1845-00-U Mary-Anne McCormack, Applicant v. Amalgamated Transit Union, Responding Party.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; July 10, 2001
This is a complaint pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”). The applicant alleges that the Amalgamated Transit Union has violated its duty of fair representation to her.
In its response, the Amalgamated Transit Union (the ATU) indicated that it is not a properly named party, because it does not hold bargaining rights; local unions hold bargaining rights. The ATU submits that because it is not a party to the collective agreement under which the applicant worked, it could not possibly have engaged in any conduct that would give rise to a breach of the duty of fair representation. The applicant responded that she had been unable to locate the address of her local union, and when she called the international office, she was refused that information. The applicant later received a union publication from which she found the correct address for the local, and “forwarded all the information to Mr. Kinnear”, at an address in Whitby.
However, despite the repeated requests by the ATU that the Board review the file, note that the local had not received formal notice from the Board about the proceedings, and consider whether the applicant had made out a prima facie or arguable case that there had been a breach of the Act, the Board simply scheduled the matter for a consultation on July 26, 2001. It is apparent from the Notice of Hearing that only the ATU, not the local, has received notice of consultation.
Although it would have been preferable for the Board to have responded to the concerns of the ATU earlier and to have intervened to help the parties sooner, it is clear to me that holding a consultation at this time would not be useful. There is a significant risk that a necessary party to the proceedings will not be there. The Board hereby adjourns the consultation scheduled for July 26, 2001.
In the event that the ATU and/or the local union satisfy the Board that the ATU does not hold relevant bargaining rights, the Board will remove the ATU as a responding party. For the moment, however, all the Board has before it is an assertion by the ATU that it does not hold bargaining rights and has no responsibility for collective bargaining. To this point, the ATU has not indicated which entity has the bargaining rights.
While the ATU may not ultimately have an interest in this application, I anticipate that it or its counsel may be able to assist the Board in identifying the local union that does have bargaining rights. The ATU is directed to provide the Board with the identity of the local union it believes holds the bargaining rights, with contact information, by no later than July 20, 2001. The ATU is further directed to deliver to the local a copy of the relevant pleadings, correspondence and a copy of this decision. However, thereafter the Board relieves the ATU of the obligation of delivering material to the local union on behalf of the Board.
The local union may deliver and file a response to this application by no later than July 27, 2001.
I now turn to the merits of the dispute. The applicant writes that she was employed by Your Choice Shuttle in Orillia. The employees were advised that because the employer lost a contract, the Orillia office would be closed on July 24, 2000. The applicant claims that the employer assured the employees that all benefit claims would be honoured until the end of their employment. However, when the applicant filed a claim for dental work that was undertaken while she was still employed, the insurer rejected it on the basis that her coverage had been terminated. A further check with the insurer indicated that coverage had been terminated on May 1, 2000.
The applicant’s complaint against her union is that when she and fellow employees contacted the union to find out what happened and seek their assistance “The union never returned our calls or checked into this for us”. As a remedy, the applicant seeks to be paid $591.00 for the dental work claim that the insurer rejected.
If the applicant can establish that the union “did nothing” when she complained, the Board may be satisfied that the union has breached its duty of fair representation. The Board has in the past found that a non-caring attitude can amount to arbitrary conduct. However, even if the Board were to reach such a conclusion, it is highly unlikely that the Board would order the union to reimburse the applicant’s dental fees. Trade unions are not guarantors of the benefits that employers are obliged to provide under the collective agreement. Or put another way, the employer’s failure or refusal to pay does mean that the union has to pay for it. When an employer fails to meet its responsibilities under the collective agreement, the union is obliged to investigate and take whatever reasonable action it feels is appropriate. And in some circumstances, no action may be the best course. The applicant wrote that she was advised by a representative of the employer that it could not afford to pay the benefit premiums. It may be that the employer was in serious financial difficulties and the union, upon investigation, concluded that there was no point to filing a grievance because there was no reasonable prospect of recovering anything. That may be a reasonable conclusion for the union to have made. But the applicant is entitled to some explanation. I am hopeful that once the union who holds the bargaining rights has an opportunity to formally know of this proceeding, a meeting can be arranged with the applicant and an explanation supplied.
This matter is referred to the Manager, Field Services, for continued efforts to bring this matter to resolution.
This panel of the Board is not seized, but if it is convenient, the Registrar is directed to place further procedural issues before me.
“Mary Ellen Cummings”
for the Board