Ms. Barbara Gasperian v. Bakery, Confectionery, Tobacco Workers and Grain Millers Int’l. Union, Local 264
3439-00-U Ms. Barbara Gasperian, Applicant v. Bakery, Confectionery, Tobacco Workers and Grain Millers Int’l. Union, Local 264, Responding Party v. Canada Bread Company Limited, Intervenor.
BEFORE: Anthony Brown, Vice-Chair.
DECISION OF THE BOARD; April 25, 2001
1This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging violation of section 74.
2Section 74 states:
- 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.
3The responding party and intervenor both submit that the application should be dismissed because it does not disclose a prima facie case and because the remedies sought are not within the jurisdiction of the Board.
4The Board has discretion as to whether or not to hear an application under section 96.
5The applicant states that she retired at the intervenor’s mandatory retirement age of 65 years. The applicant asserts that she is entitled to certain benefits under the Canada Pension Plan, and to severance payment under the Employment Standards Act. It appears that issues concerning her vacation pay were resolved in 1999 with the union’s assistance.
6The applicant’s complaint states:
"The CPP office, the Toronto Dominion Bank, the Union and the Company are refusing to pay the 65 year old entitlement on a CPP claim for a CPP payment to the applicant Ms. Barbara Gasperian."
7The remedies sought by the applicant are:
"Order: The CPP office, the Toronto Dominion Bank, 5555 Keele St., North York, Ontario, the Union and the Company should approve my claim for CPP payment to the applicant Ms. Barbara Gasperian. Violation: Re: Employment Standards Act, Severance Pay. The Company does not pay severance pay when an employee is terminated."
8The applicant was deemed to have retired at age 65 under the collective agreement, Article 11, on December 3, 1999. There is no indication that she requested her union, in a timely fashion, to file a grievance in respect of her mandatory retirement or her severance pay. It appears that the applicant may have attempted to file a grievance in February or March, 2001, (in conjunction with this application) but there is clearly no obligation on the union or employer to proceed with a grievance purportedly filed over one year beyond the date of the applicant’s retirement.
9There are two compelling reasons why the Board should decline to hear this application. First, it appears that the applicant is under a genuine misunderstanding as to what a section 74 complaint is about. It is not a means by which the intervenor or a bank or the Federal Government can be forced to pay CPP benefits. That is not within the Board’s jurisdiction. Nor can the Board make an order under the Employment Standards Act pursuant to this application.
10Secondly, the application and the applicant’s reply submissions filed March 1, 2001, do not disclose how the responding party union is alleged to have contravened section 74 by acting in a manner that was arbitrary, discriminatory or in bad faith. There are quite simply no facts asserted that, even if assumed to be true, establish a prima facie case of a violation of the Act.
11For the forgoing reasons, the Board hereby declines to inquire further into this application. The application is dismissed.
"Anthony Brown"
for the Board