Ontario Labour Relations Board
Parties
1058-00-U Andrew Flock, Applicant v. Office & Professional Employees International Union Local 343, Responding Party v. 2471256 Canada Inc. c.o.b. as Greenpeace Canada, Intervenor.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; August 29, 2001
Decision
1My decision of June 11, 2001 in this matter concluded that the responding party (“the union”) had violated section 74 of the Labour Relations Act, 1995, (as amended). In ordering remedial relief in favour of the applicant, Mr. Flock, I stated at paragraph 17:
- … I hereby order the union to refer Mr. Flock’s termination grievance to arbitration. In the circumstances, this is an appropriate case for the provision of independent legal counsel for the applicant in his representation at the arbitration, at the union’s expense. I therefore direct the applicant and the union to consult and endeavour to reach agreement on the identification of legal counsel to act on behalf of Mr. Flock. Finally, Greenpeace is prohibited from relying upon the passage of any time limits in the applicable collective agreement for the referral of Mr. Flock’s grievance to arbitration.
2A dispute has arisen between the applicant and the union concerning the scope of my order and direction in paragraph 17 with respect to the provision of independent legal counsel. Mr. Flock is of the view that he is entitled to his own legal counsel separate and apart from legal counsel that may be representing the union at the anticipated arbitration of his discharge grievance. The union is of the belief that the remedy was meant to provide the applicant a choice in the selection of counsel that would carry the grievance forward on behalf of the union. It advises that, operating under that assumption, it agreed on August 3, 2001 to Mr. Flock’s initial suggestion of a certain lawyer in a well-known Toronto labour law firm. If the applicant made that suggestion, it appears that he was under a quite different assumption than the union, although it is difficult to fathom why, if he thought he would be entitled to separate legal representation, he would also participate in the selection of the union’s counsel.
3My decision of June 11, 2001 was not intended to go as far as the applicant contends. The union, not Mr. Flock, is a party to the collective agreement with the intervenor, and it is clear from the grievance procedure in that collective agreement that the union has carriage of the grievance. My decision was intended to provide the applicant with input into the identification of the lawyer who will represent the union (and Mr. Flock’s interests) in the process leading up to and including the arbitration, a choice which would normally be the union’s to make in its sole discretion. In this case, the union must have the applicant’s consent.
4If, as the union contends, there was an agreement on the name of an individual lawyer, the Board would not interfere with that agreement, as the person identified appears to be an appropriate choice. However, if there remains any issue with respect to the selection of legal counsel, the applicant is directed to advise the Board and the other parties in this matter in writing within ten days of the date of this decision. To the extent the applicant does file such submissions, the union shall have five days from delivery of those submissions to file a response.
“Patrick Kelly”
for the Board