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HomeMy WebLinkAbout3047-06-U - Beausoleil 07-02-16 "\ t .. ONTARIO LABOUR RELATIONS BOARD 3047-06-U Roselle Beausoleil, Applicant v. Ontario Public Service Employees Union (OPSEU), Responding Party v. Ministry of Community Safety and Correctional Services, Intervenor. BEFORE: Jack J. Slaughter, Vice-Chair. DECISION OF THE BOARD; February 16,2007 1. This is a complaint filed under section 96 of the Labour Relations Act, 1995 s.o. 1995 c.1 as amended (the "Act"), which alleges a violation of section 74 of the Act. More particularly, Roselle Beausoleil complains that the Ontario Public Service Employees Union ("the Union") violated the duty of fair representation owed to her in its representation of her in her employment relations with the Ministry of Community Safety and Correctional Services ("the Employer"). 2. Section 74 of the Act provides as follows: 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. 3. The Union contends that this application should be dismissed because: it does not make out a prima facie case ofa violation of section 74 of the Act; it is frivolous, scandalous and vexatious; the applicant has deliberately misled the Board; and the complaint is "wholly without merit". The Employer also submits that this complaint be dismissed without a hearing or consultation on most of the same grounds. 4. In order to understand the objections of the Union and the Employer and put them in context, it is necessary to look at the key facts set out in the complaint, which are found at items 9 to 33 thereof. Those items read as follows: 9) On or about the 5th of February, 2006, the Applicant filed her fIrst grievance with the intervening party for discrimination regarding it's [sic] hiring practices. (See "A1.") 10) On or about May 17,2006 the Applicant was on duty at the Toronto Metro West Detention Centre. 11) During her shift she received a call at her work area to attend at the workplace Boardroom. 12) When she reached the Boardroom, the Applicant met for the fIrst time, Mr. Scott Andrews from Corporate OPSEU. 13) The Applicant was informed that her grievance was being mediated at that time. 14) She was advised that a mediator was also present at the workplace for that purpose. - 2 - 15) The Applicant inquired why she was not advised of this before she arrived at the workplace. 16) Mr. Scott Andrews offered no explaination to her. 17) The Applicant then inquired if Mr. Andrews had secured disclosure from the employer. 18) Mr. Scott Andrews advised the Applicant that for the purpose of mediation, no disclosure was required at that point. 19) Mr. Andrews then asked the Applicant to explain her grievance to him, so he could attempt to understand and mediate her issue. 20) The Applicant made Mr. Andrews aware that she was unprepared to provide him with all the information because she doesn't make it a habit to carry personal information with her while supervises hard-core level 1 inmates at the MWDC. 21) She did although give him a brief viva voce description of her complaint. 22) This whole meeting lasted approximately 30 minutes from the introduction to the end. 23) The Applicant was then introduced to a mediator at the workplace. 24) Mr. Scott Andrews then addressed the mediator. 25) The Applicant also briefly spoke to the mediator. 26) The whole meeting lasted about 20 minutes. 27) Nothing was resolved for the Applicant at the mediation process. 28) The Applicant then returned to work. 29) On or about the middle of September 2006, the Applicant received a letter from Mr. Scott Andrews advising the Applicant that OPSEU has closed her grievance and that the Grievance Settlement Board has been advised that a hearing is no longer required. (See" A2. ") 30) The Applicant has never seen Mr. Andrews before or after May 17, 2006. 31) She has never even received any calls from Mr. Scott [sic] before or after May 17, 2006. 32) The only communication ever received from Mr. Andrews came in the form of a letter dated August 4, 2006 which was received approximately 6 weeks later. 33) Mr. Andrews raped the Applicant of her rights to have her grievance advanced at the Grievance Settlement Board @ 180 Dundas St. W., in Toronto. 5. From a review of the text of the applicant's complaint, it would appear that the Union dropped her grievance after scant meetings with a Union official and a mediator without any explanation. If these allegations were proven, they surely would constitute the basis for a finding that a violation of section 74 had occurred. 6. However, a different picture emerges after reviewing the responses filed by the Union and the Employer. Not only did the Union not drop the grievance, but it proceeded to take the grievance to arbitration under a mediation/arbitration protocol specified in the collective agreement between the Union and the Employer. The Employer attached a copy of the decision of Arbitrator Barry Stephens which indicates that Arbitrator Stephens considered the Union's position on the grievance and rejected it because the agreed facts disclosed no violation of the collective agreement. 7. For its part, the Union provided a copy of the mediation-arbitration protocol, and additional details concerning the conduct of the arbitration. The Union also supplied a letter 'i. .' - 3 - indicating the applicant was informed of the arbitrator's decision much earlier than she stated in her application. The Union strenuously presses for the immediate dismissal of the complaint. 8. Rule 39.1 of the Board's Rules of Procedure permits the Board to dismiss a complaint without a hearing in appropriate circumstances. More specifically, Rule 39.1 provides as follows: 39.1 Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons. 9. Furthermore, the Board has a direction under section 96 whether or not to inquire into an unfair labour practice complaint, as subsection 96(4) states the Board "may inquire into the complaint". In Canadian Labour Law, Second Edition (Toronto: Canada Law Book, 2005), former Board Chair George W. Adams describes the circumstances generally in which the Board will exercise its discretion not to inquire into a complaint at 10.12(ii): . .. where there has been undue delay; to defer to another tribunal; where a complaint is without merit; or having regard to industrial relations considerations. 10. Following receipt of the responses of the Union and the Employer, unprompted by the Board, the applicant filed supplementary materials. In those materials, the applicant scathingly criticizes the mediation-arbitration system, but does not deny it exists in the terms set out in the collective agreement and mediation-arbitration protocol filed by the Employer and the Union. More importantly, the applicant not only does not deny that there was an arbitration decision made by Arbitrator Stephens, but encloses a copy of her request "to appeal the decision". At the same time she purports to maintain she was never provided a copy of the decision by the Union and her unawareness "there was a hearing". 11. There are contested factual disputes amongst the parties but they are ultimately not relevant to the Board's decision. At the same time, there are common facts. In coming to its decision in this matter, the Board will have regard to the objective uncontested facts in evidence. 12. The arbitrator's decision indicates that the applicant grieved two aspects of her re-hire as a member of the Ontario Public Service. The first aspect was her wage rate. The second aspect was the requirement for a new medical examination, based on the length of time she was out of the Ontario Public Service. The arbitrator found, on the evidence before him, all employees hired by the Employer in the relevant period were required to provide a "recent medical". On the facts, he dismissed the grievance. 13. The relevant provision of the collective agreement is as follows: 22.16 MEDIATION/ARBITRATION PROCEDURE Except for grievances concerning dismissal, sexual harassment and/or human rights, and Union grievances with corporate policy implications, all grievances shall proceed through the GSB to a single mediator/arbitrator for the purpose of resolving the grievance in an expeditious and informal manner. -4- 14. Upon review of the subject matter of the grievance, it is clear that the Union was required to proceed with the grievance to a single mediator/arbitrator by the governing language of the collective agreement. The grievance was over the applicant's wage rate and the requirement to provide a medical examination. Although the applicant tries to conflate these items into violations of "Charter Rights" and "OHRC Rights", they are not. They are basic employment rights conferred under the collective agreement between the Union and the Employer. The Union proceeded to arbitration in the only way it was permitted to under the collective agreement. There is no reason to doubt the arbitrator's decision on the facts before him. 15. However, a section 74 complaint is not about the decision of an arbitrator, but is about the Union's representation of an employee. A trade union is not required to take a grievance to arbitration simply because an employee wishes it to do so: Catherine Syme, [1983] OLRB Rep. May 775; Marcia Robertson, [1990] OLRB Rep. August 886. What a trade union is required to do is fairly put its mind to the merits of the grievance and make an informed decision on how to proceed: Martha Koch, Board File No. 262l-04-U, July 12, 2005; Tammy Blake (2004) 106 C.L.R.B.R. (2d) 15 (Ont.). 16. In this case, the Union did proceed to arbitration. The applicant misled the Board about this fact in her application. In her response, she admits there was an arbitration and attaches a copy of her request "to appeal" the result of the arbitration. This type of fundamental dishonesty is inimical to hannonious labour relations. Furthermore, it is an abuse of the Board's process. Where an applicant does not come to a tribunal with "clean hands", it is appropriate for the tribunal to deny the applicant a remedy: Re International Union of Operating Engineers, Local 793 and Traugott Construction Ltd., (1983), 45 O.R. (2d) 129 (Div. Ct.). 17. In this case, the applicant has misled the Board on a fundamentally important fact, which is that the Union took her grievance to arbitration. In order to maintain the integrity of its adjudicative process, it is important that the Board refuse to inquire into complaints where there is a blatent untruth about a fundamentally important fact. Therefore, the Board hereby exercises its discretion under subsection 96(4) to refuse to inquire further into this complaint. 18. Furthermore, assuming the Board should enquire into the complaint, it does appear the complaint is without merit. What the applicant is really seeking is a new arbitration hearing. However, the Union proceeded to arbitration along the only route permitted by the collective agreement. The applicant dislikes the mediation/arbitration procedure, but such procedure is mandated by the collective agreement, which is binding upon the Union, the Employer and the employee pursuant to section 56 of the Act. Moreover, the factual situation was not complicated. The arbitrator's decision is brief and to the point. In these circumstances, the Board would not grant the remedy sought by the applicant in any event. 19. Where the Board finds that there is no reasonable possibility or likelihood a complaint will succeed, the Board should dismiss the complaint without a hearing or consultation: J. Paiva Foods Ltd., [1985] OLRB Rep. May 690; Coca-Cola Bottling Company, [2004] OLRB Rep. Jan./Feb. 23. 20. For the reasons given above, the Board finds that it should exercise its discretion under subsection 96(4) of the Act not to enquire into this complaint, and that in any event the complaint has no reasonable possibility or likelihood of success. '~. , - 5 - 21. Accordingly, this complaint is hereby dismissed pursuant to subsection 96(4) of the Act and Rule 39.1 of the Board's Rules of Procedure. "Jack J. Slauj:!;hter" for the Board