Gifford Boothe v. United Steelworkers of America, Local 13571
3061-00-U Gifford Boothe, Applicant v. United Steelworkers of America, Local 13571, Responding Party v. American Standard, Intervenor.
BEFORE: Timothy W. Sargeant, Vice-Chair.
DECISION OF THE BOARD; July 6, 2001
1The style of cause is amended to reflect the correct name of the responding party "United Steelworkers of America, Local 13571".
2This is an application brought pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the "Act") alleging that the responding party has breached section 74 of the Act.
3The issue according to the applicant's pleadings is the failure of the Union to file a grievance on behalf of the applicant to claim a severance package.
4The applicant states that he was employed by American Standard and started on or about September 1978. In 1991 he was injured and a claim was filed to the "Worker's Compensation Board and I was receiving benefit from the Company's insurance".
5The applicant was terminated in 1992 and a grievance was filed on his behalf. As a result of a settlement the Company reinstated the applicant without loss of seniority. According to the applicant he started to "receive Disability Pension from the Worker's Compensation Board".
6The applicant was informed that American Standard had closed the plant where he was employed and that other employees had received severance packages. As the applicant did not receive a severance package he asked a Staff Representative of the Union to file a grievance.
7The applicant alleges he was given a blank grievance form to sign and assumed a grievance would be filed.
8The applicant alleges that to date no grievance has been filed on his behalf and that he has not received a severance package. The applicant thus filed this application claiming that the Staff Representative's actions in not filing a grievance was "arbitrary action and gross negligence".
9In its response as part of its reply the Union notes that on inquiries made to the employer, the employer indicated that the "Applicant had never been terminated as a result of his outstanding claim with the Workplace Safety and Insurance Board". It would also seem that the Applicant has not returned to work since his injury in 1991.
10As a result the Union takes the position that this application is premature. It is the Union's position that at the time of the plant closure in 1999 the applicant was still an employee of American Standard. "Further there is no evidence that he can return to work at this time. It is the Union's submission that the Applicant remains an employee of the Employer as the Employer has never taken any action steps to terminate the Applicant".
11The Union further submits "that the Applicant is clearly not entitled to receive the severance package negotiated by the Employer and the Union at the time of the closure of the plant. This is because the benefits, including severance, under the package were specifically restricted to employees who were active as of April 30, 1999. As a result, any entitlement to severance or termination pay must be found under the provision of the Employment Standards Act. However, a precondition to receiving benefits under the terms of that Act is the termination of the employee. In this case, the Union submits that there has been no termination so as to trigger the entitlement to termination and severance pay under the Act. To the best of the Union's knowledge, the Applicant has never received a notice of termination from the Employer. As a result, the Applicant remains an employee of the Employer and has no entitlement to severance pay under the Act until a termination occurs".
12In addition, the Union submits this application should be dismissed for delay. In the Union's submission the applicant was aware of the closure of the plant in August of 1999, and had a lawyer contact the Union at that time (the applicant in his pleadings notes he did have a lawyer contact the Union). The Union submits if the applicant was unhappy "with the steps taken by the Union, the Applicant has had approximately 18 months in which to file an Application with the Board and has failed to so do". This application was filed on February 2, 2001. The Union claims that such delay has prejudiced its ability to investigate and respond to the application.
13The Board has a discretion under the Act as to whether this application should proceed to hearing.
14As the Board has noted previously, the Board's approach to issues of delay is well settled and established. Where delay is in excess of a year, the Board will generally expect some kind of satisfactory explanation for that delay before it permits the matter to proceed.
15Both the Union's preliminary objections seem to be well founded. The applicant is given until July 19, 2001 to file submissions as to why this application should not be dismissed either as being premature or for delay in filing such application. If no submissions are received this application will be dismissed. If submissions are received the Board will consider such submissions and decide how to proceed as a result of such submissions.
"Timothy W. Sargeant"
for the Board