Ontario Labour Relations Board
2304-98-U Manuel Tereso, Applicant v. Sheet Metal Workers’ International Association, Local 30, Responding Party v. Toronto District School Board (North York Division), Intervenor #1, v. United Brotherhood of Carpenters and Joiners of America, Local 3219, Intervenor #2.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; July 4, 2000
DECISION OF THE BOARD
1This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995 ch.1 (the "Act") in which the applicant alleges that his bargaining agent has violated the duty of fair representation set out in section 74 of the Act. The responding party, Sheet Metal Workers' International Association, Local 30 (“Local 30”), joined by the Maintenance and Construction Skilled Trades Council, have asked the Board to schedule an electronic hearing to deal with two issues. Local 30 asserts that the application does not make out a prima facie case, or in the alternative requests the Board to order the applicant to provide further and better particulars.
2The applicant asserts that there is, in fact, a prima facie case pleaded, and further states that there are no further particulars to be provided.
3Since the applicant states that he has no further particulars to provide, there is no point in making such an order, before or after an electronic or any other type of hearing. The only question is whether there is a prima facie case pleaded. In examining this issue, the Board has regard only to the facts as pleaded in the application. Indeed, in this case only the applicant’s former employer has provided the Board with the required response, and therefore there are no assertions to ignore.
4The application is extremely short on facts. However, there is enough pleaded to at least require an answer from the responding party. The applicant asserts he was refused employment because of a disability which his employer would not reasonably accommodate. Indeed he asserts that the requirement that he be able to drive an automobile was not a bona fide requirement of the job. He was refused employment on March 6, 1998. He, or his agent, wrote protesting this to his employer on April 16, 1998. He wrote to his union on April 27, 1998 asking it to “correct this injustice”. The application appears to assert that he received no response from Local 30. The application was dated September 21, 1998 and filed October 2, 1998.
5The Board is not prepared to say that a member of a bargaining unit who is discharged or refused employment does not have a legitimate expectation that his bargaining agent will do something about it. This may be only an investigation of the facts. If the agent acts in a manner which is not discriminatory, arbitrary or in bad faith, it may be that a decision not to act on the member’s behalf in filing or pursuing a grievance will not violate the standard set by section 74. However, the Board does require some explanation of what the responding party did and why.
6This matter will proceed to a consultation on August 1, 2000. The responding party and any other party are to file responses or interventions forthwith. Any delay in doing so will merely complicate the process of determining the facts at the consultation.
7The applicant is reminded that what has been scheduled is a consultation, not a hearing. The applicant may wish to consult Information Bulletin No. 11 in this regard. In normal circumstances, the Board will not allow a party to introduce new facts or assertions made for the first time at a consultation. Evidence is not required, except as the Board deems it necessary to deal with the application. Given the number of requests for further particulars, the Vice-Chair sitting on this matter is unlikely to make any exceptions to that rule.
8I am not seized of this application.
“David A. McKee”
for the Board