3599-99-U N. Patton, Applicant v. Ontaro Public Service Employees Union, Responding Party v. Ministry of Transportation, Intervenor.
BEFORE: Caroline Rowan, Vice-Chair.
APPEARANCES: Nevin Patton on his own behalf; Richard Blair and Robin Gordon for the responding party; Melissa Nixon, Lisa Compagnone and Kevin Wilson for the intervenor.
DECISION OF THE BOARD; September 14, 2000
This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) by Mr. Patton (the “applicant”). The applicant alleges that the Ontario Public Service Employees Union (the “OPSEU”) violated section 74 of the Act when it failed to process his grievance dated December 23, 1996 (“Grievance”) to arbitration. His Grievance relates to the surplus/layoff notice given to him by the Ministry of Transportation (the “employer”) on or about November 26, 1996.
A consultation was held to hear and decide this matter. As the applicant was not represented by counsel, I indicated at the outset that although there is no requirement that persons appearing before the Board retain counsel, persons appearing on their own must bear any risks involved with doing so. I then explained the consultation process and heard from each of the parties in turn regarding both the facts and their positions.
Facts and Positions
The facts material to this application were not in dispute and may be briefly summarized as follows.
In 1996, Mr. Patton worked for the employer as a senior construction technician out of its location in Downsview, Ontario. On or about November 1996, Mr. Patton was given a layoff/surplus notice from the employer as a result of its decision to discontinue providing service delivery for road construction. Shortly thereafter, the employer notified him that he was entitled to bump into a senior construction technician position located in Kingston, Ontario. The employer, however, sent Mr. Patton a subsequent notice indicating that an error had been made and that he was, in fact, only entitled to bump into a position at a lower classification at a reduced wage located in Dryden, Ontario. Mr. Patton states that he returned this second notice to the employer unsigned and that he was therefore deemed to have refused the bump offered to him.
Mr. Patton, like a number of other employees in receipt of a layoff/surplus notice from the employer, grieved that notice. In his Grievance, Mr. Patton alleged that the employer had laid him off contrary to Article 24 (now 20.4.1) of the collective agreement. At the consultation in this matter, Mr. Patton explained that he felt that if the employer had made a mistake the first time in arriving at the position in Kingston, another error could have been made when it subsequently arrived at the position in Dryden.
Mr. Patton’s Grievance also alleged that the employer had failed to fulfil its obligations under Appendix 9 to the collective agreement to make reasonable efforts to obtain a job offer for him from the new service provider when the work he performed was divested to the private sector. Appendix 9 to the collective agreement deals with the outsourcing of certain government services and addresses, among other things, the efforts that the employer will make to ensure that its employees are offered jobs with the new service provider.
His Grievance, along with the grievances of other similarly situated employees, was referred to the Grievance Settlement Board (the “GSB”) for hearing. Because of the similarity in the factual and legal issues raised by the various grievances, OPSEU and the employer agreed to consolidate these grievances involving some forty-seven (47) grievors including Mr. Patton under the name Selby et. al. The applicant does not take issue with that decision.
The Selby et. al. group of grievances (the “Selby Grievances”) were originally set down for hearing before the GSB on March 9 and 10, 1998. OPSEU retained outside counsel from the firm of Ryder Wright Blair & Doyle to handle the Selby Grievances on its behalf. Ms. Diane Roberts of that firm was originally assigned to the file. The March hearing dates were subsequently adjourned on agreement of the parties in order to explore settlement options and/or to reach agreement on a method of proceeding with the different issues raised by the Selby Grievances. The parties ultimately agreed to group the various Selby Grievances into subgroups having regard to the different legal and factual issues raised in each grievance.
Ms. Roberts first contacted Mr. Patton regarding his Grievance on or about March 2, 1998. There is no dispute that she was in regular contact with him thereafter throughout 1998 and 1999 concerning the processing of his Grievance. During this period, Ms. Roberts reviewed the details of Mr. Patton’s Grievance with him and also reviewed the information provided to her from the employer concerning the manner in which Mr. Patton’s layoff was effected. Ms. Roberts then provided Mr. Patton with her legal opinion that his Grievance alleging a breach of Article 24 (now 20.1.4) would fail and that his Grievance alleging a breach of Appendix 9 was weak at best.
On Ms. Roberts’ recommendation, Mr. Patton agreed to proceed only with the Appendix 9 issues and to group his Grievance into a subgroup of Selby Grievances dealing with that issue (referred to by the union as the “Reasonable Efforts Subgroup”). In 1998 and 1999, OPSEU and the employer worked through the majority of the Selby Grievances with the exception of the Reasonable Efforts SubGroup. By the end of 1999, the majority of the Selby Grievances had been resolved either by withdrawal, settlement or decision of the GSB. There is no dispute that Ms. Roberts was in regular contact with Mr. Patton throughout this period and that he did not raise any complaint about the process at that time.
In the fall of 1999, OPSEU and the Crown in Right of Ontario (the “Crown”) entered into settlement discussions concerning all of the various reasonable efforts type grievances that remained outstanding, including the Reasonable Efforts Subgroup of Selby Grievances. Prior to or around this time, OPSEU made its own assessment that Mr. Patton’s Grievance was a weak one. On or about November 26, 1999, OPSEU and the Crown concluded a settlement (the “Settlement”) under which OPSEU agreed to withdraw all outstanding reasonable efforts grievances, which were numerous and included the Reasonable Efforts Subgroup of Selby Grievances. In return, the Crown agreed to pay the sum of Two Million dollars ($2,000,000.00), which was to be distributed among those grievors for whom the GSB had issued a favourable decision on the merits of their respective grievances and where remedial issues remained outstanding. There is no dispute that Mr. Patton does not meet the criteria for payment under the terms of the Settlement and that he is not therefore entitled to any distribution of the settlement monies.
Mr. Patton confirmed at the consultation in this matter that he does not take issue with the Settlement reached. He, however, stated that, although he believes the union “generally did its job”, he feels that he should have received a more definite answer to the following concerns he has; namely:
(1) how the employer had assessed his entitlement as being initially to a senior construction technician position in Kingston and then subsequently to a lesser position in Dryden and whether the employer had ever considered positions in other Ministries where he had previously worked;
(2) why others who had accepted a bump had been paid certain mileage and accommodation expenses for up to a year after their layoff when he was not aware of that entitlement when he made his election;
(3) why employees who were more junior than himself subsequently obtained what he considered to be more advantageous “bumps” than the position in Dryden that was offered to him in the period after he had elected not to accept the “bump” offered to him.
At the consultation in this matter, Mr. Patton stated that the concerns raised in paragraphs (2) and (3) above regarding expenses paid to others and regarding junior employees being offered more advantageous “bumps” subsequent to his layoff did not form part of his Grievance. He explained that this was because these issues only came to light after he filed his Grievance and that to date he had not sought to file a grievance regarding these issues.
Mr. Patton’s final complaint against OPSEU relates to the fact that in January and again in February 2000 he attempted without success to reach counsel for OPSEU to determine the status of his Grievance. Effective January 2000, Mr. Wright had carriage of the matter as Ms. Roberts had taken a leave of absence from the firm effective December 31, 1999. Although Mr. Patton had been informed about this proposed transfer in a timely manner, he had not yet been informed that his Grievance was withdrawn as part of the Settlement by the time he filed this application with the Board on March 9, 2000. That information was provided to him for the first time by letter dated March 7, 2000 from Mr. Wright. It appears that Mr. Patton had not yet received that letter when he filed this application with the Board, which he sent by courier on March 8, 2000.
Counsel for OPSEU explained that there had been an unfortunate misunderstanding between Mr. Wright and Ms. Kelman of the firm Ryder Wright Blair & Doyle. Mr. Wright mistakenly understood that Ms. Kelman, who was assisting Mr. Wright with the file and who had previously assisted Ms. Roberts, had returned Mr. Patton’s call to their office in January 2000. At or around that time, in January 2000, Mr. Wright and Ms. Kelman were in the process of attempting to resolve any outstanding issues with the respect to the Selby Grievances. In that process, counsel for OPSEU (who had also presumably not yet been advised by OPSEU about the details of the Settlement) contacted the employer regarding the scheduling of the Reasonable Efforts Subgroup of Selby Grievances. The employer responded by fax dated January 24, 2000. Counsel for the employer took the position that the Reasonable Efforts Subgroup of Selby Grievances had been resolved by the Settlement.
Mr. Wright then sought instructions from OPSEU with respect to the position taken by the employer, which instructions were eventually received in late February 1999. Counsel for OPSEU explains that Mr. Wright did not return Mr. Patton’s subsequent call to the law firm’s office in February 2000 as Mr. Wright was awaiting OPSEU’s instructions so that he would have something to communicate to Mr. Patton when he responded. As previously indicated, Mr. Wright ultimately communicated OPSEU’s position regarding the status of Mr. Patton’s Grievance by letter addressed to Mr. Patton dated March 7, 2000.
Decision
Section 74 of the Act reads 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.
In Leila Yateman [1993] OLRB Rep. August 777, the Board explained the obligations imposed under that section on a trade union in the processing of an employee grievance as follows:
In determining whether there has been a breach of section [74] in the processing of an employee grievance, the Board recognizes that union affairs are conducted in most cases by laypersons, who may not have the skills or training of a lawyer. As the Board said in Ford Motor Company, [1973] OLRB Rep. Oct. 519:
In deciding whether a union has violated the Act the standards to be applied are important. We recognize that union affairs are conducted for the most part by laymen. In some situations there are experienced full time officials of a trade union who conduct the union affairs; in other situations employees may be given a limited amount of paid time by their employers to engage in trade union matters. This Board does not decide cases on the basis of whether a mistake may have been made or whether there was negligence, nor is the standard based on what this Board might have done in a particular situation after having the leisure and time to reflect upon the merits. Rather, the standard must consider the persons who are performing the collective bargaining functions, the norms of the industrial community and the measures and solutions that have gained acceptance within that community.
Nevertheless, the union officials must honestly turn their minds to the merits of the grievance, must honestly assess the available evidence, and must take care not to act on the basis of irrelevant factors or principles. But honest mistakes or errors of judgement, however regrettable, do not amount to a breach of the law. As the Board observed in ITE Industries, [1980] OLRB Rep. July 1001:
It is clear that in order to establish a breach of section [74], a complainant must do more than demonstrate an honest mistake or even negligence. The union must have committed a “flagrant error” consistent with a “non caring attitude”, or have acted in a manner that is “implausible” or “so reckless as to be unworthy of protection”. In other words, the trade union’s conduct must be so unreasonable, capricious, or grossly negligent, that the Board can conclude that the union simply did not give sufficient consideration to the individual employee’s concerns. Honest mistakes or innocent misunderstandings are clearly beyond these parameters and do not attract liability.
Obviously, each case must be considered on its own merits, having regard to the problem which gave rise to the employee grievance, the terms of the collective agreement allegedly violated, and whether, in all of the circumstances, the union’s handling of the grievance could be said to be “arbitrary”, “discriminatory”, or “in bad faith”.
At the time Mr. Patton filed this application with the Board, his complaint against OPSEU was that OPSEU had failed to communicate with him concerning the processing of his Grievance and also that OPSEU had failed to process his Grievance in a timely manner. Shortly thereafter, Mr. Patton learned that OPSEU had, in fact, withdrawn his Grievance as part of a larger corporate Settlement of all outstanding “reasonable efforts grievances”.
At the consultation in this matter, Mr. Patton acknowledged that his Grievance had been resolved under the terms of the Settlement. He also confirmed that he did not take issue with the Settlement reached. His complaint at this stage is that OPSEU, in processing his Grievance, failed to provide him with an adequate explanation of the concerns he had regarding his layoff from the employer in 1996. He also complains about OPSEU’s failure to communicate with him in that his calls in January and February 2000 to union counsel were not returned. While Mr. Patton did not allege any bad faith or discriminatory treatment on the part of OPSEU, he did suggest that OPSEU had acted arbitrarily both in failing to adequately explain the concerns he had and in failing to communicate with him concerning the processing of his Grievance.
Having considered the facts as outlined by the parties, the Board agrees with Mr. Patton’s assessment that the union “generally did its job” in the processing of his Grievance. In this respect, the Board observes that OPSEU and its counsel appear to have handled his Grievance in an entirely responsible manner in the period leading up to the Settlement. As noted above, OPSEU retained outside labour relations counsel to handle his Grievance together with a number of other similar grievances. Counsel for OPSEU first explored the possibility of settlement and then reached agreement on the efficient handling of the litigation.
Counsel for OPSEU was in regular contact with Mr. Patton throughout and reviewed the merits of his Grievance with him. She also reviewed documents provided by the employer in order to determine whether or not there had, in fact, been a breach of the collective agreement when the applicant was offered a bump to a lesser position in Dryden. Counsel for OPSEU turned her mind to the merits of his Grievance and to the obligations under the collective agreement and determined that Mr. Patton had, in fact, been offered what was referred to at the consultation as the “best bump of the day”. According to OPSEU, that is what he was entitled to under the terms of the collective agreement. In the applicant’s case, the procedure set out under the collective agreement did not require the employer to consider positions in other Ministries as a position at the applicant’s Ministry had already been located.
Having made that assessment counsel for OPSEU advised Mr. Patton that, in her legal opinion, there was no merit to his claim that Article 24 (now 20.1.4) of the collective agreement had been breached. She also reviewed the merits of his allegation that Appendix 9 to the collective agreement had been breached and determined that his Grievance in that regard was weak. Mr. Patton does not dispute that Ms Roberts made an assessment of his Grievance and that she provided him with her legal opinion to this effect following which he agreed with her recommendation to proceed only with the Appendix 9 issues.
Mr. Patton, however, suggests that the union acted improperly in not providing him (or having the employer provide him) with an explanation in the form of a chart or otherwise of how the position in Dryden had been determined. With respect to this allegation, the Board notes that Mr. Patton did not suggest that he had ever asked OPSEU for this type of detailed written outline of how his entitlement under the collective agreement had been determined. Instead, he confirmed that Ms. Roberts had provided him with her legal opinion that his complaint alleging a breach of Article 24 regarding his bumping rights had not been breached and that he had responded by accepting her recommendation that that aspect of his Grievance be withdrawn. In all of the circumstances, the Board is unable to find that the union acted arbitrarily in failing to provide or obtain a more detailed explanation of how his bumping rights had been determined.
With respect to the other explanations sought, the Board notes that Mr. Patton confirmed that the issue of expenses paid to others and the issue of more desirable “bumps” provided to less senior employees sometime after his own layoff did not form part of his Grievance. Mr. Patton’s application filed with the Board relates to OPSEU’s handling of his Grievance and therefore these additional issues raised at the consultation in this matter go beyond the scope of that application. In any event, Mr. Patton also acknowledged at the consultation that he had not to date sought to grieve those issues.
Even assuming, however, that the issue of more junior employees subsequently obtaining more advantageous bumps formed part of his original Grievance, the Board notes that counsel for OPSEU thoroughly reviewed Mr. Patton’s bumping rights under the collective agreement. In doing so, she determined that the position offered to him in Dryden was the position to which he was entitled under the terms of the collective agreement. In this respect, counsel for OPSEU explained that the mere fact that the bumping exercise may yield a better result if performed sometime later does not mean that Mr. Patton was not offered the “best bump of the day”.
The final complaint made by the applicant deals with OPSEU’s failure to communicate with him regarding the processing of his Grievance. While there appears to have been no problem with communication between OPSEU and Mr. Patton from the time he filed his Grievance in November 1996 until late 1999, in January 2000 and again in February 2000, Mr. Patton attempted without success to reach counsel for OPSEU. He was seeking to determine the status of his Grievance and had not yet received notice that his Grievance had been withdrawn by OPSEU as part of the Settlement reached on or about November 26, 1999. That information was sent to him for the first time by letter dated March 7, 2000, approximately three (3) months later.
Having considered the explanation offered for OPSEU’s counsel’s failure to return the applicant’s calls to the law firm’s office, the Board is satisfied that that failure was the result of an honest misunderstanding or, at most, an error in judgement, which does not amount to a breach of the Act. The misunderstanding between counsel that resulted in Mr. Patton’s call in January not being returned, albeit regrettable, does not amount to arbitrary conduct within the meaning of the Act. In addition, while it is possible to say with the benefit of hindsight that counsel for OPSEU should not have delayed returning Mr. Patton’s call in February pending receipt of instructions from OPSEU, it was not an unreasonable thing to do in the circumstances. Quite apart from the question of costs associated with responding to the numerous “Selby grievors”, the Board notes that the only information available to communicate at that time was the Ministry’s position that the applicant’s Grievance had been resolved. In these circumstances, it was reasonable for counsel to have wanted to be in a position to communicate OPSEU’s position when communicating the position taken by the Ministry.
OPSEU, however, had an obligation to communicate to Mr. Patton in a timely manner that his Grievance had been withdrawn. While a trade union is entitled to settle or withdraw a grievance filed by an individual member as it did in the applicant’s case after proper consideration of the merits of the grievance and the union’s other legitimate interests, the affected member is entitled to be informed of that decision. In this respect, the Board notes that it has in the past found that a failure to communicate important decisions to a member amounts to a breach of section 74 of the Act. (See for example, Teamsters Local Union 938, Board File No. 2504-98-U, unreported decision dated April 1, 1998.)
In determining whether a failure or a delay in communicating an important decision to a member constitutes arbitrary conduct within the meaning of the Act, the Board must consider the entire circumstances surrounding the union’s representation of that member. In the present case, Mr. Patton was informed about the Settlement approximately three (3) months after the fact. That information was, however, communicated in the normal course by letter dated March 7, 2000 and was not provided only in response to Mr. Patton’s unfair representation complaint to the Board filed on March 9, 2000. The Board also considers the overall context of the Settlement reached. That Settlement involved a Two Million dollar ($2,000,000.00) payment and a large number of grievances and grievors to whom individual notification was required.
In all of the circumstances including the magnitude of the Settlement, and the responsible manner in which OPSEU and its counsel handled Mr. Patton’s Grievance up to the Settlement, the Board is unable to find that OPSEU has acted arbitrarily within the meaning of the Act. While it is regrettable that Mr. Patton was not provided with more timely information concerning the Settlement reached, having considered the explanation offered by OPSEU, the Board is unable to find that there has been any breach of the Act in this case.
This application is accordingly dismissed.
“Caroline Rowan”
for the Board