3454-99-U Joso Klobucar, Applicant v. Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America, Responding Party.
BEFORE: Inge M. Stamp, Vice-Chair.
DECISION OF THE BOARD; June 26, 2000
The style of cause is hereby amended to reflect the correct name of the trade union to read as: “Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America”.
This is an application under section 74 of the Labour Relations Act, 1995 (the “Act”). The applicant alleges the union, Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America (“Local 675”) violated section 74 of the Act. It appears the remedy the applicant is seeking relates to a loss of insurance benefit payments.
Section 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.
This section of the Act deals with the duty of fair representation by a trade union of an employee in relation to his or her employer. This is not a section of the Act which can be violated by an employer. There are no allegations pleaded in the application of any wrong-doing by the employer. This application as it relates to the responding party, Torino Drywall System, is hereby dismissed.
From the applicant’s materials filed in this matter it appears the applicant has suffered financial losses with respect to his disability benefits. The applicant alleges he was “lied to” by the Financial Secretary of the Union at the time, “which cost me a great deal financially”.
The applicant has been on disability since 1992. On March 20, 1998 The Maritime Life Assurance Company advised the applicant that he was “not entitled to any payment under the cost plus plan and all benefits paid out had to be refunded.” This was pursuant to an agreement signed by the applicant in 1994. The instant application was filed with the Board on February 25, 2000.
The responding party, Local 675, submits this application should be dismissed on the basis that the facts alleged by the applicant do not establish a prima facie case of a violation of section 74 of the Act.
In the alternative the Local 675 submits this application should be dismissed because of the applicant’s unreasonable and unexplained delay. The union asserts the matter was raised in the March 20, 1998 letter from The Maritime Life Assurance Company. The union further submits this application is lacking in particulars as required by Rule 38 of the Board’s Rules of Procedures.
Decision
In its pleadings the applicant sets out the history with respect to his disability payments since his workplace injury in 1992. The heading of the narrative states: “Re: Disagreement with the D.A.L.I. Local #675 regarding insurance”.
The applicant, Mr. Klobucar, alleges that in 1992 Mr. Ken Weller, the union’s Financial Secretary told him as long as his claim had been filed with WCB (now WSIAT - Workplace Safety and Insurance Appeals Tribunal) the union had no further involvement. Subsequently some arrangements were made with the assistance of the union to receive benefit payments subject to the WCB claim.
Section 74 is limited to the way in which the union, as bargaining agent, represents employees in a bargaining unit vis-à-vis their employer. The conduct complained of in this application does not fall within that parameter. The alleged misconduct does not relate to the quality of the union’s representation of the applicant vis-à-vis his employer but rather concerns the adequacy (or truthfulness) of information provided by the union with respect to disability benefits.
The Board has consistently ruled in past decisions that the duty of fair representation in section 74 is concerned only with the representation of a trade union of an employee in relation to his or her employer.
In the circumstances the Board finds that the applicant has failed to make out a prima facie case for a breach of section 74 of the Act. Rule 46 of the Board’s Rules of Procedure states:
- Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.
The remedy the applicant requests is not available under section 74. The conduct that is the subject of this complaint involves the applicant’s relationship with his union as a member of that union. The union’s conduct in this complaint does not arise in the context of the union’s representation of the applicant in his employment relationship with his employer. (See Angelo Moro, [1983] OLRB Rep. August 1354).
For the foregoing reasons, this application is dismissed. Such dismissal is, however, without prejudice to any rights which the applicant may have pursuant to contract or otherwise, at common law, under any other statute, or in any other forum.
Having regard to the above it is not necessary to deal with the timeliness issue raised by the responding party.
“Inge M. Stamp”
for the Board