Ontario Labour Relations Board
3211-99-U Paul Fulde, Applicant v. Ontario Nurses’ Association, Responding Party v. Centre for Addition and Mental Health, Intervenor.
BEFORE: Caroline Rowan, Vice‑Chair.
DECISION OF THE BOARD; March 8, 2000
1This is an application brought pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging that the responding party, Ontario Nurses’ Association (the “union”), breached section 74 of the Act.
2The applicant, Mr. Paul Fulde, generally complains about the union’s failure to pursue a grievance on his behalf seeking a severance package which he claims is due to him as a result of his lay off from his part-time position at the Clarke Institute of Psychiatry (“Clarke”). The union requests that this application be dismissed on the basis that it does not establish a prima facie case of a breach of the Act.
FACTS
3The applicant was continuously employed at the Queen Street Mental Health Centre (“Queen Street”) for the last fourteen (14) years. As of 1990, he obtained a part-time position at the Clarke.
4On March 9, 1998, the Clark and Queen Street along with the Addiction Research Foundation and the Donwood Institute merged to form the new Centre for Addition and Mental Health (“CAMH”). The union subsequently became the bargaining agent for all nurses at CAMH following a representation vote held pursuant to the provisions of the Public Sector Labour Relations Transition Act, 1997 (the “PSLRT”). The applicant continued to work at both his full-time job at Queen Street and his part-time job at the Clarke for over a year after these two sites merged. He was then required to choose to continue working at only one site. Not surprisingly, the applicant chose to continue working at his full-time job at Queen Street.
5The union subsequently filed a grievance on his behalf alleging that CAMH violated the Collective Agreement by failing to provide notice of layoff to staff affected by this layoff. The applicant, however, complains that the union has failed to pursue a grievance on his behalf alleging that the CAMH violated the Collective Agreement by failing to provide him with a severance package.
6Instead, the union advised the applicant that it would not do so because it takes the position that the applicant is not entitled to severance monies, since he is still employed by CAMH. In a letter dated August 30, 1999 addressed to the applicant, a representative of the union explains the union’s position as follows:
Separate to the issue giving rise to the ONA grievance that was filed is the issue related to entitlement to severance for yourself and other members as a result of having to designate one position in which to continue your employment with CAMH. The Union has communicated its position to you by way of a voice message left for you by Ms. Cherrille Franklin, Labour Relations Officer. The Union’s position is that there is no entitlement to severance monies as a result of the Employer’s directive due to the fact that you are still employed by CAMH.
Given the fact that the new corporation of CAMH is a result of direction made by the Health Services Restructuring Commission the Union takes the position that policies and positions related to this situation must be consistent with policies followed and positions it has taken in other areas of the province.
The Union’s position related to this matter is one of long standing. As restructuring initiatives commenced within the province the membership made a decision at an Annual General Meeting of the Association that provided the direction the Union would take in these situations. In keeping with this, the Ontario Nurses’ Association’s membership determined that where two (2) or more Employers became one (1) new Employer that the members holding more than one (1) seniority level within the new Employer would be required to choose one (1) seniority from one (1) agency. The policy adopted Provincially was “one Employer, one job”. This position has been maintained by the Union as restructuring, rationalization, amalgamation etc. continued across the province.
In essence, the union’s position is that the applicant is not entitled to severance monies, since his employment with CAMH was not terminated. His hours of work were simply reduced.
DECISION
7Section 74 of the Act provides as follows:
- 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.
8In order to establish a breach of this provision, the union’s conduct must be either:
“arbitrary” – that is, flagrant, capricious, totally unreasonable, or grossly negligent [see, for example, I.T.E. Industries Limited, [1980] OLRB Rep. July 1001]; or
“discriminatory” – that is, based on invidious distinctions without reasonable justification or labour relations rationale; or
“in bad faith” – that is, motivated by ill-will, malice, hostility or dishonesty.
9In assessing a complaint, the Board considers whether the actions of the union fall into one of these three categories. Mistakes or misjudgements by the union are not illegal under the Act.
10Given the facts as pleaded, there is nothing pleaded which would lead the Board to conclude that the applicant has a reasonable chance of success. The pleadings just do not establish that the union has acted arbitrarily, discriminatorily or in bad faith as those terms have been interpreted by the Board. The application itself indicates that the union explained its refusal to pursue CAMH for a severance package for the applicant on the basis that the applicant continues to be employed by CAMH. There is further nothing pleaded by the applicant which suggests that the union’s decision in this regard was either discriminatory or made in bad faith.
11The Board notes that it has the discretion under section 96 of the Act as to whether it will consider an application, and as to whether the application should proceed to hearing. The Act specifically relieves the Board of the requirement to hold a hearing where it is alleged that section 74 of the Act has been breached.
12Accordingly, in the circumstances, the Board exercises its discretion and dismisses the complaint.
“Caroline Rowan”
for the Board