0044-00-U Dorothy Douse, Applicant v. Service Employees International Union, Local 204, Responding Party v. Tullamore Nursing Home, a Division of Diversicare I Limited Partnership, Intervenor.
BEFORE: Gail Misra, Vice-Chair.
DECISION OF THE BOARD; April 28, 2000
1This is an application made under section 74 of the Labour Relations Act, 1995 (the “Act”) claiming the union’s breach of its duty of fair representation.
2The style of cause is amended to reflect the correct name of the responding party: “Service Employees International Union, Local 204”. The applicant has only alleged a breach of section 74 of the Act, but has named as responding parties both the Service Employees International Union, Local 204 (the “SEIU” or the “union”) and the employer, Tullamore Nursing Home (“Tullamore”). Since section 74 can only be breached by a trade union, it is inappropriate to name an employer as a responding party. The style of cause is therefore amended to reflect that Tullamore is an intervenor in the application and is not a responding party, and to reflect the correct name of the intervenor: “Tullamore Nursing Home, a Division of Diversicare I Limited Partnership”.
3The SEIU has requested in its response that the Board dismiss this application as it fails to make out a prima face case for a breach of section 74. Tullamore has made the same request in its intervention. This decision addresses that issue.
4According to the applicant’s materials filed with the application, it appears that in August 1998 the employer alleged that Ms. Douse had been involved in an incident that resulted in an injury to a resident of the nursing home. On September 1, 1998 Tullamore issued Ms. Douse a “letter of re-instruction”. The letter indicates that Ms. Douse is alleged to have handled a resident roughly causing the person to fall to the floor. The resident was later found to have suffered a fracture. The employer stated that Ms. Douse had not followed instructions on the safe transferring and lifting of residents. The letter went on to state:
You should be aware that our response to such an incident would normally be a severe disciplinary penalty, likely even termination of employment. This letter should serve to alert you to the fact that further misconduct on your part of a similar or related nature, will result in such steps being taken.
5In October 1999 there appears to have been an incident which led to Tullamore terminating Ms. Douse’s employment. That incident again involved Ms. Douse allegedly improperly handling a resident. While the application does not specifically indicate that the union filed a grievance, one must have been filed as Ms. Tullamore refers to having met an arbitrator on or about March 8, 2000. According to Ms. Douse’s version of events it appears that the arbitrator mediated a settlement of the discharge grievance. Ms. Douse appears to have agreed to a settlement. On the day following the settlement however she called the union to ask for her job back. She was advised that as a result of the settlement having been concluded she could not get her job back. She also claims to have asked the union representative for the employer’s reference letter and indicates that the union representative told her he would do his best to get the letter for her. By the time the application was filed on April 6, 2000 the applicant claimed she had not yet received the letter.
6Ms. Douse is claiming that she did not get a proper hearing and requests as a remedy in the application to “go to proper arbitration” and not to be dealt with “on a one-on-one” basis. However, she has made no allegations that the union represented her arbitrarily, discriminatorily, or in bad faith in the course of dealing with her termination.
7In considering a prima facie motion the Board will normally only consider the application in reaching its decision. In this case the applicant’s submission outlined what has been referred to in the paragraphs above. However, while the applicant has indicated that her termination proceeded to arbitration and was settled, she has not been clear about what the nature of the proceeding was. To the extent that the response and intervention flesh out the process and do not appear to contradict the applicant’s version of events, the Board is relying on those two submissions for clarification purposes.
8Ms. Douse was apparently terminated from her employment on November 25, 1999 due to allegations of patient abuse. She had been employed at Tullamore for two years. The union filed a grievance on Ms. Douse’s behalf. The union and employer agreed to request that the grievance proceed to mediation/arbitration pursuant to section 50 of the Act. A mediator/arbitrator was appointed to address the grievance.
9At the mediation/arbitration on March 8, 2000 the med-arbitrator met repeatedly with the two parties to ascertain their versions of events. He then discussed the matter with Ms. Douse and indicated that she and the union should discuss settlement options. Following considerable discussion which included Ms. Douse, the union representative advised the applicant that she had to decide to settle or proceed to arbitration. Ms. Douse apparently agreed to settle on the mediated terms. An award issued from the med-arbitrator indicating the terms of the mediated resolution. The award indicates that Ms. Douse received a monetary payment, her employment file was sealed, she was given a letter of confirmation of employment, and there was no admission of liability by any party.
10On the day following the mediation/arbitration Ms. Douse contacted the union representative to ask if what had taken place was final. When she was advised that it was, she asked when she would get the letter from the employer. The union told her it would issue after the med-arbitrator’s award came out. Ms. Douse would apparently have received the letter and cheque sometime thereafter as Tullamore sent her a package containing both by registered mail on March 23, 2000.
11The relevant portions of sections 50 and 74 of the Act state as follows:
- (1) Despite any grievance or arbitration provision in a collective agreement or deemed to be included in the collective agreement under section 48, the parties to the collective agreement may, at any time, agree to refer one or more grievances under the collective agreement to a single mediator-arbitrator for the purpose of resolving the grievances in an expeditious and informal manner.
(6) The mediator-arbitrator shall endeavour to assist the parties to settle the grievance by mediation.
(7) If the parties are unable to settle the grievance by mediation, the mediator-arbitrator shall endeavour to assist the parties to agree upon the material facts in dispute and then shall determine the grievance by arbitration.
(8) When determining the grievance by arbitration, the mediator-arbitrator may limit the nature and extent of evidence and submissions and may impose such conditions as he or she considers appropriate.
- 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.
12The workplace parties have the right to agree to participate in a mediation/arbitration process pursuant to section 50 of the Act. In this case they did so. Indeed, the section makes reference to the policy rationale for parties participating in the mediation/arbitration process: it is to resolve grievances in an expeditious and informal manner. There are no allegations made in the application that the union made the decision to go to mediation/arbitration for any improper motive.
13What appears to be the applicant’s concern is that she did not get a “proper hearing”. It is not within the Board’s mandate to oversee how arbitrators or med-arbitrators conduct their proceedings. However, the Board notes that mediation/arbitration is perforce an informal process and the med-arbitrator is legislatively mandated to endeavour to assist the parties to settle the grievance by mediation (see section 50(6)). On the applicant’s own submissions it appears that the med-arbitrator went back and forth between the parties making mediation attempts. Ms. Douse also concedes that the med-arbitrator spoke specifically to her about the matter in dispute and about the settlement possibilities.
14What the Board must decide is whether on the face of the application there is anything, which if proven, would suggest that the union had acted arbitrarily, discriminatorily, or in bad faith, in its representation of Ms. Douse. Ms. Douse is complaining about the process because she would like to have a full-blown hearing. The union had not chosen the straight arbitration route (which in any event may include mediation), and there is nothing to suggest that the union was acting improperly in making the choice to participate in mediation-arbitration. The mediation-arbitration ran its course and resulted in a settlement. There is nothing in the application to suggest a breach of section 74 of the Act.
15For the reasons outlined above and in the exercise of its discretion pursuant to section 96(4) of the Act the Board declines to inquire any further into this matter. The application is hereby dismissed.
“Gail Misra”
for the Board