2609-99-U Tessie Noonan, Applicant v. Ontario Nurses’ Association Local 1, Responding Party.
BEFORE: Russell Goodfellow, Vice-Chair.
DECISION OF THE BOARD; August 1, 2000
This is an application under section 74 of the Labour Relations Act, 1995 (the “Act”). The applicant complains that the responding party breached the Act by advancing a grievance to arbitration on behalf of another employee. The applicant and the other employee were competitors for a job which the applicant had been filling on a temporary basis. Although the other employee was senior to the applicant, the collective agreement contains a “relative ability” job posting clause and the applicant claims that in advancing the interests of the other employee the responding party failed to give adequate consideration to her recent experience in the position.
The application does not make out a prima facie case of a breach of the Act. A trade union does not act arbitrarily, discriminatorily or in bad faith by choosing to advance the interests of one employee over those of another in a job posting competition. This is especially true, even in the context of a “relative ability” clause, when it is the interests of the senior employee that the trade union is advancing. Were the grievance to be upheld, the trade union’s position would, by definition, have been justified. Were it to be dismissed, the applicant would remain in the job and suffer no tangible loss. In this case, however, the Board has recently been advised that the union has withdrawn the grievance. Thus, not only does the Board find that there is no prima facie case of a breach of the Act but there is no reason to inquire into the matter.
Accordingly, the application is dismissed.
“Russell Goodfellow”
for the Board