1545-00-U Krishna R. Nankissoor, Applicant v. The Ontario Secondary School Teachers’ Federation, Responding Party v. Toronto District School Board, Intervenor.
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Winston G. Mattis and Krishna Nankissoor for the applicant; Maurice A. Green, Bob Aitken and Bruce McWhinnie for the responding party; John W. May for the intervenor.
DECISION OF THE BOARD; November 1, 2001
The style of cause is hereby amended to reflect the correct name of the responding party: “The Ontario Secondary School Teachers’ Federation” (the “Federation”).
This is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) in which it is alleged that the responding party violated section 74 of the Act.
The Board held a consultation in Toronto on May 17, 2001 to consider this application.
The applicant is a teacher in the Toronto District School Board (the “TDSB”) system. The Federation represents the applicant in his employment relations with the TDSB. In essence, the applicant alleges that the Federation did not represent the applicant appropriately in dealing with student threats.
An assessment of the relevant facts in this application is complicated by the way in which the facts have been alleged. The applicant filed this application on August 24, 2000. That application was entirely concerned with the actions of students in the applicant’s class. There were no allegations regarding the conduct of the Federation. Indeed, the Federation is not even mentioned in connection with these incidents.
In view of the obvious deficiencies in the application, the Board, on its own motion, required the applicant to file a concise statement of material facts, which the applicant relies on in asserting that the Federation acted contrary to section 74 of the Act.
By letter dated October 3, 2000, the applicant complied with the Board’s request. He made certain allegations regarding the Federation’s conduct, which are more fully set out below.
By letter dated December 5, 2000, after the Federation filed its response to this application, the applicant made further allegations. The applicant asserted that the TDSB violated section 74 of the Act because it required him to work in a poisoned work environment. The applicant set out numerous facts in support of his contention, but none of these deal with the conduct of the Federation. Since an employer cannot violate section 74 of the Act and the allegations do not make out a violation of any other section of the Act the application (to the extent there is a valid application) vis-a-vis the TDSB is hereby dismissed.
In another letter dated December 5, 2000, the applicant replied to the allegations set out in the Federation’s response. These allegations are also discussed in greater detail below.
On May 3, 2001, the applicant, through counsel filed a “Notice of Constitutional Question”. This contained another statement of facts relied on by the applicant.
Finally, at the consultation in this matter, the applicant made additional assertions of facts and claims for relief. The applicant sought leave of the Board to permit him to rely on the additional facts. Counsel for the applicant argued that these allegations should be considered by the Board because they could be drawn from general statements made in the pleadings. The applicant argued that he is a layperson and should be granted leeway.
The Board did not permit the applicant to rely on the further allegations. Even if some leeway was to be given to unrepresented applicants, the fact is that in this case the applicant has had counsel since at least March 2001 and there had been no notification to the other parties of the new allegations prior to the consultation date. Indeed, even at the consultation, the new allegations were not in writing as is required by the Board’s Rules. The Board also notes that proper allegations and identification of relevant facts are perhaps more important in a complaint under section 74 of the Act where a consultation is held rather than a complaint under a section of the Act which will be determined by a full hearing. The Board requires the pleadings to set the parameters of the consultation. Since the parties will generally not call witnesses, they need to gather all information upon which they wish to rely prior to the consultation. If the parties were permitted, except in unusual cases, to accept new allegations at the consultation, the effectiveness of the consultation process as an efficient way to resolve disputes might well be compromised.
The facts that are alleged in the way required by the Board’s Rules are as follows.
The applicant was a mathematics teacher at Downsview Secondary School, which is in the jurisdiction of the TDSB and is one of the largest schools in Ontario. The applicant is from Trinidad and Tobago and is of East Asian heritage. On February 22, 2000, there was a significant disruption in the applicant’s classroom involving a number of students, who, among other things, insulted and physically threatened the applicant. All parties agree that these events occurred essentially as alleged.
The applicant complained to the school’s administration and anticipated that the offending students would quickly be removed from his classroom and disciplined. However, the applicant alleges that the school’s administration was slow to react. The students continued to threaten the applicant and and to make racist remarks. It was not until two days later that a meeting was set up to deal with the applicant’s concerns. The applicant alleges that the vice principal was quite unsupportive and did not take his concerns seriously. Nevertheless the administration decided to send the most offensive of the students to study hall instead of to the applicant’s math class.
On February 25 someone let off a “stink bomb” in the applicant’s classroom. Naturally, the applicant was concerned for his safety. In addition he heard rumours that students were planning to harm him or blow up his car. The applicant and the vice-principal ordered the students to go to Study Hall, thereby removing them from the applicant’s classroom.
On February 28 the applicant contacted his local union representative. The applicant was directed to the Federation’s local office and eventually contacted Bob Aitken.
Mr. Aitken arranged a meeting with the administration for March 10, 2000. However, when Mr. Aitken arrived for the meeting, he was advised that it had been cancelled. The applicant called Mr. Aitken on March 22, 2000 to urge that another meeting be rescheduled but was unable to reach him. Mr. Aitken and the applicant then exchanged phone messages for a period of time. Regrettably, for a variety of reasons the meeting was not rescheduled until May.
On May 17 the meeting was held. By that time the offending students had all been removed from the applicant’s classroom. The school’s administration explained its delay in removing the students by advising the applicant and the Federation that the students in question had made complaints about the applicant’s conduct. These complaints were investigated and found to be groundless. The applicant believed that the administration treated him badly. He believed that his word should have been taken seriously and that the school should not have investigated the students’ allegations as they were known underachievers. He was of the view that his ability, authority and position as a teacher had been undermined by the administration’s handling of the matter.
Following the May 17 meeting, the applicant briefly raised with Mr. Aitken the details of several incidents that occurred in the past. These instances are described in great detail in some of the supplements to the applicant’s application. The first set of circumstances (the “cricket complaint”) involved the denial of funds to support a cricket team at the school. South Asian students came to the applicant and complained that they were being treated less favourably than black students and that the denial of a cricket team was an example of this. The applicant told them to speak to the principal about their concerns, but they told him that they were afraid to do so. In the second set of circumstances (the “blinds complaint”) the principal offered to install blinds in the windows of another teacher but did not offer to do so for the applicant. The applicant believes that this is an example of him “being singled out and treated differently than others in the same unit”. Similarly, the applicant complains about the fact that he was required to have others “sign off” purchases for his program while other teachers did not have this burden (the “sign off complaints).
The applicant also complains about an incident in the spring of 1998 in which a gym teacher yelled at the applicant in front of students (the “gym incident). (It is unclear whether the applicant believes the gym teacher’s actions were racially motivated since his application also states that the gym teacher has a history of this conduct with respect to new and supply teachers). The applicant complained of this conduct to the administration but no action was taken. The final incident involved another teacher who “yelled” at the applicant and commented “I can’t work with people like you”. The applicant took this to be a racially motivated comment and reported it to the administration. A meeting was held but the applicant was not satisfied. The applicant did not report this to the Federation but now wishes he would have. He did not want to cause trouble at the time.
The TDSB and the Federation did not respond to these allegations on their merits. They assert that these allegations are made out of time.
There is a difference between the parties about whether the Federation did anything about these allegations. The Federation alleges that Mr. Aitken advised the applicant that he could apply for Federation mediation, take the matter up with the employer, or file a human rights complaint. The applicant alleges that Mr. Aitken made no suggestions. The applicant alleges that he telephoned the Federation on several occasions following the May meeting, but they did not return his phone calls. He did not write the Federation or try to call someone else other than Mr. Aitken. He attempted to file a complaint with the Human Rights Commission (the “Commission”) but the Commission rejected it because he was represented by a union.
After these incidents the applicant resigned from his position at the school. He was tired of working in what he calls a poisoned work environment for which he sought counselling. He did not speak with anyone from the Federation prior to resigning.
Decision
Section 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.
The Board has frequently described the standard of conduct required of trade unions under section 74. The following excerpt from Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067 discusses the test:
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.
Although this duty is imposed on the trade union as an institution, the trade union observes or breaches the duty through the actions of its officials or decision-making bodies. Especially where an impugned decision is that of single official, there are obvious difficulties in reviewing the process by which that decision was made. Only the union official knows what his thought processes were and what facts and circumstances he actually took into account in the course of arriving at his decision. His ability to recall and articulate what took place in his mind may be influenced, sub-consciously or otherwise, by self-interest and by the knowledge that he is the only witness to these crucial mental events.
With these thinking process hidden from direct examination, a review of the behaviour of a trade union official must necessarily focus on what he did and the context in which he did it, as well as on what he says he thought. The result of the decision-making process is weighed against the facts and circumstances on which it is said to have operated. If the resulting interpretation of facts or of a collective agreement is found by the Board to be "reasonable" (Clifford Renaud, [1976] OLRB Rep. Jan. 967, ¶22; Jay Sussman, [1976] OLRB Rep. July 349 ¶11; I;T.E. Industries Limited [1980] OLRB Rep. July 1001, ¶20), "not unreasonable" (Ivan Pletikos, [1977] OLRB Rep. November 776, ¶13), "not open to challenge" (Oil, Chemical & Automatic Workers International Union and its Local 9-698, [1972] OLRB May 521, ¶3), or at least "not implausible" (Canadian Union of Public Employees Local 1000 - Ontario Hydro Employees Union, [1975] May 444, ¶32), then the Board is inclined to find that the decision is not arbitrary. Where the decision maker, on the other hand, misapprehends facts and circumstances which the Board considers "patent" and arrives at an "almost perverse" understanding of the facts and circumstances, the Board will conclude that union effectively barred itself from "directing its mind to the real question", and that in so doing it has acted in an arbitrary fashion: The Corporation of the County of Hastings, [1976] OLRB Rep. November 1072, ¶22. Where it is difficult to see a rational pathway between the facts and circumstances said to have been taken into account and the interests said to have been balanced on the one hand, and the result on the other, then there arises a rebuttable presumption that the decision was arbitrary.
The required thought process may involve more than the simple application of logic to the information then at hand. Decision making may be arbitrary if, before making its decision, the union fails to identify and seek out sources of further relevant information which should be taken into account in making that decision: Canadian Union of Public Employees Local 2327, [1981] OLRB Rep. June 523, ¶30; Swing Stage Ltd., re Alvin Plummer, [1983] OLRB Rep. Nov. 1920.
(See also Catharine Syme, [1983] OLRB Rep. May 775; George Lazenkas, [19831 OLRB Rep. Jan. 83; General Motors of Canada Limited, [1982] OLRB Rep. Feb. 181; Bedard Girard Ontario, [1981] OLRB Rep. Oct. 1338; and Amalgamated Transit Union, [1973] OLRB Rep. March 125.
The applicant’s first argument is that the Board’s test is too low and is therefore discriminatory. The applicant filed a “Notice of Constitutional Question” to assert that the Board’s standard is so low that it violates the Charter of Rights and Freedoms. The following statements in the applicants “Notice of Constitutional Question” set out the applicant’s argument:
The Ontario Labour Relations Board jurisprudence makes it clear that a union is not in breach of its statutory duty under s. 74 of the Labour Relations Act so long as it turns its mind to the grievance and acts in a manner consistent with its statutory mandate.
The threshold to assess union liability under s. 74 is undoubtedly low, and constitutionally invalid for cases the substance of which pertain to unlawful discrimination.
Whether a union is required to do more than merely “consider” the merits of a grievance the substance of which is an allegation of unlawful discrimination is the subject of this constitutional challenge.
The Applicant’s position is that a union, in order to be in compliance with its duty under the Labour Relations Act and the Ontario Human Rights Code, is required to do more than “consider” the merits of a grievance the substance of which is unlawful discrimination.
In this regard, the Board rule of law permits a union to engage in conduct that either encourages or sanctions discrimination without attracting liability under s. 74 of the Labour Relations Act. In this sense the Board’s common law rule is unconstitutional and the required threshold must be adjusted to be consistent with the provisions of the provisions of s. 15(1) of the Charter of Rights & Freedoms.
When a union fails to process a grievance respecting discrimination and in so doing sanctions an employer’s discriminatory conduct, its failure or omission may become the subject of a section 74 application under the Labour Relations Act.
In effect, the Board’s common law rule sanctions discriminatory conduct. Section 15(1) of the Canadian Charter of Rights & Freedoms prohibits discrimination on the enumerated and analogous grounds.
Democratic and constitutional principles dictate that every individual in society be treated with dignity and respect. Common law rules must not be used to reverse advances made by vulnerable groups. The Charter is to be used to ensure that powerful groups do not hide behind established common law rules to perpetuate inequality either by positive acts or omissions.
In result, therefore, the Labour Relations Board’s common law rule becomes an instrument through which unlawful discrimination is sanctioned contrary to s. 15(1) of the Canadian Charter of Rights & Freedoms.
As can be seen, the applicant’s argument in this regard is based on the Board’s alleged “low” threshold to “assess union liability” under the Act. The argument is based on the assertion that, in the applicant’s view, the Board only requires trade unions to “consider” a grievor’s grievance.
The Board has used the word “consider” or “directing its mind to the real question” in connection with a union’s obligation under section 74 of the Act because it is the opposite of “arbitrary”, the word found in section 74. The word “consider” is not a word which denotes a low standard as asserted by the applicant. The Board has held that when a trade union “considers” a complaint, it must investigate it (see: Swing Stage Ltd., [1983] OLRB Rep. Nov. 1920), it must put its mind the merits of it (see: Savage Shoes Ltd., (supra) and it must determine whether to file a grievance and ultimately take it to arbitration having regard to all of the factors (see: J. M. Schneider Inc., [1984] OLRB Rep. March 467). It is not a low standard at all: the Board’s test does exactly what the statute requires. It determines whether a trade union has acted arbitrarily.
I do not accept that the Board’s test is discriminatory. If an employee alleges that he/she is the subject of discrimination, the obligation imposed on the trade union by section 74 as described by the Board’s jurisprudence, is to investigate the merits of the employee’s complaint, determine if it is truthful and could be found to violate the collective agreement and then be the subject of a successful grievance and based on these factors or any other relevant factors determine whether to take the grievance to arbitration. In this regard a grievance about discrimination is no different from any other grievance. Indeed it is difficult to imagine how the Board’s test could be different or, indeed, what else a trade union ought to do with a grievance about discrimination.
I find, therefore, the test established by the Board’s jurisprudence on section 74 of the Act does not contravene the Charter of Rights and Freedom.
Turning to the merits of this application, I am concerned by the attitude and conduct of the Federation in the handling of the applicant’s situation. The following statements from the Federation’s response highlight these concerns:
On February 28, 2000, the complainant contacted the District 12 office by phone and spoke to Mr. Aitken. The complainant described the general nature of the incident with one or more of the students. From the preliminary description of the incident it seemed apparent to Mr. Aitkin that the administration of the school should impose some form of discipline upon the students. The complainant suggested that the administration had mishandled the situation. However, there was not any immediate indication that the matter raised the potential for any grievance as the complainant did not suggest that any action had been taken against him by the employer (principal).
Eventually a meeting was again arranged and Mr. Aitken met with the complainant on May 9, 2000 at Downsiew Secondary School and reviewed the details of the incident with the students. There was no evidence at that time that the employer was taking any disciplinary action against the member.
As a result of the meeting with the principal Mr. Aitken concluded that there was no action by the District which was required as no discipline of any kind had been imposed upon the complainant, and thus there was no possible breach of the collective agreement. Mr. Aitken encountered some problems when trying to explain the latter reality to the complainant.
The respondent submits that the complaint discloses no prima facie cast to support a breach of S. 74, as there is no evidence that the employer has taken any disciplinary or other action against the complainant as a result of the events with the students. Since none was taken, then there could be no breach of duty to represent. No other provision of the collective agreement is raised by the complaint and thus no duty can be raised. This complaint should be summarily dismissed.
In my view it is apparent that in the circumstances of this case the Federation misapprehended its role as the applicant’s legal representative. The Federation’s representational role is not limited to situations in which the Board disciplined the applicant as is suggested by the Federation’s response and the position it initially took at the consultation. Under section 74 of the Act the Federation must represent its members in all respects in relation to the collective agreement. In this case the applicant complained of something which if proven would be a violation of the collective agreement provisions which provide for a safe working environment consistent with the Occupational Health And Safety Act. The applicant told the Federation that he had been threatened by his students and that the school administration had “mishandled” the situation. It must have been or should have been apparent that such an allegation raised a health and safety issue and the possibility that the collective agreement was violated and a grievance could be filed.
The Federation’s understanding of its representational role appears to have affected the way it dealt with the applicant’s concerns. The Federation acted as if it had no responsibility regarding the applicant’s concerns or that his concerns were not serious. To a very real degree, the applicant’s problems were resolved without the Federation’s assistance. The applicant had a very serious problem. It was a problem which deserved the Federation’s immediate attention, not a meeting scheduled more than two months after the incident. If Mr. Aitken was unable to attend an earlier meeting because of teaching obligations or otherwise, another representative should have been assigned to assist the applicant. It is also not appropriate for the Federation to state that the applicant never raised a health and safety issue. The fact that the applicant’s health and safety was at stake was or should have been obvious to the Federation. Threats of physical harm are obvious health and safety concerns.
Despite the Federation’s conduct in handling the applicant’s complaints, I am satisfied that the Federation did not violate section 74 of the Act. The applicant requested the Federation’s assistance in dealing with troublesome students. However, that request came six days after the initial incident, after the administration had largely dealt appropriately, albeit after some delay with the students. The application came to the Federation for support in dealing with the administration. The Federation then arranged a meeting for March 10. Even had there been a meeting on the date which was originally scheduled it is unclear what more the Federation could have done to improve the applicant’s immediate situation. By this time the offending students had been removed from the applicant’s classroom. The immediate situation had been resolved.
It was apparent that by the time of the consultation that the applicant’s main concern was not his treatment at the hands of the students and the way the Federation had handled these concerns. The applicant’s main complaint is that he feels that he is the victim of systemic discrimination at the hands of the school’s administration and its students, aided and abetted (through inaction) by the Federation. He alleges that he told the Federation, through Mr. Aitken, of his concerns regarding systemic discrimination but it did nothing to assist him.
Assuming, without finding, the applicant’s allegations are correct, the difficulty with this aspect of the applicant’s complaint is the fact that he waited so long to advise the Federation of the incidents which give rise to his concerns. The cricket complaint occurred in May 1999 at the earliest, the blinds complaint took place in September, 1998 and the gym incident took place in the spring of 1998. At the time these incidents occurred the applicant chose not to seek the Federation’s assistance. By the time the Federation learned of the applicant’s concerns it was simply too late to do anything about these issues. There were no systemic discrimination issues which were present for the Federation to resolve.
Even if I were to find that the Federation had violated section 74 of the Act the applicant is without a meaningful remedy because he has resigned from his employment with the school. The applicant made the decision to resign on his own without consulting or notifying the Federation. Under these circumstances the Federation cannot be responsible or liable for damages caused by his resignation.
For all of the foregoing reasons the application is dismissed.
“Brian McLean”
for the Board