Murielle Waito v. La Cité Collégiale Ottawa and Ontario Public Service Employees Union, 1998 CanLII 18293

Murielle Waito v. La Cité Collégiale Ottawa and Ontario Public Service Employees Union

[1998] OLRB REP. JULY/AUGUST 636

2484-95-U Murielle Waito, Applicant v. La Cité Collégiale Ottawa and Ontario Public Service Employees Union, Responding Parties

BEFORE: K G. O 'Neil, Vice-Chair.

APPEARANCES: Murielle Waito, Richard Dolbec, Gaetanne Caron, Christine Lalonde, Jacques Pelletier, Anitta Aaltonen, Lucie Grondin for the applicant; Anne Touchette, Diane Stang, Allan Stead, Michael Gottheil for OPSEU, Andre Champagne, Denise Couvillon for La Cité Collegiale.

DECISION OF THE BOARD; July 23, 1998

1This is a complaint under the Colleges Collective Bargaining Act, (referred to below as the "CCBA") against the union, OPSEU, and the employer, La Cité Collegiale. In a preliminary decision dated October 11, 1996, the motions brought by the employer and the union to dismiss this matter for want of a prima facie case were dismissed.

2There were seven days of evidence and argument, all of which has been carefully considered, even if not all set out below.

3Ms. Waito complains that the union and the College have breached the CCBA in a variety of ways, related to the fact that she was treated as a contractual employee rather than as a member of the bargaining unit while she worked in the bookstore for more than three years. The underlying dispute is whether Ms. Waito should have been treated as an employee in the bargaining unit represented by OPSEU when the College terminated her contract in June, 1994.

The factual context

4The Cité Collegiale, a community college in Ottawa, serving the Francophone community, opened to students in September, 1990. Ms. Waito started working in the College bookstore as a contract employee in May 1991.

5Ms. Waito's contract was initially for less than 24 hours per week, and indicated she was considered temporary help. However, her second contract, commencing August 30, 1991 (in its corrected form) shows on its face that she worked 35 hours per week, that she was buying books, and that it was not considered a project of an exceptional nature - all important facts in determining how the work she did is properly viewed under the collective agreement and the CCBA. The contracts in evidence demonstrate that she worked thirty-five hours per week for over forty weeks of the fiscal years 1992 to 1994. The breaks between contracts were few and were under two weeks, except for the period March 31 to June 15, 1992. However, before leaving for this break, Ms. Waito had a signed contract for her return. Eight weeks into the fiscal year, 1994/1995, she was advised of the non-renewal of a two month contract. The circumstances leading up to and surrounding that non-renewal directly precipitated these complaints.

6Once a support staff employee is working more than twenty-four hours on a regular basis, there is reason to question why they are not being treated as part of the support staff bargaining unit prescribed by the CCBA. In order to monitor this, the union receives periodic lists indicating what employees are working on contracts, and for what hours. Ms. Waito was indicated as working 35 hours per week on at least one such list prior to her termination. In the fall of 1993, Daniel Gravel, a new union steward, talked to Ms. Waito about her hours of work, and status as a contractual employee, as part of an attempt to get to know the members of the bargaining unit. She and Ms. Waito discussed whether the position should be unionized. Ms. Gravel questioned the College about Ms. Waito's position among others, as to whether they should be in the bargaining unit.

7Diane Stang, Local union president, worked with Ms. Gravel on monitoring the status of contractual employees at the College. She agreed with employer counsel that, for a number of years, the College and the union differed over the interpretation of the collective agreement as to the treatment on contractual employees. Their difference of opinion of this subject was still there at the end of May 1994. Before May 31, 1994, there had been no grievance about it. She also agreed that the posting process by which employees got permanent, bargaining unit, jobs was well understood and accepted. However, there is no evidence that shows that the union ever agreed that contractual people working more than 24 hours per week on work that was not a non-recurring project, or Ms. Waito specifically, were properly treated as not in the bargaining unit.

8The evidence indicates that Ms. Waito was relatively satisfied with the situation at the College until the fall of 1993. And she testified that her relationship with her supervisor, Anitta Aaltonen, was satisfactory until January of 1994. Ms. Waito links the deterioration of her relationship with her supervisor with the fact that she was speaking with the union, although there is no evidence before me that Ms. Aaltonen knew that Ms. Waito was speaking to the union. Ms. Waito says that she realized things were not as she had hoped when one of her colleagues, Richard Dolbec, another contractual employee, was terminated, in the fall of 1993. Ms. Waito is of the view that the cause of Mr. Dolbec's termination was that management learned he had called the Labour Board to see if he could get paid for Labour Day. Ms. Waito said that it was after Mr. Dolbec's departure that she felt she had to do something, and spoke to the union.

9Ms. Waito wished to bring further evidence about Mr. Dolbec and others' tenure and termination at the College, but this line of evidence was not allowed. It is my view that Ms. Waito's complaint did not refer to the situations of other employees in a way which would have put the responding parties on notice that there was any claim arising out of the others' situations, and there is no relief claimed for the others. Moreover, to allow evidence of the alleged wrongful treatment of other employees would have allowed similar fact evidence which was insufficiently probative on the issues in dispute, and which would unnecessarily protract an already lengthy hearing.

10In the spring of 1994, the College declared that, retroactive to October, 1993, the position occupied by Ms. Waito was an Appendix D position. Appendix D is a portion of the collective agreement that gives people replacing unionized employees some rights under the collective agreement. These are limited to the right to be paid according to the collective agreement and to receive five percent vacation pay. An Appendix D employee may only grieve the violation of the above terms, and not other provisions of the collective agreement, such as the provision about discharge for just cause. In a May 4, 1994 memo to the union about this, Human Resources indicated that Ms. Waito held an Appendix D contract from October 25, 1993, to June 30, 1994. Those dates do not coincide with any of the written contracts in evidence, the latest of which was from May 2 to May 31, 1994.

11When Ms. Waito received the notification that she had been designated Appendix D, she thought she had become a member of the bargaining unit. However, when she talked to Ms. Gravel she was told this was not the case. Since the person Ms. Waito was said to be replacing was still working in the bookstore doing the same functions as before, neither Ms. Waito nor the union accepted the categorization of her position as Appendix D. Although Ms. Gravel and Ms. Rainville of Human Resources had a number of exchanges about it, nothing was resolved.

12In regards to Ms. Waito's Appendix D designation, Ms. Aaltonen testified that this occurred after Ms. Grondin, another bookstore employee, went from a contractual to a permanent position as a result of a posting. She said that they had to fill Ms. Grondin's position, and that Ms. Waito was classified Appendix D because she had the most seniority of the contractual people. She explained that after discussions with Mr. Pelletier, her superior, they determined Ms. Waito was the person who would be there if there was a need after the competition. Ms. Aaltonen could not explain why Human Resources made the Appendix D designation retroactive to October 1993, why the union was only notified in May when the union is supposed to be notified at the beginning of such an assignment, or why the Appendix D contract supposedly expired on June 30, when there was a written contract expiring May 30.

13Late in autumn 1993, when the budget process for 1994 started, Ms. Aaltonen asked for a permanent position in the bookstore, which was approved. Ms. Aaltonen emphasized it was not Ms. Waito's position per se, but one that would have to be filled in the normal course. There was a bookstore staff meeting on May 13, 1994 with Mr. Pelletier Director of Ancillary Services, which includes the bookstore. At the May 13, 1994 staff meeting, Mr. Pelletier indicated that contractual employees would be extended to June 30, 1994. Ms. Waito's contract was never extended in writing, and was not renewed after May 31, 1994.

14Ms. Waito alleges that at the same staff meeting in May, Mr. Pelletier said, "Congratulations, your position has been finally approved." He denies saying this, and others who were at the meeting do not recall his saying this. However, Ms. Aaltonen acknowledged that by the time of this meeting, they knew that a permanent position had been approved for the bookstore. Although she underlined that she did not consider it Ms. Waito's position, it appears entirely possible that something was said about the budgetary approval at the meeting by Mr. Pelletier, despite his not recalling it in testimony. However, in the end, nothing turns on this, because saying the position was approved is not the same as promising Ms. Waito the position, given the process that all, including Ms. Waito, were familiar with - which included an application and interview process.

15Ms. Waito maintains that she was constantly seeking to get a permanent job and was promised one by both Ms. Aaltonen and Mr. Pelletier. In the end, nothing turns on whether or not Ms. Waito was promised a job, since that cannot affect the statutory rights Ms. Waito claims were breached in this application. However, the matter is relevant to the background to this dispute. Both Ms. Aaltonen and Mr. Pelletier testified as witnesses for Ms. Waito, and denied promising Ms. Waito a permanent position. They both emphasized that any new permanent position had to go through the normal posting and selection process and neither had the power to promise or award a position to an individual. Further, Ms. Aaltonen said Ms. Waito did not ask how to get into the union, and sent her a note in 1993 saying she was fed up with the union, although that note was not offered in evidence.

16As part of her evidence about being promised a permanent position, Ms. Waito said that she was shown plans for a new site for the bookstore, and that Ms. Aaltonen showed her where she would be working. Ms. Aaltonen denied that showing Ms. Waito the plans was to assure her of a permanent position and observed that everyone in the bookstore was invited to participate in planning the space, a process that had been going on since 1992.

17Ms. Waito testified that when she would ask Ms. Aaltonen and Mr. Pelletier about a permanent position, they would put her off with statements about the budget process. Nonetheless she also gave evidence that, relying on what she saw as Ms. Aaltonen's promise of a permanent position, she cancelled all the permits on a small business, which she would not be able to operate if she had a permanent position. She said that the end of the business had nothing to do with the economic climate. She said that the loss of the position put her and her husband in a bad financial state. They tried to sell the business building, but were unable to.

18It is my finding that neither Ms. Aaltonen, nor Mr. Pelletier ever promised Ms. Waito a permanent position in the sense of guaranteeing her such a position. On the other hand, it is understand­able from all the circumstances that Ms. Waito thought she would shortly be getting a permanent position when it was announced in May, 1994 that a permanent position for the bookstore had been approved in the budget. Although she was aware that she would have to go through a posting procedure in order to get a permanent job, under the system the College had in place when contractual positions were converted to permanent, she knew she was the most "senior" contractual employee and the person who had been buying the books for the store for three years. Further, there is no evidence that she had been told her employment was in question. To the contrary, both the memo about her status as Appendix D and Mr. Pelletier's announcement indicated she would be extended again, to June 30.

19When Ms. Gravel, the union steward, first spoke to Ms. Waito, the latter exhibited reluctance to talk to her at work, and they sometimes spoke on the phone instead. It became clear that Ms. Waito was having difficulties at work, centering around workload and her relationship with her supervisor. The evidence indicates that Ms. Waito was often upset at work, particularly in her last year at the College. Ms. Waito testified that she felt intimidated by Ms. Aaltonen. Ms Aaltonen said Ms. Waito felt stressed by getting her work done, that she tried to help her but at some point Ms. Waito no longer wanted to speak to her, so she could not do very much. The two differed over what was reasonable to expect Ms. Waito to do in terms of computer work, and Ms. Aaltonen found Ms. Waito wanting in computer skills.

20There was a considerable quantity of evidence about the details of Ms. Waito's workload, and interactions with her supervisor. Ms. Waito believes that Ms. Aaltonen was trying to "get rid of her", and asserted that it was related to her union rights. I do not consider it necessary to make any detailed findings of fact about the workload and interpersonal issues affecting the relationship between Ms. Waito and Ms. Aaltonen. The issue before me is not whether Ms. Waito's workload was fair in a general sense, but whether she was dealt with negatively for reasons related to her union rights or rights under the CCBA. With the exception of the issues which will be dealt with below about talking to a union steward at work and the steward's intervention in the matter of breaks, there is nothing in the evidence other than a temporal link, to connect Ms. Aaltonen's dissatisfaction with Ms. Waito to issues of union or statutory rights.

21As to the temporal connection, Ms. Waito dates her difficulties at work to the period when she started to talk to the union. However, there is simply insufficient evidence that Ms. Aaltonen knew she was talking to the union or reacted negatively because of it. Particularly in the absence of a reverse onus in the CCBA, I do not find that the evidence provides a basis for the inferences Ms. Waito asks to be drawn.

22There was evidence that the union steward mentioned a complaint Ms. Waito had that there were no breaks in the bookstore, to human resources. Ms. Aaltonen denied that there were no breaks, although she acknowledged that they were not scheduled with precision because of workload demands. She recalled human resources asking if there were breaks, and having answered in the affirmative. However, she denied having any knowledge that the union had intervened in this matter, or that there had been a complaint from Ms. Waito, and there is no contradictory evidence. Thus, the evidence does not establish a causal connection between Ms. Aaltonen's criticisms of Ms. Waito and the union's intervention about breaks.

23If anything, the evidence indicates the cause of the difficulties between Ms. Aaltonen and Ms. Waito, which Ms. Waito refers to as harassment, had other sources - that the two had a working relationship marked by differences, at least in the last year of Ms. Waito's tenure in the bookstore, which centered on issues about the use of the computer. That they did not resolve them prior to Ms. Waito's termination was affected, in my view, by significant differences in the personalities of the two women and the ways in which they express themselves. Mr. Pelletier said he was aware of the intimidation Ms. Waito suffered from Ms. Aaltonen, but when pressed for details, it was about workload, and difficulties in communication between Ms. Waito and Ms. Aaltonen, not union rights.

24Both Ms. Waito and Mr. Dolbec, a co-worker, testified that they had been told that anyone from the union was to be sent to their supervisor. Two of Ms. Waito's witnesses who worked in the bookstore, Lucie Grondin and Christine Lalonde, gave contrary evidence, and said there was no prohibition against talking to the union in the bookstore. Ms. Aaltonen denied giving such a directive and said that it would not be in the interest of a manager to give such a directive. However, she said as a manager, she thought she should know what was going on in the bookstore. Similarly, Mr. Pelletier testified that the order of the day was that a person can talk to whomever they like, but that questions concerning contracts, hours, or job descriptions should be referred to a manager. At one point in her evidence, Ms. Waito said she told Ms. Gravel on her first encounter with her in the bookstore that she did not have the right to speak to her - that Ms. Grondin would tell Ms. Aaltonen, and that Ms. Aaltonen had instructed her to send anyone who asked questions about contracts to her office. Ms. Gravel says that neither Ms. Waito nor anyone else told her they were forbidden to talk to the union, or that there was a directive to send union representatives to see Ms. Aaltonen. She went to the bookstore several times, and talked to Ms. Waito when she wanted.

25Given the conflicted nature of the evidence on this subject called by Ms. Waito, and the fact that the union witnesses were not aware of such a directive, I do not find that there was a directive that employees were not allowed to talk to the union in the bookstore. What is more likely than not, in my view, having considered all the evidence on the subject, is that some remark was made that questions about contracts should be referred to the manager, which was interpreted by Mr. Dolbec and Ms. Waito in the fashion that it was, because of concerns they had at the time.

26Things came to a head around Ms. Waito's relationship with her supervisor in the end of May, 1994, when Ms. Waito called Ms. Gravel in obvious distress on May 30, 1994 saying that the situation was no longer viable. Ms. Gravel had been delaying taking any formal action about Ms. Waito's position, for fear that it would jeopardize her renewal as a contract employee. However, given the extent of Ms. Waito's concerns at the end of May, Ms. Gravel determined it was time to file a grievance.

27On May 31, 1994, the union filed a policy grievance, claiming that the bookbuyer's position should be in the bargaining unit. The fact that the grievance did not claim that Ms. Waito should have the position was consistent with the union's focus on positions as falling within the bargaining unit, and the collective agreement's requirement that new bargaining unit positions be posted, with seniority as a factor in selection.

28On the same day as the grievance was filed, but independently, and without the knowledge of the union, Ms. Waito made a complaint to the College vice-president that her supervisor was harassing her. Ms. Gravel was provided with a copy later the same day. Ms. Waito's employment was terminated the following day, June 1, 1994.

29Ms. Waito says that when she was fired, she consulted Ms. Gravel who said there was nothing she could do for her. Ms. Gravel does not recall giving this advice, or talking to Ms. Waito after May 31, but granted that it was possible that she had. She recalls that prior to filing the May 31 grievance, she told Ms. Waito that she could not grieve personally as she was Appendix D, but that the union could. I found Ms. Gravel a very straightforward witness, who honestly seemed not to recall whether she had given Ms. Waito the advice that there was nothing she could do for her or not. Ms. Waito's recollection was somewhat inconsistent as well on other points and there is always the possibility that Ms. Waito misunderstood whatever Ms. Gravel said. However, having weighed the evidence on this point, it is my finding that it is more probable than not that Ms. Gravel did give her that advice or communicate in some way that the union could not help her after her termination. Otherwise, it seems odd that Ms. Waito, who had been regularly calling Ms. Gravel to share her troubles, would abruptly stop doing so and go to an outside lawyer, with the attendant expense. The fact that there is no mention of the June 1 contact in a letter from Ms. Waito to Mr. Sauer of September 22. 1994, something that Ms. Waito wrote closer to the time of the incident than her pleadings or testimony, does not override this in my view. Ms. Waito did not recount all the same details each time she set out her experience at the College. Although the evidence would be stronger if she had included this particular detail, I am not convinced that its omission means it did not happen. The letter does indicate the composition of a committee investigating the termination and says that this information came from Ms. Gravel. There is no evidence of where else that information might have come from, and no suggestion that it came from management. So it also stands as some evidence that there was communication with Ms. Gravel after the termination.

30Ms. Waito retained counsel privately, who communicated with the College by letter dated June 8, 1994. An investigation planned by the College into the harassment complaint was stopped after the lawyer's letter. A representative of human resources later told Ms. Gravel that the matter was in the lawyers' hands. Ms. Waito testified that her lawyer discouraged her from meeting with Mr. St. Jules to discuss her letter of May 31, as she had informed her lawyer that Mr. St. Jules was a friend and protector of Ms. Aultonen. Employer counsel responded to Ms. Waito's lawyer's letter on July 13, 1994, confirming that she would not be reinstated.

31The union grievance claiming the bookbuyer position as a bargaining unit position was resolved in August, 1994 with the result that a permanent position was to be created for the budget year 1995-1996. Ms. Waito was not aware of this resolution until the following year. In response to budgetary cutbacks, this position was later reserved by agreement between management and union representatives for a bumping process. It was filled as a permanent position in August, 1995. In the meantime, it was occupied by another contract employee, who worked 35 hours a week.

32In late summer 1994, Ms. Waito contacted the union again, asking them to pay her lawyer's account. This was declined, by Mr. Alan Stead, the Ottawa Regional Representative, because, as he told Ms. Waito at the time, legal fees have to be approved in advance. As to the grievance, Mr. Stead recalls that he told her to contact the local. He denies he said the union couldn't do anything for her or that she could not file a grievance. He does not recall Ms. Waito asking him to have Ms. Gravel call her, or that neither of them called her back, as Ms. Waito alleges. In the end, nothing turns on the differences between Mr. Stead's and Ms. Waito's evidence, as any grievance would have been well out of time by the time Ms. Waito called Mr. Stead in any event.

33After her conversation with Mr. Stead, and the lack of any further response from the union, Ms. Waito tried to get a response to her complaints through other channels. One of these was a contact with the Council of Regents, the provincial governing body for community colleges. This lead to a referral to Mr. Sauer, President of an OPSEU Local in North Bay, and an OPSEU representative on a provincial union-management committee. Mr. Sauer came to Ottawa in October, 1994 to meet with the Local, Ms. Waito and other employees with related concerns. As a result of this meeting, a second grievance was filed on October 6, 1994, contesting Ms. Waito's termination.

34Ms. Waito maintains that Mr. Sauer promised to pay her lawyer's bills and to make her whole. In this regard, we prefer Mr. Sauer's evidence that he did not make such a statement, and would not have done so. He underlined in his evidence that he did not know Ms. Waito at the time they had the phone conversation in which he is alleged to have made these promises, and had only heard her story for the first time. He wanted to hear the Local's point of view, and accordingly told her he would look into it. Although Ms. Waito is convinced that the union promised to pay her account, it seems unlikely, given the inherent probabilities, and the union's policy on the matter. It is more probable than not, that Ms. Waito, hoping as she was that someone would take on her problem, misunderstood when Mr. Sauer said he would do what he could, and came to believe that he had made promises.

35The discharge grievance went to arbitration in April, 1995. The college posed a timeliness objection, which was accepted by the arbitrator, who has no authority to extend time limits under the CCBA, as there is in the Labour Relations Act. The evidence is that the union's lawyer insisted that Ms. Waito have an opportunity to say what she wanted to say, and she explained her situation and the history of her employment. Ms. Waito gave evidence to the arbitrator about why the grievance had not been filed earlier, and was cross-examined. The arbitrator found the delay was not the union's fault.

36In 1996, the management of the bookstore was contracted out, so that Ms. Anitonen, although still working in the bookstore at the College, was no longer in the employ of the College when she gave evidence.

37The evidence is clear that the process adopted by the College for approving permanent positions throughout the time period in issue involved managers' proposing positions during the budget process. If they were approved, the position then would be posted with a selection process which involved applications and interviews by a committee. No manager had the authority to either create or fill a bargaining unit position unilaterally, or to promise to do so.

38Ms. Aaltonen testified that the reason that Ms. Waito was not in a permanent position in the bargaining unit although she worked 35 hours per week for more than three years was that the position remained a contractual one, which had not been through the process by which permanent positions are created and filled.

39Mr. Pelletier gave evidence that the years in which Ms. Waito worked in the bookstore were difficult ones financially, and that permanent positions were not created in some instances for budgetary reasons, i.e. one could get the work done for less by maintaining the position as contractual. As to why the bookbuyer position was never posted, Mr. Pelletier recalled that it had been submitted several times and approved at least two years in a row. He said that in 1993, he asked that it be posted, but at the request of Mr. St. Jules, the Vice-President to whom he reported, he delayed. Mr. St. Jules wanted him to wait until the end of August or September, when all support staff would be back after the summer and could see such a posting. However, due to a further request for budget cuts in the fall of 1993, a decision was made not to post in the fall of 1993 either. In looking at how to save money, he said getting people on contract for the amount of hours needed, was one way of doing it, which would avoid creating a permanent position. Other measures available included decreasing inventory.

40Mr. Pelletier also testified that he was aware of the situation where Ms. Waito's contract stated she worked less than 24 hours when she actually worked 35 hours. He testified quite candidly that management knew that after a while with a contract showing more than 35 hours, the right to join the bargaining unit would be brought up. Giving out a 24 hour contract, he said, they were right under that line, and there would not be any questions. Mr. Pelletier observed that it cost less even if a contractual worked more than 24 hours a week, because there were no benefits for contractual employees and their hours can be increased or decreased as needed. Over a period of time, over different people, he explained, it is a way of saving money. When asked if it was a way to bypass the collective agreement (contourner la convention collective) he said not at all - it was a way to cut costs with the budget restraints.

41Ms. Waito made a number of allegations about fraudulent contracts. Although there were a number of Ms. Waito's contracts that were corrected retroactively, and a lack of precision about how they were filled out and when they were signed, in relation to when they started, there is nothing about the form of the contracts themselves that suggests a breach of the CCBA. Time slips are what actually determines what a person gets paid. There is no evidence that Ms. Waito was ever not paid for time worked, even during the period where her contract shows her as in a position working less than 24 hours per week at a time when she was working 35 hours a week. The evidence is clear, as well, that although there was some confusion over the lists of contractual people given to the union, that the union had seen Ms. Waito's name as working more than 35 hours on at least one occasion, and both Ms. Gravel and Ms. Stang were aware that she was working regularly in the bookstore.

42Mr. St. Jules, the Vice-President to whom Mr. Pelletier reports, signed the letter informing Ms. Waito that her contract would not be renewed. He did not testify. Mr. Pelletier testified that he was not aware Ms. Waito was going to be fired on June 1, although he had discussed the situation between Ms. Aaltonen and Ms. Waito with Mr. St. Jules on May 30. Mr. Pelletier was not privy to the reasons for the termination. However, he had earlier discussed Ms. Waito's workload with Ms. Aaltonen, when Ms. Waito had complained to him. On this occasion, Ms. Aaltonen had expressed the view that if things did not change at Ms. Waito's level in regards to her ability to handle the computerized work, that the College should look at not renewing. At the time, Mr. Pelletier proposed a training program for Ms. Waito, a review of her tasks and that work should be done on communication between Ms. Waito and Ms. Aaltonen. During the hearing Ms. Waito asked Ms. Aaltonen why she was fired. Ms. Aaltonen referred to the letter from Mr. St. Jules and said she could not answer for senior management. She then went on to refer to Ms. Waito's computer problems, but did not indicate they were the reasons Mr. St. Jules let Ms. Waito go.

Arguments and Conclusions

I. The allegations against the union

43The union is alleged to have breached sections 67 and 76 of the CCBA, which provide as follows:

67. The bargaining units set out in the Schedules are the units for collective bargaining purposes under this Act.

68. An employee organization shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees, whether members of the employee organization or not.

44Ms. Waito's complaint about the union is that they did not represent her. Examples given were that she was never given a collective agreement. Ms. Gravel told her after her firing that she had no union rights, and that she had to get her own lawyer. Further, she alleges the union (together with the college) was responsible for her being outside of the time limit with the second grievance.

45Union counsel submits that there is no evidence of behaviour that is arbitrary, discriminatory or in bad faith, and therefore, no breach of the law. She argues that in trying to clarify the situation of the contractual employees, starting in 1993, Ms. Gravel well and truly represented her members. Further, the union tried to help Ms. Waito, even though she did not consider herself a part of the collective agreement either, filing grievances about the positions, and taking her grievance to arbitration. Counsel underlined that it is not for the Board to decide if it was the decision it would have made, but whether it was a breach of the law. Even if it was a case of bad judgment. submits counsel, it does not constitute a breach of the law.

46Union counsel notes that the union tried to resolve the contractual issues according to the positions, not according to the individuals. This was a means to protect the bargaining unit and the collective agreement's requirement that positions be posted. It had the right to take these factors into account, on behalf of both its members and its potential members. It is argued that this was a reasonable approach, taking into account all the elements of the situation. If, years later, it is determined that this was not the best strategy, or a miscalculation, it is not a breach of the law, submits counsel.

47Union counsel notes that the burden of proof is on Ms. Waito and refers to the voluminous jurisprudence on the duty of fair representation including Ford Motor Company Limited, [1973] OLRB Rep. Oct. 519, Walter Princesdomu, [1975] OLRB Rep. May 444, ITE Industries Limited, [1980] OLRB Rep. July 1001, Savage Shoes, [1983] OLRB Rep. Dec. 2067, and Leila Yateman, [1993] OLRB Rep. Aug. 777.

48Applying the principles set out in those cases, union counsel submits that it is important that Ms. Waito never complained to the union between 1991 and 1993 and apparently indicated to Ms. Aaltonen that she was fed up with the union. Furthermore, despite her inexperience, Ms. Gravel went to see Ms. Waito. It is because of Ms. Gravel's persistence that the union learned of Ms. Waito's allegations of denial of breaks, harassment, and repetitive contracts. Against the background of a relatively young college, and the start-up problems with contractual positions, Ms. Gravel was looking to collect enough evidence to get the positions into the bargaining unit, and that took time. She was also balancing the potential effect of a grievance on Ms. Waito's renewal of contract. Union counsel underlines that Ms. Gravel did her best, taking action on Ms. Waito's concerns despite the fact that neither of them considered her a member of the bargaining unit at the time.

49As to the settlement of the grievance, counsel observes that the jurisprudence is clear that a union has the right to make an agreement to settle a grievance. And the main part of the grievance was granted, the right to have a union position.

50As to Ms. Waito's complaint that she was not given a collective agreement, counsel underlines that it was not the union's obligation to give her a collective agreement, and she was considered contractual during her employment.

51Union counsel submits that the question is: what else should the union have done? The union can not act unilaterally, and Ms. Waito had not communicated with them before the fall of 1993. As well, it is the union's position that she did not communicate with the union about her firing or give any instructions to file a grievance during the time lines required by the collective agreement. The Board is urged to conclude that the union representatives acted in good faith, without discrimination or arbitrariness.

52The standard applied under the CCBA is the same as that applied under the Labour Relations Act, 1995. That is, a union is not guilty of a breach of the duty of fair representation if it acts honestly, with due regard for the facts of the case and without discrimination. Mistakes or simple negligence are not sufficient to constitute a breach. However, the union is required to turn its mind to the situation and give honest consideration to relevant facts.

53The facts in relation to the conduct of the union are as follows. The union was aware of Ms. Waito's situation as early as the fall of 1993, and had taken steps to clarify the situation. Nothing definitive was done until May 31, 1994 when a grievance in regards to the position, but without any relief claimed for Ms. Waito, was filed. This was consistent with the union's approach which focused on positions and not individuals.

54I have found as a fact that when Ms. Waito was terminated, she was told by Ms. Gravel there was nothing she could do. There was then a period of approximately three months before Ms. Waito approached the union again in the person of Mr. Stead in Ottawa. In the meantime, the union settled the May 31 grievance as the employer agreed to create a permanent position in the following year's budget.

55Although the evidence is conflicting about whether Mr. Stead had agreed to call Ms. Waito back and did not, or whether he referred Ms. Waito to Ms. Gravel, I have found that nothing turns on this particular conflict in the evidence. That is because even if Mr. Stead had immediately responded to Ms. Waito's desire for assistance, the time lines in the collective agreement were long past, and the grievance of May 31 had already been settled. Further, Ms. Waito contacted Mr. Sauer shortly afterwards.

56Given that the CCBA does not bestow the authority to extend time lines on arbitrators, the result of the arbitration of the late grievance was not surprising. And there is nothing before me which would suggest there was any breach of the CCBA in how the arbitration was handled by the union. The arbitration decision does not set out the basis on which the conclusion that the delay was not the union's fault and conflicting views were expressed in argument as to whether I was precluded from coming to an opposite conclusion. However, in the end it is not necessary to deal with that issue. The problem, if there is one, was in the earlier stance of the union: that Ms. Waito was not a member of the bargaining unit, and that nothing could be done for her. Evaluating that stance is the basic task before me, to which I now turn.

57The CCBA provides a clear basis for Ms. Waito to have been entitled to representation by OPSEU. "Employee" is defined under the CCBA as follows:

"employee" means a person employed by a board of governors of a college of applied arts and technology in a position or classification that is within the academic staff bargaining unit or the support staff bargaining unit set out in Schedules 1 and 2; ('employee")

The support staff bargaining unit referred to in that definition is as follows:

The support staff bargaining unit includes the employees of all boards of governors of colleges of applied arts and technology employed in positions or classifications in the office, clerical, technical. health care, maintenance, building service, shipping, transportation, cafeteria and nursery staff but does not include,

(i) foremen,

(ii) supervisors,

(iii) persons above the rank of foreman or supervisor.

(iv) persons employed in a confidential capacity in matters related to employee relations or the formulation of a budget of a college of applied arts and technology or of a constituent campus of a college of applied arts and technol­ogy including persons employed in clerical, stenographic or secretarial posi­tions,

(v) other persons employed in a managerial or confidential capacity,

(vi) persons regularly employed for not more than twenty-four hours a week,

(vii) students employed in a co-operative educational training program undertaken with a school, college or university,

(viii) a graduate of a college of applied arts and technology during the period of twelve months immediately fotlowing completion of a course of study or instruction at the college by the graduate if the employment of the graduate is associated with a certification, registration or other licensing requirement,

(ix) a person engaged for a project of a non-recurring kind,

(x) a person who is a member of the architectural, dental, engineering, legal or medical profession, entitled to practice in Ontario and employed in a profes­sional capacity, or

(xi) a person engaged and employed outside Ontario.

The recognition clause in the collective agreement provides as follows:

1. Recognition

1.1 Exclusive bargaining agent

The union is recognized as the exclusive bargaining agent for all support staff, employees of the Colleges, save and except

• foremen and supervisors;

• persons over the rank of foreman or supervisor;

• employees performing duties that require the use of confidential information relating to employee relations and the formulation of the College budget of or the Campus budget as the case may be;

• persons regularly employed for 24 hours per week or less and persons employed tempo­rarily during the College vacation periods;

• students employed on a cooperative educational training program with a school, college or university;

• graduates of the College employed for up to 12 months following completion of their courses and associated with certification, registration or other licensing requirements;

• persons hired for a project of a non-recurring kind.

Any differences in the wording of the two descriptions of the bargaining unit have no significance for this decision.

58Section 52 of the CCBA provides as follows:

52. Every agreement shall be deemed to provide that the employee organization that is a party thereto is recognized as the exclusive bargaining agent for the bargaining unit to which the agreement applies.

59Section 67 provides that the bargaining units set out in the statute are the bargaining units for collective bargaining:

67. The bargaining units set out in the Schedules are the units for collective bargaining purposes under this Act.

60Read together these statutory provisions give OPSEU the right and obligation to represent employees in the described bargaining units, and employees in those bargaining units the right to be so represented.

61The basis for both the union's and management's position in this matter is that Ms. Waito was not in the bargaining unit until her position was approved as a permanent one. Given the statutory language, I do not find this to be the correct starting point. Rather, one must start with the categories used by the statute - the duties and number of hours regularly worked.

62The effect of the above statutory provisions, is that people working the number of hours at the kind of tasks that Ms. Waito did for three years are in the bargaining unit, and represented by OPSEU, by force of law. None of the listed exceptions apply to the facts of this case. The College acknowledged at the hearing that her work was not an exceptional or non-recurring project. The union did not suggest otherwise. Employer counsel argued, as will be set out in more detail below, that the parties were free to treat positions as not in the bargaining unit, and did so out of bona fide operational concerns in the start-up phase of the College. That proposition may be valid in a situation where the parties are free to determine the scope of the bargaining unit between them. However. I am not persuaded that it has any validity where the statute prescribes the bargaining unit. It is trite law that the parties cannot contract out of a statute. The statute, not the parties' consent, gives rights to individual employees to be in the bargaining unit and to be represented by a bargaining agent, as well as to the union to represent those employees.

63There is no evidence that union representatives ever turned their mind to the statutory provisions which define the bargaining unit. Rather, the evidence is that the union representatives involved made inquiries of the employer, but in the context of its acceptance that positions were or were not in the bargaining unit depending on whether they had been deemed permanent by the employer. Consistent with this was its view of its inquiries about Ms. Waito's position as a kind of gratuitous service to a fellow employee who was not in the bargaining unit.

64Do the above facts constitute a breach of the CCBA? Were the union representatives acting arbitrarily, discriminatorily, or in bad faith? In Savage Shoes Ltd., [19831 OLRB Rep. Dec. 2067, the Board had this to say about the above terms at para. 36:

….."Bad faith" and "discriminatory", therefore, test for the presence, in the process or results of union decision-making of factors which should not be present. "Arbitrary", on the other hand, describes the absence in decision making of those things which should be present. A decision will be arbitrary if it is not the result of a process of reasoning applied to relevant considerations. The duty not to act arbitrarily requires a trade union to turn its mind to the matter at hand.

and at para. 39:

The required thought process may involve more than the simple application of logic to the information then at hand. Decision making may be arbitrary, If before making its decision, the union fails to identify and seek out sources of further relevant information which should be taken into account in order to make that decision: Canadian Union of Public Employees Local 2327, [1982] OLRB Rep. June 623; Swing Stage Ltd. re Alvin Plummer, [1982] OLRB Rep. Nov. 1920.

65Having carefully considered the matter, it is clear to me that nothing in the union's behaviour manifests bad faith. Having observed Ms. Gravel and Ms. Stang give evidence, there is no doubt in my mind concerning their good faith in the efforts they made to inquire about Ms. Waito's position. The evidence is clear that Ms. Gravel was new to her duties, and she was conscientiously going about trying to master the situation at hand. Similarly, Ms. Stang was honestly working on the problems regarding the list of contractual employees, albeit without immediate success.

66As to discrimination, Ms. Waito did not suggest that there was any discrimination against her by the union, and acknowledged that Ms. Gravel did try to help her. Her allegations of discrimination were directed towards her treatment by her supervisor and management and will be dealt with below. Moreover, there is no evidence at all that the union discriminated against Ms. Waito personally. She was treated in the same manner as other contractual employees. Whether or not the union discriminated against the group of contractual employees is not something that was argued, and given my conclusion on the question of arbitrariness, which follows, is not necessary to determine.

67As to arbitrariness, the case is somewhat more complex. This is not a case where the union thoughtlessly ignored the situation. Ms. Gravel, for instance, did not exhibit a "non-caring attitude", one of the indicators of arbitrary behaviour used in the Board's jurisprudence. Ms. Gravel listened to Ms. Waito's concerns and thought them serious enough to warrant a grievance. However, this was all based on what I find to be an erroneous premise: that Ms. Waito was not entitled to representation. It is my view of the statutory provisions above that Ms. Waito was a person in the bargaining unit to whom the union owed a duty of representation.

68The parties' practical approach to contractual positions cannot in my view diminish the fact that Ms. Waito had a statutory right to be represented by OPSEU, which was not recognized by them. In this context the fact that Ms. Gravel personally exhibited a caring attitude to Ms. Waito, and made efforts on her behalf, pales in comparison to the fact that the union as an institution is not likely to be carrying out a duty of fair representation that it does not acknowledge having.

69The text of the May 31, 1994 grievance reflects the idea that the union was not actually representing Ms. Waito in filing the grievance, asking as it does for a declaration that her position is vacant and not asking any remedy for her at all. It reads as follows:

Union grievance under Article 18.3.3. pursuant to the collective agreement for support staff, Article 1.2 and 1.6, the position of bookstore clerk now occupied by a contract person (Murielle Waito) for over 3 years, should be filled full time, permanent. Further, this position is not a replacement position but a vacant position.

Settlement desired:

That the position in question be filled full time, permanent.

70This grievance is premised on the acceptance of the idea that Ms. Waito was a contractual employee, and not a person in the bargaining unit. Given Ms. Gravel's short tenure as a steward, and the youth of the bargaining relationship, it is not surprising that the distinction between the rights of the individual to representation and the rights of the union to the position was not something considered by her at the time. Perhaps, it is a subtle distinction. However, it makes the difference between having access to representation by a bargaining agent and the whole set of rights in the collective agreement, as opposed to the rather tenuous rights of a contractual employee on repetitive fixed term contracts.

71There is no evidence that either Ms. Gravel or Ms. Stang ever sought advice beyond speaking to each other and Human Resources about Ms. Waito's situation. In the end, there is no evidence that anyone in the union ever considered the possibility that Ms. Waito might be in the bargaining unit, despite the employer's designation of her as a contractual employee. There is no evidence that the description of the bargaining unit in either the statute, or the collective agreement, was reviewed in this regard. The wording of both descriptions is based on employees, their hours of work and duties, instead of the status of the parties' view of the desirability of having people in bargaining unit positions at any given point in time. In sum, it is my view that although the individuals involved acted in good faith, they were operating from a blindness to the legal basis of the definition of the bargaining unit and as to their duty of representation. I am not persuaded that this is compatible with the statutory duty. It is my view that the union acted arbitrarily in not considering the basic question as to whether Ms. Waito might already be in the bargaining unit. Put differently, this amounts to an inadequate investigation of her situation.

72Further, it is my view that in providing the advice to Ms. Waito that there was nothing that could be done about her termination, the union completely failed to take into account Ms. Waito's personal rights. The union had already determined that Appendix D was NOT the correct characteriza­tion of Ms. Waito's position. If Appendix D was not right, and the union's view was that the position was a bargaining unit position, there was no basis put forward for the advice that nothing could be done for Ms. Waito. Even if she had been given the position in a matter that was not in compliance with the collective agreement, i.e. without a posting in the first place, that does not mean that it was a foregone conclusion that she had no rights at all. And the problem is that there was no serious evaluation of the question of what her rights were. It was assumed that she had none.

73In my view, nothing turns on the fact that Ms. Waito did not explicitly ask for a grievance to be filed about her termination. Of course, that would have been the better course, and the case would be clearer. However, the response that nothing could be done is consistent only with a request that something be done. In the circumstances of this case, this is sufficient to have alerted the union to the situation and required union representatives to turn their minds in a meaningful way to what rights Ms. Waito might have had.

74The behaviour of the union over the summer of 1994 is consistent with the idea that it felt it owed no duty to Ms. Waito. It is not the settlement of the grievance that it filed that is the nub of the problem here. The union is entitled to settle a grievance, even an individual one, without the consent of a grievor. And the grievance it filed was a union grievance. So it was ever more entitled to settle without Ms. Waito's consent or participation in the negotiations. The problem lies in the fact that it treated Ms. Waito as totally irrelevant to the situation. In my view this represented a failure to turn its mind to the basic relevant facts of the situation.

75This is not a case of a strategy towards the enforcement of the collective agreement with which the Board does not agree, or a judgment call about which reasonable people might differ. Rather it is one where I am persuaded that, having convinced itself that it had no duty to represent Ms. Waito, the union could not be fulfilling the duty of fair representation which I have found it owed Ms. Waito.

76The intervention of Mr. Sauer, and the later filing of the grievance, were carried out in good faith, in my view. But it was too late to change the fact that the union had already conducted itself in a manner which did not acknowledge that it owed any duty to Ms. Waito.

77In the result, it is my finding that the union has breached its duty of fair representation in the manner described above.

II. The case against the College

78As against the College, Ms. Waito complains that there has been a breach of section 75(2), which reads as follows:

75. (2) The Council, an employer or any person acting on behalf of an employer shall not,

(a) refuse to employ or to continue to employ or discriminate against a person with regard to employment or any term or condition of employment because the person is exercising any right under this Act or is or is not a member of an employee organization;

(b) impose any condition on an appointment or in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of an employee organization or exercising any right under this Act;

(c) seek by intimidation, by threat of dismissal or by any other kind of threat or by the imposition of a pecuniary or any other penalty or by any other means to compel an employee to become or refrain from becoming or to continue or cease to be a member of an employee organization, or to refrain from exercising any other right under this Act,

but no person shall be deemed to have contravened this subsection by reason of any act or thing done or omitted in relation to a person employed in a managerial or confidential capacity.

79Ms. Waito argues that she was the victim of discrimination, which she defines as the denial of equal treatment or opportunity being subjected to unjust distinctions. Most basically, she alleges it was discriminatory that she, and others working more than 35 hours were not allowed to be permanent employees. She bases her allegation on the existence of contracts at 24 hours when she was working 35 hours per week, the Appendix D classification when she was not replacing anyone and the fact that her name was sometimes omitted from the list of contractual employees working more than 24 hours a week. As well, she argues that there were prohibitions against speaking to the union and discriminatory changes in her job duties.

80Ms. Waito also claims she was a victim of harassment and abuse of power. She alleges that Vice-President Yves St. Jules and Anita Aaltonen deliberately tried to make her life unbearable to force her to quit.

81Counsel for the College argues that there was no intentional unfairness to Ms. Waito. Further, it is submitted that there is no evidence of harassment, and if there was any, it had nothing to do with union rights.

82Counsel underlines that there is no reverse onus in the CCBA, as there is in the Labour Relations Act, 1995. Further, counsel submits that Ms. Waito never exercised a right under the law, until well after her termination, and never engaged in union activities.

83Employer counsel refers to the parties' focus on positions instead of individuals, and submits that this was a joint, good faith historical practice between the parties, well founded in operational considerations during the formation of the collective bargaining relationship at the new college. These were years of budgetary uncertainty as well. There was no targeting of Ms. Waito, submits counsel. Rather, the College targeted positions for budgetary reasons and had the implicit agreement of the union.

84Employer counsel submits that the parties to the collective agreement had the right to concentrate on positions and not individuals. He submits that the first and most important question relates to his contention that they had the right to determine the time at which a person would enter the bargaining unit. As will be elaborated further below, in the face of a statutory bargaining unit, this argument cannot be accepted.

85The College's position is that the statute is transposed into the contract and the collective agreement becomes the instrument which governs the relationship between the parties. That position is uncontroversial, in my view, up to the point where the collective agreement or its interpretation comes into conflict with the statute. Then, it is the statute that prevails, as made explicit in section 48(2) of the CCBA which provides as follows:

48(2) Where a conflict appears between any provision of an agreement and any provision of any legislation, the provision of the legislation prevails.

86Employer counsel submits in this respect that it is important to consider what terms are not defined in the statute. Observing that the word "regularly" (as in regularly employed for not more than twenty-four hours) does not have a statutory definition, counsel submits it is left to the parties to determine what that means, and that these parties had a settled practice in that regard. The Board is urged to find that there was nothing illegal in the conduct of the parties in relation to Ms. Waito, or other employees in a similar situation. Counsel maintains that the two parties to the collective agreement simply found it in their mutual interest to act as they did. Mr. Pelletier cited budgetary reasons for the practice, and the union did not see fit to grieve before May 31, 1994. Mr. Pelletier explained these were difficult economic times, they wanted to regularize positions as they could, and it was not to get around the collective agreement. Mr. Pelletier said it was important to have a certain stability in the positions.

Moreover, the union was well aware of the precarious budgetary situation, as reflected in the settlement they signed in the summer of 1994 creating the position in the next budget year.

87Counsel submits that there is no room for finding an anti-union motive in this case. No one was trying to exclude Ms. Waito because of anti-union motives. The intention was to include people, but at the moment judged opportune by the parties. The employer contends that the practice was sanctioned by the union; the president of the local obtained her position by the same practice. Counsel submits that this matter must be judged, not with the wisdom of hindsight, but the prevailing wisdom of 1994, and the fashion in which the parties had decided to govern themselves.

88There is insufficient proof of the constitutive elements of a violation of the law, according to employer counsel. Rather there is evidence that Ms. Waito had a mistaken belief, nourished by her isolation and a lack of understanding of the wider picture.

89Counsel maintains there is no proof that there was a refusal to continue to employ Ms. Waito because she exercised a right under the law, or because she was or wasn't a union member. Since she did not consider herself a member of the bargaining unit, how could she have been exercising a right under the CCBA, queries counsel.

90In any event, argues counsel, she had exercised no such right prior to May 31, the last day of her contract, and did not then have the rights of a member of the bargaining unit. In this regard, employer counsel refers to the letter written by Ms. Waito's lawyer, which she approved after she had told him all the facts. It cites nothing to do with an attempt to be unionized or to exercise her rights under the statute. Counsel maintains that this is a reflection of the true state of affairs: Ms. Waito was complaining of an intolerable situation with her supervisor, not an attempt to get a union job. Her written material says it concisely, "I never thought reporting harassment would get me fifed."

91The College refers to the basic fact that there was no contract of employment after May 31. Further, counsel observes that the complainant's witnesses, Ms. Aaltonen and Mr. Pelletier testified that they were not involved in the termination, and there is no contrary proof. Counsel stated that it seems that they did not try to renew the contract because the environment seemed unhealthy, and an investigation was going to commence. And then her lawyer said she would refuse to meet Mr. St. Jules to discuss her letter. So, there was an inability or unwillingness to participate in the process which was going to get to the bottom of it. But there is no proof, in counsel's view, to form a causal link between her termination and union activity.

92Counsel observes that the fact that the college invited the vice-president of the union to sit on the investigation committee seems more an indication of the comfort zone between the parties, rather than an attempt to hide a non-union employee.

93Counsel queries: If the college really had it in for Ms. Waito, why would the college have claimed her position in the budgetary process in 1993 and 1994, when they could have created positions elsewhere.

94As to Appendix D, counsel submits that there is no evidence that the College used it to exclude Ms. Waito from anything. The evidence is that Ms. Grondin went to another position, and the College filled her position using Appendix D, perhaps in error.

95As to Ms. Aaltonen, counsel submits that there is no evidence that she did anything because of Ms. Waito's exercise of any rights, nor any evidence of any threat of termination, financial penalty, or anything else. Further, there is no evidence that anyone ever stopped Ms. Waito from speaking to anyone. Even if Mr. Pelletier said he was aware of intimidation, it had nothing to do with unionization.

Further, counsel notes that the College could have terminated the contract whenever they wanted, but they did not. In fact, the contract was renewed a number of times after she had participated in a workshop about unions in May, 1993, as well as after the fall of 1993 when Ms. Waito started talking to Ms. Gravel.

96College counsel submitted a jurisprudence brief, all of which has been carefully reviewed and which will be referred to as necessary below.

97Turning then to the question before me: Did the College breach section 75(2) of the CCBA, set out above?

98Employer counsel's brief of jurisprudence includes Seneca College of Applied Arts and Technology, [1990] OLRB Rep. June 739, in which the Board's approach to this section is accurately set out as follows:

9. We have already noted that the CCBA does not contain a reverse onus provision with respect to complaints that a person has been refused employment, discharge, discriminated against, or other­wise dealt with contrary to it in relation to his/her employment. Accordingly, in this case, the complainants must satisfy the Board, on a balance of probabilities, that there was an improper motive for the respondent's treatment of Charbon. The nature of complaints like this one is such that the Board must usually draw its conclusions from inferences which can fairly be drawn from the objective evidence. If the Board is satisfied that any part of the motivation for a respondent's conduct was contrary to the CCBA, the complaint will succeed. In making its determinations in that respect, the Board will consider the objective reasonableness of the actions of the respondent which are impugned by the complaint and the existence of any unusual or "peculiar" conduct of the respondent (the Board's reasoning in, among others, John T Hepburn, Limited, [1985] OLRB Rep. Jan. 75; Manor Cleaners Ltd., [1982] OLRB Rep. Dec. 1848; Hallowell House Ltd.. [1980] OLRB Rep. Jan. 35; Barrie Examiner, [1975] OLRB Rep. Oct. 745 is equally apposite to case like this one, even though those cases dealt with complaints under the Labour Relations Act). This case is not about just cause. Rather, they must establish that the respondent's actions were not bonafide in the sense that some part of the respondent's motivation therefore was improper, namely, in breach of section 80(1) of the CCBA.

The state of the Board's jurisprudence directly before the reverse onus was put into the Labour Relations Act, i.e. when it was in the same state as the CCBA still is, was set out in Delhi Metal Products Ltd., [1974] OLRB Rep. July 450 by the then Chair of the Board Armstrong to the effect that a breach of the Act occurs not only when illegal motivation is the primary or only reasons for an action but also when it is a contributing factor. Further, the Board underlined that heavy reliance must often be placed on circumstantial evidence. The Board then referred to National Automatic Vending, 2 CLLC 1960-1964 ¶16,228 which details the Board's approach to onus of proof and inference in the absence of the reverse onus as follows:

...The fact that the primary onus for establishing the merits of the complaint lies on the complainant, does not, of course, mean that the complainant is bound to demonstrate by direct evidence each and every fact or conclusion of fact upon which the issue in dispute depends. Reasonable and necessary inferences may and must be drawn from all the evidence adduced and that which is clearly inferable from the evidence is as much proved as if it had been established by direct evidence.

It is not without some interest to note the following statements concerning the quantum of proof required by the Courts where the facts of an issue to be proved lie peculiarly within the knowledge or means of knowledge of the opposite party:­-

….In considering the amount of evidence necessary to shift the burden of proof, the Court has regard to the opportunities of knowledge with respect to the fact to be proved, which may be possessed by the parties respectively Cummings v. Vancouver (1911) 1911 CanLII 265 (BC CA), 1 W.W.R. 31 per Irving, J.A. at p. 34, quoting from Stephen's Digest of the Laws of Evidence, 9th ed. art. 96 (affd. 1912 CanLII 21 (SCC), 46 S.C.R. 457; see also, Windsor Board of Education v. Ford Motor Co. of Canada Ltd. [1939] S.C.R. 413, per Davies, J. dissenting at p. 423, 1941 CanLII 281 (UK JCPC), [1941] A.C. 453, per Lord Atkin at p. 461; R. v. Kakelo, [1923], 2 K.B. at p. 795; Phipson on Evidence, 9th ed. p. 41.)

…..where the facts lie peculiarly within the knowledge of one of the parties, very slight evidence may be sufficient to discharge the burden of proof resting on the opposite party - Taylor on Evidence, 12th ed. vol. 1, pp. 262-263; (see also Pleet v. Canadian Northern Quebec R.W Co.. (1921) 1921 CanLII 518 (ON SCAD), 50 O.L.R. 223).

A rule of evidence will be found stated in the text books in the following words: "Where the subject matter of the allegation lies peculiarly within the knowledge of one of the parties, that party must prove it, whether it be of an affirmative or a negative character, and even though there be a presumption of law in his favour - -. This rule has been modified by later authorities. In Phipson on Evidence, p. 27, it is said that: "In the absence of statutory provisions, the better opinion now seems to be that, in general, some prima facie evidence must be given by the complainant in order to cast a burden upon his adversary. The difficulty of proving a fact peculiarly known to an opponent may, it has been said, affect the quantum of evidence demanded in the first instance but does not change the rule of law".

In order to shift the burden of justification to the employer in an action by a former employee against an employer at common law for damages for wrongful dismissal, the plaintiff employee need prove only (1) the contract of hiring, (2) the fact of his discharge, and (3) his damages. When he does this, an onus then shifts to the defendant employer to establish that proper cause existed for the dismissal. (See George Ditchfleld v. Gibson Manufacturing Company Ltd. CCH Canadian Labour Law Reporter, vol. 1, ¶15,362, Mclnnes v. Ferguson, (1899)32 N.S.R. 516; Butlerv. C.N.R. 1939 CanLII 124 (SK CA), [1940] 1 D.L.R. 256.)

Needless to say, however, we do not for a moment suggest, in proceedings under section 65, that unless there is evidence to the contrary, discrimination may be found against an employer upon what amounts to mere proof of a contract of hiring and dismissal. A complainant may, however, by proving the contract of hiring, the dismissal, and certain other objective facts and circumstances, short of direct evidence of discrimination, cast such an onus of credible explanation on the employer, who alone may know or have the means of knowledge of the actual reasons for the dismissal, that if such an explanation is not given, an inference may readily be drawn that the treatment accorded the employee was discriminatory and contrary to the Act. That it is often only the employer who has the knowledge or means of knowledge of the actual reasons for the discharge is, of course, only one factor or circumstance which the Board may take into account in assessing the evidence as a whole and deciding what weight to give to it. It plainly cannot relieve the complainant of the primary burden of proof to satisfy the Board by credible evidence that the action taken by the employer was discriminatory and contrary to the Act.

99Turning to components of section 75(2), the first subsection, 75(2)(a), prohibits refusal to employ, or discrimination against a person because of the exercise of rights under the CCBA. Ms. Waito's complaint encompasses this subsection to the extent that it suggests that she was harassed and then terminated because she exercised rights under the CCBA, specifically, because she spoke to the union, and had a grievance filed.

100Does the evidence support the proposition that the non-renewal was in response to an exercise of rights under the CCBA? As noted, the employer maintains Ms. Waito was not exercising any rights under the CCBA. The evidence involves a number of events which are potentially properly considered as the exercise of rights under the CCBA, including talking to the union steward, the resulting filing of a grievance and the filing of the letter of complaint about the supervisor.

101To start with the conversations with the steward, it is my view that Ms. Waito was exercising the rights afforded by the CCBA in attempting to get the union to take action about what she considered her intolerable situation at work. It was suggested in argument that because neither she nor anyone else considered her part of the bargaining unit at the time, Ms. Waito could not have been exercising rights under the CCBA. This cannot be the law in my view. Otherwise, the beliefs of the parties, regardless of their accuracy, would determine the meaning of statutory rights. I have set out my view of the statutory bargaining unit above. Once the statute grants membership in that bargaining unit, I find that seeking the assistance of the bargaining agent is part of exercising the right to be a member of the bargaining unit. Further it is participation in the lawful activities of an employee organization, which is protected by section 65 of the CCBA, which provides as follows:

REPRESENTATION RIGHTS

65. Every person is free to join an employee organization of his or her own choice and to participate in its lawful activities.

102As to the filing of the grievance itself, this was not an act Ms. Waito took herself, and thus I do not technically find it an exercise of a CCBA right by her. However, even though I have found that the union was not seeking to protect Ms. Waito's right in filing the grievance, there is arbitral authority to the effect that a union grievance might have been the only way to achieve recognition of her bargaining unit rights in any event. (See for example the arbitral jurisprudence in respect of the union s right to grieve the Colleges' approach to the use of sessionals, who have no right to grieve themselves in Lambton College and OPSEU Local 125 and Cambrian College and OPSEU, unreported decisions of Howard Brown dated August 28, 1989 and July 25, 1997, respectively). This tends to diminish the utility of the distinction between Ms. Waito's exercise of rights and the union s in regards to such a grievance in any event. Regardless of how one views the filing of the grievance though, the sequence in which Ms. Waito sought the intervention of the union in the spring of 1994 qualifies as the exercise of a right under the CCBA in my view.

103As to the letter of complaint, it qualifies as the exercise of union rights only if one considers it a grievance. However, it nowhere mentions the collective agreement, or the CCBA, although it does mention the possibility of a complaint to the Human Rights Commission. In the circumstances I have concluded that the letter of complaint is not properly viewed as a grievance or as a grievance or as an exercise of union rights.

104The non-renewal of Ms. Waito's contract followed immediately upon the grievance which resulted from her seeking the union's intervention, (and the letter of complaint). Thus, there is a temporal connection between the non-renewal and the exercise of what I have found to be a right under the CCBA, seeking the intervention of the union. Prior to this juncture, Mr. Waito had had her contract renewed at least thirteen times. (The number can be considered larger if one counts corrected and overlapping contracts). Thus, the question naturally arises as to why the contract was not renewed this time, particularly as Mr. Pelletier testified that he had informed the bookstore staff earlier in May that contractual staff would have their contracts extended until June 30 and the Human Resources depart­ment had announced by its earlier memo that Mr. Waito was on an Appendix D contract running from October, 1993 to June 30, 1994. Mr. Pelletier testified as Ms. Waito's witness. Although he was in charge of the bookstore, he testified credibly that he did not know what the reasons for the non-renewal were. Nor did Ms. Aaltonen, Ms. Waito's immediate supervisor, indicate that she knew what they were, saying instead that she could not answer for senior management.

105Mr. St. Jules, who did not give evidence, signed the termination letter, which does not give reasons for the non-renewal. No evidence was called by the employer as to the reasons, and thus there is no direct evidence about the actual motives for the non-renewal. Although the evidence provides other potential reasons for the non-renewal such as the ongoing difficulties concerning computer skills, and the letter of complaint about Ms. Aaltonen, neither Mr. Pelletier nor Ms. Aaltonen said that was the case. Given their positions, and previous conversations with Mr. St. Jules, it seems peculiar that they would not know if those were the reasons.

106As I have indicated above, I was not persuaded by the evidence that the difficulties between Ms. Waito and Ms. Aaltonen had anything to do with the union, her conversations with the union steward, or the intervention made by Ms. Gravel about breaks. Thus, the evidence does not form the basis for a finding that Ms. Aaltonen's attitude to Ms. Waito's computer skills was a cover for anti-union animus. However, she did not decide on the non-renewal.

107The question then becomes whether the evidence is sufficient to shift the onus to the employer to explain that which is peculiarly within its knowledge, i.e. the actual, rather than potential, reasons for the non-renewal.

108As the excerpts from the jurisprudence set out above suggest, in the absence of the reverse onus of proof, the onus will shift when there is sufficient evidence to call for a credible explanation from the person in whose knowledge the actual facts lie. The evidence is sufficient in my view to call for such an explanation. For example, the evidence of the temporal connection between Ms. Waito's seeking the intervention of the union and her abrupt non-renewal laid against the background of repeated renewals, even though the difficulties about computer skills had been going on for months, and after Mr. Pelletier had announced an extension to June 30 which was never acted on, suggests that her seeking the union's assistance may have been a factor. The evidence of this departure from the previous routine, as well as the fact that it was contrary to Human Resources' declaration that her Appendix D status would last until June 30 is the kind of unusual or peculiar conduct of the employer, referred to in the above jurisprudence, which calls for a credible explanation of the employer's motivation for the non-renewal. The evidence about the process for obtaining permanent positions made it clear that if the union grievance were successful and Ms. Waito's position were declared vacant, she would likely have applied. Although it is uncertain whether she would have been successful, given her conflicts with her supervisor, it was certainly a possibility since she had done the jobs for over three years. It is possible that this was also an eventuality which the employer wished to head off by not renewing her contract. Since this possibility was directly related to Ms. Waito's seeking the intervention of the union, it adds to the evidence which calls for an explanation.

109A related approach to the absence of evidence from Mr. St. Jules is to ask whether there is reason to draw an adverse inference from his failure to testify. The failure to call a witness to give material evidence permits the Board to draw the inference that the unproduced evidence would be either contrary to, or not supportive of, that party's case. (See, Sack & Mitchell, Ontario Labour Relations Board Practice and Procedure, and the cases cited at para. 1.145). Without the evidence of Mr. St. Jules', it is not possible to know which of the possible reasons were the actual reasons for the non-renewal. Acting in reaction to either Ms. Waito's seeking the intervention of the union or to her seeking a union position through a grievance is illegal motivation. The circumstances above make it likely that one of these factors was present to the mind of the employer in deciding not to renew, and the lack of evidence leads to the adverse inference that it did play a part.

110Having considered the above aspects of the matter, separately and together, I have concluded that the College infringed subsection 75(2)(a) in the non-renewal of Ms. Waito's contract after May 31, 1994.

111Turning then to subsection 75(2)(b). This subsection focuses on employer behaviour that may seek to prevent an employee from exercising rights under the CCBA, rather than behaviour that is a reaction to the exercise of rights as is the case for subsection 75(2)(a). The relevant evidence in regards to this subsection is the evidence on the College's motivation for imposing the condition of a contractual employee on Ms. Waito, rather than treating her as a member of the bargaining unit and or imposing the condition of an expiry date of May 30, rather than June 30 as announced by Mr. Pelletier.

112To save money, the College made use of contractual positions even for employees who worked more than 24 hours a week performing functions that are not argued to be outside either the collective agreement's or the statute's description of the bargaining unit except to the extent that employer counsel says the parties had an implicit agreement about the meaning of "regularly em­ployed", an argument dealt with below. In the instance of Ms. Waito's job in particular, the College deferred the creation of a permanent bookbuyer position for almost three years beyond the time bookbuying duties took more than 24 hours a week. Even the two-time approval of the position in the budget did not result in a posting.

113The evidence from Mr. Pelletier supports the conclusion that the College quite consciously imposed on Ms. Waito the status of contractual employee for the years 1992 to 1994 with the explicit purpose of deferring the inclusion of the bookbuyer position in the bargaining unit. In doing so, it is my view that it imposed a condition in a contract of employment with a view to restraining her from exercising a right under the CCBA, i.e. the right to be represented by OPSEU in her terms and conditions of employment. That is a breach of subsection 75(2)(b) of the CCBA.

114I am persuaded that in doing so, Mr. Pelletier had no anti-union animus in the sense of wishing to rid the College of the union. However, it was an explicit strategy to avoid applying the terms of the collective agreement, in particular its wage and benefit portions, to certain positions, until the College was prepared to assume those obligations unilaterally. It is necessarily inherent in this that the individuals working in contractual positions over the hours that would put them in the statutory bargaining unit would be restrained, if not totally prevented from, exercising their rights. Economical as this strategy may be, it runs contrary to the provisions of the CCBA, which provides a statutory bargaining unit. Although this may also be an issue which could be dealt with under the grievance procedure, this does not preclude its consideration under the statutory provisions.

115I have carefully considered Mr. Champagne's argument to the effect that the evidence should be construed as the parties' mutual understanding of the term "regularly employed". No argument or precedent was aimed at showing that the commonly accepted meaning of "regularly employed for not more than 24 hours per week" would not apply to the situation in which Ms. Waito worked 35 hours per week for over three years. When it comes to interpreting a statute, it is the ordinary meaning which prevails unless there are reasons such as absurdity of result or conflict with public policy which suggest otherwise. No such impediments to the use of the ordinary meaning was suggested. Nor was it suggested that the union had actually explicitly agreed that "regularly employed" should be so construed under the collective agreement.

116Even if the union were estopped from arguing that Ms. Waito's position or she herself ought not to be considered in the bargaining unit because of its conduct in not grieving, such an estoppel cannot operate to strip Ms. Waito of any rights under the CCBA. It is important to note that I do not find it necessary to decide if the facts would support such an estoppel, and I explicitly refrain from doing so. This is because whatever the parties may be free to agree on, or rely on estoppels for, where there is no statutory bargaining unit, I remain unpersuaded that such a route is open where there is a statutory bargaining unit. This is further supported by section 48(2) set out above, which explicitly sets out the primacy of the statute over any agreement.

117It is the fact of the statutory bargaining unit which distinguishes this case from Delphis W Vandette, [1988] OLRB Rep. Feb. 215 and Ted Stothers, [1990] OLRB Rep. March 347 where the parties had excluded certain employees from the bargaining unit.

118Further, the evidence does not support the proposition that the union agreed that the bargaining unit was defined as including only those positions that the employer had determined were permanent ones. It supports instead the idea that the union was aware of the employer's practice, questioned it in several instances, and accepted that permanent positions were to be posted and filled by an interview process. This is not the same as an agreement to modify the most fundamental cornerstone of collective bargaining - the definition of the bargaining unit - to the effect that contractual employees could be excluded for an indefinite amount of time, regardless of their duties or hours of work.

119The evidence of Mr. Pelletier that the contractual people would be extended until June 30 indicates that management had decided to keep Ms. Waito on contractual status for at least another month. The College's approach up to that point was to defer the creation of a bargaining unit position for as long as possible. Prolonging the contract further, until the end of June was not inconsistent with that approach. The decision not to act on that extension, but instead to decide to return to the May 31 date must be seen as very likely responding to an event which occurred between the announcement of the prolongation in mid-May and the decision not to renew, articulated in Mr. St. Jules' letter of June 1. The events noted above, the consultation with the steward which resulted in the grievance and the letter of complaint, are the notable intervening events. Mr. Pelletier's evidence supports the finding that delaying or avoiding entry into the bargaining unit was an active motivation in management decision making at the time. The bookstore position had been approved in the budget for the second time and the union had now grieved by the time Mr. St. Jules made the decision to revert to the May 31 expiry date. Other evidence supports the finding that Ms. Waito would have applied, and might have been successful. Employer counsel suggested that the decision was likely based on the fact that the situation had become unhealthy. But there is no evidence that this was actually the case, although it remains a possibility. It is, in the absence of evidence to negative this inference, more likely than not that preventing the position and/or Ms. Waito from becoming part of the bargaining unit, consistent with the approach testified to by Mr. Pelletier, was part of the motivation as well.

120As to the allegations against Ms. Aaltonen personally, I have already said that I am not persuaded that her difficulties with Ms. Waito and her computer skills were a cover for anti-union animus. As to the allegations about the directives about union stewards, Ms. Waito's and Mr. Dolbec's evidence supported the idea that they had been requested to send union representatives to the office. Even in the absence of the evidence contradicting theirs from co-workers, and from Ms. Gravel who indicated this rule was never communicated to her, this evidence does not in my view amount to an imposition of a condition of employment for the purpose of restraining their exercise of CCBA rights. The evidence provides the basis for the finding that both Mr. Dolbec and Ms. Waito had formed the impression that conversations with the union at work were unwelcome, and it may be that Ms. Aaltonen made some statement about referring questions about contracts to her, but the evidence is not sufficiently persuasive to support the allegation made of a breach of the CCBA in this respect. Further, one notes that there are restrictions in the collective agreement itself about union activity during work time.

121The above findings about Ms. Aaltonen's behaviour also deal with the portion of subsection 75(2)(c) which prohibits threats or intimidation aimed at restraining a person from exercising rights under the CCBA. I do not find that the complaint is made out in that respect. I have little doubt that Ms. Waito found Ms. Aaltonen intimidating. However, I remain unpersuaded that this had anything to do with the union or Ms. Waito's statutory rights. Thus I find that Ms. Aaltonen did not seek by intimidation, threats or any other means to keep Ms. Waito from exercising her rights under the CCBA.

122To summarize then, I find that the complaint is made out to the extent indicated above. In the face of a bargaining unit prescribed by statute, both the union and the employer have breached the CCBA, the union in failing to turn its mind to what rights Ms. Waito had personally, and the College in failing to renew her contract in response to her seeking the intervention of the union and in maintaining the bookbuyer position as contractual, at least in part in order to avoid Ms. Waito's being able to exercise her rights as a member of the bargaining unit, most specifically in respect of taking advantage of the superior conditions of employment afforded by the collective agreement.

What is the appropriate remedy?

123Designing an appropriate remedy is intended to put the parties back in the position they would have been had the breach not occurred. Doing so in this case is quite a complex matter for a number of reasons. I have decided that it is appropriate to give the parties the opportunity, with the assistance of a labour relations officer, to resolve the matter of remedy themselves, as the evidence disclosed several factors which make it difficult to approach. These include the agreement that the bookbuyer position would not be permanent until 1995, the failed arbitration of the dismissal grievance, the bumping process which occurred after 1994, the contracting out of the management of the bookstore, as well as the shared responsibility of the parties for the situation. And the evidence did not deal with many of the details which would be necessary in order to tailor an appropriate remedy and to determine any questions of reasonable mitigation or foreseeability of the damages claimed by Ms. Waito.

124The matter is referred to the Manager of Field Services to assign a Labour Relations Officer to contact the parties to offer them assistance in coming to a resolution on remedy. If no resolution is achieved within 30 days of this decision, or such extension of that time on which all parties agree, I will receive written submissions according to the following schedule:

A. Ms. Waito is to write a concise specific account of what she claims as remedy, and how it flows from the facts and the law as I have found them in the above decision. Further, she is to indicate what evidence she has to justify that remedy. She is to forward that to the Board, and to union and employer counsel by September 10, 1998.

B. By September 24, 1998, the union and the employer are to reply to the submissions made by Ms. Waito, in detail, including a concise statement of any evidence they would seek to call on the issue of remedy.

C. By October 1, 1998. Ms. Waito is to reply in writing to the submissions of the other parties, indicating what portions she agrees with and what portions she disagrees with. For the latter category, she is to indicate her reasons for disagreement.

125If the parties agree to any extension of the schedule for written submissions, that is acceptable to the Board, as long as such agreement is communicated to the Board in writing prior to the dates set out above.

126The Board will review any submissions received and determine if an oral hearing is necessary.

127I remain seized.