1913-01-U Lois Brown, Applicant v. Elementary Teachers’ Federation of Ontario, Responding Party v. Toronto District School Board, Intervenor.
BEFORE: Marilyn Silverman, Vice-Chair.
DECISION OF THE BOARD; November 23, 2001
1This is an application filed under section 96 of the Labour Relations Act, 1995 (the “Act”) alleging a violation of section 74 of the Act.
2Both the responding party (“the Federation”) and the intervenor (“the employer”) request that this matter be dismissed as failing to make out a prima facie case.
3In determining whether or not an applicant has made out a prima facie case for a remedy requested the Board must assume that the facts alleged by the applicant are true. The application is in the form of a chronology of events. Those events can be summarized as follows. In April 1998 the applicant applied for a leave of absence which was denied in September 1998. In November 1998 the applicant advised the employer that she would be off work due to illness. She was off work for three weeks in December 1998. The applicant later confirmed that she was ill during that time but she also went to Africa which was the reason she had asked for the leave. The applicant was suspended without pay for 15 days.
4Although it is not stated expressly in the application, the employer contends that the suspension was levied because the applicant went on her trip to Africa despite her being denied the leave of absence to do so. Presumably the Federation filed a grievance on the applicant’s behalf because the matter proceeded to arbitration on April 28, 2000. The parties attended at an arbitration hearing and subsequent to it, on March 26, 2001, settled the matter. The applicant met with counsel for the Federation and a representative of the Federation before the matter was settled. The signatories to the settlement were the union and the employer.
5The basis of the applicant’s claim that the Act has been violated appears to be that the settlement was signed without her consent or authority. The settlement left intact her 15-day suspension although she has obtained 13 days of sick leave pay.
6On these facts as pleaded in the application, which are the facts I consider in determining whether the applicant has made out a prima facie case, it is clear that the union met with the applicant up to and including the date of her arbitration hearing. The applicant was kept informed of the process and in fact received some payment in a settlement although it was short of what she wanted.
7The facts as pleaded by the applicant do not disclose a violation of section 74 of the Act which the Board would remedy. Section 74 provides:
- 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.
8These facts do not support a factual basis for conduct that is either arbitrary, discriminatory or in bad faith. The union dealt with the applicant’s concerns and at some point decided that the matter should be settled. The fact that the applicant wanted more than she received in that settlement and the fact that she did not agree to sign onto the settlement does not make out a case under section 74. The union did not violate section 74 by deciding to settle the matter after consideration and discussion with the applicant over the objections of the applicant. The union is entitled to make informed decisions based on the time and resources that it can expend on a matter. The simple fact that the applicant did not agree with or like the decision does not in these circumstances form the basis of a violation.
9Having regard to the reasons expressed above, the application is dismissed.
“Marilyn Silverman”
for the Board