1520-00-U Asmond Tulloch, Applicant v. United Steelworkers of America Local 3129, Responding Party v. Camco Inc. Intervenor.
BEFORE: Harry Freedman, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
DECISION OF THE BOARD; October 5, 2000
This is an application under section 96 of the Labour Relations Act, 1995, S. O. 1995, c. 1 (the “Act”) in which Asmond Tulloch (the “applicant”) alleges that the United Steelworkers of America, Local 3129 (“Local 3129”) violated section 74 of the Act in respect of his discharge from employment with Camco Inc. (“Camco”) and the subsequent decision of Arbitrator Marsha J. Faubert dated July 12, 2000 dismissing the applicant’s grievance after an arbitration hearing on June 16, 2000. The applicant indicates that he is not yet sure what remedy he seeks from the Board.
The applicant asserts that the union acted arbitrarily. Attached to the application was a three page document in which the applicant explains that he was terminated by Camco on April 10, 2000 following his suspension on April 6, 2000 and that the grievance he filed over his discharge was dismissed by decision dated July 12, 2000 following an arbitration hearing on June 16, 2000. That three page document also states that the case was not presented properly by the Union’s representative and goes on to list five things:
a) length of employment
b) good work record
c) suspended without pay
d) top salesman for company with my service technician job
e) case went through an expedited arbitration process that does not permit lawyers to present the case and the company used a lawyer at the hearing.
The applicant concludes by alleging that the Union’s representative did not put as much emphasis as the company counsel did and that the collective agreement was violated because Camco used legal counsel at the arbitration hearing.
The applicant also attached to his application the suspension and discharge letters he had received, a grievance settlement agreement dated October 9, 1998 under which he received a 10 day suspension, the grievance form that was filed after he was dismissed on April 10, 2000, a four page excerpt from the collective agreement dealing with the arbitration and expedited arbitration process under the agreement and a decision of the Board of Referees under the Employment Insurance Act relating to the applicant’s appeal of his disqualification for unemployment insurance benefits.
Both Local 3129 and Camco filed responses to the application and both submit that the application should be dismissed because there are no facts alleged in support of the allegation that Local 3129 acted arbitrarily.
An application under section 96 of the Act alleging a violation of section 74 commences a legal proceeding that generally seeks relief from a trade union because the trade union violated the Act. A party against whom an application is made is entitled to know the basis of the claim made against it. That obligation is spelled out in Rule 26 of the Board’s Rules which provides, in part:
Any application filed with the Board must include the following details:
c) a detailed description of the orders or remedies requested;
d) a detailed statement of all the material facts on which the applicant relies, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly;
Information Bulletin No. 11, which the applicant was directed to read before completing the application, states:
The application must describe fully and in an organized way all of the facts that are being relied on to support the allegation that the union has acted in a manner that was arbitrary, discriminatory or in bad faith.
The application as filed does not describe facts that support an allegation that Local 3129 acted arbitrarily in its representation of the applicant. The material filed with the application states that the company used legal counsel at the arbitration hearing and asserts that the collective agreement does not permit lawyers to present cases at an expedited arbitration hearing. It also states that the Union’s representative did not put as much emphasis as the company counsel did.
Much of the applicant’s complaint is based on the assertion that the arbitration was conducted under the parties’ expedited arbitration procedure. It is not clear that the arbitration hearing was under that procedure in view of the fact that the grievance involved the discharge of the applicant. The expedited arbitration procedure upon which the applicant relies provides that routine grievances including discipline matters up to a five day suspension may be submitted to the expedited procedure and the arbitrator is required to issue a decision within 48 hours of the conclusion of the hearing. That procedure also provides that lawyers may not present cases at an expedited arbitration hearing. The applicant’s grievance was a discharge case in which the arbitration award was issued more than three weeks after the hearing. The arbitration award dismissing the applicant’s grievance does not indicate that it was conducted under the expedited arbitration process. Thus, the applicant has not provided any factual basis for asserting that Local 3129 invoked the expedited arbitration process for the hearing of the applicant’s discharge grievance or for asserting that counsel could not participate at the arbitration hearing.
The other factual allegation is that the Union’s representative at the hearing did not put as much emphasis as the company counsel did. There is nothing in that allegation that suggests that the Union’s representative or that Local 3129 acted in an arbitrary manner. A union representative not being as emphatic as other counsel during an arbitration hearing cannot, in our view, be characterized as acting arbitrarily when representing the applicant.
The complete absence of facts supporting allegations of arbitrary conduct on the part of Local 3129, together with the applicant’s failure to set out what remedy he seeks from the Board causes us to conclude that the applicant has failed to set out a prima facie case. There is nothing in the application, assuming everything that the applicant says is true, that could form a basis for the Board to conclude that Local 3129 acted contrary to section 74 of the Act.
The motion made by both Local 3129 and Camco is allowed. This application is dismissed.
“Harry Freedman”
for the Board