0720-01-U John Pavich, Applicant v. International Association of Machinists and Aerospace Workers, Local 1120, Responding Party v. Ontario Power Generation Inc., Intervenor.
BEFORE: D. L. Gee, Vice-Chair.
DECISION OF THE BOARD; July 24, 2001
By decision dated June 27, 2001, Mr. Pavich was directed to file submissions with the Board no later than July 18, 2001 responding to the request of the union and employer that this matter be dismissed either because it was not filed in a timely manner or because, assuming all of the facts set out in the application to be true, it does not allege facts that would amount to a violation of section 74 of the Labour Relations Act, 1995 (the “Act”).
The Board is in receipt of submissions from counsel for Mr. Pavich dated July 18, 2001. Counsel for the employer filed submissions in response to Mr. Pavich’s submissions dated July 23, 2001.
The submissions filed on behalf of Mr. Pavich address the issue of whether the application was filed in a timely manner. No submissions were made with respect to the question of whether this matter ought to be dismissed on the basis that the facts pleaded do not establish a violation of section 74 of the Act.
As the Board stated in its June 27, 2001 decision, section 74 of the Act can only be breached by a union. It is the union’s conduct that is in issue in an application under section 74 of the Act.
A union will be in violation of section 74 of the Act if it acts in a manner that is arbitrary, discriminatory or in bad faith in the representation of an employee in the bargaining unit. There is no dispute that Mr. Pavich, at the relevant times, was a member of the union and that the union owed a duty of fair representation to him. On the facts asserted by Mr. Pavich, Mr. Pavich was laid off, his union filed a grievance on his behalf and then later decided not to pursue the grievance.
Section 74 requires a trade union to act fairly in the handling of employee grievances. Section 74 does not require a trade union to carry any particular grievance through to arbitration simply because an employee wishes that this be done. A trade union is entitled to consider the merits of the grievance and the likelihood of its success – that is, whether the facts upon which the employer relies can be successfully rebutted, whether the employer’s actions clearly establish a breach of the collective agreement and so on. Having regard to the financial resources required to take a grievance to arbitration, there are many cases where a union best represents the interests of its members by electing not to take a matter to arbitration.
In the present case, the employer responded to the grievance asserting that Mr. Pavich was laid off and not recalled as a result of lack of work. While Mr. Pavich asserts wrong doing on his employer’s behalf in connection with his lay-off (i.e. that he was laid off and not recalled as a result of his knowledge of his supervisor’s activities) he makes no assertions that would support a conclusion that the union chose not to pursue his grievance based on an improper motive. There are no facts pleaded in the application or subsequent submissions that would support a conclusion that the union elected not to pursue Mr. Pavich’s grievance as a result of some ill will it had towards him or for arbitrary or discriminatory reasons.
As a result, this matter is hereby dismissed on the basis that the allegations set out in the application and subsequent submissions, even if true, do not establish that the union has violated section 74 of the Act.
“D.L. Gee”
for the Board