Ontario Labour Relations Board
File No.: 1351-00-U Date: April 17, 2001
Between: Charmaine Sandra Lambie, Applicant v. Service Employees International Union, Local 532, Responding Party v. Central Park Lodge, Intervenor.
Before: Christopher J. Albertyn, Vice-Chair.
Appearances: Allison Gowling and Charmaine Lambie for the applicant; Brian Lawson, Ron Roscoe, Pansy Donaldson and Rob West for Service Employees International Union, Local 532; Ellen Coffey for Central Park Lodge.
DECISION OF THE BOARD
1This is an application filed pursuant to section 96 of the Labour Relations Act, 1995, R.S.O. 1995, c.1, as amended (“the Act”) alleging that the responding union (“the union”) has violated section 74 of the Act.
2The applicant was employed by the intervenor (“the employer”) in July 1998 as a Registered Practical Nurse. She has been on disability leave since January 2000. The application contains a number of complaints concerning the conditions of the applicant’s work and the union’s alleged failure to act on her behalf to remedy the problems she was facing. At the consultation, the applicant’s claim centred on her complaint that she was obliged to work for about two hours each day before her normal shift and she was unable to take her break during her shift because of the shortage of staff and the volume of work. She says she complained of this several times, yet got no assistance from the union. The applicant says she was racially harassed at work by members of management and fellow employees and she received no relief. This caused her disability and obliged her to take stress leave. She wanted the union to pursue a compensation claim for the hours she spent at work before her shift and for working through her breaks.
3The union responds that the applicant was told several times, each time she complained, that she was not required to be at work before her regular shift and she was obliged to take her breaks. The union would tell her that she must simply stop work for the half an hour of her break, as was her entitlement. The applicant replies that she could not take her breaks because to do so would have put the residents at risk, and she was not willing to do that. She felt she had to work.
4The employer has a three-shift rotation: 7 a.m. to 3 p.m., 3 p.m. to 11 p.m. and 11 p.m. to 7 a.m. The applicant worked the 3 p.m. to 11 p.m. shift. There is one RPN on duty during each shift and there are between one and four health care aides on duty at any time. There has been no complaint regarding an inability to take breaks from the RPN’s who work the other shifts. The Director of Care is the management member of staff on duty. The employer says that the applicant was entitled to take her breaks and she would have been relieved by the Director of Care or by a health care aide.
5The applicant filed three grievances on March 9, 2000. They constitute the basis of this complaint to the Board. The first two grievances concern claims of harassment, discrimination and unfair treatment, the third concerns a claim for compensation for hours worked beyond regular hours and for loss of her breaks. The applicant’s complaint under the Act is that the union did not take her grievances seriously, nor pursue them to arbitration.
6The union explains that each of the applicant’s grievances was explored to the point of obtaining a legal opinion from counsel as to the prospects of success at arbitration. A total of seven legal opinions were obtained from the union’s counsel at various stages in the union’s handling of the grievances. Counsel consulted with the applicant on two occasions. In respect of the applicant’s overtime claim she was advised to keep a log of the times she worked overtime, but she did not do so. As a consequence, the union had no proof to establish the applicant was working beyond what was required of her. Furthermore, at the time the applicant raised her overtime claim, when she went off on stress leave, she wished to claim for the whole period of her employment when she had no record of any overtime hours worked, nor of ever having raised the matter with the employer beforehand. There were issues of her claims being time barred under the grievance and arbitration procedures of the collective agreement between the union and the employer.
7As regards the applicant’s harassment claim, the union conducted an investigation of the applicant’s complaint, taking her grievance through steps one and two of the grievance procedure and gathering what information it could. On the basis of the information given by the applicant to the union and on the information obtained through use of the grievance procedure, the union’s counsel concluded that there was insufficient basis to proceed with the harassment claim to arbitration. The details of counsel’s consideration of the matter are as follows.
8Counsel’s first opinion is dated September 21, 1999. It deals, inter alia, with the applicant’s harassment complaint. Counsel’s considered opinion was that there was insufficient evidence to prove a claim of systemic discrimination in the applicant’s workplace. A copy of the opinion was provided to the applicant.
9A further opinion was obtained from counsel on February 11, 2000. Counsel again confirmed that there was insufficient evidence to pursue a claim of systemic discrimination against the employer.
10On March 21, 2000 counsel wrote to the union advising of what information was necessary to pursue the applicant’s claim for compensation for time worked beyond her normal hours. On May 1, 2000, on the basis of what additional information the union was able to gather, counsel provided a further written opinion. Counsel advised that there were no grounds for proceeding with these grievances.
11Counsel then met with the applicant and another employee to gather additional information which might assist towards pursuing the applicant’s claims. Counsel provided a final opinion on June 19, 2000. Counsel’s opinion reads, in part:
Further to your attendance in my office with Pansy Donaldson and Charmaine Lambie, we have once again reviewed the material and based on the additional information that we received from Lambie, we are giving you our final opinion.
In connection with the overtime and lunch break time grievances, it is our opinion that these grievances cannot succeed because they were filed too late and because there was no authorization to work overtime, and there were not specific dates or times established.
I believe that the second and third grievances namely unjust treatment and harassment and discrimination are somewhat related to each other.
There is no evidence upon which an arbitrator could determine that there was systemic discrimination in the workplace based on colour or gender.
Insofar as the allegations of harassment and unfair treatment, it would appear that no complaints were made at the time with some exception which were dealt with by management at the time. In any event, it has long been arbitral law that you cannot file a grievance over harassment and/or unfair treatment unless it relates to a human rights violation and/or some specific clause in the collective agreement.
Accordingly, I can see no merit in proceeding with any of these grievances.
12Periodically the union would write to the applicant and advise her of what information it needed and of what it was doing to investigate and consider her grievances.
13Following receipt of counsel’s opinion, on June 29, 2000 the union withdrew the three grievances which the applicant had filed. The basis of the withdrawal is set out in the union’s letter of June 29, 2000 to the employer, which reads:
On a without prejudice basis, the Union withdraws all 3 grievances and accepts your Offer of Settlement of June 9, 2000, to provide ongoing Human Rights training for all staff.
Please keep the Union office advised of the details of its planning and implementation. We trust the training will take place as soon as possible.
14Counsel for the applicant referred to a number of decisions of the Board in which a union was found to have been in violation of its duty of fair representation. The facts in those cases differ markedly from those in this. The standard expected of a union as regards the grievances of the employees it represents is set out in Marcia Robertson [1990] OLRB Rep. August 886, at 890, ¶16:
Section 68 [now 74] 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 [ now 74]. 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.
15Subject to this standard, a union is required to take seriously the grievances filed by the employees it represents. It must give careful consideration to the merits of those grievances and it should pursue those which are meritorious. It should diligently investigate a grievance so that it is equipped to advance it with the employer concerned. If in doubt as to the merits of a grievance it is prudent for a union to seek counsel’s opinion. In this case all of that was done. The union’s conduct was not only not arbitrary, discriminatory or in bad faith, it showed a considerable degree of patience and care. The union did not decide to drop the applicant’s grievances until it was entirely satisfied that there would be no useful purpose pursuing them. It arranged for the applicant to meet with the union’s counsel on two occasions so that she could amplify allegations which at that stage seemed uncertain. Counsel’s final opinion was provided on the basis of the information which the applicant had personally provided. In my opinion, the union acted responsibly in following counsel’s advice.
16In all of these circumstances there has been no violation of section 74 of the Act by the union. The application is dismissed.
“Christopher J. Albertyn”
for the Board