Ontario Labour Relations Board
File No.: 3745-99-U Date: May 18, 2000
Mulu Tafesse Jalle, Aida Alas-as, Marina Ruiz, Casimera Tuban, Joven De Guia, Cecilia Tubog, Edna Tenel, Berna-Liza Santos, Andrea Raranjo, Satia Rajah, Collin Sheppard, Adly Wanis, Maria Campos, Navada Smith, Jimmy Tan, Feliz Serrano, Christina Chow, Brigitte Neunteufel, Raymond Williams, Lisa Lee, William Tung, Octavian Ardue, Applicants v. Hotel Employees Restaurant Employees Union, Local 75, Responding Party v. Delta Chelsea Inn, Intervenor.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD
1This is an application alleging a violation of section 74 of the Labour Relations Act, 1995 (“the Act”). The applicants seek by way of remedy a guarantee that their job classifications will not be eliminated during the duration of the current collective agreement unless the elimination of job classifications is effected in accordance with that collective agreement; and further, the applicants seek reimbursement for wages they allege have been lost as a result of being prevented from exercising their rights under the collective agreement. With respect to this latter remedy, it is not clear from the application who it is that the applicant alleges has prevented the exercise of the applicants’ rights.
2In its response the employer, Delta Chelsea Inn (“the Hotel”), submits that it is improperly named as a responding party in this matter, and should be identified as an intervenor. Having regard to the words of section 74 of the Act, it is clear that an employer cannot be found in violation of that provision. Accordingly, the Hotel is not a responding party in this matter, but is an intervenor. The style of cause is amended accordingly.
3The Hotel adopts the submissions contained in the response of the responding party trade union (“the union”). In its response, the union requests that the application be dismissed without a hearing for allegedly failing to plead a prima facie case of a violation of the Act. The union also argues that the remedies requested by the applicants are inappropriate in a proceeding of this kind, because those remedies relate to and flow from the collective agreement.
4Rule 46 of the Board’s Rules of Procedure provides as follows:
- Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.
5The application is very sparse in terms of setting out material facts, and appears, as the union contends, to be more in the way of a disagreement pertaining to the meaning of the collective agreement than an allegation of arbitrariness, discrimination or bad faith on the part of the union. Moreover, the remedies requested by the applicants are not remedies that would normally or likely flow from a finding of a violation of section 74 of the Act.
6The representative of the applicants is directed to respond to paragraphs 3 through 10 of the union’s pleadings in Appendix “A” of its response, and to indicate whether he agrees or disagrees with every allegation contained therein. To the extent he disagrees with any allegation, he is to provide his reasons. The representative for the applicants must provide his response as herein directed to the Board, the intervenor and the union, on or before Friday, May 26, 2000.
7The failure of the representative of the applicant to comply with any of the Board’s directions in this decision may result in the immediate dismissal of the application without a hearing or consultation.
8Upon receipt of the applicants’ submissions, the Board will consider further the union’s submissions concerning dismissal of the application.
9I am seized to deal with the applicants’ submissions.
"Patrick Kelly"
for the Board