Mary Cimpric v. Brewery General and Professional Worker’s Union Local 304
File No.: 1284-01-U Date: August 21, 2001 Ontario Labour Relations Board
Between: Mary Cimpric, Applicant v. Brewery General and Professional Worker’s Union Local 304, Responding Party v. Labatt Breweries Ontario, Intervenor.
Before: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD
1This is an application under section 74 of the Labour Relations Act, 1995, as amended (“the Act”) naming the applicant’s former employer (who intervened in this matter) and trade union as responding parties.
2Section 74 of the Act provides as follows:
- 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.
3Section 74 does not apply to employers. Accordingly, as the application is brought under section 74 and refers to no other sections of the Act, the style of cause as set out in the application is hereby amended to reflect that Labatt Breweries Ontario (“the intervenor”) is the intervenor in this matter.
4The responding party (“the union”) and the intervenor contend that the application fails to disclose a prima facie case of a violation of section 74. In deciding this issue, I must have regard only to the material facts alleged by the applicant and any further alleged material facts that are otherwise agreed between the parties or undisputed.
5The applicant was a temporary employee with the intervenor over the span of approximately 8 years during which she worked for periods of time, was laid off, and then was subsequently rehired for further temporary periods. She was a member of a bargaining unit for which the union had bargaining rights. In January 2001, the intervenor provided the applicant with an unfavourable performance review, and advised her that she would not be recommended for rehire. The applicant and the union appear to agree that there followed two face-to-face consultations between the applicant and union representatives. According to the applicant, at the first meeting, the union representative informed her that there was no action the union could take to change her circumstances. At the second meeting, according to the applicant, another union official gave her much the same message, but with no rationale. He did, however, offer to assist the applicant with respect to a claim for severance pay in the event that she wished to pursue that issue.
6The applicant appears to contend that notwithstanding the meetings she had with the union’s officials, they had pre-determined that they could not help her. She also appears to contend that what mattered most to her was correcting what she viewed as an unfair, flawed performance review, and that the union did nothing in that respect. The applicant suggests a motive for the union’s alleged disinterest: she claims to have previously raised concerns about foul language and sexual harassment on the part of co-workers, and she speculates that she had become somewhat of a nuisance to her union as a result.
7The applicant seeks by way of remedy unspecified “compensation”.
8The above summary constitutes the material facts alleged by the applicant. I am not prepared to grant the motions of the union and the intervenor to dismiss the application for failure to make out a prima facie case. The threshold for the establishment of a prima facie case is not an unduly onerous one, and, in my view, the applicant has achieved that threshold.
9Having said that, the responses filed by the intervenor and the union suggest a quite plausible answer to the application. They provided the Board with copies of the collective agreement provisions which appear to have some bearing in this matter. The applicant made no mention of those provisions which appear to confer considerable, if not absolute, discretion upon the intervenor to terminate or refuse to rehire temporary employees.
10The union and the intervenor also refer to alleged events preceding the performance review in January 2001. They say that the applicant received another sub-standard performance review during the summer of 2000 in which the intervenor indicated that it would not rehire the applicant. A copy of the performance review was provided with the intervenor’s response. The manager who completed the form indicated under “Line Manager’s Comments” that he did not recommend the applicant for re-hire. The union contends that it interceded on behalf of the applicant. In any event, the union and the intervenor allege that the applicant was given an opportunity to improve, and her temporary employment continued. The application does not refer to these pre-January 2001 events.
11The union’s response sets out further allegations that, for the most part, would appear not to be within the applicant’s knowledge. For example, the union says one of its officials met privately with the intervenor’s human resource manager (prior to first meeting with the applicant) and argued for the applicant’s reinstatement only to be told that the intervenor would not reconsider its decision. And after meeting with the applicant, the union contends that further attempts were made by its officials to convince the intervenor’s management to reconsider, but the intervenor remained adamant. In the end, the union claims that its officials turned their minds to the question of filing a grievance, but decided that, in the face of the collective agreement’s provisions regarding temporary employees, such a grievance would be futile.
12There are several disputes of fact between the applicant and the trade union concerning their interaction throughout the early part of 2001. It is unnecessary to set those out here, because regardless of the determination of those disputes, if the union and/or the employer can establish the allegations as I have summarized them in paragraphs 9, 10 and 11 above, the application will in all likelihood fail. Moreover, if, as the application seems to suggest, the application was filed for the purpose of restoring her damaged career reputation as a result of the intervenor’s January 2001 performance review, the Board will likely exercise its discretion not to inquire further into this matter, as there would appear to be no labour relations purpose in so doing.
13It is not clear on a reading of any of the pleadings in this file whether or not the applicant was in the midst of a temporary assignment when she was given her unfavourable performance review in January 2001. It is equally unclear as to when her employment actually came to an end. There was no termination letter filed. Perhaps the intervenor simply refused to rehire her once her final assignment ended. It is not possible to determine on the materials filed if the cessation of her employment resulted from unsuitability, or for disciplinary reasons. There appears to be a difference in the way the collective agreement would apply, depending on the circumstances of the applicant’s cessation of employment. These are matters that perhaps should be explored (together with the Board’s observations in paragraph 12 above) in a meeting with a Labour Relations Officer prior to any consultation that may be scheduled.
14The motions of the union and the intervenor to dismiss the application without a hearing are dismissed.
“Patrick Kelly”
for the Board