0154-00-U Susan Sugg, Applicant v. Canadian Union of Public Employees, Local 1764, Responding Party v. The Regional Municipality of Durham, Intervenor.
BEFORE: D. L. Gee, Vice-Chair.
DECISION OF THE BOARD; May 30, 2000
1This matter is an application in which the applicant, Susan Sugg, asserts that Canadian Union of Public Employees, Local 1764 (the "union") has violated section 74 of the Labour Relations Act, 1995 (the "Act"). In its response, the union asserts that the facts as set out in the application do not make out a violation of section 74 and request that the application be dismissed.
2Section 74 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.
3The essence of Ms. Sugg's complaint appears to be that one of three newly created Clerk 2 positions was not posted as a part-time employee was permitted to transfer into it whereas Ms. Sugg was told that she could not transfer into one of the newly created Clerk 2 positions. Ms. Sugg asserts that the union executive made a decision to benefit one union member with no recourse to the rest of the membership. It is not entirely clear what Ms. Sugg wishes to obtain by way of a remedy, however, her application refers to a request she made of the union to file a grievance on her behalf and the union's refusal to do so.
4It would appear that the union and the employer reached an agreement to permit the part-time employee to transfer into one of the Clerk 2 positions in order to avoid a lay-off and resulting bumping. Unions and employers are free to enter into agreements that modify the application of the terms of a collective agreement. There is no requirement when doing so for the union to obtain the consent of the individuals affected or the membership as a whole. Absent reaching such an agreement for reasons that are arbitrary, discriminatory or in bad faith, such agreements are completely within the power of a union to make
5Further, section 74 requires a trade union to act fairly (among other things) in the handling of employee grievances. But section 74 does not require a trade union to carry any particular grievance through to arbitration simply because an employee wishes that this be done. A union is entitled to consider the merits of the grievance and the likelihood of its success. Thus, the mere fact that the union failed to file a grievance on Ms. Sugg's behalf does not establish a violation of section 74.
6Based on the foregoing, it is my determination that the application as presently filed does not make out a prima facie case and ought to be dismissed. Before doing so, however, it is appropriate to hear from Ms. Sugg as to why she believes that the facts as set out in her application establish that the union has violated section 74. Should Ms. Sugg wish to continue with this application, she is hereby directed to file written submissions with the Board setting out how the facts as stated in her application establish that the union has violated section 74 of the Act. Such submissions must be delivered to the union and the employer and filed with the Board no later than July 4, 2000. In the event such submissions are not filed this matter will be deemed to be automatically terminated.
7I will remain seized for the purpose of considering Ms. Sugg's submissions.
"D. L. Gee"
for the Board