Dimce Cvtkovski v. United Food and Commercial Workers Union Local 333
File No.: 1887-99-U Date: March 1, 2000
Before: M. A. Nairn, Vice-Chair
Decision of the Board
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. By decision dated January 13, 2000 I directed the applicant to provide his representations as to what if any remedy remained outstanding. Further, I directed the applicant that if any remedy was being sought he was required to provide any and all particulars in support of that request. The applicant responded by way of a letter dated January 20, 2000. The responding party has now provided its reply submissions as to its assertion that the application does not make out a prima facie case for the remedy requested.
2In the January 13, 2000 decision I noted that the only particular pleaded to support an assertion of a violation of section 74 of the Act was that the trade union had failed to provide the applicant the decision of the union’s panel, an apparent reference to the union’s internal Appeal Committee. In his January 20^th^ letter, the applicant asserts that “to this day” he has not received the letter. As noted in the earlier decision however, that letter was filed with the trade union’s response. In any event, the applicant alleges that the failure to provide the letter is evidence of the union’s bad faith; that the union concealed from him its decision whether to proceed to arbitration or not, thereby seeking to avoid possible legal action. Just on that point, and assuming the applicant did not receive the letter in a timely way and assuming that the letter was not disclosed as a means for the union to avoid legal action brought by the applicant, neither point is now at issue. The applicant has the letter filed with the response and has pursued this application in a timely way. There would be no labour relations purpose served in pursuing a complaint on those grounds when the remedy that would flow from any finding of a breach (an order to provide the letter and the opportunity to pursue a complaint), are now moot.
3The applicant however does not focus on that issue. In his January 20, 2000 submission he asserts as the remedy he is seeking that the Board order that his
grievance proceed to arbitration.
4As noted in the January 13, 2000 decision when dealing with an allegation that there is 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. That material must include the factual basis upon which an applicant makes his assertions. Bald assertions in the absence of supporting pleadings are insufficient.
5The applicant asserts that he was entitled to a certain wage rate, which the employer failed to pay. Further to resolving an earlier section 74 complaint, the trade union filed a grievance. The particulars note that the applicant understood that the trade union considered the case “difficult to win”. Further, although the applicant asserts that the trade union ignored the terms of the collective agreement to his detriment, he states that the trade union appeared comfortable with the employer’s explanation. It may be that the applicant misunderstands the nature of section 74 of the Act. That section requires that the trade union not act in a manner that is arbitrary, discriminatory, or in bad faith in its representation of the individual member of the bargaining unit. A trade union is not required to agree with the member’s interpretation of the collective agreement. Nothing is pleaded as to any obvious misinterpretation of the terms of the collective agreement.
6The applicant also asserts that the matter was not pursued because the union decided it was too costly to proceed even in the event of the successful outcome. A trade union is also entitled to make such a decision, so long as the decision is not taken in a manner that is arbitrary, discriminatory, or in bad faith. No particulars support either assertion being made by the applicant. To the contrary, the particulars belie the assertion when the applicant acknowledges that the trade union believed the case would be difficult to win.
7On the basis of the material filed, this application is hereby dismissed for want of a prima facie case.
“M. A. Nairn”
for the Board