1454-01-U A.W. Gladman, Applicant v. Ontario Secondary School Teachers’ Federation, District 13, Responding Party v. Durham District School Board, Intervenor.

BEFORE: Anthony Brown, Vice-Chair.

DECISION OF THE BOARD; December 14, 2001

1. This is an application under section 96 of the Labour Relations Act, 1995 alleging violation of section 74 of the Act.

2. Section 74 states as follows:

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 assertions of the applicant and responding party were summarized by the Board in its decision dated October 5, 2001, at paragraphs 3 and 4, as follows:

5. The applicant asserts that he was wrongfully dismissed by the Durham District School Board for questioning the integrity of the Board. He seeks reinstatement as a “supply teacher qualified to apply for full time employment”. His application enumerates a series of complaints against the union, including that the union failed to inform him how to lodge complaints against his employer about the series of events that eventually led to his dismissal; failed to inform him about how to report child abuse; failed to make certain objections to the employer about the way that the employer was treating him; excluded him from meetings; failed to keep minutes of meetings; and failed to give him adequate access to the union’s legal counsel. He accuses the union of behaviour that “smacks of a distinct lack of arbitrary measures and ‘reckless disregard’ and ‘bad faith’”.

6. The responding party (“the union” or “OSSTF”) has filed a detailed response setting out its actions on behalf of the applicant and enclosing supporting documentation. The union asserts, inter alia, that it filed a grievance pertaining to the applicant’s dismissal from employment and that it did not bring the applicant’s other concerns to the attention of the employer for the simple reason that it was unaware of the difficulties that the applicant was encountering. It asserts that it was entitled to meet with the employer to discuss the applicant’s grievance in the absence of the applicant, and had no duty to provide the applicant with access to its legal counsel. The union’s response also recounts in detail how the union dealt with the applicant’s dismissal grievance and why it decided not to proceed with the matter to arbitration. It mentions, for example, the applicant’s extraordinary disciplinary record and the fact that the applicant had been banned from working as a supply teacher in several schools because of his unsatisfactory or inappropriate conduct. The union asserts that the application fails to disclose a prima facie case for violation of section 74, and also asserts that the application is untimely.

7. In view of the fact that the application lacked particularity about how the union was alleged to have violated section 74, the Board, on October 5, 2001, directed the applicant to file further particulars in respect of his allegations against the union. He was directed to specify whether he agrees or disagrees with the assertions of the union in its response. The parties were advised that the Board may dispose of an application pursuant to section 96 without a consultation or hearing on the basis that it does not disclose a prima facie case, or is untimely. The applicant Mr. Gladman requested an extension of the time permitted to file his reply. However, prior to the Board responding to that request, the applicant filed a lengthy reply submission dated October 25, 2001.

8. The issue placed before the Board by the responding party is whether or not the Board should exercise its discretion to dismiss the application without a consultation or hearing as failing to disclose a prima facie case or on the ground of undue delay in filing the application.

9. The applicant’s reply is largely taken up with a detailed refutation of the grounds upon which the school board eventually terminated his employment and removed him from the list of occasional teachers. Much of his complaint, then, is against the school board. However, the issue before the Board pertains to the union’s conduct. The Board has endeavoured to glean from the applicant’s reply, the factual allegations pertaining to his complaint against the union.

10. The applicant was first employed as a secondary occasional teacher by the intervenor Durham District School Board in or about December, 1993. On May 26, 2000 he was advised by the Board that his employment was terminated for unsatisfactory performance, after being warned in February, 2000, that further unsatisfactory performance would result in his removal from the secondary teachers’ supply list. His employment record showed that there were numerous complaints about his conduct as a teacher. On June 22, 2000, the union grieved his termination and removal from the school board’s list of occasional teachers. In October 2000, the employer granted the union a timeline extension under the grievance procedure to investigate the matter further and to review Mr. Gladman’s personnel file. The union states that, in May 200l, it withdrew the grievance after considering the applicant’s disciplinary record, the employer’s previous final warning and the applicant’s failure to accept any responsibility for his actions and unwillingness to accept the authority of the school administration.

11. In both his original application and his reply, the applicant accuses the intervenor school board of terminating him because he had the “temerity” to criticize the school board and to go about that criticism without availing himself of the “internal grievance system”. He asks: “Why did everyone on both sides and their contractors, of this conflict, refrain from pointing out until it was too late that I should raise a grievance?” The applicant then lists the complaints against him in respect of his work at various schools as an occasional teacher. He denies most of the complaints and has explanations for others. He states that neither the union nor the school board advised that he should grieve under the collective agreement, and neither “indoctrinated” him as to his right to grieve a negative evaluation at the time he was hired.

12. In response to the union’s submission that the application is untimely, Mr. Gladman submits that he “was absolutely not informed by the union in any way or at any time that I was legally obligated to raise a grievance upon receipt of a negative evaluation with which I disagree.” He states that “there was never any form of formal or informal indoctrination, no guide book and no other form of instructional aid, verbal or written, issued either by the Durham District School Board (DDSB) or by the Ontario Secondary School Teachers’ Federation (OSSTF) from the time that I was hired in 1993. I did not know that I should have been informed. I am the unwitting victim of their withholding of crucial information.”

13. The applicant asserts that, following his termination, the union grudgingly filed a grievance on his behalf. He submits, further, that “it is the obligation of OSSTF District 13 to fulfill their role to fully and vigorously object to any school board activities that negatively upsets (sic) the state of mind of the members they are held to protect the rights of without being asked.”

14. The union asserts that it conducted an investigation of the merits of the applicant’s grievance and determined, given his record of performance, that the grievance was unlikely to succeed. There is no dispute that the union obtained a legal opinion on the matter and permitted the applicant to see and comment on the opinion. The union asserts that it was unaware of the contents of the applicant’s personnel record when it filed the grievance. The applicant states in response: “When I do not bring matters to the attention of the union, it is not that I am concealing anything, my life is an open book.” He reiterates that he did not know the rules for asking for assistance. He repeats his original assertion that the union had a duty to keep minutes of a meeting it held with the school board to discuss the applicant, and to keep proper records of verbal conversations. He asserts that he was excluded from a union-employer meeting even after indicating a desire to be present. He accuses the union of remaining passive at a meeting at which the employer gave him an ultimatum: “The next time you’re out.” He states that the union ignored his comments on the legal opinion obtained by the union.

Decision

12. Section 96 of the Act confers discretion on the Board to determine whether it will inquire into any complaint alleging a violation of the Act. In Brant Haldimand-Norfolk Catholic District School Board, [2001] OLRB Rep. March/April 292 the Board stated its approach to the exercise of that discretion, at page 301:

Under section 96(1) of the Labour Relations Act, the Labour Relations Board has a discretion whether or not to inquire into any application or complaint (see generally Dhanota v. UAW Local 1285 and Sheller Globe of Canada Ltd. (1983), 83 CLLC ¶14,052 (Ontario Div. Ct.)). The fact that a complaint is filed, does not mean that the Board is obliged to enquire into it. Rather, the Legislature has given the Board a discretion in this regard; and in the exercise of that discretion, the Board looks at such factors as: any delay in filing the complaint; whether the case makes out an arguable case for a breach of the provisions of the Act relied upon by the complainant; the likelihood of success; the nature and utility of any remedy that might flow; the cost implications for the parties and the public; whether, overall, some statutory or labour relations purpose would be served by the litigation exercise; and so on. It is important for the Board to expend its limited resources in a manner that is consistent with the objects of the statute (see section 2 of the Act), and that is sensitive to labour relations realities.

13. The onus of showing that a claimant has not pleaded a prima facie case is an onerous one. However, the Board will decline to inquire into an application on prima facie grounds where it determines that the applicant is unlikely to succeed even if the material facts pleaded by the applicant are assumed to be true. In J. Paiva Foods Ltd., [1985] OLRB Rep. May 690 the Board set out the test at page 691 as follows:

The Board’s discretion to dismiss a complaint on the grounds that it does not disclose a prima facie case should only be exercised in the clearest of cases, that is, when the Board is satisfied that there is no reasonable likelihood that a violation of the Act can be established on the facts as alleged.

14. In the instant case, the applicant has not asserted facts which, even if assumed to be true, would show conduct that was arbitrary, discriminatory or motivated by bad faith. The applicant states that he did not bring his difficulties with his employer to the attention of the union because he was unaware that he should have. In my view, the union does not have a duty to monitor its members to ensure that they are notifying it of matters that may require union intervention. It need not seek out grievances. Moreover, the union does not have a duty, under section 74, to “indoctrinate” its members about their rights under a collective agreement. The applicant had been employed by the school board since 1993, and it is reasonable to expect that he must have been aware of the existence of the union and of a collective agreement at the workplace, even if he did not realize he should have consulted his union during the course of his interactions with the employer. He cannot now seek to shift the blame for his admitted ignorance onto everyone but himself.

15. The applicant has not pleaded facts showing that the union ignored or rebuffed an attempt to enforce the collective agreement through a grievance. When the school board did terminate his employment, the union grieved. It is not disputed that the union was then granted an extension of grievance timelines, obtained a copy of the applicant’s work record, sought a legal opinion, provided the applicant with an opportunity to comment on the opinion, and then decided not to proceed further with the grievance.

16. It is well-established in Board jurisprudence that a union is not obliged to proceed with a grievance to arbitration merely because a grievor wants it to do so. In Balford Lindsay, [1989] OLRB Rep. March 264, the Board stated:

17. … Unless the collective agreement gives the grievor that right, it is for the union to decide whether or not to take the grievance to arbitration. Section 68 [now section 74] requires the union to make that decision in a manner which is not arbitrary, discriminatory or in bad faith. It does not provide an appeal to the Board from the union’s decision. The question for the Board is not whether the union’s decision is the one which this Board would have made in the circumstances, it is whether the union’s decision is the result of a process of reasoning grounded on a consideration of relevant matters and free from the influence of irrelevant ones: see Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, 6 CLRBR (NS) 134, at paragraphs 36 to 39. The Board has recognized that considerations relevant to a decision whether or not to press a grievance to arbitration include the merits of the grievance, the likelihood of its success, the financial commitment involved in proceeding to arbitration and the claims or interests of other individuals or groups within the bargaining unit who may be affected by the arbitration proceedings and their possible results: see Catherine Syme, [1983] OLRB Rep. May 775 at paragraph 20.

In Savage Shoes Ltd. [1983] OLRB Rep. Dec. 2067, the Board described a union’s duty under section 74 [then section 68] this way:

36. 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.

No facts are asserted showing how the union violated its duty to investigate and consider the merits of the termination grievance. Rather, it appears, on the undisputed facts, that the union’s handling of the grievance was extraordinarily competent and thorough. The union had no duty to seek a legal opinion (although it did) and no duty to permit Mr. Gladman to comment on it (although it did).

17. The responding party had no duty under section 74 to keep minutes of its meetings or records of its conversations with the employer. It had no duty as bargaining agent to advise the applicant as to his legal obligations to report child abuse (another assertion that is made by the applicant). Moreover, section 74 does not require that a grievor always be present during discussions of a grievance between union and employer representatives.

18. A section 74 complaint concerns whether or not the union’s conduct was arbitrary, discriminatory or in bad faith. Here, as I have stated, many of the applicant’s pleadings are levelled at the school board, and he attempts to refute or explain what happened at a number of schools where there were complaints made against him. However, the allegations against the union show only that the union did not meet the applicant’s expectations of what a union should do. They do not explain how OSSTF District 13 acted in an arbitrary or discriminatory manner or in bad faith in carrying out its duty to represent the applicant.

19. Even if the material allegations are assumed to be true, they do not establish a prima facie case for violation of the Act. Accordingly, the Board has decided to exercise its discretion not to inquire further into this matter. In light of this determination, it is unnecessary for the Board to determine if there was undue delay in the filing of the application.

“Anthony Brown”

for the Board