1170-00-U Ivan Lakoseljac, Applicant v. J. M. Schneider Employees’ Association, Responding Party v. J M. Schneider Inc., Intervenor.

BEFORE: Timothy W. Sargeant, Vice-Chair.

DECISION OF THE BOARD; October 19, 2000

1. This is an application brought pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging that the responding party has breached section 74 of the Act.

2. Both the responding party and the intervenor take the position that the application fails to disclose a prima facie case and/or the Board is without jurisdiction to inquire into this matter as the applicant is complaining about an Award issued by Arbitrator Bill Kaplan with respect to matters covered by this application. The responding party has notified the Board that it does not intend to seek judicial review with respect to such Award.

3. The applicant in his material has filed two grievances, one dated January 28, 1998 and the other dated May 12 1998. In the first grievance it is alleged that “people were working overtime while people are on layoff”. The second grievance alleges that “Ivan was on lay-off week of May 4-8 C.W.O. worked overtime this week”. In the second grievance it is alleged that such action was contrary to Article 4 of the collective agreement and also contrary to Letter of Agreement #11. It is this later grievance that forms the basis of the applicant’s complaint.

4. The applicant states that this grievance went to the third step and that “At this time, the company changed their overtime policy and started recalling laid off employees”. The applicant wished compensation for what he perceived was the violation of the Letter of Agreement #11. He made his request to Charlie Lozier, the president Association who the applicant admits took his request to the company.

5. The matter was not settled and proceeded to what the applicant characterizes as mediation. Though that process according to the applicant an offer was made to him through the mediator. According to the applicant however, though he requested the offer in writing “he was informed that he first had to agree to the verbal offer. As a result, Mr. Lakoseljac (the applicant) did not agree”.

6. The mediator issued a decision and the applicant requested “that the association appeal and was informed that there would be no appeal and the decision of the mediator would stand. When Mr. Lakoseljac requested that the matter go to arbitration, he was again informed no (by the Association), as the matter had been resolved”.

7. The applicant felt that the matter has not been resolved and that he was not given a fair opportunity to participate in the mediation process. As a remedy the applicant requests “As the grievance was not resolved, I respectfully request that the Board order this grievance proceed to arbitration”.

8. From a review of the material filed it is evident that the applicant is under a misconception. The applicant’s grievance was in fact referred to arbitration. Mr. Kaplan a well respected arbitrator, was agreed upon by the intervenor employer and the responding party Association to hear this grievance. It is not unusual for the parties to try and have the arbitrator appointed, attempt to mediate a settlement. The matter, however, did not settle and submissions were made to the arbitrator.

9. An Award was issued dated March 23, 2000. In his determination the arbitrator ruled as follows:

“Having heard the evidence and the arguments of the parties, I direct the employer to continue, as is currently the case, to abide by Letter #11 of the Collective Agreement, and other relevant provisions. Moreover, I direct the employer, in future, to comply with, the overtime provisions of the Employment Standards Act.

10. The applicant is obviously upset at this ruling in that no compensation is awarded. It is however, an arbitration Award and one that the applicant was notified that the Association would not appeal. Again the applicant is unhappy with the admitted decision of the Association not to appeal this arbitration Award.

Decision

11. Section 74 of the Act states:

12. A trade union or council of trade unions, 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 or of any constituent union of the council of trade unions, as the case may be.

13. As the Board has often stated to establish that a union has contravened section 74 of the Act a complainant must demonstrate that the union’s actions are:

(1) “arbitrary” – that is, flagrant, capricious, totally unreasonable, or grossly negligent [see for example, I.T.E. Industries Limited, [1980] OLRB Rep July 1001]; or

(2) “discriminatory” – that is, based on invidious distinctions without reasonable justification or labour relations rationale; or

(3) “in bad faith” – that is motivated by ill-will, malice hostility or dishonesty.

13. In regards to the issue of whether a union should proceed to judicial review the Board has stated in Toronto Civic Employees’ Union, Local 416 a decision of the Board dated October 15, 1999, Board File No. 1173-99-U at paragraph number 14.

14. In addition, the Board finds that the portions of the applicant relating to the union’s failure to judicially review the arbitrator’s decision do not make out a prima facie case of a violation of section 74 of the Act. The Board has reviewed the Award appended to the applicant and the allegations in the application as to why the decision is alleged to be so patently unreasonable that the Board should infer that the union’s refusal to take it to judicial review constitutes a violation of section 74 of the Act. Having reviewed the application and the Award, the Board finds that the allegations contained in the application do not made out a prima facie case that the union’s conduct is failing to take the Award to judicial review was arbitrary, discriminatory or in bad faith within the meaning of the Act. In this regard, the Board’s jurisprudence indicates that a trade union’s failure to take an arbitration decision to judicial review will not normally give rise to an inference of a breach of section 74 of the Act. Such an inference may, however, be made in exceptional circumstances where an arbitrator’s decision is “…so perverse or pervasive in effect, that regardless of the expense, a union might be considered to be acting arbitrarily if it did not seek judicial review”. (Chrysler Canada Limited, [1982] OLRB Rep. October 1417, at p.1434). The Board does not find those circumstances to be present in this case.

15. The Board agrees with the general approach as taken in the above decision. Further the Board has a discretion under section 96 as to whether to consider an application alleging a breach of section 74 and as to whether it proceeds to hearing. The Act specifically relieves the Board of the requirement to hold a hearing where it is alleged at that section 74 of the Act has been breached.

16. In this case while the applicant may have strong feelings about the Award issued by Mr. Kaplan, the Board is not persuaded that such Award is in any way perverse. The decision not to take this Award to judicial review is not, on the facts pleaded, a breach of section 74 of the Act.

17. Having reviewed the pleadings the Board finds that such pleadings just do not establish that the union has acted arbitrarily, discriminatory or in bad faith as those terms have been interpreted by the Board in relation to a complaint that a party has breached section 74 of the Act.

18. For all of the above reasons, the Board exercises its discretion and dismisses this application.

“Timothy W. Sargeant”

for the Board