Ontario Labour Relations Board
1454-01-U A.W. Gladman, Applicant v. Ontario Secondary School Teachers’ Federation, District 13, Responding Party v. Durham District School Board, Intervenor.
BEFORE: Anthony Brown, Vice-Chair.
DECISION OF THE BOARD; October 5, 2001
1This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging violation of section 74.
2Section 74 pertains to the representation provided by a union. The section states:
- 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.
3The applicant asserts that he was wrongfully dismissed by the Durham District School Board for questioning the integrity of the Board. He seeks reinstatement as a “supply teacher qualified to apply for full time employment”. His application enumerates a series of complaints against the union, including that the union failed to inform him how to lodge complaints against his employer about the series of events that eventually led to his dismissal; failed to inform him about how to report child abuse; failed to make certain objections to the employer about the way that the employer was treating him; excluded him from meetings; failed to keep minutes of meetings; and failed to give him adequate access to the union’s legal counsel. He accuses the union of behaviour that “smacks of a distinct lack of arbitrary measures and ‘reckless disregard’ and ‘bad faith’”.
4The responding party (“the union” or “OSSTF”) has filed a detailed response setting out its actions on behalf of the applicant and enclosing supporting documentation. The union asserts, inter alia, that it filed a grievance pertaining to the applicant’s dismissal from employment and that it did not bring the applicant’s other concerns to the attention of the employer for the simple reason that it was unaware of the difficulties that the applicant was encountering. It asserts that it was entitled to meet with the employer to discuss the applicant’s grievance in the absence of the applicant, and had no duty to provide the applicant with access to its legal counsel. The union’s response also recounts in detail how the union dealt with the applicant’s dismissal grievance and why it decided not to proceed with the matter to arbitration. It mentions, for example, the applicant’s extraordinary disciplinary record and the fact that the applicant had been banned from working as a supply teacher in several schools because of his unsatisfactory or inappropriate conduct. The union asserts that the application fails to disclose a prima facie case for violation of section 74, and also asserts that the application is untimely.
5The Board has discretion as to whether or not to inquire into a complaint commenced under section 96. One of the grounds for declining to inquire into a complaint is that the application does not disclose a prima facie case, that is, the application would not succeed even if all the material facts asserted by the applicant are assumed to be true and proven. At present, the Board has the applicant’s assertions contained in the application itself and in the applicant’s letter to the Board dated August 13, 2001. These documents lack particularity. To determine the factual basis for the applicant’s claim, it is helpful for the Board to know those areas where the applicant agrees or disagrees with the responding party.
6The applicant is hereby directed to file a reply to the union’s response. He shall state whether he agrees or disagrees with each of the union’s factual assertions in paragraphs 6 to 21 of the response. He shall also reply to the union’s assertions articulated in paragraph 2 of the union’s response.
7The union also asserts that the application is untimely in that some of the events go back a considerable period of time. Although there is no hard and fast rule, the Board generally measures the time permitted for filing a complaint in months, not years. The applicant’s reply shall also respond to the union’s argument that there has been undue delay in filing the application.
8The reply shall be filed with the Board (with a copy to the other parties) by no later than October 26, 2001.
9If the applicant fails to file his reply in accordance with the Board’s direction by October 26, 2001, this application shall be deemed terminated.
10If a reply is filed as directed, the Board will consider whether or not to schedule this matter for a consultation or hearing. The applicant should be aware that the Board may dispose of an application pursuant to section 96 without a consultation or hearing, on the basis that it fails to disclose a prima facie case or is untimely.
“Anthony Brown”
for the Board