0503-01-U Rosanne Lee, Applicant v. International Association of Machinists and Aerospace Workers, Local Lodge 2792, Responding Party.
BEFORE: John Morgan Lewis, Vice-Chair.
DECISION OF THE BOARD; June 5, 2001
This is an application pursuant to section 96 of the Labour Relations Act, 1995, (the “Act”) in which the applicant alleges that the responding party has filed under section 74 of the Act. The responding party filed a response to the application in which it requests that the Board dismiss the application for failing to establish a prima facie breach of section 74 of the Act.
Section 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.
The standard that the Board has adopted in determining whether a union has violated its statutory obligations is well known within the labour relations community and is perhaps typified by the following comments from the decision of I.T.E. Industries Ltd., [1980] OLRB Rep. July 1001 at paragraph 19:
It is clear that in order to establish a breach of section 60 [now 74], a complainant must do more than demonstrate an honest mistake or even negligence. The union must have committed a “flagrant error” consistent with a “non-caring attitude”, or have acted in a manner that is “implausible” or “so reckless as to be unworthy of protection”. In other words, the trade union’s conduct must be so unreasonable, capricious, or grossly negligent, that the Board can conclude that the union simply did not give sufficient consideration to the individual employee’s concerns. Honest mistakes or innocent misunderstandings are clearly beyond these parameters and do not attract liability.
Having carefully reviewed the application, it does not appear that the applicant has pleaded any act or omission of the responding party which could possibly be a breach of section 74 of the Act.
Alternatively, the application may be premature. While the applicant has identified areas in which she is dissatisfied with respect to her employment and the manner in which she is being represented by the responding party, she has not requested the responding party to formerly act on her behalf with respect to those concerns.
This application is dismissed.
“John Morgan Lewis”
for the Board