Ontario Labour Relations Board
File No.: 3093-00-U Date: April 20, 2001
Between: Natasha Sturge, Applicant v. United Food and Commercial Workers International Union, Local 175, Responding Party v. Parkdale Community Health Centre, Intervenor.
Before: Caroline Rowan, Vice-Chair.
DECISION OF THE BOARD
1By decision dated March 1, 2001, the Board directed the applicant to file submissions within ten (10) days in response to the union’s request that the application be dismissed on the basis that the applicant has failed to plead facts which disclose a prima facie case of a violation of section 74 of the Labour Relations Act, 1995 (the “Act”). In its decision, the Board also directed the applicant to indicate specifically what facts set out in the union’s response and in the employer’s intervention which she disputes and why. The Board further specifically advised that “[a]ny facts set out therein which the applicant does not specifically dispute will be deemed to have been accepted by the applicant”.
2Notwithstanding the Board’s direction, no submissions from the applicant were received within the ten (10) day time period specified in the Board’s direction dated March 1, 2001. Accordingly, the applicant is deemed to have accepted the facts set out in the union’s response and in the employer’s intervention.
3In her application, the applicant raises various complaints regarding her terms and conditions of employment at Parkdale Community Health Centre (“PCHC”), her former employer, which complaints she says she discussed with Fernando Reis, her union representative. She alleges that Fernando Reis acted in bad faith in the handling of her discharge grievance dated November 10, 2000 by representing PCHC, rather than the applicant. In support of her claim, she notes that:
a) Fernando Reis planned to have Shirley Hepditch, the union steward, attend the grievance meeting with the applicant despite the fact that the applicant had previously told him that she felt Shirley Hepditch’s involvement in her grievance would result in a conflict of interest. This is because part of the applicant’s grievance involves the applicant doing Shirley Hepditch’s job. The applicant states that she had explained to Mr. Reis that Ms. Hepditch would therefore be “biased”. The applicant alleges that Mr. Reis nonetheless subsequently proposed to bring Ms. Hepditch to the grievance meeting so that Ms. Hepditch could defend herself by saying that the applicant did not do “the brunt of the medical secretaries work”;
b) Fernando Reis “said that on the grievance we would put for now Unjust discharge, Discrimination based on Race, Failure to pay for all unworked hours meaning the 30 hours for the resumes, and that all other issues at the meeting would be addressed at the meeting”. The applicant complains that, subsequently, Fernando Reis stated that we can only discuss what is listed on the grievance at the grievance meeting;
c) Fernando Reis further suggested that the grievance be settled on a basis that the applicant found to be unacceptable.
4In response to these allegations, the union first confirms that the applicant advised Mr. Reis on or about November 10, 2000 that she did not want Ms. Hepditch to handle her grievance, since she felt that Ms. Hepditch was biased against her and that Mr. Reis agreed to this request. Mr. Reis, however, understood that the applicant did not wish Ms. Hepditch to handle the applicant’s grievance on her own. Mr. Reis did not understand that the applicant did not wish to have any participation from Ms. Hepditch.
5As a consequence, Mr. Reis advised the applicant by voicemail message on or about November 23, 2000 of the arrangements made for the grievance meeting including that Ms. Hepditch would be in attendance. When the applicant responded by return voicemail message the same day to advise that she did not want Ms. Hepditch to represent her in these matters, Mr. Reis responded on or about November 24, 2000 again by return voicemail. In that message, Mr. Reis indicated to the applicant that Ms. Hepditch would not be attending the grievance meeting, as per the applicant’s request. Ms. Hepditch did not in fact attend the grievance meeting.
6It appears from the undisputed facts set out in the union’s response that Mr. Reis misunderstood the applicant’s previous indication that she did not wish Ms. Hepditch to handle her grievance to mean that she did not wish her to handle it on her own. It is well settled in the Board’s jurisprudence that honest mistakes or misunderstandings do not amount to a breach of section 74 of the Act.
7In addition, nothing appears to turn on Mr. Reis’ initial suggestion in early November 2000 that Ms. Hepditch attend the grievance meeting in her capacity as union steward. Once the applicant’s position on this issue was clarified on or about November 23, 2000, Mr. Reis immediately agreed to the applicant’s request that Ms. Hepditch not attend the grievance meeting and she did not. Further, the union does not appear to have been influenced by any alleged “bias” by Ms. Hepditch against the applicant, since the union subsequently agreed to, and in fact did, refer the applicant’s grievance to arbitration.
8The Board is also unable to find that Mr. Reis’ decision to limit the scope of her grievance or his settlement proposal either on their own or when considered together with the other allegations gives rise to an inference that the union acted bad faith.
9With respect to the suggestion that the union deliberately limited the scope of the grievance, the Board firstly notes that the grievance filed by Mr. Reis covers a broad range of issues, including the majority of her complaints against PCHC as outlined in her application. That grievance alleges unjust discharge, discrimination based on race, failure to pay for all hours worked. There is further no suggestion in the application that the union refused to file a further grievance on the applicant’s behalf in respect of additional matters, or that the applicant even requested that it do so. In all the circumstances, the Board is unable to find that the union precluded the applicant from pursuing additional grievances under the collective agreement against PCHC such that it may be said that the union was acting on behalf of PCHC and not the applicant as alleged.
10In addition, with respect to the settlement proposal made by the union, the Board notes that it is not unusual or improper for the union to propose a possible resolution of a grievance, which proposal a grievor may or may not find to be acceptable. This is not a case in which the union proceeded to resolve the grievance with the employer on the basis that it had proposed and against the wishes of the applicant. Instead, in the present case, the union subsequently agreed to, and did, refer the applicant’s grievance to arbitration after having been informed by the applicant that the settlement proposal was not acceptable to her.
11In fact, a review of the undisputed facts pleaded in the union’s response makes clear that the only reason the applicant’s grievance was not ultimately arbitrated was because the applicant advised the union that she would not attend the arbitration hearing. In response, the union initially made arrangements to adjourn the hearing and then ultimately withdrew the grievance altogether when unable to obtain the applicant’s commitment to attend the hearing in support of her grievance. The union advised the applicant of its decision in this regard and of her right of appeal. There is further no suggestion on the facts pleaded that the applicant availed herself of her right to appeal.
12Having carefully reviewed the facts pleaded in the application and the undisputed facts pleaded in the union’s response and the employer’s intervention, the Board is not persuaded that an arguable case of a breach of section 74 of the Act has been made out. However, even if the Board is wrong that no prima facie case of a violation of the Act has been made out, the Board has the discretion under section 96 of the Act to determine whether it will inquire into a complaint of a contravention of the Act. The Act further specifically relieves the Board of the requirement to hold a hearing where it is alleged that section 74 of the Act has been breached. Given the facts as pleaded in the application, there is nothing, which would lead the Board to conclude that the applicant has a reasonable chance of success. Accordingly, in all of the circumstances, the Board would, in any event, exercise its discretion and dismiss the application.
13For all of these reasons, this application is dismissed.
“Caroline Rowan”
for the Board