1539-98-U Yvette Ziadé, Applicant v. York University Staff Association, Responding Party v. York University, Intervenor.
BEFORE: Christopher J. Albertyn, Vice‑Chair.
APPEARANCES: Yvette Ziadé, Abboud Ziadé and S. Sean Hagler for the applicant (at the time of the filing of the application) and Margaret Best (at the consultation) and Yola Grant (when filing the applicant’s submissions regarding the prima facie merit of the application); Victoria Reaume, Jim Streb, Al Scragg, Catharine Sampana and Malcolm Rogge for the responding party; Nancy Eber, Wanda Sanginesi and Michelle Flaherty for the intervenor.
DECISION OF THE BOARD; April 3, 2000
1The style of cause is hereby amended to reflect the correct name of the responding party: “York University Staff Association”.
2This is an application under section 96 of the Labour Relations Act, 1995 A(“the Act”) alleging a violation of sections 74, 75 and 87 of the Act by the responding trade union (“the union”).
3The papers in this matter are voluminous. The allegations cover the period from February 1991 until the application was filed in July 1998. There has been a consultation in the matter, during which, with the parties’ consent, I endeavoured unsuccessfully to mediate a settlement between the parties. At the conclusion thereof the parties were given an opportunity to file written submissions on the union’s request that the application be dismissed for failing to disclose a prima facie case. All have done so. This decision determines that request.
4I do not set out the various disputes of fact in detail. They are numerous and complicated. I will distill what I see as the essential elements of the applicant’s complaint and, assuming all of her allegations to be true and provable, in light of the facts which are either undisputed or common cause, I will review whether she makes out an arguable case that the union has violated sections 74, 75 and 87 of the Act.
5The applicant was employed by the intervenor (“the University”) as a full‑time Library Assistant in 1981. In 1988 she was promoted to the position of Senior Reserves Assistant in the University’s Scott Library. That position is classified at a “band 7” level. In about February 1991 a Ms. Carinci became the Reserves Supervisor. The applicant alleges that Ms. Carinci made several spurious and hurtful allegations against her. The false allegations were shared with other library staff. The applicant says that she was harassed and maltreated. She wrote to the Circulation Manager, complaining of what she regarded as harassment. Thereafter the applicant believes the Reserves Supervisor and the Circulation Manager were conspiring against her to make her life at work miserable. She felt she was working in a poisoned work environment. The applicant was obliged, by stress, to take periods of sick leave.
6On January 15, 1996 the applicant’s workload increased. She felt she was being singled out and she requested meetings with management to address her feelings of being harassed and treated in a discriminatory manner. During 1996 and until March 1997 there were several nasty incidents which confirmed for the applicant that she was being maltreated by her superiors. She claims that she was repeatedly humiliated in public, she was falsely threatened with discipline and discharge, she was not treated equitably, she was harassed, effectively demoted, excluded from e-mail lists, prevented from performing her duties, denied training and intimidated. The impact of the treatment she received was to cause her to suffer a major depression and traumatic stress. She was off on sick leave from March 1997 to March 1998.
7From an early stage, the applicant raised her concerns with, and through, the union. An agreement was reached between the union and the University concerning the applicant on May 17, 1995 which resolved grievances she filed in 1994 and 1995 (grievances 11-94 and 01-95). It appears that the settlement was reached after the grievances had been referred to an arbitrator. The arbitrator was to remain seized to deal with the implementation of the terms of settlement. Among the terms was provision for a relationship building seminar and a training course. The applicant alleges that the settlement was not complied with, and that the union failed to refer the matter to the arbitrator for relief. The union disputes this. The applicant says that a relationship building seminar and training course never occurred. The union says that the training course was provided. Wherever the truth on this matter lies, it relates to matters which occurred nearly 5 years ago and is relevant to this application only insofar as they provide a background to understand the issues of this case.
8According to the union and the University, from about the spring of 1996 until early 1997, the University undertook an extensive restructuring of the library system. Included within the restructuring were some changes to the organization and composition of the Scott Library. Previously there were two sections: a reserve section (in which the applicant worked) and a circulation section. Following the restructuring of the Scott Library, the distinction was eliminated. The reserve section was closed and its functions were merged with the circulation section. Bargaining unit employees were required thereafter to perform the duties of both previous sections. The changes were to result in the elimination of the applicant’s position as a Senior Research Assistant, of which more is said below.
9The applicant filed several grievances during 1996 (10-86, 11-96, 35-96, 96-96, 97-96, 113-96 and 117-96). The grievances include requests to have letters of reprimand and disciplinary suspensions removed from the applicant’s personnel file. The applicant sought to have the disciplinary suspensions set aside and she wanted relief from harassment by members of management. The harassment grievance concerned a report written by the Assistant Manager of the Scott Library regarding the applicant’s conduct. The report was critical of the applicant’s work and her behaviour. All of these grievances came before Arbitrator Mikus. The arbitration commenced on January 27, 1997.
10The arbitrator was permitted by the parties to act in a mediating capacity. She spent several days endeavouring to assist the parties to resolve the issues at stake in the case before her: January 27 and 28, April 9, 15 and 17, 1997. During the period covered by the mediation and before that, it appears that the University was in the process of eliminating the applicant’s position in the Scott library. The closing of her position and her relocation to another position became an issue in the mediation.
11The arbitrator recommended that the parties endeavour to seek a suitable settlement, bearing in mind that it appeared to the arbitrator that the applicant’s relationship with her superiors was a fundamental issue which needed to be resolved. The arbitrator suggested that a resolution might involve the applicant moving to a position outside of the Circulation Services. The focus of the discussions between the union and the University was to find an overall solution to the applicant’s grievances. That involved discussions over the removal of the discipline which had been imposed on her but, more importantly, it involved trying to find a suitable alternative full-time, permanent position for the applicant at an equivalent job grade. Both the union and the University were concerned at the prospect of approximately ten days of hearings to deal with the grievances. Both were keen to reach a negotiated settlement if they could. The negotiations at mediation were protracted and several proposals were exchanged. The efforts to reach agreement proved unsuccessful. The union and the applicant were not satisfied with the University’s proposals.
12The arbitration resumed. Hearings were held on May 7, May 27 and June 10, 1997. On June 11, 1997 mediation efforts were revived. New proposals were presented, but they did not result in a settlement. Further arbitration hearings occurred on August 29, and September 17 and 22, 1998. Several additional hearing dates were arranged. The next scheduled hearing date was January 15, 1998.
13A further grievance was filed by the union on January 6, 1998. The applicant claims to have had no prior knowledge of it, although it was filed by the union in her name. The union filed the grievance because, on its interpretation of the collective agreement, much of the discipline which was the subject of the arbitration had expired under the sunset provisions relating to discipline in the collective agreement. It contended that 12 months had elapsed since the issue of particular discipline to the applicant and hence that discipline should be removed from her personnel file. The union and the University decided that the length of the proceedings might be reduced if a ruling were made by the arbitrator on the proper interpretation of the disciplinary sunset provision of the collective agreement. They sought an interim ruling from the arbitrator.
14The issue the arbitrator was asked to determine was whether disciplinary letters in the applicant’s personnel file for more than 12 months had lapsed, and whether they should be removed from the applicant’s file. The union took the position that they should be removed; the University took the position that, on account of the fact that the applicant had been on sick leave from March 4, 1997, the 12 months contemplated in the collective agreement had not lapsed and the discipline should remain on the grievor’s file until 12 months of actual working time had expired. By decision on January 29, 1998 the arbitrator found for the union and ordered that all of the disciplinary letters complained of be removed from the applicant’s personnel file.
15The applicant claims that letters which Arbitrator Mikus had ordered removed from her personnel file were not removed. She claims that the union was aware of this and failed to take action to ensure compliance with the award. The union answers this allegation by reference to a memorandum from the University, dated August 10, 1998, wherein the University confirmed the following:
On July 7, 1998 we meet (sic) to discuss grievance 17/98. During the grievance meeting you indicated you wanted certain information removed from Ms. Ziadé’s personal file. These letters you refer to were issued on October 21, 1996 and December 12, 1996. Upon reviewing the file, as I advised the Union, the letters themselves have been properly removed but there were transactions forms, which are budgetary records, which are included in each employee’s file.
The Employer is prepared to have any transactions forms which refer to actions take (sic) under the letters identified above, placed in a sealed envelope in the file. This sealed enveloped (sic) can only be opened by the Manager of Employee Relations or the Director of Human Resources.
This action has now been taken.
16Throughout the period of the discussions between the union and the University, from the time discussions commenced under Arbitrator Mikus’s mediation in about April 1997, until May 1998, the question of the applicant’s re-location to another position within the University was a key feature of the discussions. From the start of the discussions the University was seeking the elimination of the applicant’s Senior Research Assistant position. The counter-proposals from the union (and the applicant) were directed to securing a permanent alternative position for the applicant, while reserving her right to be able to return to her “home” position as a Senior Research Assistant if her transfer did not work out. No agreement could be reached between the parties during 1997. Their point of disagreement appears to have been the University’s requirement that the applicant’s position be eliminated and that she occupy another position, failing which that she be declared surplus or laid off. The union’s (and the applicant’s) position appears to have been that she take another permanent position, failing which she could return to her home position. That difference of approach was not overcome until May 1998, when the union effectively submitted to the University’s proposal, subject to certain benefits to the applicant over and above what she would otherwise have been entitled under the collective agreement.
17The union contends that by March 1998 the key issue occupying the union’s attention as regards the applicant was the prospect of her position as Senior Reserve Assistant being eliminated. As part of the restructuring of the library services, undertaken in 1996 and 1997, that position was to be eliminated. When she went on sick leave in March 1997, her position was not filled during her absence. Under the collective agreement, when a staff member is on sick leave, he or she cannot be given notice of the closing of his or her position. Hence, the applicant could not be given notice of termination of her position, although, according to the union, it was within all parties’ knowledge that upon her return to work, her position was to be eliminated.
18The union claims to have satisfied itself that the closure of the applicant’s position was bona fide, part of the overall restructuring which was occurring in the University’s library system. This is a considerable source of contention between the applicant and the union. The applicant submits that the union did nothing to satisfy itself that the closure of her position was bona fide. She suggests that only her position was eliminated and her work was distributed among other library staff. She sees herself as having been penalized for filing a harassment grievance against the management of the Scott library. She sees the discontinuance of her position as retaliation. She submits that the union did not conduct any investigation of the closure of her position, and that it uncritically accepted the University’s stance on the matter. This, she says, was despite the union giving her an undertaking that it would not support the closure of her position. Furthermore, for reasons explained below, the applicant alleges that as late as April 29, 1998, just two weeks before the conclusion of the Settlement Agreement, the union reiterated to the applicant it was not supporting the closure of her position and it would not agree to waive its right to grieve the closing of her position.
19It appears from the University’s and the union’s submissions that the elimination of the applicant’s position as a Senior Reserve Assistant occurred in the context of the merger of the circulation and reserve sections of the Scott library. The functions the applicant previously performed were assumed in part by the Assistant Manager for the combined Circulation-Reserves area, and in part by the Circulation/Reserve Assistants. The reason for the merger appears to be unrelated to the applicant. The ostensible reason for the merger was to achieve greater efficiency and cost saving.
20No grievance was filed in respect of the closure of the applicant’s position as the Senior Research Assistant. The union and the applicant were aware of the closure from about March 1997, and it formed a central feature of their negotiations with the University. The parties dealt with it as if it were part of the bundle of grievances which were before Arbitrator Mikus. The applicant’s view that the restructuring was spurious and designed to exclude her from the Scott library was part of her consideration, and that of the union, from as far back as April 1997. Yet, from that time onwards there was no serious challenge to the fact that the applicant would move from the Scott library to another library position within the University. The crux of the negotiations was the basis upon which that move would occur.
21Article 15 of the collective agreement provided that, in the event of an employee’s position being eliminated, he or she was required to bump into another position at the same (or a lower) band level for which he or she was qualified, or accept layoff. The applicant faced the prospect of having to bump into a position for which she was qualified. But her position was complicated by the provisions of Article 19 of the collective agreement. That provision affected employees returning from sick leave exceeding 12 months. The University took the position during the negotiations that the applicant was not fit to return to full regular duties and that she could not bump into another position.
22The union and the University entered into further discussions to endeavour to reach an overall solution of the issues affecting the applicant. In conducting the negotiations, the union sought to secure the applicant’s employment following her return from sick leave. Various proposals were exchanged. On April 9 and 13, 1998 the union met with the applicant and her spouse to consider the University’s proposals. There was a full discussion of the situation the applicant faced and of the options which were available to her. The merits and demerits of the various settlement proposals were considered.
23The union had appointed counsel to represent it in its pursuit of the applicant’s various grievances before Arbitrator Mikus. The union sought counsel’s written recommendation on the settlement proposals. Counsel considered the proposed settlement the union was able to negotiate with the University. He wrote to the union on April 21, 1998 setting out the reasons he felt the draft settlement agreement constituted a reasonable resolution of the grievances before Arbitrator Mikus.
24On April 27, 1998 the union informed the applicant that it intended to resolve her grievances on the basis of proposed minutes of settlement, which were sent to her. On the same date, the applicant wrote to the union advising that she did not accept the terms of the minutes and that she wanted the union to conclude “a better deal”. A meeting took place between the union’s President, Mr. Scragg, and the applicant and her spouse. Mr. Scragg informed them that the union was willing to conclude the minutes of settlement, notwithstanding the applicant’s disagreement because he thought the proposed agreement was fair and reasonable in the circumstances. Mr. Scragg’s letter of April 27, 1998 is somewhat contradicted by a letter he sent to the applicant on April 29, which is described more fully below. The applicant claims that, by sending the letter to her of April 29, she was left with the impression that the union would not be proceeding to conclude the minutes of settlement which she had rejected. That impression proved to be false.
25On May 14, 1998, the union signed the minutes of settlement on behalf of the applicant (“the Settlement Agreement”), despite the applicant’s refusal to accept its terms. The union regarded the settlement as being fair and reasonable, and the best settlement they could achieve for the applicant. She does not regard it in the same light. She sees the Settlement Agreement as being motivated by bad faith towards her, and as arbitrary. She contends that it does not address the concerns she raised in her grievances, particularly her complaints of harassment, which were due to be considered at arbitration when the Settlement Agreement was concluded. Her complaint to the Board followed the signing of the Settlement Agreement.
26The Settlement Agreement reads:
MINUTES OF SETTLEMENT
WITHOUT PREJUDICE/WITHOUT PRECEDENT
These minutes of settlement are without prejudice, without precedent and without admission of liability on the part of either party.
The employer proposes the following settlement with regard to all grievances currently outstanding in the case of Ms. Ziadé including grievance numbers 10/96, 11/96, 35/96, 96/96, 97/96, 113/96, 117/96, 14/98 and 15/98.
Ms. Ziadé will be moved to the position of Circulation Assistant in the Business and Government Publications Library May 19, 1998.
The union will waive posting for the above noted position.
Ms. Ziadé will have available, if needed, up to a 12 week accommodation programme as of May 19, 1998 in the Circulation Assistant position in the Business and Government Publications Library to allow her the opportunity to fulfil the essential duties of the position.
The position of Senior Reserves Assistant, Band 7, currently occupied by Ms. Ziadé in Scott Library will be closed effective May 19, 1998.
In the event it is demonstrated Ms. Ziadé is unable to fulfil the essential duties within the 12 week accommodation period, the provisions of Article 19.09 will not be applied. Upon presentation of medical documentation, acceptable to the University, attesting to her fitness to return to work, the provisions of Article 15, including the Letter of Understanding - Extended Notice, under the 1997-1999 Collective Agreement between YUSA and York University will apply.
Ms. Ziadé will be gold circled at Band 7 rate of pay in the Circulation Assistant position in the Business and Government Publications Library.
In the event Ms. Ziadé is able to fulfill the essential duties of the position of Circulation Assistant, Business and Government Publications, within the 12 week accommodation period, the parties will consider all matters to have been resolved. Ms. Ziadé’s employment relationship will be governed by the provisions of the 1997-1999 Collective Agreement between YUSA and York University.
Ms. Ziadé will meet with a Human Resources Advisor who will complete a generic skills grid, perform any necessary testing and make recommendations concerning skill gaps that should be addressed. The employer, Ms. Ziadé and the Union will meet to review the recommendations.
The Union will withdraw without prejudice all outstanding grievances in connection with Ms. Ziadé including those identified in Item 1 of these minutes of settlement.
The Employer will not seek to recover ten (10) days salary currently owed by Ms. Ziadé.
The parties agree that these minutes constitute full settlement of the matters in dispute and shall not be the subject of further litigation unless agreed to by the parties. It is understood, however, that Loretta Mikus shall remain seized with respect to implementation of these Minutes of Settlement.
These Minutes of Settlement shall have no effect on Ms. Ziadé’s current Worker’s Compensation Board claim.
In the event Ms. Ziadé refuses to report to the position of Circulation Assistant, Business and Government Publications, under the terms specified in these minutes, the terms of Article 15 of the 1997-1999 YUSA Collective Agreement shall apply.
For the Employer For the Union
(“Illegible Signature”) (“Illegible Signature”)
Dated this 14th day of May, 1998 at 4700 Keele Street, Toronto, Ontario, M3J 1P3
27What emerges from the above is that the central feature of the applicant’s complaint against the union is its conclusion of the Settlement Agreement without her consent. She regards the union’s action in concluding it as being in violation of the sections of the Act referred to above.
28In order to assess the applicant’s complaint it is useful to review the merits of the Settlement Agreement. What did it do for the applicant, bearing in mind that for more than a year previously the University regarded her position as having ceased to exist and that she had certain bumping rights under the collective agreement? The union contends that its representation of the applicant during the arbitration procedure and in the Settlement Agreement achieved the following results for the applicant:
all letters of discipline were removed from her file;
a new position was to be given to the applicant at no loss of salary or prestige, in an area outside of what she claimed to have been poisoned;
her salary was to be gold-circled;
she was given enhanced protection, superior to that under the collective agreement, as regards her choices of posting and bumping, and she was to receive enhanced severance pay if she did not like the new position.
29It is significant that the applicant secured a position which was better than what she might have secured had the provisions of Article 15 of the collective agreement been applied. That Article applies in circumstances when an employee’s position is eliminated. Had that Article applied to the applicant she would have had to bump into a position for which she was qualified at the same or a lower band level. In the Settlement Agreement the applicant acquired a position at a lower band level, but she was to continue, on an indefinite basis, to be compensated at the band 7 level. That position was also consistent with the medical advice which the applicant and the union had been given of her condition.
30The applicant claims the Settlement Agreement is principally defective in that it waived a requirement of the collective agreement between the union and the University that no permanent position can be eliminated without 12 months notice thereof to the incumbent. By agreeing to the elimination of the applicant’s position in the Settlement Agreement, the union was effective waiving an important protection to which the applicant claims she was entitled. Instead of her being entitled to keep her job for at least one year after her return to employment from sick leave, she was given an alternative position with no actual job security, for which she had to prove her capability within a period of 12 weeks, failing which she would be laid off and lose her employment with the University. In her view, this constituted serious detriment. She saw it as a reprisal for her filing the grievances which gave cause for the Settlement Agreement.
31The applicant also alleges that the union’s actions, particularly those of the union’s President, Mr. Scragg, during April and May 1998, in concluding the Settlement Agreement, were at best misleading, at worst mala fide. In a letter to the applicant by Mr. Scragg, dated April 29, 1998, he said that the proposed minutes of settlement no longer had a stipulation that her position was being closed. He reiterated that the union was not supporting the closure of her position. He said that the union was not agreeing to waive its right to grieve the closing of the applicant’s position.
32As I have said, the essence of the applicant’s complaint is the union’s refusal to pursue the closing of her position to arbitration. The test in matters of this sort is set out in DDM Plastics Inc., [1997] O.L.R.D. No. 747 (Board File No. 3310-96-U):
This provision establishes what is commonly referred to as a “duty of fair representation”. It requires a trade union to represent all employees for whom it is the exclusive bargaining agent in a manner which is free of ill-will, and which is neither arbitrary nor discriminatory. Complaints that a trade union has failed to represent an employee fairly often involve a refusal by the union either to file a grievance for the employee or, if a grievance has been filed, a refusal to take it to arbitration. The duty of fair representation does not require a trade union to take the grievance to arbitration merely because the employee wants it to. Unless the collective agreement stipulates otherwise, the trade union has the authority and indeed the obligation to decide whether, upon a fair consideration of the relevant factors, a grievance will be either filed or taken to arbitration. The fact that a trade union has refused to take a grievance to arbitration will not by itself constitute a breach of the duty of fair representation imposed by section 74.
33On the basis of the applicant’s averments and the agreed or undisputed facts, an evaluation of the union’s representation of the applicant in concluding the Settlement Agreement must be founded upon the circumstances which applied at the time that agreement was concluded. What were the circumstances which prevailed then? There were several relevant matters which the union ought properly to have considered. Firstly, the applicant had conveyed to the union that she regarded her workplace as “poisoned”. She believed she was being harassed and discriminated against by her superiors within the Scott library. She was not happy in her working environment.
34Secondly, the University’s motivation for a settlement was to resolve the outstanding grievances before Arbitrator Mikus, as inexpensively and expeditiously as possible. It wanted agreement from the union that the applicant’s position as the Senior Research Assistant no longer existed. These considerations sustained its interest in resolving matters concerning the applicant.
35Thirdly, the University had effectively ended the applicant’s position as a Senior Reserves Assistant. The union claims that it had satisfied itself that there was no mala fides on the part of the University in closing the applicant’s position and, for the reasons set out above, it appears that her position was closed because of the merger of the reserve and circulation sections of the Scott library. Under the collective agreement the University has the authority to determine staffing levels and to restructure its organization as it deems fit. After March 1997 the applicant’s position as a Senior Research Assistant was not filled during the period of her sickness absence. This, and the impact upon other positions in the Scott library which resulted from the merger of the reference and circulation sections, suggested to the union that the closure of the applicant’s position was not merely a ruse to penalize her, but an operational decision made within management’s rights under the collective agreement. The union saw the elimination of the applicant’s home position as part of the restructuring of the University’s libraries. During the April - May 1998 negotiations the union appears to have reconciled itself to the conclusion that it could not secure the applicant’s return to her position as a Senior Research Assistant, and that any settlement would involve her taking a different position within the University’s libraries. The issue for the union (and the applicant) at least as far back as March 1997 was the need to find a suitable position for the applicant to fill. By May 1998 the union seems to have reconciled itself to the fact that the applicant’s returning to her previous position was not a realistic option in any settlement agreement. Given the University’s exclusive right to close a position, the union anticipated it would not succeed in challenging the exercise of this prerogative at arbitration.
36Fourthly, the applicant’s circumstances were complicated by the fact that she had been on sick leave for more than a year. Special provisions affecting her job security came into play as a result of her lengthy absence. Taking care of the applicant’s interests involved dealing with the impediments faced by an employee returning to work after a long period of sickness absence.
37A union necessarily takes some risk when it settles the grievance of an employee it represents without the consent of the employee. It needs to be satisfied that it has acted diligently and in the best interests of the employee concerned, and that it has not breached its statutory duty to fairly represent the employee. It must reasonably conclude that the employee’s expectations of what is achievable from pursuit of the grievance is either unreasonable or unrealistic. In coming to that conclusion, the union may legitimately conduct a costs-benefits analysis to compare what benefit is likely to accrue from pursuing a grievance as compared to the cost of doing so. It should weigh up whether the agreement it can achieve though negotiation sufficiently addresses the employee’s interests, given the costs of doing otherwise and the likely risks of the litigation.
38There are some troubling features in the union’s conduct. It does seem to have given the applicant the impression, particularly in Mr. Scragg’s letter of April 29, 1998, that it was not willing to waive the applicant’s interest to retain the possibility of returning to her home position. That was misleading to the applicant. Subsequent to the filing of the parties’ pleadings they were given an opportunity to make submission concerning the union’s request to have the application dismissed for failing to disclose a prima facie case. As part of those submissions the applicant, through her counsel, raised factual allegations which were not raised in her original application. The union has objected to the filing of the new allegations. It has not had an opportunity to respond to those allegations which did not form part of the original application. Among the new allegations is one of deliberately deceptive behaviour by Mr. Scragg. The applicant alleges that Mr. Scragg visited her on May 15, 1998, the day after the Settlement Agreement was concluded, and not only failed to tell her of that, but presented her with an unsigned version of the Settlement Agreement (she says the document appeared to have been altered, with the signatures whited-out and the document then photocopied to conceal the alteration) and suggested she agree to its terms. The applicant would not. I accept the union’s argument that this allegation, like others which were not included in original application, should not be considered. The union had no opportunity to respond to the allegation and it arose extraneous to the original application. It will therefore not be dealt with in this application.
39In order to assess the lawfulness of the union’s decision to settle the applicant’s grievances a proper point of comparison is what might have been achieved at arbitration. The issues before the arbitrator concerned discipline imposed on the applicant and her allegation of harassment by members of the management of the Scott library. In Arbitrator Mikus’s interim award, the union succeeded in disposing of the applicant’s disciplinary grievances. The discipline was ordered to be removed from the applicant’s personnel file. That left only the harassment grievances. The Settlement Agreement must be evaluated in the context of what might have been achieved at arbitration in respect of the harassment grievances. The impending closure of the applicant’s position was not before the arbitrator. The consequence of her absence from work for a period in excess of 12 months was not before the arbitrator. Those were matters of interest to the applicant, which were addressed in the Settlement Agreement, but they were not within the ambit of what the arbitrator would have considered had the Settlement Agreement not been concluded.
40The Settlement Agreement dealt with all of the issues where were pertinent to the applicant at the time it was concluded. The arbitration, had it been pursued, could not have done that. Had the harassment grievance proved successful, it is possible that the arbitrator would have done nothing more than make a declaration to that effect and issue a cease and desist ruling. There might have been no more substantive remedy. As stated by counsel in his letter to the union of April 21, 1998, recommending acceptance of the Settlement Agreement:
(iii) The Settlement does deal with the underlying problems the Grievor was and continues to have with her immediate supervisor in a manner which is consistent with what we understand to be the Grievor’s current medical condition. It does so in a manner which likely is beyond Ms. Mikus’ jurisdiction to order and which is superior to the legal position the Grievor will be in pursuant to article 15 of the collective agreement as a result of the closure of her position.
41In a sense the important differences between the applicant’s position on the Settlement Agreement and the union’s are the following: she would have liked to obtain a permanent position immediately, not one in which she had to prove herself, and she would have liked to have been able to return to her home position. This latter option is clearly excluded by the Settlement Agreement. But that concession to the University by the union must be seen in the context of what was possible for the union to achieve in its negotiations with the University. From the start of their discussions in about April 1997 the University never wavered from its position that the applicant’s position had been eliminated. Recognition of that fact by the union and the applicant was a central feature of its willingness to settle the applicant’s grievances and to grant concessions to her beyond what she was entitled to receive under the collective agreement. In all of these circumstances, the union’s decision to make a concession which by May 1998 was something of a fait accompli was not unreasonable, knowing, as it and the applicant did, that their focus was upon what alternative position could be secured by her.
42The legal costs faced by the union in pursuing the applicant’s grievances, in the face of what appeared to be a reasonable and workable settlement, were substantial. The avoidance of those costs, bearing in mind that the union has a duty to represent all of the employees in its bargaining unit with the University, some 1,100 employees, was a real and relevant consideration in the mix of factors which made up the pros and cons faced by the union when it concluded the Settlement Agreement. The ultimate decision of whether or not to pursue a grievance to arbitration rests with the union. When it exercises that discretion it must honestly evaluate the merits and demerits of the grievance and it must assess that evaluation in light of its general commitments to the whole of the bargaining unit it represents. Its decision to settle a grievance, in the face of the opposition of the employee affected by the settlement, must have been reached without malice towards the employee, after careful reflection on the grievance itself and on its obligations to the bargaining unit as a whole, and in a manner which does not single out the employee concerned for disadvantageous treatment. These standards appear to have been met by the union in this case.
43In my consideration of this matter, having reviewed all of the materials and the substantial submissions of the parties, I am satisfied that the union has properly addressed each of the important issues which the applicant faced at the time the Settlement Agreement was concluded and that the agreement it concluded was not only fair and reasonable in the circumstances, but was actually advantageous for her. She was given benefits to which she would not otherwise have been entitled under the collective agreement. She was able to obtain a position in another university library without having that position posted and using her seniority (as provided in the collective agreement), she was to be given a 12-week accommodation program to enable her to adjust to the new position, her employment status was gold circled at the band 7 level - an unusual privilege - and 10-days salary then owed by the applicant to the University was waived by the University. Each of the interests identified above were addressed in the Settlement Agreement: the applicant was given a position outside of the environment she regarded as being poisoned; a new position was given to the applicant without the need for it to be posted, without loss of seniority or employment status within band 7; and the applicant was afforded protections upon her return to work at least as good as those provided for in Article 19 of the collective agreement.
44Although reference is made in the application to sections 75 and 87 of the Act, they have no bearing on the facts of the case. The application is properly brought under section 74. However, with due regard to the applicant’s version of the disputed facts and the agreed or undisputed facts, I am not persuaded that she can establish that the union violated section 74 of the Act.
45In all of these circumstances I am satisfied that the union invested a great deal of time, money and its own internal resources in seeking to pursue the applicant’s grievances; that its decision to settle her grievances on the terms set out in the Settlement Agreement were not only not contrary to the Act, but were fair and reasonable, and that no useful purpose would be served by the Board inquiring further into the application. It is dismissed.
“Christopher J. Albertyn”
for the Board