[1996] OLRB Rep. May/June 469
3462-94-U; 3463-94-U; 3511-94-U; 3553-94-U; 3562-94-U; Win. J. McLaughlin, Applicant v. Ontario Public Service Employees Union and The Crown in Right of Ontario, as represented by the Management Board of Cabinet, Responding Parties; Jeff Metcalf, Applicant v. Ontario Public Service Employees Union and The Crown in Right of Ontario, as represented by the Management Board of Cabinet, Responding Parties; Roger P. Eamshaw, Applicant v. Ontario Public Service Employees Union and The Crown in Right of Ontario, as represented by the Management Board of Cabinet, Responding Parties; Glenn Bearss, Applicant v. Ontario Public Service Employees Union and The Crown in Right of Ontario, as represented by the Management Board of Cabinet, Responding Parties; Mike Robinson, Applicant v. Ontario Public Service Employees Union and The Crown in Right of Ontario, as represented by the Management Board of Cabinet, Responding Parties
BEFORE: Roman Stoykewych, Vice-Chair.
APPERANCES: Wm. McLaughlin, Jeff W Metcalf Roger Earnshaw, Glenn Bearss and Mike Lee Robinson on behalf of themselves; Donald K. Eady, Gerry Griffin, Joan Reid, Rob Field on behalf of Ontario Public Service Employees Union; Craig Slater on behalf of The Crown in Right of Ontario, as represented by the Management Board of Cabinet.
DECISION OF THE BOARD; June 14, 1996
These are applications filed pursuant to the provisions of section 91 of the Labour Relations Act R.S.O., 1990 c. L2 in which the applicants assert that their trade union, the Ontario Public Service Employees Union ("OPSEU" or "the trade union") and their employer, The Crown in Right of Ontario ("the employer") have violated various provisions of the Labour Relations Act. The essence of the applicants' complaint in each case is that by processing their outstanding classification grievances in an expedited "mediation-arbitration" system devised to dispose of a significant backlog of such cases, the trade union is in breach of its duty to represent them fairly. The applicants further allege that by agreeing to and carrying out such a process, both the union and the employer have committed a series of "unfair labour practices".
Since the filing of these applications, the Act and other legislation relied upon by the applicants have been amended. (Labour Relations And Employment Statute Law Amendment Act, (1995) However, none of the statutory provisions relevant to the present applications have been substantially affected by the amendments in a manner that might affect the disposition of these matters and, since the matter was pleaded and argued before me on the basis of the provisions of the legislation prior to its amendment, for ease of exposition I will refer to such provisions as they appeared prior to the recent amendments.
The applicants filed voluminous materials together with their applications in support of their positions. A hearing was held in this matter, during which the Board heard the parties' submissions with respect to the trade union's motion that the applications be dismissed without hearing any evidence. The basis of the request was the assertion that the applications do not make out a case for which the Board would grant a remedy even if all the facts set out in the applications were accepted as true. The Employer supported the trade union's position. Both the trade union and the employer relied upon Rule 24 of the Board's Rules of Procedure, which provides as follows:
Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing. In its decision, the Board will set out its reasons. The applicant may within twelve (12) days after being sent that decision request that the Board review its decision.
Consistent with the "no prima facie case" nature of the trade union's motion, I have considered only those facts that are asserted in the materials filed by the applicants in support of their applications, as well as those facts that were conceded by them to be true during the course of the hearing, Although a number of such facts are disputed by the trade union and the employer, and although the responding parties have asserted other factual matters, I have not considered such assertions in the course of my decision, Bearing this in mind, the following are the salient facts relating to this application.
The applicants are classified employees in the Ontario Public Service and are represented in their employment relationship by OPSEU. As such, their employment relationship was subject to the provisions of the Crown Employees Collective Bargaining Act, R.S.O. 1990, c. 50 ("old CECBA") until its repeal effective February 14, 1994 and thereafter, to the joint operation of the Labour Relations Act and the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38 ("new CECBA"). Pursuant to the collective agreement entered into by the parties, each of the applicants had grieved that they were improperly classified (that is, that the classification upon which their wage rates were based did not accurately reflect their duties and responsibilities).
The grievances were not resolved during the parties' grievance procedure and were thereafter adjudicated upon by various panels of the Grievance Settlement Board. Each of the applicants succeeded in establishing that their classification was not correct. Until the events giving rise to this application, each of the applicants were (to use the terminology of the parties' classification procedures) the subject of outstanding "Berry orders" made by various panels of the Grievance Settlement Board. A Berry order (so named after the order granted in the decision of the Grievance Settlement Board in OPSEU (Berry) v. Ministry of Community and Social Services, (affirmed at judicial review OPSEU v. Ontario (Minister of Community and Social Services), (1985) OAC 15 Div. Ct.) is issued upon a finding that a grievor's classification does not reflect his or her duties and responsibilities and that there is no existing classification that does so. Pursuant to a Berry order, the employer is required to create a classification that properly reflects the duties and responsibilities of the employee concerned.
It is important to note that a Berry order, although indicative of a state of affairs in which a grievor's classification is inappropriate, does not necessarily imply that the employee in question is being underpaid. The question of remuneration is distinct from that of proper classification. Thus, in the normal course, the wage rate attributable to the classification would be determined only after the classification itself had been established to both the union's and the employer's satisfaction. The wage rate would then be subject to bargaining between the parties. In order to account for this process (which arises from the provisions of "old CECBA" and the case law of the Grievance Settlement Board), the parties, in their collective agreement expressly provided for the resolution of wage rate issues with respect to such newly created classifications by means of a process that concludes in a private interest arbitration process. Article 5.8 of the collective agreement provides as follows:
When a new classification is to be created or an existing classification is to be revised, at the request of either party the parties shall meet within thirty (30) days to negotiate the salary range for the new or revised classification, provided that should no agreement be reached between the parties, then the employer will set the salary range for the new or revised classification subject to the right of the parties to have the rate determined by arbitration.
The applicants agreed that there was a substantial backlog of cases such as theirs, and it is clear that some of the Berry orders, including those of the applicants, were outstanding for a considerable number of years. It appears that, until the events giving rise to the applications, the employer had not yet established class standards that were appropriate to the duties and responsibilities performed by any of the grievors. As a result the processes contemplated in Article 5.8 had commenced in any form.
The present applications arise out of an agreement reached between the trade union and the employer in December, 1994, to dispose of those outstanding classification grievances in which the Berry orders had been made, including those of the applicants. Earlier, during the "Social Contract" negotiations in the summer of 1993, the employer and the trade union had reached an agreement whereby the union would withdraw all outstanding classification grievances, with the exception of those with Berry orders, in exchange for various payments totalling $40 million, half of which were to be distributed to the grievors involved, and the other half which was to be directed toward an "overhaul" of the classification system (with respect to this matter, see David E. Smith, [1995] OLRB Rep. June 893). After further negotiation, on December 6, 1994, it was agreed that the approximately thirty grievances in which there were outstanding Bern orders would be dealt with in a four-day, "marathon" mediation-arbitration session to be held on January 10 to 13, 1995 in Toronto, The parties agreed that, at that session, they would attempt to reach an agreement with respect to each of these matters and failing that, would proceed to mediation and ultimately arbitration before an arbitrator highly experienced in classification matters. It was agreed that neither party would retain counsel to present the grievances during the expedited process. Strict time limits were set for each stage of the procedure to permit the resolution in this fashion of each of the grievances in the four day period, and the parties agreed that none of the decisions of the arbitrator would be subject to judicial review.
Neither the trade union nor the employer sought the consent of the applicants to be included in such a process. The applicants, with one exception, which will be addressed below, were advised of the parties' intention to proceed in this manner in early December, 1994 and were told to attend at the downtown Toronto hotel where the mediation-arbitration session was to be held. The applicants were also directed to bring with them documents relevant to the question of their classification. While it was made clear to them that representatives would be made available to them to present their cases, otherwise the trade union did not contact the applicants to begin in the preparation of their cases until they arrived at the sessions in Toronto.
It appears that some, if not all, of the applicants were dissatisfied at the outset of this process, and expressed this dissatisfaction to the trade union in no uncertain terms both prior to the commencement of proceedings and upon their arrival on January 10, 1995. Indeed, it appears that a substantial portion of the time designated for preparation at the sessions was consumed by discussions relating to the appropriateness of this process. The applicants were particularly displeased with the expedited format, which in their view would not allow for a full presentation of their duties and responsibilities, as well as with the union's apparent intention to prepare for the presentation of their cases immediately prior to the mediation sessions. They complained to the trade union officials present that the representatives assigned to present their cases (who at the hearing they conceded were highly experienced in bargaining wage rates) were not sufficiently conversant with the details of their respective cases to present them properly. In one of the applications, it was asserted that the union representative had an empty file folder with respect to his grievance at the commencement of the session.
In response to their complaints raised at the session, trade union representatives advised the applicants that they had no choice with respect to the format in which the cases were to be heard and that, although the applicants were not compelled to be present, the mediation-arbitration of their cases would nevertheless take place were they to choose not to participate. The response of the various applicants ranged from reluctant participation in all aspects of the process to outright refusal to partake in any of its parts.
Indeed, the process continued in the absence of those applic4nts who had chosen not to participate and proceeded in a highly expedited fashion. For the most part, there was little actual negotiation before the commencement of the mediation processes. The mediations and arbitrations before the arbitrator were conducted on the basis of agreed statements of fact. The applicants assert that the facts placed before the arbitrator were neither accurate nor comprehensive. As a result, they claim that the arbitrator's decision could not have been based on an full appreciation of the circumstances of their employment and that certain arguments of assistance to their case could not be raised. Similarly, it appears that in reaching a determination of an appropriate wage rate, in at least some of the cases before me no "proper" classification was actually agreed to or determined. Instead, other classifications, which clearly were not reflective of their actual duties and responsibilities, were used as proxies for the determination of the wage rate.
The actual results, of the process in practical terms, were varied. While some of the applicants achieved wage increases totalling nearly 14%, including retroactive payment for several years, others received no increases at all. The amount of increase obtained by the applicants does not appear to be reflective of their degree of participation in the mediation-arbitration process.
In essence, the trade union and the employer resolved the outstanding "Berry" grievances in an expedited manner that was specifically contemplated neither in the parties' collective agreement nor in the provisions of CECBA. The applicants assert that by agreeing to and executing this process of resolution of their grievances, both the union and employer have acted improperly and in breach of a wide range of obligations owed to them.
Under the statutory scheme set in place by the joint operation of the Labour Relations Act and the Crown Employees Collective Bargaining Act, 1993, the applicants' trade union is given the exclusive right to represent employees with respect to the terms and conditions of their employment. Section 69 of the Act, in turn, imposes upon the trade union what is often described as a "duty of fair representation" with respect to such employees. Section 69 provides as follows:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
In the present applications, the applicants each make numerous submissions which, for the most part, were premised on the assumption that because the trade union had not fully honoured each of the rights they claim to possess under the terms of the collective agreement, the union constitution, and numerous statutes, therefore violates of section 69 of the Act. The applicants readily conceded that the litigation of each of their grievances in what, in their view, was an appropriate manner, would be enormously time-consuming and expensive. However, they insisted that it was the obligation of the trade union to vindicate their rights, regardless of the cost, and irrespective of the consequences that their pursuit might impose upon other members of the trade union.
Underlying this position is the fundamental assertion advanced by the applicants at the hearing that it is the individual grievor, rather than the trade union, that possesses "carriage rights" with respect to grievances, and that their trade union is not only obliged to advance a grievance to arbitration upon the request of the grievor, it is also required to provide legally-trained representatives for that purpose.
At this somewhat general level, there is nothing in any of the statutes cited by the applicants, in the Board's case law, nor in industrial relations policy to support the applicants' position. The Board has accepted that trade unions, rather than individual employees, normally control access to the grievance and arbitration processes. Otherwise, were the trade union required to pursue the interests of the individual employees in the manner proposed by the applicants, the enormous expenditure of time and resources would prevent it from effectively advancing the interests of the collective and, more generally, would invite labour relations paralysis. In the course of its representative function, a trade union will often encounter circumstances where conflicting interests of those it is charged to represent can be satisfactorily reconciled only by virtue of compromise. In this respect, the joint administration of a collective agreement, unlike the operation of a contract in the commercial context, involves a relational aspect in which the importance of long term stability often overrides the imperatives of the strict enforcement of legal rights. The labour relations considerations entailed in locating carriage rights with the trade union, rather than the individual, were succinctly expressed in Catherine Syme, [1983] OLRB Rep. May 775:
Section 68 [now 69] requires a trade union to act fairly, inter alia, in the handling or employee grievances. But it does not require a trade union to carry any particular grievance through to arbitration simply because an employee wishes that this be done. A trade union is entitled to consider the merits of the grievance, the likelihood of its success, and the claims or interests of other individuals or groups within the bargaining unit who may be affected by the result of the arbitration. The trade union must give each grievance its honest consideration, but so long as the arbitration process involves a significant financial commitment and has ramifications beyond the individual case, a trade union is not only entitled to settle grievances, in many cases it should do so. And, as has been pointed out in a number of cases, in assessing the merits of a grievance a trade union official - especially an elected one - cannot be expected to exhibit the skills, ability, training and judgement of a lawyer.
Most collective agreements contain a grievance procedure to which resort must be made before a matter can proceed to arbitration. The grievance procedure involves several stages of prearbitration discussion in which (as in the present case) the parties seek to amicably resolve their differences. As in the ordinary civil litigation process, it may be in the interests of both parties to seek an "out of court" settlement which is more modest than either of them might have obtained had they been entirely successful before an adjudicator. A settlement is a compromise solution which avoids the costs and uncertainties of litigation, and where it appears that the claim is without legal foundation or cannot be proved it makes little sense to proceed further.
These considerations are equally applicable to the settlement of disputes arising out of collective agreements. But there is an important difference. Unlike most parties in civil matters, the trade union employer are bound together in a relationship which will subsist so long as the employees continue to support the union and the employer remains in existence. That relationship, despite its adversarial aspects and legal veneer, is neither wholly adversarial nor strictly legal. It is essentially an economic partnership in which both parties must be concerned about the ongoing relationship and the equitable resolution of disputes which occasionally arise. Like a successful marriage, a productive bargaining relationship depends upon the development of a spirit of cooperation and compromise. Regardless of the arguable importance of any particular grievance, it will inevitably be only one of many which the parties will be required to resolve during the currency of their relationship; and, if either party obstinately adheres to an unreasonable position, or continually presses trivial claims, the entire settlement process could be undermined, and their long-term relationship prejudiced. tt can hardly further mutual trust and respect if union and management officials are required to spend needless hours discussing inconsequential or unfounded grievances. As a practical matter, a rigid insistence on one's "strict legal rights" or an insistence on proceeding to arbitration with doubtful claims is likely to provoke a response in kind, and yield only short term gains. As a matter of good judgement, and in the interest of sound industrial relations, a trade union should make reasonable efforts to settle grievances early in the process. I do not think there is any justification for processing obviously groundless claims simply because an individual employee demands his "day in court". Such position not only represents a waste of the employees' money in counsel and other fees associated with the arbitration process, but could also prejudice the ongoing and informal resolution of disputes, short of arbitration, where there might well be some contractual basis for the union's claim.
Bearing these considerations in mind, labour relation boards and courts have accepted that it is within the trade union's discretion to settle or otherwise dispose of grievances, even if they appear to be meritorious, provided that reasonable consideration is given to the substantial labour relations interests involved (see, particularly, Centre Hospitalier Regina Ltee, v. Labour Court 90 CLLC par. 12,157 (S.C.C,)).
21, Absent some very specific statutory direction or collective agreement requirement to the contrary, there is no reason for the Board to conclude differently with respect to the relationship of OPSEU and the employees it represents in the Ontario Public Service. For that reason, the Board cannot accept the applicant's bald assertion that they possess the right to determine the disposition of their grievances because OPSEU is somehow "different" and "unique". The Board has already had an opportunity to comment on this matter. In David E. Smith v. OPSEU, supra, the applicant claimed that the union had breached its duty of fair representation under the predecessor legislation ("old CECBA") by settling his classification grievance without his consent. Although the application was dismissed on grounds not pertinent to the present applications, the Board nonetheless rejected the applicant's contention that, under the provisions of the "old CECBA", there was a statutory impediment to the union settling his grievance without his consent. I am in respectful agreement with the reasoning in that decision insofar as it relates to the previous statutory provisions, and with the substantial case law from the Grievance Settlement Board that was relied upon to support that finding. Further, I see no reason why the result should be different under the current legislation. Indeed, I note that sections 18 and 19 of the "old CECBA", which were advanced to support the applicant's argument in the Smith case, have no correlate in the current legislation and to that extent, the present applicants' claim to individual carriage rights is, if anything, even weaker. Accordingly, I reject the applicants' argument that there is a contractual or statutory basis to an individual "carriage right" within CECBA.
Furthermore, the applicants are not able to find support for their position before the Board in the provisions of the OPSEU constitution. Much was made by the applicants that, in their view, the trade union had in various respects violated its constitution in acting as it did, and in that regard, the very agreement to process the grievances in the mediation-arbitration system was therefore "null and void". However, even assuming that the trade union acted contrary to the provisions of its constitution (and the Board declines to comment on whether that is indeed the case), that does not, in itself, establish that it has acted arbitrarily within the meaning of section 69 of the Act. The statutory provision is intended to regulate the nature and quality of the representation provided by trade unions on behalf of employees vis-a-vis the employer, and is not aimed at the supervision of the obligations established by internal constitutional documents. In other words, the Board is concerned whether the representation that the employees actually received meets the standard established by the statute; the supervision of rights and obligations that have been established by union constitution is a matter dealt with in other forums. (See for example, Local Union 46 of the United Association of Plumbers, Steainfitters, and Apprentices, Board File No. 2651-94-U, October 27, 1994, unreported, Frank Manoni, [1983] OLRB Rep. Aug. 1344.)
Finally, none of the other rights purportedly held by the applicants are such as to preclude the trade union from exercising its discretion to dispose of the grievances through the mediation-arbitration process without the applicants' consent. Little purpose would be served in recounting the applicants' numerous arguments in detail. I have considered each of them and they are entirely without merit. It is sufficient to note that the fact that the Grievance Settlement Board was "seized" of the grievances filed on behalf of the applicants does not substantially affect the trade union's ability to settle, withdraw or otherwise dispose of such grievances other than through the formal process of litigation that the applicants appear to expect. It certainly does not compel the trade union to continue the litigation of each of the numerous outstanding issues in the grievance at the behest of the applicants. In that respect, there is no basis for the applicants' alleged "right of return to the Grievance Settlement Board" nor, more generally, for them to insist upon a quasi-judicial determination of their classification and salary levels.
Accordingly, I am not persuaded that the trade union was in breach of its fair representation obligations because it disposed of the applicants' grievance contrary to their express wishes.
Did the trade union nevertheless act in an arbitrary or discriminatory manner in processing the applicants' grievances in an expedited manner? That is to say, does the material filed by the applicants disclose that the trade union, in exercising its discretion to place the grievances into a mediation-arbitration process, failed to consider the interests at stake in the matter, or that their decision-making in respect to the decision was unreasonable or capricious? (See Walker Exhaust Limited, [1979] OLRB Rep. Feb. 144; David E. Smith, supra.)
Insofar as the union's decision to dispose of the remaining Berry grievances by means of the mediation-arbitration mechanism is impugned, there is nothing to suggest that the process is inherently inappropriate or that it is unsuitable to the resolution of the remaining issues. Indeed, the opposite appears to be the case. In recent years, parties to collective agreements in Ontario have increasingly resorted to various forms of mediation and expedited arbitration processes to resolve employees' grievances. Concerned about substantial costs and frequent delays encountered in the arbitration process, trade unions and employers have utilized various "alternative dispute resolution" mechanisms to deal with disputes at the workplace. Generally speaking, these processes operate in an expedited manner and without the formalities entailed in the calling of evidence, the making of legal submissions and the writing of detailed reasons. The experience has been that disputes are resolved to the parties' mutual satisfaction in an expeditious and cost-effective manner. Indeed, without the legalisms often constraining the litigation process, a mediated resolution of a dispute frequently deals more realistically with the substantive issues underlying the conflict.
Of course, not every collective bargaining dispute is equally amenable to a mediated or expedited settlement, and it may be that in some grievances, a formal hearing might be necessary for its meaningful resolution. Without venturing into the question of what such grievances might be, it is difficult to conclude that the issues outstanding in the grievances giving rise to the present applications could not be properly dealt with in the manner agreed upon by the parties. Given that the outstanding issues were essentially remedial in nature, and that questions of credibility of witnesses would be unlikely to directly affect their resolution, the value of a fully adversarial legal proceeding is questionable from a legal process standpoint. More fundamentally, however, it is important to remember that the real labour relations issue arising in the outstanding grievances, namely, the attribution of wage rates to a given set of job functions, is the everyday stuff of collective agreement negotiation between employers and trade unions. Except in those instances where "interest arbitration" is utilised, such matters are routinely bargained without recourse to the legal mechanisms associated with a hearing. With this in mind, the highly legalized process in which the current grievors were engaged prior to the impugned agreement must be considered as anomalous, and the parties' departure from it into a form of resolution more approximating a negotiated agreement cannot be construed as inconsistent with collective bargaining norms in Ontario. By contrast, if the applicants' own experience is to serve as an example, the "conventional" litigation of classification grievances does little to commend itself in labour relations terms. The grievances were filed many years ago, and the cost of the extensive litigation to date, even the applicants agreed, has been enormous. Finally, it must not be forgotten that to date, many years after the commencement of the litigation process, only a relatively small portion of the issue had in fact been determined.
Faced with the prospect of continuing in this manner, the application materials disclose that the trade union determined that the costs of proceeding by way of conventional litigation of the outstanding classification matters outweighed the benefits that could be derived from such a process, and chose the mediation-arbitration route as an alternative. Nothing that the applicants present to me persuades me that their interests were not adequately taken into account by the trade union. (See Leonard A. Vaillant [1994] OLRB Rep. Nov. 1596) The process provided the opportunity for each of the grievors to provide significant input - but not instruction or direction - as to how their case was to be presented and resolved. Indeed, there was little or nothing that demonstrated that their interests were substantially prejudiced by virtue of the trade union's decision to expedite their grievances.
Moreover, there appears to be nothing in the union's conduct in the mediation-arbitration process that would give rise to concern by the Board. In its cases, the Board has made it clear that a trade union is not obliged to provide to grievors representation by legally-trained counsel and that it would be inappropriate for it to second guess the exercise of judgement by representatives in the course of presenting a case, (See, e.g. Cryovac, [1983] OLRB Rep. June 886) Only in instances where the conduct by the representative is so flagrant, reckless or capricious that it could be classified as arbitrary would the Board intervene. Nothing in the materials filed by the applicants raises an allegation of this sort. The applicants conceded at the hearing that the representatives assigned to them were highly experienced in bargaining wage rates. (Indeed, the applicants formally apologized for certain statements previously made by them implying the contrary.) At its highest, the applicants contend that they disagreed with certain decisions made by the various representatives in the course of their presentations. As noted, however, that does not amount to a violation of the Act.
It is true that one of the applicants, through an apparent oversight, was advised of the "medarb" session only shortly before it was to commence, and suffered considerable inconvenience as a result. Nevertheless, although much was made of his purported inability to prepare himself properly for the session, nothing specific was advanced as to what actual prejudice he incurred, or precisely what kind of preparation would be useful given the mediation-arbitration format. Clearly, the applicants had in mind the kind of painstaking preparation necessary to engage in the process of conventional litigation, in which counsel was to be instructed, and testimony prepared so as to be able to successfully run the gauntlet of cross-examination. Nothing of the sort was necessary given the mediation-arbitration format in which the matters were to be resolved. Indeed, the avoidance of this process was the one of the very real benefits of engaging in the mediation-arbitration process.
The applicants' further contentions that their representatives were not sufficiently familiar with their cases to present them properly and that the process itself did not allow for a full airing of their disputes must be considered in this context as well. Although the applicants concede that they were given the opportunity to instruct their representatives prior to the commencement of the mediation process, they assert that the failure of the representatives to prepare their individual cases ahead of time was deeply prejudicial to their cases. Once again, however, it is clear that the applicants' assessment of the appropriateness of the preparation is based entirely on their previous experience in the litigation process, and nothing in the materials pleaded by them suggests that sufficient preparation time for the substantially less formal mediation arbitration process was not accorded.
Finally, each of the applicants complains of the abbreviated consideration of their cases by the arbitrator. No doubt, after having experienced what was, cumulatively, decades of "conventional" litigation before the Grievance Settlement Board, the prospect of having their cases determined in a four day period was breathtaking. Nevertheless, once the applicants' assertions of fact are reviewed (as distinct from their characterization of them), I am satisfied that the process provided them a substantial opportunity to have their cases considered and an opportunity for them to be meaningfully resolved.
Accordingly, I am satisfied that, even if the applicants' facts are accepted as provable, they do not support the assertion that the trade union acted in an arbitrary manner. Therefore bearing in mind all of the circumstances, I am satisfied that the applicants have made out no case for a violation of section 69 of the Act.
As noted above, the applicants also alleged that the employer and the trade union violated other sections of the Act, including sections 67, 70 and 71. Although the applicants at the hearing persisted in maintaining these serious allegations, there is simply no factual basis pleaded in support of them. Accordingly, I also find that they have not made out a case with respect to those allegations.
Finally, Mr. McLaughlin, in OLRB File No. 3463-94-U, has alleged that the trade union is in violation of section 30 of the Crown Employees Collective Bargaining Act R.S.O. 1990, c. 38, i.e. “old CEC’BA” It is sufficient to note with respect to this application that the statutory provision was repealed by the time of the events giving rise to the present application and that in any event, the Board did not have and does not now have jurisdiction to adjudicate over matters arising under “old CECRA” (David E. Smith, supra.) Therefore, this application is dismissed as well.
With the exception of the application in Board File No. 3463-94-U, then, I have concluded that the applicants have not made out a case for which the Board would grant a remedy, even if all the assertions of fact contained in their applications were to be taken to be provable and true. Accordingly, pursuant to my discretion under section 91 of the Act, and in accordance with Rule 24 of the Board's Rules of Procedure, I decline to inquire further into these applications and to hold a hearing into the allegations set out therein. In the case of the application set out in Board File No. 3463-94-U, I have concluded that the Board has no jurisdiction to hear the matter.
Therefore, these applications are dismissed.