Ontario Labour Relations Board
2741-99-U Kristy Irvine, Applicant v. Canadian Union of Public Employees, Local 4153, Responding Party v. Hamilton-Wentworth District School Board, Intervenor.
BEFORE: Anthony Brown, Vice-Chair.
APPEARANCES: Keith Johnson for the applicant, Nick Milanovic, Larry Hardman, Howard McMillan and Ann Lennarson for the responding party; Mark Zega and Deborah Russon for the intervenor.
DECISION OF THE BOARD; July 26, 2000
1This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging violation of section 74.
2Section 74 of the Act states:
- 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.
3A consultation was held on July 14, 2000.
Factual Background
4The material facts are not in dispute. The intervenor (the "school board") was created by a merger of two predecessor school boards on January 1, 1998 pursuant to the Education Quality Improvement Act, 1997. As a result of this merger, the school board and the responding party ("CUPE") entered into an agreement pursuant to the Public Sector Labour Relations Transition Act, 1997 (Bill 136) to deal with the fact that members of two CUPE locals were being joined into one new CUPE local. Interim measures were agreed to which, inter alia, provided for the ability of "County caretakers" to apply for postings within the new organization and which ensured that no member lost pay as a result of the merger. The first collective agreement reached by CUPE and the school board after the merger reflected the fact that not all harmonization issues could be resolved immediately. The lack of complete harmonization resulted in some CUPE members being paid more than others while doing the same job. This fact lies at the heart of the applicant's complaint.
5The applicant works in a secondary school as an assistant caretaker. At the material time, Tim Currier also worked in the school, performing essentially the same duties. Mr. Currier was a caretaker with the former Wentworth County school board. There are five former County caretakers in assistant caretaker positions, both male and female, who have their former County caretaker rate of pay. By agreement between the union and employer, until such time as Mr. Currier (or any one in a like situation) applies for a new posting in the school board, he is guaranteed that his salary will not fall below its level at the predecessor Wentworth County board. As a result, Mr. Currier earns a higher hourly wage than the applicant although he is not as well qualified (on paper).
6The applicant considers this salary differential to be a violation subsection 32(1) of the Employment Standards Act. She complained to her CUPE local. Her written request asking the union to seek a remedy was made on June 28, 1999, at the start of the summer school vacation. Mr. Larry Hardman, Local President, responded to the applicant by letter dated October 25, 1999. He briefly explained in his letter how the salary differential arose, and stated that the union did not intend to grieve on the applicant's behalf. The letter notes that the arrangement leading to the salary differential was approved by "90% of the membership". This response was sent to the applicant after the Local had obtained and considered a legal opinion. The legal opinion stated, in essence, that although there may be a basis for the applicant's complaint under section 32, a violation will not be found if it can be shown that the salary differential is based on a factor other than sex. The opinion canvassed the law in respect of section 32 and recommended that the union investigate the facts in view of the criteria applied in respect of section 32 claims.
7The applicant consulted the Employment Standards Branch of the Ministry of Labour and alleges that she was informed verbally by "Gizelle Nicols", Regional Program Advisor, that a complaint about a violation of section 32 of the Employment Standards Act was a matter to be handled under the grievance procedure of the collective agreement because the applicant is a member of a union.
Issues
8The applicant asserts that the responding party violated section 74 of the Act by refusing to enforce her "equal pay" claim under the collective agreement. She asserts that officials of the Local failed to follow the legal opinion which they had obtained. She asserts that the Local officials took too long to respond to her.
9The responding party raises a preliminary objection. It asserts that it has no duty of fair representation in respect of the applicant's complaint under Part IX of the Employment Standards Act. It argues that subsection 32(3) allows the Director of Employment Standards to permit an employee to file or maintain a complaint under the Act and, therefore the union does not have "exclusive" authority over the matter. It asserts that the duty of fair representation only applies where the union has exclusive authority to deal with a matter. It referred the Board to Luis Lopez, [1989] OLRB Rep. May 464.
10The responding party submits in the alternative that it has not violated its duty under section 74. It submits that its delay in responding to the applicant was due to the time required to obtain a legal opinion and, further, that it is more difficult to respond quickly during the summer vacation period because employees are not at work. CUPE submits that the vast majority of its members had agreed to the terms under which some members would, at least in the interim, be red-circled. The union considers these terms as a temporary step toward full harmonization of salary rates. The union states that Ms. Irvine was not the only person affected by the agreement between the union and the school board; both female and male employees could "win" or "lose" under the agreement. The union states that it made its decision not to assist Ms. Irvine after its officials discussed the situation in light of the legal opinion.
Decision
11Turning to the merits of the application, and assuming without deciding that the union does have a duty of fair representation, the Board finds that there is insufficient evidence that the union has violated section 74. There is, in fact, no evidence that the union acted toward Ms. Irvine in a manner that was arbitrary, discriminatory or in bad faith.
12Before making its decision not to grieve, the union was fully aware of the facts giving rise to Ms. Irvine's complaint. The union formed the opinion that the salary differential among members of the CUPE Local was based on a factor other than sex and came within the exceptions listed in section 32.
13The union's decision not to grieve was made with the benefit of a detailed legal opinion obtained for the express purpose of being able to give full consideration to the matter. The applicant asserts that the union did not follow the legal opinion. However, the legal opinion did not provide a definitive answer or suggest a "cut and dried" solution. And, in any event, the legal opinion, no matter how persuasive, was nevertheless "advice" to assist the client; it was not an instruction.
14The red-circling of salaries for County caretakers was not secret; it was approved by the membership. Therefore, Ms. Irvine was either aware of why she was being paid less than a fellow employee or was deliberately oblivious to the fact. She cannot legitimately complain about lack of information from the union about the reason for the salary differential. The union's letter to her on October 25, 1999 merely confirmed what she had already been told verbally by union officials.
15The merits of Ms. Irvine's contention that the employer violated section 32 of the Employment Standards Act are, in my view, weak. But, even if that were not the case, it is well-established that, in appropriate circumstances, the union is entitled not to proceed with a grievance to arbitration even if it is likely to succeed, provided that this decision is not made in a manner that is arbitrary, discriminatory or in bad faith. In Catherine Syme, [1983] OLRB Rep. May 775 the Board stated:
- Section 68 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 unit 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.
16The impact of a grievance upon the membership as a whole is a relevant consideration for the union. It seems rather obvious that an "equal pay" grievance by CUPE on Ms. Irvine's behalf would have had potentially serious implications for its other members and for its collective bargaining relationship with the school board.
17In view of the Board's decision that the union did not violate section 74, it is not necessary to decide the union's preliminary objection. I would observe, however, that the applicant's right, under subsection 64.5(3) to apply to the Director of Employment Standards to "permit a complaint" under the Employment Standards Act is very different from the right to make a complaint. There is no information before the Board as to the circumstances under which the Director would permit a complaint. The overall intent of section 64.5(1) of the Employment Standards Act must be considered. This section makes a contravention of or failure to comply with the Act enforceable against the employer as if were part of a collective agreement. In the instant case, the applicant requested the union to file a grievance on the grounds that the employer contravened subsection 32(1). The Employment Standards Act provides that an employee is bound by a decision of the trade union with respect to the enforcement of the Act under the collective agreement, including a decision not to seek enforcement. However, this does not preclude the employee from making a complaint under section 74 of the Labour Relations Act, 1995 to the Board about a union's decision with respect to enforcement.
18The union argues that the rationale in Luis Lopez (cited above) applies because, by virtue of subsection 64.5(3), the union does not have the "exclusive authority" over employment standards complaints. However, with respect, the union's argument is somewhat inconsistent with the overall scheme of section 64.5 and the fact that Ms. Irvine has no right to bring a complaint under the Employment Standards Act against her employer. Section 64.5 clearly makes the Employment Standards Act enforceable through the collective agreement and thus creates a statutory scheme which is quite different from that found in Luis Lopez., In Luis Lopez, the Board considered a trade union's obligation in respect of a workers' compensation claim, and observed at paragraph 21: "The trade union has no statutory role in the scheme." It was the absence of a connection to the collective agreement or collective bargaining relationship that formed the basis for the Board's decision in Luis Lopez (see paragraph 17 of that decision). The instant case is also distinguishable from decisions under the Employment Standards Act that adopted Luis Lopez and were made prior to the coming into force of Section 64.5 of that Act (see, for example, James Richard Hughes [1986] OLRB Rep. Jan 103).
19For the reasons stated above, the Board finds that the union did not violate section 74 of the Act. The application is dismissed.
"Anthony Brown"
for the Board