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HomeMy WebLinkAbout2309-07-U - Boulam 08-12-29 ONT ARlO LABOUR RELATIONS BOARD 2309-07-U Violet Boulam, Applicant v. OPSEU, Local 593, Responding Party v. The Clarendon Foundation (Cheshire Homes) Inc., Intervenor. BEFORE: Mary Anne McKellar, Vice~Chair. APPEARANCES: Violet Boulam appeared for the applicant, Donna Walrond and Don Martin appeared on behalf of the Responding Party, Stephen Bemofsky and Sarah Kravetz appeared on behalf of the Intervenor. DECISION OF THE BOARD: December 29, 2008 Introduction 1. This is an application under section 96 of the Labour Relations Act, 1995 ("the Act"). The applicant alleges that the responding party trade union ("OPSEU's") has contravened section 74 of the Act. 2. This application was filed with the Board on October 19, 2007 and was listed for consultation on August 8, 2008. I convened that consultation, but adjourned it soon after. I issued a decision the same day detailing the circumstances in which I had decided to adjourn and providing some directions respecting production. It is not necessary to reproduce the entirety of that decision. It is sufficient to note that the application raises issues as to OPSEU's conduct in an arbitration hearing dealing with the applicant's tennination grievance, and that the applicant had indicated she had taken notes at the hearing but had not brought them to the consultation. 3. The matter came back on before me on December 4, 2008. In the meantime, the applicant had not produced to the other parties any notes that she had taken at the arbitration hearing and advised that she could not locate them. The intervenor ("the Employer") had located and exchanged with the other parties copies of notes taken by one of its representatives at the hearing. 4. At the conclusion of the consultation on December 4, 2008, I advised the parties orally that the application was dismissed and that I would issue written reasons for that decision. The Facts 5. Certain background facts are not in dispute. The applicant was an employee of the Employer in the bargaining unit represented by OPSEU. Her employment was tenninated in October 2005 following an altercation among employees in the staff lounge. OPSEU filed a grievance on her behalf. The grievance was ultimately referred to arbitration. OPSEU - 2 - representative Don Martin represented the applicant at the hearing. After a 5~day hearing, the grievance was dismissed. Written reasons were issued. It is clear from those reasons that the arbitrator found the evidence of other witnesses to be more reliable than that of the applicant. When the applicant spoke to OPSEU about the outcome of the arbitration proceeding, she made it clear she wished to take the matter further, but OPSEU indicated that it would not do so. 6. In her application the applicant's allegations about what occurred at the arbitration itself were the following: Representing the Applicant was a Union Steward by the name of Don Martin. The Applicant notes that at no time prior to the Arbitration Hearing did Mr. Martin meet with her to prepare her for the hearing. In addition, during the hearing, Mr. Martin failed to conduct croSs examination of the witnesses. Indeed, most of the witnesses were called by the Employer to show that the Applicant had been verbally abusive in the past but at no time was there an objection to this type of evidence, nor effective cross examination. 7, At the consultation on December 4, 2008, the applicant did not have a copy of her application (or the pleadings of the other parties). She maintained that she had never intended to suggest that Don Martin had not cross-examined the Employer's witnesses. She asserted that her complaints about his representation of her were the following: (1) he did not meet with her in advance of the arbitration to prepare for it, although she understood that was the usual practice; (2) he did not tell her until the day of the arbitration who the Employer witnesses would be; (3) after each Employer witness had testified he met with her and urged her to resign; (4) he asked her what questions he should ask the Employer witnesses when that should have been his job; (5) he did not ask the Employer witnesses all the question she wanted him to ask them; and (6) he was not responsive to her request that a lawyer present (or continue presenting) her grievance, 8. Don Martin explained that he normally does not become involved in grievances until the point at which they have been referred to arbitration, In this case, however, the staff representative who would normally have dealt with the grievance at Stage 2 was ill, so Martin got involved at that point. The applicant agreed that prior to the referral to arbitration, Don Martin had become involved in her grievance at Stage 2 and had met privately with her to discuss her version of the events that had led to her termination, and was aware of what her assertions were, As well, she agreed that on the first day of hearing he did meet with her before the hearing commenced and that one of the things he advised her of was the list of witnesses that the Employer intended to call. After each of those witnesses had testified in chief, he met with the grievor and he asked her what questions he should ask the witnesses, but did not ask all of the questions the grievor wanted him to. 9. There is no allegation that Don Martin was not aware of all the issues relating to the grievance and what the applicant's concerns about it were prior to the commencement of the arbitration hearing. He had gathered that information in his private meeting with her in connection with the Stage 2 meeting. It is not at al] clear to me what added value there might have been in his having another meeting with the grievor after the referral to arbitration but before the arbitration hearing commenced. The applicant herself did not specify what value ~ 3 - might have been added by that step in her case - she merely asserted that it was the "usual" or "normal" process. lO. OPSEU asserted that the Employer's list of witnesses was provided to the applicant at the first opportunity. The applicant is in no position to dispute that assertion. Further, it is not apparent to me, nor did the applicant specify, what disadvantage she associated with not having this information earlier, particularly in circumstances where the Employer led its case first and multiple days of hearing offered repeated opportunities to reassess the progress of the case and its likely outcome. I note that these allegations were not set out in the application. 11. The applicant also agreed that, despite the alleged repeated recommendations of Don Martin to "walk away" from or settle her case on the basis of a quit (rather than termination), she did not do so, and he continued with the hearing and with the cross~examination of witnesses. In other words, it appears that he respected her detem1ination to continue. She did not specify why his recommendations to her (if indeed they were made) to consider settling were inappropriate or disadvantaged her. I note that these allegations were not set out in her application. 12. There is an obvious inconsistency in the applicant's both asserting that Don Martin should not have asked her what questions to put to the Employer's witnesses because that was his job, and her assertion that he should not have exercised his own judgment to determined which of the question she raised should be asked. In any event, she could think of only one example of a case where she says she should have asked a witness about his whereabouts and the source of his knowledge of the matters about which he was testifying, because she asserted quite unequivocally that that witness had not been in the staff lounge at the time of the altercation. The applicant was unable to provide the name of this witness. Furthermore, as is apparent from the portion of her pleadings that I have reproduced above, this was not an allegation set out in her application. 13. The application does not assert that the applicant ever asked Don Martin or anyone else from OPSEU, to have a lawyer present her grievance. The applicant did not provide any specifics at the consultation about how she thought the retention of a lawyer might have altered the outcome of her case. 14. The applicant's application contains the following assertion about her communications with OPSEU after the arbitration award had been released: Subsequent to the hearing, sometime in December 2006, the Applicant was advised by Mr. Martin that the Arbitrator had upheld her termination. Upon being advised of this, the Applicant inquired as to whether Mr. Martin was going to consider an appeal to the Court because of the prejudicial evidence allowed in and he indicated that this would not be done. She then advised him that she would have to seek a lawyer and he indicated in words exactly as follows or close to it: "I hope you do not get a Black lawyer because they don't win cases in Toronto". - 4 - 15. With the exception of the statement attributed to Martin (and which he denies making) there is not a great deal of dispute about what happened after the award was released. Once OPSEU had received a copy of the arbitration award it did not, as Don Martin conceded, iI1ll11ediate1y send a copy to the applicant, in contravention of its usual practice. He agreed with the applicant's assertion that she initiated the conversation in which he conununicated to her the outcome of the arbitration and that this occurred a few weeks after the release of the award. OPSEU's assertion was that the applicant was told why OPSEU did not think an application for judicial review of the award would be successful. The applicant maintains that she was not provided with OPSEU's reasons. 16. When I asked the applicant if she took the position that OPSEU's decision not to seek judicial review was unreasonable she said that she did. When I asked her why, she said because the outcome of her grievance would have been different if different witnesses had been called or had been asked different questions. I explained that judicial review does not involve are-hearing of the arbitration matter, but instead focuses on whether there were CITors in the conduct of the arbitration hearing or the decision that issued. The applicant then asserted that there were some errors but she could not be specific as to what they were because she no longer had her notes. There were no such assertions of arbitral errors set out in her pleadings. Analysis 17. 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. 18. Insofar as section 74's application to grievances is concerned, the Board's caselaw recognizes that the bargaining agent has carriage of the grievance process, and that grievance processes including arbitration (and other aspects of union representation of bargaining unit employees) are often undertaken by union staff who are not lawyers. Further, the Board has said on a number of occasions that the bargaining agent is not obliged to take instruction from a grievor about how to present a grievance or about what witnesses to call or questions to ask. While it is of course possible that there could be circumstances where the strategic decisions respecting the presentation of a grievance were so completely off the mark that they could only be characterized as arbitrary, that is not this case. The applicant was unable to articulate with precision what she thought OPSEU should have done in the hearing, and further unable to make a causal nexus between OPSEU's alleged failures and the outcome of the hearing. 19. In these circumstances, I find that the applicant has not made out a case that OPSEU contravened section 74 with respect to the quality of the presentation of the applicant's grievance before the arbitrator. - 5 - 20. With respect to the allegation that OPSEU should have sought to judicially review the arbitrator's decision, the Board's caselaw under section 74 stands for the proposition that because of deference afforded by reviewing courts to arbitrators' awards such award would have to be truly outrageous before a failure to seek review could ever be characterized as arbitrary. It is virtually certain that, absent some jurisdictional error, no reviewing court would interfere with a decision, such as the award here, that was based solely on the arbitrator's assessment of the credibility of witnesses. On this point, the parties are referred to Toronto District School Board, [2002] O.L.R.D. No. 4313 and cases cited therein at ~~11 and 12. 21. The applicant has not made out a case that OPSEU contravened section 74 by deciding not to seek judicial review of the arbitration award upholding her tennination. 22. The applicant has attributed racialized remarks to Don Martin. He has denied uttering them (as.did the witnes'ses in the arbitration proceeding against whom the applicant had made similar accusations). This dispute need not be resolved to dispose of this case. Even if the remark were made, according to the applicant herself, it occurred AFTER OPSEU had concluded its representation of her at the arbitration and after it had communicated its decision not to seek judicial review of that award. 23. For all of the above reasons, this application was dismissed. "Mary Anne McKellar" for the Board