Colette McLean v. Canadian Union of Public Employees and its Local 1916
File No.: 0210-00-U Date: June 21, 2000 Ontario Labour Relations Board
Applicant: Colette McLean Responding Party: Canadian Union of Public Employees and its Local 1916 Intervenor: Sudbury and District Health Unit
Before: Laura Trachuk, Vice-Chair
Decision of the Board
1This is an application under section 96 of the Labour Relations Act, 1995 (referred to as the "Act") alleging that the responding party (referred to as the "union") has violated section 74. Section 74 of the Act 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.
2The responding party has asked that the application be dismissed without a consultation as it does not disclose facts upon which the Board could find that it had violated the Act. The Board directed the applicant to reply to that request by way of written submissions. She was also directed to indicate if she disagreed with any of the facts presented by the union in its response. The applicant did file some material in response to the Board's direction.
3The form in which the facts are presented in the application is somewhat difficult to follow. However, after reviewing the materials the relevant facts can be distilled to those contained in the following paragraph.
4The applicant has been employed by the intervenor since October 1994 as a receptionist. In 1995 she developed work-related bronchial asthma. She asserts that this disability was recognized as compensable by the Workplace Safety and Insurance Appeal Tribunal in the fall of 1998. She may be complaining, among other things, about the union's representation of her with respect to her worker's compensation claim related to that asthma, or the accommodation of her disability in 1995. However, it is far too late to complain about that conduct now. The Board has held on innumerable occasions that rights under the Act must be asserted in a timely fashion. The real thrust of her complaint relates to events in 1998 and 1999. On November 28, 2000, she was laid off from her position as clerk/receptionist as it was declared redundant by the intervenor. She filed a grievance which the union pursued to arbitration. The applicant's position was the lowest paid classification in the collective agreement. One of the issues in the grievance was whether the collective agreement permitted "bumping up". Shortly after the commencement of the arbitration, the parties entered settlement discussions and reached an agreement which provided that the applicant would be placed in another position if she passed a test administered by an outside agency. The settlement was signed by the applicant, the union and the employer. The applicant subsequently undertook the test administered by the private agency and failed. She was not placed in the position and remains on lay-off.
5The applicant contacted the union after she was informed that she failed the test and objected to the result on the basis that she had discovered that she suffers from an "anxiety testing disability". Therefore, she believes that the results of the test do not reflect her true abilities and that she should be able to rely on her educational accomplishments instead. The union advised her that it could not assist her as a settlement had been entered into and complied with by the intervenor. She then filed this application with the Board.
6After reviewing the application and the submissions filed in response to the union's materials the Board has decided to exercise its discretion to dismiss the application without a consultation. The union took the applicant's lay-off grievance to arbitration and then negotiated a settlement which she signed. The settlement was reasonable in the circumstances as it was not clear that the collective agreement permits "bumping up". The union must comply with settlements it enters. Furthermore, individuals involved in the grievance process are also expected to abide by their agreements. The arbitrator would not have permitted the union and the applicant to renege on the settlement, especially after she did the test it contemplated. There would be no basis for filing another grievance.
7There are therefore, no facts disclosed in the materials upon which the Board could find that the union represented the applicant in a manner that was arbitrary, discriminatory or in bad faith and this application is hereby dismissed.
"Laura Trachuk"
for the Board