Fernando Attunes v. United Food and Commercial Worker’s International Union Local 114P AFL, CIO, CLC
File No.: 3755-00-U Date: October 1, 2001
Applicant: Fernando Attunes Responding Party: United Food and Commercial Worker’s International Union Local 114P AFL, CIO, CLC Intervenor: Maple Leaf Poultry
Before: Patrick Kelly, Vice-Chair
DECISION OF THE BOARD
1This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (“the Act”) alleging a violation of section 74 of the Act.
2In its response, the responding party (“the union”) submits that the application fails to disclose a prima facie case of a violation of section 74, and should be dismissed without a hearing. The union also contends that the application should be dismissed for excessive delay.
3The applicant alleges that he has been wrongly classified under the terms of the collective agreement that has applied to him since 1996, that he has suffered financially as a result, and that the union has refused to assist him in any way to remedy the alleged wrong. He indicates that he has complained on numerous (unspecified) occasions to the union which, he says, has refused to deal with his concerns.
4The union claims that the applicant raised his complaint with a union representative for the first time on November 20, 2000. It alleges that that representative did take steps to investigate the applicant’s complaint, and discussed the situation with the applicant’s supervisor. The union contends that a solution (the writing and passing of an electrical certification test by the applicant) was offered to the applicant, who initially refused the offer. The union states that in January 2001, the applicant took the test, passed it, and was immediately promoted to the classification he felt he should have been placed in all along. The intervenor also alleges that the applicant has been reclassified.
5If the union’s allegations are proven true, they would constitute a complete defence to this application. In addition, if the union is correct that, in January 2001, the applicant ultimately obtained the classification he has always felt he was entitled to, the filing of a grievance on the merits of the applicant’s classification concern would be moot, but for the question of retroactive compensation, if any.
6There is an obvious issue of delay in the filing of the application. By his own admission, the applicant first became aware of the alleged classification dispute in 1996. The delay in bringing this complaint against the union spans five years, which is excessive, and the applicant owes an explanation. There must be compelling reasons for the Board to excuse delay of this kind.
7The applicant is directed to provide the Board and the other parties in this matter with written submissions concerning the reasons for the lengthy delay in bringing this application. He is also directed to file submissions in response to paragraphs 4, 5, 6, 8, 9, 10, 11 and 12 of Appendix A of the union’s response to the application. He must indicate whether he agrees or disagrees with each and every allegation contained in those paragraphs, and if he disagrees he must provide his reasons. If he disagrees with the union’s contention in paragraph 5 of Appendix 5 that he raised his classification concern with the union for the first time in November 2000, he is directed to provide particulars of all communication he had with the union or its representatives with respect to his classification concern, including who he contacted, and the mode, date and nature of those communications. If the applicant does not respond to an allegation contained in any of the paragraphs of Schedule A of the union’s response as herein indicated, he shall be deemed to agree with it. The applicant must provide all the submissions herein directed to the Board, the union and the intervenor on or before October 15, 2001, failing which the application may be dismissed without further notice. Following receipt of the applicant’s submissions, the Board shall give further consideration to the union’s motions with respect to delay and whether a prima facie case of a violation has been disclosed.
“Patrick Kelly”
for the Board