Ontario Labour Relations Board
File No.: 0144-01-U Date: November 7, 2001
Between: Charles Milson, Applicant v. Retail Wholesale Canada-CAW, Responding Party v. The Great Atlantic & Pacific Company of Canada, Limited, Intervenor.
Before: Brian McLean, Vice-Chair.
DECISION OF THE BOARD
1This is an application under section 96 of the Labour Relations Act, 1995 (the "Act") which alleges a breach of section 74 of the Act.
2The responding parties have filed their pleadings. They request that the application be dismissed because, in their view, it does not make out a violation of section 74 of the Act. By decision dated July 27, 2001 the Board directed the applicant to file submissions with respect to assertions made by the trade union and the employer. The Board required the application to advise the Board which paragraphs of the trade union's and employer's pleadings he disagreed with and why. The applicant filed some material in response to the Board's direction but did not advise the Board that he disagreed with any of the facts set out in the union's pleadings, except as noted below. The Board is therefore in a position to determine whether this application should proceed.
3The facts which relate to the matter are very difficult to determine from the application and the other materials filed by the applicant. However, the applicant does not dispute the following facts which are taken from the trade union's response except in the ways which will be described below:
The Applicant initially filed a grievance dated October 25, 1999, with respect to an alleged violation of certain Articles of the Collective Agreement. The grievance concerned two A & P Bakery Manager positions, in Stores #728 and #717, neither of which the grievor received. (Tab 1 Grievance).
The Applicant was an incumbent Bakery Manager at A & P Store #340. This was a "B" store. In late 1999, a Bakery Manager position became available at higher volume "A" store #728. The applicant had a valid application on file for promotion at the time. (Tab 2 and 3). The Applicant applied for this position as a promotion, and not as a result of any staff reduction at store #340.
The Applicant was also of the view he should have been given the Bakery Manager position at the newly opened store #717 in late 1999, which is a higher volume store.
Instead, the Respondent employer promoted Mr. Bob Armstrong from Lead Hand in store #728 to the Bakery Manager position in store #728, and transferred Mr. Johnny Baltrano from store #728 to new store #717.
The Respondent employer determined that Armstrong was on the Application List for Promotion and was senior to the Applicant. As a consequence, Mr. Bob Armstrong was promoted to the Bakery manager position at store #728. The Respondent employer also decided that Baltrano would be transferred pursuant to Article 28 of the Collective Agreement to new store #717.
The Applicant was of the view Armstrong had no valid application for promotion on file at the time of the vacancy, even though Armstrong was on the list for promotion, and that the Applicant had "more time on the job" than Armstrong, even though had less seniority.
The Respondent union processed the grievance to Second Step, which meeting occurred on December 9th, 1999. The Applicant walked out of the Second Step meeting. The grievance was not resolved.
After due consideration, the Grievance Committee decided to withdrawn the grievance and forwarded correspondence to the Applicant dated January 5, 2000, notifying him of the withdrawal, and setting out the reasons and his right to seek reconsideration. The Armstrong promotion appeared valid as he was on the list for promotion and had greater seniority. Similarly, the Grievance Committee was of the view the transfer of Baltrano appeared valid pursuant to Article 28.
The applicant appealed for reconsideration within the appeal period to the Respondent Union's Local Director, Mr. Mike Langdon. On review, Mr. Langdon made inquiries of the Company and persuaded him since management did not have Armstrong's 1999 Application for Promotion, then Armstrong could not be on the Application List for Promotion and that the Applicant should be given priority. The Respondent employer agreed to do so, while the search for the original 1999 application for promotion continued. The Applicant stepped into the bakery manager position in store #728.
Armstrong then filed a grievance dated March 18, 2000, alleging an unjust bump and demotion, and that he had made a valid Application for Promotion in 1999, and through no fault of his own, it had been misplaced by the employer.
In the meantime, the Union on behalf of the Applicant took the position he was entitled to redress for the period of time he was out of the position in Store #728.
During this period of time, however, the 1999 Armstrong Application for Promotion was found, apparently still in the desk of the store manager. The application is dated June 22, 1999 and stamp dated February 18, 2000.
4The applicant asserts that it was Mr. Armstrong's obligation to ensure his application was on file. The employer has a policy of responding to employees within 30 days of filing an application and if the employee does not receive a response it is the employee's obligation to find out why. The applicant also alleges that Mr. Armstrong never had a valid application on file and that the union and the employer conspired to ensure that Mr. Armstrong obtained the position by, apparently creating a false application.
5It is clear that the applicant's allegations will be difficult to prove. Nevertheless, it cannot be dismissed at this time. He has a right to prove his case at a consultation or hearing. However, he should be aware that at a consultation he may well be required to explain how he intends to prove his allegations.
6This application will be determined by a Vice-Chair of the Board at a consultation. The Vice-Chair hearing the case will determine how the matter ought to proceed including whether the consultation should be turned into a hearing.
7The matter is referred to the Registrar.
"Brian McLean"
for the Board