Ontario Labour Relations Board
File No.: 1960-00-U Kevin Carter, Applicant v. Service Employees International Union, Local 220, and London Health Sciences Centre, Responding Party.
Before: Mary Ellen Cummings, Alternate Chair.
Decision of the Board; December 27, 2000
Decision
1This is an application pursuant to section 96 of the Labour Relations Act. The applicant alleges that the Service Employees International Union Local 220 (the union) breached its duty of fair representation to him with respect to its handling of his loss of employment with the London Health Sciences Centre (the employer). Both the union and the employer have asked that the application be dismissed because of delay or because it fails to make out a prima facie or arguable breach of the duty of fair representation.
2The applicant alleges that most recently he had been employed by Canadian Waste Services Inc. He worked at an Energy From Waste Plant on the employer’s property which Canadian Waste Services Inc. operated. In October 1999, Canadian Waste Services Inc. decided that it no longer wanted to operate the plant. The employer, then, took responsibility for its operation.
3The applicant further alleges that the employer’s contract with Canadian Waste Services Inc. required the employer to offer employment to all unionized employees employed at the site. The applicant included a copy of the contract with its application. The applicant also alleges that in mid-October, Minutes of Settlement were reached between the union, the employer and Canadian Waste Services Inc. in which the employees could bump into the employer’s bargaining unit with full recognition of service and seniority. The applicant attached the Minutes of Settlement.
4The applicant alleges that he was never offered an opportunity to bump into the bargaining unit but was “…simply given an ultimatum to either accept an inferior employment position with the LHSC, or take a meagre severance package and seek employment elsewhere”. Most important, for our purposes, the applicant alleges that when he told the union about the ultimatum, its representatives refused or neglected to address his concerns. Further, the applicant alleges that when he reiterated his concerns in April 2000, the union advised him that it would take no action on his behalf.
5The union responded that first, it does not understand how the allegations make out a breach of the duty of fair representation; second, it was never aware that the applicant was unhappy about the choices offered him in October 1999. Indeed, the union understands that the applicant chose an exit package in October 1999, and severed his employment at that time. The union disagrees that the applicant was advised that the union would do nothing when he approached them in April 2000, but noted that the applicant’s April approach was six months after he severed his employment, and well outside any time limits to launch a grievance.
6The Board has had an opportunity to review the Minutes of Settlement on which the applicant relies, and with respect, its terms are not as simple as he suggests. In my view, it sets up a series of options, whose availability is in large part based on the choices and options made by other employees. The applicant was not guaranteed a particular job.
7But in any event, I am satisfied that the applicant has made out a prima facie case, having regard only to the material in the application. If the applicant can establish that he raised concerns in October 1999 that the terms of the Minutes of Settlement were not being adhered to, and the union completely ignored him, the Board might well conclude that the union’s conduct was “arbitrary”. In Frank Prindler, [1992] OLRD No. 1190, the Board defined arbitrary conduct as follows:
What is arbitrary conduct depends upon the circumstances in each case. The jurisprudence generally has regarded honest mistakes, innocent misunderstandings, simple negligence and errors in judgement as not contravening the duty of fair representation in contrast to conduct which may be reasonably characterized as uncaring, reckless, unreasonable, capricious or grossly negligent.
If the union ignored the applicant’s concerns, without more, its conduct may be considered to be arbitrary.
8However, the union, in its response, has raised a number of important issues, which if borne out will very likely cause the Board to dismiss the application. If the applicant accepted the severance package in October 1999 without protest, the Board would conclude that the union had no reason to intervene and represent him. Similarly, if the applicant only raised concerns in April, six months after he took the package, the Board may well conclude that the union’s assessment that it could do little if anything for him, was accurate.
9Finally, the union is entitled to know exactly what the applicant alleges that the union ought to have done in October 1999 with respect to his circumstances, and the basis for that claim. The applicant is directed to deliver and file particulars, and to reply to the union and the employer’s responses. The particulars and reply must be delivered and filed by January 15, 2001.
10This matter is referred to the Registrar for scheduling. The Board notes that this matter was scheduled for a Labour Relations Officer’s meeting together with Board File 1052‑00‑U. However, I am satisfied that while both files share a factual backdrop, the issues are different and no particular efficiency will be gained by scheduling them for consultation together.
“Mary Ellen Cummings”
for the Board