3436-99-U – Nicholas Williams, Applicant v. United Steelworkers of America, Local 6720, Responding Party v. Collins & Aikman Plastics, Ltd., Intervenor.
BEFORE: Timothy W. Sargeant, Vice-Chair.
DECISION OF THE BOARD; March 23, 2000
The style of cause is hereby amended to reflect the correct name of the responding party: “United Steelworkers of America, Local 6720”.
This 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.
This application was filed with the Board on February 23, 2000.
This application relates to the termination of the applicant in or about April 17, 1998. A grievance was commenced on behalf of the applicant and a settlement reached dated July 6, 1998. The settlement was between the employer and the union, with the applicant as a signatory.
The settlement provided as follows:
The Union and the Grievor, Nick Williams hereby agree to withdraw from arbitration, the grievance dated 17 April ’98 alleging unjust discipline, subject to the following terms and conditions:
As full and final settlement of all issues concerning the grievor’s employment with Collins and Aikman, the grievor is deemed to have resigned effective 17 April ’98 and his discipline record will be sealed to outside job inquiries.
This settlement is made without prejudice or precedent to either party in any other matters and the grievor agrees that he was represented in a competent manner.
All signatories acknowledge that they have read these Terms of Settlement and understand their contents. The signatories are in full agreement with the foregoing.
In the application the applicant alleges that at the time the settlement was entered into, the applicant was suffering from a medical condition, of which the union was aware. It is alleged that the applicant was given no advance warning of the meeting held on July 6, 1998 between the applicant, union and employer. It is alleged that at this meeting the medical condition of the applicant was never discussed. It is further stated that the applicant was advised to sign the settlement by his union representative as “:it was the best they could do”.
In addition the application states:
[The] Record of Employment suggests that the employee was terminated due to poor attendance. The union failed to ensure that the Record of Employment was corrected to comply at the very least with the terms of settlement which were negotiated on behalf of the employee. The union’s failure to ensure a correction to the Record of Employment seriously impinged the employee’s ability to find alternate employment after his termination at Collins & Aikman.
As a remedy the applicant seeks to re-open the grievance so that the matter may proceed to arbitration. In the alternative the applicant seeks damages against the responding party “for its failure to act in good faith in managing his original grievance”.
Both the responding party and the intervenor submit this application should be dismissed without a hearing because of excess delay in filing the application. In addition the responding party submits that “even it all of the particulars as pleaded are assumed to be true, the Applicant has failed to make out a prima facie case that the union has breached section 74 of the Act”.
Section 74 of the Act provides:
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.
Rule 38 provides as follows:
Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.
It is well-established that the Board will not generally inquire into an application which is brought after a reasonable period of time has elapsed from the events complained about (see The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420).
In cases of lengthy delay the Board is prepared to presume that the other parties to the application have been prejudiced by the passage of time (see John Kohut, [1991] OLRB Rep. Dec. 1367). In deciding whether an application should be dismissed on the ground of delay, the Board will consider the length of the delay, the explanation for the delay, the relief sought, and the relative prejudice to the parties should the application be permitted to proceed, or be dismissed. The longer the delay and the greater the prejudice to the parties, the more persuasive will need to be the explanation for the delay.
In this situation the terms of settlement were known by the applicant as early as June of 1998. The application was not filed with the Board until February of 2000. No credible explanation for the delay is advanced by the applicant. Certainly it would seem the lengthy delay in filing this application should result in its dismissal.
In any event, given the facts as pleaded there is nothing pleaded which would lead the Board to conclude the applicant has a reasonable chance of success.
The terms “arbitrary”, “discriminatory” and in “bad faith” have been considered by the Board on a number of occasions. The Board has stated that only conduct which can be described as implausible, so reckless as to be unworthy of protection, unreasonable, suspicious or negligent will amount “arbitrary” conduct. The term “discriminatory” has been interpreted to refer to the disparate treatment of bargaining union members without cogent reasons “bad faith” has been interpreted to refer to actions or decisions motivated by hostility, ill-will or other improper considerations.
The Board is extremely reluctant to overturn a settlement made between the parties. Though the applicant may indeed have had a medical condition, there is nothing in the pleadings to suggest that he lacked the capacity to enter into the settlement dated July 6, 1998. In that settlement it is specifically acknowledged by the applicant that “he was represented in a competent manner”.
The Board has a discretion under section 96 as to whether to consider an application and as to 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.
For all of the above reasons the Board exercises its discretion in this matter and dismisses the application
“Timothy W. Sargeant”
for the Board