2276-00-U Nazzareno Logiacco, Applicant v. UFCW Canada Locals 175 and 633, Responding Party. v. The Great Atlantic & Pacific Company of Canada, Limited, Intervenor.
BEFORE: Anthony Brown, Vice-Chair.
DECISION OF THE BOARD; May 2, 2001
1This is an application pursuant to section 96 of the Labour Relations Act, 1995 (“the Act”), alleging violation of section 74 of the Act.
2Section 74 pertains to the representation provided by a union. It does not pertain to the conduct of an employer. The section 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 applicant’s complaint pertains to the responding party union’s decision not to proceed with a grievance to arbitration in 1999. It also pertains to other events that occurred in 1994 and 1996.
4The responding party union has filed a detailed response setting out a chronology and explanation of its dealings with the applicant, particularly with respect to its withdrawal of his termination grievance. The applicant was invited to appeal the union executive’s decision not to proceed to arbitration and attended a union meeting for that purpose.. It appears that the applicant was terminated by the employer for theft and now seeks to “clear his name”. The intervenor has also filed a detailed response.
5The union submits that the application should be dismissed on the ground that it fails to disclose a prima facie case. In respect of the complaint about events that occurred in 1994 and 1996, it submits that the Board should decline to hear these complaints on the ground of undue delay.
6An application under section 96 alleging violation of section 74 must provide details about how the union is alleged to have acted in a manner that is arbitrary, discriminatory or in bad faith in respect of the applicant. All the material facts relied upon by a party must be pleaded with particularity. The Board has the discretion not to hear an application that fails to disclose a prima facie case, i.e. an application that would not likely succeed even if the material facts alleged by the applicant were assumed to be true. It also has discretion not to hear a matter if there has been undue delay in filing the application. Clearly, events transpiring in 1994 and 1996 are well beyond the normal period for filing an application, which is usually measured in months, not years.
7Before the Board considers whether or not to schedule this application for a consultation, or to dismiss it without a consultation, the applicant should have the opportunity to reply to the submissions filed by the responding party and by the intervenor. The applicant’s reply must state which of the assertions of the responding party and intervenor he does not agree with. The applicant must also specify what remedies he expects from the Board in the event that he is able to establish his complaint. He should be aware that the purpose of a section 74 hearing is not to “clear” his name of the theft allegations and the Board will not inquire into the applicant’s guilt or innocent of theft if this application proceeds. The applicant is also directed to provide an explanation, if any, as to why he delayed bringing an application until November 1, 2000 in respect of events transpiring in 1994 and 1996.
8The applicant is directed file his reply with the Board (with copies to the other parties) by no later than May 31, 2001. The Board will then consider the matter further and may dispose of the application without a consultation or oral hearing.
“Anthony Brown”
for the Board