Verona Ranger v. Service Employees International Union
File No.: 2027-98-U Applicant: Verona Ranger Responding Party: Service Employees International Union Intervenor: Leisureworld Inc.
Before: Brian McLean, Vice-Chair.
Appearances: Kevin Fox, Verona Ranger and V. Morrison for the applicant; Alan Turner and Sheilagh Turkington for the responding party; no one appearing for the intervenor.
Decision of the Board: April 4, 2000
1This is an application under section 96 of the Labour Relations Act, 1995 (the "Act") in which it is alleged that the responding party trade union violated section 74 of the Act. The application concerns the trade union's refusal to take the applicant's discharge grievance to arbitration.
2A consultation was held in this matter on November 30, 1999. Although given notice of the proceeding, the intervenor did not attend the consultation.
The Facts
3The intervenor operates nursing homes. The applicant was employed by the intervenor as a health care aide at one of its homes and had more than 9 years' service. The responding party represented the applicant in her employment relations with the employer.
4The applicant's employment was terminated by the employer for alleged dishonesty in or around January 1998. It is apparent that the facts surrounding the applicant's discharge are almost entirely in dispute. There is however, little, if any, disagreement about the process the responding party undertook after the termination of the applicant's employment when it decided not to proceed to arbitration with the applicant's grievance.
5The intervenor alleged it had received a report that Ms. Ranger was seen leaving work early one evening. The employer uses a card swipe system to record hours of work, and Ms. Ranger's time card did not appear to be punched early on the night in question. The employer decided to monitor the system on a subsequent evening to determine whether the applicant was habitually leaving work early and not swiping out. Two members of management watched the card swipe station and observed Ms. Ranger leaving prior to the scheduled conclusion of her shift (although by only a few minutes). They did not see her swipe out. Shortly after 11:00 p.m. management watched another employee, a Ms. Morrison, swipe out and then return to the coat rack to retrieve her coat. A few minutes later, Ms. Morrison swiped out again. The fact that Ms. Morrison swiped out twice is not disputed. On each occasion that Ms. Morrison swiped her card the machine emitted a "beep". When the records were examined, they showed that Ms. Ranger's card had been swiped at 11:02 p.m., or at the same time that Ms. Morrison swiped a card on the first occasion, and that Ms. Morrison's card had been swiped at 11:05 p.m., or at the time Ms. Morrison swiped the second time. On that night, Ms. Morrison was the only employee that had swiped her card twice. (I note that these are only allegations and that the Board does not, as part of its decision-making process, determine whether these allegations are true.)
6Management confronted the applicant and Ms. Morrison the next day. When confronted, Ms. Morrison said that she had swiped two times because she was not sure on the first occasion whether her card had registered properly. The applicant denied leaving early and denied the fact that she had Ms. Morrison swipe her card on her behalf.
7Ms. Morrison and Ms. Ranger were discharged. The union filed grievances on behalf of both employees. Both grievances were discussed on several occasions with the employer during the grievance procedure and in mediation sessions.
8Ms. Ranger's (and Ms. Morrison's) version of events on the night in question was completely different from that advanced by the employer. She told the employer and the union that she was asked by the charge nurse to bring a report down to the main floor at the conclusion of her shift. She did so and was therefore the first person to leave the facility. Ms. Ranger claimed that she left at 11:00 p.m. and swiped her card before leaving. She was not close friends with Ms. Morrison and did not and would not have asked her to swipe her card.
9The union's business agent, Alan Turner, met with the applicant. She gave him her side of the story. He asked Ms. Ranger for the names of people who might corroborate her version of events, but she was unable to identify anyone who might have seen her swipe out.
10Ms. Ranger acknowledged that she had another job which commenced shortly after her shift ended at the intervenor. Ms. Ranger initially stated that on the night in question she was not scheduled to work at her second job. However, Ms. Ranger went to the union shortly after this meeting and advised that she had checked her records and determined that she had, in fact, worked at her second job on that night.
11Mr. Turner learned during the course of his deliberations that three employer witnesses saw Ms. Ranger leave early (the two that had been assigned to observe the swipe-out station and another employee). In addition, he was advised that the charge nurse on the applicant's floor also said that Ms. Ranger left the floor 10-20 minutes early and that she had not asked Ms. Ranger to take a report to the main floor as Ms. Ranger asserted.
12Mr. Turner had another conversation with the applicant in which she confirmed that her second job required her from approximately 11 p.m. – 7 a.m. The start time of Ms. Ranger's second job was approximate because the work involved staying with an elderly person at night and the elderly person's daughter stayed until Ms. Ranger arrived after her shift at Leisureworld ended.
13Ultimately, following a mediated settlement, Ms. Morrison was reinstated to her employment with no back pay. However, Ms. Morrison never admitted that she had been involved in a scheme with Ms. Ranger and, in fact, denies swiping Ms. Ranger's card to this day. The employer was unwilling to agree to the same arrangement with respect to the applicant allegedly because she had less seniority. The union decided not to proceed to arbitration with Ms. Ranger's grievance and advised her of this fact. She then filed this application.
Decision
14Section 74 of the Act states as follows:
- 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.
15It would be beneficial to employees who are discharged from their employment if unions took all of these cases to arbitration. The loss of an employee's job is a significant penalty and there are few, if any circumstances in which a union can be absolutely certain that it will lose at arbitration. Even if all of the employer's allegations are found to be true, an arbitrator may still decide to reduce the penalty imposed. Moreover, taking a case to arbitration may increase the likelihood that management, previously unwilling to settle, will agree to resolve the dispute.
16However, grievance arbitration is an expensive process and a union's revenue is limited. Unions also may correctly believe that it would be beneficial to labour relations generally to only take legitimate grievances to arbitration. Therefore, it is clear, and 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. 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.
17I accept that when a trade union refuses to take a grievance respecting the discharge of an employee to arbitration, the onus effectively switches to the union to explain its position. Given what is at stake, the Board must take a hard look at the union's explanation. In this case, there was no dispute about the steps the union took to evaluate the applicant's chances of success at grievance arbitration. There was also no dispute that had the applicant been found to have engaged in the conduct as alleged by the employer, an arbitrator may have determined that discharge was an appropriate penalty (see Leisure World Nursing Homes Ltd. and S.E.I.U. Local 204, 1990 CanLII 12721 (ON LA), 9 L.A.C. (4th) 338, where in virtually identical circumstances as are alleged in this case the discharge of an employee was upheld by an arbitrator).
18The applicant's dispute was whether the union's evaluation of the applicant's case met the standard required under section 74. In particular, the applicant objects to the responding party's investigation which ultimately led it to conclude that the applicant had engaged in the conduct as alleged. The applicant asserts that the union's investigation was grossly negligent and therefore was arbitrary.
19Counsel for the applicant identified a number of errors which the applicant says were made by the union in conducting its investigation. Counsel also identified a number of errors in evaluating and weighing the information gained in the investigation which it is alleged the union made in coming to its decision not to proceed to arbitration.
20The applicant asserts that the union ought to have spoken to the applicant's night employer (for whom she works at approximately 11:00 p.m.) to ask what time her shift normally commences and what time she actually commenced work on the night in question. Had it done so, the union would have realized that there was no reason for the applicant to leave early as she was not required to be at her second job at any particular time.
21The applicant further alleges that the union was wrong, and the union now agrees that it was wrong, when it conducted its investigation into how the card swipe system works. When the union made its decision to withdraw the applicant's grievance, it understood that the swipe system emitted a "beep" whenever a card was successfully swiped. Subsequent to withdrawing the grievance, the union learned that the system "beeped" anytime a card was swiped, regardless of whether the system actually read the card. This is important because part of the union's rationale for withdrawing the grievance was that it believed that Ms. Morrison had successfully swiped a card twice and that she must have known the swipe was successful because the card reader remitted a "beep" on each swipe.
22Counsel for the applicant also argued that the union ought to have spoken to the management witnesses to find out what they had to say and should have considered the fact that some of the employees who were witnesses were temporary employees. Counsel also asked why, if the employer was so concerned that the applicant was committing fraud, it did not immediately confront her.
23In this case, the Board is convinced that the union's investigation was not conducted perfectly. In particular, the mistake in understanding the card swipe system, which is now admitted by the union, casts doubt on the union's entire investigation. The union also placed much trust in the company's witnesses without actually communicating directly with these witnesses. The Board also agrees that the union ought to have obtained a copy of the swipe records, and if it had any doubts about the applicant's evening job, it should have spoken to her night shift employer.
24The Board is cognizant of the fact that most often, as in this case, an investigation and the decision not to proceed to arbitration with a particular grievance are activities undertaken by laypersons. Section 74 of the Act does not require that any investigation conducted by a trade union of a grievance be perfect. Any investigation (and therefore any decision not to proceed to arbitration on any grievance) must be conducted free of discrimination and arbitrariness and must be conducted in good faith. In this case, the applicant's argument is that the union's conduct, taken as a whole, was arbitrary. The Board has defined arbitrary to mean conduct which is "superficial, capricious, cursory, grossly negligent, implausible or flagrant". Section 74 does not extend to honest mistakes or errors in judgement (see, for example, Stanley Dwyer, [1982] OLRB Rep. Oct. 1417).
25Although the applicant has convinced me that the trade union's investigation of the applicant's grievance was deficient in several respects, the union's mistakes do not amount to gross negligence, even when all of the errors are considered together. They were honest mistakes and errors in judgement which were not made carelessly or with desire to harm Ms. Ranger. They were also not sufficiently egregious to constitute arbitrary behaviour. The Board must also not lose sight of the fact that even had the investigation been conducted perfectly (which is not required by section 74 of the act), there was still substantial reason for the trade union not to proceed to arbitration. The fact is that the employer was specifically watching Ms. Ranger to determine if she was leaving without swiping out and that three management witnesses contradicted her story. Although management's ability to prove its case at arbitration would not have been certain, I am satisfied that there was sufficient facts for the union to come to the decision it did, and that the investigation was not conducted in a manner that was contrary to section 74 of the Act. I am satisfied, therefore, that on the whole, the trade union's conduct met the requirements of section 74 of the Act.
26Accordingly, for all of the foregoing reasons, this application is dismissed.
"Brian McLean"
for the Board