Ontario Labour Relations Board
2050-99-R Canadian Health Care Workers Union, Applicant v. Caressant Care Rest Home, Responding Party v. Service Employees International Union, Local 220, Intervenor.
2515-99-U Deb Carmichael and Roxanne Jeffs et al. and Canadian Health Care Workers, Applicants v. Service Employees International Union, Local 220, Responding Party v. Caressant Care Nursing and Retirement Homes Limited, Intervenor.
BEFORE: Christopher J. Albertyn, Vice-Chair.
DECISION OF THE BOARD; January 20, 2000
1This is an application under section 96 of the Labour Relations Act, 1995 (‘the Act’) alleging violations of sections 74 and 76 of the Act by the responding trade union (‘the union’). Those sections read:
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.
No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
2The union takes exception to the application, suggesting that it does not disclose a prima facie case and that it should be dismissed without a hearing.
The section 76 complaint
3The application is full of descriptive embellishment drawing adverse conclusions regarding the union’s conduct, but there is very little of fact alleged in the application. The averments made in support of the section 76 complaint include the allegation that the union’s representatives have harassed the employees they represent and they have tried to get the employees to participate in candlelight vigils, wearing armbands and burning an effigy of the home administrator of the intervenor (‘the employer’). No details are given of these allegations. They are too vague for the union to address and they are struck from the application for lack of particularity.
4The section 76 complaint goes on to state that the union has acted in a coercive and intimidating manner towards the employees by ‘leaving them in limbo and without adequate representation in relation to their employer’. There are no other particulars.
5There is a lack of substance to the applicants’ section 76 complaint. There are no allegations of any particularity to support it. It does not disclose a prima facie case and it is hereby dismissed.
The section 74 complaint
6The union objects to the inclusion of the Canadian Health Care Workers as an alleged applicant. The union contends that a rival trade union cannot be a party to a section 74 complaint. Such complaints can be brought, in the union’s submission, only by individual employees in the affected bargaining unit. I agree with that submission. Section 74 is intended to protect bargaining unit members from unfair representation by their bargaining agent. The Canadian Health Care Workers does not fall into that category and it is struck as an applicant in respect of the section 74 complaint. Given that the complaint under section 76 has been dismissed, the Canadian Health Care Workers is no longer a party to the proceedings.
7The section 74 complaint has little more substance than the section 76 complaint. There are some general, unspecified allegations, which do not have sufficient detail to warrant the Board addressing them, like the allegation that the union has refused to process grievances. Stripped of the section 74 complaint’s hyperbole, and of the vague and unsubstantiated allegations, what remains is a complaint that the union has failing to hold sufficient pre-bargaining meetings with the employees before the current bargaining with the employer and it has failed to advance the employees’ bargaining proposals (unspecified in the application) with the employer. This, in my view, is all that remains of the application.
8This file is travelling with Board file 2050-99-R. That file has been set down for hearing on March 13, 2000 to deal with a timeliness objection to that application. The remaining issue in this application — whether the allegations which may warrant further attention (those in paragraphs 11, 13, 14, 16 of the applicants’ Schedule ‘A’) concerning the union’s conduct in bargaining a renewal collective agreement, make out a prima facie case of a violation of section 74 of the Act — should also be heard on that date. I direct that the application be listed for hearing for that purpose.
9The matter is referred to the Registrar.
“Christopher J. Albertyn”
for the Board