0505-01-U Premanand Sukhoo, Applicant v. Labourers International Union of North America, Local 506 and The Metro Toronto Convention Centre, Responding Parties.

BEFORE: Anthony Brown, Vice-Chair.

DECISION OF THE BOARD; June 1, 2001

[1]. This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging violation of section 74.

[2]. This application is the applicant’s second application against his union. His first application, in Board File 0073-00-U, was terminated by the Board by decision dated April 17, 2001 because it failed to disclose how the union was alleged to have contravened section 74 and because it sought remedies that the Board lacks jurisdiction to order. The decision of April 17, 2001 informed the applicant, in essence, that the Board would consider another application if it was properly pleaded in accordance with the Board’s Rules of Procedure.

[3]. On May 10, 2001, the applicant filed the instant application. The responding party union asserts that the application fails to show a prima facie case and should be dismissed without a hearing. The union also asserts that the remedies sought by the applicant, including the laying of criminal charges and the decertification of the union, are not available to the applicant. The employer asserts that the applicant has again failed to disclose how section 74 is alleged to have been violated and the application should therefore be dismissed.

Decision

[4]. The Board has discretion to dismiss a complaint under section 74 and may do so if the allegations fail to disclose a prima facie case even if they are assumed to be true. The issue is whether the Board should exercise its discretion not to inquire into the instant complaint.

[5]. Section 74 states:

74. 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.

[6]. In Savage Shoes Ltd. [1983] OLRB Rep. Dec. 2067, the Board described a union’s duty under section 74 [then section 68] this way:

36. Section 68 requires that each trade union decision be grounded on a consideration of relevant matters, free from the influence of irrelevant considerations. The requirement that a trade union not act in a manner which is in bad faith protects the legitimate expectation that an individual employee’s bargaining agent will act honestly and free of any personal animosity toward him. The requirement that a trade union not act in a discriminatory manner protects against the making of distinctions between employees and groups of employees on bases which have no relevance to legitimate collective bargaining concerns. “Bad faith” and “discriminatory”, therefore, test for the presence, in the process or results of union decision-making, of factors which should not be present. “Arbitrary”, on the other hand, describes the absence in decision-making of those things which should be present. A decision will be arbitrary if it is not the result of a process of reasoning applied to relevant considerations. The duty not to act arbitrarily requires a trade union to turn its mind to the matter at hand.

[7]. In The County of Brant, [2000] OLRB Rep. Nov./Dec. 1106, the Board set out the principles that are applicable in determining whether an application has made out a prima facie case at pages 1107-08:

The Board in International Union of Bricklayers and Allied Craftworkers, Board File Nos. 1645-98-U and 1768-98-U, decision dated February 19, 1999, unreported, [1999] O.L.R.D. No. 1392, had occasion to discuss the approach used by the Board when determining whether to dismiss an application because it did not disclose a prima facie case. The Board stated at paragraphs 4 and 5:

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 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 Ltd., [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.

Therefore, a responding party that seeks to have the Board dismiss an application before the hearing on the grounds that the application fails to set out a prima facie case for a violation of the Act must satisfy the Board that there is no reasonable likelihood that the applicant can establish a violation of the Act based on the allegations it has made in its application, or in the words of the Supreme Court of Canada, that it is “plain and obvious” that the allegations in the application do not disclose a violation of the Act.

[8]. It appears that the applicant was employed in the banquet facility operated by the employer until October 18, 2000. The applicant makes the following allegations in his pleadings:

1. Wrongful dismissal

2. Fraudulent act committed by Managers leading to loss of income and jobs

3. Not properly scheduling the banquet employees; creating hostility among banquet employees

4. Discriminating between the staff – selecting certain staff to work and not following proper scheduling

5. Threatening myself [the applicant] and others

6. Due to union lack of experience in the industry have [sic] lead to corrupt contract and a very stressful and disturbing working environment

7. Company policy has rules that were not clear

8. Managers would exploit employees

9. Making employees work double dinner. This was abuse and harassing.

[9]. It is readily apparent that the applicant’s main complaint is about his former employer and not the union. The applicant does claim however that the union did not help him to resolve his complaints against the employer. He provides few details as to what the union was requested to do, when the request was made, or what response he got from the union. In addition, he does not state how the union’s alleged failure to help him constitutes conduct that was arbitrary, discriminatory or in bad faith, contrary to section 74. The applicant also asserts that the union’s alleged lack of experience in the industry is “misleading”. Again, there are no details showing how the union’s lack of experience resulted in conduct that violated section 74.

[10]. The applicant has attached to his application what appear to be “print-outs” of various letters and memoranda that he appears to have written to himself, his union representative, his lawyer, or to various politicians. The Board has reviewed the contents of these print-outs. They specify various points of dissatisfaction with his former employer and its managers. However, they contain only a very small amount of information about the responding party union. There are, in fact, some references in the material to efforts by the union to help the applicant. There is also an allegation of lack of communication by Paul Tracey, a union representative but there are no details as to how that alleged lack of communication was arbitrary, discriminatory or motivated by bad faith.

[11]. The applicant appears to be using his section 74 complaint as a forum in which to complain about the conduct of the employer. That is not the purpose of a section 74 complaint. The allegations against the union in respect of lack of communication and failure to help him to resolve his many issues with the employer are simply bald assertions. I am satisfied that even if all of the allegations against the union are assumed to be true, the applicant has not established a prima facie case for a violation of section 74. In the circumstances, the Board considers it appropriate to dismiss this application.

[12]. The application is dismissed.

“Anthony Brown”

for the Board