Award Number 14-007

Windsor Police Association
- and -
Individual

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Award Date: 2014-06-02
Arbitrator: Mackenzie, Ian
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Municipality: Windsor
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Region: South West
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Classifications: Associations, Associations
Grievor: Cst. C. Shaw
Appearances: J. Hewitt, for the Association, for the Association
J. Dean, for the Complainant, for the Employer
Length of Award:13 pp
Collective Agreements Cit. ----
Statutory Cit. Police Services Act

Summary


Associations   Duty of fair representation - Uniform members - Complaint alleging association breached its duty of fair representation by failing to pursue promotion grievance - Complainant alleged constable who was facing disciplinary charges should have been removed from eligibility list - Association reached agreement with service to maintain constable on list pending disposition of disciplinary charges - Complainant not demonstrating that in declining to pursue his grievance association acted in arbitrary, discriminatory or bad faith manner - No breach of duty of fair representation - Complaint dismissed.

Associations   Duty of fair representation - Uniform members - Complaint alleging association breached its duty of fair representation by failing to pursue promotion grievance - Burden of proving breach of duty lies with complainant - Elements of duty - Association had legitimate concerns about impact of complainant’s grievance on rights of another member who was on suspension - Association not required to obtain a legal opinion but rather to undertake a “thorough study” of the grievance - Association considered grievance seriously and undertook thorough examination of merits and implications - Decision not to pursue grievance not arbitrary, discriminatory or made in bad faith - Complaint dismissed.


Facts

Constable Shaw filed a complaint against the Windsor Police Association, alleging that the association breached its duty of fair representation in failing to pursue his promotion grievance. Employed since 1995, Cst. Shaw had participated in a number of promotion processes, including the one in dispute. The Windsor Police Service’s promotional policy #352 set out the procedure related to the top 17 eligible members. The policy contemplated that the top 17 from the previous year’s promotional list would maintain their ranked positions on the list, provided they remained eligible and were recommended as suitable. Constable Shaw was number 32 on the 2010 promotional eligibility list. Constable Nesbeth, who was number 9 on the 2010 eligibility list, was in a preferred job and in receipt of an allowance in addition to her salary. On August 24, 2010 she was suspended from duty for alleged misconduct. The association urged the WPS to allow Cst. Nesbeth to return to work pending the disciplinary proceedings under the Police Services Act. The WPS would not agree to that proposal but did agree to promote Cst. Nesbeth retroactively if she were vindicated in the disciplinary proceedings. Constable Shaw was number 20 on the 2011 promotional eligibility list. He and Cst. Cheney, who was number 18, both filed grievances in relation to the 2011 list. They objected to the “staying” of Cst. Nesbeth and another candidate, Cst. Parent, in the promotional process. Constable Parent, who was not in a preferred job, was number 7 on the list. In 2011 he became full-time acting administrator of the association. As a result of discussions with the WPS, the association and the administration agreed to stay Cst. Parent, meaning that other candidates could be promoted past him but he would be guaranteed slot number 7 when he returned to the WPS. That agreement resolved Cst. Cheney’s grievance; and in March 2012 she moved to number 17 on the list. In January the association’s board of directors met to consider Cst. Shaw’s grievance. The president of the association wrote a letter to Cst. Shaw, outlining the executive’s reasons for not pursuing his grievance. Foremost among those reasons was the association’s concern that a member facing allegations of misconduct, such as Cst. Nesbeth, should not be disadvantaged. The president testified that the association and the WPS reached an agreement that Cst. Nesbeth would remain on the list. To advocate for her removal from the list would not only have resulted in a loss of compensation to her; it would also have contradicted the association’s efforts to have Cst. Nesbeth return to work. The president testified that he did not consult with legal counsel prior to issuing the letter to Cst. Shaw or at any time prior to receiving the duty of fair representation complaint. In March 2012, after receiving a letter from Cst. Shaw’s counsel requesting that a grievance be filed concerning the promotional process, the association’s board met again, and confirmed its earlier decision. Constable Shaw did not put his name forward for the 2012 competition because he felt that it was unnecessary to do so, since he should have been in position 17 on the 2011 list.

Argument

Constable Shaw argued that Cst. Nesbeth should not have been on the promotion list because she did not meet the eligibility requirements under the promotion policy. He submitted that if the association had pursued his grievance he would have moved on to the list and been eligible for promotion. Constable Shaw argued that the association breached its duty of fair representation by protecting and preferring the interests of Cst. Nesbeth and Cst. Cheney over his interests. He asserted that the decision not to proceed with his grievance was arbitrary and unreasonable. Constable Shaw pointed out that the association failed to seek a legal opinion. He asked that his complaint be allowed. He also requested that the association be held jointly liable for his loss of income, and he further requested an award of $10,000 in damages for breach of the duty of fair representation. The association contended that a union, as the exclusive bargaining agent on behalf of employees, had considerable discretion in determining whether to pursue a grievance. The association maintained that its discretion was exercised in good faith and the decision not to pursue Cst. Shaw’s grievance was not arbitrary, discriminatory or malicious. The association argued that it acted reasonably and did not breach its duty of fair representation

Award #

Although the Police Services Act did not contain a duty of fair representation provision, the duty nevertheless existed at common law; and, as the Court of Appeal for Ontario had determined in Renaud v. Town of LaSalle Police Association (infra), allegations of a breach of the duty must be adjudicated under the arbitration provisions of the PSA. The complainant bore the burden of proving a breach of the duty of fair representation. The elements of the duty were articulated by the Supreme Court of Canada in Canadian Merchant Service Guild v. Gagnon (infra), in which the Court noted that a union has “considerable discretion” in deciding whether to pursue a grievance on behalf of an employee. The role of an arbitrator in hearing a duty of fair representation complaint was not to determine the correct disposition of the dispute; in fact, a union was permitted to make the wrong decision on the merits of a grievance, so long as it acted in a manner that was not arbitrary, discriminatory or in bad faith. While Cst. Shaw suggested that he was treated differently than Cst. Cheney, her situation was distinguishable: she moved to number 17 on the list as a result of Cst. Parent’s position; in turn, Cst. Parent’s situation was distinguishable from that of Cst. Nesbeth, since he was on secondment rather than on suspension, was not in a preferred job, and was not subject to an ongoing proceeding. The association was not required to obtain a legal opinion before deciding whether to pursue a grievance; instead, what was required was a “thorough study” of the grievance (Gagnon), which implied not just a legal analysis but also a labour relations analysis. In this case, the president did analyze the grievance and its possible impact on other members. The matter was discussed by the association’s board on two occasions, and Cst. Shaw was provided with a lengthy letter explaining the decision. The association demonstrated that it took the grievance request seriously and conducted a thorough examination of the merits and implications. The association’s conclusion on the effect of Cst. Shaw’s grievance was not arbitrary, discriminatory or made in bad faith. The association did not rely on irrelevant factors, and there was no evidence of any hostility or animosity towards Cst. Shaw. Constable Shaw did not demonstrate that the association breached its duty of fair representation. Accordingly, the complaint was dismissed.

Authorities Cited

• Canadian Merchant Service Guild v. Gagnon, [1984] SCR 509 • Re Lafrance and North Bay Police Association (2009), 187 L.A.C. (4th) 381 (Starkman); OPAC #09-010 • Re Renaud v. Town of LaSalle Police Association (2006), 151 L.A.C. (4th) 154; 2006 CanLII 23904 (OCA) • Cumming v. Peterborough Police Association, 2013 ONCA 670 (CanLII) • Switzer v. CAW-Canada, [1997] O.L.R.D. No. 2605 (OLRB)


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