Daniel MacKinnon v. CEP Local 87-M Southern Ontario Newspaper Guild
File No.: 0093-00-U Date: May 25, 2000
Daniel MacKinnon, Applicant v. CEP Local 87-M Southern Ontario Newspaper Guild, Responding Party v. Now Communications Inc., Intervenor.
Before: Laura Trachuk, Vice-Chair.
DECISION OF THE BOARD
1This is an application under section 96 of the Labour Relations Act, 1995 (the "Act") alleging that the responding party, (referred to as the "union") violated section 74. Section 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.
2The union and the intervenor have both requested that this application be dismissed without a consultation as it does not make out a prima facie case. The Board directed that the applicant file submissions in response to those requests which have now been received. After reviewing the submissions the Board has decided to dismiss the application without a consultation as it does not disclose facts which could support a finding that the union has violated section 74 of the Act.
3The applicant resigned on September 27, 1999 because he was dissatisfied with certain aspects of his employment. He subsequently contacted a union representative who advised that he try to retract his resignation. He did try to retract his resignation but the retraction was not ultimately accepted. He claims, however, that it was initially accepted until he attended a meeting with his employer and the union. He acknowledges that that meeting did not go well and the intervenor refused to take him back. The union then filed a grievance on his behalf alleging "unjust discipline" and asking for his reinstatement. However, several months later, after consulting its legal counsel, the union advised him that it was not going to proceed with the grievance as it believed the grievance would not succeed.
4The Board finds that there is nothing in the applicant's pleadings about the union's conduct which could lead to a determination that it had represented him in a manner that was arbitrary, discriminatory or in bad faith. The applicant did resign. He claims he retracted that resignation by e-mail and that it was accepted by a return e-mail. However he has submitted a copy of that correspondence and it does not say the withdrawal of his resignation was accepted. It indicates that the intervenor was considering allowing him to retract his resignation, but had already taken some steps as a result of the resignation which would need to be resolved. The e-mail suggests that a meeting take place with respect to the matter. The applicant agrees that the meeting did not go well and the intervenor decided not to accept his retraction. Presented with those facts, an arbitrator would very likely find that the applicant resigned. Therefore, it was perfectly reasonable for the union to decide that the grievance it filed alleging "unjust discipline" would not likely be successful if it proceeded to arbitration. A union is not required to proceed with a grievance if it does not believe, after careful and fair consideration, that it will succeed.
5The applicant also says in his submissions that the "main issue" is that "NOW magazine bribed me to stay in their employ, promised me money and accounts they never intended to give me, and I was mismanaged." The applicant did not bring these matters to the union's attention until after he resigned so it could hardly have been expected to take any action with respect to them. In any case it is not obvious what action a union could take with respect to such allegations.
6For the above reasons the Board finds that the applicant has not alleged facts upon which it could find that the union violated the Act. The Board is therefore exercising its discretion to dismiss the application without a consultation. This application is hereby dismissed.
"Laura Trachuk"
for the Board