Ontario Labour Relations Board
Tim Kitching v. United Food and Commercial Workers International Union, Local 175
1586-99-U Tim Kitching, Applicant v. United Food and Commercial Workers International Union, Local 175, Responding Party.
BEFORE: Anthony Brown, Vice-Chair.
DECISION OF THE BOARD; August 1, 2000
Decision
1This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging that the responding party violated section 74.
2By decision dated July 4, 2000, the Board directed the applicant to file reply submissions to the response filed by the responding party (the “union”). The union asserts that the applicant signed minutes of settlement that purported to settle his outstanding grievances. The union states that it also sorted out an overtime pay issue for the applicant. The applicant omitted to mention these details in his original application.
3The applicant’s reply filed in response to the Board’s direction of July 4, 2000, asserts that the applicant was pressured by the union “to sign their paper”. He further asserts that he was “mentally unable” to deal with the matter on his own and was seeking help from his doctor and a psychiatrist at the time. No medical reports or other documents were attached to the reply.
4The application reveals a history of grievances by the applicant against his former employer. For example, the applicant states that over the five years that he worked at the “A&P” in Georgetown, Ontario, he filed “many grievances of harassment and intimidation but never received much other than the money that was owing for these grievances.” However, aside from a chronology of difficulties with the employer, the applicant has not provided details as to how the union acted contrary to section 74, i.e. in a manner that was arbitrary, discriminatory or in bad faith.
5It is evident on the face of the application that the union processed grievances on the applicant’s behalf and arranged meetings with the employer to sort out problems that the applicant was having at work. The union may not always have met the applicant’s expectations, but there are no facts asserted by the applicant to show that the union acted in a capricious or cavalier fashion toward him, or that it failed to investigate his grievances. The Board’s impression, based on the applicant’s own admission of a five year history of complaints and grievances, is that he kept the union quite busy on his behalf. There are no details asserted that would support the applicant’s contention that the union and former employer conspired against him or that a union official was collecting information for the employer to use against him. The only incontrovertible fact in these pleadings is that the union managed to obtain a grievance settlement on behalf of the applicant from an employer that had been, it appears, dealing with a more or less constant flow of his grievances from the very start.
6The responding party filed a copy of Minutes of Settlement dated April 1, 1999 and signed by the applicant, the employer and the union. It shows that the applicant accepted a substantial sum of money as full and final settlement of his outstanding grievances. The applicant does not refute the existence of this document.
7The Board’s Rules of Procedure require an applicant to provide details of the material facts that he relies upon to support his complaint. It is unfair to require the union to respond to what amounts to bald allegations largely unsupported by details or documents. It appears to the Board that the applicant is simply dissatisfied with the settlement and seeks to reopen the matter.
8It is well-established that a union is entitled to decide not to proceed with a grievance to arbitration. In Catherine Syme, [1983] OLRB Rep. May 775 the Board stated:
- Section 68 requires a trade union to act fairly, inter alia, in the handling of employee grievances. But it does not require a trade union to carry any particular grievance through to arbitration simply because an employee wishes that this be done. A trade union is entitled to consider the merits of the grievance, the likelihood of its success, and the claims or interests of other individuals or groups within the bargaining unit who may be affected by the result of the arbitration. The trade union must give each grievance its honest consideration, but so long as the arbitration process involves a significant financial commitment and has ramifications beyond the individual case, a trade union is not only entitled to settle grievances, in many cases it should do so. And, as has been pointed out in a number of cases, in assessing the merits of a grievance a trade union official – especially an elected one – cannot be expected to exhibit the skills, ability, training and judgement of a lawyer.
9It is also well-established in Board jurisprudence that a union is not obliged to proceed with a grievance to arbitration merely because a grievor wants it do so. In Balford Lindsay, [1989] OLRB Rep. March 264, the Board stated:
- … Unless the collective agreement gives the grievor that right, it is for the union to decide whether or not to take the grievance to arbitration. Section 68 [now section 74] requires the union to make that decision in a manner which is not arbitrary, discriminatory or in bad faith. It does not provide an appeal to the Board from the union’s decision. The question for the Board is not whether the union’s decision is the one which this Board would have made in the circumstances, it is whether the union’s decision is the result of a process of reasoning grounded on a consideration of relevant matters and free from the influence of irrelevant ones: see Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, 6 CLRBR (NS) 134, at paragraphs 36 to 39. The Board has recognized that considerations relevant to a decision whether or not to press a grievance to arbitration include the merits of the grievance, the likelihood of its success, the financial commitment involved in proceeding to arbitration and the claims or interests of other individuals or groups within the bargaining unit who may be affected by the arbitration proceedings and their possible results: see Catherine Syme, [1983] OLRB Rep. May 775 at paragraph 20.
10In my view, the applicant has not complied with the Board’s direction of July 4, 2000 by which he was required to respond to the union’s submissions. In addition, he has not asserted sufficient facts, which even if assumed to be true, would show a violation of section 74 of the Act. There is no prima facie case. For these reasons, the Board has decided to dismiss the application without a hearing or consultation.
11The application is dismissed.
“Anthony Brown”
for the Board