Ontario Labour Relations Board

[1986] OLRB Rep. July 1021

2932-85-U A. K. Stuart, Complainant, v. Ontario Public Service Employees Union Local 560, Respondent

BEFORE: Ken Petryshen, Vice-Chairman, and Board Members R. J. Gallivan and R. R. Montague.

APPEARANCES: Alan K. Stuart for the complainant; Alick Ryder, Glen Chochla, Mel Fogel and Ted Montgomery for the respondent.

DECISION OF THE BOARD; July 15, 1986

1. The name of the respondent is amended to read: "Ontario Public Service Employees Union Local 560".

2. This is a complaint in which the complainant alleges the respondent has failed to comply with sections 76 and 87(2) of the Colleges Collective Bargaining Act (CCBA). At the hearing and on agreement of the parties, the Board heard the allegation relating to section 87(2) first and once this aspect of the complaint was finalized, proceeded to hear the allegation relating to section 76.

3. The following decision was rendered orally by the Board at its hearing in this matter on July 9, 1986, after it recessed to consider the material before it and the submissions of the parties with respect to the section 87(2) aspect of the complaint:

Mr. Stuart complains that the respondent has failed to furnish him with a copy of an audited financial statement as required by section 87(2) of the CCBA. By letter dated January 2, 1985 to Mr. Fogel, the respondent's president, Mr. Stuart requested a copy of the financial statement for the year ending 1984. Mr. Fogel denied the request in a letter to the complainant dated January 11, 1985 and confirmed the denial in a subsequent letter dated January 18, 1985. Section 87(2) of the CCBA provides as follows:

Every employee organization that represents employees shall upon the request of any employee furnish him, without charge, with a copy of the audited financial statement of its affairs to the end of its last fiscal year certified by its treasurer or other officer responsible for the handling and administration of its funds to be a true copy, and, upon the complaint of any employee that the employee organization has failed to furnish such a statement to him, the Ontario Labour Relations Board may direct the employee organization to file with the Registrar, within such time as the Ontario Labour Relations Board may determine, a copy of the audited financial statement of its affairs to the end of its last fiscal year verified by the affidavit of its treasurer or other officer responsible for the handling and administration of its funds and to furnish a copy of such statement to such employees as the Ontario Labour Relations Board in its discretion may direct, and the employee organization shall comply with such direction according to its terms.

The Board heard from the parties with respect to their positions on this issue. The respondent argued that the Board should exercise its discretion in favour of not directing the respondent to furnish the complainant with a copy of an audited financial statement. In taking this position the respondent referred to a policy adopted by the membership of Local 560. The policy of the Local on this issue is that it will not provide an employee with a copy of its financial statement but it will give the employee access to the information. In fact, Mr. Stuart was given access to the financial statements in that he was provided with and took advantage of an opportunity to review financial statements in the presence of local union officers.

After hearing from the parties and, in particular, after hearing the basis on which the respondent defends the section 87(2) complaint, it is the Board's view that it should exercise its discretion under section 87(2) in favour of the complainant. It appears to us that the will of the majority of the membership of a particular local union should not be the deciding factor in determining whether an employee will or will not receive a financial statement from its local union. It strikes us as well that the provision of access to the financial information, even on the terms on which this respondent indicated to us it provides access, does not satisfy the intent and objectives of section 87(2).

In the result, the Board orders that the respondent union deliver to the complainant, a copy of the audited financial statement for the year ending 1984. This statement must be certified by its treasurer or other officer responsible for the handling or administration of its funds. Such a statement and the supporting affidavit which is required by section 87(2) shall be delivered as soon as practicable and no later than July 23, 1986, to the complainant and the Registrar of the Board.

In making this decision the Board did not rely on any allegation made by the complainant with respect to the conduct of the officers of Local 560 on the occasion when Mr. Stuart reviewed the financial statements.

4. The complainant had initially alleged that the respondent's failure to provide him with an audited financial statement also contravened section 76 of the CCBA. When the Board gave its oral decision on the section 87(2) aspect of the complaint, the complainant requested leave of the Board to withdraw that part of his complaint. Given the Board's normal practice, the Board dismisses that part of Mr. Stuart's complaint which alleges the respondent contravened section 76 of the CCBA by not providing him with an audited financial statement.

5. The following decision was rendered orally by the Board at its hearing in this matter on July 9, 1986 after it recessed to consider the material before it and the submissions of the parties with respect to the section 76 aspect of the complaint which remained:

The complainant alleges that the respondent has contravened section 76 of the CCBA. The Board entertained submissions from both parties with respect to the facts relating to the complaint as well as the arguments they intended to make based on their version of the facts. In deciding this complaint we are prepared to assume, without deciding, that the facts as alleged by the complainant are accurate.

The grievor is employed in the academic staff bargaining unit of Seneca College. Beginning in mid-October 1984 and for approximately three weeks, the employees in this bargaining unit engaged in a lawful strike. This strike activity was brought to an end with the passage of Bill 130. This legislation imposed a collective agreement upon the relevant parties and provided that certain terms of the collective agreement would be determined by an arbitrator.

By means of a notice to all members of Local 560, M. Fogel, President of the local, advised the members that there would be a general membership meeting to be held on November 28, 1984 for the purpose of increasing the local dues assessment by $2.50 per week per member. For reasons not here relevant, the complainant elected not to attend this meeting. At the meeting, a motion was made from the floor that the local union donate certain monies to another organization. This motion was eventually carried.

The complainant alleges that in accepting the motion, the president was not acting in accordance with what the notice of the meeting specified and violated certain provisions contained in the union's constitution. The complainant argued that by donating funds by means of a procedure contrary to the union's constitution, the union contravened section 76 of the CCBA. He argues that this action of the president and the local union impacts on the way in which the union will be able to represent him and other employees with the employer. He suggests money was put into the strike fund in one instance and then removed without notice to the membership contrary to the union's constitution.

We heard argument from both parties as to whether or not the president contravened the constitution. It was also argued by the respondent that the Board should not entertain the complaint since the complainant did not exhaust the union's internal procedures. In addition, the respondent argued that the complaint does not constitute a violation of section 76 of the CCBA since the circumstances do not concern a question of representation, but simply relate to an internal union matter.

As indicated earlier, we are prepared to assume Mr. Stuart's version of the facts is the correct version. Specifically, we are prepared to assume, without deciding, that contraventions of the constitution occurred at the local union meeting held on November 28, 1984. Assuming these facts to be true, we are not satisfied that the complainant has demonstrated that the respondent has contravened section 76 of the CCBA.

Section 76 of the CCBA provides as follows:

An employee organization shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees, whether members of the employee organization or not.

The Board has reviewed in previous decisions the nature of the conduct of trade unions which is regulated by unfair representation sections such as the one before us in the instant case. The duty of fair representation in section 76 is concerned only with the representation by a trade union of an employee vis-a-vis his or her employer. In Arthur Joseph Roberts, [1974] OLRB Rep. March 169 the Board stated:

8. ... the duty of fair representation owed by a trade union to an employee under section 60 [now section 68] of the Act does not contemplate controlling the manner in which a trade union conducts its affairs with its elected officials whether they be on the payroll or not. The case law indicates that the propriety of a trade union's behaviour vis a vis its members is governed by its constitution and by-laws and the procedural remedies provided therein. And recourse must be made by an aggrieved member to the governing rules provided under the constitution for relief. The safeguard provided by the controlling supervision of the courts are his assurance that these rules will be implemented fairly and impartially. (See White v Kuzych (1951), 1951 CanLII 373 (UK JCPC), A.C. 585; Lee v Showmans Guild (1952), All. E.R. 1175; Orchard v Tunney (1957), S.C.R. 436; 1957 CanLII 57 (SCC), 8 D.L.R. (2d) 273; Jurak et al v Cunningham (No. 1) (1959), 1959 CanLII 340 (BC SC), 20 D.L.R. (2d) 377; Jurak et al v Cunningham (No. 2) (1959), 1959 CanLII 341 (BC SC), 20 D.L.R. (2d) 381; Gee v Freeman et al (1958), 1958 CanLII 258 (BC SC), 26 W.W.R. 546).

The Board also stated the following in Frank Manoni, [1981] OLRB Rep. Dec. 1775:

The arbitrary, discriminatory or bad faith conduct, directed at such employees and regulated by the section must be such as to produce actual, and not merely speculative prejudice to those employees at the hands of their employer.

The principles set out in these decisions are relevant in this case. We are satisfied that the real issue between the complainant and the respondent is an internal union matter. It has not been demonstrated that the actions of the union have produced any actual prejudice to the complainant or any other employee. The concerns raised by the complainant are merely speculative, and, in substance, they have nothing to do with the actual representation this local union provides the complainant and other employees in the unit vis-a-vis their employer.

Therefore, the complaint relating to an alleged contravention of section 76 of the CCBA is dismissed.