Primrose Palmer v. Service Employees International Union, Local 204
0704-00-U Primrose Palmer, Applicant v. Service Employees International Union, Local 204, Responding Party.
BEFORE: Harry Freedman, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
DECISION OF THE BOARD; October 5, 2000
1This is an application under section 96 of the Labour Relations Act, 1995, S. O. 1995, c. 1 (the “Act”) alleging that the Service Employees International Union, Local 204 (“Local 204”) violated section 74 of the Act when it withdrew the applicant’s discharge grievance. The application alleges that the employer, in refusing to grant the applicant a leave of absence to attend to her mother’s illness in Jamaica, acted in a way that was discriminatory and contrary to the Human Rights Code, R. S. O. 1990, c. H. 19 as amended and that counsel retained by Local 204 in connection with the discharge grievance who met with the applicant “was more interested in how the applicant managed to survive on five shifts per month than on the merits of the discharge grievance….” The applicant asserts that the decision of Local 204 to withdraw the applicant’s grievance based on the legal opinion counsel provided was arbitrary because the number of shifts that the applicant worked in a month was irrelevant to whether the employer violated the collective agreement.
2The remedies sought by the applicant include a declaration that Local 204 violated the Act and an order requiring that the discharge grievance be submitted to arbitration. In addition, the application in schedule “A” sets out the additional relief that the applicant seeks:
i) A declaration that the collective agreement contravenes section 54 of the Ontario Labour Relations Act as amended;
ii) A declaration that the conduct of the trade union violates section 76 of the Labour Relations Act as amended;
iii) An Order fining the trade union $10,000.
3Counsel for Local 204 filed a comprehensive response to the application, denying a number of the allegations and setting out its version of the events leading up to the applicant’s discharge, the steps taken to investigate the matter and nature of the review undertaken by counsel to determine the merits of the case. Counsel for Local 204, quite properly, does not assert that the application filed does not disclose a prima facie case in respect of the “standard” remedies sought by the applicant, that is a declaration that Local 204 violated section 74 of the Act and an order directing that the grievance be submitted to arbitration. Rather, counsel submits that the application should be dismissed presumably on the merits of the application. Counsel for Local 204 does, however, submit that there is no prima facie case for the three additional remedies sought by the applicant set out in paragraph two above, and requests that the application, in so far as it seeks those additional remedies be dismissed.
4When 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. Where the Board is satisfied that the application does not make out a case for the remedies or orders sought, even assuming all of the allegations are true, it may dismiss the application under Rule 46 of the Board’s Rules of Procedure.
5In this case, we are of the view that the applicant’s request for declarations: i) that the collective agreement violates section 54 of the Act and ii) that Local 204 violated section 76 of the Act has no merit. Section 54 of the Act provides that a collective agreement must not discriminate against any person if the discrimination is contrary to the Human Rights Code or the Canadian Charter of Rights and Freedoms. The application makes no reference whatever to any provision of the collective agreement that is alleged to be discriminatory. In the absence of any factual assertion of a discriminatory provision in the collective agreement, the Board has no basis for granting that declaration. Similarly, section 76 of the Act prohibits a trade union, among others, from threatening or coercing any person with respect to union membership or the exercise of rights under the Act. There are absolutely no allegations contained in the application that could be reasonably interpreted as Local 204 intimidating or coercing the applicant. In the absence of any factual allegation of intimidation or coercion on the part of Local 204, there is no basis for the Board to even consider issuing a declaration that Local 204 violated section 76 of the Act.
6Finally, the applicant asks that the Board impose a fine on Local 204 in the amount of $10,000. The Board has no jurisdiction to impose a fine for a violation of the Act. A trade union may be liable to a fine of up to $25,000 if it is convicted of an offence under the Act. Prosecutions for violations of the Act take place in the courts, not before the Board. Therefore, the applicant could not possibly obtain this remedy from the Board.
7The Board, at the request of the applicant, hereby dismisses this application with respect to the request for declarations that the collective agreement between the responding party and the applicant’s former employer violates section 54 of the Act and Local 204 violated section 76 of the Act and the request for an order imposing a fine on Local 204.
8This matter is referred to the Manager of Field Services for the appointment of a Labour Relations Officer to meet with the parties and to endeavour to effect a settlement.
9This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board