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Home My WebLink About3069-04-U - Douglas 05-02-15 Douglas v. Ontario Public Service Union, 2005 CanLII 4277 (ON L.R.B.) Page I of 3 >> This document Citation: Douglas v Date: 2005.0215 Docket: 3069.04-U CanL!! 4277 LR-B.) Ontario Puh/ic Service Union, 2005 CanLlI 4277 (ON L R.B.) 3069-04-U lain Douglas, Applicant v. Ontario Public Service Union, Responding Party v. Ministry of Community Safety and Correctional Services, Intervenor. BEFORE: Corinne F. Murray, Vice-Chair DECISION OF THE BOARD; February 15,2005 I. This is an application pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c. I as amended (the "Act") filed December 7, 2005. The applicant alleges that the Ontario Public Service Union ("OPSEU") has breached its "duty of fair representation", contrary to section 74 of the Act, because of the withdrawal of the applicant's grievance on November 4, 2004 without speaking to him in advance and without having provided the applicant with an opportunity to convince OPSEU not to withdraw his grievance. The applicant compares the conduct of OPSEU with respect to this grievance with its decision to advance overtime grievances with respect to other members and concludes that his treatment was discriminatory and "uncaring". 2. Both the responding party and the intervenor request that the Board dismiss the application under Rule 46 on a prima facie basis. 3. The Board generally must hold a hearing to inquire into the complaint unless under Rule 46 the Board is satisfied that the application does not make out a prima facie case. Rule 46 provides: 46. Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons 4. Under Rule 46 the Board is required to assume all of the allegations are proved and therefore has no regard to the explanations or defences provided by the responding party. In order for an application to be dismissed under Rule 46 the Board must conclude that there is no reasonable likelihood that the applicants can succeed based on those allegations. (International Union &: Bricklayers and Allied Crafts workers, [1997] O.L.R.D. No. 1492, February 19, 1999; International Brotherhood of Boilermakers, Ship Builders, Blacksmiths, Forgers and Helpers, [2003] O.L.R.D. No. 965, March 25, 2003 and cases cited therein). Generally once the Board finds that the allegations have no reasonable likelihood of success, it is incumbent upon the Board to dismiss the application, thereby conserving the limited resources of the Board for matters that do require a hearing (.J Paiva Foods Ltd, [1985] OLRB Rep. May 690). http://www.canlii.org/on/cas/onlrb/2005/20050nlrb I 0914.html 9/30/2005 Douglas v. Ontario Public Service Union, 2005 CanLII 4277 (ON L.R.B.) Page 2 of 3 5. From the application 1 have distilled the following relevant facts. The applicant was terminated by the intervenor from his employment as a classified Recreational Officer. The reason given for this was "shortage of work. The applicant subsequently filed a grievance that was "accepted" by the responding party and thereafter was processed at the local level. On November 4, 2004 the responding party withdrew the grievance without having spoken with the applicant Attached to the application is a letter dated November 4, 2004 from the responding party to the applicant. The text of this letter is as follows: RE: grievance #2004-0234-0125 I have attempted to contact you by telephone but have been unsuccessfuL I am writing to advise you about your grievance relating to a non-union person performing the duties of a recreation Officer at Invictus Youth Centre. Your grievance, as well as several others about the same issue, was consolidated with an existing policy grievance about the use of non-ministry personnel perfOlming bargaining unit work better known as the Trillium grievance. During mediation discussions with the Employer, and working under the bargaining unit integrity policy grievance protocol ordered by Vie-Chair Ken Petryshen of the Grievance Settlement Board, the Employer notified the Union that they had posted and filled one part-time classified Recreation Officer position and ended the agency relationship with the individual that was performing these duties. In light of this progress, and in keeping with the protocol that we are working under, your grievance is being withdrawn in this matter. Should you have any questions or concerns above this letter, please do not hesitate to contact me directly. Laurie Chapman - OPSEU Head Office Inclusions Officer 6. The application does not challenge anything about the content of this letter. Rather the applicant makes two comparisons between the handling of this grievance and the other grievances involving other members of OPSEU. On the basis of this comparison the applicant requests that his grievances be expedited to arbitration. It is notable that the application does not indicate that the applicant attempted to make any contact with Ms. Chapman pursuant to her offer. Presumably the applicant decided to make this application instead. 7. The Board, supported by judicial decisions, has for more than two decades concluded that trade unions are not required to take a grievance to arbitration merely because the employee(s) want it to. (Marcia Robertson, [1990] OLRB Rep August 886, wherein the Supreme Court of Canada judgment in Canadian Merchant Service Guild v. Guy Gagnon, ]984~:anLll 11\. C?<;:.C), [1984] J S.C.R. 509 was cited as establishing the principle that an employee does not have an absolute right to arbitration and that the union enjoys considerable discretion; also see Perino Smith, [1991] OLRB July 912, relied on in Visteon Automatic, unreported decision dated, Feb. 21,2000, [2000] O.L.R.D. 288). 8. A corollary ofthis principle it that the union has the right to settle grievances so long as there is no element of arbitrariness, discrimination or bad faith to such settlement. The applicant does not allege any facts that show arbitrariness, discrimination or bad faith. The deduction the applicant made from comparing his grievance with two other situations not involving him does not establish a foundation for concluding that the responding party was arbitrary or discriminatory or acted in bad faith. If I had any doubt about that, the letter of November 4,2004 dispels it. http://www.canlii.org/onJcas/onlrb/2005/2005onlrb I 0914.html 9/30/2005 Douglas v. Ontario Public Service Union, 2005 CanLU 4277 (ON L.R.B.) Page 3 of 3 9. With regard to the applicant's alleged failure to communicate, it is noteworthy that where the Board has found a failure to communicate by a bargaining agent, in and of itself and without any other breach of the Act, to have been a breach of the Act, the remedy for such breach was a declaration only (see Paul Brunet, [2003J O.L.R.D. No. 444; applicant's reconsideration request rejected [2003J O.L.R.D. No. 1112). The content of the letter of November 4, 2004 shows that the failure to communicate was not a case of bad faith because Ms. Chapman indicates that she tried unsuccessfully to contact the applicant. Also, even if the applicant had been afforded the opportunities he thought that he had a right to, Ms. Chapman's reasoning shows that it would have been unlikely that the applicant would have been successful in changing the outcome. It appears that Ms. Chapman took a measured approach to the situation and explained it satisfactorily. Therefore it is likely that the Board would not even be inclined to make any declaration with respect to the quality of communications between the responding party and the applicant 10. For all these reasons, the application is dismissed. "Corinne F. Murray" for th e Board [8PQt.ltCanLlI] rC9_Qc:lit:iQnsQfJJj;J:.~] [8dvqnC~~$eClrGb] [Help] [franQCii$] [priY<:lCY PQJiQY] LMElili{lgJjStSJ [TechnlGfl1Libmry] [Contact CElnLIU by LeXUM kH Ell", P8cknation <DRaw SOGIUJi;:G 1J1 Gi.\m"da \,.../ http://www.canlii.org/on/cas/onlrb/2005/20050nlrb 1 0914.html 9130/2005