Michael Ayotte v. Communications Energy and Paperworkers Union of Canada, Local 599 and Canadian General Electric of Canada Ltd.
File No.: 3627-99-U Date: May 25, 2000
Before: Bram Herlich, Vice-Chair.
Decision of the Board
1This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging that the responding party trade union (“CEP”) has violated section 74 of the Act by refusing or neglecting to process his grievance(s) on time.
2For its part, the union asserts that the grievances which were filed on behalf of the applicant in February, 1998, have never been formally withdrawn but, in any event, are entirely without merit.
3CEP has moved that the application be dismissed as disclosing no arguable breach or, alternatively, because there has been undue delay in its filing.
4The applicant was provided with an opportunity to respond to that motion and has filed further submissions which the Board has now had the opportunity to review.
5From the documents filed it appears that while there are some facts in dispute, the broad outlines of the case are largely undisputed.
6The applicant commenced his employment with General Electric Canada Inc. in Peterborough in September, 1974. He was employed in a bargaining unit for which CAW Local 524 (“CAW”) held bargaining rights. In 1984 he accepted a transfer to a position in the bargaining unit for which the CEP Local 599 (the responding party trade union) holds bargaining rights.
7Sometime in October or November of 1997, the applicant was advised of his impending layoff.
8The applicant asserts that at the time of his transfer in 1984 and “at all material times since” the collective agreements for both the CAW and CEP bargaining units included provisions which allowed members of either to “cross-bump” into the other unit.
9CEP disputes, or at least significantly qualifies, that assertion. It is acknowledged that, until relatively recently, the CAW collective agreement contained provisions which contemplated the possibility of a return to the CAW unit of employees who (like the applicant) had previously transferred from the CAW unit to the CEP unit. However, and without unnecessarily delving into the interpretation of former provisions of a collective agreement to which the CEP was never a party, the CEP asserts (and the issue is discussed at some length in a legal opinion attached to the response) that while the CAW agreement (and practices under it) may well have contemplated or permitted “cross-bumping” for certain laid off CEP unit employees, it neither requires such cross-bumping nor provides CEP employees with any such right to exercise. Rather, the company was provided with the right to return such an employee to the CAW bargaining unit and an employee so “returned” would then recapture varying degrees of seniority.
10It appears further that the relevant provisions of the CAW agreement were modified by the parties to that agreement around the time that the applicant’s grievances under the CEP agreement were filed.
11In any event, the CEP asserts that there are no provisions in its collective agreement upon which to base the claim the applicant wished or wishes to advance.
12In this regard, we note that in its previous decision the Board included a specific direction that the applicant identify which provision of which collective agreement is/are asserted to have been violated. In response to that direction, the applicant has asserted that “the Union violated the Grievance procedures set out at Articles 15.02 through 15.05”.
13The text of the provisions relied upon has not been provided to the Board. However, from the references made by the applicant, that section of the collective agreement appears to deal with grievance procedures, not with issues related to the exercise of seniority rights across bargaining units.
14In other words, despite the specific direction from the Board, the applicant has not identified and provided any provision of the CEP agreement which is said to confer upon him the substantive right which he claims the union failed to pursue on his behalf.
15Applications under section 74 of the Act are not a means for disgruntled bargaining unit employees to seek to vindicate their preferred interpretations of a collective agreement. Where there is no dispute between the collective agreement parties as to the proper interpretation of that agreement, only the most exceptional circumstances would warrant the Board’s intervention in a section 74 context.
16Where, however, as in the present case, no specific provision of the relevant agreement can even be identified as providing the substantive right claimed, it is difficult to posit any circumstances where the Board might intervene in what is, at heart, a contest which is built upon a dispute between a union and its member over the interpretation of a collective agreement.
17And if an applicant cannot identify any relevant substantive provision of the collective agreement, there is little to be gained by pointing to or relying upon provisions of an agreement to which the responding party union is not a signatory.
18There are further concerns in this case.
19The union did file grievances on the applicant’s behalf in February of 1998. This application, complaining about the handling of those grievances was filed on March 10, 2000 i.e. over two years later.
20The union claims that it was specifically asked by the applicant to hold his grievances in abeyance. It further claims that sometime prior to June, 1998 the applicant’s brother (who was also an employee in the CEP unit) asked the union (purportedly on the applicant’s behalf) to “drop” the applicant’s grievances. Despite the latter request, the grievances were not withdrawn, but neither have any steps been taken to advance them
21The applicant disputes the claim that any request was tendered by him or on his behalf with regard to holding his grievances in abeyance or dropping them.
22In any event, it is not disputed that the applicant’s lay-off was effected in March of 1998. Similarly, there is no dispute that in June of 1998, the applicant executed a document which, effectively, extinguished his recall rights and provided him with a severance payment.
23The applicant claims he did not understand the consequences at that time. Some 10 months later, he consulted counsel and some 11 months after that, the current application was filed.
24There is no assertion in the application that there was any communication between the applicant and the CEP from February of 1998 until the instant application was filed. It appears that the union had no direct involvement or input in the execution of the June 16, 1998 document. It appears that the applicant did not see fit to seek the union’s input at that time.
25Even accepting the applicant’s version of the facts, however, the Board is troubled by the significant delay in bringing this application. For even if one might presume that the applicant was merely awaiting developments in respect of grievances he thought were “in process”, to wait in excess of two years to register any kind of complaint about the delay, is untenable.
26Thus, whether viewed from either of the two perspectives canvassed, the Board is of the view that this application must be dismissed without a hearing or consultation.
27The applicant complains about the union’s delay or refusal in processing his grievances, but he has failed to identify any substantive basis in the CEP agreement upon which his claimed legal entitlements might arguably be based. As a consequence, the Board is persuaded that the application fails to disclose an arguable case of any violation of section 74. Further, we have not been persuaded that there is any reasonable explanation for the delay in bringing this application.
28This application is dismissed.
“Bram Herlich”
for the Board