Darcy L. Johnson v. United Steelworkers of America
1746-01-U Darcy L. Johnson, Applicant v. United Steelworkers of America, Responding Party v. No-Sag Springs Company Ltd., Intervenor.
BEFORE: Caroline Rowan, Vice-Chair.
DECISION OF THE BOARD; November 21, 2001
1This is an application filed under section 96 of the Labour Relations Act, 1995 (the “Act”), in which the applicant alleges that the responding party (the “union”) violated section 74 of the Act. The applicant generally complains about the union’s failure to pursue his grievance relating to “unlawful termination” and his grievance requesting termination pay and severance pay.
2In its response, the union submits that the application fails to make out a prima facie case for the orders and remedies requested and therefore that the application should be dismissed in accordance with Rule 46 of the Board’s Rules of Procedure. The union also submits that the application as it relates to a grievance for termination pay and severance pay is premature and should be dismissed on that basis.
3By decision dated October 30, 2001, the Board directed the applicant to file any submissions in response to these requests within ten (10) days from the date of that decision and also specifically directed the applicant to indicate therein which facts, if any, set out in the union’s response and in the employer’s intervention he disputes and why. The Board also indicated therein that “[a]ny facts, which the applicant does not specifically indicate are disputed, will be deemed to have been accepted by him.”
4The applicant did not file any submissions with the Board within the time lines stipulated in the Board’s decision dated October 30, 2001. The applicant also did not indicate any dispute with the facts set out in the union’s response or the employer’s intervention and as such is deemed to have accepted the facts set out therein. For the purposes of considering the union’s preliminary motions, the Board will therefore have regard to the facts set out in the application and the undisputed facts set out in the union’s response and in the employer’s intervention.
5Having considered the facts set out therein, and for the reasons that follow, the Board is satisfied that the application as it relates to the applicant’s termination grievance should be dismissed for failing to disclose an arguable case of a violation of section 74 of the Act and that the application as it relates to the grievance for termination pay and severance pay should be dismissed on the ground that it is premature.
6The applicant firstly alleges that the union violated section 74 of the Act in its handling of his termination grievance. Section 74 of the Act reads 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.
7The Board has on numerous occasions indicated that the obligation imposed under section 74 of the Act does not require a trade union to take every grievance to arbitration simply because a grievor wishes that it do so. A union has the right to settle or withdraw a grievance, even without the consent of the individual grievor. In doing so, the union must turn its mind to the merits of the grievance and consider, among other things, the potential consequences of the withdrawal on the individual, the likelihood of success at arbitration, and the interest of the bargaining unit as a whole. (See Dennis Leonard, [1990] Rep. May 575 and Catherine Syme, [1983] OLRB Rep. May 775)
8In the present case, the applicant’s employment was terminated on or about October 23, 2000. The applicant first contacted the union to inquire about grieving that termination on or about November 27, 2000. The union states (and the applicant did not dispute) that this was the first time it became aware that the applicant’s employment had been terminated. At that time, the applicant advised the union’s representative, Mr. Brown, that he had not yet filed a grievance regarding his termination from employment. Mr. Brown then noted that the 15-day time limit for filing a grievance had already passed. Mr. Brown nonetheless urged the applicant to visit the plant and file a grievance immediately. The applicant did not however file a grievance until over a month later, following a second call to Mr. Brown, at which time Mr. Brown asked whether or not he had filed a termination grievance as they had discussed previously. When the applicant indicated that he had not, Mr. Brown again urged the applicant to file a grievance. The applicant finally did so on or about January 2, 2001.
9On or about February 7, 2001, the employer denied the grievance on the basis that it was out of time. On or about February 9, 2001, the applicant failed to attend a scheduled meeting with the union without calling in advance. The union and the employer nonetheless met to discuss the merits of the applicant’s grievance on or about March 14, 2001. Following that meeting, representatives of the union met to discuss the grievance and determined that it would be difficult to succeed at arbitration given the employer’s timeliness objection and the merits of the grievance. The union determined to write to the grievor to suggest settlement of his grievance. Ultimately, the union determined to withdraw the grievance following several unsuccessful attempts to contact the applicant about his grievance. The union advised the employer that it was withdrawing the grievance by letter dated May 11, 2001.
10Having considered the reasons outlined for the union’s decision, which include its assessment that the grievance was unlikely to succeed as well as the applicant’s failure to contact the union for three months and his failure to keep the union informed about his current mailing address, the Board is satisfied that the applicant has not made out an arguable case of a breach of section 74 of the Act. Pursuant to section 96(4) of the Act, the Board, in any event, has the discretion to decide not to inquire further into a complaint. In the present case, the Board is of the view that there is nothing pleaded that would lead it to conclude that the applicant has a reasonable chance of success in this application. Given the extremely limited chances of success in this application, the Board sees little useful purpose in putting the parties to the time and expense that would be incurred through a hearing or consultation. The Board therefore exercises its discretion under section 96 of the Act and dismisses this application as it relates to the union’s handling of the applicant’s termination grievance.
11With respect to the balance of the application, which relates to the applicant’s grievance for termination and severance pay, the Board notes that both the employer and the union advise (and the applicant accepts) that the union has processed that grievance, has referred that grievance to arbitration and are in the process of scheduling dates for the hearing of that grievance. In all of the circumstances, the Board dismisses the applicant’s application as it relates to the union’s handling of his termination pay and severance pay grievance at this stage on the basis that it is premature.
12This application is accordingly hereby dismissed.
“Caroline Rowan”
for the Board```