CAW LAW REPORT

Greetings:

We usher in the New Year with a new issue of the CAW-Canada Law Report. Once again, we have attempted to focus on matters of law that are germane to all jurisdictions in Canada. One central theme to this issue is arbitration, specifically, arbitration procedures. We reaffirm to all our readers that copies of all decisions referred to in this publication are available in the files of the CAW-Canada Legal Department.

Three recent court decisions, one emanating from the Ontario Court (General Division) one from the Nova Scotia Supreme Court, and one from the Supreme Court of Canada have recently underlined the necessity of providing fair and reasonable notice of arbitration proceedings to employees or, indeed, other unions at the workplace in question, when their respective interests may be adversely affected by an arbitration proceeding.

I. The case in Nova Scotia involved firefighters in the city of Halifax and it is called William Mosher et al and City of Halifax and City Firefighters Benevolent and Protection Association, Local 268 (N.S.S.C.).

The collective agreement between the City of Halifax and the Association representing firefighters in Halifax provided that promotions within the department were to be made on the basis of skill, ability, and efficiency to do the job, with seniority as the governing factor if the skill, ability and efficiency of candidates were equal.

In March, 1989, during the life of a subsisting collective agreement, the employer unilaterally announced that it would also consider something called "personal suitability" as part of the promotional process. A series of promotions followed the employer's announcement. Four firefighters were promoted based on the employer's unilateral scheme. Two unsuccessful candidates grieved the employer's decision. A few days before the arbitration hearing on November 27, 1990, the association's counsel wrote to the four successful firefighters and others notifying them of the time and place of the hearing and informed them that they were entitled to be present and to be represented by counsel if they so desired. The association's lawyer indicated to the four successful firefighters that the union was alleging that the employer's promotional procedure was contrary to the collective agreement, and that the grievance could result in the cancellation of any appointment that had already been made. The letter was sent by ordinary mail and in one case was unstamped. One of the successful firefighters did not receive the letter until after the first day of the arbitration hearing.

The arbitrator upheld the grievance in question and invalidated the entire promotional routine because it conflicted with the collective agreement. The four successful firefighters challenged the arbitration award in court. They argued that they had not been notified of the matter at issue in sufficient time to protect their interests.

Judge Nunn of the Nova Scotia Supreme Court quashed the arbitration award. He found that adequate notice of the hearing had not been given to the complainant firefighters. He found as well that a copy of the grievance itself should have been delivered to the affected employees. He found that the notice of proceedings was not adequate because, amongst other things, it did not adequately and plainly state what was involved in the case. The Judge decided that the notice should not have been transmitted by ordinary mail. Further, given the importance of the issues, lengthier notice was required in order that those affected could have time to comprehend it, seek advice, retain counsel and/or prepare submissions. The Judge found as follows:

"There is no doubt that anyone under a collective agreement whose rights are to be diminished by some particular action of the union has the right to receive notice that his interests are going to be affected adversely. In this case, the question is was the notice proper? From the evidence that I have heard it is certainly clear that the notice was not served in an appropriate manner. I think that it should not have been served by ordinary mail or it should not have been put in an unstamped envelope and put in someone else's mail box by courier or otherwise. A matter of this importance should have been served personally or by registered mail. That is not a new test I am imposing. The second part of the test laid down is that the writing should indicate clearly the issue or issues to be arbitrated as involving the possible diminution of their collective agreement benefits. I don't think the letter in question here was clear."

Judge Nunn went on to state as follows:

"What should the association have done? It should have at least included a copy of the grievance with the notice. That is the starting document and the person should have been able to read that grievance, take it to his lawyer and use that as the basis of the decision he would make. Secondly, since it is the lawyer who is writing to people who are members of a union, I think that the function of the lawyer who is acting for the union should be to explain quite plainly what is involved. The notice did advise of the date of the hearing, but it was not timely. It is not sufficient to give a notice two or three days ahead of the arbitration in a matter as serious as this. This was an important issue. It was an issue which affected a large number of people, and a notice in this case must be given in sufficient time in advance of a hearing so that the person has a reasonable opportunity to comprehend it, to seek advice, to retain counsel and prepare his/her submissions. That cannot be done in one, two or three days in a matter such as this. So in this case, the letter should have identified the issues to be arbitrated, and should have included a copy of the grievance. It should indicate clearly if job promotions were at risk, and it should have indicated very clearly that the existing promotions would be at risk."

II. The Supreme Court of Canada recently and unanimously upheld the decision of the Ontario Court of Appeal in a case involving three different unions all of whom have bargaining rights with the Canadian Broadcasting Corporation, namely, CUPE, I.A.T.S.E. and NABET.

The Ontario Court of Appeal had held that notice of an arbitration must be given to any other union in the workplace that may be significantly affected by the outcome of the arbitration proceedings. The facts of this case are fairly straight forward. From time to time, the CBC broadcasts events or shows from the Metropolitan Toronto Convention Centre. For several years, up to December, 1987, the CBC would assign staging work at the Metropolitan Toronto Convention Centre to CUPE members while lighting work was handled by NABET members. However, in December, 1987, the International Alliance of Theatrical Stage Employees filed a grievance and claimed that both the staging and lighting work was work that properly and lawfully should be performed by its own members. The IATSE grievance proceeded to arbitration, without notice to CUPE or NABET. The arbitration board ruled that IATSE was entitled to both the staging and lighting work. Only after the work in question was transferred by the CBC to IATSE did the other two affected unions become aware that arbitration proceedings had indeed taken place. CUPE launched judicial review proceedings to challenge the arbitration decision in court, and NABET joined in.

In allowing the appeal, the Court of Appeal held that natural justice and fairness dictated that CUPE and NABET be given notice of the arbitration proceedings between IATSE and the CBC. Judge Carthy of the Court of Appeal held as follows:

"In my view, it was unfair and constituted a failure of natural justice to deal with the employment opportunities of the CUPE and NABET union members in the circumstances of this case, in the absence of notice and an opportunity to seek involvement in the decision making process."

In the result, the Ontario Court of Appeal quashed the arbitration award and awarded legal costs to both NABET and CUPE.

However, the Court of Appeal decision raised certain questions that were bothersome. If notice must be given to other unions affected by an arbitration award, does this mean that other unions which do become involved will be bound by the arbitration award? Will they be required to agree to do so as a pre-condition to participating in the proceedings?

The Supreme Court of Canada answered these questions and clarified the law to a certain extent in a decision issued on May 21, 1992. First, the Court affirmed that notice was required to be given to CUPE and NABET because the result of the arbitration could have a significant impact on them. This finding gives rise to the first principle of law to be distilled from the Supreme Court of Canada decision. Any other union present in a CAW-Canada workplace must be given notice of a CAW-Canada arbitration when the result of the arbitration could have a significant effect on the other union or its membership.

The Supreme Court of Canada also dealt with the questions outlined above, that is, whether an arbitration board would have jurisdiction to resolve a jurisdictional dispute if all the parties involved did not consent to the Board making such a determination. The Supreme Court held that it was up to the parties to determine whether a jurisdictional dispute would be resolved by an arbitrator or by the applicable Labour Relations Board. The Court could not grant jurisdiction to arbitrators to resolve jurisdictional disputes if the parties did not consent. The following is a quotation from the Supreme Court of Canada decision:

"The Ontario Court of Appeal quashed the award of the arbitration board dated December 4, 1987. It did so on the grounds that the failure to give notice of the arbitration to the Canadian Union of Public Employees and to the National Association of Broadcast and Electronic Technicians when the result of the arbitration could have a significant effect upon these unions constituted a denial of natural justice. We agree with the conclusion and disposition on that ground".

In other comments, the Court of Appeal went on to indicate that the arbitrator hearing the appellants grievance would have jurisdiction, despite the absence of the consent of all parties concerned, to determine the jurisdictional dispute involving the three unions. The respondents did not seek to uphold that portion of the reasons of the Court of Appeal. They were right to take that position. The issue does not appear to have been argued below and it was in those circumstances inappropriate to make any such determination. What transpires once notice of the arbitration is given, will be up to the parties. For example, they may consent to submit to the jurisdiction of the arbitrator so that the jurisdictional dispute of the unions can be resolved. Alternatively, they may wish to take steps to attempt to have the matter determined by the Canada Labour Relations Board. Whatever steps may be taken by the parties, the court cannot, simply by its order, bestow upon an arbitrator jurisdiction that does not flow either from a statutory provision or from the consent of the parties. The important issue resolved by this appeal is that those to be significantly affected by the arbitration should receive notice of the proceedings. Fairness and natural justice require no less. No other judicial disposition should be made at this stage."

This decision of the Supreme Court of Canada affirms that those to be significantly affected by an arbitration award are entitled to notice of the proceedings. This decision, then, impacts upon our obligation to give notice to other unions or affected employees in certain arbitration proceedings, and as well, it outlines our right to be notified, as a union, as well, by other unions in certain circumstances and in certain arbitration proceedings that affect our interests.

III. An Ontario Divisional Court decision recently examined the requirement for reasonable notice to interested parties in advance of an arbitration proceeding. The case of Jamison v. The International Brotherhood of Teamster, Local 141 reviewed the standards by which a union must ensure that those workers who may be prejudicially affected by an arbitration proceeding are given reasonable notice of the hearing date in question.

At issue in the Teamsters arbitration was whether or not a merger had taken place between two companies requiring the dove tailing of seniority. The union supported a position adverse to Jamison's interests. While Jamison was given oral notice of the arbitration almost two weeks in advance of the arbitration date, he did not clearly understand that he had a right to independent legal representation. His further inquiries about this right were unanswered. Two days before the hearing, Jamison received written notice. The Divisional Court found that this notice was provided at a hopelessly late date. Jamison had planned to be out of the country on vacation on the day of the arbitration, and did not appear at the arbitration. Jamison was not told that he could ask for an adjournment. While the Board of Arbitration was told that Jamison had been given notice, it was not told the reason for Jamison's absence. As a result of the lack of reasonable notice, the Court quashed the arbitration award and remitted the grievance for a new hearing before a differently constituted Board. The Court held, further, that Jamison was not required to first commence an unfair representation complaint before the Ontario Labour Relations Board before he could come to the court to seek relief for the unreasonable notice given to him.

A recent decision of the New Brunswick Court of Appeal has plainly ruled that more evidence than hearsay testimony will be necessary to uphold the dismissal of an employee for misconduct.

The specific facts revealed by this decision from New Brunswick illustrate that the New Brunswick Court of Appeal undertook a very difficult and delicate exercise when it attempted to balance two seriously competing interests.

The case involved an allegation made by a hospital patient "C" that a psychiatric attendant "R.B." at a New Brunswick hospital sexually assaulted C. The alleged victim was interviewed by the Royal Canadian Mounted Police. However, C decided not to lay criminal charges against R.B. Indeed, no charges were ever laid by the R.C.M.P. There were no eye witnesses to the alleged incident. The employer dismissed the attendant, R.B. R.B. grieved the discharge and the matter proceeded before an arbitrator. The alleged victim, C did not testify at the arbitration hearing. However, the arbitrator accepted into evidence the statements made by C to the R.C.M.P. Furthermore, the arbitrator treated these statements as the standard by which he would judge all other evidence adduced at the hearing. The arbitrator specifically made a finding that where the testimony of the grievor, R.B., conflicted with the statements made by C to the R.C.M.P., the arbitrator would prefer and rely on the statements made by C to the R.C.M.P. The arbitrator, therefore, in the result, confirmed the discharge of R.B. The arbitrator's decision was quashed by the New Brunswick Court of Queen's Bench because the arbitrator had based his decision solely on hearsay evidence. The decision of the Court of Queen's Bench was appealed by the employer to the New Brunswick Court of Appeal. The New Brunswick Court of Appeal unanimously dismissed the appeal of the employer. Judge Ryan of the New Brunswick Court of Appeal found as follows:

"The procedure followed is unique, if not novel. The arbitrator took each of the principle claims contained in C's statement to the R.C.M.P., written out by the police officer, and tested them for credibility in relation to other evidence presented. He then found "her evidence" credible. Some of the reasoning upon which the arbitrator relied was his speculative interpretation of what certain words, attributed to C, meant... The adjudicator also heard evidence from Dr. Real Potvin, C's psychiatrist, that C was not prone to telling untruths or fabricating stories. Two other witnesses, an area supervisor nurse, and a psychiatric attendant, testified that C did not make up stories. The arbitrator contrasted these opinions with R.B.'s denial and the defence of the complaint against him having been concocted by C. He then found the evidence of C credible as reflected in C's statement to the R.C.M.P. officer, despite the contradictory evidence of another witness that C told the other witness: "that thing about R.B. is not true. It's just a bunch of lies. I just said it about him because I don't like him."

I am not prepared to say that it was founded "solely" on hearsay evidence, but it is disturbingly close to that mark. In any event, the Judge held that the standard of natural justice and procedural fairness had not been met by the arbitrator. I agree. The primary objective of arbitration, to give each party a full and fair hearing following rules of procedure which satisfy that objective, has not been met in this case.

The principle established by this decision is that, no matter how serious an alleged act of misconduct may be, the discharge or discipline of a worker should not be confirmed by an arbitrator when the evidence presented against the worker is solely or substantially hearsay evidence. Something more must be put before the arbitrator to justify the discipline or discharge of a worker.

Many disciplinary or discharge grievances result in the payment of compensation for lost wages. Who is liable to repay the Canada Employment and Immigration Commission monies representing the sum of U.I. benefits received by the worker in question prior to the settlement of the grievance? Must the worker repay the dollar amount of the benefits received? Or, is the employer obliged to make the payment?

These questions were recently addressed by a Federal Court Judge appointed as an Umpire under the Unemployment Insurance Act.

The facts of the case are fairly straight forward. A worker was dismissed from her employment as a residential councillor on May 28, 1987. She applied for and received unemployment insurance benefits which began on June 21 of that same year. From the very beginning, she advised the Canada Employment and Immigration Commission that she would be challenging her dismissal. As a result, the Commission notified her employer on August 31, 1987, that if the employee was successful in such a case, the employer was obliged to deduct from any retroactive award or out of court settlement, an amount equal to the U.I. benefits which had been paid in the interim. Ultimately, the worker lodged a complaint concerning her dismissal with the Ontario Human Rights Commission. An out of court settlement was reached under which the worker was paid a lump sum of $12,500. It was established, as a matter of fact, that her settlement sum in the amount of $12,500 was based on the following break down: $3,400 for emotional stress, $2,350 for legal fees, and the remainder, $6,750 for lost income.

It was also established, as a matter of fact, that the worker's position clearly communicated to her employer was that any settlement reached would have to take into account the issue of the unemployment insurance benefits already received by the worker. It was established, therefore, that the worker had accepted a reduction in her potential recovery so as to reflect the unemployment insurance benefits already received.

Despite all of the above, the Canada Employment and Immigration Commission considered that all but the legal fees referred to above should be allocated as earnings. The Commission attempted to recover from the worker the $5,400 paid to her in unemployment insurance benefits in respect of the period for which the settlement was made. The worker challenged the Commission's ruling before a Board of Referees, which unanimously held that $6,750 of the money received should be allocated as earnings which would oblige the worker to repay $5,400 to the CEIC. This decision was appealed to an Umpire under the Unemployment Insurance Act.

The Umpire ruled that the worker was not liable for the repayment of unemployment insurance benefits. The relevant sections of the Unemployment Insurance Act dealing with the obligation of employers and employees to deduct and repay U.I. benefits read as follows:

"Return of Benefit by employee

Section 37-Where a claimant receives benefit in respect of a period and, pursuant to a labour arbitration award or court judgment, or for any other reason, an employer or any other person subsequently becomes liable to pay earnings, including damages for wrongful dismissal, to that claimant in respect of the same period and pays the earnings, that claimant shall pay to the Receiver General as repayment of an overpayment of benefit an amount equal to the benefits that would not have been paid if the remuneration had been paid or payable at the time the benefit was paid.

Return of benefit by employer

Section 38(1)-Where pursuant to a labour arbitration award or court judgment, or for any other reason, an employer or other person becomes liable to pay earnings, including damages for wrongful dismissal, to a claimant in respect of a period and has reason to believe that benefit has been paid to the claimant in respect of that period, that employer or other person shall ascertain whether an amount would be repayable under section 37 if the earnings were paid to the claimant and if so shall deduct that amount from the earnings payable to the claimant and remit that amount to the Receiver General as repayment of an overpayment of benefit.

Idem-38(2)-Where a claimant receives benefit in respect of a period and pursuant to a labour arbitration award or court judgment, or for any other reason, the liability of an employer to pay that claimant earnings, including damages for wrongful dismissal, in respect of the same period is or was reduced by the amount of the benefit or by a portion thereof, the employer shall remit that amount or portion thereof to the Receiver General as repayment of an overpayment of benefit."

The Umpire decided that section 38(2) of the Unemployment Insurance Act was relevant because, the Umpire accepted the Board of Referee's finding of fact that the settlement agreement had been based on an obligation by the employer to repay UI benefits to the Commission.

The Umpire found as follows:

"In view of the findings of the Board of Referees that the payment of the unemployment insurance benefits to the claimant was considered in making the settlement, this matter is governed by subsection 38(2) of the Unemployment Insurance Act rather than by section 37... I can and do find that, in light of the Board's finding of fact that unemployment insurance benefits paid to the claimant were considered in making the settlement with her, and I take this comment to be the same as a finding of fact that the amount of the unemployment insurance benefits paid to the claimant were taken into account by the employer to reduce the amount which it would otherwise be liable to pay her by reason of her wrongful dismissal, the Board's decision upholding the Commission's claim against the claimant for reimbursement of the over payment of unemployment insurance benefits be and the same is hereby set aside.

In the result, the worker was held not liable to repay UI benefits received. This decision underlines the importance of specifying in settlement agreements whether the wage component of a labour arbitration or human rights settlement has been adjusted to reflect the UI benefits already received by the workers in question. If it is made clear in the settlement agreement, or in a signed and mutually acceptable side letter that the employer's settlement payment has been reduced by the amount of unemployment insurance benefits received by the worker then the employer will be liable for repayment of unemployment insurance benefits to the Canada Employment and Immigration Commission.

A recent CAW-Canada unfair labour practice complaint before the Alberta Labour Relations Board has highlighted two important issues of labour law that are pertinent to all jurisdictions in Canada, namely, (1) does a worker have a statutory right to union representation at the point that an employer investigates an allegation of misconduct by way of a disciplinary interview and/or at the point that an employer imposes discipline upon that worker? (2) if so, how and where may this right to union representation be lawfully enforced?

Some, but far from all of our collective agreements contain language which provide a worker with the right to seek union representation at the point that a worker is interviewed regarding allegations of misconduct or, alternatively, at the time discipline is imposed upon that worker. Collective agreement language with respect to this matter may vary in its strength and scope.

For example, some collective agreements will establish a mandatory obligation upon an employer to inform the worker in question of his/her right to union representation with the consequence that if the worker is not so informed, any discipline imposed will be nullified. Even stronger collective agreement language will establish an employer's obligation to arrange for the attendance of a union representative, whether or not the worker in question asks for union representation, before any disciplinary interview begins or discipline is imposed. Once again, a collective agreement may provide that the failure of an employer to make such arrangements would render any discipline imposed void.

What is the state of the law if the applicable collective agreement is silent and fails to address the issue of union representation in any way? What representational rights, if any, will workers enjoy if their collective agreement is silent?

These questions were recently addressed by Alberta Labour Relations Board in a decision called Calco Club and Calgary Co-Op Association Limited (1992) Alberta Labour Relations Board Reports 77. The facts of this case may be concisely stated. The employer dismissed three employees, alleging theft of employer property. On suspicion of theft, the employer had its security personnel interview each employee. Each employee requested the presence of her union representative at the interview but was denied this request. The collective agreement gave an employee the right to the assistance of a union representative "for reasons of discipline or dismissal". The union filed grievances and a complaint under section 146(1) of the Alberta Labour Relations Code. The employer denied the grievances on the ground that the interviews in question were investigative, not disciplinary. The employer argued that the Board should defer the question to the grievance arbitration process. The Board held that the complaint raised issues of statutory proportions that the Board should hear. The Board held that the denial of union representation violated the Alberta Labour Relations Code, and specifically, section 146(1). The Board also reviewed and adopted American and other Canadian jurisprudence which held that it is an unfair labour practice to deny an employee the assistance of a union representative at an interview or meeting that the employee reasonably believes may result in discipline or that involves an issue affecting many employees. The Board, following American and other Canadian jurisprudence, found that the right to union representation is not confined to formal disciplinary interviews. A union presence at an investigative interview that may reasonably result in discipline safeguards the employee's rights to fair process and assists the union in discharging its duty of fair representation towards the employee.

The Board specifically adopted this passage from a decision of the Quebec Labour Court in a case called Real Chapdelaine (1982) 6 C.L.R.B.R. page 1.

"In this case the employee asked for and was refused the presence of a union representative during an interview at which he had reason to believe that his alleged insubordination would be discussed. The normal consequences of such a disciplinary interview might have a precedential value for the whole group of employees. Thus the employee exercised a right arising under the legislation and there was a relationship between his exercise of that right and the disciplinary measure imposed.

The absence of provisions in a collective agreement regarding the manner in which the right to union assistance may be exercised does not mean that an employee may demand the presence of a co-worker on all occasions when an employer's representative wishes to speak with him. Numerous circumstances may limit the practical exercise of the right to union representation but what is fundamental is that the exercise of the right may not be refused in principle. It is not correct to say that the right in question exists only if provided by a collective agreement. The latter can regulate only the method in which the right may be exercised. In Quebec the exercise of the right could be set out as follows:

1. the employee has a right to union assistance in speaking with employers as soon as there is a union formed pursuant to the legislation;

2. the right exists when the discussion might have repercussions on other employees' working conditions;

3. such repercussions can be said to exist although not exclusively during the course of discussions concerning disciplinary problems;

4. the right exists under the legislation itself whether or not the collective agreement deals with the method in which it is to be exercised;

5. if the employer's refusal goes to the right itself to union assistance and not to a particular method in which the intervention is to be carried out it has denied the employee a right recognized under the legislation."

As well, the Alberta Board specifically adopted this passage from an Ontario Labour Relations Board decision called Ontario Nurses Association and Windsor Western Hospital 8 C.L.R.B.R. (NS) 352:

"We now turn to the allegations against the Hospital. In essence it is alleged by the Association and the complainant that the Hospital interfered with the representation of an employee within the meaning of s.64 of the Act. We start by accepting that representation within the meaning of s.64 of the Act includes the representation of employees at the time that formal discipline is imposed and during the processing of any subsequent grievance. Although this Board has never before been required to articulate the extent of the union's right in this regard, it flows naturally from the overriding purpose of the Act; that is, to redress the imbalance that exists when an individual employee is forced to deal with his employer in respect of his employment relations. The United States Supreme Court, in upholding an interpretation of s.7 of the National Labour Relations Act, which gives employees the statutory right to union assistance in a disciplinary proceeding, observed that sound policy reasons support the finding of an independent right to union representation at such a hearing. (See J. Weingarten Inc. and Retail Clerks, Local 455 (1973), 485 F. 2nd 1135, 84 LRRM 2436 U.S.C.A. 5th circuit); certiorari granted (1975), 430 U.S. 251 (Sup Ct.))

The whole scheme of our Act is to reverse the imbalance that exists between the individual employee and employer. The Act provides for the certification of trade unions to act as a collective representative for all of those falling within a bargaining unit found to be appropriate for collective bargaining. It is clear on a reading of the Act as a whole that the right to collective representation encompasses not only the negotiation of individual employees in pursuit of or in protection of their rights under the collective agreement. It follows that just as under the American and Quebec statutes, which are designed to serve essentially the same purpose, the right to collective representation under the Labour Relations Act (embodied in the right accorded to all persons under section 3 of the Act to join a trade union and participate in its lawful activities and the prohibition in section 64 of the Act against interference with the representation of employees by a trade union) extends to include union representation at a meeting called by the employer to charge an employee with misconduct or to impose discipline. While the statute does not give an employee the right to choose his union representative, it does protect the right to representation and prohibits employer interference with this right. It is not for the employer to decide who will be the employee's representative at a discipline meeting or to put impediments in place that can not be reasonably justified."

The Alberta Labour Relations Board therefore found as follows:

The Ontario Labour Relations Act, R.S.O. 1980, c. 228 provides in section 3:

Every person is free to join a trade union of his own choice and to participate in its lawful activities.

Similarly the Canada Labour Relations Board has addressed this issue in Public Service Alliance of Canada v. Canada Post Corporation (Decision No. 544 December 30, 1985). The Board found that the employer violated the Canada Labour Code by denying representation to employees at meetings where employees were being moved from union to non-union positions. The provision of the Canada Labour Code, R.S.C. 1985, c. L-2, protecting an employee's right of association, Section 8, is virtually identical to our Section 19 and Ontario's Section 3. The provisions of the Canada Labour Code respecting employer interference in a trade union, being Section 94(1) are identical to Section 146 (1)(a)(ii) of our Code. The Board said at p. 176-177:

Just as an employee threatened with disciplinary action has the right to request his union's help because the rights he enjoys under his collective agreement are jeopardized, so must he have this right where these same rights are endangered by a unilateral action of a different kind taken by the employer. An employee who stands to lose his unionized employment because his position was initially reclassified or "reorganized" outside any bargaining unit can ask his union to represent him in such circumstances. An employer who prevents the union from discharging this duty interferes with the representation of this employee by his union.

Whether one is dealing with a disciplinary measure or a reorganization, in both cases, basic rights are threatened by a unilateral decision of the employer, without regard to the validity of this decision. That is the crux of the matter. For an employee to have given up his employment or any position within the bargaining unit in the present circumstances was tantamount to surrendering the rights and benefits conferred by a collective agreement. An employee has the right to his union's help, which is, moreover, the reason why the union exists. The complaint is therefore upheld in this court."

We adopt the rationale of these cases. Employees in Alberta have the statutory right to participate in the lawful activities of a trade union. One of those lawful activities is the representation of employees. The cases cited above also point out that union also have a duty, pursuant to provisions similar to section 151 of the Code, to fairly represent employees with respect to their rights under a collective agreement. It may be difficult for the union to meet its obligation when it is denied access by the employer. We make no findings on this last issue in this case.

Did the employees have reasonable grounds to believe that the investigatory interviews could lead to discipline? In our view, they did. In the facts of this case, the Security Officer was acting on behalf of the employer when he questioned the employees.

We cannot accept the employer's position that these investigatory interviews do not affect the rights of employees. The stated purpose of the interviews is to confront employees with alleged wrongdoing involving store security and to gather information from the employee. discipline, likely dismissal, is a reasonably anticipated consequence of the interview.

An employee may easily be intimidated by the investigation process. The presence of the union representative would provide some measure of comfort to the employee. The employee may also need information about the employee's rights in such interviews. To restrict representation to the meeting imposing formal discipline is to prejudice the rights of the employees to fair process. It may also prejudice the opportunity of fair settlement of the matter in the grievance process. Once discipline is imposed, the Union, in accordance with its duty of fair representation, will likely represent the employee through to arbitration. The union's discretion to settle or discontinue the grievance becomes more restricted if the employee is claiming intimidation in the interview. However, if the union representative is present at the interview and heard a convincing confession by the employee, the union is more likely to resolve the matter early in the grievance process. This approach makes labour relations sense.

Nor do we suggest that an employee can request Union representation for every meeting or discussion with the employer. We adopt the criteria in the cases referred to above. The issue must affect many employees or the employee must reasonably believe discipline will follow.

We find that the employer breached Section 146(1)(a)(ii) by refusing to allow union representation to these employees who requested it at the investigatory interview. The charge against the employees was a serious one, theft, and the consequences the most severe available to an employer.

The Alberta Board therefore decided as follows:

We adopt the rationale of these cases. Employees in Alberta have the statutory right to participate in the lawful activities of a trade union. One of those lawful activities is the representation of employees. The cases cited above also point out that unions also have a duty, pursuant to provisions similar to Section 151 of the Code, to fairly represent employees with respect to their rights under a collective agreement. It may be difficult for the union to meet its obligation when it is denied access by the employer. We make no findings on this last issue in this case.

Accordingly, it is fair to conclude that there is, in Canada, a free standing statutory right to union representation at the point that a disciplinary interview is conducted, or discipline is imposed. As well, there is a free standing statutory right to union representation with respect to a worker's attendance at important meetings which impact upon workers basic rights to job security etc. These free standing rights to union representation exist regardless of the language of any given collective agreement.

II.

This brings us back to the unfair labour practice complaint which was filed by the CAW-Canada against an Edmonton based company called Alberta Engine Rebuilders.

In the CAW-Canada complaint before the Alberta Labour Relations Board, the union referred to two specific incidents in which workers requested the assistance of a union representative at the time discipline was being imposed upon them. The employer refused the workers' request. In one case, the employer official said the union representative was busy at work and could be contacted by the worker later in the day.

There was one significant complicating factor to what seemed to be a strong case for the union before the Board. The employer argued that the matter should be deferred to arbitration and not proceed before the Labour Relations Board. In this regard, the employer relied on a fairly unique provision of the Alberta Labour Relations Code which provides as follows:

"Section 15(3)(d) When a complaint is made under subsection 1, a reference is made under subsection 2 or any other application to the Board is made under this Act, the Board may do one or more of the following:

(d) where the matter and issue is properly the subject of a collective agreement arbitration, or some other proceeding authorized by statute, decline to proceed with the matter or proceed on any terms that the Board considers just.

The employer referred to the fact that the CAW-Canada's collective agreement at Alberta Engine Rebuilders contained language guaranteeing union representation to workers who requested same at the time the employer intended to impose discipline. The employer therefore submitted that the Alberta Labour Relations Board should defer the matter to arbitration, since grievances had been lodged by the union with respect to the company's actions. The union argued in reply that our complaint was based on a clear violation of the Labour Relations Code, was a matter of public policy, and established a right to representation which was much broader than that defined by the collective agreement. In our view, the legislative right established by the Code was all encompassing and should be the primary focus of any complaint of interference in union representational rights.

The Board ruled in favour of the employer and deferred the matters to arbitration. In my view, the Board was fearful of encouraging the filing of similar unfair labour practice complaints, and as such, the Board was fearful of increasing its workload. The meaning of the Board's decision is that where a collective agreement provides a substantial right to union representation, and an arbitration hearing constitutes a real and effective alternative, a Labour Relations Board may defer the matter to arbitration. However, on the other hand, where the collective agreement is silent in this area, a Labour Relations Board should proceed and hear the unfair labour practice complaint as is.

In late September, 1992 the Supreme Court of Canada released a decision, referred to as "Renaud", which discusses the liability of a union in breaches of human rights legislation where the discrimination is as a result of adverse effect discrimination. (Adverse effect discrimination occurs where conduct may not be discriminatory in all cases, but does have a discriminatory effect in some situation. This is different from direct discrimination which is always discriminatory and never justifiable.)

The Renaud case involved a CUPE member who was a Seventh Day Adventist who, through his seniority, bid on a "prime" shift that required him to work Monday to Friday, from 3pm to llpm. Renaud's religion forbade him to work from sundown Friday to sundown Saturday. The employer had proposed an accommodation of a Sunday to Thursday shift for Renaud that would require the union's consent as the accommodation was not within the collective agreement's terms. The union denied its consent and warned the employer that if the employer acted unilaterally to implement the accommodation, the union would file a policy grievance. The employer terminated Renaud's employment for failing to work the Friday shift.

At issue was (1) the duty on the employer to accommodate; (2) the liability of the union, if any; and (3) the union's duty to accommodate.

The Court held that the employer had a duty to accommodate to the point short of undue hardship. In this case the employer should have acted unilaterally to impose the accommodation, which the Court found to have been reasonable. The Court held that the failure to implement the accommodation could not be justified on the basis that the employer faced defending a grievance by the union. The cost of defending a grievance was held not to constitute "undue hardship". The Court will consider the impact of proposed accommodations on other employees, however, the employer would have to show actual substantial interference with the rights of other employees in order to claim that the interference with the employer's operations, as a result of accommodation, was undue.

The Court held that a union which causes or contributes to the discriminatory effect incurs liability. In order to avoid imposing absolute liability, the union must have the same right as an employer to justify the discrimination, so it must discharge its duty to accommodate.

The Court held that the union's duty to accommodate arises in two ways: 91) by directly participating in the formulation of the work rule, i.e., in the collective agreement; or 92) while not involved in the formulation, it impedes the reasonable efforts of the employer to accommodate.

The Court ruled that in the first situation, it has to be assumed that all provisions of collective agreements are formulated jointly by the parties and that they bear responsibility equally for their effect on employees. The Court stated:

"I do not find persuasive the submission that the negotiations be re-examined to determine which party pressed for a provision which turns out to be the cause of the discriminatory result. This is especially so when a party has insisted that the provisions is enforced."

With respect to the second situation where the union's duty to accommodate arises, the Court held that while the union is not initially a party to the discriminatory conduct and doesn't initially have a duty, the union incurs a duty to not contribute to the continuation of the discrimination.

The focus of the union's duty is different than that of the employer given the union's representative role. The Court stated:

"The primary concern with respect to the impact of accommodation measures is not, as in the case of the employer, the expense to or disruption of the business of the union but rather the effect on other employees. The duty to accommodate should not substitute discrimination against other employees for the discrimination suffered by the complainant. Any significant interference with the rights of others will ordinarily justify the union is refusing to consent to a measure which would have this effect. Although the test of undue hardship applies to a union, it will often be met by a showing of prejudice to other employees if proposed accommodating measures are adopted."

While the union and the employer who are co-discriminators are equally liable to accommodate the employee, there is an expectation that the employer will initiate the process of accommodation and take steps that are reasonable:

"If the proposed measure is one that is least expensive or disruptive to the employer but disruptive of the collective agreement or otherwise affects the rights of other employees, then this will usually result in a finding that the employer failed to take reasonable measures to accommodate and the union did not act unreasonably in refusing to consent...In such circumstances, the union may not be absolved of its duty if it failed to put forward alternative measures that were available which are less onerous from its point of view...This does not mean that the union's duty to accommodate does not arise until it is called on by the employer. When it is a co-discriminator with the employer, it shares the obligation to take reasonable steps to remove or alleviate the source of the discriminatory effect."

Where the union is not a co-discriminator, its duty arises only when its involvement is required to make accommodation possible and no other reasonable alternative resolution could be found.

The Court ruled that the union bears the burden of proof to demonstrate that the denial of accommodation was justified as it would adversely affect the rights of other employees.

The Court concluded that the union had an "original" duty to accommodate, having agreed to incorporate the work schedule into the collective agreement and having insisted on adherence to it. The union's conduct was a factor in the formation of the discriminatory requirement and also contributed to the continuation of the discrimination with its refusal to accept reasonable accommodation.

It is anticipated that this case will have far reaching and long lasting impact upon unions. unions will be held liable for agreeing to provisions of collective agreements that may not be discriminatory on their face, but have a discriminatory impact in sometimes unforeseen situations. Unions will have to be creative in accommodating all workers in the workplace in the search for measures of compromise that do not result in substantial interference with the rights of other workers. The Court was clear in its statement that bargaining history will have no bearing on liability where parties have agreed to a provision that has a discriminatory impact. While all our collective agreement should be scanned for obvious direct discrimination (such as defining "spouse" in terms of an opposite sex partner), it is not possible to anticipate all potential adverse effect discrimination situations that may arise regarding any given provision of the collective agreements. However, local unions should be made aware of their duty to accommodate either as co-discriminators, or in co-operating with the employer to implement an accommodation.

Reference: Central Okanogan School District No.: 23 v. Renaud, Supreme Court of Canada, September 24, 1992.

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