Ontario Labour Relations Board
2444-00-U Madani Bah, Applicant v. Labourers’ International Union of North America, Responding Party.
BEFORE: Bram Herlich, Vice-Chair.
APPEARANCES: Christopher Cooper and Madani Bah appeared on behalf of the applicant; Daniel Randazzo, Carmen Principato, Agusta Rocha, Richard Verrier and Jack Audnade appeared on behalf of the responding party.
DECISION OF THE BOARD; June 15, 2001
This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 alleging a violation of section 74.
A consultation was held in this matter on May 30, 2001.
The application was originally filed in French; the response was filed in English. Shortly before the scheduled consultation, applicant counsel advised the Board that he had been retained.
At the commencement of the consultation, that same counsel advised that he had requested that the Board provide translation services at the hearing. Despite his claim to have sent an e-mail message to that effect (we note that the Board’s Rules do not permit filing by e-mail) the day before the scheduled consultation, no such request was on the file at the time I convened the consultation. I explained that the Board generally does, particularly when so requested, provide the services of a French-English translator for hearing purposes but that no such arrangements had been made in the instant case. Applicant counsel indicated that he was content to proceed in the absence of a translator. (I should note that while applicant counsel did not speak French, his client’s native language, he also indicated that there would be no resulting difficulties in his ability to receive instructions from his client). The consultation proceeded in English.
The applicant commenced his employment with Construction de Mausolées Carrier Inc. (the “employer” or the “company”) on or about September 18, 2000. He was laid off on three occasions culminating in his final lay off on November 3, 2000. With varying results, he sought the assistance of the responding party (the “union”) on each of those occasions.
The first lay off took place on or about September 25, 2000. The applicant took the matter up with the union. The union was persuaded that there was some question as to the legitimacy of the lay off (there was some suggestion that the work the applicant had been doing was still being performed). The union took the matter up with the employer. No formal grievance was filed but, within days, the applicant was recalled to his position and provided with full compensation for days he would have worked but for the lay off.
On October 10, 2000 the applicant was again laid off. Again, he took the matter up with the union. A grievance was filed. However, this time the union was satisfied that there was, at the time of the lay off, a legitimate claim of lack of work. The grievance was, however, settled and the applicant returned to work again within a matter of days. In this case, however, no compensation was paid for lost time. The applicant, while perhaps not entirely satisfied with that resolution of the matter, accepted it and, to use his words, “did not complain to show good faith”.
Shortly after his second recall, the applicant was transferred to a different work site.
It would appear that transfer generated some concerns on his part and those concerns were shared with the union. There are disparate views of the precise nature of that exchange. The applicant now claims that he brought allegations of employer bad faith to the attention of the union at the time and that the union, by its response to those concerns, left him of the view that it was a co-conspirator with the employer.
The union, for its part, asserts that no claims of harassment or any kind of allegedly discriminatory treatment were ever brought to its attention until the final lay off. It does, however, concede that it advised the applicant that the employer was within its collective agreement and management rights to effect a transfer (a position which the applicant’s counsel ultimately, though perhaps reluctantly, accepted at the consultation).
Finally, on November 3, 2000 the applicant was, once again, laid off. Again, he contacted the union and, within eight days of his lay off met on three separate occasions with the business manager.
On the last of those occasions, the applicant claims that the union advised that it would seek a legal opinion in the matter and get back to him. Six days later and presumably without waiting to hear from the union further, the applicant filed the instant application.
According to the union, the applicant was told, quite unequivocally on November 11 (i.e. at the last of the three meetings with the business agent) that no grievance would be filed and that the union would not proceed any further with the matter. That decision was based on the conclusion that the ultimate lay off was also legitimate – i.e. there was a genuine shortage of work (it was not disputed, for example, that the applicant was one of a number of employees laid off at the time) and there was no impropriety in the previous transfer. In those circumstances, the union argues, no credible grievance could have been advanced.
The applicant initially sought, through these proceedings, to have a grievance advanced on his behalf. However, in view of the position of the union and given the applicant’s candid acknowledgement and reluctant acceptance at the consultation that there was no basis in the relevant collective agreement to found any appropriate grievance to advance that claim, that position was altered.
In lieu of seeking to have a grievance advanced to arbitration, the applicant sought to have the Board award damages for lost wages payable by the union and/or the employer.
It is, of course, not the practice of this Board (even assuming it has the jurisdiction to do so) to award damages to be paid by a party who is neither alleged to have violated any provision of the Act nor is capable of violating the particular section (section 74) said to have been violated. Thus, there is simply no possible basis, in the context of this case, to claim damages against the employer.
That leaves a claim of damages against the union. But while it is true that aspect of the claims does not face the same obstacle as the claim against the employer, I am equally unable to see how there can possibly be any merit to any such claim in the instant case.
First, I am entirely unimpressed with the applicant’s “process” related claims against the union. The assertions that the union was unresponsive or lethargic or that the applicant was kept waiting in the union office before he met with the union representative are all difficult if not impossible to reconcile with the facts: two prior grievances resolved and three separate meetings with the union representative within eight days of the final lay off. While the applicant may have been unhappy with the substance of the union’s communications, there is simply no basis to complain about the union’s responsiveness.
As far as the case the applicant wished the union to advance on his behalf, the concession that there was no basis in the collective agreement to support such a case is, in my view, fatal to the applicant’s case.
Section 74 of the Act provides 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.
For the purposes of the instant decision it is the words “so long as it continues to represent employees in a bargaining unit” and the prohibition on certain conduct “in the representation of any of the employees in the unit” which merit consideration.
A trade union does not, by virtue of its certification as a bargaining agent for employees become the legal representative of those employees for any and all purposes. And while there may be varying practices among different trade unions, the representational activity contemplated under section 74 must be tied to the union’s rights and obligations as a bargaining agent. Primary among those rights is the right to negotiate a collective agreement on behalf of its members. And it is in relation to the administration and enforcement of the rights embodied in a negotiated collective agreement that a union performs the bulk of its representational activity which is regulated by section 74 (in this regard see also section 64.5 of the Employment Standards Act).
But where an applicant who claims the union has failed to properly represent him is unable to point to any collective agreement provisions upon which a grievance advancing his claim could or ought to have been based, it is difficult to see how the unfair representation complaint can succeed where it is not otherwise possible to identify what the union could or ought to have done differently which would or even might have altered the course of events.
The applicant is unhappy with his lay off but accepts that there was no basis under the collective agreement to challenge it. Nor was any other legal foundation advanced upon which the union might have had the right under the collective agreement or the obligation under section 74 to advance the applicant’s case.
Whether there may have been other avenues available for the applicant to pursue his dissatisfaction with the employer is not a question before me. I am, however, satisfied that given the applicant’s concession that his case could not have been advanced under the terms of the collective agreement, I see no basis upon which this application could possibly succeed.
Accordingly, I hereby exercise my discretion to not inquire into the matter any further.
This application is dismissed.
“Bram Herlich”
for the Board