Ontario Labour Relations Board
Parties
2224-00-U Murray Wentzell Jr. & Phil Rivest, Applicants v. United Steelworkers of America, Local 2784, Responding Party v. CTI Logistx, Ltd., Intervenor.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; April 17, 2001
Decision
1This is a complaint pursuant to section 96 of the Labour Relations Act, 1995 (the "Act"). The applicant alleges that the United Steelworkers of America, Local 2784 (the "union") has breached the duty of fair representation set out in section 74 of the Act. Specifically, the applicant alleges that he asked a representative of the union whether he could bump into an "inside job", thus avoiding layoff. The applicant alleges that the union representative took no action when, according to the applicant, the union representative should have told him not to take his severance cheque, and should have filed a grievance with respect to the layoff.
2The union has responded. It submits that the application ought to be dismissed for failure to make out a prima facie or arguable case that the Act has been breached. First, the union submits, the conversation relied on by the applicant never took place. Second, the union argues, by the time he alleged that the conversation occurred, the applicant had already accepted his severance cheque, and given up his right to recall, as set out in the severance agreement reached between the union and the employer. Consequently, the union concluded, even if such a conversation had taken place, it occurred after the applicant had ceased to be an employee with any rights under the collective agreement.
3In its response, the employer indicated that it had no knowledge of any such conversation but in any event, echoed the union's submission that accepting the applicant's view of when it occurred, the applicant had already received his severance cheque and elected to give up his rights under the collective agreement.
4Rule 46 of the Board's Rules of Practice permit the Board to dismiss an application when it does not make out an arguable case for the remedies sought:
- Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.
5In International Union of Bricklayers and Allied Craftsmen, [1999] O.L.R.D., the Board described the considerations it applies in determining whether or not the applicant has made out a prima facie case for the remedies sought:
The test that a responding party must meet in order to persuade the Board that an application should be dismissed on the basis that there is no prima facie case established in the application is, in my view, a strict one. An applicant should not be deprived of the opportunity to have a hearing on the merits of his or her application simply because the argument is novel or the circumstances giving rise to the application are unusual. In Caravelle Foods [1983] OLRB Rep. June 875 the Board characterized the test a responding party must meet in seeking to have an application dismissed on a prima facie motion in the following terms at page 881:
The words prima facie case in section 71 (now Rule 46) are meant to allow the dismissal of a case without a hearing where the allegations are insufficient to render reasonable or arguable a conclusion that the Act has been breached.
In J. Paiva Foods, [(1985) OLRB Rep. May 690], the Board set out the test at page 691 as follows:
The Board's discretion to dismiss a complaint on the grounds that it does not disclose a prima facie case should only be exercised in the clearest of cases, that is, when the Board is satisfied that there is no reasonable likelihood that a violation of the Act can be established on the facts as alleged.
Where, however, the Board is satisfied that the responding party bringing the prima facie motion has met the burden imposed, it is incumbent on the Board to dismiss the application, thereby conserving the limited resources of the Board for matters that do require a hearing. As Mr. Justice Grange said in Shaw v. McLeod, (1982) 1982 CanLII 2140 (ON HCJ), 35 O.R. (2d) 641:
I concede that on this motion if, after a careful review of the law, the Court determines that he [the Plaintiff] cannot possibly succeed, then his action should be mercifully dispatched.
6The submissions made by the union indicate that it does not agree with the factual allegations made by the applicant. Specifically, it denies that the applicant approached the union representative seeking to bump into another job. Second, the union alleges that at the time the applicant claims he approached the union representative, the applicant had accepted his severance pay and given up his rights under the collective agreement, so that there is nothing the union could have done. But those are factual disagreements. As the Board has said on countless occasions, when it is assessing whether or not an applicant had made out a prima facie breach of the Act, the Board assumes that all of the applicant's allegations are provable and proved. Viewing the applicant's allegations in that way, the Board concludes that he has pleaded a prima facie breach of the Act, and this matter should proceed.
7To be clear, though, if this matter goes to consultation or hearing, the applicant will have to prove his allegations. He will have to prove that the conversation he alleged with the union representative took place. He will also have to establish that he approached the union at a time when it could take action on his part. Specifically, the applicant will have to address the union and the employer's contention that the conversation he alleges took place on August 29, 2000, occurred after he took the severance package in return for giving up any rights under the collective agreement.
8This matter is referred to the Manager Field Services to continue efforts to mediate.
"Mary Ellen Cummings"
for the Board