Peter Lysak v. Amalgamated Transit Union, Division 966
1142-00-U Peter Lysak, Applicant v. Amalgamated Transit Union, Division 966, Responding Party v. The Corporation of the City of Thunder Bay, Intervenor.
BEFORE: Gail Misra, Vice-Chair.
DECISION OF THE BOARD; September 8, 2000
1This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”), alleging a breach of section 74 of the Act.
2With the original application the applicant appended a number of documents claiming that they represented the essence of his complaint. As such, the applicant attached a copy of his own statement made at a grievance meeting held on November 2, 1999; a letter from the City of Thunder Bay (the “employer”) to the union dated November 29, 1999; another statement made by the applicant at a grievance meeting held on December 20, 1999; and, a copy of a letter dated February 9, 2000 from the employer to the union. Mr. Lysak also attached a chronology of events. The remedy the applicant is seeking in this complaint, for the alleged breach of section 74 of the Act, is reinstatement to a full-time position with the City of Thunder Bay.
3Both the responding party (the “union”) and the employer filed full responses to the application and have requested that the Board dismiss the application without a hearing for want of a prima facie case. The applicant was given the opportunity to file his reply submissions to the responses, and has done so. He takes issue with some of the other parties’ factual assertions. For the purposes of this decision the Board has not relied upon any contested facts.
4Accepting for the moment that all of what the applicant has pled is true and provable, it appears that Mr. Lysak began to work for Thunder Bay Transit of the City of Thunder Bay on November 9, 1998. At that time he was employed as a Trainee Transit Operator. He was a probationary employee when he experienced a workplace accident on November 20, 1998 and as a result never completed his training period. He claims that the union did not investigate the circumstances of his accident and what Mr. Lysak describes as the hazardous situation that existed. The applicant apparently made a health and safety complaint.
5He did not return to work for some extended period of time and eventually the employer terminated Mr. Lysak’s employment in June 1999. The union President attended at the termination meeting with the applicant. Mr. Lysak then wanted the union to file a grievance on his behalf regarding his termination. He claims that the union was reluctant to do so as he was a probationary employee. There also appears to have been some issue as to who may represent the applicant as he had worked elsewhere for the employer prior to accepting the job in the transit operation and had been represented by the Canadian Union of Public Employees when in that capacity. It is obvious from the applicant’s materials that the Amalgamated Transit Union represented the applicant in his dealings with the employer.
6From a review of the applicants’ documents the following may be gleaned. The union filed a grievance regarding the applicant’s dismissal from employment. Charlie Brown, the president of the Local, met with Mr. Lysak or discussed with him over the telephone the matter of the termination on several occasions. Mr. Brown also attended at a meeting between Mr. Lysak and someone from the employer’s Human Resources Annex to review the applicant’s personnel records prior to the Level 1 Grievance meeting being held.
7The applicant had an opportunity to attend at and speak to the employer at the Level 1 Grievance meeting held on November 2, 1999. The employer responded to the union’s presentation made that day in its letter of November 29, 2000. From that letter it is clear that the union made submissions to the employer on behalf of the applicant and requested that Mr. Lysak be reinstated with full seniority, benefits and wages. Nonetheless, having given its reasons, the employer denied the grievance.
8From the applicant’s materials it appears that a Level 2 Grievance meeting was held on December 20, 1999, at which the applicant was again able to make a presentation. Mr. Brown remained in touch with the applicant to keep him advised of what was going on and that the employer needed more time to respond following the meeting. By a letter dated February 9, 2000 the employer responded to the union regarding the December meeting. From a reading of the letter it appears that the union argued with some vigour on behalf of Mr. Lysak that the employer’s decision to terminate his employment was unfounded. The City of Thunder Bay concluded that Mr. Lysak was not suitable for continued employment and the grievance was therefore denied.
9In late February and early March 2000 union representatives met with Mr. Lysak a number of times to discuss what the strategy should be regarding going to arbitration with Mr. Lysak’s grievance. Mr. Brown apparently encouraged the applicant to consider seeking redress through the Workers’ Safety and Insurance Board (“WSIB”) or a wrongful dismissal suit as the applicant was a probationary employee.
10On March 8, 2000 it appears that the applicant met with the union or its executive three times to discuss the matter of the grievance proceeding to arbitration. Eventually the union executive voted not to support a referral of Mr. Lysak’s grievance to arbitration. The applicant was aware that the union had consulted a lawyer about his situation and had been told he did not have a good case. Mr. Lysak began to pursue the filing of this present complaint after the union decision not to go to arbitration. From Mr. Lysak’s recitation of the chronology of events it appears that union representatives continued to speak with the applicant and to answer his many inquiries even after the union’s decision not to pursue the grievance.
11Mr. Lysak claims that the union put his case to the employer poorly and that it did so because he was a probationary employee who was not a member of the union. He is also of the view that the union did not investigate his health and safety complaint sufficiently. He further complains that the union did not defend his WSIB claim. Mr. Lysak complains that the union granted the employer too many extensions for the filing of its response to the second stage grievance meeting. He felt he was left out of the process.
12Section 74 of the Act states:
- 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.
13A union is not obliged to take every grievance to arbitration simply because a member so wishes. The Board has on numerous occasions considered this matter and has stated that a union has a right to settle or withdraw a grievance, even without the consent of the individual grievor. In doing so the union must turn its mind to the merits of the grievance and consider, among other things, the potential consequences of the withdrawal upon the individual, the likelihood of success at arbitration, and the interests of the bargaining unit as a whole. (See Dennis Leonard, [1990] OLRB Rep. May 575 and Catherine Syme, [1983] OLRB Rep. May 775.)
14As is obvious from the above recitation of the facts as pled by the applicant, the union appears to have filed a grievance on Mr. Lysak’s behalf, to have represented him following his dismissal from employment, to have been in touch with him all along, and to have considered Mr. Lysak’s position before voting not to proceed to arbitration. Mr. Lysak was also permitted to make presentations in his own defence at various stages of the grievance procedure. Nothing in respect of the union’s handling of Mr. Lysak’s grievance would likely be seen to amount to a breach of section 74 of the Act as there is simply nothing alleged that, if proven, would cause the Board to find that the union had acted arbitrarily, discriminatorily or in bad faith in its representation of the applicant.
15It is unlikely that the Board would consider it a breach of the Act for a union to agree to give an employer more time to file its response during the grievance procedure. A union and employer have an ongoing relationship that requires each side to accommodate the needs of the other on occasion. It would not be conducive to good labour relations for a union to categorically deny an employer an extension when it may itself need the same indulgence on a future occasion. In any event, in this instance, the union kept the applicant apprised of the extensions, and he was not left out of the process.
16Mr. Lysak was a probationary employee who had only been in his new job for a few days when he had a workplace accident and then did not return to work for months. He never completed his probationary period. It appears from the letter of termination, and is not disputed by the applicant, that the employer had been dissatisfied with Mr. Lysak’s performance in any event. It had been about to terminate his employment for unsuitability on the very day he had his accident. In the circumstances it is not surprising that the union reached the decision that it would not pursue Mr. Lysak’s grievance to arbitration, and the Board would not likely find that the decision was an arbitrary one.
17With respect to Mr. Lysak’s allegation that the union did not assist him in his WSIB claim, the Board notes that section 74 of the Act does not require that a trade union represent its members in WSIB claims. A union’s obligation to its members arises out of matters related to the collective agreement or the Employment Standards Act. (See Luis Lopez, [1989] OLRB Rep. May 464.) The Board would therefore not find that the union had breached its duty of fair representation because it did not represent Mr. Lysak in his dealings with the Worker Safety and Insurance Board.
18For the same reason as outlined above the Board would not find that the union had failed to represent the applicant because it did not investigate his health and safety concern. The investigation of health and safety complaints is a matter in the jurisdiction of the Ministry of Labour, and Mr. Lysak did eventually contact the Ministry himself, as he had a right to do.
19Pursuant to section 96(4) of the Act the Board has the discretion to decide not to inquire further into a complaint. In this case having reviewed the application in some detail the Board is of the view that there is nothing pleaded that would lead the Board to conclude that the applicant has a reasonable chance of success in this application. Given the extremely limited chances of success in this application, and given that the union’s actions appear from the material filed by the applicant to have been reasonable, the Board sees little useful purpose in putting the parties to the significant time and expense that would be incurred through a hearing. Based on the applicant’s pleadings and accepting them as true and provable, the Board would not likely find that the union had breached section 74 of the Act. Therefore, the Board exercises its discretion and dismisses this application.
“Gail Misra”
for the Board