Ontario Labour Relations Board
1217-01-U Emmanuel Abégunrin, Applicant v. Canadian Union of Public Employees, Local 1, Responding Party.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; August 22, 2001
1This is an application pursuant to section 96 of the Labour Relations Act (the “Act”). The applicant complains that the responding party (the union) has breached section 74 of the Act. Section 74 provides:
- 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.
2The applicant alleges that the union has not filed two grievances on his behalf, which he sent to union representatives in draft form in April 2001. The applicant submits that he has called the union to remind them, but despite one message being returned, he has not had any contact with the union.
3The applicant alleges that the union “…failed to perform its obligatory duty” to him to process his grievances. The union has responded to the complaint, setting out its own view of the matters. But the union has also requested that the Board dismiss this application because it fails to make out a prima facie case. The union submits that even if the Board accepted all of the applicant’s allegations, the Board would not conclude that the union had breached its duty of representation to him.
4Rule 46 of the Board’s Rules of Practice permits the Board to dismiss an application when it does not make out an arguable case for the remedies sought:
- Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.
5In International Union of Bricklayers and Allied Craftsmen, [1999] O.L.R.D., the Board described the considerations it applies in determining whether or not the applicant has made out a prima facie case for the remedies sought:
The test that a responding party must meet in order to persuade the Board that an application should be dismissed on the basis that there is no prima facie case established in the application is, in my view, a strict one. An applicant should not be deprived of the opportunity to have a hearing on the merits of his or her application simply because the argument is novel or the circumstances giving rise to the application are unusual. In Caravelle Foods [1983] OLRB Rep. June 875 the Board characterized the test a responding party must meet in seeking to have an application dismissed on a prima facie motion in the following terms at page 881:
The words prima facie case in section 71 (now Rule 46) are meant to allow the dismissal of a case without a hearing where the allegations are insufficient to render reasonable or arguable a conclusion that the Act has been breached.
In J. Paiva Foods, [(1985) OLRB Rep. May 690], the Board set out the test at page 691 as follows:
The Board's discretion to dismiss a complaint on the grounds that it does not disclose a prima facie case should only be exercised in the clearest of cases, that is, when the Board is satisfied that there is no reasonable likelihood that a violation of the Act can be established on the facts as alleged.
Where, however, the Board is satisfied that the responding party bringing the prima facie motion has met the burden imposed, it is incumbent on the Board to dismiss the application, thereby conserving the limited resources of the Board for matters that do require a hearing. As Mr. Justice Grange said in Shaw v. McLeod, 1982 CanLII 2140 (ON HCJ), 35 O.R. (2d) 641:
I concede that on this motion if, after a careful review of the law, the Court determines that he [the Plaintiff] cannot possibly succeed, then his action should be mercifully dispatched.
6The applicant complains, essentially about two things. He complains that the union has not processed his grievances, and he complains that the union has not communicated with him. No trade union is obliged to process all of the grievances that employees wish to launch. The trade union is the representative of all employees in the bargaining unit, with a responsibility to manage its resources prudently, and with due consideration to its credibility and relationship with the employer. A union’s decision not to advance a grievance, without more, does not establish a prima facie or arguable breach of the Act.
7The union has responded that the first grievance the applicant wants processed seeks repayment of educational expenses. The union responds, first, that reimbursement of educational expenses is not a matter covered by the collective agreement, and therefore, cannot be subject matter of a grievance. If the union is correct, then a decision by the union not to process the grievance would be reasonable. A trade union is not obliged to process a grievance seeking a remedy that is not available under the collective agreement.
8The applicant’s second grievance reads:
The Union grieves that Toronto Hydro employs discriminative employment practice that discriminates against Emmanuel Abégunrin, which puts him in occupational ghetto.
9The union responded that it does not consider it appropriate to process a grievance that is lacking in details of specific incidents. Further, the union responds that contrary to the applicant’s allegations, efforts have been made to contact him, and seek details, but the applicant has declined to speak with the steward assigned to collect that information.
10I can certainly appreciate the union’s reluctance to process such a generalized, and quite inflammatory grievance. The applicant is making serious allegations of discrimination against his employer, and the union owes a duty to the applicant, to other employees in the bargaining unit, not to mention to the employer with whom it must maintain an ongoing relationship, to carefully set out in detail what facts it relies upon. In my view, it would be highly imprudent for the union to process the grievance in its present form.
11The applicant’s second complaint is that the union has failed to communicate with him. I understand that the union disputes that allegation, but at this point in the proceeding, I am focusing only on whether or not the applicant has made out a prima facie case that the Act has been breached. In the past, the Board has concluded that a trade union’s consistent failure to communicate with employees about matters of concern can amount to arbitrary conduct. However, in this case, any such allegation would be entirely premature. The applicant gave the draft grievances to the union in April 2001. He complained to the Board on July 17, 2001, about 3 months after his first communication to the union. It is simply too early to call on the Board. The primary mechanism for dealing with workplace disputes is in the workplace, through the grievance and arbitration procedure. It is not the Board’s role to intervene as soon as one side or another thinks events are not moving fast enough, or in a specific direction.
12I dismiss the complaint, because it is premature. I urge the applicant to review the union’s response, consider it, and then to work with the union to advance legitimate workplace concerns, if they exist.
“Mary Ellen Cummings”
for the Board