Ontario Labour Relations Board
0840-01-U Sean Robert Steven Keating, Applicant v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 636, Responding Party v. TRW Chassis Systems, Intervenor.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; July 3, 2001
1This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995 ch. 1 (the "Act") in which the applicant alleges that his bargaining agent has violated the duty of fair representation set out in section 74 of the Act. The responding party (the “CAW”) has asked that this application be dismissed on the basis that it discloses no facts which, if proven, could constitute a violation of the Act. The Board has the authority to dismiss an application in certain circumstances. Rule 46 provides as follows:
- Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.
2The Board wishes to give the applicant the opportunity to respond to this motion of the responding party before making its decision in this matter. In doing so, the Board would ask the applicant to address the following questions.
3First, the Board directs the applicant to respond to the facts as alleged in the response by the CAW and the intervention filed by the employer. Are there any facts asserted by either of them which the applicant disagrees with? Are there assertions of fact about which the applicant has no knowledge? If so, is there any reason to believe that these assertions of fact are incorrect?
4Second, the Board directs the applicant to respond to the arguments made implicitly or explicitly in the response and intervention. It appears to be common ground among all parties to the application that the union and the employer have the legal capacity to enter into an agreement which does or does not provide for an exception to the normal rules with respect to the application of seniority on layoff. If so, is there any reason why the union and the employer may not change that agreement during the term of a collective agreement? Further, if the parties believed they had reached an agreement during negotiations and find later that the language they used does not accurately reflect that agreement, is there anything which prevents them from upholding their agreement, notwithstanding the words used in the agreement? Is a formal document required to reflect this agreement?
5The applicant is to file his written submissions with the Board no later than July 27, 2001. The other parties are directed not to respond to the submissions of the applicant until directed to do so by the Board.
6I remain seized of this application for the purposes of dealing with this motion to dismiss.
“David A. McKee”
for the Board