2239-99-U Marie L. Murchison, Applicant v. Ontario Nurses' Association, Responding Party v. Hotel Dieu Grace Hospital, Intervenor.

BEFORE: Anthony Brown, Vice-Chair.

DECISION OF THE BOARD; June 28, 2001

1. This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging violation of section 74.

2. Section 74 states:

3. 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.

4. The material facts as to the circumstances of the lay-off and subsequent resignation of the applicant are mostly not in dispute. The facts were summarized by the Board (differently constituted) in its decision dated March 14, 2000, which the applicant acknowledges as being on the whole a good synopsis of the facts. The relevant portions of the decision are reproduced below:

5. The results of the rationalization of hospital services in Windsor have had an extremely unfortunate effect on the applicant. She commenced employment as a registered nurse at Grace Hospital in September 1971. From January of 1980 until November 1997, she worked exclusively in the Chronic Care Unit at Grace Hospital. Needless to say, this work requires a specific set of skills and the performance of a finite number of tasks. For those 18 years, the applicant did not perform the full range of nursing functions to which she might have been exposed in an acute care situation. This

is not a criticism of the applicant; the work she did was important and valuable. It did, however, mean that in November 1997 she found herself in a very difficult position.

5. At some time in 1994, the decision was made to concentrate chronic care

services at the Western campus of the Windsor Regional Hospital. The Chronic Care

Unit at Grace Hospital was to be closed. This did not occur for several years. In 1996

Grace Hospital and Hotel-Dieu Hospital were amalgamated. In 1996 Hotel-Dieu s

Chronic Care Unit was moved to the Grace Hospital site. Staff were transferred from

Hotel-Dieu to Grace and seniority was dovetailed.

6. Ultimately in 1997, the Hotel-Dieu Grace Chronic Care Unit was closed. Windsor Regional Hospital, of course, had a collective agreement with an ONA local which did not include any of the persons at the Hotel-Dieu Grace Hospital. However, pursuant to various agreements, including the Human Resource Plan for Hospital Reconfiguration in Essex County and a dispute resolution memorandum dated 21 February 1995, there might be some obligation on Windsor Regional Hospital if the transaction fit the definition of a "reconfiguration" under the Human Resources Plan.

7. Both hospitals involved took the position that this was not a reconfiguration. In October 1997 all staff in the Hotel-Dieu Grace Chronic Care Unit, including the applicant, were sent a letter offering them four choices:

(1) lay-off;

(2) early retirement package;

(3) exit package (pursuant to the Human Resources Plan);

(4) bump an individual with lower seniority within the Hotel-Dieu Grace Hospital bargaining unit.

8. The applicant discussed her options with her ONA representative, Ms. Fatima Hage. Options 2 and 3 did not interest her. Her initial preference was to take a lay-off rather than to try to bump to a job within Hotel-Dieu Grace. Ms. Hage advised her against a lay-off and urged her to consider bumping into another job. With the benefit of hindsight, it is now possible to say that the applicant might be in a better position had she accepted a lay-off. This arises as a result of an arbitration referred to below by arbitrator Pathe . . . . The advice given to the applicant was:

(1) because of her lack of recent experience in any ongoing job at the hospital, staff with less seniority would be considered

for any posted position before her;

(2) recall rights during lay-off would only last for two years;

(3) if she were "called in" to replace nurses when the hospital was short, she would not have any orientation to those areas;

(4) waiting for a job posting at one of the other hospitals was not likely to produce employment, since nurses employed in the bargaining units at those hospitals would have the first opportunity to claim such jobs.

9. Since the applicant wished to continue working, she did pick a job and bump into one elsewhere in the Hotel-Dieu Grace Hospital. Ms. Hage advised her that she "could get an extended orientation if [she] requested it". In the end, the applicant bumped into a position in the "Short Stay Unit". She found, however, that she was given less than two days' orientation. This made her extremely uncomfortable because she felt she was unable to deliver the high standard of care consistent with her professional duty and the requirements of her nursing license. She was concerned that, absent greater orientation, she would not be delivering the proper level of care to patients, thus putting them at risk, as well as risking her nursing license and employment. She found that her unit manager was extremely unhelpful and characterizes her behaviour as "harassment". The applicant contacted Ms. Hage, who told her that, given her new work location, her representative was Ms. Roberta Dickson.

10. The applicant spoke to Ms. Dickson, who advised her that her only recourse was to file a grievance, asserting a right to further orientation. Although the applicant was not pleased with the advice, Ms. Dickson said that it was necessary to demonstrate, not that she was being treated unfairly or unreasonably, but that her treatment was a violation of the collective agreement. . . . Ms. Dickson expressed the view that this would be a difficult grievance to win and that there was inevitably a delay of some months between grievance and resolution if the matter proceeded all the way to arbitration. Delay in litigating any grievance to its ultimate conclusion is simply one of the inevitable facts of life.

11. The applicant then decided that her only realistic option was the Exit

Package that had originally been offered. She contacted Kasia Bondy of Hotel-Dieu

Grace Hospital, who advised her that this option was still available to her. She completed

the necessary documentation and submitted it to the hospital. Two weeks later, she

attempted to rescind her resignation, but was apparently unable to do so. The applicant, in fact, does not say specifically what happened in December of 1997 or January of 1998.

12. The applicant appears to have permitted the situation to stand until September of 1988 [sic]. At that time, she was informed of the arbitration award handed down by arbitrator Pathe. The applicant obtained a copy of this award and determined that she in fact might have benefitted had her case been examined along with two others in the issue labelled "Number Four" in that award.

13. Attached to the application is the mediation/arbitration process by which Mr. Pathe was appointed and his award. These documents speak for themselves. The mediation/arbitration process was agreed upon on 21 February 1995. This is a framework sort of agreement; there are no specific grievances referred to. Indeed, the issues arising from the closure of the Chronic Care Unit only arose in late 1997. Nonetheless, that issue was referred to Mr. Pathe. The argument of ONA at that time was that the consolidation of chronic care at the Windsor Regional Hospital constituted a reconfiguration as defined in the Human Resources Plan. Accordingly, ONA argued that "the affected employees should have been dealt with under the Human Resources Plan by dovetailing the seniority in accordance with Article 2 of the Human Resources Plan". In fact, arbitrator Pathe did determine that the transaction amounted to a reconfiguration. His award states:

"I find that the decision to close the Chronic Care Unit at the Hotel-Dieu Grace while the program continued at Windsor Regional was a reconfiguration, and accordingly employees displaced by the closing should have been afforded all the rights under the Human Resources Plan. At the hearing, I was advised that two employees represented by ONA were laid off from Hotel-Dieu Grace at the time the Chronic Care Unit closed. The parties are directed to meet to resolve the employment rights of these two employees in accordance with the terms of the Human Resources Plan. I will remain seized of this matter pending the outcome of the meeting between the Parties

The applicant contacted Ms. Dickson to ask if, as a result of this award, her situation could be re-examined. She was ultimately advised that she could not.

Submissions

4. The applicant submits that she should have been included in the arbitration before Mr. Pathe. She submits further that the ONA had a duty under section 74 to advise the applicant and the hospitals that the ONA would insist on retroactive displacement rights for all affected employees based upon seniority in the event that the ONA was successful at arbitration before Mr. Pathe. ONA should have ensured that its members’ options were as all-encompassing as possible. It should have preserved Ms. Murchison’s rights or, at least, have advised her as to the full range of the options available to her. It should also have fully apprised itself of how the applicant’s rights would be affected, based on seniority, if Mr. Pathe found that there was a “reconfiguration”. The applicant also submits that she was treated differently from the two nurses whose circumstances were addressed by Mr. Pathe.

5. The applicant submits that ONA did not fully or properly advise the applicant that a complaint had been filed and was scheduled to be arbitrated before Mr. Pathe in June, 1998 for the purpose of determining displacement (bumping) options that she might have been able to exercise. Had she been fully aware of her options, she might have preserved her employment status so as to be able to take advantage of any positive outcome from the Pathe award. She asserts that under the “H.R. Plan” she would not have been laid off, because she had seniority.

6. The applicant asserts that she was not advised by the ONA that, if she resigned her employment, the ONA would not seek a remedy for her before Mr. Pathe. The ONA neither included her in the complaint before Mr. Pathe, not sought a remedy from Mr. Pathe when he gave his award. Mr. Pathe was told that only two nurses were on lay-off and therefore did not fashion a remedy for the applicant. The applicant asserts that one of the two nurses included in the award was actually absent on disability and the other was under suspension. Ms. Murchison states that she only found out about Mr. Pathe’s award from her former employer.

7. Mr. Pathe remained seized in respect of the implementation of his award. The remedy sought by the applicant is to refer the matter back to Mr. Pathe to implement his decision with respect to Ms. Murchison individually. If Mr. Pathe refused to do so, the applicant submits that this is something she would have to live with. (In view of the Board's decision in this application, it is not necessary to determine whether the Board could or would order this remedy.) The applicant seeks to be put into the position she would have been in had she been covered by the award originally, after taking into account mitigating factors.

8. The responding party submits that it has not violated section 74. It states that the applicant’s circumstances were not caused by the ONA. When Ms. Murchison was laid off, the ONA representatives went over her options with her, as they did with the other eight nurses who had been laid off. The window to take the voluntary exit option expired at the end of December, 1997. In January, 1998, the application wished to rescind her resignation. At this point, it had been signed off, and only the employer could change it. The union could do nothing for her.

9. The ONA disputes the applicant’s assertion that the ONA never told her about the ongoing Pathe litigation before she chose to resign her employment.

10. On January 26, 1999, ONA representatives met with the applicant and they explained the ONA’s position with respect to the award. The ONA then wrote a follow-up letter to Ms. Murchison dated February 2, 1999 confirming the meeting and giving a detailed explanation of its actions in respect of the Pathe arbitration. The ONA explained, for example, that it had attempted to have the hospital employer “go back and do the program transfer over again”, but the employer declined to do so. The ONA was satisfied that the employer was entitled to take this position.

11. The ONA asserts that it did in fact seek a remedy for all nine nurses in the hearing before Mr. Pathe. It asserts that Mr. Pathe asked for a break-down as to where the nurses had “landed”. He then limited his award to the two nurses who did not have settled employment status.

12. ONA considered Mr. Pathe’s decision to the effect that there had been a “reconfiguration” under the H.R. Plan to be a huge victory which would apply across the province. The ONA considered that it had to preserve Mr. Pathe’s award for the benefit of all of its members, and therefore did not challenge it through judicial review.

13. The intervenor, Hotel-Dieu Grace Hospital submits that the issue in this application is what happened when the ONA gave its advice to the applicant in December, 1997. If she was advised of all her options and of the matter before Mr. Pathe, then she had all the facts before her and could make a decision. It submits that what happened before Mr. Pathe is not important. The ONA was entitled to rely upon her resignation. It submits that the applicant seeks to unscramble everything, now that she knows about the award.

Decision

14. I note at the outset that there is a dispute between the parties as to whether the applicant was informed of the existence of the on-going arbitration before Mr. Pathe prior to making her decision as to her employment status upon being laid off. For the purpose of deciding this application the Board will assume that the applicant was not so informed or was inadequately informed. There is therefore no need for viva voce evidence on the point.

15. The issue before the Board in this application is whether or not the union violated its duty of fair representation under section 74 of the Act. In Savage Shoes Ltd. [1983] OLRB Rep. Dec. 2067, the Board described a union’s duty under section 74 [then section 68] this way:

16. Section 68 requires that each trade union decision be grounded on a consideration of relevant matters, free from the influence of irrelevant considerations. The requirement that a trade union not act in a manner which is in bad faith protects the legitimate expectation that an individual employee’s bargaining agent will act honestly and free of any personal animosity toward him. The requirement that a trade union not act in a discriminatory manner protects against the making of distinctions between employees and groups of employees on bases which have no relevance to legitimate collective bargaining concerns. “Bad faith” and “discriminatory”, therefore, test for the presence, in the process or results of union decision-making, of factors which should not be present. “Arbitrary”, on the other hand, describes the absence in decision-making of those things which should be present. A decision will be arbitrary if it is not the result of a process of reasoning applied to relevant considerations. The duty not to act arbitrarily requires a trade union to turn its mind to the matter at hand.

17. The applicant had three options upon being laid off. She could remain on the recall list as a laid-off employee, she could bump another employee, or she could take a voluntary exit package. At the core of her complaint is the contention that she might have chosen differently had she known of the possibility that Mr. Pathe’s award might assist her. What she really wanted was to work in chronic care, or at least in a nursing position that she felt able to perform.

18. The applicant asserts that the ONA, in advising her as to her options, had a duty to let her know about the ongoing arbitration before Mr. Pathe so that she could, in essence, factor this into her considerations when making her choice. In my view, the ONA had no such obligation under section 74 of the Act.

19. At the time Ms. Murchison had to make her employment decision, the proceeding before Mr. Pathe was on-going and the result therefore unknown. If the ONA had advised the applicant that the result of the arbitration might help her, this information would have been highly speculative. There was no certainty of a positive outcome of the arbitration. Mr. Pathe was dealing with broad issues, going far beyond the concerns of laid-off nurses.

20. The ONA was not unreasonable in expecting Ms. Murchison to exercise her options on the basis of the known facts, and not on speculation. In my view, it would place an unfair and unrealistic burden upon the ONA to be expected to advise the applicant about the possibility that Mr. Pathe might make a ruling that might benefit her, depending upon her seniority. This situation is arguably distinguishable from one involving an arbitration under a local collective agreement, where a union might reasonably be expected to await the outcome of an arbitration concerning employee “A” before settling or disputing a similar grievance concerning employee “B”. The Pathe arbitration involved three employers, several unions and five distinct issues. Had Mr. Pathe sided with the hospitals, and had Ms. Murchison chosen to remain on lay-off, Ms. Murchison might then have claimed that the union had been remise in unreasonably raising her expectations about the arbitration.

21. The ONA did not control the timelines for the difficult choice that had to be made by the applicant. Had the applicant waited for Mr. Pathe’s award to be handed down, her other choices would have evaporated. The applicant had to make a decision. She bumped into a “short stay unit” position and then elected to take the voluntary exit option. Weighed against these two options (which provided the certainty of either a job or monetary compensation), the lay-off option would have required a significant gamble about the outcome of the arbitration before Mr. Pathe, i.e. that he would find in favour of the unions and provide the applicant with a remedy to her liking. One must wonder, therefore, whether being aware of the on-going arbitration would have been particularly instrumental to her decision-making at the time.

22. Moreover, there is insufficient evidence that the failure of the ONA to inform Ms. Murchison of the Pathe proceeding was discriminatory, arbitrary or motivated by bad faith. At best, it was an oversight. The Board’s jurisprudence is replete with decisions on section 74 that find that an applicant must show that the union was not merely guilty of a mistake or simple negligence but must show “gross negligence” by the trade union. The facts asserted by the applicant do not demonstrate gross negligence by the ONA.

23. The applicant also alleges that the ONA erroneously gave Mr. Pathe the impression that he need not address the circumstances of the applicant. The ONA states that Mr. Pathe was aware that other nurses were affected by the reconfiguration but he elected only to deal with the two who were unresolved. In my view, the ONA did not violate section 74 by advising Mr. Pathe that he need only deal with the two laid-off nurses. The ONA was entitled to rely upon the fact that Ms. Murchison had elected a voluntary exit option. It was not required by section 74 to ask Mr. Pathe for a remedy for Ms. Murchison when she had chosen to leave her employment.

24. After the award was handed down, the ONA asked the employer to extend the award to the other nurses. The employer declined to do so. The ONA and the other unions also asked Mr. Pathe to re-open his award and address other employees’ situations. Mr. Pathe refused to do so, having dealt with the situations that he was asked to deal with at the time.

25. By January, 1999, the ONA had resigned itself to accepting the award. It was not prepared to seek judicial review of the award because it had effectively “won” and was not prepared to risk that victory. The ONA’s duty of fair representation does not extend to filing an application for judicial review, and it would have been irresponsible to jeopardize an award which benefited the ONA membership as a whole.

26. Moreover, it was not discriminatory for the ONA to accept an award that only dealt with two nurses when there was a rational basis as to why only those two nurses were addressed. As the Board stated in The Municipality of Metropolitan Toronto, [1978], OLRB Rep. Feb. 143:

The prohibition against a union acting in a manner that is discriminatory functions to prevent a union from distinguishing among members in the bargaining unit unless there are good reasons for doing so. To avoid acting in a manner that is discriminatory, the duty requires, in general, that like situations be treated in a like manner and that neither particular favour nor disfavour befall any individual apart from the others unless justified by the circumstances. The duty does not make the union the guarantor for every aggrieved employee. Instead, the duty requires that the union consider the position of all its members and that it weigh the competing interests of minorities or individuals in arriving at its decisions. (emphasis added)

26. This application is not about the fairness of what “happened” to Ms. Murchison in respect of her loss of employment, her efforts to try out the “short stay” unit and her difficult decision to resign. The ONA itself wished for a more satisfactory outcome. Rather, it is about the representation provided to Ms. Murchison by the ONA and whether or not the ONA’s conduct was arbitrary, discriminatory or in bad faith.

27. In my view, in dealing with Mr. Pathe, the ONA was entitled to rely upon the fact that Ms. Murchison had resigned under the voluntary exit option. If the ONA failed to properly advise Ms. Murchison of the litigation before Mr. Pathe, there is insufficient evidence that this failure was motivated by bad faith or that it was arbitrary or discriminatory. There is no evidence of gross negligence, or that the ONA harboured ill-will toward the applicant or deliberately attempted to deceive her.

28. For the foregoing reasons, the Board finds that the responding party did not violate its duty under section 74 of the Act. The application is dismissed.

“Anthony Brown”

for the Board