0080-00-U Jim Glenny, Applicant v. Ontario Public Service Employees Union, Responding Party v. Ontario Realty Corporation, Intervenor.

BEFORE: Anthony Brown, Vice-Chair.

APPEARANCES: Harry Kopyto and Jim Glenny for the applicant; Don Martin and Allison Kabayama-Hun for the responding party; Carol Ann Witt, Robert Cordica and Navdie Singh for the intervenor.

DECISION OF THE BOARD; June 5, 2001

1This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging violation of section 74.

2Section 74 of the Act states:

74. 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.

3This complaint is about the responding party’s handling of the applicant’s grievance in respect of the termination of his employment. Briefly put, the applicant asserts that the union failed to communicate with him regarding the grievance and then failed to contest the grievance when it came before the Grievance Settlement Board.

4Commencing in 1976, the applicant was employed by the Ontario Ministry of Government Services as a Property Administrator in the Property Administration Section of the Ministry’s Real Estate Branch. In 1993, the Real Estate Branch became part of the Ontario Realty Corporation, a Crown corporation (ORC).

5In 1997, it became apparent that the work of the “Land Management” department at ORC would be contracted out. OPSEU filed a series of grievances about whether ORC was complying with its contractual obligation to make reasonable efforts to protect members’ jobs under Appendix 9 of the collective agreement between OPSEU and Management Board of Cabinet. Ultimately, OPSEU and Management Board signed an agreement dated October 9, 1998 settling the grievances with a guarantee that all affected OPSEU employees would be “attached to the request for proposal”, i.e. they would be guaranteed jobs with the new service provider when privatization occurred. They could also choose not to accept an offer of employment by the provider, and then take an enhanced severance package. The minutes of settlement stipulated that the parties agreed that employer had thereby complied with its obligations under Appendix 9. The agreement also released the employer in respect of actions and causes regarding the applicable Requests for Proposal.

6On April 9, 1999. OPSEU and Management Board signed another document by which they agreed to settle all grievances relating to the transfer of work under certain Requests for Proposal, and by which OPSEU released and discharged “the employer, its employees, office-holders and agents of all actions, causes of action and claims relating to the transfers in the above-referenced RFPs and the October 9, 1998 agreement.”

7In or about March, 1999, Del Management Solutions Inc. (“Del”) was awarded the contract for Land Management. By letter dated June 15, 1999 the ORC forwarded to the applicant information concerning the job offer from Del, including a copy of the employment contract which Del required him to sign. The letter indicated that if he did not respond to the job offer within five working days, he would be deemed to have accepted the offer. His start date was to be August 1, 1999. If he declined the offer, he would be deemed to have resigned his ORC job on July 31, 1999. The applicant did not respond within five days.

8Del informed the applicant that if he did not sign the employment contract, he would not be hired. The applicant refused to sign the contract, and by letter dated July 9, 1999, ORC advised the applicant of the consequences of having refused to sign it. The letter states:

It is my understanding that you did not respond in writing to the June 14 offer of employment from Del Management Solutions and therefore you are deemed to have accepted their offer of employment with the terms and conditions set out therein. As a result, your last day of employment with the Ontario Realty Corporation will be Friday July 30, and your deemed resignation will be effective Saturday July 31, 1999. You will receive Termination Pay in accordance with Article 53 and you will be paid for any eligible overtime and earned vacation credits which you have not used. However as your employment is deemed to continue with DEL, you will not be eligible for your pension.

However, it is also my understanding that you have verbally informed Del Management Solutions that you do not accept their offer on the terms and conditions they outlined. If in fact, it is your intent to reject the offer, you must advise me in writing by 5:00 p.m. on Monday July 12, 1999 and I will advise Del Management Solutions. Please be advised that if you reject the offer in writing by such time, you will be eligible to retire on an unreduced pension and you will also receive Termination Pay in accordance with Article 53 and you will be paid for any eligible overtime and earned vacation credits which you have not used. If you fail to respond by such time you will be deemed to have accepted the Del Management Solutions offer of employment with the terms and conditions as set out therein, as outlined in the above paragraph.

Should you have any questions about your entitlements, please speak with Mike Manfredi, the Human Resources Consultant for your area. You may also wish to speak with your OPSEU representative.

9On or about July 9, 1999, the applicant filed a grievance alleging unjust dismissal. On July 19, 1999, Del advised him that its offer of employment was revoked. His employer, ORC. advised him that he was deemed to have resigned his position effective July 31, 1999.

10On August 5, 1999, Mr. Glenny attempted to give Mr. Barry Crowe, a Vice President of ORC, another grievance alleging contravention of his rights under Appendix 9 of the collective agreement. In essence, this purported grievance relates to the same set of circumstances as the July 9th grievance. Mr. Glenny attempted to file it after he knew that Del would not hire him. Mr. Crowe did not accept the grievance, on the basis that Mr. Glenny was no longer employed by ORC as of July 31, 1999.

11A meeting among Mr. Glenny, a representative of OPSEU and a representative of Management Board was held at the Grievance Settlement Board on November 17, 1999 in an attempt to mediate a solution to the July 9, 1999 dismissal grievance and other outstanding grievances filed by Mr. Glenny. Mr. Don Martin, senior grievance officer for OPSEU, was in telephone and personal contact with Mr. Glenny in respect of the mediation. At the mediation, the parties agreed that all grievances would be withdrawn except the dismissal grievance. The mediated agreement, which was signed by the applicant, provided that if Del failed to offer Mr. Glenny a position within six months, the grievance “shall proceed to arbitration” No offer was made by Del, and the grievance therefore remained alive.

12The grievance was scheduled for arbitration at the Grievance Settlement Board (GSB). The union states that, since the employer had not raised the issue of the arbitrability of the discharge grievance at the November,1999 mediation, the union considered it might be able to argue that the employer had waived its right to do so when the matter was heard at the GSB.

13The union asserts that on June 6, 2000, it informed Mr. Glenny that the grievance was scheduled at the GSB for September 19, 2000 and that Mr. Martin would contact him prior to the hearing.

14The union states that Mr. Martin researched the subject of Mr. Glenny’s grievance. For example, the union sought the opinion of legal counsel about whether Del’s contract of employment (which the applicant refused to sign) complied with the employer’s obligations under the October 9, 1998 agreement. Legal counsel indicated that the agreement seemed “fine”. The union was satisfied that the employer had honoured its obligations under Appendix 9 and the October 9, 1998 settlement.

15By letter dated September 12, 2000, the employer advised OPSEU that it intended to raise a preliminary objection at the GSB as to the arbitrability of the grievance in view of the October 9, 1998 settlement between OPSEU and Management Board and because the grievance was out of time. Mr. Martin asserts that after receiving notice of the preliminary objection, he discussed the matter with a colleague, Robin Gordon and they agreed that the union could not pursue the applicant’s grievance in light of the October 9, 1998 agreement. On September 13, 2000 Mr. Martin phoned Mr. Glenny to advise him that OPSEU would not dispute the employer’s objection at the GSB. This information was also conveyed in a letter to Mr. Glenny dated September 13, 2000. The applicant denies having been told prior to the mediation session in November, 1999 that the October 9, 1998 settlement could render his grievance inarbitrable.

16On September 14, 2000, Mr. Glenny and Mr. Martin met and, according to the union, they discussed the union’s position in respect of the employer’s preliminary objection. The union admits that Mr. Martin was not aware prior to the September 19, 2000 proceeding at the GSB, of the existence of the April 9, 1999 release (referred to in paragraph 6 above).

17At the GSB, the union indicated to the adjudicator that it would not dispute the grievance and accordingly the grievance was dismissed.

Submissions

18The applicant states that, although he and his representative Mr. Kopyto, wrote to the president of OPSEU on six occasions about his grievances over a period of about eight months during 1999 and 2000, no responses were received. This failure to respond is alleged to constitute a violation of section 74. The applicant further asserts that he should have been consulted by the union before it signed the April 9, 1999 release. The applicant also asserts that he was falsely led to believe that the union would pursue his grievance to arbitration and that the union exhibited bad faith in deciding at the last moment not to dispute the matter. He asserts that the union should have proceeded with his July 9, 1999 grievance and should have processed his August 5, 1999 grievance. The applicant also states that the union misinterpreted the April 9, 1999 release and other agreements with respect to its obligation to ensure that the employer honoured its obligations. The applicant also identifies three former employees whom he contends were treated differently as a result of the transfer of Land Management to Del. The applicant seeks an order requiring, inter alia, that his July 9, 1999 grievance, and his August 5, 1999, purported grievance, be referred to arbitration.

19The union asserts that although it did not reply to letters from Mr. Glenny and Mr. Kopyto, Mr. Glenny was in fact well aware of what was going on in respect of his grievance. The union denies that it falsely led the applicant to believe that it would pursue his grievance at arbitration. It denies that it acted in bad faith in deciding not to dispute the grievance and in not processing the August 5, 1999 grievance. Mr. Martin hoped that the employer would not rely on the October, 9, 1998, memorandum of settlement when the matter came before the GSB.

20The union describes its customary method of handling grievances at paragraph 10 of its pleadings:

“It is not uncommon for the Union to proceed by way of “no dispute” at the Grievance Settlement Board. While it may seem unreasonable to proceed so far and then have the grievance declared inarbitrable, there are real reasons for the practice. Firstly, proceeding right to the hearing often has the effect of leading to a mediated or negotiated settlement of the dispute, and secondly, because OPSEU policy is to provide representation to every grievor to every level (ie the grievor has carriage rights) Grievance Officers are not authorized to withdraw a grievance against the will of a grievor. The Union however does retain control over the arguments to be made at arbitration, and where the arguments of the grievor can not be made in good faith by the Union, the union takes the position that there is no legal dispute with the employer.”

Decision

21The Board will address each of the applicant’s material allegations as set out below.

22There is no real dispute that the union failed to respond in writing to several letters (copies of which were filed with the Board) from Mr. Glenny or his representative Mr. Kopyto to Ms. Leah Casselman, OPSEU President. The union’s failure to acknowledge receipt of these letters may have given the impression to Mr. Glenny that the letters had either been misplaced or were being ignored. I am satisfied, however, that during the period between the November, 1999 mediation and the September, 2000 GSB hearing, there was not a great deal of information that had to be conveyed to Mr. Glenny, subject to what I have to say below. The letters were intended primarily to keep the pressure on the union to deal with the grievance and the applicant was, perhaps understandably, growing impatient. However, Mr. Glenny was not deprived of critical information during the wait. He had participated in the mediation meeting, had signed the mediated agreement and was aware that the matter had been scheduled. I find, therefore, that the union’s failure to respond to the aforementioned letters, while perhaps regrettable, does not constitute a violation of section 74 of the Act.

23The crux of Mr. Glenny’s complaint is that he was led by the union’s conduct and the November 17, 1999 mediated agreement, to believe that the dismissal grievance would be arbitrated. He asserts that the union’s last minute decision not to dispute the matter at the GSB was made in bad faith. The union asserts that its conduct was consistent with its usual practice of taking matters to the GSB in hope of extracting concessions from the employer at that stage. OPSEU and Mr. Glenny interpret the mediated agreement differently. Mr. Glenny asserts that it was, in effect a promise to dispute the matter before the GSB. OPSEU asserts that “proceed to arbitration” was merely a commitment to proceed in the normal course, and that OPSEU retained its discretion as to how to proceed at the GSB.

24The November 17, 1999 agreement could, in hindsight, have been clearer as to what was meant by “proceed to arbitration”. Assuming (without deciding) that the agreement lulled Mr. Glenny into an expectation of having his “day in court”, an expectation that the union’s conduct did little to contradict, did OPSEU violate section 74 of the Act by its last minute decision not to dispute the matter before the GSB?

25There is insufficient evidence before the Board that OPSEU’s decision in this respect was arbitrary, discriminatory or made in bad faith. It is not the Board’s role to question OPSEU’s policy of taking grievances to the GSB. That remains an internal matter, provided that the implementation of the policy in the case of any particular complainant does not violate section 74. The union had the right, as exclusive bargaining agent, not to contest the grievance at the GSB. It made this decision in light of the October 9, 1998 agreement and the April 9, 1999 release. It had obtained a legal opinion that confirmed that Del’s requirement of an individual contract did not contravene Appendix 9.

26The union’s decision, whether right or wrong, was not made arbitrarily, that is capriciously, absent an investigation or without a meaningful assessment of the likelihood of success at the GSB. Mr. Glenny makes no secret of his dissatisfaction with Appendix 9. When he was offered a job by Del, he simply did not want to abide by the scheme imposed by the Appendix. He decided that he, and not the union or employer, would determine whether Del’s offer of employment was proper. His “deemed” employment with Del was revoked when he refused to sign the contract of employment. But the union’s decision not to do battle over this situation was the union’s to make, and there is insufficient evidence that it was motivated by bad faith or that the union discriminated against the applicant. Moreover, the union did not violate section 74 by failing to consult Mr. Glenny before it signed the April 9, 1999 release which pertained to several RFP’s and which pre-dated his July 9, 1999 grievance.

27I find that Mr. Glenny’s grievance was handled in manner consistent with OPSEU’s practice of taking matters to the GSB. Although this conduct did not violate the duty of fair representation in section 74, it is regrettable that Mr. Glenny was not apprised clearly and unequivocally, of the risk that his grievance might be barred by the October 9, 1998 settlement and the April 9, 1999 release, both of which were signed prior to the mediated settlement. Clearly, whatever he was told by Mr. Martin did not reduce his expectation by giving him a realistic sense of the possibility that the employer might raise a preliminary objection to the grievance. Indeed, Mr. Martin was not even aware of the April 9, 1999 release.

28I am satisfied that the purported August 5, 1999 grievance was essentially the same complaint as contained in the July 9, 1999 grievance, namely the refusal of Del to hire Mr. Glenny unless he signed the individual contract of employment. The union’s refusal to file the second grievance was therefore based upon considerations not motivated by bad faith. And, if the October 9, 1998 settlement and April 9, 1999 release precluded the first grievance, they would also have barred the second.

29Mr. Glenny pleads that other persons affected by Appendix 9 received different treatment. It is alleged, for example, that at least some of these persons remained in the employ of the Ontario Government after being “attached to a RFP”. The applicant asserts that the alleged discriminatory application of Appendix 9 would have assisted him at the GSB. With respect, this submission does not assist the applicant’s complaint under section 74. Appendix 9 provided employees with several options. For example, a person could elect to take the enhanced severance package and then apply to an employer, such as Del, for a job. In my view, the union was not obligated to investigate and understand the circumstances of other employees affected by Appendix 9 before it could properly determine its course of action in respect of Mr. Glenny’s grievance. Even if it had such an obligation, I would find that it’s alleged failure to consider this factor in its handling of the grievance was a relatively minor matter that did not violate section 74.

30For the foregoing reasons, the application is dismissed.

“Anthony Brown”

for the Board