The Ontario Labour Relations Board has denied a request by the Canadian Union of Public Employees (CUPE), Local 139, to reconsider a duty of fair representation ruling that found it acted arbitrarily toward ones of its members who was terminated from his job at a hospital.
The union’s application to revisit the ruling centred on the argument that the original decision contained errors in both fact and policy. The Board dismissed these submissions and upheld its finding that Local 139 failed to properly inform the worker — P.C. — about additional, significant allegations that emerged during a workplace investigation into sexual-harassment-related misconduct.
Background
Local 139 had represented P.C. in challenging his discharge by the Hospital, which alleged that P.C. “engaged in a course of conduct that included unwelcome and inappropriate comments of a sexual nature” and other serious misconduct. The hospital’s termination letter contained broad language indicating that P.C. had committed workplace misconduct beyond just comments.
The union initially grieved the termination, but later withdrew that grievance. P.C. argued that Local 139 had made its decision based on incomplete information and without giving him a fair chance to respond to all the allegations.
The Board’s original ruling allowed P.C.’s application, citing that the union’s process was deficient, even if its ultimate decision against arbitrating might well have been correct on the merits. The union then filed a request for reconsideration, claiming that the Board had made critical factual errors, misapplied existing policy, and imposed an “irrationally high standard” on the union. The union also suggested that, in a case alleging sexual harassment, there had to be careful balancing between protecting witnesses’ privacy and informing the grievor of key details.
CUPE’s reasons for reconsideration
Local 139 raised two central points in asking the Board to revisit its decision:
Alleged significant factual error: The union contended that the Board’s finding rested on the incorrect assumption that the Hospital’s decision to terminate P.C. involved “additional grounds” of misconduct not disclosed to P.C. They argued that most of the information discovered during witness interviews—some of which included allegations of hugging or physical contact—merely expanded on points already put to P.C. at two interviews conducted by the Employer. According to the union, these were not genuinely “new” allegations.
Purported expansion of policy: Local 139 claimed the Board’s ruling placed an unfairly strict obligation on unions to disclose “every detail” of an employer’s case. The union argued that privacy obligations, especially in sexual harassment cases, constrained how much they could reveal to a grievor, and that requiring complete disclosure could lead to “procedural mire” and heightened costs.
The board’s analysis
The Board rejected each of the union’s claims, noting that many arguments were merely a rephrasing of points already raised during the initial consultation. According to the Board’s well-established standards, reconsideration is typically granted only if there is truly new evidence that was not previously available, or if there is a major and overlooked policy issue. The Board found neither of these was the case.
Failure to inform worker of additional allegations
Throughout its reasons, the Board emphasized that the heart of the union’s shortcoming was not in deciding to settle or withdraw the grievance. Rather, it was that the union failed to keep P.C. properly informed about key pieces of information — particularly fresh or more serious allegations that witnesses raised.
According to the Board, the union had assured P.C. during the mediation phase that there were witness accounts corroborating the Employer’s case. However, the union did not give him enough specific information for him to make a fully informed choice regarding settlement or continuing the grievance to arbitration. In the Board’s words, the union knew that “witnesses also described other incidents where the Applicant engaged in serious misconduct,” yet those details were never presented to P.C. so he could respond or factor them into his settlement calculations.
Relevance of ‘arbitrary’ standard
Local 139’s arguments about overreach by the Board were also addressed. The Board reiterated that “arbitrary” under section 74 of the Labour Relations Act includes “unreasonable in the circumstances.” A union is not required to be perfect or to guarantee a particular result. However, it must act honestly, objectively, and with sufficient regard to a member’s interests—particularly in discharge cases, where an employee’s job security is on the line.
The union insisted that it did not want to breach confidentiality pledges or expose witnesses to reprisals. The Board acknowledged such concerns in sexual harassment grievances but found that this did not justify withholding from P.C. the substance of serious allegations being used to support his termination. Instead, the Board noted that the union ultimately disclosed these allegations—in even more detail—months later when defending itself in P.C.’s duty-of-fair-representation application.
Confidentiality considerations
Local 139 also stressed that it believed it had to maintain confidentiality, especially if P.C. might be reinstated and return to the workplace. The Board found this explanation inconsistent with the union’s own later actions.
Once P.C. filed his application, the union’s written response provided detailed disclosures, including the names of witnesses. The Board held that the union had unilaterally decided to share confidential information when it best served its own defence. This made its earlier refusal to inform P.C. about important allegations difficult to defend.
Board’s conclusion on reconsideration
In dismissing the request, the Board underscored that the union’s decision not to arbitrate was never the primary issue. Rather, the fundamental flaw was Local 139’s failing to properly inform P.C. and to “afford him . . . an opportunity to respond fully to the Employer’s case.” That failing occurred while he weighed whether to settle or persuade the union to keep fighting his discharge.
The Board acknowledged one error in its original text: the suggestion that the union lacked enough information about the Employer’s case. In fact, the Board agreed that the union did have sufficient knowledge to make its decision. Yet that point did not affect the conclusion that the union wrongly withheld vital allegations from P.C. Under the established duty of fair representation principles, such conduct was deemed “arbitrary.”
Local 139 argued that these findings would create a “formalistic and unrealistic standard” for unions, especially in sexual harassment cases. The Board disagreed, stating that while unions have a recognized “right to be wrong” in their ultimate decisions, they must still avoid acting in a way that is “unreasonable in the circumstances.”
Consequently, the Board confirmed that there was no basis to revisit its decision. It pointed to longstanding policy recognizing the importance of finality in labour relations decisions, so as not to encourage endless rounds of challenges and re-argument.
In the end, the ruling remains that Local 139 breached its duty of fair representation by failing to inform P.C. about all known allegations and thereby denying him a fair opportunity to consider settlement or respond to a broader case against him. The Board refused to invalidate or alter that conclusion, leaving Local 139’s request for reconsideration dismissed.
For more information, see Paul Collins v Canadian Union of Public Employees (“CUPE”) Local 139, 2024 CanLII 126872 (ON LRB).
