0450-98-U Elke Schummer, Applicant v. Canadian Union of Public Employees Local 793, Responding Party v. University of Waterloo, Intervenor.
BEFORE: Brian McLean, Vice-Chair.
DECISION OF THE BOARD; June 6, 2000
The applicant has advised the Board that, in her view, the responding party trade union (“Local 793”) has breached Minutes of Settlement entered into by the applicant, the responding party and the intervenor as settlement of this application.
Local 793 and the employer deny the applicant’s allegations and have requested the Board to dismiss them without a hearing. The applicant has responded to Local 793 and the employer’s request. This decision deals with that issue.
The Minutes of Settlement entered into by the parties are as follows:
MINUTES OF SETTLEMENT OF
OLRB FILE NO. 0450-98-U
Between: Elke Schummer
(hereinafter referred to as “the Complainant”)
and Canadian Union of Public Employees, Local 793
(hereinafter referred to as “the Union”)
and The University of Waterloo
(hereinafter referred to as “the Employer”)
In order for all parties to have a fresh beginning and in order to resolve the application filed by the complainant as OLRB File No. 0450-98-U the parties hereby agree as follows:
The Employer will reimburse the complainant for the loss of pay for the two days of her suspension in March, 1997.
The Employer agrees not to harass or discriminate against the complainant based on any of the prohibited grounds set out in the Ontario Human Rights Code.
The Union agrees to represent the complainant in a manner consistent with its obligations pursuant to s. 74 of the Labour Relations Act, 1995.
The Complainant agrees to withdraw this application and that she will not refile any complaint or grievance with respect to any matter which has occurred prior to the date of this settlement against either the union or the employer, under the Labour Relations Act, 1995.
Dated at Toronto this 22nd day of July, 1999
For the Complainant For the Employer
“Elke Schummer” “Neil Murray”
For the Union
“Neil Stewart”
It is agreed that this Memorandum will be placed in the grievor’s personnel file.
In November 1999 the trade union filed a grievance on the applicant’s behalf regarding the employer’s failure to make the applicant a lead hand. During the course of the grievance procedure, the union withdrew the grievance because the collective agreement permitted the employer exclusive discretion over the appointment of lead hands.
The applicant believes she should have been awarded the lead hand position, or at least should have been interviewed for the position. She is a long-service employee with a strong work record. She believes that the employer’s decision not to appoint her was tainted by improper illegal motive and that Local 793 should have challenged the employer forcefully. As the applicant stated in her submissions dated May 29, 2000:
I am eminently qualified for a lead hand position. My character is above reproach. I abstain from substance abuse. I have letters of recommendation, dated before and after the fresh beginning.
My sick days have been minimal since the fresh beginning. The only black mark against me were in the past and were false accusations. To rectify one of those false accusations, I request that George Draghasanu, who is my union representative, states in writing the truth, that I never verbally abused him and that a Foreperson never had to restrain me from physically attacking him. And I request that this clarification be kept in my file.
It was the unions [sic] representative’s obligation to support my qualifications and to point out to Tom Galloway that he may have the right to decide who gets promoted, but his decision has to be within the Human Rights Legislation and the Employment Standard Rules. Mr. George Draghasanu as my representative failed to do this on November 17, 1999.”
The Minutes of Settlement in this application require the union and the employer to live up to their obligations under the law. In particular, the union must abide by section 74 of the Labour Relations Act, 1995 (“the Act”) which states:
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.
The Minutes of Settlement put no greater obligation on the union than that required by section 74 of the Act. Section 74 of the Act does not require a trade union to take every case to arbitration. It is permitted to evaluate a number of factors in deciding whether to pursue, settle or withdraw a particular grievance. The likelihood of success is certainly one of these factors.
The applicant has provided no evidence to the Board that the employer’s motives in not making her the lead hand were improper. She believes that the employer may have had improper motives because there were disciplinary letters in her file which should have been removed. Under these circumstances, Local 793 could have no reason to believe that it would have any chance to succeed at arbitration, particularly in the face of the collective agreement provisions which put the appointment of lead hands in the hands of the employer. Therefore, the union acted reasonably, and certainly not contrary to the Act, when it withdrew the applicant’s grievance.
Accordingly, the Board declines to inquire into the applicant’s assertion that the union violated its settlement with her.
“Brian McLean”
for the Board