0431-01-U Mr. Frank Villella, Applicant v. IBEW Local 636, Responding Party v. Chubb Security Systems, Intervenor.

BEFORE: D.L. Gee, Vice-Chair.

DECISION OF THE BOARD; May 31, 2001

1This matter is an application filed by Mr. Frank Villella in which he alleges that his bargaining representative, the International Union of Electrical Workers, Local 636 (the “union”) has violated section 74 of the Labour Relations Act, 1995 (the “Act”) by failing to represent him in a manner that is not arbitrary, discriminatory or in bad faith.

2The union and Chubb Security Systems, a division of CSG Security Inc. (the “employer”) have both written to the Board and requested that this application be dismissed on the basis that the application does not make out a prima facie case and/or on the basis of delay.

3The facts particularized by Mr. Villella in his application and upon which he relies in support of his assertion that the union has violated its duty of fair representation span the period of 1994 to the present. Mr. Villella’s concerns relate to a number of different issues. Such concerns are arranged in the application form under the following headings:

(I) Health and Safety Concerns

(II) Collective Bargaining Concerns and Grievances

(III) Union Rights And Status

(IV) Election of Unit Steward to Better Represent Local Members

(V) Discrimination and Harassment

Scope of A Union’s Duty of Fair Representation

4Prior to considering whether any or all of the application ought to be dismissed for delay or on the basis that no prima facie case is made out, it is appropriate to review what does and what does not fall within the scope of a union’s duty to fairly represent its members.

5The Labour Relations Act, 1995, amongst other things, provides a mechanism by which a trade union can obtain the legal and exclusive right to represent employees in a defined bargaining unit. Once certified (or voluntarily recognized) as the bargaining agent, the employer is henceforth prohibited from negotiating with the individual employees concerning the terms and conditions of their employment. If the employees are prohibited from speaking on their own behalf, it is crucial that the sole entity that is permitted to do so, ie. the trade union, do so in a manner that not arbitrary, discriminatory or in bad faith.

6The fact that an employee is represented by a trade union in respect of his or her terms and conditions of employment does not mean that there are no workplace issues that an employee is able to advance on his or her own behalf. There are a number of statutes, the Occupational Health and Safety Act amongst them, that grant specific rights to individual employees that are completely unrestricted by the existence of a trade union. For example, workers are entitled to demand that their employer take every precaution reasonable in the circumstances for the worker’s protection and to refuse work that the worker believes to be unsafe. These are statutory entitlements that are not dependent on the presence of a trade union, the terms of a collective agreement or a trade union’s co-operation. The Occupational Health and Safety Act further provides that if a worker has reason to believe that he or she is being asked to perform unsafe work, the worker can cause an inspector to be notified. Once again, the presence or absence of a trade union is on no consequence to a worker’s entitlement to cause an inspector to be notified.

7Thus, while there are workplace issues that employees represented by a trade union are prohibited from advancing on their own behalf with their employer, there continue to be numerous workplace issues that employees have the right, independent and separate and apart from their bargaining agent, to enforce.

8In the course of defining the scope of a trade union’s duty of fair representation, the Board has consistently stated that it is defined by the scope of the union’s authority as exclusive bargaining agent. If the matter is one that the trade union is mandated to represent the employee with respect to, it is a matter to which the duty of fair representation extends. If, however, it is not a matter within the purview of the union’s representational rights, it is not a matter to which the duty of fair representation extends.

9The Board has previously dealt with the issue in Luis Lopez, [1989] OLRB Rep. May 464. In that decision the Board was considering section 68 [now section 74] of the Act and whether the union’s obligation under section 74 extended to workers’ compensation matters. On this issue the Board states in part:

12 It is appropriate to first reflect on the history and purpose of section 68 of the Act which reads:

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.

While the section is couched in broad terms ("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"), the Board regards the duty of fair representation as restricted so that the extent of the duty is coextensive with the extent of the union's authority as exclusive bargaining agent. The duty of fair representation was enacted as a counterweight to the restrictions on individual employee rights inherent in the creation of a collective bargaining regime in which the bargaining agent was granted exclusive rights to bargain on behalf of all employees in the bargaining unit, whether or not union members. The duty of fair representation serves to protect the individual from decisions of the bargaining agent which could be characterized as arbitrary, discriminatory or in bad faith. In effect, given that the trade union would likely be more responsive to the wishes of the majority, the individual was afforded some protection against the "tyranny of the majority" since the advent of a collective bargaining regime had, for all intents and purposes, eliminated the individual's common law right to negotiate an individual contract of employment. Thus, the context in which the section 68 duty arises and its purpose constitute the rationale for defining the ambit of the trade union's statutory obligation to fairly represent the employees in the bargaining unit.

21. The issue of the ambit of the union's obligation under section 68 is squarely raised in the instant case. The Board concludes, for the reasons already expressed, that the duty of fair representation must be commensurate with the reach of the union's statutory authority to represent the employees in the bargaining unit. Although, in a sense, the WCB intimately affects the relationship of employer and employee, the relevant statute, the Workers' Compensation Act, R.S.O. 1980, c. 539 (as am) effectively removes the adjustment of compensation for work-related injuries from the collective agreement arena by interposing an administrative agency between the worker and the employer. All claims for compensation are to be heard and determined by the WCB and, once compensation is awarded, it is paid out of an accident fund in accordance with a pre-determined scale. The trade union has no statutory role in the scheme. Hence, the union's representational duty in section 68 of the Labour Relations Act as exclusive bargaining agent is unrelated to the statutory scheme for workers' compensation and cannot apply to such claims: see Eason v. Frontier Airlines, supra, to the same effect. Accordingly, the Board finds that the union's decision not to represent the complainant at the WCAT proceeding falls outside the scope of the section 68 duty. Its decision in that regard may not scrutinized by the Board by virtue of the duty of fair representation.

10The Board has also determined that a trade union’s duty of fair representation is restricted to the union’s representation of employees in the bargaining unit in their dealings with their employer. Section 74 does not regulate trade union organizations or what might be described as “internal trade union affairs”.

11Matters such as qualifications for membership, the rights of members vis-à-vis the union or each other, elections, union meetings, the powers of union officers, general decision-making processes of the union, and so on, are not regulated by the Labour Relations Act, 1995 at all. It is the union’s constitution that governs the internal workings of the organization. A union member who claims that the union constitution has not been applied, or that his or her rights as a member have been infringed, may pursue any dispute settlement mechanism provided in the constitution and, if necessary, apply to the courts for further relief. A union member’s complaint that the union has not properly applied the union constitution is not the subject matter of a section 74 complaint.

Delay

12Prior to turning to the specifics of the instant complaint, it is also useful to comment upon the Board’s discretion not to enquire into a complaint under section 74 of the Act and its exercise of such in circumstances where the facts relied upon in the application predate the application by months or years.

The Rule 38 of the Board’s Rules of Procedure states as follows:

38. Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.

13The Board expects, and its rules demand, that applications alleging improper conduct will be filed promptly after the events upon which they are based.

14The reasons for the Board’s rule and expectation are numerous. The first is simply a question of fairness to a party that has to defend itself against the complaint. If a party is not aware until months or years after the event that it will have to defend its actions, it will take no steps to preserve the evidence it will need in order to do so. If a party is only advised of the allegations months or years after the event, its ability to defend itself will be prejudiced by virtue of fading memories, lost witnesses, destroyed documents etc. It may amount to a denial of natural justice to require a party to defend itself against allegations based on events that occurred months or years ago.

15Further, workplaces are dynamic environments. Decisions are made based on an assumed state of affairs. Collective agreement parties are generally involved in daily discussions, negotiations, settlements and agreements that are engaged in and concluded based on an assumed state of affairs. To permit issues that were believed resolved, or not known to exist, to rear themselves months or years later can play havoc with all that has been achieved in the interim.

16While each case is looked at on its own facts, the Board has developed a general rule when it comes to delay. As a general matter, where the delay is less than one year, the onus is on the responding party to demonstrate actual prejudice (or perhaps some other good reason) sufficient to justify dismissing a complaint without a hearing on the merits. Where the delay is more than one year, the onus is on the applicant to provide a satisfactory explanation for it. At that point, it becomes incumbent on an applicant to provide a good reason for the Board to exercise its discretion in favour of entertaining the application or complaint.

The Specifics of the Application

17I turn then to the request of the union and Chubb that this matter be dismissed on the basis that it discloses no prima facie case or on the basis of delay.

18The portion of the complaint under the heading Health and Safety Concerns is dismissed in its entirety. This section raises concerns of Mr. Villella that the union and Chubb are not complying with the terms of the Occupational Health and Safety Act and that the union has failed to assist Mr. Villella in connection with his health and safety concerns. These are matters that are not within the union’s exclusive representational rights and are matters that Mr. Villella is able to pursue on his own without the permission or co-operation of the union. Further, a number of the facts relied upon in this section occurred well in excess of one year ago.

19In the portions of the complaint under the headings Collective Bargaining Concerns and Grievances and Discrimination and Harassment Mr. Villella alleges that he has been subjected to discrimination and harassment in the workplace and has asked the union to file a grievance relating thereto on his behalf. Mr. Villella indicates that the Collective Agreement contains a no discrimination clause and that the Human Rights Commission would decline to accept a complaint from Mr. Villella on the basis that his complaint should be pursued through the grievance and arbitration process provided for in the collective agreement. Mr. Villella also refers to a number of other grievances that he has asked the union to file on his behalf – including one for a $400. lump sum payment he asserts he is owed for having completed required college courses – with no success.

20The Board has ruled on a number of occasions that a trade union is not required to pursue every grievance to arbitration. The Board has stated, however, that a trade union may be called upon to show that it has turned its mind to the grievance, performed an appropriate investigation and made an informed decision as to whether or not it will proceed devoid of any bad faith or discrimination.

21Accordingly, the Board declines to dismiss the portion of the complaint that appears under the headings Collective Bargaining Concerns and Grievances and Discrimination and Harassment.

22The portions of the complaint under the headings Union Rights and Status and Election of Unit Steward to Better Represent Local Members is dismissed in its entirety they raise issues that are internal union matters and are not the subject of the union’s duty of fair representation. Mr. Villella’s remedy is to pursue the process for complaint contained in the union constitution and, if necessary, proceed to the courts.

23As indicated in the Board’s earlier decision, the responding party and the intervenor have 10 days from the date of this decision to file their response in this matter.

24I am not seized.

“D.L. Gee”

for the Board