Court File and Parties
File No.: 1230-99-U Date: 2001-07-19 Ontario Labour Relations Board
Applicant: Vince Tassone Responding Party: Ontario English Catholic Teachers’ Association
Before: Laura Trachuk, Vice-Chair
Decision of the Board
1This is an application under section 96 of the Labour Relations Act, 1995 (the “Act) alleging that the responding party (referred to as the “Association”) has violated section 74. The Association has asked the Board to exercise its discretion not to proceed with this matter as the application does not disclose facts upon which the Board could find that it had violated the Act. It also claims that the Board does not have the jurisdiction to award the remedies requested. The Board asked the applicant to respond to the Association’s request and that response has been received and reviewed.
2After reviewing the materials filed by the applicant, the Board has decided to exercise its discretion not to inquire further into this matter. The applicant was dissatisfied with the mandatory long term disability (LTD) coverage included in the collective agreement between the Association and employer as he felt it was too expensive. The agreement provided that he could opt out if he could show that he had comparable coverage. The applicant did find less expensive coverage which he considered comparable and attempted to opt out. At first his request was refused. He filed an appeal with respect to that decision and his request was ultimately granted. However, his request was not granted until after he filed this complaint and he wishes to pursue this application to recover the cost of premiums he paid for the year before his appeal was successful as well as his costs of this application and punitive damages. He also appears to seek some kind of order directing that there be an independent arbitrator to determine whether other individuals can opt out.
3Section 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, employees 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.
4The Board has interpreted section 74 to mean that a trade union may not represent a member of the bargaining unit arbitrarily, discriminatorily or in bad faith vis a vis the employer. The applicant has not pleaded any fact upon which the Board could find that the Association had violated section 74. None of the actions complained about relate to the Association’s actions in representing the applicant vis a vis the employer except that the applicant claims that the Association has included a mandatory LTD plan with expensive premiums as part of the collective agreement it negotiated. The applicant says there were less expensive plans available. However the Board could not find that including a LTD plan in a collective agreement which has been ratified by the membership, or exercising the authority to change that plan during the term of the agreement, was representing the bargaining unit members arbitrarily, discriminatorily or in bad faith. Section 74 does not require a trade union to negotiate the most advantageous benefits for its members. Such matters are considered to be internal union concerns for which the members have other remedies. For the same reason, the Board could not, and would not, impose a process for the determination of whether a member may opt out of the LTD plan. In any case, the applicant has now been permitted to opt out of the plan. That was the main object of his original application. It would not be appropriate to direct that his premium payments be returned to him as the Association did not violate the Act in having a plan which required such premiums. In any case, he was covered by the LTD plan while he paid the premiums and therefore received the benefit he was paying for. The Board has said on numerous occasions that even if it has the jurisdiction to order costs, which is highly doubtful, it is not appropriate to do so in labour relations disputes. There would be no value in embarking upon litigation to hear the applicant’s complaint about the behaviour of members of the Association executive or the Board of Trustees of the plan if no remedy would result from such a process.
5For all of the above reasons the Board has decided not to inquire further into this complaint. This application is therefore dismissed.
“Laura Trachuk”
for the Board