2541-98-U Gary Spracklin, Applicant v. Amalgamated Transit Union, Local 113, Responding Party v. Toronto Transit Commission, Intervenor.
BEFORE: Christopher J. Albertyn, Vice-Chair.
DECISION OF THE BOARD; March 28, 2000
This decision concerns a reconsideration request filed pursuant to subsection 114(3) of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (“the Act”). The applicant filed an unfair labour practice complaint against the responding union (“the union”), in which the applicant claimed that the union had violated section 74 of the Act. By decision dated February 24, 2000, the application was dismissed.
The applicant seeks reconsideration of that decision on several grounds. His representative complains that the applicant was not alerted to the possibility of his application being dismissed before the decision was made. The intervening employer’s counsel points out that a request was made on behalf of the union, when its submissions in response to the applicant’s particulars were filed, that the application be dismissed for failing to make out a prima facie case. That request under Rule 46 of the Board’s Rules of Procedure was made on February 14, 2000 and it was served on the applicant’s representative on February 15, 2000. The applicant was therefore clearly alerted to the possibility of his application being dismissed on a prima facie basis prior to that happening.
The applicant’s representative contends that the applicant did not have an opportunity to respond to the union’s request that the application be dismissed on a prima facie basis because I did not seek the applicant’s submissions on the request. It is not customary for the Board to request such submissions. The evaluation of whether an application makes out a prima facie case involves determining whether the particulars as written are sufficient, if proved, to establish the case contended for. Submissions from the parties on the matter are not an essential precondition for the Board to make the determination.
In the applicant’s particulars he contended that he was treated differently from another employee, Ms. Loretta Thompson, and he claims the different treatment amounted to discrimination. There were no particulars of the manner in which he was treated differently or how his circumstances were the same as hers. Such particulars were necessary to establish a prima facie case against the union.
The applicant alleges that the union knew that the employer was “motivated by reprisal” and contends that his allegation of that fact was sufficient to put the union to its defence in the application. That is not so. Given the evidentiary difficulties of establishing that an employer has acted in bad faith when exercising a managerial discretion to discipline an employee, greater particularity was required to establish a basis for the applicant’s contention that the union violated the Act by declining to pursue his grievance after the issue of the interim award by the arbitrator. That particularity was absent from the applicant’s submission to the Board.
For these reasons I am not persuaded to reconsider the decision I issued. The request is denied.
“Christopher J. Albertyn”
for the Board