Ontario Labour Relations Board
[1999] OLRB REP. MARCH/APRIL 350
2504-98-U Dervant Thompson, Applicant v. Teamsters Local Union 938, Responding Party v. Pepsi-Cola Canada Ltd., Intervenor
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Harry Kopyto and Ki Tack Kwong for the applicant; Anthony F Dale, Debora Jones and Noel Holoban for the responding party; James B. Noonan and Federico Soda for the intervenor.
DECISION OF THE BOARD; April 1, 1999
This is an application under section 96 of the Labour Relations Act, 1995 (the "Act") alleging a violation of section 74 of the Act.
Section 74 of the Act states:
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.
A consultation was held in this matter on March 4, 1999. At the conclusion of the consultation, the Board orally allowed the complaint in part but ruled that no remedy would flow as a result. These are the reasons for that ruling.
The applicant was an employee of the intervenor, Pepsi-Cola Canada Inc., who was discharged from his employment in July 1996. The applicant had previously made applications under section 74 of the Act which were outstanding at the time of his dismissal. As part of a settlement of these complaints against the union, the union agreed to pursue the applicant's discharge to arbitration. The arbitration commenced on June 25, 1997 and continued on several dates thereafter. Further dates were scheduled for February 24 and 26, 1999.
The applicant apparently was concerned about the way the union was conducting the arbitration hearing. The applicant retained a legal agent who wrote to the union and, amongst other things, suggested that it rely on the Occupational Health and Safely Act ("OHSA") in the presentation of the applicant's grievance. The union replied immediately to the legal agent's letter but did not specifically address the OHSA issue. The applicant's legal agent wrote the union on two further occasions with respect to the OHSA issue, without reply.
Regrettably, the February 1999 arbitration hearing dates have been cancelled, apparently because of the unwillingness of the applicant to consider an agreed statement of facts which the arbitrator requested that the parties attempt to create in order to save time at the hearing.
On October 21, 1998 the applicant filed this application. The applicant seeks the following remedies:
(a) an order requiring the Respondent union to schedule several early arbitration hearing dates immediately in order to ensure that the Applicant's grievance is resolved through arbitration immediately;
(b) an order compensating the Applicant for his out-of-pocket expenses and damages;
(c) an order requiring the Union to respond to the Applicant or any of his representatives in a timely and substantive manner when relevant inquiries are made regarding his grievance or arbitration;
(d) if so advised, an order permitting the Applicant to pursue his grievance through arbitration with a representative of his own choice at the expense of the responding party;
(e) such further and additional remedies as may be appropriate.
The primary focus of this application is the allegation that the union was not handling the arbitration in a diligent manner. I was unable to agree with this assertion. At the time of the consultation, there had already been 6 arbitration dates held and the union had participated in the creation of an agreed statement of facts to make the arbitration hearing proceed more efficiently. While the length of time that it often takes arbitration hearings to proceed and to be concluded is often regrettable, there was no evidence that the delays in this case (to the extent there were any out of the ordinary) had anything to do with the union's conduct.
As noted, the applicant also sought an order of the Board requiring the union to respond to the applicant (or his agent) in a timely fashion. This request arose out of the fact that the union did not respond to the applicant's request that the union make an argument under the OHSA. It was clear that the union considered the applicant's request and rejected it as having no merit. However, this conclusion and the decision not to make the OHSA argument were not communicated to the applicant either orally or in writing. The union's response to this application contained no explanation for its failure to respond other than the fact that it did not need the applicant's legal agent's assistance.
The Board has held on several occasions that a failure to communicate important decisions to a member (such as a decision not to take a grievance to arbitration) is arbitrary conduct and therefore a breach of section 74 of the Act. In this case, the decision at issue is on the borderline between being merely a procedural decision having to do with the handling of the arbitration and an important decision. However, given the fact that the decision at issue involved statutory rights, that the request came from a legal agent retained by the employee, and that it came in the context of a process that was only initiated because of the settlement of an unfair labour practice complaint, in my view the applicant was entitled to an answer. I therefore found the union's conduct to be arbitrary and in violation of section 74 of the Act.
I was not prepared to grant any remedy because, as a result of the complaint, the applicant received an answer to his suggestion regarding the OHSA and the union's rationale for its decision not to proceed with such an argument. The union's conduct, while a technical breach of section 74, was not egregious and therefore did not warrant any of the other remedies requested by the applicant.