more timely complaint, as Mr. Chaudri did, and if the complainants had filed in a timely way, the issues could have been considered together, rather than in the repetitive format that is now urged upon the Board. And the responding parties would have had to defend themselves once, not twice.
In determining what effect should be given to the one year delay, I do not think I can ignore the fact that, in the interim, a parallel complaint has been fully and unsuccessfully litigated.
The previous proceeding also provides some insight into what this complaint might entail.
Mr. Kopyto contends that the case is a simple one which would only take a day or two to litigate. He says the amount of evidence to be heard is quite limited. But that is not my assessment.
It seems to me much more likely that the Board would be plunged into a protracted proceeding, examining the decision-making process as the earlier panel did, in light of the personal characteristics of one or more of the complainants. For if they cannot establish that one or more of them were so obviously superior that they were bound to win at arbitration they will not be able to show that the union was wrong - let alone "arbitrary" - to withdraw the grievances.
That raises the difficult factual considerations to which I have already referred. If the facts are the same, there is a stronger argument that the complainants should not be able to go over the same ground as Chaudri. If the facts are different, the case will not be short.
The unparticularized allegation of "systemic discrimination" which the union "knew or ought to have known" about raises, by itself, a host of evidentiary and practical difficulties.
To the extent that the discrimination is "systemic" one presumes that it was pervasive and that the complainants would have known about it in 1990. It is not entirely clear from the pleadings what the union was supposed to do about it at that time or later, nor is it clear why the complainants waited years to make that allegation. However, quite apart from that, it does not appear to me that the evidence would be either short or uncontested as Mr. Kopyto claims.
That, too, is relevant when deciding whether to embark upon a complaint filed a year after the union decision under review, 3 years after the Hydro decision allegedly tainted by "systemic" discrimination, and after a parallel complaint has been fully litigated.
The passage of time has other consequences as well.
The job competition that is at the heart of the complainants’ concern, took place four years ago. The union decision not to challenge the result of that competition was made in the fall of 1992. In the meantime, the organizational and labour relations environment at Hydro has undergone a significant change, both in respect of the particular job opportunities that were available in 1990, and the complainants’ personal circumstances.
It seems to me that, in the circumstances, it is highly artificial to embark in 1994 on litigation before the Ontario Labour Relations Board, which if successful, could result in even more protracted litigation before an arbitrator to consider what might or might not have been a breach of the collective agreement in 1990. It is equally artificial for the Board to make some assessment of what Hydro would/should have done in 1990, as the basis for some award of damages against the union. It would also be disruptive to the existing labour relations situation within the organization and existing employee relationships for those involved in the 1990 competition. (The artificiality of the exercise is underlined by the fact that the collective agreement under which the group grievance arose has long since expired and the situation of many of the affected employees has changed since 1990).
One simply cannot turn back the clock or ignore the passage of time, and the organizational and personnel changes which have taken place in recent years. And that, in turn, throws the additional year’s delay into sharp relief.
Finally, I do not think it is irrelevant that the complainants have filed a “human rights” complaint that overlaps this one.
This Board does not award costs (i.e. the “losing party” does not pay the expenses of the “winner”). But this does not mean that the proceedings are “free” for the parties or the public. Litigation is expensive, and these expenses may be completely unrecoverable – even by the party whose position is vindicated. These resource and cost implications are not irrelevant – particularly in light of the unsuccessful Chaudri complaint and the remedial difficulties to which I have already referred. Nor is it good labour relations policy to encourage dual litigation. And to the extent that this complaint has “human rights” overtones (for some but not all of the complainants) they are best pursued, if at all, in the forum specifically established to consider issues of that kind.
In all the circumstances of this case (including the delay in filing it, the previous parallel proceeding, the likelihood of success in this one, the nature and utility of any remedy that might flow, the cost implications, the passage of time from the critical events, the organizational and personnel changes at Hydro, and the shifting labour relations situation), I find that this is an appropriate case to exercise the Board's discretion under section 91 not to inquire into the complaint. In particular contexts, these various items individually, or in combination, might prompt the Board to exercise its discretion not to entertain litigation under section 91. Here, they all point in that direction.
The complaint is therefore dismissed.
Such dismissal is, of course, without prejudice to any rights which the complainants may have against any party under any other statute or in any other forum.