Ontario Labour Relations Board
[1997] OLRB Rep. September/October 840
3515-95-U John Demetriades, Applicant v. Canadian Union of Public Employees, Local 1144, Responding Party v. St. Joseph's Health Centre, Intervenor
BEFORE: Brain Herlich, Vice-Chair.
APPEARANCES: Harry Kopyto and John Demetriades for the applicant; B. Sheehan, K. McNama and C. Jankowski for the responding party; John E. Brooks and Mike Ryan for the intervenor.
DECISION OF THE BOARD; September 18, 1997
Reasons for Decision
1In a decision dated April 10, 1996 in this matter, significant portions of the applicant's complaint that the responding party (the "union") had violated section 74 of the Labour Relations Act, 1995 were dismissed pursuant to a motion brought by the union and supported by the intervenor (also referred to as the "hospital" or the "employer").
2Only one aspect of the applicant's claim survived that motion. The issue remaining to be litigated was described in the April 10, 1996 decision in the following terms (at paragraph 11 and following):
There is one further aspect of the application which I am unable to dispose of in this fashion. This relates to the applicant's claim that the union has violated the Act in refusing to judicially review the January, 1995 arbitration award. I am unaware of any case in which this Board has concluded that a refusal to judicially review an arbitration award constitutes a breach of the duty of fair representation; no such case was referred to by the parties. But while the applicant may well have to make new law to succeed in this case, I simply cannot ignore the fact that the applicant has specifically pleaded that the representative of the union explicitly agreed that an application for judicial review ought to be commenced. The union specifically denies that there was ever any agreement or undertaking or assurance that such a proceeding would be commenced - indeed, it asserts that the applicant was explicitly advised on the day that the "Acknowledgement and Release" was executed that such a proceeding would not be commenced and that there was no recommendation to do so. Ultimate findings of fact will have to await the evidence. For the purposes of the instant motion, I have accepted the facts pleaded by the applicant as true and provable. In this context, I am unwilling to find, at least at this preliminary stage of the proceedings, that an allegation that a union has failed to follow through on an explicit agreement to judicially review an arbitration award does not disclose a prima facie violation of the duty of fair representation.... This aspect of the application must proceed to a hearing on the merits.
Lest there be any lingering confusion, hearing in this matter will continue. That hearing, however, will be restricted to the allegation that the union's failure to initiate an application for judicial review of the arbitration decision dated January 18, 1995 was, in the circumstances of this case, a violation of section 74 of the Act...
3In accordance with the Board's decision, six further days of hearing were held in this matter.
4Most of the basic background facts giving rise to the remaining issue in this matter are not seriously disputed, at least in their broad parameters.
5The applicant is a former employee of the hospital. A series of grievances was filed on his behalf to protest various disciplinary measures, including his discharge, which had been imposed on him by the hospital. In addition, the applicant filed a complaint with this Board alleging that the employer's disciplinary measures constituted unfair labour practices. That application (Board File 3321-93-U) came before a (different) panel of this Board and in a decision dated March 11, 1994, that panel deferred consideration of the matter pending arbitration hearings which were scheduled to commence some two weeks later.
6Although the applicant's various discipline grievances were referred to the same arbitrator, it appears that they were not all heard at the same time. In a decision dated May 6, 1994, the applicant's 5 day suspension was reduced to a written warning.
7The applicant applied to this Board for a reconsideration of its decision deferring his complaint against the hospital. That application was dismissed in a decision dated June 7, 1994. The unfair labour practice complaint remained deferred pending completion of the arbitration proceedings.
8The arbitration proceedings continued on June 30, 1994 and in a decision dated August 4, 1994 the Board of Arbitration issued an award on consent of the employer, the union and the applicant. That award reinstated the applicant on certain terms and conditions. Essentially, the applicant was to be subject to a 24 month period of probation during which time the arbitrator was to remain seized to hear any allegation by the employer that the applicant had breached the terms of the award. The consent award also stipulated that the applicant was to stay his application before this Board pending his successful completion of the probationary period, following which his application to this Board was to be dismissed on consent.
9It was not long, however, before the hospital advised the board of arbitration of its view that the applicant had breached the terms of his probation. Arrangements were made to reconvene the board of arbitration and a hearing was scheduled for October 4, 1994. The next day a two sentence award was issued; it reads:
I order that no one in bargaining [sic] or in management discuss Mr. Santos' proposed evidence except counsel for the Union and counsel for the employer.
I order that the employer provide particulars as soon as possible of any incident it intends to rely upon at the adjourned hearing.
10While I will return to some of the circumstances of this award, some further details are in order. When the parties appeared for the commencement of the hearing on October 4, 1995, they discovered that the hospital nominee was unavailable on that day. Various options were discussed and, as a consequence, arrangements were made to have a different employer nominee sit on the board of arbitration that day. This was an option specifically consented to by the union. Furthermore, it was not disputed that the union granted its consent to proceed in that fashion based largely, if not exclusively, on the fact that that manner of proceeding was the option preferred by the applicant.
11While this turn of events is perhaps not earth shattering, it is, however, curious that when the award cited above was released it listed the original hospital nominee as a member of the board and bore his signature despite the fact that he was not in attendance at the hearing.
12Further to the arbitration award just cited, the hospital, by letter dated November 29, 1994, provided particulars and supporting documents upon which it intended to rely before the board of arbitration at the hearing which was scheduled to continue on January 17, 1995. These were forwarded to Cynthia Watson who acted as counsel for the union with respect to the applicant's arbitration proceedings.
13Ms. Watson arranged to meet with the applicant and others on January 10,