3925-98-U Lou Calabro, Applicant v. CUPE Local 10, Responding Party v. City of Toronto, Intervenor.
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Luigi Calabro on his own behalf; Brian Sheehan and Don Styles for the responding party; Heather Crisp and Kevin Bowser for the intervenor.
DECISION OF THE BOARD; March 9, 2000
1. This is an application under section 96 of the Labour Relations Act, 1995 (“the Act”) which alleges that the responding party violated section 74 of the Act.
2. A consultation was held in this matter on February 9, 2000.
The Facts
3. The background facts to this complaint were not substantially in dispute.
4. The applicant is employed by the City of Toronto (“the City”), formerly the City of York, in an Operator 1 position at one of the City’s ice arenas. He is represented in his relations with the City by the responding party (“Local 10”) and, previously, its predecessor union.
5. In early 1997, the Ministry of Labour ordered the City to maintain an employee with a Refrigeration B certificate (“a B certificate”) at the City’s two horse-powered arenas. As a result, the City created two acting Chief Operator positions that had a requirement that the employee hold a B certificate. Since few of the City’s employees then held a B certificate and it had not previously been a required qualification, the employer offered a course to interested employees to assist them in preparing for the B certificate exam.
6. Approximately 10 employees took the B certificate exam, but only the applicant and another employee, Chris Nash, passed. They were each immediately appointed acting Chief Operators for the two arenas.
7. On March 7, 1997 Local 10 and the City entered into a Memorandum of Agreement, which extended their collective agreement for at least the duration of 1997. One of the clauses entered into had an impact on the applicant in that it provided an opportunity for all employees to re-take (or take for the first time) the Certificate B exam. The agreement stated (in part):
The Corporation will not permanently fill this position prior to 31 December 1997 to permit permanent employees to rewrite the Ministry examination for B certification.
8. The collective agreement between the parties states that promotion, reclassifications, transfers and appointments will be made on the basis of qualifications, except wherever qualifications are relatively equal, seniority governs. The applicant, the City and the union acknowledged that those criteria applied to the applicant’s case. However, the City takes the position that it is not required to post and fill a permanent Chief Operator position at all. Instead, it says, and its practice was (at least in this case), to fill the position on a season by season basis, there being no reason to employ a Chief Operator during the summer when there was no ice in the arena. On each occasion that it appoints an “acting” Chief Operator, the City applies anew the promotion criteria which are contained in the collective agreement.
9. In October 1998, the City made another temporary appointment to the Chief Operator position in which the applicant had been acting. They appointed a Mr. Agostini, one of the employees who had been permitted to re-write and passed, on this second attempt, the Certificate B exam. The applicant was placed in his previous position. After determining that the City was not going to post the position on a permanent basis, the applicant brought this application.
Arguments
10. While it is obvious why the applicant feels he has been wronged, it is somewhat difficult to determine exactly what he asserts the union did to cause that wrong. The applicant makes two arguments:
that the union violated section 74 of the Act when it negotiated the agreement that permitted employees to rewrite the Certificate B exam, because the only reason for doing so was to ensure that Mr. Agostini obtained the position;
that the union ought to have required the City to post the position permanently.
Decision
11. Section 74 of the Act states:
74. 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.
12. It is possible that if an employer and union were to conspire against an employee to deprive him/her of a job, that would constitute a violation of section 74 of the Act. However, in this case, the factual allegations to sustain such a complaint are simply not set out in the application and were not presented to this Board in the consultation. For example, there are no factual assertions that there were meetings or agreements between the City and union officials to conspire to assist Mr. Agostini, which in my view are necessary allegations to make out a prima facie case of conspiracy. The Board’s Rules state that if an applicant is to allege improper conduct he must explain what happened, when and where it happened, and the names of any persons said to have acted improperly. That information was not provided in this application. The Board cannot find a conspiracy where the required information was not pleaded, or on the basis of the type of speculation that the applicant made at the consultation.
13. It is also apparent that the applicant was immediately aware that the Memorandum of Agreement could adversely impact him, and that he believed at that time that the City and the union had agreed to the provision in the collective agreement which allowed employees to re-take the certificate B exam in order to assist Mr. Agostini. Yet, the applicant did not file this application until February 1999, two years later. It is simply too late to complain about the Memorandum of Agreement.
14. The applicant’s second argument was that the union ought to have required the City to post the Chief Operator position immediately after the expiry of the December 31, 1997 deadline. The applicant’s position is based on an interpretation of the collective agreement that would require the City to post the Chief Operator position permanently and if so, would require such posting to be conducted in January of 1998.
15. The union has in fact filed a grievance which generally seeks to require the employer to post permanent positions rather than fill them on a temporary basis. However, there is no dispute that the grievance will not assist the applicant because if the position is posted permanently, the union would insist on it being presented to the most senior qualified employee, Mr. Agostini. The applicant’s complaint is based on the assumption that the union is a guarantor of the collective agreement, and that if any problems arise, which the union does not rectify, it is the union’s fault and responsibility. The union does not have the responsibility to ensure that employees have no complaints. The system depends on employees to file a grievance if they are dissatisfied with the way they are treated by their employer. Alternatively, employees may seek their union’s advice about their rights. Although the applicant perceived that he was being wronged, he did none of those things in this case. Instead he waited, because he occupied the position that he wanted. However, in doing so, he eliminated any opportunity the union could have had to act on his behalf.
16. Accordingly, for all of the foregoing reasons, this application is dismissed.
“Brian McLean”
for the Board