Court File and Parties
0965-00-U Robert Whiteside, John Winkworth, Richard Patriquin, Stephen Smith, Ken McGratten, Eugene Vandal, Richard Guise, James Hampton, Ian Caruso, Paul Belluz, Vaughn Dahl, Richard Pellizzari, Albert Florindo, Kelly Skabar, Len Strethlow, Dave Rusak, Dan Valiquette, Gary White, Applicants v. International Union of Operating Engineers – Local 865, Responding Party v. Bowater Pulp and Paper Canada Inc., Intervenor.
BEFORE: Mary Anne McKellar, Vice-Chair.
DECISION OF THE BOARD; August 15, 2001
Decision
This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (“the Act”) alleging that the responding party trade union has violated section 74 of the Act.
Attached to the application were 18 grievance forms completed and signed by the 18 individuals identified as applicants to the proceeding. The allegation contained in the application form with respect to these grievances was set out as follows:
4 members from within the steam plant line of progression were removed from their line and placed within the Recovery line of progression. The members who were removed from the Steam Plant line of progression were not the junior people within that line and their positions were filled with junior people who moved up the Steam Plant line. These 4 people from the Steam Plant are P. Jurimae, M. Lavoi, L. Maloney, and S. Verge. The People who are in the Recovery line of progression and are displaced (moved back in the line) by these 4 people are J. Winkworth, R. Patriquin, and S. Smith. There are other people displaced within the Recovery line but they did not file grievances.
Articles:
6 – Seniority
8 – Vacancies and promotions
36 – Letters of understanding
Page 56 – Lines of progression
Of the collective agreement were violated by the Union and the Company.
18 grievances were filed regarding this violation. The union decided not to process these grievances and they were dropped.
If the union and the Company have decided to modify the collective agreement, the Union has not brought this modification back to the membership for a vote. This violation is covered in the Constitution of the International Union of Operating Engineers article XXIV, Subdiv II, Section (e), page 105.
The remedy requested in the application was “bring the issue to arbitration on interpretation and implementation of the contract”.
The intervenor employer asked the Board to dismiss the application without a hearing pursuant to Rule 46 of the Board’s Rules of Procedure. By decision dated June 26, 2001, the Board offered the applicant an opportunity to respond to that request and directed him to address certain issues in his response, which was to be filed within one month of the Board’s decision. Of particular significance were the following comments and directions:
There are some 18 different persons identified in the application as applicants. However, with one exception, none of them has signed the application. Robert Whiteside, who is one of the named applicants, has identified himself as the representative of the group of 18. Apart from that assertion there is nothing to indicate on what authority the claim to be their representative is based. Further, there appears to be some basis to doubt the validity of such a claim. For, subsequent to the filing of the application, at least three of the named applicants have advised the Board, in writing that they do not wish to pursue their grievances or this complaint.
Thus, the applicant is also directed to provide some indication to the Board supporting his claim to represent all of the applicants. (Obviously the most expeditious manner of so doing would be to have each applicant sign a written authorization).
The actual identity to the applicants may also impact on the claim. Based on Mr. Whiteside’s description of the facts, it does not appear that he himself has in any way been affected. Thus, unless he is representing someone who has been affected in some manner, it may be that he has no standing to bring this application.
The applicant has not filed any submissions pursuant to the Board’s decision and directions. Consequently, the Board will dispose of the intervenor employer’s request for early dismissal of this application pursuant to Rule 46 on the basis of the material already filed by the applicant.
Rule 46 provides:
- 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.
- Section 74 of the Act provides:
- 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.
- In Dr. James Winter, [1996] OLRB Rep Feb. 154, the Board considered a motion for non-suit after hearing the applicant’s evidence in the case, which involved an allegation that the responding party breached section 74 of the Act when it failed to take the applicant’s grievance to arbitration. At paragraph 86 of the decision the Board noted that the standard of review on a non-suit motion is whether the applicant has made out a prima facie case. The non-suit motion was successful. The Board’s comments with respect to the parameters of the duty in section 74 of the Act are applicable to this case:
- The Labour Relations Act imposes a duty upon a trade union to fairly represent all of the employees in the bargaining unit for which it holds bargaining rights. The trade union may be found to have violated the Act if it has represented an employee in a manner which is arbitrary, discriminatory, or in bad faith. The Labour Relations Board does not consider whether the union was right or wrong in its approach, but rather whether the union's actions were motivated by bad faith, whether it has discriminated against the employee or whether it acted in an arbitrary manner.
89 In Kenneth Edward Honer, [1993] OLRB Rep. May 433, the Board reviewed the jurisprudence outlining what the Supreme Court of Canada and this Board have found to be the principles applicable to a trade union's duty of fair representation. The following excerpt from the case outlines the guidelines applicable to the case before me:
... In CANADIAN MERCHANT SERVICE GUILD V. G. GAGNON, 1984 CanLII 18 (SCC), [1984] 1 SCR 509 at page 527, the Supreme Court of Canada reviewed the principles applicable to a trade union's duty of fair representation as follows:
The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.
When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.
This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of the consequences for the employee on the one hand and the legitimate interest of the union on the other.
The union's decision must not be arbitrary, capricious, discriminatory or wrongful.
The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.
This is both a useful general guideline for assessing a trade union's representation and is consistent with the Board's approach to fair representation complaints.
The Board starts from the premise that the responding party has the right to determine whether or not to pursue a grievance. In his application, the applicant has not made any assertions from which the Board could conclude that the responding party’s decision not to pursue the grievances in question was made in a manner that was arbitrary, discriminatory or in bad faith.
Furthermore, on the face of the application, notwithstanding that he filed a grievance in respect of them, the applicant does not appear to have been affected by the intervenor’s actions. Nor has he indicated to the Board that he is authorized to represent others who were affected, despite the Board’s directions in its June 26, 2001 that evidence of such authorization be provided.
On the basis of all of the foregoing, the Board concludes that the applicant has failed to state a prima facie case for the relief requested and the application is hereby dismissed.
“Mary Anne McKellar”
for the Board