[1997] OLRB REP. MARCH/APRIL 236

1790-96-U Dev Jebodh, Applicant v. Ontario Public Service Employees Union (OPSEU), Responding Party v. The Crown in the right of Ontario, as represented by Management Board of Cabinet, Intervenor

BEFORE: Pamela Chapman, Vice-Chair.

APPEARANCES: Dev Jebodh, Patrick Wan, Shirley Danquab and Molly Nemdhari for the applicant; Lester Yea rwood for the responding party; Glenn Frelick for the intervenor.

DECISION OF THE BOARD; April 4, 1997

1. At the hearing of this matter on April 1, 1997, the Board issued the following oral ruling:

At the hearing of this matter on April 1, the Board heard the submissions of the parties concerning the motion brought by the responding party ("the union" or "OPSEU") as a preliminary matter that the complaint should be dismissed by the Board without a hearing on the merits. As the intervenor ("the employer") takes no position on the merits of the application, no submissions were heard from counsel for the intervenor on this preliminary objection, although a repre­sentative of the intervenor did attend at the hearing.

Pursuant to section 96 of Ontario Labour Relations Act, 1995 ("the Act"), the Board has a discretion as to whether or not to inquire into a complaint. The exercise of this discretion has been the subject of numerous Board decisions, including Service Employees International Union Local 204, (unreported deci­sion dated January 16, 1995, Board File No. 3431-94-U), where the Board commented on the considerations relevant to the exercise of that discretion as follows:

“…….It is important for the Board to expend these limited resources in a way that is consistent with the objectives of the statute, will best accomplish its statutory mandate, and is sensitive to practical labour relations realities. Accordingly, in exercising its discretion under section 91(1) the Board may wish to consider: whether the complaint makes out an arguable case for a breach of some section of the Act; the chance of success; the nature and utility of any remedy that might flow; the cost implications for the parties and the public; and whether, overall, some statutory or labour relations purpose would be served by the litigation exercise."

An important factor in exercising this discretion is certainly the question of whether or not, even if the applicant were to make out its theory of the case, the remedy sought would likely be granted by the Board. Indeed, the latter consideration forms a part of the prima facie test as it appears in the Board's Rules of Procedures as Rule 24:

24. 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.

[emphasis added]

The facts relating to this application arise from the filing of an earlier complaint by the same applicant on November 8, 1995 (Board file 2984-95-U). That complaint alleged that the union had violated section 74 of the Act by incorrectly advising the applicant in 1992 that he was not "eligible" to file a grievance concerning his classification. As a result of this alleged advice from union steward Roland Scherk, who is also the subject of the present complaint, the applicant did not file a classification grievance and thus became ineligible to participate in the proceeds of the $20 million settlement fund which was negoti­ated between the union and the employer in August 1993, covering all outstand­ing classification grievances (the facts relating to this settlement are outlined in David E. Smith [1995], OLRB Rep. June 893).

That complaint was heard on July 16, 1996, and was dismissed for lack of jurisdiction by a decision dated August 12, 1996. The present complaint was filed on September 12, 1996, and relates to three separate incidents of alleged harassment of the applicant by the union steward Scherk, during the period before and after the filing of the earlier complaint, in April and December 1995, and on March 26, 1996. The applicant claims that these incidents constitute a violation by the union of sections 87(2)(a) and (b) of the Act, which provide as follows:

87. (2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall,

(a) discriminate against a person in regard to employment or a term or condition of employment; or

(b) intimidate or coerce or impose a pecuniary or other penalty on a person, because of a belief that the person may testify in a proceed­ing under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.

In the first incident that is complained of, Scherk allegedly made a handwritten notation on a response to a grievance filed by the applicant and others that advised him to call the Deputy Minister directly concerning the scheduling of a meeting. The applicant was advised when he contacted the steward and an OPSEU staff representative that the notation was intended to be a joke.

The second complaint relates to the posting, in December, 1995 and again in March 1996, of portions of the union's response to the earlier complaint, on the OPSEU bulletin board at the workplace. The parts of the document which related to Scherk's conduct were highlighted. The applicant made several attempts to have these documents removed, which eventually succeeded in or about March 1996. After the applicant complained to management about the posting, Scherk allegedly came into his office and confronted him, calling him a "baby" for making the complaint.

Finally, during the OPSEU strike in March 1996, the applicant approached Scherk to get his strike pay after he allegedly refused to give it to another employee and used a profanity to describe the applicant. He got the cheque, which was $10 dollars less than it should have been, but when he asked Scherk about his earlier comment he repeated the profanity a number of times, along with some others, told the applicant to leave him alone, and accused him of trying to cause the union trouble. Following this episode, the applicant complained to the local president, who said that she would speak to the steward. The discrep­ancy in the amount of the cheque was quickly remedied. While the applicant doesn't know whether or not the local president spoke to Scherk, Scherk has not engaged in similar verbal harassment since that occasion. Indeed, the applicant and Scherk do not speak to each other.

When each of these incidents occurred, the applicant filed correspondence in Board file 2984-95-U describing the incidents, complaining of the alleged harassment by the union, and asking that the Board deal with these new allega­tions in the context of the section 74 complaint. As noted above, the Board ultimately found that it had no jurisdiction to deal with the complaint relating to section 74. However, it is not clear from a reading of that decision whether or not the Board specifically considered the allegations made by the applicant relating to Scherk's conduct in April 1995 through March 1996 in dismissing the complaint, although it is clear that these allegations were before it.

For the purpose of considering the union's preliminary objections, I will presume that the facts alleged by the applicant are true and provable. Having carefully considered the written and oral submissions made by the parties, I have con­cluded that even if the facts outlined above and in the application are proven through the calling of evidence, the Board would not grant the remedies re­quested by the applicant. While the allegations concerning the conduct of Scherk are obviously of great concern to the applicant, they do not constitute conduct which clearly falls within the intended parameter of section 87(2), and which would therefore justify an intervention by the Board. While Scherk clearly felt himself aggrieved by the filing of the earlier complaint and made that clear to the applicant, he did not threaten the applicant or attempt to dissuade him from proceeding, and was not clearly in a position to carry out any threat that the applicant may have perceived to be implicit in his conduct.

Most importantly, however, the conduct came to an end, long before the hearing before the Board on the earlier matter, and almost a year ago. Whether or not the conduct ceased because of the intervention of the local president, there is nothing pleaded by the applicant which suggests that there is any reason to believe that he requires an intervention by the Board in order to prevent further harassment by the union or its agents.

This is not to suggest that the Board will never grant a declaration pursuant to section 87(2) where the conduct complained of has ceased, but here the conduct is simply not of a nature that it appears to require Board intervention, either to prevent a repetition or, as the applicant requests, to censure the conduct "on the record".

It is clear that, other than declaratory relief, there is no further remedy that the Board might grant. The applicant seeks the removal of the union steward from the workplace, and from any workplace at which the applicant might be assigned to work, and also his removal from union office. Whether or not these are remedies which the Board has the jurisdiction to grant, they are not remedies which we are likely to grant on the facts of this case. Certainly the concern regarding Scherk's role as the union steward, which is an elected position, might be dealt with through a number of avenues within the union and with the general membership, whether or not there is a formal complaint process available through the operation of the union's constitution and by-laws. It is not clear, despite some confusion about the existence of a formal complaint process, that the applicant has ever asked the union directly to sanction the conduct of the steward (although he did make a complaint to the local president which appears to have led to some relief), which would certainly have been appropriate given that these matters are really ones relating to internal union affairs.

Finally, I am not satisfied that this complaint is entirely appropriate given the history of the earlier application. Certainly these allegations, in identical form, were before the earlier panel at the time of the hearing in July 16, and while they are not clearly the subject of the decision of August 12. 1996, neither is it clear that they were not considered prior to the Board deciding to dismiss the com­plaint. If the applicant felt when the decision was released that the Board had failed to deal with a part of his complaint, then he had a clear remedy available to him pursuant to section 114(1) of the Act. Having failed to apply for reconsid­eration, it is not open to him to now attempt to revive a part of the earlier application in the guise of a new complaint under a different section of the Act.

For all of these reasons, I have decided to exercise my discretion not to inquire into this complaint further. The application is therefore dismissed.