Tim Bell is a percussionist who has been a member of the Performers Union for the past decade. Eight years ago, he was hired by City Opera as a percussionist/timpanist, and was appointed Principal Timpanist six years ago. Four years ago he was also named orchestra stage manager,

a position that is responsible for overseeing the stage arrangements for the orchestra and ensuring that the musicians have appropriate working conditions.

City Opera hires its orchestra musicians on yearly contracts, with the contract offers for each year issued in the summer. The contracts specify which productions the musicians will be assigned to and which roles in the orchestra they will fill for each production. City Opera and the Performers Union have a clause in the collective agreement that establishes a “core orchestra” and a “personnel roster.” This clause lists specific instruments in the orchestra and the names of the players assigned to them. Bell is listed as Principal Timpanist in this clause. There is also a position for Principal Percussionist, but the listing next to this reads “vacant pending audition.” There is an additional list of “core extras” that also names specific instruments and players.

This list includes “percussion,” and there are four players’ names in the category, but Bell’s name is not included. The collective agreement defines three groups of percussion instruments: drums, “mallet instruments,” and timpani. If percussionists play more than one instrument in a production, they are paid the rate for the group of instruments they were contracted to play, even if they are Principal players in other groups. (Principal players receive extra pay for that role.) If percussionists play an instrument in a group other than the one in which they were hired, a “doubling fee” is added to their pay, up to a maximum of four other instruments. If a percussionist has been contracted to play four different instruments and is receiving a doubling fee, and a performance requires more percussion instruments, City Opera must hire another percussionist.

The permanent position of Principal Percussionist has been vacant for the past three years. When Bell received his contract for the current year, he saw that it offered him work as Principal Percussionist for three of City Opera’s four productions. He wrote to City Opera, arguing that under the collective agreement, he should be hired as Principal Percussionist for the fourth production. He pointed out that he had been hired as acting Principal Percussionist for two productions in the past four years. He asked that his complaint be dealt with under the grievance and arbitration procedures in the collective agreement.

Grievances at City Opera are investigated by the Orchestra Committee, which includes elected representatives of the bargaining unit. The committee’s mandate is to be a formal liaison between musicians, the employer, and the union. The committee met to discuss Bell’s complaint and wrote him a letter stating that, in their opinion, he did not have a contractual right to be appointed as Principal Percussionist for the fourth production. The letter stated that Bell was listed in the collective agreement as a member of the “core orchestra” in the role of Principal Timpanist and that his instrument was listed as timpani.

The committee felt that the employer was not required to “bump” members of the orchestra from one instrument to another before hiring players from the “core extras” list for any positions that were still vacant. The letter also noted that, because the fourth production did not require as large an orchestra as other City Opera productions, there were several other “core orchestra” members who had not been offered contracts for the fourth production.

After receiving the letter, Bell fi led a formal grievance.

The union’s executive board met to discuss the grievance.

Bell attended the meeting, but asked that two of the executive members be excluded from the discussion. One member was married to the orchestra manager, who was responsible for hiring orchestra members. The other member, according to Bell, had previously indicated to him that she had strong personal and professional relationships with the other board members and with City Opera’s management, which she had felt occasionally placed her in a conflict of interest. Bell’s request to have these members excluded from the meeting was declined, because the union had a bylaw stating that an elected officer who was also a bargaining unit member could not be disqualified from discussions or votes on bargaining unit issues.

After their discussion, the board decided to send the grievance to a lawyer, and obtain a legal opinion which would be discussed at the next board meeting. The lawyer who was consulted expressed the opinion that Bell did not have the contractual right of priority to be hired for any position other than Principal Timpanist. The lawyer also stated that, in his view, the grievance would not be successful if it went to arbitration. At the next board meeting, the board voted unanimously not to take the grievance to arbitration. Bell was informed of the board’s decision through a letter. The day after he received the letter, he wrote a letter of appeal. At the following board meeting, the letter of appeal was discussed. The board decided to exclude from the discussion the two board members that Bell had previously expressed concerns about. The board members who participated in the discussion of the appeal letter unanimously voted to turn down the appeal. The letter that was sent to Bell informing him of that decision noted that the two board members had been excluded from the discussion and from the vote. The letter also suggested that Bell could take his concerns to the parent union, and that if Bell was concerned about audition and hiring practices, he could also propose amendments to the collective agreement for the union to consider in the next round of collective bargaining.

Later that same month, Bell mentioned in an email to City Opera’s artistic director that he (Bell) was in the middle of a dispute with the union over the duty of fair representation. Six weeks later, Bell received his contract offer for next year’s season. Included with the offer was a letter from City Opera informing him that the position of orchestra stage manager, which Bell had held for the past four years, would be posted for the upcoming season, and inviting him to apply.

Bell filed a grievance with the union. In his letter, he stated that the collective agreement identifies the orchestra stage manager as a “continuing position” and that he had not resigned from the position. He stated that City Opera had not given him any notice of termination, or any explanation of why his continuation in the position was being terminated. He also stated that he had never received any complaints about how he had performed the duties of the position. He noted that he had sent the artistic director a request for an explanation for the termination, and had not received any answer.

A month later, the union’s secretary wrote to Bell to inform him that the union would not proceed with his grievance over the orchestra stage manager position. The letter stated that the secretary had met with the artistic director and had been told that City Opera’s lawyer was of the opinion that the position of orchestra stage manager was a continuing position, but that the appointment to fill the position was “at the pleasure of management.” The letter stated that the union’s executive board had also obtained a legal opinion on the matter, and that opinion was that management had the right to terminate the appointment and to post the position. The letter also stated that since Bell had not applied for the position when it was posted, he would not be able to file a grievance over the selection process.

Bell’s contract offer for the coming season was as Principal Timpanist for all four productions. He accepted the offer on the understanding that his acceptance would not prejudice his complaint about his employment as orchestra stage manager being terminated. After accepting the offer, Bell filed a duty of fair representation complaint with the labour relations board.

The Complainant’s Position

Bell told the board that the union ignored past practice (his previous appointments as acting Principal Percussionist) when it decided not to pursue his grievance. He also argued that the union ignored due process by defending management’s actions, rather than representing his concerns to management, and that the union offered him no support or assistance in dealing with management.

Bell also argued that the union violated due process by not excluding the two board members, as he had requested, from the first board discussion of his first grievance. He also told the board that the union’s legal opinions on his grievances were not independent because they came from the union’s own lawyer.

Bell told the board that City Opera knew of his concerns of the duty of fair representation by the union, because he had expressed them to the artistic director. He alleged that he was terminated from the orchestra stage manager position as retaliation for his opposition to the union’s actions, and as a means of intimidating the other musicians in the orchestra. He noted that he had kept his orchestra colleagues informed of his grievances by email, and alleged that the termination was also in retaliation for his standing up for his and his colleagues’ contractual rights.

The Union’s Position

The union argued that a member’s disagreement with a decision is not a reason to overturn the decision. The union also argued that it is not a violation of the duty of fair representation for a union to refuse to take a grievance to arbitration.

The union claimed that it had conducted a full investigation of Bell’s complaints, and that Bell’s dispute was based on the interpretation of the contract, not on whether the terms of the contract had been consistently applied. 

The union stated that even though Bell had not provided any credible evidence to prove that the two executive board members were in a conflict of interest, as he alleged, those two board members had nevertheless excused themselves from the later parts of the decision-making process. 

The union argued that this demonstrated that the union did not behave dishonestly or in bad faith. The union also pointed out that it discussed Bell’s grievance at three consecutive meetings of the executive board, and that when it told Bell it would not be taking his grievance forward, it also referred him to two other options for pursuing his concerns.

The union said that it did not discriminate against Bell, and treated him the same as it would have treated any other member. It pointed out that part of the mandate of the Orchestra Committee is to ensure that the union applies the terms of the collective agreement equally to all its members.

The union denied that it conspired with the employer, and rejected the idea that the opinion of its lawyer was biased. The union told the board that it examined the evidence and concluded that a grievance would not succeed. The union told the board that there was a delay of over six months between the executive board refusing Bell’s appeal and Bell filing the duty of fair representation complaint. The union alleged that this was an unreasonable delay and that there was no compelling reason to explain it, and that therefore the complaint should be dismissed.

The Employer’s Position

The employer states that Bell’s allegations of conflicts of interest are based on unsupported suspicions and are without merit. The employer describes the relationship between the union and the employer as “harmonious,” and states that both parties have worked hard over the years to maintain this relationship. The fact that they have a good relationship does not mean that there is a conflict of interest.

The employer supported the union’s position that it had fully investigated Bell’s complaint and made a reasoned decision, based on the evidence, not to proceed with his grievance.