2209-99-U Leonardo Cutone, Applicant v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 252, Responding Party v. Nestle Canada Inc., Intervenor.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; January 11, 2000
This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging violations of sections 74 and 75 of the Act.
The parties have made a number of submissions concerning the filing and delivery of the applications. To the extent the parties’ concerns have not been addressed following this decision, they may raise any objections at the consultation or hearing to be scheduled.
The responding party trade union (the “union”) expressed concern about a section 96 application that it understood had been brought by the applicant in addition to the other matters. It would appear from a review of the file that the applicant simply duplicated its section 74 application by filing the same matter on a different form. For all intents and purposes the file contains two applications, one alleging a violation of section 74, the other alleging a violation of section 75 of the Act.
The union has asked that both applications be dismissed without a hearing or consultation. In respect of the section 75 application, the union contends that the facts pleaded by the applicant do not make out any case for a violation of this provision. Section 75 provides as follows:
Where, pursuant to a collective agreement, a trade union is engaged in the selection, referral, assignment, designation or scheduling of persons to employment, it shall not act in a manner that is arbitrary, discriminatory or in bad faith.
Section 75 pertains to the “hiring hall” situation in which a trade union plays a role in the hiring/referral of its members by employers. The facts pleaded by the applicant have nothing to do with that kind of situation. The facts alleged by the applicant deal with the applicant’s classification, seniority and wage. The applicant claims that the union would not support him by filing a grievance with respect to his entitlement to a certain classification and rate of pay. Clearly this is not a matter that falls within section 75 of the Act. Accordingly, the application with respect to section 75 is dismissed on the basis that even if all the facts alleged by the applicant are deemed to be true, they do not make out a case of a violation of section 75.
In respect of the section 74 application, the union seeks its dismissal without a hearing or consultation on the basis that the facts alleged by the applicant do not disclose a violation of section 74, and on the basis of undue delay in filing the application.
A review of the facts pleaded by the applicant establishes a prima facie case of a violation of section 74 of the Act. Moreover, the events complained of are alleged to have occurred over the course of several months in 1999. The application was filed on November 3, 1999. This does not amount to excessive delay. The allegation by the union that the applicant did not in March or May of 1999 raise any objections to the changes in the collective agreement giving rise to the current application may be relevant to the union’s defense of its actions, but it is not relevant to the issue of delay in filing the application.
The intervenor raised an objection to being named as a responding party in either the section 74 or section 75 matter, on the basis that an employer cannot be found in violation of either section. The applicant, on the other hand, took the position that the intervenor is correctly named as a responding party, and that it must be a party to these proceedings because of the nature of the remedies sought by the applicant, one of those being an order compensating the applicant.
An employer cannot be found to be in violation of section 74 or section 75 of the Act. It is not properly named as a responding party. The employer’s participation as an intervenor is the only appropriate standing in such matters. Moreover, an intervenor is an interested party to a proceeding, and is subject to the Board’s orders and directions, and any remedies that flow from such orders and directions.
For all of the above reasons, the Board makes the following orders and directions:
The application in respect of section 75 of the Act is dismissed.
The style of cause of the section 74 matter is hereby amended to reflect “Nestle Canada Inc.” as the intervenor in this matter.
The matter is referred to the Registrar. This panel is not seized.
“Patrick Kelly”
for the Board