1104-01-U Winston Gregory, Applicant v. United Food and Commercial Workers Union, Local 1993, Responding Party v. Toronto Bagel – Canada Bread, Intervenor.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; October 17, 2001
This is a complaint pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”). The applicant alleges that the United Food and Commercial Workers International Union (the union) has breached the duty of fair representation set out in section 74 of the Act.
Section 74 provides as follows:
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.
The union and Toronto Bagel-Canada Bread (the employer) have asked that the Board review the application and determine if the applicant had pleaded a prima facie or arguable breach of section 74. They contend that he has not.
Rule 46 of the Board’s Rules of Practice permits the Board to dismiss an application when it does not make out an arguable case for the remedies sought:
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.
In International Union of Bricklayers and Allied Craftsmen, [1999] O.L.R.D., the Board described the considerations it applies in determining whether or not the applicant has made out a prima facie case for the remedies sought:
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 (now Rule 46) 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, [(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.
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.
In considering whether a prima facie case had been pleaded, the Board assumes that all the allegations made are provable and proved. The Board has no regard, at this point, to the explanation or defences provided by the union. Again, the Board is only considering whether the applicant has pleaded an arguable case that the union has breached its duty of fair representation. The applicant responded to the union and employer requests that his application be dismissed in submissions dated August 31, 2001.
The application is lengthy. The initial application, filed July 13, 2001 alleges:
The union violated the Agreement in not solving the following grievances (0012, 015, 013, 0015, 0128, 0129, 0133, 0134, 0141, 0142) according to the time frame set out. Grievances and documents to follow.
- In answer to the question on the Board’s form “what was the outcome of the grievance”, the applicant wrote:
Two grievances were sent to arbitration (0012, 015) and was withdrawn/settled unfairly in favour of the company. The other grievances remain outstanding.
The applicant has detailed his complaints around the handling of the grievances. They can be divided into two areas. He complains that the union has failed to honour the timeframes set out in the collective agreement for processing grievances. He also complains that the union gave him insufficient notice of the arbitration date for the hearing of grievances 0012 and 015 and objects to the terms by which the union and the employer settled the grievances. The applicant initially enclosed 36 documents in support of the application which the Board has reviewed.
Turning first to the complaint about the timeliness with which the grievances were processed, it does appear from the excerpt of the collective agreement provided by the applicant, that the grievances were not processed within the timeframes. The applicant writes that according to the terms of the collective agreement, a failure to meet the timeframes results in the grievances being deemed abandoned. The applicant did not highlight that Article 10.04 also provides “However, time limits specified in the Grievance Procedure may be extended by mutual agreement in writing between the Company and the Union; such requests will not be unreasonably withheld”.
The documents provided by the applicant demonstrate that the union and the company have agreed to extend the time limits; at no point has the employer advised the union that it considers the applicant’s grievances deemed withdrawn. To the contrary. The documents provided by the applicant show that the union and the employer have met to discuss each of these grievance, at least once, and that with respect to some, offers of settlement have been exchanged.
The simple failure to follow the timeframes in the collective agreement, without more, will not constitute a breach of section 74 of the Act. The Board’s task is not to supervise every aspect of the relationship between an individual and the trade union. In this case, there is no assertion that the applicant has suffered in any way by a less than strict adherence to the collective agreement’s timelines. To repeat, based on the material filed by the applicant, all of the grievances are still alive.
The Board concludes that the applicant’s complaint that the union has not followed the timelines in the collective agreement for processing grievances does not constitute a prima facie breach of the duty of fair representation. Moreover, the Board has consistently held that it is premature for the Board to interfere in a matter that is still under the consideration of the workplace parties. In other words, it is inappropriate for the Board to convene a consultation when it is entirely possible that the workplace parties will resolve the underlying issue. For all these reasons, the Board will not inquire further into the applicant’s assertion that the union has not processed grievances in a timely way.
Turning to the applicant’s contention that the union did not provide him with sufficient notice of an arbitration hearing, the applicant asserts that a union representative left him a voice-mail message on June 21, 2001 advising him that two matters had been scheduled for arbitration on June 25, 2001. The applicant submits that further messages were left by others, including union counsel, on June 22 and 24. The applicant submits that he advised a union representative that he was unavailable on that day, and was asking that the matter be rescheduled. The applicant submits he was told the representative would get back to him but did not. Instead, the applicant alleges, which is not disputed, the arbitration proceeded without him, with the result that one grievance was withdrawn, and one was settled in a manner he says favoured the employer.
In the Board’s view, the applicant has pleaded a prima facie case. The length and circumstances of the notice of the arbitration, the subsequent communication with the applicant, and the course of events at the arbitration hearing, could result in a conclusion that there has been a breach of the duty of representation. To be clear, at a consultation the Board will want to hear from both the union and the applicant about the efforts to contact the applicant, and their timing; the reasons why he was not available, and what happened at the hearing.
Finally, I want to comment on documents that have been filed subsequent to the initial application of July 13, 2001. On August 31, 2001, the applicant filed 85 additional pages of submissions. The applicant wrote that after reading the responses of the union and employer, with which he disagreed, he felt it necessary to reply. On September 19, 2001, the applicant filed documents numbered 37 to 84 which relate to his submissions of August 31, 2001.
Having reviewed the union’s response to the application, the Board has some appreciation about why the applicant felt obliged to reply in some detail. The union has detailed information about the applicant’s work history, and his removal from his position of chief steward. In the Board’s view, none of these allegations and details are relevant to the application’s complaints, particularly now that the Board has determined the only issue it will consider relates to the events surrounding the communication of the arbitration and what happened at the hearing. In the Board’s view then, the only part of the union’s response that is relevant is paragraphs 86 to 104 and the documents related thereto.
Turning, finally, then to the applicant’s reply submissions, most do not relate to the issue before the Board. The applicant also raised at paragraph 297 and following, a new issue. He alleges that the union has declined to let him file a grievance with respect to the employer’s refusals to allow him to move jobs. The applicant has alleged that union representatives will not let him file a grievance directly; he must work through the steward in the plant. The applicant does not want to do so. Although the Board is not in the business of giving advice, I offer a word of warning to the applicant. The Board has little sympathy with employees who do not follow the reasonable processes implemented by the union. The applicant should not anticipate that he can refuse to follow the rules, then come to the Board and complain about the union’s conduct. In any event, the Board will not be considering the applicant’s concerns set out at paragraphs 297 to 301.
In fact, the only part of the applicant’s reply submissions the Board will consider are paragraphs 436 to 449 because they are the only paragraphs relating to the events surrounding the communication of the arbitration and what happened at the hearing.
I have reviewed the accompanying documents closely. Some of them relate to events in 2000, long before the conduct that gives rise to the present allegations. There is a petition concerning removal of the applicant from his position as Chief Steward; a copy of his sister’s marriage certificate; correspondence related to an application for certification; grievances filed by other employees; concerns expressed by other employees with respect to the quality of their representation by the union and a response by the employer to the grievor’s request that he be moved to another job. The only document that appears relevant to the matter before the Board is document 61, which is the employer’s stage 3 response to grievance 012; one of the grievances that proceeded to hearing without the grievor. Unless the applicant can establish to the panel of the Board that convenes the consultation that these documents are relevant to the single issue before it, that is, the events surrounding the communication of the arbitration and what happened at the hearing, the documents will not be considered. Since the documents relate to the reply submissions that the Board has determined it will, for the most part, not consider, the documents’ continuing relevance is particularly doubtful.
In summary, the Board is directing that this matter be scheduled for consultation. The only issue before the Board concerns the activities around the grievance hearing. Consequently the only relevant pleadings (on all sides) and documents are those that relate to those events.
This panel is not seized.
“Mary Ellen Cummings”
for the Board