Ontario Labour Relations Board
File No.: 3964-99-U Date: December 13, 2000
Between: Louis Tejera, Applicant v. United Steelworkers of America Union Local No. 232, Responding Party v. Goodyear Canada Inc., Interested Party.
Before: Patrick Kelly, Vice-Chair.
Appearances: Giulio Alonzi and Louis Tejera appeared on behalf of the applicant; Marie Kelly, Wes Dowsett and Daniel Deleon appeared on behalf of the responding party; Bill Madill appeared on behalf of the interested party.
DECISION OF THE BOARD
1This is an application filed pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1 ('the Act') alleging a violation of section 74 of the Act.
2The matter proceeded by way of a consultation on November 10, 2000.
3The applicant has been employed by Goodyear Canada Inc. (“Goodyear”) since November 1991 as a truck mechanic. In the Fall of 1996 he suffered a recurrence of a workplace back injury, and has not returned to duty since. The applicant’s pleadings indicate that the complaint is about what the responding party (“the union”) did or did not do in terms of addressing unspecified concerns of the applicant regarding his position with the company, and his entitlement to return to work. The classification of truck mechanic was deleted by Goodyear in February 1997. The applicant pleads that Goodyear never formally told him of the deletion of his position, but he acquired knowledge of that fact, as well as a copy of a letter advising of the deletion sent by Goodyear to the union.
4At the outset of the consultation, it became clear that what the applicant was seeking by way of relief was his legal costs and the benefit of a severance package pursuant to a “Store Restructuring Agreement” (“the agreement”) between Goodyear and the union, an agreement that was negotiated in 1995 in anticipation of the closing of Goodyear’s store operations. The applicant does not dispute that he was not employed in one of Goodyear’s stores, but argued that he should not be treated differently from other bargaining unit members who, because of their positions within the Goodyear stores, were entitled to take advantage of the agreement. The remedy of the severance package was not one that was specified in this application, nor did the applicant’s pleadings indicate the basis upon which he believed he was entitled to that remedy.
5The Board indicated that the remedies the applicant sought were not ones that the Board would grant even if he succeeded on the merits. The Board stood down for a short period to allow the parties an opportunity to consider the Board’s views on remedy and to meet with a Labour Relations Officer in an attempt to resolve their differences. There was no settlement reached, and the consultation continued.
6The Board next entertained two preliminary motions brought by the union. The union argued that the application was so lacking in particularity as to render it impossible to determine the applicant’s complaint, and that accordingly the application should be dismissed for failing to make out a prima facie violation of section 74. Secondly, the union submitted that there had been undue delay in filing the application, and that the union had suffered serious prejudice as a result. The prejudice related to the undisputed fact that one of the union’s key witnesses who had knowledge of the applicant’s situation has since died.
7By decision dated April 5, 2000 the Board (differently constituted) directed the applicant to file full particulars related to his section 74 complaint. On April 13, 2000, the applicant filed an amended application purporting to respond to the Board’s direction to file full particulars. The union filed its response on April 27, 2000. It is noteworthy that the basis for the union’s motions made at the consultation was fully set out in substantial detail in its April 27, 2000 response. While the Board (again differently constituted) declined the union’s request to dismiss the application on a preliminary basis in decision dated July 19, 2000, it referred the preliminary motions to the panel assigned to the consultation. The applicant has known about the motions for over six months. The applicant had ample opportunity to respond voluntarily to the union’s expressed need to know particulars of the complaint, including when it is that the applicant’s alleged meetings and contacts with union representatives occurred.
8After considering the submissions of the parties concerning the preliminary motions, the Board dismissed the application. The Board did so because the applicant’s pleadings were wholly deficient in terms of setting out the particulars of the complaint, and no satisfactory reason was offered for the deficiency. There is no indication in the applicant’s pleadings that he ever asked the union to file a grievance on his behalf, and certainly no reference to severance packages or a claim of termination as were alleged at the consultation. The applicant’s case has been a “moving target” from the outset, and the union could not, in the circumstances, know with any certainty what the case was truly about until the morning of the consultation. Moreover, the lack of any reference to the timing of the contacts that the applicant says he had with the union (despite the union’s request for that information as well) suggests to me that the applicant delayed bringing the application without any reasonable excuse. The union has suffered prejudice as a result, in that one of its representatives with knowledge of the facts has since died.
9For all the above reasons, the application is dismissed.
“Patrick Kelly”
for the Board