2710-00-U Members of OSSTF/FEÉSO, District 33, Local 65 (Formerly members of CUPE 4155/1834), Applicants v. The Ontario Secondary School Teacher’s Federation/FEÉSO District 33, Local 65, Responding Party.

BEFORE: Caroline Rowan, Vice-Chair.

DECISION OF THE BOARD; June 1, 2001

[1]. This is an application under section 96 of the Labour Relations Act, 1995, R.S.O. 1995, c.1, as amended (the “Act”) alleging a violation of section 74 of the Act.

[2]. By way of background, the applicants explain that they are support staff from the former French Separate School Board of Stormont, Dundas and Glengarry (“S.D.&G”) and are former members of the Canadian Union of Public Employees Local 4155/1834 (“CUPE”). As a result of the amalgamation of various school boards, the applicants are now support staff of the Conseil scolaire de district catholique de L’Est Ontarien and are now members of the responding party, the Ontario Secondary School Teacher’s Federation/FEÉSO District 33, local 65 (“OSSTF”). The applicants raise numerous complaints concerning the conduct of OSSTF in support of their application.

[3]. In response to the application, OSSTF has raised a number of preliminary objections to the Board entertaining the complaints made against the union in this application. Among these objections is that the allegations made in support of those complaints do not make out a prima facie case of a violation of section 74 of the Act and should therefore be dismissed without a hearing. As the applicants have set out their complaints against the union under five separate headings entitled “Complaint 1” through “Complaint 5” and the OSSTF has responded in the same manner, for ease of reference, the Board will also deal with the preliminary objections under these same headings.

Complaint 1

[4]. The applicants’ first complaint against OSSTF, generally speaking, relates to the fact that OSSTF has deducted union dues from the applicants despite the fact that OSSTF campaigned to be their collective bargaining agent on the basis that dues would not be collected until a first collective agreement is reached. OSSTF objects to the hearing of that complaint on the ground of delay and on the ground that that complaint does not raise a prima facie case of a violation of section 74 of the Act.

[5]. Having reviewed the allegations raised in “Complaint 1” the Board is satisfied that the allegations made do not make out an arguable case of a breach of section 74 of the Act, and should accordingly be dismissed. Section 74 of the Act provides a duty of fair representation by a trade union of an employee vis-à-vis his employer. It does not regulate internal union matters such as the requirement to pay union dues. In Rheal v. Dionne, [1994] OLRB Rep. May 532, the Board reviewed the ambit of the obligation imposed under section 69 (now 74) of the Act commencing at paragraph 45 as follows:

45. Under the Labour Relations Act a trade union can become the exclusive bargaining agent for employees in a defined bargaining unit, and once the union is established the employees cannot bargain with their employer on their own. They are part of a group that bargains collectively through the trade union as bargaining agent. On the other hand, section [74] of the Act provides a counterweight. Under section [74], the union must represent the members of the bargaining unit in a manner that is neither arbitrary, discriminatory or in bad faith.

46. The duty of fair representation applies to the way in which the union represents employees in their relationship with their employer. Because the employees cannot bargain on their own, the union must represent them fairly. However, section [74] does not regulate the relations of employees to each other, or to their union as an organization. It does not regulate internal union affairs.

47. Matters such as elections, qualifications for office, dues, internal hierarchy, appeal procedures, and so on, are not governed by the Labour Relations Act. They are regulated by the union’s constitution. That constitution cannot diminish an employee’s statutory rights, but those constitutional rights are not statutory. Nor may constitutional claims be pursued under section [74] or before the Board. Section [74] governs the way in which the union represents employees vis-à-vis their employer – not the way it conducts its internal union affairs.

[6]. The allegations raised in “Complaint 1” relate to OSSTF’s decision to deduct union dues from the applicants contrary to certain promises or representations which are said to have been made by it and do not relate to OSSTF’s representation of the applicants vis-à-vis their employer. For all of these reasons, the allegations raised under the heading “Complaint 1” are hereby dismissed.

Complaint 2

[7]. The applicants’ second complaint relates to OSSTF’s alleged failure to address the reclassification of jobs from “Teacher Assistants (Special Education)” to “Educators”. More specifically, the applicants contend that OSSTF did nothing to see that the salaries of the Educators originally from S. D. & G. were made equivalent to that of the Educators originally from Prescott-Russell Roman Catholic Separate School Board (“Prescott-Russell”). The applicants further allege that OSSTF ignored the CUPE Collective Agreement and that OSSTF failed to pursue grievances of a violation of Articles 35, 21.01 and 21.02 (& any other related Articles), which provisions they indicate have been violated.

[8]. In its response, OSSTF disputes the facts pleaded by the applicants and asserts that OSSTF is addressing and continues to address the issue of salaries and parity in the negotiations for a first collective agreement. As such, it contends that the allegations raised in Complaint 2 do not raise a prima facie case of a violation of section 74 of the Act. OSSTF also notes that this complaint misapprehends the legal context.

[9]. The Board notes that when assessing 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 and provable. In International Union of Bricklayers and Allied Craftworkers, [1999] O.L.R.D. No. 1392, Board File Nos. 1645-98-U and 1768-98-U, decision dated February 19, 1999, unreported, the Board reviewed its approach to determining whether to dismiss an application because it does not disclose a prima facie case as follows at paragraph 4 and 5:

4. The test that a responding party must meet in order to persuade the Board that an application should be dismissed on the basis that there is no prima facie case established in the application is, in my view, a strict one. An applicant should not be deprived of the opportunity to have a hearing on the merits of his or her application simply because the argument is novel or the circumstances giving rise to the application are unusual. In Caravelle Foods, [1983] OLRB Rep. June 875 the Board characterized the test a responding party must meet in seeking to have an application dismissed on a prima facie motion in the following terms at page 881:

The words 'prima facie case' in section 71 are meant to allow the dismissal of a case without a hearing where the allegations are insufficient to render reasonable or arguable a conclusion that the Act has been breached.

In J. Paiva Foods Ltd., [1985] OLRB Rep. May 690 the Board set out the test at page 691 as follows:

The Board's discretion to dismiss a complaint on the grounds that it does not disclose a prima facie case should only be exercised in the clearest of cases, that is, when the Board is satisfied that there is no reasonable likelihood that a violation of the Act can be established on the facts as alleged.

5. Where, however, the Board is satisfied that the responding party bringing the prima facie motion has met the burden imposed, it is incumbent on the Board to dismiss the application, thereby conserving the limited resources of the Board for matters that do require a hearing. As Mr Justice Grange said in Shaw v. Mcleod, (1982), 1982 CanLII 2140 (ON HCJ), 35 O.R. (2d) 641:

I concede that on this motion if, after a careful review of the law, the Court determines that he [the Plaintiff] cannot possibly succeed, then his action should be mercifully dispatched

[10]. In determining whether to dismiss an application for failing to make out a prima facie case, the Board must have regard only to the allegations made in the application and must accept those allegations as fact. The Board cannot rely on the responding party’s explanation of the facts provided in the response or to the facts contained in the responses, which might contradict the allegations made by the applicant.

[11]. Having reviewed the applicants’ allegations relating to Complaint 2, the Board is not persuaded that that complaint “cannot possibly succeed” or “that there is no reasonable likelihood that a violation of the Act can be established on the facts as alleged” or that that complaint is in any event premature. OSSTF’s request that Complaint 2 be dismissed without a hearing or consultation is therefore denied.

Complaint 3

[12]. The Board is also not persuaded that it should dismiss the allegations made in complaint 3 without a consultation. In that complaint, the applicants alleged that the school board and the union did not respect their collective agreements with respect to seniority, the reclassification of jobs and the procedure in which the recall meetings were held. They further state that they specifically requested that the OSSTF file grievances alleging a violation of Article 21.02 of the CUPE Agreement and Article 18.2 of the common clauses and any other related articles. They contend that when they asked a representative of OSSTF to forward copies of the grievances, he agreed to do so, but then never did so. They further state that to date OSSTF has provided no information concerning the status of these grievances despite their repeated requests for same. In the Board’s view, the allegations raised in Complaint 3, which are assumed to be true and provable for these purposes, raise an arguable case of a violation of the Act, which calls for an explanation. The responding party’s contention that the applicants have mischaracterized the facts is appropriately dealt with at a consultation or hearing in this matter.

[13]. OSSTF’s request to dismiss the allegations in Complaint 3 without a consultation or hearing is hereby denied.

Complaint 4

[14]. In this complaint, the applicants allege that the new OSSTF President, Ms. Perreault, wrote a very retaliatory message to one of the applicants, Ms. Fiddler, at the bottom of Ms. Fiddler’s request for certain financial information. The applicants also allege that the union acted improperly when it circulated to all OSSTF members a copy of a written request by Ms. Fiddler together with OSSTF’s response. By way of remedy, the applicants seek a written apology from OSSTF to be circulated to all OSSTF members.

[15]. The Board notes that it has the discretion under section 96(4) of the Act as to whether or not to inquire into a complaint of a contravention of the Act. Having reviewed these allegations and the documents in issue, the Board has determined to exercise its discretion not to inquire into these allegations. The Board is not persuaded that a sufficient labour relations purpose would be served by inquiring into them and also has serious doubts as to whether it would grant the remedy requested involving a public apology.

[16]. The Board has also determined that the allegations relating to the alleged deficiencies in the attached Financial Report of OSSTF should be dismissed for failing to make out a breach of section 74 of the Act. As previously noted, section 74 of the Act is concerned with a union’s representation of employees vis-à-vis their employer. The Board, however, notes that section 92 of the Act requires a trade union to provide certain financial information to its members. This allegation is accordingly dismissed without prejudice to the applicants’ right to bring a fresh application alleging a violation of section 92 of the Act in the event that they believe that the union’s obligations thereunder have not been met. In so doing, the Board notes that it has made no determination in that regard.

[17]. The Board therefore dismisses the allegations raised in Complaint 4 with the exception only of the allegation at the final paragraph of Complaint 4. That allegation is to the effect that OSSTF is reluctant to pursue grievances for financial reasons. That allegation may be raised by the applicants, if they so choose, in the context of their allegations in Complaint 2 and 3 that OSSTF has failed to pursue the grievances referred to therein on their behalf.

Complaint 5

[18]. Complaint 5 raises a variety of general concerns that the applicants have concerning “how the Union Executive conducts itself regarding the representation of its membership”. The applicants ask that these general concerns be taken into consideration in rendering a decision in their application. Having reviewed the allegations raised, the Board does not consider it appropriate to dismiss these allegations prior to the consultation into Complaints 2 and 3.

Disposition

[19]. For the foregoing reasons, the allegations raised in Complaint 1 and Complaint 4 of the application (with the exception of the last paragraph of Complaint 4) are hereby dismissed. The balance of the allegations will proceed to consultation in the normal course.

[20]. This matter is referred to the Register.

“Caroline Rowan”

for the Board