Robert McGee v. Christian Labour Association of Canada, 2000 CanLII 12884

File No.: 2093-99-U Date: February 15, 2000

Between:

Robert McGee, Applicant

Christian Labour Association of Canada, Responding Party

Canadian Waste Service, Interested Party Intervenor.

Before: David A. McKee, Vice-Chair.

DECISION OF THE BOARD

1This is an application pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995 ch. 1 ("the Act"), alleging a violation of section 74 by the Christian Labour Association of Canada ("CLAC"). Although the applicant names as responding party "Canadian Waste Service", it is apparent that the proper responding party is CLAC, and Canadian Waste Service is an interested party seeking status as an intervenor. Accordingly, the style of cause in this matter will be amended to reflect this fact.

2CLAC has asked the Board to dismiss this application without holding a hearing, presumably pursuant to Rule 46 of the Board's Rules of Practice. Rule 46 provides as follows:

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.

3Accordingly, the Board must have regard only to the facts which are stated or may be inferred from the application itself, without regard to any assertion made by CLAC or by Canadian Waste Service ("CWS"). The application is extremely brief, consisting of a single handwritten page attached to the Form A-29 application form and a letter from CLAC to the applicant. The facts as revealed in the application are as follows.

4The applicant was first hired by a predecessor corporation to CWS in 1988. Apparently, that corporation was known as K & E Solid Waste. He asserts that he worked steadily until October 1994 when he was laid off. This lay-off was a result of the loss of a contract with the City of Chatham by K & E Solid Waste at that time. In October of 1994 the applicant's supervisor, Hector Gagne, advised him and all other employees that if they remained at work until the last day prior to lay-off, if and when additional work was available they would be recalled with full seniority. Sometime after that, he was "called back to work", although presumably with CWS rather than K & E Solid Waste. Sometime after that event, CLAC acquired bargaining rights for the employees of CWS.

5In any collective agreement regime outside of the construction industry, seniority is inevitably an issue. The applicant asserts that CLAC is unwilling to take any steps to adjust his seniority date to January 20, 1988, the date on which he says he was first employed. In the handwritten statement he asserts:

"They said policy is if you get layed [sic] off from your job, if you go to work for someone else, your back seniority is no good. But when I was called back to work, the union wasn't a part of the company."

6The applicant also attached a letter to the application from CLAC to him dated April 29, 1998. This letter states in full:

"If we are to succeed in getting you more seniority on the revised list, we need your help. Your claim will only be successful if we can find some legal documentation to back it up. What we need to have, in particular, is paperwork that shows your layoff from K.&E. – when they lost the Chatham contract – and later shows your return. Presumably this will show that their [sic] was no interruption in your employment relationship with K.&E. and then your seniority could be properly traced back to your original date of hire.

Let me stress that we have legal documentation – a copy of your Record of Employment, letters from the company on their letterhead and so on. We more or less have to prove your version of events if we are to succeed and it simply will not be good enough to rely on someone's recollection of what may have been said at the time.

It is urgent that we get this information from you right away. If we do not have it by Monday, May 4th we will not be able to pursue your claim any further. You are welcome to contact me if you have any questions about this. I look forward to your prompt response."

7On a motion under Rule 46, the Board is directed to accept as true all of the facts as pleaded. There is in this application an internal inconsistency between the statement attributed to the union in the handwritten schedule to the application and the letter from CLAC. I propose to treat the letter as the union's final position. Given the May 4th deadline in the last paragraph, this certainly appears to be a final position. I do accept, as I must, that a representative of the union made the statements attributed to CLAC in the handwritten narrative. However, a letter has the advantage of being the position to which CLAC committed itself formally in the course of this dispute.

8The letter sets out a reasonable proposition, namely the union is prepared to consider litigating the issue of the applicant's seniority. However, it insists on documentary evidence in support of that claim. It is not prepared to consider "someone's recollection of what may have been said at that time". Given the lengthy period of time being discussed, the fact that the employment relationships were interrupted and have involved at least two different corporations, this is not an unreasonable decision on the part of the union. The applicant has pleaded no facts about any available evidence from former employees that would suggest that there is a reasonable alternative to this evidentiary approach.

9In any event, I take it the reference to "someone's recollection of what may have been said at the time" to be a reference to the applicant's assertion that a supervisor from a previous employer had promised certain things with respect to seniority. Given that the promise was made to employees and not to the union, and was in any event made at a time when no collective bargaining relationship existed, such a promise would be unenforceable at arbitration in any event: Maison mere de soeurs de la charite d'Ottawa (1973), 1973 CanLII 2058 (ON LA), 3 LAC (2d) 392. In any event, the applicant states that he has only a statement of earnings and a T-4 slip from 1988. Such documentary evidence would not, of course, establish employment up until October 1994. We infer from the last paragraph of the April 29, 1998 letter and the fact that this application has been made, that the union refused to proceed further in the absence of any further evidence.

10There is no allegation of, and no basis for, any assertion of bad faith or discriminatory behaviour. The term "arbitrary" has been defined by the Board in various ways where a trade union has:

(a) committed a "flagrant error" consistent with a "non-caring attitude" or to have acted in a manner "so reckless as to be unworthy of protection" (ITE Industries, [1980] OLRB Rep. July 1001 at para. 19);

(b) failed to direct its mind to relevant issues (Town of Oakville, [1984] OLRB Rep. May 731 at para. 14);

(d) failed to act on available evidence or to conduct a meaningful inquiry to obtain the information necessary to make a decision (North York General Hospital, [1982] OLRB Rep. Aug. 1190 at para. 25);

(e) to have acted in a manner which is indifferent, summary, capricious or perfunctory (Susan Shoes Ltd., [1983] OLRB Rep. Dec. 2067 at para. 38).

11On the facts that the applicant has pleaded, the application does not make out a case for a violation of section 74, and consequently, no case for any order or remedies as requested. Therefore, this application is dismissed.

"David A. McKee"

for the Board