0138-01-U Virginia Hills, Applicant v. Local 210 Staff Association, Responding Party v. Service Employees’ International Union, Local 210, Intervenor.
BEFORE: Anthony Brown, Vice-Chair.
APPEARANCES: Colin B. Johnston and Virginia Hills for the applicant; Roger Renaud and Cathy Carroll for the responding party; Jennifer Stephen for the intervenor.
DECISION OF THE BOARD; November 7, 2001
1This is an application pursuant to section 96 of the Labour Relations Act, 1995 alleging violation of section 74 of the Act.
2A consultation was held by the Board on August 15, 2001.
What this case is about
3The applicant alleges that the responding party (also referred to as “the Staff Association”) violated section 74 in two respects. First, she alleges that the Staff Association refused to continue with a grievance that was filed on her behalf in respect of a suspension from employment, workplace hostility, harassment and failure to fulfill a promise of continued employment. Secondly, she alleges that the Staff Association refused to file a grievance with the employer with respect to her permanent lay-off in March, 2001.
Facts
4The Staff Association is the exclusive bargaining agent of staff representatives and support staff employed by the intervenor SEIU Local 210 (“Local 210”). During much of the period relevant to this application, the intervenor was under trusteeship imposed by the Canadian Office of SEIU (“the Canadian Office”).
5The applicant, Virginia Hills, commenced employment with Local 210 as a staff representative on May 21, 1996. On November 15, 1999, Ms. Hills was laid off. She subsequently agreed to accept a severance package. The Staff Association was not involved in the negotiation of the severance package.
6Ms. Hills was subsequently hired by the Canadian Office as an International staff representative, effective February 23, 2000. The applicant alleges that the Canadian Office offered to rescind the November, 1999 lay-off and to recognize her seniority back to 1996. As outlined below, she argues that this recognition of seniority affects whether she should ultimately have been laid off by Local 210 in March, 2001. The letter of appointment to Ms. Hills from Sharleen Stewart, International Canadian Vice-President, dated March 30, 2000, states (inter alia):
This will confirm your appointment as International Representative starting on February 23, 2000. Your seniority/years of service at SEIU Local 210 will be recognized – the date of hire with SEIU Local 210 was May 21, 1996.
7A few months later, on or about May 8, 2000, the Canadian Office appointed Ms. Hills as Manager of Operations for Local 210. The letter of appointment to Ms. Hills from Sharleen Stewart, dated May 8, 2000, informed her that “your previous service with SEIU will be recognized for any benefit (including vacation entitlement)”. In a public announcement of the hiring, dated May 15, 2000, Sharleen Stewart referred to Ms. Hills’ appointment as a “permanent” position.
8Ms. Hills’ position as Manager of Operations lasted from May 8, 2000 to December 18, 2000. The applicant asserts that she was in fact the acting manager during this period. She states that she considered herself to be a member of the bargaining unit and to be accruing seniority, although the Board was not shown evidence that she was paying dues to the Staff Association. The Staff Association asserts that she was not a member of the bargaining unit during this period.
9On December 18, 2000, Ms. Hills ceased working as Manager of Operations and became a staff representative employed by Local 210. The Staff Association describes this as a “rehiring” which put Ms. Hills back into a bargaining unit position. The Staff Association calculates Ms. Hills’ seniority from this date of hire.
10To summarize the above, Ms. Hills began as an employee of Local 210 in 1996, was laid off and took a severance package in 1999, was appointed by SEIU Canadian Office as an International staff representative (February 23, 2000) and subsequently as a manager or acting manager (May to December, 2000), and finally was “rehired” as a staff representative by Local 210 on December 18, 2000.
11Ms. Hills had not gotten along well with the Administrator for Local 210, whose employment by Local 210 was interrupted during the trusteeship and who was eventually reinstated on December 18, 2000. On or about February 9, 2001, things came to a head between Ms. Hills and the Administrator and they apparently had some form of disagreement. This led to Ms. Hills being suspended from employment by Sharleen Stewart.
12On February 13, 2001, the Staff Association filed a grievance at Ms. Hills’ request, citing violation of the collective agreement, the Labour Relations Act and the Human Rights Code “by unjustly suspending my employment without pay and by being a party to malicious allegations against me. Further, the employer is in breach of promise of employment and maligning me both professionally and personally.” The applicant sought reinstatement and “a formal and public letter of apology and that I be made whole in every respect.”
13The following day, Ms. Hills met informally with Sharleen Stewart. Ms. Stewart agreed to rescind the suspension and to place the applicant on paid leave of absence. Ms. Hills’ other concerns were not resolved. No steward of the Staff Association was involved in arriving at this arrangement.
14On February 26, 2001, Ms. Hills contacted Roger Renaud, then Interim President of the Staff Association, to inquire into the status of her grievance. She alleges that he promised to get back to her but failed to do so. She asserts that she also left a telephone message for Mr. Renaud on March 2, 2001 but was not favoured with a reply.
15On March 2, 2001, a conference telephone call was held by Roger Renaud, Carole McDonald and Caroline DeMers (members of the Staff Association), and Cathy Carroll (Steward), during which Ms. Hills’ seniority was discussed in the context of the need to reduce staff at Local 210. (Ms. Hills was not a party to the call.) It is not disputed that, during the call, Mr. Renaud opined that Ms. Hills was a probationary employee and did not have seniority with Local 210.
16On March 8, 2001, Mr. Renaud informed the applicant by telephone that her grievance was with Sharleen Stewart and he was awaiting a response.
17On March 13, 2001, the applicant received a letter from the intervenor advising her that she was to be laid off on the basis of seniority. It was clear that this was to be a permanent lay-off, due to loss of membership by the Local.
18On March 14, 2001, Ms. Hills received the intervenor’s response to the February 13, 2001 grievance, directly from the intervenor. The response, dated March 13, 2001, stated that Ms. Hills had been paid for the period of the suspension, and had not provided information to substantiate her other allegations regarding workplace hostility, etc. The intervenor deemed the matter to be settled.
19On March 18, 2001, Ms. Hills wrote to Mr. Renaud and advised him that the “workplace hostility”, harassment and “promise of employment” issues in her grievance were still outstanding and also requested that the responding party file a grievance over her recent lay-off. She enclosed copies of correspondence for Mr. Renaud’s consideration. On March 26, 2001, Mr. Renaud informed Ms. Hills that he would be sending her a written response. On March 27, 2001, Ms. Hills again spoke with Mr. Renaud by telephone about when the “lay-off” grievance would be filed and Mr. Renaud informed her that there would be no lay-off grievance.
20Ms. Hills eventually received a written reply from Mr. Renaud. His letter (dated March 23, 2001) states as follows:
Dear Virginia:
I am in receipt of your letter dated March 18, 2001 referring to your grievance reply from the Employer dated March 13, 2001 and a grievance you want me to file (re: improper layoff) on your behalf to the Employer.
Also you left me a file with several letters referring to your employment from Sharleen Stewart. In reviewing this information, I must advise you that none of these letters pertain to you as a Union Representative with regard to seniority within the Bargaining Unit represented by the Association.
For the record, the Association had no dealings whatsoever with the Employer concerning you or your employment as a Deputy Trustee or Manager of Operations. Our records show your hire date in the Association as December 18, 2000. Furthermore, in accordance with our Collective Agreement – Seniority – Article 17-17.01 (b) states as follows:
Field staff shall not have any seniority, and shall be considered as a probationary employee, until they have worked for a period of one (1) year from date of hire.
Therefore, the Association finds no merit in filing a grievance of improper layoff on your behalf with the Employer.
Secondly, in reference to your grievance reply dated March 13, 2001 from the Employer. I have not received any information on the three (3) points you make reference to allegations, [sic] to substantiate your claim to the Employer, for a valid response from the Association. (bolding and underlining in original)
21Between the date that Ms. Hills requested that the Staff Association file the lay-off grievance and the date that the above-referenced letter was sent, the Staff Association did not meet with Ms. Hills to discuss her assertions that she had seniority under the collective agreement or the import, if any, of the copies of correspondence that Ms. Hills had forwarded to Mr. Renaud.
Submissions
22As indicated above, the applicant has two main complaints. The first is that the responding party did not proceed further with her grievance of February 13, 2001 with respect to workplace hostility, harassment, and a promise of employment. (The applicant is also concerned that her personnel file still indicates that she was suspended.)
23The applicant’s second complaint is that the Staff Association refused to file a grievance with respect to her permanent lay-off. The applicant cites various sections of the applicable collective agreement (addressed below) that she claims were violated by the employer when she was laid off. She submits that the responding party’s assessment of her seniority and her status as a probationary employee are incorrect, and that the responding party never turned its mind to the possibility that she might have had sufficient seniority to protect her from lay-off. The applicant asserts that the responding party arbitrarily failed to give proper consideration to the materials that she forwarded to Mr. Renaud on March 18, 2001 and failed to properly investigate the merits of her request to file a grievance. She claims seniority back to 1996, including the time spent as Manager of Operations.
24The applicant further asserts that the responding party assisted other persons whose employment was terminated, namely Mr. Nick Sajatovich and the aforementioned Administrator of Local 210. In addition, the applicant asserts that the responding party exhibited bad faith when it permitted Cathy Carroll to be involved in the conference call when she was serving as a union steward for the Staff Association and as interim administrator of the intervenor at the same time.
25The applicant referred the Board to decisions in Ivan Cvicek, [1995] OLRB Rep. Feb. 105, Swing Stage Ltd., [1983] OLRB Rep. Nov. 1920 and Marcia Robertson, [1990] OLRB Rep. Aug. 886.
26The applicant seeks a declaration that the responding party violated section 74 of the Act, an order that her grievances be referred to arbitration, and an order that she may choose her own legal representative for the arbitration (or approve the representative chosen by the Staff Association).
27The responding party submits, in respect of the first grievance, that the “suspension” issue was resolved when the suspension was converted to a paid leave of absence. It asserts that the applicant failed to provide any information to substantiate the other allegations in the grievance, giving it no basis to proceed further.
28In respect of the lay-off, the responding party asserts that the applicant was credited with her service from when she was rehired by Local 210, in December, 2000. She was considered to be probationary. Moreover, having taken a severance package in 1999, the applicant would not have seniority from 1996 to 1999. The Staff Association also asserts that she did not accrue seniority under the collective agreement during the time spent as a manager or as an International staff representative employed by the SEIU Canadian Office. The Staff Association and Local 210 are not bound by representations allegedly made by the Canadian Office with respect to her seniority or length of service. The Staff Association took all of these considerations into account, decided that the applicant’s proposed lay off grievance lacked sufficient merit and declined to file a grievance on her behalf.
29The responding party submits that its assistance to other individuals arose out of circumstances different from those pertaining to the applicant. It states further that some of its representatives, such as the aforementioned Cathy Carroll, were called upon to perform a managing role during the turmoil facing Local 210 at the time. It asserts that Ms. Carroll did not have the authority to hire or fire and was not serving in conflicting positions.
30The intervenor agrees with the responding party that the applicant’s severance package in 1999 waived her seniority to that point. It submits further that when the applicant was hired as an International representative by the SEIU Canadian Office in February, 2000, her seniority was recognized by the Canadian Office while she was on its payroll, even though she was covered neither by the collective agreement that applied to Canadian Office staff, nor by the Local 210 collective agreement. The intervenor states that it settled the applicant’s first grievance with her, and she never provided details of the other allegations raised in that grievance.
31The responding party and intervenor submit that the application should be dismissed.
Decision
32The issue in this application is whether the responding party violated section 74 of the Act. Section 74 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.
33In Marcia Robertson (cited above), the Board considered a case in which a union failed to take a discharge grievance to arbitration. The Board reviewed the general principles that are applicable under section 74 to a union’s handling of grievances. The Board stated:
Section 68 of the Act requires that the actions of a trade union in representing the employees for whom it is the exclusive bargaining agent be free of any subjective ill will. Also, the actions of a trade union can be arbitrary, and therefore contrary to section 68, without any ill will. The mere fact that a trade union has refused to take a grievance to arbitration does not necessarily establish a breach of the duty of fair representation imposed by section 68. In that respect, the Supreme Court of Canada, in Canadian Merchant Service Guild v. Guy Gagnon, 1984 CanLII 18 (SCC), 1 S.C.R. 509, reviewed the principles that apply to a trade union’s duty to represent employees with respect to a grievance as follows:
The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.
When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.
This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other.
The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.
The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.
I find this statement of principle to be a useful general guideline against which the conduct of a trade union may be measured. It is also consistent with the Board’s jurisprudence in this area. In that respect, it is now trite law that a trade union is not required to take an employee’s grievance to arbitration merely because the employee wants it to.
A review of the Board’s jurisprudence reveals that honest mistakes, innocent misunderstandings, simple negligence, or errors in judgement will not of themselves, constitute arbitrary conduct within the meaning of section 68. Words like “implausible”, “so reckless as to be unworthy of protection”, “unreasonable”, “capricious”, “grossly negligent”, and “demonstrative of a non-caring attitude” have been used to describe conduct which is arbitrary within the meaning of section 68 (see Consumers Glass Co. Ltd., [1979] OLRB Rep. Sept. 861; ITE Industries, [1980] OLRB Rep. July 1001; North York General Hospital, [1982] OLRB Rep. Aug. 1190; Seagram Corporation Ltd., [1982] OLRB Rep. Oct. 1571; Cryovac, Division of W.R. Grace and Co. Ltd., [1983] OLRB Rep. June 886; Smith & Stone (1982) Inc., [1984] OLRB Rep. Nov. 1609; Howard J. Howes, [1987] OLRB Rep. Jan. 55; George Xerri, [1987] OLRB Rep. March 444, among others). Such strong words may be applicable to the more obvious cases but may not accurately describe the entire spectrum of conduct which might be arbitrary. As the jurisprudence also illustrates, what will constitute arbitrary conduct will depend on the circumstances.
In that respect, complaints that a trade union has acted in a manner contrary to section 68 of the Act often relate to the manner in which the trade union has handled one or more grievances of the complainant. In such complaints, the Board does not act as an arbitrator. The Board’s jurisdiction is to adjudicate the complaint under the Act and is quite different from the jurisdiction of a Board of Arbitration constituted to hear a grievance. However, some of the evidence which would be relevant to the arbitration of a grievance will also inevitably be relevant to the proper assessment of a trade union’s conduct with respect to the grievance, and in some cases (see, for example, Angelo Ritrovato, [1986] OLRB Rep. Oct. 1401, to the assessment of the appropriate remedy where a breach of section 68 is found. Also relevant to the Board’s considerations in such complaints are the importance of the particular grievance(s) to the employee, the implications of the grievance(s) for the rest of the bargaining unit and the trade union, the degree of consideration given to the grievance(s) by the trade union, and the factors, both relevant and irrelevant, considered by the trade union in deciding to not deliver a grievance or, having delivered one, to not take it to arbitration. The experience and qualifications of the trade union representatives involved has also often been cited as a factor which the Board will consider (see, for example, Ford Motor Co. Ltd. [1973] OLRB Rep. Oct. 549, at paragraph 40: Canadian Union of Public Employees Local 1000 – Ontario Hydro Employees Union (sometimes cited as Walter Prinesdomu), [1975] OLRB Rep. May 444, at paragraph 26). I agree that it is appropriate to consider the experience and training of the trade union representatives involved in order to keep the matter in its proper perspective. But that does not mean that it is appropriate to apply a subjective standard in fair representation matters. The standard to be applied is an objective one. Trade unions have an obligation to fairly represent employees for whom they have bargaining rights. The inexperience and lack of training of a trade union’s representatives may explain their conduct but it will not necessarily excuse it.
In this case, the complainant’s grievances were with respect to the termination of her employment. As such they were of the utmost importance to her. Where it is possible that relief could be obtained at arbitration, a trade union which has failed to process a discharge grievance to arbitration bears the burden of accounting for its decision (Swing Stage Ltd., [1983] OLRB Rep. Nov. 1920; Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067; Howard J. Howes, supra).
34With these general principles in mind (and recognizing that there was no “discharge” of the applicant herein), I shall deal first with the responding party’s handling of the applicant’s grievance dated February 13, 2001. It is not disputed that the applicant and the intervenor (represented by Sharleen Stewart) met and discussed this grievance without participation by a steward or officer of the Staff Association. Ms. Hills and Ms. Stewart were able to resolve the “suspension” issue to Ms. Hills’ satisfaction (although a concern about the record in her personnel file still remains). Both the intervenor and responding party state that the applicant did not provide them with details about the complaints concerning workplace hostility, harassment or the promise of employment.
35The complaints about hostility and harassment appear to relate to Ms. Hills’ relations with co-workers, and particularly with the aforementioned Administrator of Local 210. The applicant did not satisfy the Board that she had provided the Staff Association with sufficient information to explain how the intervenor had violated the collective agreement. The Staff Association needed more to go on than mere accusations. Even if it were conceded that the Staff Association might have been more vigilant in investigating her allegations, there is insufficient evidence that its actions were arbitrary, discriminatory or motivated by bad faith. Not unreasonably, the Staff Association considered that the crux of the matter, i.e. the suspension, had been resolved privately between the employer and Ms. Hills. Indeed, by working out her own resolution with Ms. Stewart, the applicant may have prejudiced the Staff Association’s ability to press forward with the grievance as a negotiable package. Moreover, in respect of the promise of continued employment, if any such promise was made by the intervenor, it is not clear how the alleged breach of that promise would be grievable under the collective agreement or why the Staff Association should be concerned about enforcing such a contract. Under all the circumstances, the Board is not satisfied that the responding party violated section 74 by refusing to proceed further with the grievance.
36I turn now to the second complaint, namely the refusal of the responding party to file a grievance in respect of the lay-off in March, 2001. The core issue is whether, prior to making its refusal, the Staff Association gave adequate consideration to the merits of the proposed grievance, keeping in mind the seriousness of the situation for the applicant.
37The Board’s role is not to determine whether the applicant’s probationary status (and thus seniority) was correctly determined. The Board’s concern lies in what it finds to be a failure of the responding party to make a genuine attempt to appraise and evaluate the arguments put forth by the applicant, to discuss the matter fully with her, and to explore the matter with the intervenor.
38Certain factors clouded the issue of the applicant’s seniority. Did she, for example, accrue seniority within Local 210 while serving as a manager or as an International staff representative? What was the effect of promises made by the Canadian Office with respect to her length of service and seniority? In my view, Ms. Hills provided documentation to Mr. Renaud that should have twigged him to the need for a complete and careful investigation.
39The collective agreement itself raises some fuel for discussion about Ms. Hill’s seniority. For example, the second paragraph of the recognition clause, Article 4.01, states:
It is understood an employee of Local 210 shall include an employee who as of January 1, 2000 was working fully or partially on behalf of Local 210 on a regular and recurring basis and who’s (sic) salary and benefits may be fully or partially provided for by the international union.
This provision may not apply to Ms. Hills because she was not hired as an International staff representative until February, 2000. Nevertheless, Ms. Hills asserts that the Canadian Office promised her credit for service retroactive to 1996.
40The collective agreement also envisages situations in which members may perform supervisory functions. Article 17.02, on seniority, states:
Seniority shall be maintained and accumulated during:
(a) an absence due to lay-off, sickness or accident
(b) authorized leave of absence
(c) absence due to pregnancy, parental, or adoption leave
(d) the period of time spent as an excluded person while performing supervisory functions, as per Article 4.01 and Article 3.02(c)
Article 3.02(c) states :
It is further agreed that those members of the Association currently excluded by reason of performing supervisory functions shall continue to pay dues as prescribed by Article 3.02(a).
41Although Mr. Renaud was aware of the nature of the assertions made by Ms. Hills about her seniority, it is not apparent to the Board that he gave serious consideration to them. Indeed, it appears from Mr. Renaud’s comments during the aforementioned conference call, that he had already made up his mind, even before the lay-off, that Ms. Hills had no seniority because she was probationary.
42Mr. Renaud did not meet with Ms. Hills to discuss the documents that she sent to him (including correspondence from Sharleen Stewart), or to explain to her why the articles that she cited from the collective agreement were not applicable. Despite the vital importance of the matter to the applicant, he did not afford her an opportunity to grieve and thus require the intervenor to explain the basis for her lay-off. He did not arrange even an informal meeting between the applicant, the intervenor and the Staff Association in order for them to clarify their positions.
43The Board finds that Mr. Renaud’s cursory investigation and assessment of the merits of Ms. Hills’ proposed grievance constituted arbitrary conduct within the meaning of section 74. Accordingly, the Board finds that the Staff Association violated its duty under section 74 of the Act. In fairness, it should be recalled that Mr. Renaud was trying to fulfill his function as Interim Association President in rather extraordinary times for Local 210. Although this does not excuse the violation of section 74, it may help to explain it.
44Having found that the responding party’s conduct was arbitrary, it is not necessary for the Board to decide if the responding party’s conduct was also discriminatory or motivated by bad faith.
45For the above reasons, I find that the responding party violated section 74 of the Act. With regard to the appropriate remedy for this violation, the Board considers that Ms. Hills is entitled to be put, as nearly as reasonably possible, into the position she would have been in had the violation not occurred. Therefore, the Staff Association is directed to investigate Ms. Hills’ proposed grievance thoroughly and fairly, in order to determine the merits of filing a grievance on her behalf. It shall give Ms. Hills an opportunity to offer her view of the matter prior to making its decision. The Staff Association is, of course, entitled to decide whether to grieve on Ms. Hills’ behalf after making a proper investigation. It shall explain its decision to Ms. Hills. Although the Staff Association is not obligated under section 74 to seek a legal opinion, it may wish to do so as part of its investigation. If the Staff Association decides to file a grievance, the employer is directed to waive all applicable time limits in the collective agreement to facilitate such filing.
“Anthony Brown”
for the Board