Court File and Parties
1692-01-U Michael H. K. Scott, Applicant v. Power Workers’ Union CUPE Local 1000 - CLC, Responding Party v. Hydro One Inc., Intervenor.
1694-01-U Eugene Svarovsky, Applicant v. Power Workers’; Union CUPE Local 1000- CLC, Responding Party v. Hydro One Inc., Intervenor.
BEFORE: Mary Anne McKellar , Vice‑Chair.
DECISION OF THE BOARD; October 12, 2001
Decision
These are applications under section 96 of the Labour Relations Act, 1995 (“the Act”), alleging that the responding party trade union has contravened section 74 of the Act.
Both applications incorrectly identify Hydro One Inc. as a responding party. Hydro One Inc. Is an intervenor and the style of cause has been amended accordingly. The style of cause has also been amended to reflect the correct name of the responding party “Power Workers’ Union CUPE Local 1000 – CLC”
By letter dated October 9, 2001, the responding party requests that the Board dismiss the applications without a hearing on the basis that they are “meritless” and further adds:
It is clear from the response filed by the Power Workers’ Union that the Union did not breach the duty of fair representation and asks that these complaints be dismissed without the need for the Union to incur further expenses defended [sic] such meritless applications.
In its intervention filed October 11, 2001, the intervenor also takes the position that these applications should be dismised without a hearing.
The applications relate to the disposition of group classification grievances in which the applicants were grievors. Apparently the responding party failed to object to a settlement proposal that the intervenor placed before an arbitrator seized with determining those grievances. It is alleged that the settlement proposal discriminated as between active and retired employees, the latter of whom received lump sum payments in lieu of having their pensionable earnings adjusted. The settlement was incorporated into the arbitrator’s decision. The applicants now seek to have their pensionable earnings adjusted.
In its response, the responding party asserts, inter alia, that the applicants were two of 156 individual employees affected by the job challenges that were the subject of the arbitration award; that it concluded that the majority of them were unlikely to be successful; that the cost of litigating each case would be prohibitive; that it was in the institutional interest of the responding party not to oppose the settlement proposal. In addition, the responding party details all of the steps it took in preparing and presenting the grievances and in deciding not to oppose the settlement.
The Board construes the responding party’s October 9, 2001 letter as a request to dismiss the applications for failure to state a prima facie case. In the Board’s view, the circumstances of this case are very similar to those considered in Textron Automotive Interiors, (2095-98-U) (July 8, 1999), where the Board noted:
In determining whether an application discloses a prima facie case for the relief requested, the Board must have regard only to the allegations made in the application and accept those allegations as fact. The Board cannot rely on the explanation of the facts provided in the responses or the facts contained in the responses which may contradict the allegations made by the applicant when determining whether there is a prima facie case.
The Board in Textron Automotive Interiors, supra, went on to find that the allegations contained in that application had enough substance to preclude the Board from finding that the applicant had failed to make out a prima facie case for the relief requested in his application. The Board noted, however, that the union in that case had provided a detailed response setting out exactly what steps it had taken in its representation of the applicant, and commented on the likelihood that the application would ultimately succeed having regard to the response:
It appears to the Board that the applicant may well have difficulties in establishing that either the Union or Textron violated the Act in respect of his termination of employment, particularly in light of the detailed submissions made by the Union in its response. At this stage, when the Board is asked to dismiss a case for failing to show a prima facie case, it cannot do so if there is something in the applicant’s material that might give rise to a finding of a violation of the Act. Simply because the applicant will be faced with a reasonable and plausible explanation for the Union’s conduct which would provide a complete defence to the allegation that the Union violated the Act is not sufficient to permit the Board to dismiss the complaint at the request of a responding party on the grounds that it does not disclose a prima facie case.
As was the case in Textron Automotive Interiors, supra, while there is enough substance to the allegations continued in the within applications to preclude the Board from finding that they fail to make out a prima facie case, it appears to the Board that the applicants may have difficulty in establishing that the responding party violated the Act in respect of the handling of their grievances in light of the detailed submissions in the response.
Therefore, the Board hereby dismisses the responding party’s request to dismiss these applications without a hearing. These applications are referred to the Registrar to be scheduled for a consultation under section 99 of the Act.
This panel of the Board is not seized with these matters.
“Mary Anne McKellar ”
for the Board