Salmon v. Ontario Public Service Employees Union, Local 593, 2000 CanLII 12604

Jemise Salmon and Violet Boulam v. Ontario Public Service Employees Union, Local 593

File Nos.: 1767-99-U, 1768-99-U Date: October 17, 2000

1767-99-U Jemise Salmon, Applicant v. Ontario Public Service Employees Union, Local 593, Responding Party v. The Clarendon Foundation (Cheshire Homes) Inc., Intervenor.

1768-99-U Violet Boulam, Applicant v. Ontario Public Service Employees Union, Local 593, Responding Party v. The Clarendon Foundation (Cheshire Homes) Inc., Intervenor.

APPEARANCES: Osborne Barnwell for the applicants; L. Steinberg, L. Yearwood and R. Blair for the responding party; Stephen Bernofsky and Sarah Kravetz for the intervenor.

BEFORE: Brian McLean, Vice-Chair.

DECISION OF THE BOARD; October 17, 2000

1These two applications are applications under section 96 of the Labour Relations Act, 1995 (“the Act”) alleging a breach of section 74 of the Act. Each application makes the same allegation: that the union did not properly represent the applicants at grievance arbitration. Since the applicants’ grievances were heard together by the same arbitrator, and since each applicant makes the same allegations of union misconduct, these two applications were heard together.

2In its responses to these applications, the trade union asserts that the applications do not disclose a prima facie breach of the Act and ought therefore to be dismissed on a preliminary basis without a hearing. By decision dated November 23, 1999 the Board directed the applicants to respond to the trade union’s submissions, which the applicants did. By decision dated March 29, 2000 the Board determined that these matters ought to proceed to consultation. The consultation was held on July 27, 2000.

3There are numerous allegations of improper union conduct made in these applications. In general, the applicants assert that counsel for the union conducted the applicants’ grievance arbitration in a manner which was uncaring and incompetent. The trade union disputes the applicants’ assertion.

Background Facts

4The background facts are set out in the pleadings and are not in dispute. The intervenor employer is a non-profit organization devoted to delivering personal care and housekeeping services to physically-disabled individuals. The applicants were employed as permanent part-time personal care attendants. Both applicants commenced employment with the employer in 1992.

5By letter dated March 26, 1998 the employer suspended the applicant Violet Boulam for insubordination. The company alleged that Ms. Boulam had been insubordinate towards her supervisor, Norris Gordon. Ms. Boulam grieved the suspension. In addition, she filed another grievance which alleged, among other things, that she had been the victim of sexual harassment by Gordon, for a lengthy period of time.

6In the course of dealing with her grievance, Boulam suggested that the union should speak with the other applicant Jemise Salmon about her experiences with Gordon. Following these discussions, Ms. Salmon also filed a grievance in April 1999. That grievance also alleged harassment, although not of a sexual nature, by Gordon, with incidents stretching over many months. The last incident was alleged to have occurred in January 1997.

7The grievances were not settled and the union proceeded to arbitration with them. The arbitration was conducted over the course of 11 days of hearing between August 14, 1998 and March 23, 1999.

8The union retained a law firm which regularly acts on behalf of unions to conduct the arbitration. The lawyer who initially had responsibility for the file was forced at the last minute, for personal and scheduling reasons, to pass the case on to another lawyer who was a partner in the firm.

9It was not disputed that the lawyer who appeared at the arbitration hearing on behalf of the union has conducted hundreds of grievance arbitrations. I also note that the lawyer in question has appeared many times before this Board, including at least twice before this Vice-Chair. While he was, in my view, entirely competent in those cases, that of course does not mean that his conduct in the cases in question might be found otherwise.

10The arbitrator found in the employer’s favour on all of the matters in dispute related to the two harassment grievances and accordingly, the harassment grievances were dismissed. However, the arbitrator reduced Ms. Boulam’s suspension from a two-week suspension to a written warning because in his view, the penalty was excessive under the circumstances. More will be said about the arbitrator’s award below.

11Regrettably, counsel for the union notified the applicants by mail when he received the arbitrator’s award. Therefore, there was a delay between the release of the award and the date at which the applicants became aware of the award. Unfortunately, the applicants therefore learned of the result of the arbitration from someone other than the union. While there was nothing improper about mailing the arbitration award, it would have been better “customer service” to deliver the news more quickly. Quite naturally, the applicants were upset about the fact that others knew of the results of the case before they did.

12The union considered whether to take the arbitrator’s award to judicial review. However, based on counsel’s advice that judicial review would likely not be successful, the union decided not to appeal the arbitrator’s award. The applicants then filed these applications. The applicants did not initially take issue with the union’s decision not to judicially review the arbitrator’s award.

Decision

13The Board has on several occasions considered complaints that counsel’s or union representatives’ handling of an arbitration case violated the Act. In general, the Board grants significant deference to the decisions made by counsel during the course of the hearing. The Board has also often found that mistakes made by counsel, unless flagrant or reckless, do not constitute a violation of the Act. For example, in Wm. J. McLaughlin, [1996] OLRB Rep. May/June 469, the Board stated at paragraph 29:

29. Moreover, there appears to be nothing in the union’s conduct in the mediation-arbitration process that would give rise to concern by the Board. In its cases, the Board has made it clear that a trade union is not obliged to provide to grievors representation by legally-trained counsel and that it would be inappropriate for it to second guess the exercise of judgement by representatives in the course of presenting a case. (See, e.g. Cryovac, [1983] OLRB Rep. June 886). Only in instances where the conduct by the representative is so flagrant, reckless or capricious that it could be classified as arbitrary would the Board intervene. Nothing in the materials filed by the applicants raises an allegation of this sort. The applicants conceded at the hearing that the representatives assigned to them were highly experienced in bargaining wage rates. (Indeed, the applicants formally apologized for certain statements previously made by them implying the contrary). At its highest, the applicants contend that they disagreed with certain decisions made by the various representatives in the course of their presentations. As noted, however, that does not amount to a violation of the Act.

14It is apparent from the application that some, although not all, of the attack on union counsel’s conduct is grounded in a review of the arbitrator’s award. The arbitrator found in favour of the employer with respect to several procedural and other issues and the applicants assert that if counsel were competent or had acted competently, or in a caring manner, the arbitrator’s findings would have or could have been different. Therefore, it is useful to briefly describe the arbitrator’s award so that it might be compared with the allegations of counsel’s misconduct.

15After dealing with some preliminary matters which are not relevant to this application, the arbitrator turned to determine the burden and standard of proof in cases of sexual harassment. The arbitrator embarked on a detailed and comprehensive review of this legal issue. The arbitrator set out two findings regarding the union’s position respecting these issues:

• the union acknowledges that the burden of proving sexual harassment allegations falls on the party supporting the allegations – in this case, the union;
• all parties agreed that where serious allegations are made, the law requires those allegations to be proved either to a higher standard of proof or by a better quality of evidence than would be the case with less serious allegations.

The arbitrator then discussed in detail what this last point meant. He determined that he needed to be persuaded “on a high degree of probability” that the conduct complained of had in fact occurred.

16The applicant’s complaint regarding the burden of proof issue states:

“During Counsel’s submissions, when asked by opposing Counsel, Mr. Bernofsky to address the legal question of burden of proof, Counsel advised the arbitrator to read his notes or the “report”. Without making any submissions on this crucial point, Counsel packed his bag and left the hearing room”.

In the applicants’ reply to the motion made by the responding party, the applicant stated as follows:

“With respect to paragraph 2(f), this, once more, is an absurd allegation which must cast doubt on the entirety of this application. What in fact occurred was that the question of the standard of proof was an issue throughout the hearing. Blair, who proceeded to make his submissions first, addressed the standard of proof and reviewed the law. There were no reply submissions made with respect to this issue because counsel for the employer did not fundamentally disagree respecting the nature of the test to be applied in the circumstances of this case. It is sheer fantasy to suggest that counsel did not make “any submissions on this crucial point” and simply packed his bag and left the hearing room. As with many of the other allegations, this matter was never raised, either formally or informally, by Salmon prior to the filing of this application”.

17The applicant’s only concern with respect to the burden of proof issue, other than the fact that counsel did not pay more attention to it when presenting his case is that counsel did not make submissions about it. However, it is apparent from the arbitrator’s award that this assertion must be wrong in that the union (quite rightly) agreed that it had the burden of proof and agreed that the standard of proof was higher under the circumstances. Counsel for the union was under no obligation to “address” the legal issue of burden of proof when requested to do so, not by the arbitrator, but by opposing counsel. Moreover, the applicant appears to agree that the burden of proof was a high one, or as the applicants state in their applications: “a high threshold”. In other words, the applicants agree that the arbitrator got the point of law right – regardless of what the union’s submissions were and therefore no further submissions could have made that arbitrator’s decision any better.

18The arbitrator’s award then went on to consider issues surrounding the applicants’/grievors’ delay in bringing their sexual harassment allegation. These issues are important because the applicants only grieved the harassment after they had been disciplined, even though they alleged that harassment had commenced more than one year previously. In order to reduce the impact of the delay, it is apparent from the award that the union relied on two things: 1) the fact that victims of sexual harassment may be reluctant to complain, particularly when the harasser is a member of management; and 2) the fact that while the applicant had not filed a grievance or made a complaint about the sexual harassment to management, she had informed others (including her doctor, a police officer and her husband) that harassment was ongoing. This is the most contentious issue between the parties to this application, because it is apparent that the arbitrator placed substantial weight on the fact that, while the applicant testified that she had advised these persons that she was being sexually harassed prior to her discipline, the union did not call any of these persons to corroborate her testimony.

19The union has two explanations for its decision not to call corroborating witnesses. First, it says there was no need to call the evidence because the applicants were not cross-examined by employer counsel on these points. In other words, employer counsel did not dispute through cross-examination or by calling contradictory evidence that the grievors told other people about their harassment. Secondly, the union says that even had they attempted to have these persons testify, they could not have affected the outcome of the case because they either did not recall the events in question or, as in the case of Salmon’s husband, the grievors did not want them to get involved.

20The applicants did not dispute that the reasons advanced by the union for not calling corroborating evidence were the union’s actual reasons. However, the applicants state that, because of the standard of proof in these kinds of cases, the arbitrator required “clear and compelling evidence of sexual impropriety” and therefore counsel’s decision not to call corroborating evidence was grossly negligent. Had counsel been aware of the burden of proof (and the allegation that he was not aware of the burden of proof is described above), he would have known that such evidence was required. In addition, the applicants assert that, in any event, counsel should have prepared those witnesses in advance of the hearing and had them ready to testify. Finally, the applicants assert that had counsel informed them that such witnesses were crucial to their case, then they would have ensured they testified.

21In hindsight, it is apparent from the arbitrator’s award that the union ought to have made every effort to call corroborating witnesses, assuming such witnesses were available and could be of assistance (which the union asserts they were not). The union and its counsel agreed with that proposition at the consultation. Such decisions are easy in hindsight. However, does that place the union’s conduct in violation of section 74 of the Act? I think not. Union counsel made a judgement call. It was not unreasonable to assume that evidence that was not disputed in cross-examination by the employer would, by necessity, be accepted by the arbitrator. Given that fact, and given the problems (which are not disputed by the applicants) in marshalling the testimony and the inadequate memories of the potential witnesses, it was not unreasonable for union counsel to have made the judgement call that he did. There was no reason under the circumstances for counsel to have prepared witnesses in advance of the hearing. In labour arbitration proceedings, experienced counsel as this one is often wait to prepare a witness until it is determined that it will be necessary to call that witness. In any event, it certainly was not grossly negligent as alleged by the applicants and met the standard required by section 74 of the Act.

22The applicants’ main argument at the consultation was that counsel for the union was dismissive of the applicants’ attempts to provide them information during the course of the arbitration hearing. In particular, the applicants allege that during the course of the hearing the applicants wrote counsel a note suggesting that counsel allow a particular witness to speak more freely because in the applicants’ view, counsel for the employer was cutting the witness off. The applicants allege that counsel reacted very badly to this suggestion in that he called a recess, ushered the applicants into a room, told them he “was not God” and then ripped up the note and threw it into the garage.

23The applicants also allege that counsel refused their “instruction” to cross-examine witnesses on particular points raised by the applicants.

24Overall, the applicants assert that they were intimidated by counsel for the union. The result was that they were reluctant to provide him information about the case. They assert that the situation before the Board is no different than if counsel had refused altogether to listen to the applicants and the Board has frequently found a violation of section 74 of the Act in those circumstances.

25It is important to note that the trade union denies each of the allegations made by the applicants. However, even if all of the facts which are alleged are true, in my view, counsel’s conduct did not amount to a violation of section 74 of the Act.

26It was common ground that those grievance arbitrations were very difficult ones. There were eleven days of hearing. The manager accused of being a harasser had his own counsel. Under these circumstances, there was no doubt that there was a high level of tension. It is not therefore surprising that counsel might not appreciate that the grievors were effectively trying to tell him how to do his job. It is important to keep in mind that they were not trying to give counsel information, they were advising him that he was not doing a good job of dealing with opposing counsel. It would not be surprising under these circumstances if counsel were to get upset with the grievors.

27Even in the applicants’ best case, they can only point to two or three times during the course of an eleven-day case where counsel either got angry or did not follow their instructions. No reasonable person would infer from such conduct (even assuming it occurred) that their input was not wanted at all. The allegations, even if true, are simply not enough to demonstrate an uncaring attitude on the part of the union and its counsel.

28The applicants also allege that union counsel fell asleep during the hearing. The allegation is denied by the union. The employer counsel Mr. Bernofsky also states categorically that union counsel did not fall asleep. I doubt very much whether the allegation is true. However, for the purposes of this decision, I assume, without finding, that this allegation is true. I therefore assume that counsel fell asleep during the hearing and he was only awoken when his head hit the table. At first glance, this might appear to be a clear violation of section 74. What could more demonstrate a non-caring attitude than actually falling asleep during a legal proceeding, such as grievance arbitration? However, I am satisfied that the fact that counsel fell asleep does not mean on a prima facie basis that he did not care or that he was acting arbitrarily, discriminatory or in bad faith. I am satisfied that in order for the act of falling asleep during the arbitration hearing to constitute a violation of section 74, the applicants would need to prove other facts which also demonstrate a non-caring attitude. The mere fact that counsel fell asleep for a couple of seconds does not, in the context of this case, demonstrate a non-caring attitude, since there is no allegation that counsel’s alleged lapse had any effect on the proceedings.

29The last complaint that the applicants have with respect to counsel’s handling of the grievance arbitration is the allegation that counsel did not prepare witnesses adequately for the hearing. The applicants allege that counsel met with them for one hour prior to the hearing (the union says three hours), and that he did not prepare them for cross-examination at all. He “simply asked them what happened and advised them that they should speak the truth”. Unions and union counsel conduct many grievance arbitrations every year. It is not unusual for these hearings to be conducted with much less preparation than civil litigators would expect for a trial involving similar issues. In fact, one of the reasons that unions may select one lawyer over another is their ability to conduct skillful grievance arbitrations with little preparation.

30I agree that more than one hour’s preparation (or over three hours) of the applicants might would have been beneficial to the applicants’ case. The grievance was important to the applicants and involved serious issues and it is understandable that they expected more. However, there is no set amount of preparation time which is mandated by the Act. While counsel can assist witnesses in being prepared to give evidence, it is ultimately up to the witnesses to testify in a straightforward, truthful manner, as counsel suggested. In this case, even assuming without finding, that counsel spent only one hour with the applicants, I find that was not inappropriate under all of the circumstances so as to constitute a violation of section 74 of the Act.

31At the conclusion of the consultation, the Board gave the applicants an opportunity to provide jurisprudence if they could locate any which related to the standards which apply to counsel conducting arbitration hearings. Rather than do as directed, the applicants used the opportunity to file submissions on an issue (the union’s failure to seek judicial review of the arbitrator’s award) which was not part of the applicants’ original complaint. It is also noteworthy that the applicants do not seek as a remedy that the trade union judicially review the arbitrator’s award.

32Nevertheless, the Board will consider the issue as it was mentioned they were mentioned at the consultation as it would be a disservice to the trade union to leave the issue outstanding. It is clear that the trade union considered taking the arbitrator’s award to judicial review, given their serious concerns with the award. The union sought legal advice. Counsel had concerns with the award but determined that while they might be successful in overturning aspects of the award, they would not likely be able to have the award reversed in its entirety. Counsel’s reason was that ultimately the arbitrator had listened to the applicants testify and he had serious doubts about their credibility.

33This is just the type of judgement call that the Board ought not to interfere with. The union sought counsel. Counsel reviewed the decision and determined that it would not win. The Board ought not to second-guess that decision in the absence of evidence that counsel took into consideration improper factors or otherwise acted contrary to section 74 of the Act when reaching his conclusion.

34Having found that, individually, none of the allegations in the applications could, even if proven true, violate section 74 of the Act, I must now consider the applicants’ argument that, taken as a whole, and if proven true, the responding party’s conduct violated section 74 of the Act because it demonstrates an indifference to the applicants’ case. As is suggested by my decision with respect to the “sleeping” allegation, I am satisfied that all of the allegations, even taken as a whole, do not demonstrate an uncaring attitude. It ought not to be forgotten that the cast took eleven days of hearing, that settlement efforts were made, and that the union was successful in reducing a two-week suspension to a written warning. Understandably the applicants are upset with the outcome of their sexual harassment grievance, but I am satisfied that the result was not the fault of the union, even on the applicants’ best case. In any event, if there were any mistakes made, they were not such as to lead to the conclusion that the union violated section 74 of the Act.

35I have read the applicants’ pleadings and submissions carefully. I have listened attentively to counsel’s persuasive arguments. I have read the arbitration award and listened to Mr. Bernofsky’s submissions and statements. While there was not a full‑blown hearing in this case, I have heard or read nothing which suggests anything other than that the applicants received first-class representation at their arbitration hearing. The Board understands that the applicants are upset that they were partially unsuccessful, but in my view, it is not right for them to have taken out their frustrations on counsel for the union.

36For all of the foregoing reasons, these applications are dismissed.

“Brian McLean”

for the Board