2642-00-U Janice DeHart, Applicant v. Ontario Public Service Employees Union; Responding Party v. Ministry of the Solicitor General formerly known as Ministry of the Solicitor General and Correctional Services, Intervenor.

BEFORE: Patrick Kelly, Vice-Chair.

APPEARANCES: Janice DeHart appeared on her own behalf; Maureen Doyle appeared on behalf of the responding party; Ajamu Boardi appeared on behalf of the intervenor.

DECISION OF THE BOARD; June 20, 2001

1. This is an application filed pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1 as amended (“the Act”) alleging a violation of section 74 of the Act. The application was filed on December 1, 2000.

2. The consultation in this matter took place on May 24, 2001. The applicant was not represented by legal counsel. I informed her that she was welcome and entitled to participate without representation, but that this was a legal proceeding which would affect the rights, interests and obligations of the parties hereto.

3. This application concerns grievances filed by the applicant over the period 1996 through the early part of 1999. They deal directly or indirectly with the applicant’s classification, and the wages that attach to that classification. The grievances were processed by the responding party (“the union”) and referred to arbitration, but never adjudicated. Rather, attempts were made to settle the grievances through a lengthy mediation comprising three separate sessions. Those attempts failed to resolve the dispute, because the applicant did not agree with the monetary amount offered by the intervenor (“the employer”) in settlement of all the grievances. Counsel representing the union in respect of the grievance explained to the applicant during the mediation process that allegations of discrimination (which she alleged) were very difficult to prove, and that her case was not strong based upon the information that she had provided. There were further obstacles concerning the timeliness of the grievances. Counsel for the union advised the applicant that, in all the circumstances, she should accept the employer’s offer. There is no dispute that the union and its counsel worked diligently on the applicant’s grievances, and to this stage, had represented her interests thoroughly.

4. Following the mediation, counsel for the union considered the matter further, and advised the union that it should accept the employer’s offer in full settlement of all the applicant’s grievances, even though the applicant wished to proceed to arbitration and risk receiving nothing. Counsel documented his reasons in writing. After considering this advice, the union decided to settle the matter without the applicant’s agreement, and entered into minutes of settlement, dated October 29, 1999, with the employer resulting in the payment of a sum of money to the applicant in exchange for a withdrawal of all of the grievances. The applicant was soon thereafter informed of the settlement to which she remained opposed. She claims in her application that she immediately challenged the union concerning the settlement, but that the union was not responsive. She received the cheque in respect of the settlement funds, and initially refused to cash it. When she did cash the cheque in or around May of 2000, she did so under protest.

5. One of the applicant’s concerns in this matter relates to the union’s lack of consultation with her respecting the settlement it reached, and its lack of communication with her for some time after the decision to settle her grievances was conveyed to her. She demanded documented reasons from the union, but none were forthcoming. But even more significant, in her view, is that she believed she had complete carriage of the grievances, and that if she opted for arbitration, no one, including her union, could stop her. In this regard she relied upon an internal OPSEU manual which, among other things, provides advice on grievance handling. In any event, the section of the manual dealing with the handling of grievances sets out OPSEU policy on a number of items such as expedited arbitration, the use of single arbitrators in grievance hearings and the union’s practice of attending “predismissal hearings” at the Grievance Settlement Board. There is also a provision in this section, that interprets a principle in the OPSEU constitution guaranteeing union representation to all members. That section, headed “Policy”, states:

Policy

The Union’s policy is that no grievor will be denied representation at any time.

(Nov. 2-4, 1973 B,p.20) (Subsequently added to the Constitution, Art. 24.2)

The interpretation of the foregoing resolution is as follows:

No one except the grievor can withdraw his/her grievance. If a member wishes to pursue his/her grievance to arbitration, Head Office will advise the grievor regarding the advisability of taking his/her grievance to arbitration. In the event that the grievor declines to accept this advice, Head Office is bound to represent the grievor at the arbitration hearing, if the grievor so wishes.

(July 25-27, 1975 B, p.21)

Decision

6. Section 74 of the Act provides as follows:

7. 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.

8. For reasons that follow, I find that the applicant has failed to demonstrate that the union violated section 74 of the Act.

9. In a recent unreported decision, The Ontario Secondary School Teacher’s Federation/FEÉSO District 33, Local 6 (June 1, 2001; File No. 2710-00-U) the Board made the following observations concerning the scope of the duty of fair representation:

Section 74 of the Act provides a duty of fair representation by a trade union of an employee vis-à-vis his employer. It does not regulate internal union matters such as the requirement to pay union dues. In Rheal v. Dionne, [1994] OLRB Rep. May 532, the Board reviewed the ambit of the obligation imposed under section 69 (now 74) of the Act commencing at paragraph 45 as follows:

45. Under the Labour Relations Act a trade union can become the exclusive bargaining agent for employees in a defined bargaining unit, and once the union is established the employees cannot bargain with their employer on their own. They are part of a group that bargains collectively through the trade union as bargaining agent. On the other hand, section [74] of the Act provides a counterweight. Under section [74], the union must represent the members of the bargaining unit in a manner that is neither arbitrary, discriminatory or in bad faith.

46. The duty of fair representation applies to the way in which the union represents employees in their relationship with their employer. Because the employees cannot bargain on their own, the union must represent them fairly. However, section [74] does not regulate the relations of employees to each other, or to their union as an organization. It does not regulate internal union affairs.

47. Matters such as elections, qualifications for office, dues, internal hierarchy, appeal procedures, and so on, are not governed by the Labour Relations Act. They are regulated by the union’s constitution. That constitution cannot diminish an employee’s statutory rights, but those constitutional rights are not statutory. Nor may constitutional claims be pursued under section [74] or before the Board. Section [74] governs the way in which the union represents employees vis-à-vis their employer – not the way it conducts its internal union affairs.

48. The allegations raised concerning the applicant’s grievance carriage rights do not relate to OPSEU’s representation of the applicant vis-à-vis her employer. The Board has previously dealt with similar arguments made by section 74 applicants against the same union. In Wm. J. McLaughlin [1996] OLRB Rep. May/June 469, the OPSEU bargaining unit members, like the applicant in this case, had, together with a large number of other bargaining unit employees, filed grievances alleging improper classification. The union and the employer agreed, without the consent of any of the grievors, to endeavour to resolve the grievances through a special expedited mediation-arbitration session, the model for which did not exist in the applicable collective agreement. All the applicants expressed dissatisfaction with the process, and some did not participate. Some of the applicants benefited monetarily in terms of the outcome of the expedited session, some did not, but it appears that non-participation in the process had no bearing on that point. At the core of the applicants’ complaint before the Board was the assertion of their carriage rights in respect of the grievances. They contended that, notwithstanding the potentially enormous cost of the litigation of their claims, the union was obligated to advance the grievances to arbitration. The Board rejected that contention, observing that blind pursuit of the interests of individual employees would ultimately prevent a union from effectively advancing the interests of the collective, resulting in labour relations paralysis. Moreover, at paragraph 22, the Board dealt with the applicants’ arguments concerning the applicability of OPSEU’s constitution to their section 74 complaint:

49. … Much was made by the applicants that, in their view, the trade union had in various respects violated its constitution in acting as it did, and in that regard, the very agreement to process the grievances in the mediation-arbitration system was therefore “null and void”. However, even assuming that the trade union acted contrary to the provisions of its constitution (and the Board declines to comment on whether that is indeed the case), that does not, in itself, establish that it has acted arbitrarily within the meaning of section 69 [now section 74] of the Act. The statutory provision is intended to regulate the nature and quality of the representation provided by trade unions on behalf of employees vis-à-vis the employer, and is not aimed at the supervision of the obligations established by internal constitutional documents. In other words, the Board is concerned whether the representation that the employees actually received meets the standard established by the statute; the supervision of rights and obligations that have been established by union constitution is a matter dealt with in other forums. (See for example, Local Union 46 of the United Association of Plumbers, Steamfitters, and Apprentices, Board File No. 2651-94-U, October 27, 1994, unreported, Frank Manoni, [1983] OLRB Rep. Aug. 1344).

50. I find the reasoning in the McLaughlin decision persuasive in deciding this matter. I adopt that reasoning, and conclude that, even if the OPSEU constitution provides the kind of guarantees the applicant believes that it does, and even if the union violated the constitution (I make no finding in either regard), the union’s representation of the applicant met the standard imposed by the Act.

51. The union’s alleged lack of communication or further consultation concerning its decision to enter into minutes of settlement on her behalf is not evidence of a breach of the duty of fair representation. While it is regrettable that it apparently took some considerable time for the union to communicate with the applicant with respect to her alarm over the settlement, there was nothing of substance to tell her that had not already been conveyed to her verbally during the mediation, or via a letter of October 13, 1999 (explaining the rationale for accepting the employer’s offer) from counsel for the union. In the opinion of counsel, the applicant’s case was weak, and that conclusion, when balanced against the cost of litigating the matter and the prospect of little or no gain, led to the further conclusion that the grievances should be settled while there was still some value to be achieved by settling. The union concurred with that analysis, and acted upon it, securing on behalf of the applicant what it thought was the best possible offer from the employer. In this regard the union’s representation of the applicant in her relations with the employer was reasonable, and certainly cannot be characterized in any way as arbitrary, discriminatory or in bad faith.

52. For all these reasons, the application is dismissed.

“Patrick Kelly”

for the Board