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; June 27, 2001
This matter is an application pursuant to section 74 of the Labour Relations Act, 1995 (the “Act”). In support of his application, Mr. Pavich asserts that his supervisor became aware that Mr. Pavich knew that the supervisor was stealing company property and accordingly invoked his power to have Mr. Pavich terminated. Mr. Pavich further asserts that the union and/or the employer purposely laid him off and failed to recall him when work was available in order to rob him of his seniority and recall rights.
The union and the employer have requested that this matter be dismissed on the basis of delay and/or that it does not set out facts that establish a breach of section 74 by the union.
A grievance was filed on Mr. Pavich’s behalf by the union. The union informed Mr. Pavich that it would not be pursuing the grievance on February 17, 2000. This application was filed on June 4, 2001, more than 15 months after Mr. Pavich was aware that the union would not be advancing his grievance.
The Board’s approach to dealing with issues of delay is summarized in William Holden Switzer, August 7, 1997, unreported, as follows:
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 its merits. 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 an applicant to provide a good reason for the Board to exercise its discretion in favour of entertaining the application or complaint.
The employer asserts prejudice in the form of diminishing memories and recall. The union asserts prejudice as a result of the delay in that the individual responsible has now retired and is not readily available.
A delay of 15 months is extremely lengthy. According to the Board’s approach in William Holden Switzer, supra, the onus is on the applicant to explain the delay and satisfy the Board that any prejudice to the employer and union caused by the delay can be remedied.
Further, while Mr. Pavich asserts that the employer acted with improper purpose in connection with Mr. Pavich’s lay-off, there are no particulars set out in the application that go to establishing an improper motive on the part of the union. Section 74 can only be breached by a trade union. Accordingly, it would also appear that this application should be dismissed as, assuming all facts as set out therein to be true, those facts do not establish that the union acted in a manner that is arbitrary, discriminatory or in bad faith.
Mr. Pavich is hereby directed to file submissions with the Board and deliver such submissions to the other parties no later than July 18, 2001 at 5:00 p.m. setting out why this application should not be dismissed on the basis of delay or because it fails to set out facts which establish a breach of section 74 by the union. Failing receipt of any submissions by Mr. Pavich by 5:00 p.m. on July 18, 2001, this matter will be deemed to be automatically terminated.
I will remain seized for the purpose of dealing with any submissions filed.
“D.L. Gee”
for the Board