Athanasios (Tom) Kirou v. Bertrand Faure Components Ltd. and United Steel Workers of America, Local 8694
2453-99-U Athanasios (Tom) Kirou, Applicant v. Bertrand Faure Components Ltd. and United Steel Workers of America, Local 8694, Responding Parties.
BEFORE: John Morgan Lewis, Vice-Chair.
DECISION OF THE BOARD; June 27, 2000
This is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) in which the applicant alleges that Bertrand Faure Components Ltd. (“Bertrand”) and United Steel Workers of America, Local 8694 (the “union”) have violated section 74 of the Act.
Section 74 of the Act reads 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.
The applicant is a member of the union and was employed as a metal stamper by Bertrand. The union and Bertrand are parties to a collective agreement.
Section 74 of the Act does not apply to an employer. Accordingly, the application is dismissed as against Bertrand.
The union and Bertrand have requested the Board dismiss the application on the basis that it does not establish a prima facie case of a breach of section 74 of the Act. The facts giving rise to the application can be summarized as follows. The applicant was employed by Bertrand without incident until 1996 when he developed an ulcer. As a result of his ulcer, the applicant ceased work on May 3, 1996 and underwent surgery for the ulcer on May 21, 1996. The applicant applied for and received disability benefits pursuant to the collective agreement from May 1996 to July 1996. The insurance provider under the terms of the collective agreement, Metropolitan Life, denied the applicant any further benefits as of July 31, 1996.
At around this time, the applicant also contracted an illness known as Helicobacter pylori. As a result of this illness, the applicant alleges that he was no longer able to carry on his employment with Bertrand. The applicant requested and received temporary lay off from October 1, 1996 to February 28, 1997. The applicant requested a further extension of his temporary lay off from May 28, 1997 to August 31, 1997 which was against accepted by Bertrand.
On August 18, 1997, the applicant requested a further extension of his temporary lay off from August 31, 1997 to November 2, 1997. Bertrand refused to grant this further extension and advised the applicant that he was expected to return to work on September 2, 1997. The applicant maintained that he was unable to work and would not report on September 2, 1997. Bertrand subsequently terminated the applicant as of October 17, 1997 due to his failure to report to work. During the fall of 1997, the applicant was also seeking to obtain further disability benefits pursuant to the collective agreement which Metropolitan Life had denied.
In the application, the applicant confirms that the union has filed grievances with respect to his dismissal on October 17, 1997 and the denial of disability benefits. It would appear that these grievances are still being processed according with the provisions set out in the collective agreement.
Pursuant to its discretion under section 96 of the Act, the Board will not typically address a complaint of a breach of a duty of fair representation where the substance of the complaint is still within the internal grievance process (see Canadian Union of Public Employees (C.U.P.E.) Local 1996, unreported decision dated September 17, 1997, and John Richard Hughes, [1996] OLRB Rep. Jan. 103). Generally speaking, this is because a complaint might either be resolved or rendered moot at the conclusion of the grievance process. The Board hereby declines to do so in this case.
For all of these reasons, the application is dismissed without prejudice to the applicant’s right to file a fresh complaint based on these and any other additional facts, if at the conclusion of the grievance process, he continues to feel aggrieved by the union’s representation of his interests.
“John Morgan Lewis”
for the Board