2740-98-U Giuseppe Cara, Applicant v. Ontario English Catholic Teachers’ Association, Responding Party.
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Giuseppe Cara, John Ryall, Cecilia DeMonte-Bahr and Henry Czarnota for the applicant; David I. Bloom, Brenda Carrigan and Joan Guenther for the responding party.
DECISION OF THE BOARD; June 5, 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 Ontario English Catholic Teachers’ Association (“OECTA”) has violated section 87(2)(b) of the Act.
2The applicant seeks the following relief:
(1) a cease and desist direction;
(2) the requirement that OECTA sign and distribute a notice stating that it was found in violation of the Act and undertake to comply with the Act in the future;
(3) a written apology to be published in the OECTA newspaper.
3A hearing was held on March 23, 2000 with respect to the application. The applicant presented his case first. At the conclusion of the applicant’s case, which involved the testimony of four witnesses, OECTA brought a motion for non-suit. On the consent of the applicant, OECTA was not put to an election about whether it would call evidence in response to the case advanced by the applicant. This decision determines OECTA’s motion.
The Issue
4The applicant, Mr. Cara, is employed as a teacher at St. Michael’s Choir School. He is represented in his employment relations by OECTA. In order to represent its member teachers, OECTA endeavours to ensure that each school has an OECTA staff representative (equivalent to a union steward) who is normally elected by the teachers at the school.
5In 1998, the applicant filed a complaint (Board File No. 0681-98-U) under section 96 of the Act alleging that the union had not represented him fairly in accordance with section 74 of the Act. This application alleges that OECTA reacted to Mr. Cara’s section 74 complaint by removing him from his position as OECTA staff representative and by imposing a punitive scheme of union representation on him.
6OECTA’s response to the application is that Mr. Cara was not staff representative for St. Michael’s Choir School and in any event, OECTA did not take any action against Mr. Cara for filing his complaint.
The Evidence
7The applicant called four witnesses, including himself, in support of his application.
8John Ryall, the St. Michael’s Choir School principal, was the first witness called by the applicant. He testified that on September 25, 1998 he called a staff meeting to present a Local School Staffing Advisory Council (“LSSAC”) report. (Although it was never explained to this Board the LSSAC appeared to be a joint union management committee established to monitor local school compliance with the collective agreement in existence between the school board and the union.) Mr. Ryall had virtually no recollection of what occurred at the meeting, including, as the applicant contends, whether the applicant had been elected OECTA staff representative at that meeting. He also had vague recollections that on September 24, 1998 there had been an LSAAC meeting to discuss whether the school was in compliance with the collective agreement. Mr. Ryall was of the view that the OECTA staff representative in the period leading up to the September 25 meeting was Ms. Cecilia DeMonte-Bahr. He also believed that she was OECTA staff representative at the September 25 meeting. The applicant asked Mr. Ryall whether Ms. Demonte-Bahr had resigned as OECTA representative. Mr. Ryall answered that he had no memory of her resigning. Under cross-examination, Mr. Ryall testified that Ms. Demonte-Bahr had discussed with him her desire to resign from her position as staff representative because of the difficulty she had in dealing with the applicant, but had never formally, in writing or orally, advised of her decision to do so. He also testified that it was unlikely that there was an OECTA vote at the September 25 meeting because he and the vice principal were no longer in the bargaining unit as a result of legislative changes. They were part of management. He thought it would be unusual for a member of management to be present at a union election meeting.
9To summarize Mr. Ryall’s evidence, I find that he was of no assistance to the applicant’s case, in part, because of his lack of memory of the September 25 meeting. What Mr. Ryall could remember of the September 25 meeting and events prior to it were damaging to the applicant’s case. He believed that the September 25 meeting was held to advise on the LSSAC report and that Ms. Demonte-Bahr was OECTA representative at that meeting. His recollection was also that while Ms. Demonte-Bahr advised Mr. Ryall that she was considering resigning as OECTA representative, she never advised him that she was doing so.
10Ms. DeMonte-Bahr testified next. She testified that she had been a teacher at St. Michael’s Choir School for seven years and had been the OECTA staff representative since the fall of 1996. Ms. DeMonte-Bahr testified that she represented Mr. Cara as staff representative at a meeting held with Mr. Ryall to discuss a concern that Mr. Ryall had regarding Mr. Cara’s refusal to assume certain student supervisory duties. That meeting occurred on Monday, September 21, 1998.
11Ms. DeMonte-Bahr also testified that she had a discussion with John Ryall on or about September 11 in which she advised him that she was considering not being the OECTA staff representative because of the difficulties she had in dealing with the applicant. Mr. Cara asked Ms. DeMonte-Bahr what was the point of the September 25, 1998 meeting and she answered to give the LSSAC report. He asked her whether he was elected OECTA representative at that meeting and she testified that he was not. Ms. DeMonte-Bahr explained that at the meeting, which took place in her classroom, Mr. Cara had asked that there be an election for OECTA staff representative and that she told him it was an LSSAC meeting, not a meeting to elect an OECTA representative. Mr. Cara then attempted to hold an election and nominated himself, but there was no vote and Ms. DeMonte-Bahr adjourned the meeting.
12Ms. DeMonte-Bahr also testified that she believed Mr. Cara made many unreasonable requests of her as staff representative, including providing her with a written form containing two or three pages of detailed technical questions about the collective agreement. Ms. DeMonte-Bahr grew frustrated by Mr. Cara’s demands and asked OECTA to intervene. They did so by advising Mr. Cara that his union representation needs would be met through the OECTA unit (Local) level rather than through Ms. DeMonte-Bahr.
13Ms. DeMonte-Bahr also testified that another staff meeting, scheduled prior to the September 25 meeting, was held on October 1, at 12:20. At that meeting Joan Guenther, President of the OECTA’s Toronto Elementary Unit advised the employees about potential job action in view of Bill 160, and confirmed that Ms. DeMonte-Bahr was the OECTA staff representative for the school.
14Henry Czarnota, a grade 5-6 teacher at St. Michael’s Choir School, was the applicant’s next witness. He testified that there was a vote to elect the OECTA staff representative at the meeting held on September 25, 1998, which he attended. He said it had occurred because Mr. Ryall advised the staff that they did not have an OECTA representative present to discuss the LSSAC report, and at that point Mr. Cara said he was interested in the position. Mr. Czarnota then seconded the motion and another teacher thirded it. While there was no vote, since nobody opposed Mr. Cara’s election, he understood that Mr. Cara had been acclaimed. The meeting then ended with Ms. DeMonte-Bahr being upset and walking out of the room. Mr. Czarnota attended the October 1 meeting, but left before it was over and heard none of the comments Ms. Guenther made about the staff representation situation. Mr. Czarnota attended a meeting held on November 5 with OECTA to discuss Mr. Cara’s situation. He testified that he had no recollection of what happened at that meeting.
15Under cross-examination, Mr. Czarnota testified that Ms. DeMonte-Bahr was not the OECTA representative on September 21, 1998 and for two weeks before that date, because Ms. DeMonte-Bahr had advised him on several occasions that she was not the staff representative. He was unable to explain how his testimony could be correct in view of the fact that Mr. Cara himself asserts that Ms. Demonte-Bahr was the OECTA representative at least until September 21, 1998.
16Finally, Mr. Cara testified on his own behalf. He testified that on September 25, 1998, he attended a meeting called by John Ryall in which the LSSAC committee reported to the entire staff. During the meeting, it became evident there was no OECTA staff representative. Mr. Cara asked Mr. Ryall if that was the case. Mr. Ryall said yes, but that Ms. DeMonte-Bahr was willing to act in that capacity until a representative could be found. Mr. Cara suggested an election be held immediately to fill the position and that he was willing to run. Mr. Czarnota seconded the motion that Mr. Cara be elected OECTA staff representative. He asked if anyone opposed and no one responded. He therefore assumed he had been acclaimed. Ms. DeMonte-Bahr objected to the election after the “election” was over, but did not say anything prior to the “vote” or during it. She said this was not a OECTA meeting, that the meeting was over and she walked out. He complained to John Ryall and told Mr. Cara that he had questions regarding the LSSAC report, but all the other teachers left as he spoke.
17Mr. Cara agreed with Ms. DeMonte-Bahr’s version of the events surrounding the September 21 meeting including the fact that she represented him at that meeting as his OECTA staff representative.
18Mr. Cara testified that after the September 25 meeting he assumed he was the OECTA staff representative. He could not attend the October 1 meeting because of classroom commitments. He only realized there might be a problem with his election when he realized he was not getting any OECTA mail. He asked Ms Guenther about the situation and her response gave him concern that his election had not been accepted. He contacted OECTA by letter dated October 26, 1998 to request an investigation. He met with Ms Guenther and Brenda Carrigan, another OECTA official on or about November 5 and Ms Guenther advised him that he was not suitable to be the OECTA representative because he filed a section 74 complaint against OECTA and he had been harassing a colleague (Ms. DeMonte-Bahr). Mr. Cara denies harassing Ms. DeMonte-Bahr.
19At or prior to the November 5 meeting OECTA imposed a representation arrangement on Mr. Cara whereby he was required to contact senior union officials if he needed union representation or had questions or concerns. He testified that under the new representation arrangement, it has been difficult for him to get answers to his questions and concerns regarding workplace issues. For example, there was a delay of six weeks in response to an assault grievance he filed.
20Under cross-examination, Mr. Cara admitted that at the meeting on September 25, after he alleges he had been elected, he wanted to raise issues about the LSSAC report, but the other teachers walked out of the room while he was talking. He also agreed that after the October 1 meeting he refused to meet with Ms. Guenther to discuss what happened because he was in a class. He acknowledged that he never called her back to find out what happened at the meeting.
21He acknowledged that there were a lot of disagreements between him and other staff at the school over union and other politics (i.e. whether they should strike in protest of Bill 160) and over the inquest into a boy who committed suicide at the school. Mr. Cara testified that he was not afraid to speak his conscience. However, he claims to have had a perfectly amicable relationship with Ms. DeMonte-Bahr and he can not understand why she would accuse him of harassing her.
Decision
22Section 87(2)(b) of the Act states:
- (2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall,
(b) intimidate or coerce or impose a pecuniary or other penalty on a person,
because of a belief that the person may testify in a proceeding under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.
23In order to prove a violation of section 87(2)(b) of the Act, an applicant must establish (1) that the trade union, or person acting on behalf of the trade union intimidated, coerced or imposed a penalty on the applicant and (2) that all or part of the reason such intimidation, coercion or penalty was imposed was because the applicant made a complaint or participated in a proceeding under the Act.
24At its most basic, the applicant’s complaint was that he had been penalized by the union in two respects because he had commenced an application under section 74 of the Act. The first alleged penalty was that he had been removed as OECTA’s union representative at St. Michael’s Choir School. The second alleged penalty was that OECTA imposed an unusual representation regime on him, whereby the union representative at the school would not deal with him, and instead, his representation needs would be met by more senior union personnel at OECTA’s unit level.
25I will first consider the allegation that the representation arrangement introduced by OECTA constituted a penalty. OECTA does not dispute that they have set up an extraordinary arrangement to represent Mr. Cara. Ms. DeMonte-Bahr testified that the reason OECTA made the arrangement was so that she would not have to deal with Mr. Cara. She testified that she felt that he made unreasonable demands of her. While Mr. Cara testified that he and Ms. DeMonte-Bahr were friends and got along cordially, I am satisfied, based on the evidence presented by Mr. Cara, that the opposite is true, that Mr. Cara did make numerous complicated and unreasonable demands on Ms Demonte-Bahr and generally made her life difficult. His failure to acknowledge the differences between he and Ms. DeMonte-Bahr demonstrate the need for an unusual solution to the problem facing the union since they were obligated to continue to represent him.. In these circumstances the representation arrangement which was put in place by OECTA was a rational response to the situation.
26More importantly, there is no evidence before me that the reason the arrangement was put in place was because the applicant had filed his section 74 complaint. Accordingly, this aspect of the application must be dismissed.
27The second allegation of penalty is somewhat more complicated. OECTA’s first argument was that the selection of union stewards was a completely internal union matter which could not constitute a penalty under section 87(2)(b) of the Act. OECTA relied on jurisprudence in which applications under section 74 of the Act have been dismissed by the Board because they related only to purely internal matters such as the appointment of union stewards.
28I disagree with this aspect of OECTA’s argument. It is true, as the caselaw relied on by OECTA suggests, that the Board will not normally intervene in internal union matters such as the selection of union stewards. However, where it is alleged that a union has taken certain steps which would otherwise be internal union matters exempt from the Board’s jurisdiction in retaliation for the employee bringing a complaint under the Act, those steps may constitute a penalty and violate section 87(2)(b) of the Act. For example, in William Egan, [1983] OLRB Rep. Feb. 298, the Board, in upholding such a complaint, held that part of the reason that charges were brought against a member under the union constitution was because the member brought an application under the Act seeking the union’s financial statements.
29OECTA argued in the alternative that Mr. Cara had never proved that he was the OECTA staff representative and therefore, he could not demonstrate that he had been removed as OECTA staff representative. Mr. Cara had fundamental problems in leading evidence in support of his application. As discussed above, most of the witnesses he called were not helpful to his case, and in fact were harmful. At best, taken as a whole, the evidence led in support of the application is contradictory.
30The applicant does not dispute that Ms. Demonte-Bahr was the SEIU staff representative as late as September 21, 1998. Therefore, in order to prove that he occupied the position of OECTA staff representative, there being no allegation that he was selected under the normal process, he must first prove that Ms. DeMonte-Bahr had resigned from the position. There was no dispute that Ms. DeMonte-Bahr never tendered a resignation in writing and never advised the staff or OECTA that she had resigned. There is also no dispute that as of September 21, 1998 Ms. DeMonte-Bahr was the union representative, that she was present at the September 24 LSSAC meeting and that she was present at the LSSAC reporting meeting on September 25 which was held in her classroom. All of these undisputed facts strongly suggest that Ms. DeMonte-Bahr was the union representative at all times.
31Ms. DeMonte-Bahr testified that although she was considering resigning from the position, she actually never tendered her resignation. Similarly, the school’s principal Mr. Ryall testified that while Ms. DeMonte-Bahr expressed to him that she was considering resigning, she never told him that she had resigned or even had decided to resign.
32The only evidence that Ms. DeMonte-Bahr had resigned was the evidence of Mr. Cara and Mr. Czarnota that Mr. Ryall told the staff at the September 25 meeting that she was no longer the staff representative. Mr. Ryall had no recollection of what occurred at that meeting. Based on all of the evidence presented to me, I do not find Mr. Cara’s and Mr. Czarnota’s version of events credible. Even if she had resigned, that did not give the applicant the right to call his own election without proper notice and declare himself the winner by acclamation In any event, it does not outweigh the substantial evidence that Ms. DeMonte-Bahr had not resigned. In other words, the applicant has not proven on the balance of probabilities that Ms. DeMonte-Bahr resigned as staff representative and that the position was open for him to be “acclaimed” to.
33If Ms. DeMonte-Bahr had not resigned, then what happened at the September 25, 1998 meeting? I have doubts about Mr. Czarnota’s evidence that Mr. Ryall told the meeting that the staff had no OECTA representative, as Mr. Ryall testified credibly that Ms. Demonte-Bahr never told him that she had resigned. I am however satisfied that Mr. Cara attempted to improperly have himself elected through what amounted to a coup, shrouded in the cloud of an election. The meeting held was not a union meeting it was a meeting held to discuss the LSSAC report. There were members of management present to discuss the report. The absurdity of Mr. Cara’s position can be seen in the uncontroverted evidence that immediately after Mr. Cara’s alleged “acclamation”, all of the teachers left the room, even as Mr. Cara was attempting to lead discussions of the LSSAC report. Finally, I am also of the view that Mr. Cara was well aware that he had not succeeded in his improper attempt to become staff representative because had it been otherwise he surely would have contacted Ms. Guenther after the October 1 meeting to find out what had occurred at the meeting, particularly when he knew she was trying to speak to him. In my view the reason he did not call Ms. Guenther was that he knew that he was not the OECTA staff representative.
34Under the circumstances, I do not have to determine what was said to Mr. Cara at the meeting held on November 5, 1998.
35In short, Mr. Cara has not proven on a balance of probabilities that he ever held the position of staff representative. Since that is the case, he could not have been removed from that position and therefore there was no penalty imposed by OECTA. Absent a penalty, there can be no breach of section 87(2)(b) of the Act.
36Accordingly, for all of the foregoing reasons, this application is dismissed.
Brian McLean”
for the Board