Yvette Ziade v. York University Staff Association, 2000 CanLII 12335

BEFORE: Timothy W. Sargeant, Vice-Chair.

DECISION OF THE BOARD; June 8, 2000

1This is an application brought pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) that the responding party has breached section 74 of the Act.

2As a remedy the applicant seeks:

Reinstate all grievances and require that the collective agreement be respected by the union in its handling of the grievance. The Applicant also requests legal costs for this application.

3Both the responding party and the intervenor take the position that this application should be dismissed as the issues raised in the application are res judicata, and in the alternative the application establishes no prima facie case. The responding party also submits that the application is untimely in that “it purports to make claims relating to events occurring from 1991 through 1998, with no explanation given whatsoever for the delay”. This application was filed with the Board on May 15, 2000.

4The concern of the applicant arises from the Minutes of Settlement signed by the intervenor and the responding party without the consent of the applicant, dated May 14 1998. These Minutes of Settlement were the subject of a lengthy decision of the Board in File No. 1539-98-U dated April 3, 2000. An application for reconsideration of that decision has been filed, but not yet considered.

5In the decision dated April 3, 2000 in Board File No. 1539-98-U at paragraph 38, the Board stated:

There are some troubling features in the union’s conduct. It does seem to have given the applicant the impression, particularly in Mr. Scragg’s letter of April 29, 1998, that it was not willing to waive the applicant’s interest to retain the possibility of returning to her home position. That was misleading to the applicant. Subsequent to the filing of the parties’ pleadings they were given an opportunity to make submission concerning the union’s request to have the application dismissed for failing to disclose a prima facie case. As part of those submissions the applicant, through her counsel, raised factual allegations which were not raised in her original application. The union has objected to the filing of the new allegations. It has not had an opportunity to respond to those allegations which did not form part of the original application. Among the new allegations is one of deliberately deceptive behaviour by Mr. Scragg. The applicant alleges that Mr. Scragg visited her on May 15, 1998, the day after the Settlement Agreement was concluded, and not only failed to tell her of that, but presented her with an unsigned version of the Settlement Agreement (she says the document appeared to have been altered, with the signatures whited-out and the document then photocopied to conceal the alteration) and suggested she agree to its terms. The applicant would not. I accept the union’s argument that this allegation, like others which were not included in original application, should not be considered. The union had no opportunity to respond to the allegation and it arose extraneous to the original application. It will therefore not be dealt with in this application.

6This application alleges that “this instant application is intended to focus the Board’s inquiry on the specific allegations that were presented in a previous application (Board File No. 1539-98-U) and were ruled to be extraneous to that application and was therefore not considered by the Board (Vice-Chair Albertyn)”.

7However, it is clear from the pleadings that the applicant is concerned with the Minutes of Settlement dated May 14, 1998. As the application states “This duty of fair representation (DFR) application is concerned with steps that the Union took, or refused to take, during the period January to June 1998”. At the heart of this application is the applicant’s allegation that there was unfair representation and irregularities by the union in both “the procedures they followed and the substance of the settlement”. It is clear from the remedies requested that the applicant seeks to overturn the Minutes of Settlement dated May 14, 1998 as the Minutes of Settlement settled all grievances.

8Without reiterating all the facts as set out in the decision of April 3, 2000 in Board File No. 1539-98-U, (reference may be made to that decision), the primary issue considered in that matter was the union’s conduct in signing the Minutes of Settlement dated May 14, 1998. The Board in a lengthy decision reviewed the conduct of the union and concluded at paragraph 45

In all of these circumstances I am satisfied that the union invested a great deal of time, money and its own internal resources in seeking to pursue the applicant’s grievances; that its decision to settle her grievances on the terms set out in the Settlement Agreement were not only not contrary to the Act, but were fair and reasonable, and that no useful purpose would be served by the Board inquiring further into the application. It is dismissed.

9In that decision the Board carefully considered the results of the Minutes of Settlement and the applicant’s concerns with such settlement. Most of the allegations raised in this application were considered by Mr. Albertyn in that decision. Those allegations that were not considered by Mr. Albertyn appear to relate mainly to the alleged conduct of the union after the Minutes of Settlement were executed. In any event none of the pleadings in this application in the Board’s opinion would affect the conclusion of Mr. Albertyn that with regards to the execution of the Minutes of Settlement on May 14, 1998, the union conduct did not breach section 74 of the Act. As Mr. Albertyn stated:

In my consideration of this matter, having reviewed all of the materials and the substantial submissions of the parties, I am satisfied that the union has properly addressed each of the important issues which the applicant faced at the time the Settlement Agreement was concluded and that the agreement it concluded was not only fair and reasonable in the circumstances, but was actually advantageous for her. She was given benefits to which she would not otherwise have been entitled under the collective agreement. She was able to obtain a position in another university library without having that position posted and using her seniority (as provided in the collective agreement), she was to be given a 12-week accommodation program to enable her to adjust to the new position, her employment status was gold circled at the band 7 level - an unusual privilege - and 10-days salary then owed by the applicant to the University was waived by the University. Each of the interests identified above were addressed in the Settlement Agreement: the applicant was given a position outside of the environment she regarded as being poisoned; a new position was given to the applicant without the need for it to be posted, without loss of seniority or employment status within band 7; and the applicant was afforded protections upon her return to work at least as good as those provided for in Article 19 of the collective agreement.

10The Board has a discretion under section 96 as to whether to consider an application and whether it proceeds to hearing. The Act specifically relieves the Board of the requirement to hold a hearing where it is alleged that section 74 of the Act has been breached.

11This application essentially raises the same issues that were decided in Board File No. 1539-98-U. Further, given the remedies requested which would of necessity require the overturning of the Minutes of Settlement and given my finding that this application does not raise any further issue which in the Board’s opinion would affect the conclusion of Mr. Albertyn that the Minutes of Settlement were “not only fair and reasonable in the circumstances, but was actually advantageous to her”, the Board is not prepared to further inquire into this application.

12In the result the Board exercises its discretion and dismisses this application.

“Timothy W. Sargeant”

for the Board