2276-00-U Nazzareno Logiacco, Applicant v. United Food and Commercial Workers International Union, Local 175, Responding Party v. The Great Atlantic & Pacific Company of Canada, Limited, Intervenor.
BEFORE: Anthony Brown, Vice-Chair.
DECISION OF THE BOARD; August 2, 2001
The style of cause is amended to reflect the correct name of the responding party “United Food and Commercial Workers International Union, Local 175”.
This is an application pursuant to section 96 of the Labour Relations Act, 1995 alleging violation of section 74.
On May 2, 2001, the Board directed the applicant to file a reply to the detailed submissions filed by the responding party and intervenor. The Board’s decision explained that the applicant must state which of the other parties’ assertions he disagrees with.
On May 25, 2001, the applicant filed a reply in response to the Board’s direction of May 2, 2001. It is not clear whether a copy of the reply was forwarded to the other parties. The reply, which is very brief, reasserts the applicant’s belief that the responding party union has violated its duty under section 74 and that it ‘sided” with the intervenor, with the result that the applicant was terminated for something he claims he did not do. The applicant explains that the allegations made by him pertaining to events long past (e g. 1994) were included in his complaint to provide background. He asserts that he last heard from the union in June, 2000 and then spent some time trying to obtain legal aid. He states:
I know that if you look closely at my file it will illustrate my innocence and you will come to the conclusion that I was unjustly terminated and should be allowed to have my job back. If the Union had acted as my true representative then there is no doubt that I would have continued earning my living at my regular job.
The core facts in this application appear to be straightforward, given the applicant’s failure to dispute the factual assertions of the responding party or intervenor. The applicant was suspended and eventually terminated from his part-time employment with the intervenor for alleged theft in September, 1999. He filed grievances in respect of the suspension and termination. These were processed together through to Step III. The union met with the employer’s representatives, who explained how the theft of money was alleged to have occurred. A second meeting, which the applicant also attended, was held, at which a video tape of the applicant’s activities as cashier in the intervenor’s store were observed. Notes were kept of these meetings by the union’s representative, Mr. Hobbs.
Mr. Hobbs discussed the allegations with the applicant, who denied the allegations but did not offer an explanation to refute the employer’s version of events. In light of the evidence presented by the employer, Mr. Hobbs decided there was no reasonable chance of success at arbitration. In March, 2000, the applicant was advised that he could appeal Mr. Hobb’s decision not to proceed, and the applicant attended a Grievance Appeal meeting for that purpose in May, 2000. The union’s Grievance Appeal committee concurred with Mr. Hobbs’ decision, and the grievance was withdrawn on or about June 14, 2000.
The salient facts are, therefore, that the union decided to withdraw the grievance after meeting with the employer and ascertaining the nature of the allegations giving rise to the suspension and eventual dismissal. The applicant was given notice that the union intended to withdraw the grievance and he attended an appeal committee meeting where he was given an opportunity to speak.
Aside from making bald allegations that the union sided with the employer by not proceeding with the suspension and termination grievance, the applicant has not asserted any facts showing how the union’s decision to withdraw was arbitrary, discriminatory or motivated by bad faith. On the contrary, the undisputed facts are that the union investigated the matter and then made a decision that it was entitled to make as exclusive bargaining agent.
The Board has afforded applicant an opportunity to reply in detail to the assertions of the parties. Aside from refuting that one (unspecified) meeting with the union did not occur, he made no attempt to refute any of the material allegations by the union or the intervenor. The applicant has merely reiterated that he was unjustly terminated and that the union sided with the employer.
In my view, the applicant has not pleaded a prima facie case. He asserts there has been a violation of section 74 merely because he disagrees with the union’s action. There are no facts asserted showing discriminatory, arbitrary or bad faith conduct. A grievance was filed, investigated and ultimately withdrawn after an appeal to a union committee. The union was under no obligation to proceed with the grievance in these circumstances.
The Board has discretion not to hear an application alleging a violation of section 74 and may dismiss a complaint if the applicant’s pleadings do not disclose a violation even if the material facts asserted by the applicant are assumed to be true. In the instant matter, the applicant simply disagrees with a decision taken by the union but, even after had the opportunity to provide the Board with a detailed statement of his factual assertions, in reply to the other parties, he has still failed to plead any facts that, if assumed to be true, would establish a prima facie case of violation of section 74 by the responding party.
The application is dismissed.
“Anthony Brown”
for the Board