Jo-Dee Phoenix v. Service Employees International Union, Local 220, 2000 CanLII 12707

Jo-Dee Phoenix v. Service Employees International Union, Local 220

0281-00-U Jo-Dee Phoenix, Applicant v. Service Employees International Union, Local 220, Responding Party.

BEFORE: Inge M. Stamp, Vice-Chair.

DECISION OF THE BOARD: June 26, 2000

1The style of cause is hereby amended to reflect the correct name of the responding party as: “Service Employees International Union, Local 220”.

2This is an application under section 74 of the Labour Relations Act, 1995 (the “Act”). The applicant alleges the responding party, Service Employees International Union, Local 220 (“SEIU Local 220”), has violated section 74 of the Act.

3The responding trade union submits this application should be dismissed as the applicant has failed to describe conduct by the union which amounts to a breach of section 74 of the Act. The union further submits that the relief requested is beyond the jurisdiction of the Board.

4Section 74 of the Act provides as follows:

74. 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 46 of the Board’s Rules of Procedure states:

46. 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 remedies requested by the applicant, Jo-Dee Phoenix, are set out in the application and request the following:

REMEDIES

Whereas an employee has the right to join a trade union of his or her choice and to participate in its lawful activities,

and

Whereas an employee has the right to represented by a trade union in a manner that is not arbitrary, discriminatory or in bad faith,

The members demand a vote to disaffiliate with SEIU immediately,

in failure to achieve this, and in the alternative,

The members demand that the Union preschedule numerous dates between now (April), and July; that the Union provide research relating to the Employer’s proposals, as well as our proposal; and that a competent Business Rep. be immediately appointed to see this process through.

6The allegations made in support of the section 74 violation appear to relate to the applicant’s view of the responding union’s competency as its bargaining agent as opposed to the union’s conduct as the applicant’s representative with respect to the applicant’s employment relationship with the employer. Generally section 74 complaints deal with an issue arising out of a grievance or the decision by a trade union not to proceed to arbitration.

7This complaint and the remedies requested concern the way in which this trade union is conducting its negotiations as bargaining agent for the employees in the bargaining unit. The applicant is not happy with the progress or lack of progress of the negotiations and appears to disagree with the bargaining agents’ approach to negotiations.

8The remedies requested by the applicant reflect this dissatisfaction with the union and its conduct of the negotiations to date.

9The matters complained of by the applicant relate primarily to the internal workings of the union as opposed to the union ‘s representation of Jo-Dee Phoenix in her employment relationship with the employer.

10The now Chair of the Board commented as follows in Richard Moore v. The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 787 et al, (unreported decision in Board File 0148-93-U, dated April 20, 1994):

26. In a unionized setting, then, an employee no longer bargains on his own behalf. He must bargain collectively and deal with his employer through the union. However the union’s status as exclusive bargaining agent, carries with it a concomitant responsibility to fairly represent all employees in the bargaining unit for which the union has bargaining rights – whether or not they are members of the union. Since the employee cannot bargain with the employer on his own, and must rely on the trade union for this purpose, the statute requires the union to represent employees in the bargaining unit in a manner that is neither “arbitrary, discriminatory, or in bad faith”.

27. A similar standard is applied to the operation of the hiring hall. The union must operate this job allocation mechanism in a manner that is not “arbitrary, discriminatory or in bad faith”. Section 70 was added to the Act because section 69 is limited to employees in bargaining units, and unemployed union members – while perhaps “prospective” employees – would not fall within the ambit of section 69. Section 69 deals with the rights of employees, while section 70 deals with the rights of potential employees.

28. Under section 69, therefore, the union has a statutory obligation to fairly represent employees in the bargaining unit in their dealings with their employer. But section 69 does not regulate trade union organizations, as such, nor does it regulate all of the activities in which a trade union might be engaged. In particular, section 69 does not deal with what might be described as “internal union affairs”.

29. Matters such as the qualifications for membership, the rights of members vis-a-vis the union or each other, elections, union meetings, the powers of union officers, general decision-making processes of the union, and so on, are not regulated by the Labour Relations Act at all. It is the union’s constitution which governs the internal workings of the organization (see the analysis of the Court of Appeal in Astgen v. Smith, 1969 CanLII 488 (ON CA), [1970] 1 O.R. 129, and see generally G. W. Adams Canadian Labour Law at chapter 14). In this respect, a union is like a club, church or other voluntary association. The rights and duties of members, including qualifications for membership and expulsion from membership, are set out in the organization’s constitution.

30. This is not to say that a trade union is “above the law” or immune from legal regulation. The trade union’s constitution is a kind of “contract” which can be enforceable by Courts at the instance of the member, in the same way as any other contract. Similarly, a union may have obligations under health and safety legislation, human rights legislation, pension regulations, and at common-law. If a trade union owns or administers property, directly, or in trust, the use or disposition of that property may be subject to a variety of legal restrictions or fiduciary obligations. And so on. But the internal affair of unions are not generally regulated by the Labour Relations Act.

31. If a union member believes that his rights have been denied, he may seek relief through the process and in the forum created by the legal framework (contractual, common-law or statutory) that creates the “right” in the first place. That is what Mr. Moore did when he sued the union, its officers, and, inferentially, his fellow members whose dues money would provide the funds from which any recovery would be paid. Mr. Moore claimed that the defendants had breached their common law or contractual obligations to him, and he went to court to get a remedy. In the same way, a union member who claims that the union constitution has not been properly applied, or that his rights as a member have been infringed, may pursue any dispute settlement mechanism provided in the constitution then apply to the Courts for further relief. That is what happened here, in part. Certain aggrieved union members took action against Mr. Moore under the union constitution because, they said, the timing or content of Mr. Moore’s allegations were in breach of the constitution and inconsistent with Mr. Moore’s obligations as a union member. Those allegations were considered in the forum provided by the constitution for that purpose. Whether the charges were properly considered under the constitution, we do not, of course, decide.

11In Angelo Moro, [1983] OLRB Rep. Aug. 1354, then Board Chairman G.W. Adams described the scope of section 69 (now section 74) this way:

3. The misconduct that the complainant has alleged concerns a dispute between himself and his union regarding the union’s pension fund. It would appear that the complainant is not challenging the quality of the respondent’s representation vis a vis his employer, but rather is asking the Board to concern itself with a matter that is solely an internal union problem. The complainant is in essence asking the Board to intervene to determine the existence, or lack thereof, of a union pension plan. Such an undertaking would involve the Board in matters of concern that exist between the union and the complainant, and would have nothing to do with the quality of representation with respect to his employment relationship. The Board has consistently ruled in past decisions, that the duty of fair representation in section 68 is concerned only with the representation by a trade union of an employee in relation to his or her employer. See Ford Motor Company, [1973] O.L.R.B. Rep. Oct. 519; Myrna Wood, [1981] O.L.R.B. Rep. 137; Frank Manoni, [1981] O.L.R.B. Rep. Dec. 1775; Sylvia Colalicco, [1982] O.L.R.B. Rep. July 1066. Simply put, these cases have established that section 68 does not give the Board jurisdiction to intervene in internal union problems. The Board stated in Mario Moreira, [1980] O.L.R.B. Rep. July 1039:

This Board has no specific authority under the Act to undertake any sort of watchdog role over a union’s internal processes under its constitution and bylaws.

4. In the circumstances, the Board is of the opinion that the applicant has failed to make out a prima facie case for a breach of section 68 of the Labour Relations Act. Section 71(1) of the Board’s Rules of Procedure is as follows:

71d.-(1) Where an application or complaint does not, in the opinion of the Board, make out a prima facie case for the remedy requested, the Board may dismiss the application or complaint without a hearing and it shall in its decision state the reason for the dismissal.

12The allegations and the remedies requested relate to the union’s conduct with respect to the negotiation for a collective agreement. The union’s behaviour or conduct that is the subject of this complaint did not arise in the course of the union’s representation of the applicant vis-a-vis her employer. This complaint reflects the applicant’s dissatisfaction with internal union matters, specifically the way in which this responding trade union is conducting negotiations on behalf of this bargaining unit.

13In the instant application the applicant is not complaining with respect to how an individual employee was treated by the union with respect to an employment related issue. The remedies requested in effect ask for the bargaining agent to be removed and /or for the Board to adopt a supervisory role to oversee the collective bargaining process. Those remedies are not available under section 74 of the Act.

14In the circumstances the Board finds that the applicant has failed to make out a prima facie case for a breach of section 74 of the Act. This application is dismissed pursuant to the Board’s discretion under section 96(4) of the Act and Rule 46 of the Board’s Rules of Procedure.

“Inge M. Stamp”

for the Board