2284-01-U Brian D. Ross, Applicant v. CUPE and its Local 2605, Responding Party.

BEFORE: Inge M. Stamp, Vice-Chair.

DECISION OF THE BOARD; December 18, 2001

1This is an application under section 96 of the Labour Relations Act, 1995 as amended (the “Act”) alleging that the responding party, CUPE Local 2605, has breached the provisions of section 74 of the Act.

2In paragraph 4 of the application (Form A-29) the applicant states:

WHAT IS YOUR COMPLAINT ABOUT?

4. (a) If your complaint involves the filing of a grievance under a collective agreement, please attach a copy of the grievance and any other documents related to it.

Filed 2 Grievances – One relating to Employment Standards, 1 relating to present contract.

(b) What was the outcome of the grievance?

Was not acted on.

3Paragraph 6 of the application requires the applicant to describe how the trade union’s activity violated section 74 of the Act. The applicant is directed to describe all of the facts that he or she intends to rely on in support of his/her claim that the union acted in a manner that was arbitrary, discriminatory or in bad faith in its representation of the applicant. It specifically directs the applicant to describe all of the facts on a separate piece of paper and further directs the applicant to “include all of the circumstances, what happened, where and when it happened, and the names of any persons said to have acted improperly.”

4The applicant’s narrative sets out what he views as the details of the union’s failure to act in good faith, and acting arbitrarily and discriminatory against its permanent part time employee members.

5The only reference to the union’s conduct is what the applicant was told by the union. The applicant states: “The union has told me that PPT employees were not supposed to be included, and they will not act on this. I feel there is no wording to disallow payment to PPT employees, then they should be getting paid. Not only should they be getting paid, but a union that negotiates a contract to try to prevent employees from getting paid fairly according to law and equal to the pay benefits of fulltime employees, is I believe, bargaining in bad faith on behalf of the PPT employees, and not representing their best interests.”

6The remedy requested by the applicant is set out in paragraph 7 of the application as follows: “Both grievances to proceed to arbitration if employer refuses to honour the law and the contract.”

7Attached to the application were two undated and unsigned typed documents which appear to be the two grievances referred to in the application. The documents are not addressed to anyone.

8One document states in part: “I wish to file a grievance concerning pay owing, not being paid out to me.” The document refers to Subsection 20.01 and 20.04 of the contract. The applicant’s name is typed at the bottom of the text.

9The second document states in part: “I wish to file a grievance for pay, as the Agency TCE has not compensated employees properly for stat holiday pay, (especially when the person has worked the stat holiday) for the last 5 years. I seek payment for all employees involved, who worked for TCE during the last 5 years, in the amounts owed to the employees according to the Employment Standards Act of Ontario.” There is no name shown on the document.

10The applicant attached a copy of a letter from CUPE Local 2605 dated October 25, 2001 and signed by the President of Local 2605. That letter appears to be in response to grievances filed by the applicant. However the letter does not make reference to the dates of the grievances.

11The responding party, Local 2605 submits this application should be dismissed for failing to make out a prima facie case. The responding party sets out its reasons for the preliminary objection in its response (Form A-30).

Decision

12Section 74 of the Act provides as follows:

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.

13In order to establish a breach of section 74 of the Act, an applicant must allege and then prove that the trade union has acted in a manner which is either discriminatory, arbitrary or in bad faith. It is not sufficient to merely state in an application that a union has acted in this manner. The applicant is obliged to describe in explicit terms the particular conduct on the union’s part which amounts to a breach of section 74.

14The responding party asserts that the October 25, 2001 letter was written in response to other grievances filed by the applicant. The applicant has not provided any dates as to when he filed the grievances attached to this application. With respect to the group grievance requesting payment for all affected employees for the last five years there are no names listed or any indication that the applicant is authorized by any employees to file this application on their behalf.

15The basis of this complaint under section 74 appears to be that the union decided not to proceed to arbitration with the applicant’s grievances. The applicant has not provided any details as to the dates of his grievance or grievances or any details on the circumstances that took place. There are no particulars as to who the applicant spoke to at the union about his grievance or grievances and when.

16Having reviewed the application and the documents provided by the applicant the Board finds that the applicant has failed to make out a prima facie case.

17This application is dismissed.

“Inge M. Stamp”

for the Board