0600-00-U Curtis Steeves, Applicant v. Teamsters Local Union 938, Responding Party.

BEFORE: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and A. Haward.

DECISION OF THE BOARD; September 27, 2000

1. The applicant was employed by TST Automotive Services Division (“TST”) as a forklift operator on the night shift from April 9, 2000 until TST dismissed him from employment after the completion of his shift on the morning of May 12, 2000. The applicant alleges that the responding party failed or refused to represent him with respect to his dismissal and that its conduct violates section 74 of the Labour Relations Act, 1995, S. O. 1995, c. 1 (the “Act”). The applicant in his application sets out in some detail the exchanges he had with his supervisor Jim Taylor concerning union representation and the discussions he had about his discharge with a representative of the responding party, Clay Nickerson. The applicant also alleges that he had spoken with Wayne Tennant, another representative of the responding party before he spoke with Mr. Nickerson. The applicant does not relate the conversation he had with Mr. Tennant.

2. The applicant appears to recognize that he was dismissed during his probationary period. He alleges that he was employed in a bargaining unit represented by the responding party and paid both an initiation fee and union dues to the responding party during his employment with TST. It does not appear from the response filed by the responding party that those facts are disputed. The applicant also alleges that Mr. Nickerson told him that since his probation time was not up, he was not entitled to union representation. The applicant alleges that he reminded Mr. Nickerson that he had paid union dues and had checked his rights with the Labour Board and asked Mr. Nickerson to talk to the other employees on his shift about his work performance. (The applicant alleges that TST dismissed him for “job performance”.) He asserts that Mr. Nickerson again told him that he had not completed his probationary period and was not entitled to union representation.

3. The applicant, by way of remedy, seeks full reinstatement of employment with compensation for all monies lost due to the discharge, reinstatement of seniority and his job reputation restored.

4. The responding party submits that this application be dismissed without referring it to the Board for either a hearing or consultation on the basis that it does not make out a prima facie case for the relief requested because even if all of the facts in the application are true, the applicant would not be entitled to any of the remedies he seeks. It is clear that the Board is in no position to provide any remedy with respect to the applicant’s reputation. Furthermore, it does appear, as the responding party suggests, that the other remedies sought by the applicant are akin to the remedies that an arbitrator could provide. The responding party submits that the applicant is, in effect, seeking to have the Board deal with the merits of his discharge because the grievance and arbitration procedures under the collective agreement are not available to probationary employees.

5. When the Board assesses whether an application makes out a prima facie case for the relief requested, it must treat all of the allegations of fact contained in the application as being true. The Board in International Union of Bricklayers and Allied Craftworkers, [1999] O.L.R.D. No. 1392, Board File Nos. 1645-98-U and 1768-98-U, decision dated February 19, 1999, unreported, set out the Board’s approach to determining whether to dismiss an application because it did not disclose a prima facie case. The Board stated at paragraphs 4 and 5:

4. The test that a responding party must meet in order to persuade the Board that an application should be dismissed on the basis that there is no prima facie case established in the application is, in my view, a strict one. An applicant should not be deprived of the opportunity to have a hearing on the merits of his or her application simply because the argument is novel or the circumstances giving rise to the application are unusual. In Caravelle Foods, [1983] OLRB Rep. June 875 the Board characterized the test a responding party must meet in seeking to have an application dismissed on a prima facie motion in the following terms at page 881:

The words ‘prima facie case’ in section 71 are meant to allow the dismissal of a case without a hearing where the allegations are insufficient to render reasonable or arguable a conclusion that the Act has been breached.

In J. Paiva Foods Ltd., [1985] OLRB Rep. May 690 the Board set out the test at page 691 as follows:

The Board’s discretion to dismiss a complaint on the grounds that it does not disclose a prima facie case should only be exercised in the clearest of cases, that is, when the Board is satisfied that there is no reasonable likelihood that a violation of the Act can be established on the facts as alleged.

5. Where, however, the Board is satisfied that the responding party bringing the prima facie motion has met the burden imposed, it is incumbent on the Board to dismiss the application, thereby conserving the limited resources of the Board for matters that do require a hearing. As Mr. Justice Grange said in Shaw v. McLeod, (1982), 1982 CanLII 2140 (ON HCJ), 35 O.R. (2d) 641:

I concede that on this motion if, after a careful review of the law, the Court determines that he [the Plaintiff] cannot possibly succeed, then his action should be mercifully dispatched.

6. In our view, a probationary employee that is in a bargaining unit for which a union holds bargaining rights is entitled to union representation by virtue of section 74 of the Act. Section 74 of the Act provides, in part:

A trade union, 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…. [emphasis added]

The degree to which the union can assist a probationary employee will depend on the applicable collective agreement and the nature of the probationary employee’s complaint.

7. We are not persuaded that the applicant “cannot possibly succeed” or “that there is no reasonable likelihood that a violation of the Act can be established on the facts as alleged” based only on the allegations made by the applicant. It is clear from the material that the applicant was an employee in a bargaining unit represented by the responding party. The applicant alleges that the responding party advised him that he was not entitled to union representation because he had not completed his probationary period. The responding party denies that was what the applicant was told. Rather, the responding party submits that it advised the applicant that because the collective agreement does not give probationary employees access to the grievance and arbitration procedure, there was nothing the responding party could do for him nor did the applicant explain what he thought the responding party could do without recourse to the grievance and arbitration procedure or what he expected the responding party to do. While the responding party’s position does provide an explanation for the applicant’s understanding of the conversation he had with Mr. Nickerson, the Board, in determining whether to dismiss an application for failing to disclose a prima facie case, cannot have regard to the responding party’s explanation and can only consider the applicant’s allegations. In this case, there may not have been much the responding party could have done to represent the applicant, but that is not a matter that the Board can decide at this stage. Similarly, while the remedies sought by the applicant are likely not available because the applicant is a probationary employee and would not, according to the responding party, be in a position to challenge TST’s decision at arbitration, the Board cannot say with certainty that if the responding party simply refused to represent the applicant because he was a probationary employee, the responding party would not be in violation of the Act and the applicant would be without any remedy.

8. The motion by the responding party to dismiss this application for failing to disclose a prima facie case is hereby dismissed. This matter is referred to the Registrar to be listed for consultation pursuant to section 99 of the Act.

9. This panel of the Board is not seized with this matter.

“Harry Freedman”

for the Board