Ontario Labour Relations Board
2859-99-U Barry Weisleder, Applicant v. The Ontario Secondary School Teachers’ Federation, Responding Party v. Toronto District School Board, Intervenor.
BEFORE: Bram Herlich, Vice-Chair.
APPEARANCES: Barry Weisleder on his own behalf; Maurice Green, Jim Forster, Brian Wright and Linda Krupovowicz for the responding party; Grant Bowers and Paul DeBuono for the intervenor.
DECISION OF THE BOARD; June 23, 2000
This is an application filed pursuant to section 74 of the Labour Relations Act, 1995 (the “Act”) alleging that the responding party (the “union”) has violated section 74 of the Act. A consultation was held on June 2, 2000.
Essentially, the applicant complains that the union has failed to advance a grievance to arbitration challenging a letter placed on his file.
While, to the dispassionate observer, what is at stake in this case might appear relatively (that is, in relation to matters with which this Board typically deals) marginal, that did not prevent the emotions of all concerned from running high.
It was clear in the consultation that there is a political subtext to these proceedings which, while it may provide some contextual understanding, ultimately is not and ought not to be at the centre of these proceedings.
Having said that, however, I cannot help but observe that the mere fact that a minor disciplinary matter – involving sophisticated collective bargaining parties and an erstwhile grievor who holds a position of some importance within the union – must result in proceedings such as these is something of a testament to the collective failure of all of those concerned. And while I am not in any position to and do not wish to comment on the relative apportioning of the credit for this sorry state of affairs, I cannot help but observe that reasonable parties acting with the slightest modicum of collective good will or common purpose would have found more productive means to resolve this dispute.
The applicant is the president of the bargaining unit of secondary occasional teachers employed by the Toronto District School Board (the “TDSB”) and represented by the union. That may have nothing, or it may have everything, to do with this case.
For a number of years the now dominant legislative policy has favoured the selection (and de-selection) of bargaining agents through the democratic means of a representation vote in which affected employees can exercise their franchise. Members of the bargaining unit to which the applicant has a historical connection have been treated differently. The combined effect of sections 277.3(1)4 and 277.3(2)2 of the Education Act (as amended by Bill 160) was to confer bargaining rights in respect of secondary occasional teachers employed by the TDSB on the Ontario Secondary School Teachers Federation. The applicant was the president of the local of the union (OPSEU) which, prior to January 1, 1988 and the legislative change described above, represented the occasional teachers in question. He may not yet have acclimatized himself to the change. This “transfer” of bargaining rights may have nothing, or it may have everything, to do with this case.
It is also noteworthy that while the applicant was formerly president of the local which held bargaining rights, the new legislative treatment has vested bargaining rights directly in the union not in any “local”. Thus, while the applicant continues to be the president – he is now “president of the bargaining unit” not president of the entity which holds the actual bargaining rights. This may have had some impact on the control and influence the applicant may exert over the affairs of the bargaining unit. This too may have nothing, or it may have everything, to do with the case.
Before outlining the specific events which gave rise to this application, it is helpful at the outset to observe that, as a general proposition, section 74 is not a vehicle through which political disputes within trade unions are to be regulated or resolved by this Board. Such matters are, generally speaking, left to the vicissitudes of the political ebb and flow typical of organizations such as a trade union. That is not to say, however, that a union is free to single out perceived political opposition within its ranks and to subject such bargaining unit employees to a lesser form of representation vis à vis their employment. If I were persuaded that had happened or that there was some substantial likelihood of such a conclusion, the result of this decision would have been different.
I now turn to the specific facts giving rise to this application.
In October of 1998 the applicant was accused by the employer of having made improper use of photocopying facilities. There is some dispute about the facts giving rise to that accusation and its consequences. However, I am not inclined and neither is it necessary for the purposes of this decision for me to review the facts in intricate detail or to resolve all of the apparent contradictions.
The employer appeared to be of the view that the applicant had been given permission to use the TDSB photocopying facilities for a limited purpose. This occurred in October of 1998 at a TDSB facility where the collective bargaining parties were engaged in negotiations.
The TDSB was of the view that the permission was contingent on the applicant’s assurance that the photocopying was being done for purposes of those negotiations and the meeting taking place that day.
Although the applicant disputes any such limitation, he acknowledges that the photocopying was not done for those purposes, although he is of the view that making 50 copies of a speech he had previously delivered to a rally held in support of negotiations qualifies as a collective bargaining purpose.
That same day the employer issued the applicant a three paragraph letter (the exuberant tone and content of which may have been out of proportion with the perceived offence and, indeed, like this very application, may have provided an outlet to displace frustrations which bore little relationship to its proximate cause).
The letter referred to previous improper use of TDSB photocopiers, suggested an offence akin to theft and continued by prohibiting the applicant or any other member of the “union local” from using any Board photocopier for any purpose. It concluded by warning the applicant that a further transgression on his part would result in the service of a trespass notice banning him from all TDSB property.
The applicant filed a policy grievance seeking, among other things, the immediate withdrawal of the letter.
The matter proceeded through the grievance procedure and on December 7, 1998 the employer issued a modified letter. The TDSB apparently responded to the suggestion that its previous letter would have the effect of prohibiting all bargaining unit members from using photocopiers even for purposes related to the performance of their employment obligations. Thus, the letter was changed to restrict the scope of the photocopying prohibition to the applicant and any other member of the local or executive acting explicitly on his behalf.
Despite the change, the grievance proceeded and the union took steps to advance it to arbitration. A board of arbitration was constituted and the matter was set for hearing in October of 1999.
With the date for arbitration approaching, discussions continued between the union and the employer in an effort to resolve the matter. Although the applicant was aware of and, indeed, was consulted by the union about the discussions, he was not directly involved in them.
On September 15, 1999, the employer once again revised the impugned letter and advised the applicant that the newest version would replace its predecessors on his file.
The latest version (and the one that remains extant) replaced the reference to theft with one to “insubordination”; the blanket prohibition of photocopier use was replaced by a warning that unauthorized use of Board photocopiers would not be tolerated (along with a recognition that employee use of photocopiers for duplicating teaching materials related to their assignment was not to be affected by the pronouncement); and finally advised the applicant (in lieu of the previous reference to a possible trespass notice) that he would be subject to further discipline in the event of any future unauthorized use of photocopy equipment.
On October 1, 1999, the union wrote to the employer advising that after receiving the revised letter it was withdrawing the grievance pending at arbitration.
The applicant was unhappy with that development and filed a fresh (individual) grievance dated October 8, 1999 claiming the revised letter constituted unjust discipline. By letter dated November 25, 1999, the union declined to support the grievance. The instant application was filed shortly thereafter.
Dealing briefly with the most recent grievance, it is really of no moment. There is no dispute (even though no formal settlement documents were executed) that the union and the employer entered into a settlement of the first grievance on the basis that the most recent letter would replace its predecessors. Hence, it is that settlement which must be seen as the crux of this case and I will examine it in a little more detail shortly. But in any event, in the context of the parties’ agreement, a subsequent grievance which, by definition, would be a union challenge to its own settlement can perhaps only charitably be described as a non-starter. The applicant’s only real complaint, if he has one, can be with the union’s decision to settle the first grievance by agreeing to the most recent letter. If that decision was unlawful, the applicant may have a remedy; if it was not, the second grievance simply cannot stand.
I turn therefore to consider the union’s settlement of the first grievance.
In this context, it is important to distinguish the applicant’s concerns as a bargaining unit employee from those which relate directly to his position within the union. It is really only the former that can legitimately be pointed to in the context of this application.
The grievance was filed as a policy grievance. And while there was some discussion, at the consultation, as to whether an individual grievance ought to have been filed in lieu of or in addition to the policy grievance filed, it is clear that the policy grievance addressed mixed concerns.
To the extent that the TDSB’s action had implications for the union, its agents and the conduct of union business, one can understand that a policy grievance might have been filed. But it is critical to underscore that, to the extent those concerns are concerns of the union and not of individual employees as members of the bargaining unit, the disposition of such a grievance (like any other grievance) is presumptively entirely within the union’s control and (perhaps unlike other types of grievances) is not readily subject to challenge by any bargaining unit employee or by any dissenting union official or agent.
On the other hand, to the extent that the TDSB’s action constitutes discipline levied against the applicant (as distinguished from a control or restriction on the activities of union officials), the failure of the union to advance such a grievance to arbitration can properly be the subject of an allegation of unfair representation.
Thus, it is important to separate those aspects of the handling of the grievance that the applicant can properly challenge by way of this application from those which he cannot.
What remains of the impugned letter apart from those portions which relate to the union and the conduct of its business is as follows.
The employer has placed a letter on the applicant’s file asserting an improper use of photocopy facilities despite at least one previous similar incident and warning. It has characterized this conduct as insubordination. The letter advises the applicant that unauthorized use of photocopy facilities will not be tolerated, that his access numbers have been rendered invalid and that he will be subject to further discipline in the event of future unauthorized use.
The union, having resolved the “union” concerns arising from the predecessor letters and having secured a revised letter which it asserts, based on consultations between it and the applicant, addressed the applicant’s concerns, has opted not to advance the case to arbitration.
Based on what the parties indicated would be their evidence in the event of a formal hearing in this matter, I am satisfied that the only possible conclusion is that the union acted reasonably in the circumstances.
In so stating, I have considered the applicant’s conflicting view of the events which triggered the letter, the union’s assessment of the applicant’s credibility (particularly given his own admission regarding at least one inappropriate statement he made impugning the credibility of TDSB management personnel) and (despite the applicant’s characterization of the letter as “grievous discipline”), the relatively trivial nature of the discipline ultimately imposed (despite the admission that this was not the first incident of its sort in which the applicant was involved).
There are, to be sure, some troubling aspects regarding the way in which the matter was handled. The union claimed (and the applicant, at least to some extent, agreed) that there had been some consultation with the applicant about the discussions between the union and the employer which ultimately led to the resolution of the grievance. The union was unable, however, to claim that the applicant was either directly involved in those discussions or, alternatively, that he was provided with an opportunity to review and specifically comment to the union on the last letter before the union decided to withdraw the grievance. And while the union may not have been under any specific obligation to do so, more transparency in the process might have led to events unfolding differently.
Given the unavoidable conflicts in the evidence which would have manifested at arbitration, the fact that the union had been able to resolve its own concerns arising out of the grievance and had further been able to secure significant modifications to the tone and content of the letter vis à vis the applicant and given the relatively insignificant nature of the “discipline” imposed and given the fact that there was an undisputed history which included at least a prior warning to the applicant, I find that the decision to not advance the grievance to arbitration was utterly reasonable in the circumstances.
I cannot leave this matter, however, without commenting on at least one aspect of the TDSB’s submissions.
The TDSB asserted that these proceedings were an abuse of process and that the resulting prejudice it suffered was unwarranted. This is particularly the case, I was told, where there are multiple such proceedings pending at the Board and where the funding formula imposed on the TDSB does not admit of any budget expenditure to accommodate these types of proceedings.
First, I note that the Board (differently constituted) had already reviewed this matter prior to the consultation and determined that the application made out a prima facie case. Second, this Board has never been particularly receptive to claims of impecuniosity advanced by public or private sector parties as a means to attempt to avoid or defeat statutory rights or obligations. While it is true that school boards may have little experience with respect to applications of this sort (at least insofar as they involve teachers who until recently were unable to bring them) such applications (however unwelcome or marginal some may perceive them to be) are an unavoidable feature of our legislative scheme which simply cannot be eliminated by (even the most meritorious) claims of inadequate funding.
The parties are no doubt aware that, empirically, applications of this sort are frequently unsuccessful. But when a settlement is entered into without the specific agreement of a grievor (especially this grievor who, as I have suggested earlier in this decision, may be travelling with much collective bargaining baggage), it should come as no surprise that an application of this kind may be filed. That is the practical and, perhaps, political reality of the situation.
These parties all have serious collective bargaining work to do, particularly in the context of the recent and dramatic legislative changes which affect them all. In future they may wish, in lieu of engaging the Board as a displaced locus for their difficulties, to find more productive and proactive ways to expend their collective bargaining energies and resources.
This application is dismissed.
“Bram Herlich”
for the Board