Ontario Labour Relations Board
1887-99-U Dimce Cvetkovski, Applicant v. United Food and Commercial Workers Union, Local 333, Responding Party.
BEFORE: M. A. Nairn, Vice-Chair.
DECISION OF THE BOARD; January 13, 2000
1This is an application brought pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging a violation of section 74 of that Act.
2In its response the trade union asserts that the applicant has not made out a prima facie case for the remedy requested and asks that the matter be dismissed without a consultation. That matter is before me for consideration.
3In his application the applicant asserts that his employment was terminated as a result of an inquiry he made into his pay rate. An earlier complaint was filed (Board File No. 1821-98-U) and resolved on the basis that the union would file a grievance on behalf of the applicant in respect of this issue. The applicant pleads that certain meetings were held but that he has not received the union's decision as to whether or not it will proceed to arbitration in respect of his grievance. By way of remedy he seeks the "money that Wackenhut stole from me".
4I note at the outset that, even if successful in establishing that the trade union violated section 74 of the Act, the likely remedy that the Board would order is to direct that the grievance proceed to arbitration. The Board does not have jurisdiction to interpret the collective agreement in order to determine whether or not the employer owes the applicant anything. That is the jurisdiction of the arbitrator. The jurisdiction of the Board is to place the applicant in the position he would have been in but for any violation of section 74 by the trade union.
5The complaint alleges however only that the union has failed to provide the applicant with the decision of the panel. This appears to refer to a decision by an appeals committee within the trade union in respect of a decision whether or not to take his grievance to arbitration. In dealing with an allegation that there in no prima facie case for the remedy requested, the Board looks only to the material filed by the applicant in order to determine whether or not there is an arguable case for the remedy requested. While this application makes out an arguable case that the trade union has failed to provide the applicant with a certain letter, I note two things. The trade union has responded including in its response a letter dated May 7, 1999 which purports to be the letter advising the applicant that the union has decided that it will not take his grievance to arbitration on the basis of the union's view that it is unlikely to succeed. Second, the remedy sought by the applicant is not one that flows from the particulars of his application.
6The receipt of the letter of May 7, 1999 by the applicant appears to address the particulars of misconduct that he alleges against the trade union. In the circumstances I hereby direct the applicant to advise the Board in writing (with a copy to the trade union at the same time), within 15 days of the date of this decision as to what, if any remedy remains outstanding. Should the applicant assert a remedy sought, he must also set out any and all particulars on which he relies in support of that request. On receipt of any such material I will review the application. Absent the filing of the material directed, this matter will be dismissed on the basis that, having now received the trade union's decision, the application is now moot.
"M. A. Nairn"
for the Board