Bienvenido T. Pasco v. Canadian Union of Public Employees, Local 1156
0562-01-U Bienvenido T. Pasco, Applicant v. Canadian Union of Public Employees, Local 1156 Responding Party v Toronto Rehabilitation Institute (Lyndhurst Centre), Intervenor.
BEFORE: Bram Herlich, Vice-Chair.
APPEARANCES: Pasco Bienvenido, appeared on his own behalf; Casey Thomson, Calvin Campbell, Marc Valliancourt, Mike Smith and Finian Nelson appeared on behalf of the responding party; Patricia G. Murray, Marianne Chandler appeared on behalf of the intervenor.
DECISION OF THE BOARD; October 29, 2001
Decision
1This is an application filed pursuant to section 96 of the Labour Relations Act, (“the Act”) alleging that the responding party trade union has violated section 74 of the Act in its representation of the applicant.
2In brief, the applicant was discharged from his employment as an orderly with the Toronto Rehabilitation Institute (the “employer”) in June 2000. A grievance was filed. (Carriage of that grievance was eventually assumed by the union which, in the context of an amalgamation and related proceedings at the Board became the relevant bargaining agent after the applicant’s discharge). The grievance was advanced to arbitration. The parties agreed, however, to refer the matter to mediation in advance of any arbitration hearing.
3The mediation was held in February 2001. A settlement of the grievance was reached at that time and formal terms of settlement were executed by the union, the employer and the applicant.
4The settlement provided, among other things, for the applicant’s resignation and the payment to him by the employer of a gross amount in excess of $34,000.00.
5Some three months after signing the settlement, the applicant filed the instant complaint in which he seeks to have his grievance advanced to arbitration.
6Before proceeding to outline some further facts in this matter, it will be useful to reflect on the nature of this complaint and the role of the Board in these types of cases.
7A complaint such as the present one is not an opportunity for an unhappy bargaining unit member to seek to have the Board rule on the merits of any grievance which might or could have been advanced to arbitration.
8Thus, the essential question in this case is not whether the applicant was discharged for just cause or whether his grievance might have succeeded had it been referred to arbitration. Rather, the Board’s concern is whether the union has acted unlawfully i.e. in a fashion which was arbitrary, discriminatory or in bad-faith in relation to its representation of the applicant. It goes without saying, therefore, that the settlement of a grievance – however meritorious it might have been had it been advanced to arbitration – does not in and of itself indicate any unlawful conduct by the bargaining agent. In other words, even if the Board might view the grievance as potentially successful, that is not, by itself, enough to grant the application. And unless the Board is persuaded that the union acted in an arbitrary, discriminatory or bad faith fashion, it will not interfere.
9It may be that the applicant’s grievance would have succeeded, in whole or in part, had it been advanced to arbitration. The applicant had considerable seniority but prior discipline on his record.
10The discharge was effected because it was alleged that the applicant had used an improperly sized catheter in the case of a young Down’s Syndrome patient causing significant physical pain and trauma. This is the type of incident which the employer views very seriously.
11The applicant denies having used the wrong catheter. I am in no position to determine precisely what did and did not happen in respect of those allegations.
12I am advised, however, that the employer had (and that the union believed the employer had) significant and substantial evidence (including the potential testimony of the child’s mother who brought the incident to the employer’s attention).
13It was in that context that the matter proceeded to mediation. During the course of the mediation and based on the information provided to it by the mediator, the union had serious concerns about its prospects of success at arbitration. Those concerns were shared with the applicant.
14In that context, it is not surprising that the settlement offered by the employer was ultimately accepted. And it is worth emphazing that both the union and the applicant freely entered into that settlement.
15Whatever the results of arbitration might otherwise have been, I am simply unable to conclude that the settlement entered into was unreasonable.
16And indeed, the applicant clearly was of the same view when he entered into it.
17The benefit of time and reflection has perhaps caused him to have second thoughts about the settlement and about severing his employment relationship.
18However, to return to some of my earlier comments, it is not my function to determine what the result of arbitration might or ought to have been.
19I am not persuaded that the union (or the applicant) acted unreasonably in fashioning and accepting the settlement that they did.
20It follows, therefore, that this application must be and hereby is dismissed.
“Bram Herlich”
for the Board