Ontario Labour Relations Board
3879-99-U Sergio Faneca, Applicant v. Bricklayers, Masons Independent Union of Canada, Local 1 Universal Workers Union, L.I.U.N.A. Local 183 (formerly L.I.U.N.A. Local 183) and Masonry Council of Unions Toronto and Vicinity, Responding Party.
3925-99-U Joao Faneca, Applicant v. Bricklayers, Masons Independent Union of Canada, Local 1 Universal Workers Union, L.I.U.N.A. Local 183 (formerly L.I.U.N.A. Local 183) and Masonry Council of Unions Toronto and Vicinity, Responding Party.
3926-99-U Manuel Faneca, Applicant v. Bricklayers, Masons Independent Union of Canada, Local 1 Universal Workers Union, L.I.U.N.A. Local 183 (formerly L.I.U.N.A. Local 183) and Masonry Council of Unions Toronto and Vicinity, Responding Party.
3927-99-U Marco Santos, Applicant v. Bricklayers, Masons Independent Union of Canada, Local 1 Universal Workers Union, L.I.U.N.A. Local 183 (formerly L.I.U.N.A. Local 183) and Masonry Council of Unions Toronto and Vicinity, Responding Party.
3928-99-U Oscar Faneca, Applicant v. Bricklayers, Masons Independent Union of Canada, Local 1 Universal Workers Union, L.I.U.N.A. Local 183 (formerly L.I.U.N.A. Local 183) and Masonry Council of Unions Toronto and Vicinity, Responding Party.
BEFORE: Timothy Sargeant, Vice-Chair.
DECISION OF THE BOARD; August 28, 2000
Decision
1The style of cause in each application is hereby amended to reflect the correct name of the responding party: “Bricklayers, Masons Independent Union of Canada, Local 1 Universal Workers Union, L.I.U.N.A. Local 183 (formerly L.I.U.N.A. Local 183) and Masonry Council of Unions Toronto and Vicinity”.
2These are applications brought pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) that the responding party has breached section 74 of the Act.
3All these applications appear to be concerned with an alleged failure of the responding party to file a grievance about the concerns of the applicants with a former employer in regards to amounts of money alleged to be owed to each of the applicants.
4Section 74 of the act states:
- 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.
5In order to establish that a union has contravened section 74 of the Act, an applicant must demonstrate that the union's actions are:
"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.
In 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. Further, the fact that a grievance does not go to arbitration does not, it itself, establish any arguable breach of the Act.
6In this instance the responding party has filed a very full and complete response. It would seem from the pleadings that the responding party has worked very diligently on behalf of the applicants and is still endeavoring to find an acceptable settlement.
7Given the facts as pleaded there is nothing in these applications which would lead the Board to conclude the applicants have a reasonable chance of success. The applicants do not dispute that the union attempted to meet with the employer on their behalf. What the applicants complain about in essence is the length of time it has taken to deal with the employer. The applicants feel the union should not have allowed the matter to drag on and attempted other remedies. It however is apparent from the pleadings that the responding party has worked diligently on behalf of the applicants in difficult circumstances.
8The Board has a discretion under section 96 as to whether to consider an application and as to whether it proceeds 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.
9In this instance, give the limited chances of success in regards to these applications, and given the material filed, the Board sees little useful purpose in putting the parties to the significant time and expense that would be incurred through a hearing. In the circumstances, the Board exercises its discretion and dismisses these applications.
“Timothy W. Sargeant”
for the Board