Award Number 15-007

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Award Date: 2015-11-05
Arbitrator: Starkman, D
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Municipality: Ottawa
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Region: East
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Classifications: Associations
Grievor: Sgt. D. Spicer
Appearances: D. Spicer, Complainant, B. Cole, for the Association
Length of Award:61 pp
Collective Agreements Cit. ----
Statutory Cit. ----


Associations   Duty of fair representation - Uniform members - Complainant alleged association violated duty of fair representation - Complainant advanced a number of complaints - Primary complaint that he was improperly transferred from Intelligence Unit - Association understood complaint, communicated with complainant and negotiated a settlement on his behalf - No evidence that association treated complainant unfairly or in an arbitrary, discriminatory or bad faith manner - Association was entitled to decline to take complainant’s grievance to arbitration - Breach of duty of fair representation not established - Complaint dismissed.


The complainant, Sgt. David Spicer, alleged that the association violated its duty of fair representation in the manner in which it handled his grievance and by refusing to take his grievance to arbitration. The complainant, who represented himself at the arbitration hearing, provided a detailed time line of the genesis of his complaint and his dealings with the association. His primary complaint was that he was improperly transferred from the Intelligence Unit in January 2012. He regarded this transfer as a punitive reaction to prior conversations and dealings with his supervisor, S/Sgt. Ladouceur. Much of the evidence he provided concerned his attempts to have this transfer and his concerns investigated by the service. Sergeant Spicer went on sick leave from mid-January 2012 until May 2012. Beginning in May 2012 Sgt. Spicer had dealings with the association president concerning his return to work. He provided the association with a history of his complaint and a proposed remedy. Beginning in August 2012 the association had discussions with management concerning Sgt. Spicer’s removal from the Intelligence Unit. A draft settlement was negotiated and underwent several revisions, none of which were acceptable to Sgt. Spicer, who felt that the proposed remedies were inadequate. His view was that without a public admission of wrongdoing by the service, the dispute should proceed to arbitration. The association sought a legal opinion, which concluded that the service’s proposed settlement offered as much as the complainant could hope to obtain at arbitration. When Sgt. Spicer rejected the employer’s final offer, the association declined to take the matter to arbitration and wrote to him, explaining its decision. The association president testified that the grievance committee did not feel that advancing the grievance to arbitration would yield anything more than the deal offered or that taking the matter to arbitration would benefit the entire membership.


Sergeant Spicer claimed that the association breached its duty of fair representation by not taking his grievance to arbitration. He asserted that the association: failed to investigate his grievance concerning his transfer from the Intelligence Unit; failed to investigate his allegations that he was denied promotional opportunities; and failed to investigate the circumstances surrounding his 2011 performance evaluation or the circumstances surrounding his removal from the Street Check Distribution List. The association agreed that the service had improperly transferred Sgt. Spicer but contended that the settlement offered by the service was a reasonable settlement. The association denied that it breached its duty of fair representation to Sgt. Spicer.

Award #

Sergeant Spicer had a number of concerns: he felt that he was improperly transferred from the Intelligence Unit; that he was denied promotional opportunities; that his 2011 performance review was inaccurate and/or unfair; that he had been abused by S/Sgt. Ladouceur and that the service did not properly investigate his allegations. He also was concerned that a fellow officer was allowed to use his police cruiser for personal purposes, a matter which he brought to the attention of the chief. Sergeant Spicer asserted that the association failed to investigate his concerns and complaints. However, there was little investigation required by the association. The scope of a union’s duty to investigate an issue turned on the context of the complaint. A union should gather sufficient information to enable it to make an informed decision. In this case, the complainant provided significant and detailed information about the substance of his complaint, namely his removal from the Intelligence Unit. The association accepted this information as being accurate and proceeded to discuss the matter with management and to seek a resolution. While Sgt. Spicer submitted that the association misunderstood his grievance, he could have approached the grievance committee to clarify his complaint. In any event, the committee had sufficient understanding of the grievance to make an informed decision; and they consulted the complainant throughout the process of negotiating a settlement. Sergeant Spicer was not prepared to sign a settlement with a confidentiality clause, because he felt that he would succeed at arbitration and that his success would send a deterrent message that other managers could not treat other police officers in a similar fashion. However, an allegation that an association had breached its duty of fair representation was not an opportunity to examine the merits of a grievance. Instead, it was an inquiry into the conduct of the association and the process it used to arrive at a decision about taking a grievance to arbitration. In this case, the association understood the complaint, communicated with Sgt. Spicer on numerous occasions and negotiated a settlement of the grievance. Although Sgt. Spicer testified that the association did not like him because of his previous work in Professional Standards, there was no direct, specific evidence to support that theory. Thus there was no evidence that the decision not to refer the grievance to arbitration was motivated by personal animosity or other improper considerations. The onus was on the complainant to establish a breach of the duty of fair representation. There was nothing in the significant amount of evidence presented by Sgt. Spicer to support an allegation that the association treated him unfairly or in a manner that was arbitrary, discriminatory or in bad faith. The association did not share the complainant’s view that taking his grievance to arbitration would benefit the membership as a whole. The association had carriage of the grievance, and that was a decision which it was entitled to make. Complaint dismissed.

Authorities Cited

• Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509 • Cadieux and ATU, Local 1415, 2012 CIRB 856 • Noel v. Societe d’energie de la Baie James, [2001] 2 S.C.R. 207 • Virginia McRae Jackson et al., CIRB Decision No. 290 Oct. 2004 • Mr. G, CIRB Decision No. 399 Dec. 2007 • Schiller and CAW-Canada, CIRB Decision No. 435 Jan. 2009 • Lemi and CAW-Canada, CIRB Decision No. 24 July 1999 • Baribeau and CUPW, CIRB Decision No. 302 Dec. 2004 • Christopher Shaw and Windsor Police Association (2014), 244 L.A.C. (4th) 233 (MacKenzie) [OPAC #14-007] • Judd v. CUPE, Local 2000 [2003] BCLRB No. 63 • McLeod v. Camco Inc. [1987] OLRB Rep. 547

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