Award Number 24-008

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Award Date:	2024-06-24
Arbitrator:	Starkman, D View awards by Starkman, D
Municipality:	Toronto View awards from Toronto
Region:	Central View awards from Central
Classifications:	Associations
Grievor:	O. Delvalle
Appearances:	O. Delvalle, Applicant, for the Association C. Jones and L. Pearce, for the Association, for the Employer
Length of Award:	6 pp
Collective Agreements Cit.	----
Statutory Cit.	Police Services Act

Summary

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Associations   Duty of fair representation - Applicant refused to sign negotiated last chance agreement - Association did not grieve applicant’s subsequent termination and withdrew grievance concerning denial of sick benefits - Association not breaching duty of fair representation - Application dismissed.

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Facts

The applicant, Mr. Delvalle, had been employed as a Parking Enforcement Officer with the Toronto Police Service since December 2014. In April 2018 he was suspended without pay after being charged with impaired driving. In March 2019 he pled guilty to impaired driving and failing to provide a breath sample. Mr. Delvalle was then diagnosed with alcohol use disorder. He was placed on sick leave, received sick benefits, and attended a residential treatment program, which he did not complete, due to his continued use of alcohol. In September 2021 Mr. Delvalle’s sick benefits were suspended for non-compliance with treatment. The association filed a grievance on his behalf. In the spring of 2022, the employer was preparing to terminate Mr. Delvalle. The association and the employer negotiated a last chance agreement (LCA). However, Mr. Delvalle did not agree with the terms of the LCA, particularly the requirements that he abstain completely from alcohol and be subject to random urine and blood testing. Mr. Delvalle was terminated in September 2022. The association did not grieve his termination and withdrew the sick benefits grievance. Mr. Delvalle filed an application, alleging that the association violated its duty of fair representation.

Argument

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Award #

An association or union which holds exclusive bargaining rights has a statutory duty of fair representation towards its members. The content of this duty was identified by the Supreme Court of Canada in Canadian Merchant Service Guild v. Gagnon (infra) and applied in various decisions from labour boards. As explained in Gagnon, the right to pursue a grievance to arbitration typically belongs exclusively to the union. An employee does not have an absolute right to arbitration, and a union can exercise its discretion not to proceed with a grievance. As long as the union exercises its discretion in good faith, after an honest and thorough consideration of the grievance, and its decision is not arbitrary or discriminatory, the union will have met its statutory duty. In this case, the association engaged with Mr. Delvalle, tried to assist him, and negotiated with the employer on his behalf. The association was aware of his concerns about the terms of the LCA. After considering the situation, the association decided not to challenge the termination or pursue the denial of sick benefits. There was no indication that the association’s decision was arbitrary, discriminatory or made in bad faith. Application dismissed.

Authorities Cited

• Canadian Merchant Service Guild v. Gagnon, [1984] 1 SCR 509 • Murray Hill v. CUPE, Local 793 [OLRB] No. 2797-05-U

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