0699-99-U Velma Johnson-Bingham, Applicant v. Service Employees International Union, Local 204, Responding Party.
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: Harry Kopyto for the applicant; Sean Fitzpatrick and Brad Philp for the responding party.
DECISION OF THE BOARD; July 12, 2000
[1]. This is an application under section 96 of the Labour Relations Act, 1995 (referred to as the “Act”) alleging that the responding party (referred to as the “union”) has violated section 74. A consultation was held in this matter and the facts outlined in the following paragraphs were disclosed through that process and the parties’ pleadings.
[2]. The applicant commenced employment with the Humber River Regional Hospital (referred to as the “hospital”) in August 1990. In the summer of 1997, a prior representative of the applicant sent a letter on her behalf to the hospital complaining about harassment by a co-worker and a supervisor. The hospital responded that, as she was represented by a union, it could only deal with the union. The applicant subsequently received a letter from the hospital which she considered to be disciplinary. On November 3, 1997 she filed a grievance alleging harassment. In January, 1998 the union and applicant met with the hospital and agreed to move the applicant to another area where she would not have to work with the alleged harassers. As the applicant had raised the issue of racial harassment, the hospital also had an investigation conducted by Cristina Kilgour, a human resources consultant who was not a hospital employee. The grievance was denied by the hospital at Step 3 in February 1998, although it offered to recharacterize the letter given to the applicant as a letter of counseling. The applicant did not find that offer acceptable and the union therefore pursued the grievance to the point of appointing a nominee to a Board of Arbitration. The union then waited until the outcome of the Kilgour investigation before it pursued the arbitration process further.
[3]. The results of the Kilgour investigation were provided to the union and the applicant in October, 1998. Ms. Kilgour concluded that there was no evidence of harassment or discriminatory treatment of the applicant. The hospital failed to appoint its own nominee to the Board of Arbitration throughout this period. Therefore, after receiving the investigation report, the union applied under section 48 of the Act to have the Office of Arbitration appoint a nominee. That request resulted in the hospital appointing a nominee. However, in and around that time, the applicant filed a complaint against the union alleging a violation of section 74 of the Act and complaining about the delay in scheduling the grievance for arbitration. It sought a direction that the grievance be scheduled for arbitration. Prior to filing that complaint, Mr. Kopyto wrote to the union making a number of settlement demands. The union did not reply to Mr. Kopyto.
[4]. The prior application alleging a violation of section 74 was withdrawn before the consultation in January 1999 when the union indicated that the date of May 19, 1999 had been set for the arbitration. One of the facts that the union included in the response to that application was that it had sought a legal opinion with respect to the grievance. Brad Philp, the union’s representative, then met with the applicant a week or so later and asked her a lengthy set of questions provided by the union’s legal counsel. The applicant had the opportunity at that meeting to advise the union of all of the aspects of the Kilgour report with which she disagreed. That information was forwarded by Mr. Philp to the union’s counsel. The union’s counsel then contacted the applicant in April, 1999 with further questions. The union’s counsel subsequently rendered a written legal opinion that the grievance was unlikely to be successful at arbitration. That opinion was provided to the union in April, 1999. Mr. Philp then contacted the applicant on April 19, 1999 and advised her that the union was withdrawing the grievance on the basis of the legal opinion. That conversation was followed by a letter from Mr. Philp. The letter informing the grievor of the decision to withdraw the grievance did not explain the contents of the legal opinion. It did however invite the applicant to contact Mr. Philp with any questions. On the same day as the letter was sent to the applicant a letter was sent to the hospital advising that the grievance was withdrawn on the basis of the hospital’s agreement to characterize the letter in her file as one of counseling. The applicant subsequently sought a copy of the union’s legal opinion through her counsel but the union did not respond to that correspondence. A copy of the legal opinion was provided with the response to this application.
[5]. The union says that it sought the legal opinion prior to receiving the first application the applicant filed alleging a violation of section 74 but that it required further information from the applicant before the opinion could be rendered. However, it did not feel it was appropriate to approach the applicant for that information while that application was pending. The union also says that the applicant knew that it was seeking a legal opinion when she withdrew her initial application. The applicant denies that she had any knowledge that a legal opinion was being sought. However, the response to the first application does state that Mr. Philp was in the process of seeking a legal opinion on the strength of the grievance when the application was filed.
[6]. A few days prior to this consultation the applicant’s counsel wrote to the Board and advised that she was making certain additional claims. The Board ruled that it would not consider any additional materials filed at the last minute.
[7]. The applicant complains, among other things, that the union led her to believe her grievance would proceed to arbitration and did not inform her that it was seeking a legal opinion. She also asserts that the union and its counsel focussed improperly on her allegation of racism instead of just focussing on her claim of harassment. The applicant also claims that the union delayed unduly in arranging an arbitration date and did not keep her informed or respond adequately to her requests for information. The applicant also claims that the lawyer who drafted the legal opinion relied to heavily on information provided by the hospital and the investigation report. The applicant complains that the union accepted that investigation as independent and should not have done so. The applicant seeks damages for pay she claims to have lost, asks that the grievance be sent to arbitration or that the Board direct that a full hearing be held to call viva voce evidence from the parties.
[8]. Ms. Johnson-Bingham also advised at the consultation that when the original application was withdrawn, Mr. Philp indicated that he would conduct an investigation. This appears to have resulted in a misunderstanding. She was under the impression that this would be a formal process whereas Mr. Philp meant that he would meet with her to gather further information which we would forward to the union’s counsel.
[9]. The union denies that it represented the applicant arbitrarily, discriminatorily or in bad faith. It argues that a number of issues raised by the applicant were raised in her correspondence