1036-99-U Barry Larkin, Applicant v. Ottawa-Carleton Catholic School Board and The Service and Commercial Employees Union Local 272, Responding Parties.
BEFORE: Caroline Rowan, Vice-Chair.
APPEARANCES: Barry Larkin for himself; no one appearing for the employer; Tim Young for the union.
DECISION OF THE BOARD; February 28, 2000
1This is an application under section 96 of the Labour Relations Act, 1995 (the “Act”).
2The applicant, Mr. Barry Larkin, alleges that his employer, the Ottawa-Carleton Catholic School Board (the “employer”) breached section 70 and 72 of the Act. The applicant also alleges that his union, the Service and Commercial Employees Union, Local 272 (the “union”) breached sections 74, 75 and 76 of the Act.
3The applicant’s complaint under section 74 of the Act proceeded by way of consultation on February 10, 2000. At that time, the Board also heard sworn evidence from the applicant and Mr. Tim Young, the union president, with respect to the applicant’s complaint against the union under section 76 of the Act.
4As none of the parties present were represented by counsel, I indicated at the outset that although there is no requirement that persons appearing before the Board retain counsel, persons appearing on their own must bear any risks involved with doing so. I then explained the consultation process and heard from each of the parties present with respect to both their facts and positions.
FACTS
5The applicant commenced working on a casual basis for the employer’s predecessor in January 1995 as a caretaker. The applicant was initially represented by an employee association in his employment relations until September 25, 1998, at which time the union became the bargaining agent for the new amalgamated school board, the employer.
6The applicant filed two separate complaints against the union in 1999 alleging a breach of section 74 of the Act. The first complaint was filed in February 1999 and was later withdrawn by the applicant in April 1999. The present complaint was filed on June 23, 1999. The circumstances giving rise to this complaint commence on or about Friday, June 11, 1999. At that time, the applicant’s district supervisor, Eric Beatty, called the applicant into a meeting to discuss various complaints received about the applicant’s job performance. The applicant immediately expressed concern that his union representative was not present at the meeting. The employer therefore contacted Mr. Tim Young, the union president, and asked him to attend, which he did.
7The applicant indicates that he felt harassed and threatened by the employer’s complaints regarding his job performance. He further indicates that although Mr. Young attempted to make representations on his behalf, the employer was not very receptive to his efforts.
8The applicant says that he was angry about the accusations made and the tone of the meeting and that he felt pressured to resign as a result. The applicant indicated his intention to resign at the meeting. The employer responded by urging him not to resign and told him that he was “good worker”. Mr. Young also tried to convince him not to resign by telling him he was making a hasty decision. The applicant did not change his mind at that time. Mr. Young therefore closed the meeting by asking the employer to give the applicant the weekend to reconsider. The employer agreed.
9The applicant did reconsider his decision over the weekend. He informed Mr. Young about his change of heart at a union membership meeting held on Sunday, June 13, 1999. The applicant told Mr. Young that he wanted his job back. Mr. Young advised him to call the employer the next morning and told him that he would follow up with the employer as well.
10When the applicant contacted the employer the next day to ask to return to work, the employer did not object because of its earlier agreement that he could reconsider over the weekend. His return date was set for June 23, 1999 and a reinstatement meeting was scheduled to take place at the outset of his shift that day. The applicant complains that the union did not attend the reinstatement meeting. Although the applicant asked for union representation at the outset of that meeting, the employer told him that Mr. Young was tied up in collective bargaining negotiations and therefore that he could not attend. The applicant confirms that no discipline was imposed at this meeting. By all accounts, the purpose of the meeting was to review the complaints made and to assist him to improve his job performance.
11The reinstatement meeting did not go well. During the course of the meeting, the employer again referred to the previous complaints discussed with the applicant on June 11, 1999. The applicant says that the employer told him that this was his last chance “to shape up”. The applicant says that he again felt harassed by the employer’s comments and therefore decided to leave the meeting without completing his shift. Before the applicant left, he told the employer that he felt he needed a different supervisor.
12In response to the applicant’s complaint that he had no union representation at this meeting, Mr. Young confirms that all executive and shop stewards were in collective bargaining negotiations on June 23, 1999 and therefore no one was available to attend. He says that he had discussed the nature of the meeting with the employer beforehand. At that time, he was told that the employer intended to review the Good Caretaker’s Performance Manual with the applicant at the outset of his shift in order to assist the applicant to perform his duties properly. There is no suggestion on the facts presented that Mr. Young had reason to be concerned about this proposal.
13In any event, when Mr. Young learned that the applicant had left without completing his shift, he immediately contacted the plant manager on the applicant’s behalf to secure his agreement to give the applicant yet another chance to return to work. The plant manager agreed.
14The applicant also complains about the union’s conduct at the union membership meeting held on June 13, 1999. At the outset of that meeting, Mr. Young took a vote of the membership concerning whether or not the members wished to continue with the union’s past practice of disclosing the names of grievors/complainants and the nature of their grievances or complaints. This practice was normally done as part of a general accounting to the membership for monies spent by the union. The majority of employees voted in favour of continuing the practice. The applicant says that he voted against its continuation, but that he was outvoted.
15After the vote and during the course of the membership meeting, Mr. Young raised the fact that the applicant had filed a prior duty of fair representation complaint against the union. Mr. Young says that he did so in the context of explaining to the membership the expenses incurred by the union in preparing its response to that complaint. There is no dispute that the names of other grievors/complainants were raised at the membership meeting as well.
16The applicant takes the position that the union raised his prior complaint with the membership because representatives of the union were angry about it and wanted to humiliate and embarrass him. The applicant indicates that this is, in any event, precisely how he felt when his name was mentioned in this context at the meeting.
DECISION
(i) Allegations against the employer
17The applicant takes the position that the employer violated section 70 of the Act by using threats, coercion and undue influence in its dealings with him during the course of the meetings described above. He also states that the employer violated section 72 when the employer threatened to fire him.
18Sections 70 and 72 of the Act read as follows:
No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.
No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;
(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or
(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.
19Having reviewed the allegations set out in the applicant’s complaint and considered the applicant’s representations, the Board finds that the application does not make out a prima facie case of a violation of either of these sections.
20The substance of the applicant’s complaint under section 70 of the Act is that the employer’s complaints about his performance constitute “coercion, intimidation, threats…” which, he argues, is prohibited under this section. The Board notes, however, that section 70 of the Act generally prohibits an employer or a person acting on behalf of an employer from interfering with the formation, selection or administration of a trade union or the representation of employees by a trade union. In the circumstances of this case, there is no suggestion that the employer’s complaints concerning the applicant’s job performance were in any way designed to, or even had the effect of, interfering with his representation by the union as contemplated under this provision of the Act. In addition, the Board has previously held that only a trade union can bring a complaint alleging a violation of section 70 of the Act. Individual employees do not have the status to bring such a complaint. (See, for example, Board of Governors [1991] OLRB Rep. June 734.)
21With respect to the allegations under section 72 of the Act, the applicant alleges that the employer threatened to fire him by telling him that this was his “last chance to shape up”. He also submits (although not pleaded in his application) that the employer discriminated against him by failing to award him various posted jobs in years past. There is, however, no suggestion in either the applicant’s written complaint or in his representations before the Board that the employer either discriminated against him in the manner alleged or threatened to fire him because the applicant is “a member of a trade union” or because he was or is “exercising any other rights under th[e] Act” as is required in order to amount to a violation of this section.
22The complaints against the employer are therefore dismissed for failing to disclose a prima facie case of a violation of the Act.
(ii) Allegations against the union
23The applicant also alleges that the union failed to adequately represent him pursuant to section 74 of the Act by not attending the reinstatement meeting on June 23, 1999. He also submits that the union violated section 75 and/or 76 of the Act when it brought up his name at the union membership meeting in an effort to embarrass him and to discourage him from exercising his rights under the Act.
24Section 74, 75 and 76 read 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.
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.
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.
25Section 75 of the Act deals with situations in which the union is engaged in the referral of persons for employment. This section does not have any applicability to the allegations raised in this matter. The Board therefore finds that the application does not disclose a prima facie case of a breach of that provision. This portion of the complaint is therefore also dismissed.
26The Board is also unable to find that the union violated section 76 of the Act when it raised the applicant’s prior duty of fair representation complaint at the union membership meeting held on June 13, 1999. The union has an obligation to account to its members for monies spent. The membership had just specifically voted in favour of continuing the union’s practice of disclosing the nature of complaints or grievances and the names of individuals involved. There is further no dispute that the names of other members were also raised in the same context at the meeting. It would therefore appear that the applicant was not singled out in any way by the union at this meeting.
27Having considered the evidence lead concerning the nature of the comments made by Mr. Young at the union membership meeting, the Board finds that the reference to the applicant’s prior duty of fair representation complaint was made solely in the context of explaining the expenses incurred by the union. The Board therefore further finds that the union was not thereby “seeking by intimidation or coercion to compel or refrain the applicant from exercising his rights under the Act” as contemplated under section 76 of the Act in all of the circumstances of this case.
28With respect to the allegations that the union breached its duty of fair representation to the applicant in this case, the relevant facts are as follows. The union met with the employer and the applicant during the course of the meeting held on June 11, 1999. The purpose of the meeting was to discuss the various complaints that had been made against the applicant. The applicant conceded that Mr. Young made efforts to provide explanations to the employer on his behalf. When the applicant made a hasty decision to resign because of the complaints made about his job performance, Mr. Young quite properly endeavoured to ensure that the applicant’s interests were protected. He did so by securing the employer’s agreement that the applicant could reconsider his decision over the weekend. As a result of the union’s efforts, the applicant’s subsequent request to return to work was granted.
29When the applicant was reinstated on June 23, 1999, Mr. Young did not attend the reinstatement meeting because he was tied up in bargaining despite the applicant’s request made that morning for union representation. The union had, however, been advised beforehand that the employer intended to review the Good Caretakers’ Performance Manual with the applicant at that time. By all accounts, the purpose of this meeting was counseling not discipline. No discipline was, in fact, imposed at that time. It was the applicant’s decision to leave without completing his shift and without waiting until he had an opportunity to obtain advise from the union regarding his rights. He was, therefore, in short, the author of any “misfortune” arising from that meeting.
30Notwithstanding this, Mr. Young subsequently did everything he could to repair the problem, which the applicant had himself, in large measure, created. As soon as Mr. Young found out that the meeting had not gone well, he again made every reasonable effort to ensure that the applicant’s interests were protected. He again successfully sought the employer’s agreement to give the applicant yet another chance to return to work. In all of these circumstances, the Board finds that there has been no violation of section 74 of the Act as alleged.
DISPOSITION
31For all of these reasons, this application is hereby dismissed.
“Caroline Rowan”
for the Board