1058-00-U Andrew Flock, Applicant v. Office & Professional Employees International Union Local 343, Responding Party v. 2471256 Canada Inc. c.o.b. as Greenpeace Canada, Intervenor.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; June 11, 2001
APPEARANCES: Andrew Flock appeared on his behalf; Patty Clancy and Maureen O’Halloran appeared on behalf of the Responding Party; John Barrack and Wendy Wright appeared on behalf of the Intervenor.
This is an application filed pursuant to section 96 alleging a violation of section 74 of the Labour Relations Act, 1995, S.O. 1995, c.1 ('the Act'). A consultation in this matter was completed on May 4, 2001.
This matter arises out of the termination of the applicant (also referred to as “Mr. Flock”) from employment on August 20, 1999. Up until that point, he had been a canvasser with the intervenor (also referred to as “Greenpeace” and “the employer”), and a member of the bargaining unit for which the responding party (“the union”) held bargaining rights. Mr. Flock began his employment with Greenpeace in February 1998. As a canvasser, his duties were essentially to go door-to-door in selected Toronto neighbourhoods with a fellow canvasser, and solicit funds for Greenpeace. There were no issues concerning Mr. Flock’s job performance, nor was he ever disciplined in any formal sense prior to his termination.
Sometime in May 1999, Mr. Flock had some dealings with a female co-worker and member of the union’s bargaining committee. I shall refer to her as “the complainant”. In his application, Mr. Flock refers to embracing the complainant at a location away from the workplace. In its response, the union characterized the incident as one in which Mr. Flock made advances toward a female co-worker. In any event, there was no dispute that the complainant was the co-worker, and that she subsequently indicated to Mr. Flock that she was married and not interested in him romantically. Apparently, the complainant’s message did not entirely deter Mr. Flock, so that is became necessary for the complainant to involve the employer.
A series of meetings ensued. The first meeting involved Mr. Flock, the complainant and two Greenpeace supervisors, Justin Connally and an individual referred to as Ms. Stern. Mr. Flock says that at that meeting on May 19, 1999, he agreed to stay away from the complainant. It is not entirely clear what circumstances gave rise to the complainant seeking a second meeting, this time with a human resources coordinator, Wendy Wright, but apparently the complainant was not yet certain that the matter had been finally determined. At the second meeting on June 1, 1999, convened by Ms. Wright, and attended by Mr. Connally, Mr. Flock, and his union representative at the time, Eric Gamble, the participants shared certain information. A third meeting ensued on June 4, 1999, with Mr. Flock, Mr. Gamble, Ms. Stern and Ms. Wright in attendance, and at that time the participants reviewed Greenpeace’s harassment policy. The employer set out its expectations of Mr. Flock within the context of that policy. Any discussions between Mr. Flock and the complainant were to be on a strictly professional basis, and Mr. Flock was to refrain from all personal conversation with her. He indicated that he agreed with and understood these expectations.
For some period of time following the June 4, 1999 meeting, nothing untoward occurred. However, on August 12, 1999, Mr. Flock had a conversation with the complainant. He asked about her plans for law school, and wished her well. There may have been more to the conversation, but that much was said. Apparently, the complainant became worried that Mr. Flock’s agreement to control his behaviour was coming undone. She asked Mr. Connally to set up another meeting to review with Mr. Flock the August 12, 1999 incident and his undertakings in respect of his contact with the complainant. Mr. Connally agreed to do so.
On August 17, Mr. Flock, Mr. Gamble, the complainant, Mr. Connally, and Veronica Maliszewski, a senior manager, met to discuss the complainant’s most recent concerns. By all accounts, the meeting deteriorated quickly. In response to accusations from the complainant, Mr. Flock apparently made some derogatory comments concerning the complainant’s virtue, and gave every indication, from management’s perspective at least, that he no longer felt bound by his previous undertakings, nor did he appear to take responsibility for his part in the prior events involving the complainant. Mr. Flock was sent home.
The next day, August 18, 1999, the complainant filed a formal complaint with Greenpeace pursuant to the intervenor’s harassment policy. The intervenor considered the complaint, and on August 20, 1999, Ms. Maliszewski advised Mr. Flock of his termination. The letter of termination reads as follows:
In follow up to today’s meeting regarding the formal harassment complaint that we received, please be advised that we have done an investigation and as a result we find that the harassment occurred on August 12, 1999 and on August 17, 1999.
These incidents are very similar to another harassment complaint that we warned you about on June 4, 1999. On June 4, 1999 you had assured us that you understood what Greenpeace expected of you regarding this issue.
Your violation of this agreement constitutes serious sexual harassment. Accordingly, you are being dismissed from your job effective immediately.
At the consultation, the intervenor made it clear that, but for Mr. Flock’s outburst and reversal at the August 17, 1999 meeting, it would not have terminated Mr. Flock soley for the incident of August 12, 1999.
On September 1, 1999, Mr. Flock met with a union representative, Ms. Patty Clancy, to consider a grievance. Ms. Clancy was well acquainted with the complainant, having sat with her as a member of the union’s bargaining committee. Mr. Flock suggested that Ms. Clancy investigate the complainant’s motives in having requested the August 17, 1999 meeting. Apparently Mr. Flock was of the opinion that the complainant was escalating the issue as a means of veiling from the view of others in the workplace certain personal details that she was anxious not to have revealed. Ms. Clancy declined to investigate the personal affairs of the complainant. She believed these were irrelevant to the question of whether Mr. Flock had made unwelcome advances. Mr. Flock also requested of Ms. Clancy that she investigate the relationship between the complainant and Mr. Connally. Mr. Flock had suspicions that Mr. Connally might have had reason to take the complainant’ side against Mr. Flock. Ms. Clancy says she did discuss this with the complainant, but added that she did not think this issue very relevant to Mr. Flock’s grievance either.
In response to the termination, the union filed a grievance on behalf of Mr. Flock, on September 3, 1999. A grievance meeting took place on September 30, 1999, with no resolution. Some two months later, on December 2, 1999, Ms. Clancy wrote to Mr. Flock, advising that the union executive had decided not to pursue his grievance to arbitration, and advising him further of his right to appeal that decision at a meeting of the union executive. Mr. Flock indicated his desire to do so, and asked repeatedly for written reasons for the union’s position, so that he might prepare his appeal. He was never provided written reasons, but when he attended at the meeting of the union executive on April 10, 2000, he was told by the union president that the union’s approach in deciding whether or not to proceed to arbitration was based on an assessment of the facts and the applicable law, with a view to the chances of success before an arbitrator. If the chances of success are not favourable, the union’s practice is to decline to proceed further. It is not clear the extent, if any, to which the union went into any detail during the April 10, 2000 meeting concerning an assessment of the facts as they pertained to Mr. Flock. The union did not plead that there was any such discussion, and the applicant states merely that he reiterated his concerns about Mr. Connally. Apparently, no final decision was taken at the appeal meeting. Subsequently, the union advised Mr. Flock in writing that his appeal had failed. No reasons were provided.
At the consultation, the union stated that it turned its mind to the grievance. It alleges it considered the facts as it understood them, following interviews with the appropriate individuals. It claims that it reviewed the applicable case law in the area of harassment, although no specific cases were cited at the consultation. It noted that the workplace had experienced prior instances of harassment, that there was a clear policy on the subject in place, and that Greenpeace had adopted a tough stand against harassment, which the union supported.
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.
I am satisfied that there has been a violation of section 74 by the union in this matter.
Mr. Flock received the ultimate workplace sanction at the hands of his employer. A termination on the grounds of sexual harassment brings with it a certain disgrace in this day and age. I make no comment on the merits of the dismissal, other than to say that Mr. Flock’s termination involved very serious allegations of misconduct which, if left unchallenged, may carry additional ramifications for the applicant, if not personally, certainly in respect of his career opportunities. For these reasons, the union had an obligation to treat Mr. Flock’s termination seriously, and to consider very thoroughly the merits of his grievance and the remedies available, given the grave consequences the discharge posed for him.
The necessity for the union to proceed with prudence and thoroughness in this matter is further underscored by the fact of the involvement of the complainant, a union official. Because of her affiliation with the union, there existed a potential for the union to be viewed in a conflict of interest in dealing with Mr. Flock’s grievance. It may not have been necessary for the union to have undertaken the type of investigation urged by Mr. Flock, although it would have been wise to take all necessary steps to rule out the possibility, raised by Mr. Flock, that one of the managers involved in the events up to the brink of discharge had personal reasons to prefer the interests of the complainant over those of the applicant, and improperly influenced Mr. Flock’s demise. What is particularly troubling, however, is not so much the investigation into the facts surrounding the matter, but the union’s failure to explain in any detail why it would not proceed to take the applicant’s grievance further. It was common ground that, during the appeal of the union’s decision not to take the grievance to arbitration, the union’s president briefly explained to the applicant the principles which guided that decision. The president stated that it was the union’s practice to assess the facts and the law, and not go to arbitration if, following such an assessment, the union’s position would not likely prevail. There is nothing wrong with such an approach, in fact it makes common and labour relations sense. The problem is that this explanation fell far short of answering the question as to why Mr. Flock's’ grievance was not going ahead. What was it about the facts or the applicable law that made the union reluctant to advance the grievance?
At the consultation, the union contended that it had reviewed the law bearing on the applicant’s circumstances, but it did not specifically refer to or provide the Board with those decisions, and apparently Mr. Flock was never provided any copies. The union did not claim to have sought a legal opinion concerning the merits of the applicant’s grievance. The union contended that it had considered the facts as it understood them, and concluded that Mr. Flock’s version of events corroborated that given by the complainant. It agreed with Greenpeace that the applicant failed to comprehend the seriousness of the situation. Be that as it may, there was no apparent consideration given by the union to the possibility of mitigation of the penalty of discharge (surely something that would have been explored in a legal opinion, had one been sought). If there was such consideration, it was not explained to Mr. Flock, or alleged at the consultation. Nor did the union argue at the consultation or explain to the applicant that its decision was based upon a balancing of Mr. Flock’s interests versus the interests of the complainant and/or other female members of the bargaining unit as a whole. In all the circumstances of this matter, and given the serious consequences faced by the applicant, the failure of the union to provide Mr. Flock with some basis for its view that it should abandon his grievance suggests that there was not a reasonable explanation, which further suggests arbitrariness or, at worst, bad faith.
For these reasons, I find the union violated section 74 of the Act. I hereby order the union to refer Mr. Flock’s termination grievance to arbitration. In the circumstances, this is an appropriate case for the provision of independent legal counsel for the applicant in his representation at the arbitration, at the union’s expense. I therefore direct the applicant and the union to consult and endeavour to reach agreement on the identification of legal counsel to act on behalf of Mr. Flock. Finally, Greenpeace is prohibited from relying upon the passage of any time limits in the applicable collective agreement for the referral of Mr. Flock’s grievance to arbitration.
I am seized to deal with any issues related to implementation of the orders and directions in this decision.
“Patrick Kelly”
for the Board