Ontario Labour Relations Board
File No.: 0275-01-U Date: September 14, 2001
Between: Paul Koshty, Applicant v. CAW, Local 1285, Responding Party v. DaimlerChrysler Canada Ltd., Intervenor.
Before: Inge M. Stamp, Vice-Chair.
DECISION OF THE BOARD
1This is an application under section 96 of the Labour Relations Act, 1995 (the "Act") alleging a violation of section 74 of the Act.
2The responding party, CAW Local 1285, and the intervenor, DaimlerChrysler Canada Inc. both contend that this application should be dismissed by reason of the applicant's delay in bringing this application. The responding party and the intervenor further submit that the applicant has not any material facts which, even if assumed to be true, would establish a breach of the Act by the union or the company.
3The following two decisions of the Board discuss the Board's consideration of the question of delay: William Holden Switzer (unreported decision dated August 7, 1997) and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46 (unreported decision dated December 12, 1997). In William Holden Switzer, the Board said:
"As a general matter, where the delay is less than one year, the onus is on the responding party to demonstrate actual prejudice (or perhaps some other good reason) sufficient to justify dismissing a complaint without a hearing on the merits. But where the delay is more than one year, the onus is on the applicant to provide a satisfactory explanation for it. At that point, it becomes incumbent on the applicant to provide a good reason for the Board to exercise its discretion in favour of entertaining the application or complaint."
4In this case the applicant was dismissed on November 30th of 1992. A grievance was filed on behalf of the applicant by the responding party on January 16, 1993. A copy of the grievance was provided to the Board by the union. The step 2 response by the company states as follows:
"The employee failed to report for work after receiving both verbal and written instructions to do so. Subsequently his employment was terminated in accordance with the terms of contract. In addition the grievance was not filed within contractual time limits. Therefore the grievance is denied."
5The applicant sets out in some detail his dissatisfaction and frustration relating to the termination and his attempts to obtain benefits from Workers Compensation. The applicant refers to his attempts to have his grievance processed and to obtain assistance from the union with respect to his WCB claim. It appears that the applicant was unsuccessful in obtaining any benefits for some years. The applicant explains that the delay in bringing this application under section 74 was as a result of the length of time it took to obtain benefits from WCB. The Board notes that the applicant has not provided the Board with any copies of his claims or correspondence with WCB with respect to the assistance he was trying to obtain.
6Most of the applicant's allegations and statements are his view and belief of the union's and WCB's lack of concern for his particular situation. In the applicant's own words he believes he was "hung out to dry and sold down the river by the union and Chrysler Canada". There are no specific particulars of who refused to do what for the applicant.
7The remedy the applicant requests is to order the union and Chrysler Canada to:
"offer to me a letter of apology and to offer me back my full job, benefits and seniority, back at Chrysler Canada, or a company buy-out package that I can accept and be happy with, to make wrongs right for me in this case".
Decision
8Having regard to the submissions of the parties, the Board exercises its discretion not to inquire into the complaint because of the applicant's excessive delay. The applicant was terminated November 30, 1992. The instant complaint was filed April 30, 2001. The applicant's reasons for the delay, namely that it took this long to sort out his WCB claim is not persuasive. The Board notes as well that the applicant has provided no documents to the Board relating to the WCB issue. The applicant should have raised his concerns about the quality of his union representation long before the year 2001. It is simply too late to make this complaint eight or nine years after his termination.
9Section 74 requires a trade union to act in a manner that is not arbitrary, discriminatory or in bad faith in its representation of employees in the bargaining unit. In view of the Board's decision with respect to the timeliness issue it is not necessary to determine whether the allegations establish a prima facie case. However the Board would make the following comments. The allegations lack a specificity with respect to what exactly the applicant asked the union to do on his behalf and their response to his requests. The remedy the applicant requested is not the typical form of relief sought or granted even in successful section 74 cases. The remedy in such cases, if a violation of section 74 is found, is to direct the union to take the matter to arbitration. If the grievance were ultimately successful the applicant might obtain the relief requested. For example the Board has no authority under section 74 of the Act to direct the company to offer the applicant a job or a buy-out package.
10This application is dismissed.
"Inge M. Stamp"
for the Board