Ontario Labour Relations Board
[1998] OLRB REP. SEPTEMBER/OCTOBER 765
2998-97-U Darlene Chislett, Applicant v. Christian Labour Association of Canada, Responding Party v. Central Park Lodges, Intervenor
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: Luiza Monteiro and Darlene Chislett for the applicant; Elizabeth J. Forster, Isobel Farrell, Linda Zadilsky, Kim Bryan and Marianne Steadman for the responding party; Erin R. Kuzz, Diane 0'Rourke and Steve Pawelko for the intervenor.
DECISION OF THE BOARD; October 15, 1998
1This is an application under section 96 of the Labour Relations Act, 1995 alleging that the responding party (referred to as the "union") violated section 74.
2A consultation was held in this matter on September 3, 1998. The relevant facts are as follows. The union was certified to represent the employees of the intervenor after it displaced the Service Employees International Union ("SEIU") in November, 1996. The applicant, Ms. Chislett is a health care aide who was the Chair of the union committee until February 1996 and was a visible supporter of the SEIU during the period in which the displacement took place.
3In July, 1997 two job vacancies were posted for health care aides. One was for a permanent day shift position. Ms. Chislett was on the evening shift and applied for that job. In order to apply she wrote her name and interest in the job on a piece of paper and placed it in the box designated for job applications. The box was then opened by a member of management in the presence of one of the union stewards according to the job vacancy protocol agreed to between the union and the employer in June, 1996. When the management representative came across Ms. Chislett's application she advised the union representative that it was not on the proper form. The union representative, apparently not knowing the name of the applicant, said something to the effect that the application could not be considered. There was no discussion between them about whether another course of action might be taken. There was one other application which was not considered because it was placed in the wrong box as well as being on the wrong form. The two discarded applications were the two most senior employees who applied.
4After being advised that her application was not considered Ms. Chislett filled out a grievance which was signed by the union president and was then submitted to the employer. The other employee whose application was discarded did not file a grievance. Ms. Chislett's grievance was denied at the first stage. Grievance meetings were held with representatives of the intervenor on August 26, and September 15, 1997. The various parties' descriptions of the sequence of events at the two meetings were somewhat confused. However, there was no dispute that certain things occurred over the course of the two meetings. The union was represented at both meetings by the business agent, Isobel Farrell and three members of the executive committee, Kim Bryan, Barb Rydel, and Marianne Steadman. Ms. Farrell spoke at the meeting but it does not appear that she actually spoke in support of the grievance. At some point the intervenor advised the union that it was prepared to rerun the competition. The union committee members refused that solution claiming that it was not fair to the successful applicant. The union conmiittee advised the intervenor through Ms. Farrell, that if the competition was rerun it would grieve. The union committee also advised the intervenor that if it actually granted the job to Ms. Chislett a grievance would be filed on behalf of the original successful applicant. Ms. Chislett informed the people at the meeting that another employee, Fiona Craig-Wideman, had been successful in a job competition in February, 1997 when she applied on a blank piece of paper. Ms. Farrell indicated that if that was true Ms. Chislett should be given the job. That appears to be the closest Ms. Farrell came to saying something in favour of the grievance. The union committee then asked to speak with Ms. Farrell outside in the hall without Ms. Chislett present. When they returned, Ms. Farrell indicated that the committee had advised her that Ms. Craig-Wideman had been the only applicant for the job so the intervenor was not required to comply with the job posting practice. Ms. Farrell asked the intervenor to investigate whether Ms. Craig-Wideman had been the only applicant for the position. She advised Ms. Chislett that if it was true that Ms. Craig-Wideman was the only applicant the union would not pursue Ms. Chislett's grievance and if it was not true the union would proceed. The committee members also advised Ms. Chislett either at or immediately after the meeting that if her grievance did proceed to arbitration they would testify against her.
5On August 29, 1997, the intervenor denied the grievance stating:
The practice of using the designated form and box for job posting applications has been accepted and in place for some time. Fifteen other applications were reviewed upon the opening of the job posting box and all of them had been completed on the "appropriate" form as per the Collective Agreement. Additionally when the Employer made the determination of the successful job applicant, we did so based on the assurance of the Union Committee that they had educated all of their members on the procedure as per the Collective Agreement ratified on June 9, 1997.
[emphasis added]
6The union and the intervenor agreed to extend the time limits for the next stage of the grievance until the intervenor could ascertain whether Ms. Craig-Wideman had been the only applicant for the position the previous February. Ms. Chislett did not hear anything else about the matter until she received a letter from the union dated October 10, 1997 advising her that it was withdrawing the grievance because it had been advised by the intervenor that Ms. Craig-Wideman had been the only applicant for the job in February 1997. The union withdrew the grievance the same day.
7The SEIU and the intervenor had agreed to a job application protocol in June, 1996. The protocol designated a box into which job applications were to be placed. A notice advising employees of that box was posted. At around the same time the intervenor instituted another practice of making forms available for applications. This was not part of the job application protocol agreed to with the union, although the CLAC committee negotiating the collective agreement in 1997 may have believed that it was. There was no notice posted about this new practice. However, a job posting appeared in or around June 1996 which indicated, as always, that applicants should apply in writing. However, this time it also stated, at the bottom of the page, that "application forms may be obtained at reception". A copy of the form was posted alongside the vacancy notice. All of the subsequent job postings until July, 1997, stated at the bottom of the page that the application forms could be obtained from reception. However, the job posting for which Ms. Chislett applied, dated July 18, 1997, did not have that instruction anywhere on it. It did say, as always, that "Interested applicants should apply in writing ...". The last job Ms. Chislett had applied for was in May, 1996 at which time she used a plain piece of paper and was awarded the job. Ms. Chislett had not applied for any jobs in the intervening period. The intervenor left the statement advising that application forms could be obtained at reception off of the July 18, 1997 posting because the collective agreement reached with the union in June, 1997, contained, for the first time, the requirement that job applications must be on the proper form. The collective agreement also provided, for the first time, that if an application was not on the proper form it would not be considered. However, this new provision was not mentioned by the union representatives at the ratification meeting with the bargaining unit members on June 9, 1997. The union's explanation for this omission is that the committee believed that there was already an agreed policy that job applications had to be on the correct form. However, there was no suggestion that employees had ever been advised that applications on the wrong form would not be considered. Copies of the new collective agreement which contained the new job vacancy language were not provided to the employees until the middle of August, after the job competition in question was completed.
8Another job competition was held within months of the one in question but the applicant did not apply. Apparently if she had she would have been the most senior candidate.
9The applicant was a member of the SEIU committee in June, 1996, when the job protocol with respect to the application box was agreed to. Apparently she was also one of the people who initiated contact with the responding party even though she ultimately supported the SEIU when the displacement took place. She was invited to join the responding party's committee a few months before these events took place but declined.
10The job application form is a photocopied form that reads "I [blank] wish to apply for the [blank] position posted, which was previously held by [blank] I possess the following qualifications;[blank]". The form then has a space for the signature and date and a section for office use. Apparently there are copies in the staff room and beside the job application box. The piece of paper the applicant filled out said "I am applying for 6-2 (Noun's) full time position." and the applicant's name. There was no suggestion that this was insufficient information to process the application. The applicant had been an employee of the intervenor for ten years.
Submissions of the Parties
11The applicant submits that the union's behaviour in this matter constitutes a violation of section 74 of the Act. She argues that it was gross negligence on the part of the union not to inform the membership of the change in the job posting procedure and the consequences of not following it, at the ratification meeting of June 9, 1997. She claims that the union should have pursued the grievance on her behalf or accepted the company's offer to rerun the competition. The competition could have been rerun at that time with very little disruption to the work force. The union should have pursued the grievance which had merit and a reasonable chance of success. She claims that its decision not to take the intervenor's offer or to pursue the grievance was discriminatory and/or in bad faith for her support of the SEIU and/or was arbitrary.
12The applicant also argues that she could not be expected to pursue the union's internal appeal process before applying to the Board because the union withdrew the grievance on the same day it told her it was not going to pursue it. Therefore, even if she had appealed the decision and been successful it was too late for the union to rectify the matter.
13The union denies that it violated the Act. It claims to have applied the job application rules even-handedly to all of its members. According to the union, the applicant "knew or should have known" about the requirement to apply on the correct form. It points out that 15 of the 17 applicants knew about it. It also claims that the committee Chair canvassed the membership after Ms. Chislett's grievance was filed and found that 90 percent of the bargaining unit members knew about the forms. Therefore, it says, it was appropriate for it to refuse the employer's offer to rerun the competition which would have penalized the successful applicant who applied properly. It was also appropriate for it to withdraw the grievance. The union claims that it investigated the circumstances of the grievance as it is required to do and asked for a 30 day extension of the time limits to do so. When the intervenor confirmed that Ms. Craig-Wideman, who had also applied on a blank piece of paper, had been the only applicant for her position it was satisfied that the intervenor had applied the practice consistently and that the grievance therefore had no merit.
14The union argues that it had to weigh its obligation to the bargaining unit member who applied on the right form with its obligation to the applicant who applied on the wrong form. According to the union it would not be appropriate to "penalize" the bargaining unit member who applied on the right form and to "reward" the member of the bargaining unit who applied on the wrong form.
15The union denies that it acted discriminatorily towards the applicant for her support of the SEIU and states that in any case the applicant cannot rely upon such an allegation as it was not pleaded. Even if the Board can consider such a claim the union asserts that the facts do not support such an allegation. The union also argues that this application should be dismissed because the applicant did not exhaust the internal union remedies by appealing the committee's decision to withdraw the grievance.
16The union also submits that even if it is found to have violated the Act there is no remedy, aside from a declaration, as the applicant was not the most senior applicant for the job. The applicant who failed to use the proper form and the proper box and was therefore also disqualified was the most senior.
17The employer supports the claim that the union did not violate the Act and that the application should be dismissed.
18Both the union and the employer also argue that no remedy should flow from this application even if a violation is found, because the applicant did not apply for a subsequent posting for which she would have been successful. The union and the employer are not suggesting however that the applicant should have known that she would have been the most senior applicant for that position.
19The parties referred the Board to the following decisions: Mirza A lam, [1994] OLRB Rep. June 627; United Steelworkers of America, Local 7574, [1991] O.L.R.D. No. 735; Amalgamated Transit Union, Local 113, [1979] OLRB Rep. Oct. 917; Hogarth Westmount Hospital, [1998] O.L.R.D. No. 371; Bruce-Grey County Roman Catholic Separate School Board, [1997] O.L.R.D. No. 2293; Maria Mlakar, [1989] OLRB Rep. Dec. 1246; Del-Mar Clothes Ltd., [1977] OLRB Rep. July 441; UAW Local 1408 and General Impact Extrusions (Mfg) Ltd., [1972] OLRB Rep. Aug. 798; Daniel Adusei, [1994] OLRB Rep. May 519; Domenic Gattellaro, [1987] OLRB Rep. June 844; Marcia Robertson, [1990] OLRB Rep. Aug. 886; George Lee, [1994] OLRB Rep. Aug. 1009.
Decision
20Section 74 of the Labour Relations Act, 1995 provides as follows:
- A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
21In Canadian Merchant Service Guild v. Guy Gagnon, (1984) 1984 CanLII 18 (SCC), 1 S.C.R. 509 the Supreme Court of Canada described a trade union's duty to represent employees with respect to a grievance as follows:
The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.
When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.
This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other.
The union's decision must not be arbitrary, capricious, discriminatory or wrongful.
The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.
[emphasis added]
22The Board has carefully considered the facts and arguments presented at the consultation and finds that the union has violated section 74 by representing Ms. Chislett in bad faith because of her previous support of the SEIU. It is simply not true that that allegation was not pleaded. The schedule filed with the application states: "He [referring to union representative Hank Beekhuis] stated and I quote due to my past history, knowledge and involvement with the union I should know the rules. This indicates what I have felt to be true for a long time that CLAC and the current con~mittee are prepared to discriminate against past supporters of SEIU Local 220." The schedule also states "The union and the committee have made every effort to avoid supporting my claim, and I cannot help but feel it is due to my past involvement with another union." The facts in support of that claim are the facts pleaded in the application. The union argues that the committee asked Ms. Chislett to join it which demonstrates that it harboured no ill feelings toward her. However, Ms. Chislett refused to join the committee and the attitude and behaviour of the committee members in this matter is most reasonably explained by antipathy toward Ms. Chislett stemming from her support of the SEIU.
23It is the epitome of bad faith for a union representative to go to a grievance meeting ostensibly to represent a grievor and to instead do everything possible to ensure that the grievance fails. But that is what this union committee did. It does not appear that anyone actually represented the applicant in the grievance meeting by speaking on behalf of her grievance. No one argued on her behalf that she did not know about the new collective agreement language. When the applicant explained the situation herself the company acted fairly and reasonably and offered to rerun the competition. The union committee refused to allow it. It also refused any suggestion that the applicant should be successful in the grievance. When Ms. Chislett argued on her own behalf that another employee had been awarded a job after applying on a blank piece of paper, it was the union committee which came up with a reason why that situation could not assist Ms. Chislett. The union claims that it "investigated" what had occurred with Ms. Craig-Wideman but the union committee was just trying to confirm that it had a reason to distinguish her situation. Any investigation appears to have been for the purpose of finding a way to defeat Ms. Chislett's grievance.
24The union committee manifested its bad faith in its steadfast insistence that Ms. Chislett knew about the requirement to apply for the job on the special form and in its assumption that she had therefore sabotaged her own application. If the union had been acting in good faith it would have made the more obvious assumption that since she clearly applied for the job and put her piece of paper in the appropriate box she wanted the job. She therefore must not have known about the form or at the very least did not know that the consequence of using the wrong form was that her application would not be considered. That was a new consequence in the June, 1997 collective agreement about which the employees were not informed. No employee had been disqualified for such a failure in the past and no notice about such a requirement or consequence was ever posted. The prior job applications had not said that applications must be on the correct form or they would not be considered. They did not even say they had to be on the correct form. They only said forms were available. The intervenor could not have sustained a decision to refuse to entertain a job application until employees were notified of the consequences of using the wrong form and the union had agreed to that change by including it in the collective agreement or by agreeing to amend the collective agreement which it did not do until June, 1997. Presumably, that is why the intervenor indicates in the reply to the grievance set out in paragraph 5 that it relied upon the new collective agreement and the union's assurances that employees had been informed of it.
25The union claims it was merely applying the "rules" in an even-handed way. However, it is hiding behind those rules by applying them unnecessarily rigidly so that an unreasonable inequity is the result. The union never considered any other course of action except to eliminate Ms. Chislett's entitlement to apply for a job. When the applicant grieved the failure to consider her application the union filed the grievance but then asserted, as it continues to do, that the applicant knew she had to use the right form. The union has not been able to explain however why the applicant would use the wrong form if she knew her application would not be considered if she did not use it. Employees who applied for jobs between June, 1996 and July, 1997 were advised on the postings where they could get a particular form. However, the posting the applicant applied for did not have that information. If the applicant had applied on the form at some point she may have been aware of the necessity. On the other hand, an employee might just as well believe that if postings for a year specifically refer to a particular form and then one is posted which does not mention it, the form is no longer to be used. If the union was acting in good faith it would have considered these obvious possibilities and would not have insisted on eliminating Ms. Chislett's job application. It should have considered such matters when deciding to turn down an offer to rerun the competition. It should have considered such matters when it decided to withdraw the grievance. However, rather than consider such mitigating factors the committee refused to consider anything but that the applicant knew about the practice. The union's attempt to justify its actions on the basis that it had to weigh its obligation to the junior employee who applied on the "right" form with that of the senior employee, Ms. Chislett, who applied on the "wrong" form is not credible in these circumstances. The injustice to Ms. Chislett when all of the circumstances are considered is so much greater than the minor prejudice to the incumbent if the competition had been rerun within a few weeks that it highlights the committee's blindness where Ms. Chislett is concerned. It is further evidence of the committee members' bad faith that it advised Ms. Chislett and the union representative Ms. Farrell that if the grievance proceeded to arbitration they would testify against Ms. Chislett.
26If the union just made a mistake in believing that it was only changing the collective agreement to include what had already been agreed to by the SEIU and therefore did not need to advise the employees, it was aware of that mistake in plenty of time to rectify the situation for Ms. Chislett. But it refused to do so and instead hid behind the application of "rules". But rules can only be fairly applied if everyone knows about them. The union either did not want to admit it made a mistake in not informing employees about the change or it did not want to assist this particular employee. Even if the union felt it would have had a hard time arguing at an arbitration that it was its own fault that its member did not know about the collective agreement change it could have rectified the situation in the most obvious way by agreeing to rerun the competition within a few weeks of the initial competition. By refusing that offer and threatening to grieve if the intervenor allowed the grievance even to that extent, the union demonstrated its bad faith in this matter.
27The union argues that its actions cannot be considered discriminatory or in bad faith towards Ms. Chislett because another employee's application was also eliminated for failure to comply with the rules. However, while the union's precipitous suggestion to the intervenor when they opened the box that the application was not eligible might be considered to have been grossly negligent when it did not know the facts, it is not an example of its bad faith. The union's antipathy towards Ms. Chislett became obvious after it learned the facts and was still determined that her grievance should not succeed. It may well be the case that this committee could not bear to have the former committee Chair discover an error it had made, but as union officials they cannot allow their actions to be influenced by such feelings.
28There is no merit to the union's argument that this application is premature because Ms. Chislett did not exhaust the union's internal appeal procedure. The union withdrew the grievance on the same day that it advised her it was not proceeding. Therefore, there was no remedy which Ms. Chislett could achieve by appealing the decision. The intervenor could not be expected to permit a grievance which had been withdrawn to be re-filed just because the union changed its mind. Therefore, there was no real opportunity for Ms. Chislett to appeal through any internal union procedure and her only remedy was to file this application.
Remedy
29A number of possible remedies were canvassed by the parties and the Board in this consultation. It appears that the parties might be able to fashion an appropriate remedy now that the union's liability has been established. The Board therefore directs the parties to endeavour to agree to an appropriate remedy. If the parties are unable to agree and the Board is so advised it will issue a further decision directing a remedy.
30For the parties' guidance in their discussions the Board does not find the argument that the applicant is not entitled to a remedy because she did not apply for a subsequent posting to be persuasive.
31I will remain seized of this matter.