Ontario Labour Relations Board
3930-98-U Perry Zolis, Applicant v. Ontario Secondary School Teachers’ Federation District 12, Responding Party v. Toronto District School Board, Intervenor.
BEFORE: Brian McLean, Vice-Chair.
DECISION OF THE BOARD; March 10, 2000
- This is a request for reconsideration of the Board’s decision dated September 28, 1999 in this matter. That decision was an oral decision, which was set out in the Board’s direction of November 22, 1999 as follows:
In coming to this decision, I note that I did not consider the submissions regarding events which took place prior to when the union had a duty under section 74 of the Labour Relations Act, 1995, as that is out of my jurisdiction. I also did not consider what has happened since the application was filed – so if there are problems with the implementation of the settlement, my decision does not deal with these issues. The Board only deals with events that occurred prior to the date of the application.
It is clear that while Mr. Zolis has numerous complaints about the union, and possibly the School Board, the basis of the complaint is the union’s decision to settle two grievances.
The union’s duty in settling grievances is governed by section 74 of the Act. Settlements must not be arbitrary, discriminatory or in bad faith.
In this case, the union received legal advice that the grievances might be difficult to win at arbitration and recommended settlement of them. In this case, the union took that advice, as most unions would do.
While Mr. Zolis today suggested that Mr. Phillips may have acted improperly in recommending settlement, there is no evidence of that.
Unions are not required by section 74 of the Act to take every case to arbitration. They must make decisions based on the importance of the issue, the likelihood of success, legal advice and other factors.
Few unions are going to ignore the advice of their lawyer. While a legal opinion is not an absolute defence to a complaint under section 74 of the Act, it may go a long way.
Unions are even permitted to be wrong in making these decisions. While I doubt it, the union and Mr. Phillips may have been wrong in deciding that they did not have a good chance of winning the case, and in deciding to settle the grievance. Even if they are wrong, that decision is not one the Board ought to interfere with, there being no evidence of a violation of section 74. The terms of settlement may not have been perfect; however, that alone is not enough to cause a breach of the statute.
Therefore, I find that in this case the applicant, even at his best case, without hearing from the other side, has not demonstrated to me that the union’s conduct violated section 74 of the Act.
To emphasize, merely making a settlement that is unsatisfactory to the grievor is not a violation of section 74.
Accordingly, this application is dismissed.
The Board’s practice in requests for reconsideration is described in Cineplex Odeon Corporation, [1996] OLRB Rep. Nov./Dec. 922, where the Board stated at page 924:
As to the general principles applicable on applications for reconsideration, there was little dispute. They are distilled in the following two quotations. First from Canadian Union of General Employees, [1975] OLRB Rep. April 320:
Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make representations or objections not already considered by the Board that he had no opportunity to raise previously.
(International Nickel Co. of Canada Ltd. [1963] OLRB Rep. 234, 64 CLLC ¶15,493 (Ont. H.C.); Detroit River Construction Case (1962) CLLC ¶16,260). Both legs of this principle depend upon the applicant having been diligent and therefore having had no opportunity to draw the Board’s attention to the objection of its concern. The applicant in the case at hand and his lawyer were not diligent in that they were given notice of the hearing date in the matter by the Board. Accordingly, they would not appear to come with[in] the ambit of the principle.
Secondly, from John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096 after quoting a portion of the above passage from Canadian Union of General Employees:
These are general standards which the Board has developed as guidelines and which are useful not just to guide the Board in making its decisions, but also to allow parties who may be affected by the Board’s decisions some degree of certainty of what to expect from the Board. While it is important for the purpose of certainty that these standards generally be adhered to, it is equally important that they not be followed inflexibly. Although neither of the two conditions precedent stated in the Canadian Union of General Employees case, supra, are satisfied here, the request does raise significant and important issues of Board policy and for this reason the Board will review its decision to determine if it should vary or revoke the decision.
See also K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185, which mentions the motives for the request and any resulting prejudice as factors to be considered.
Before considering the request for reconsideration, it is useful to sketch in some of the background facts, none of which are in dispute.
The applicant is a secondary school business studies teacher who has been employed by the Toronto District School Board and its predecessor as a teacher at Cedarbrae Collegiate since 1989. The responding party represents the applicant and all other secondary school teachers employed by the Toronto District School Board.
There appears to be no dispute that the applicant did and does suffer from a disability. In fact, the applicant has been on long-term disability and not at work since September 1997.
On March 5, 1997 the applicant filed a grievance in which it was alleged that the School Board had failed to accommodate his disability by reducing his teaching time.
On June 11, 1997 the applicant filed another grievance because he had been transferred to another school. The School Board’s justification for the transfer was that, in its view, the applicant could not get along with other teachers at the school. The applicant asserts that the union has a policy, established in its Constitution, of being opposed to transfers against a teacher’s will.
Prior to the arbitration hearing, the School Board and the union entered into a renewal collective agreement. The new agreement gave the Board, at least arguably, more scope in which to effect the administrative transfer of a teacher without that teacher’s permission. Counsel for the union was of the view that the issue could go either way but that the facts of Mr. Zolis’ case were a poor test case, because of his history of conflicts with other teachers.
The responding party referred both grievances to arbitration and retained a lawyer to conduct the arbitration hearings.
The arbitration hearings commenced but the cases were settled before they concluded. The union’s lawyer advised the union that the grievances were unlikely to succeed, that a determination of the grievance might negatively impact on the bargaining unit as a whole and the relief which the applicant sought was likely not obtainable, even if it was successful. Accordingly, the union decided to settle.
The reasons for the union’s decision to settle the grievances are contained in a letter to the applicant dated January 27, 1999 which states in part:
The Executive considered the following in reaching our decision:
The Chair of the arbitration panel, Ms. Maureen Saltman, made an interim ruling that Dr. Soklarides must be cross-examined if his note requiring accommodation for you is submitted in evidence. For the grievance to proceed, the note must be submitted in evidence. Our lawyer, Josh Phillips, has advised us that cross-examination of Dr. Soklaridis will greatly weaken and perhaps even destroy the case for your accommodation. We considered this and all of the other factors referred to in the October 5, 1998 letter to us from Josh Phillips, a copy of which you received.
On the second grievance (the administrative transfer), the circumstances of your case are such that it was unlikely to succeed. Under the terms of the new collective agreement with the TDSB, the management rights of the Board are strengthened. Regardless of how the arbitrator interpreted the old collective agreement, it would not affect your placement on your return to work, as this would be determined by the collective agreement in effect at that time.
The Board’s offer of settlement includes a transfer to SCAS in introductory business classes at the point that you are able to return to work, but with the status and pay of a regular contract teacher. We consulted people experienced in the adult day schools, and they assured us that this was a highly desirable position. Given that a part of your accommodation issue was the difficulty with new and complex materials, the Executive felt that this timetable would meet your accommodation requirements.
The settlement proposal also includes restoration of all the sick days resulting from the 2/3 timetable, and claimed as a remedy in the first grievance. This would restore to you the potential financial loss which was a major reason for the grievance.
The applicant objected to the settlement and brought this application.
Grounds for Request for Reconsideration
The applicant’s request for reconsideration is lengthy. However, despite its length, all of the grounds and issues raised in the request either were raised or could have been raised at the consultation which was held in this matter. On that basis alone, the application for reconsideration can be dismissed, as under the Board’s Rules and practice, a request for reconsideration is not to be used as an opportunity to re-argue a case. However, the Board will deal with some of the points raised in the application to assist the applicant in better understanding why his complaint did not succeed.
The first reason advanced by the applicant in his request for reconsideration was that the Board failed to consider the fact that, pursuant to section 48 of the Act, an arbitrator has the power, among other things, to interpret and apply human rights statutes. The Board notes that it is not acting as a sole arbitrator or board of arbitration when it hears applications brought under section 74 of the Act. Therefore, it is not obligated to apply Human Rights statutes; its only role is to determine whether a respondent trade union has violated section 74 of the Act. Obviously, however, the Human Rights Code can be useful in determining whether a trade union’s representation of an applicant is “discriminatory”.
In addition, it is apparent that the trade union, and its counsel, was aware of the fact that the arbitrator in this case had the authority to apply the Human Rights Code. The grievance was based on the School Board’s duty to accommodate the applicant, and there is no suggestion that the union believed that the arbitrator did not have jurisdiction to hear the case. The union’s decision to settle was based on other grounds.
The applicant also asserts that the union’s lawyer had no “real evidence” about what his family physician, Dr. Soklaridis, would testify to if he were called as a witness at the arbitration hearing. Union counsel had a discussion with Dr. Soklaridis about the testimony that Dr. Soklaridis could give in support of the applicant’s grievance. Following that conversation, counsel felt that Dr. Soklaridis’ testimony would not be helpful, and his was the only available medical evidence. The union relied on this advice, in part, where it decided to settle the grievances (see paragraph 1 of the union’s letter dated January 27, 1999). The Board is loath to second-guess this type of judgement call in applications under section 74 of the Act. In addition, the applicant did not allege any facts or provide any documentation in support of his allegation that counsel’s report of what Dr. Soklaridis would testify to was incorrect. Accordingly, the Board could not conclude that counsel or the union acted in any way improperly.
The applicant also relies on alleged maltreatment that another employee, Dr. Edusei, has received at the hands of the OSSTF. However, the Board does not judge one application based on how a responding party may or may not have treated another employee. Instead, the Board examines whether the responding party represented the applicant in accordance with the Act. The Board’s decision was based solely on how the respondent trade union dealt with the applicant.
The Board has frequently dealt with situations in which an applicant’s grievance was settled against the applicant’s wishes. The Board’s jurisprudence demonstrates, that unions are not required to take every discharge case to arbitration in order to fulfill their obligations under section 74 of the Act. Grievance arbitration is an expensive process and a union’s revenue is limited. Unions are entitled to consider the labour relations ramifications of the bargaining unit as a whole in determining whether to proceed through arbitration with a particular grievance. In Catherine Syme, [1983] OLRB Rep. May 775, the Board discussed the application of section 74 of the Act to a trade union’s obligations with respect to the handling of grievances as follows:
Section 68 [now 69] requires a trade union to act fairly, inter alia, in the handling of employee grievances. But it does not require a trade union to carry any particular grievance through to arbitration simply because an employee wishes that this be done. A trade union is entitled to consider the merits of the grievance, the likelihood of its success, and the claims or interests of other individuals or groups within the bargaining union who may be affected by the result of the arbitration. The trade union must give each grievance its honest consideration, but so long as the arbitration process involves a significant financial commitment and has ramifications beyond the individual case, a trade union is not only entitled to settle grievances, in many cases it should do so. And, as has been pointed out in a number of cases, in assessing the merits of a grievance a trade union official ‑ especially an elected one ‑ cannot be expected to exhibit the skills, ability, training and judgement of a lawyer.
Most collective agreements contain a grievance procedure to which resort must be made before a matter can proceed to arbitration. The grievance procedure involves several stages of pre‑arbitration discussion in which (as in the present case) the parties seek to amicably resolve their differences. As in the ordinary civil litigation process, it may be in the interests of both parties to seek an "out of court" settlement which is more modest than either of them might have obtained had they been entirely successful before an adjudicator. A settlement is a compromise solution which avoids the costs and uncertainties of litigation, and where it appears that the claim is without legal foundation or cannot be proved it makes little sense to proceed further.
In this case, the union considered only relevant and appropriate factors when it decided to settle the applicant’s grievance. It considered the chances of success, the effect of proceeding on the bargaining unit as a whole, whether the adjudication of the Board’s involuntary transfer right could best be determined under different facts, and the fact that the settlement gave the grievor much of what he wanted.
There is little doubt that the union could have won the applicant’s case at arbitration. There is also little doubt, however, that the union could have lost. The union is, when it settles grievances, entitled to make judgement calls. Moreover, as long as the union acts in accordance with section 74 of the Act, absolutely nothing in the Act precludes a union from settling any grievance. In this case, I was not satisfied that the union’s conduct, or that of its counsel, fell below the standard required by the Act. In fact, in my view the union and counsel acted as they should have, and gave diligent thought and care to the applicant’s circumstances.
Nothing in the request for reconsideration causes me to believe that there was any flaw in my original decision. Accordingly, the application for reconsideration is dismissed.
“Brian McLean”
for the Board