Ontario Labour Relations Board
File No.: 2691-00-U Date: May 22, 2001
Between: Michelle Bernardo-Bell, Applicant v. Ontario Public Service Employees Union Local 152, Responding Party.
Before: David McKee, Vice-Chair.
DECISION OF THE BOARD
1This is an application under section 96 of the Labour Relations Act, 1995 S.O. 1995 ch.1 (the "Act") in which the applicant alleges that her bargaining agent has violated the duty of fair representation set out in section 74 of the Act. The applicant is employed at the London Psychiatric Hospital in London, Ontario in the Food Services Department. She is represented by the responding party (“OPSEU”). She alleges that OPSEU has treated her in a manner different from other employees in her situation.
2The applicant is a part-time employee. A number of other employees have been “converted” to full-time employee status. Although the applicant would like to work full-time, she has not been converted. There is no dispute that a part-time employee is entitled to require the employer to treat her as full-time if she works more than 1732.75 hours over a two-year period.
3The applicant has not worked the requisite number of hours for conversion to full-time status. She complains, however, that other part-time employees have been converted without meeting this requirement. She alleges that OPSEU is treating her differently for no reason, and that this constitutes a violation of section 74.
4OPSEU denies that she has been treated differently from other employees, and has provided particulars of each group or individual that the applicant says has received preferential treatment. Pursuant to the Board’s decision of March 29, 2001, the applicant has replied to the union’s particulars. The Board therefore has a detailed explanation of the evidence relied on by the two parties.
5The focus of the applicant’s complaint is that a group of employees were all converted to full-time status in 1999. She asserts that this is a breach of the collective agreement. Since OPSEU has countenanced such a breach, it should be required to permit her to attain full-time status as well. OPSEU states that a grievance was filed in 1996 asserting that 13 employees had in fact passed the threshold for attaining full-time status. The employer denied the grievance. In March, 1999 the matter was settled by Minutes of Settlement. The applicant was hired only on May 15, 1998 and therefore could not have been included in the grievance in 1996, and could not have qualified for conversion to full-time status in March of 1999.
6OPSEU’s position in the grievance was that the grievors had all passed the threshold for full-time status. There may have been an issue with respect to record keeping, and it is evident that OPSEU at any rate intended to call evidence to establish that the number of hours actually worked by the grievors was greater than the number which was found in the employer’s record keeping system. The employer appears to have concluded that its chances of success at arbitration were not good. The grievance was settled on the basis that all of the grievors were converted to full-time status as of February 1, 1999. OPSEU and the grievors agreed to forego any damages claim for lost wages or work opportunities, a not insignificant amount of money after two to three years.
7The application was filed December 6, 2000. The applicant states simply that she does not believe OPSEU. She asserts, without providing any particulars, that a minority of the grievors did not have the requisite number of hours to achieve full-time status. She does not identify who they were. The applicant does not dispute her date of hire or the fact that she has never qualified as a full-time employee under the collective agreement.
8The applicant also identified three employees: Lorraine Peters, Stephen Wright and Renol Alili, as other persons who were reclassified from part-time to full-time without having the requisite number of hours. OPSEU has made a detailed response with respect to all three of them. It asserts that the hours of Messers. Wright and Alili were incorrectly calculated as the employer had neglected to include in their hours all authorised leaves of absence. OPSEU asserts that a grievance was filed by Lorraine Peters and the employer simply acknowledged it was in error.
9There is a factual dispute in this matter which is central to the legal issue in this case: whether all of the persons identified as being converted from part-time to full-time actually had the requisite number of hours under the collective agreement for such conversion. If it turns out that they did not, the question which then arises is whether OPSEU actually believed that they did and proceeded on that basis. OPSEU’s response is detailed and plausible. The applicant states only that she does not believe them. Her only “particular” is a comment made by Lorraine Peters that she was not getting very many hours. This statement is ambiguous in itself and, since no time frame is given, may be irrelevant.
10Given this factual difference on a crucial matter the Board cannot dismiss this application on a prima facie basis. However, the Board has a discretion not to hold a hearing under section 99(3) and a discretion not to inquire into a complaint under section 96(4). The Board is sensitive to the fact that unrepresented parties who may have legitimate complaints are frequently unable to articulate them as clearly and forcibly as counsel. However, in this case OPSEU has offered a reasonable and plausible explanation. Certainly it is unlikely that any employer would assume the burden of more full-time staff in the absence of some compulsion to do so. There is no fact pleaded that would cast doubt on the explanation offered. The applicant states that she does not believe OPSEU, but provides no factual foundation for this subjective belief (other than some ambiguous statements by Lorraine Peters). Little is to be accomplished by holding a hearing so that the Board can hear the applicant repeat that she does not believe the statements of her bargaining agent. Records of attendance from 1996 have not likely improved with age, and little is to be accomplished by ‘testing’ the assertions of OPSEU by means of bald and unparticularized cross-examination.
11In the exercise of my discretion, I adjourn this proceeding until the applicant files particulars of facts which raise some plausible issue with the response of OPSEU. If she does not do so before September 7, 2001 the application will be deemed terminated without further notice to any party.
12I remain seized of this application.
“David A. McKee”
for the Board