2049-00-U Jacques Mallette, Applicant v. The Ottawa-Carleton Public Employees Union Local 503, Responding Party.
BEFORE: M. A. Nairn, Vice-Chair.
DECISION OF THE BOARD; January 3, 2000
1This is an application brought pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging a violation of section 74 of the Act. In its response the trade union asserts that the application does not make out a prima facie case for the remedy requested or, alternately, that the Board ought to exercise its discretion not to inquire into the complaint. It seeks to have the matter dismissed without a consultation or hearing.
2The application concerns the applicant’s entitlement to vacation pay while in receipt of long term disability benefits and subsequently, having retired. The remedy requested is that the applicant’s grievance proceed to arbitration. However it is not clear what grievance the applicant is referring to, whether one filed or a grievance that the union has refused to file. Alternately the response appears to indicate that a grievance did proceed to arbitration on the issue of the applicant’s entitlement to vacation pay and was successful. While the applicant identifies certain concerns as to the way in which the trade union addressed his concerns, it is not clear from the application what it is the applicant would have the trade union do to remedy its alleged shortcomings.
3In dealing with a request to dismiss a matter for want of a prima facie case, I must assume the applicant’s pleadings as true and ask the question, assuming those allegations to be true, is there an arguable breach of section 74 of the Act? The responding party appears to have made certain assumptions about the applicant’s intent; assumptions I am not in a position to accept in dealing with the motion. However should certain of the facts as pleaded by the responding party prove to be true, they go some way to addressing at least some of the applicant’s concerns.
4In dealing with the second aspect of the motion, whether or not to exercise the discretion to decline to inquire into the complaint, the responding party asserts that the applicant was no longer a member of the bargaining unit, the applicant delayed too long to raise any additional concerns, and that the applicant has no standing to seek to assert claims by other employees (and that the trade union has a corresponding duty of confidentiality to those persons). I note that any arbitration award appears to have been filed, not by the applicant, but by the responding party. The applicant has not responded to these issues.
5In the result, I hereby direct the applicant to provide a written reply to the trade union’s response. That reply is to be filed with the Board no later than January 26, 2001. A copy is to be forwarded at the same time to the trade union. The applicant is to identify any pleading in the response with which he agrees and to reply to any pleading with which he disagrees. In addition he is to identify more clearly the remedy he seeks. In that way I expect to be able to identify more clearly the precise nature of the applicant’s complaint. Upon receipt of that material I will consider the matters raised.
“M. A. Nairn”
for the Board