HomeMy WebLinkAbout3430-06-U - Lucas 07-05-07
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ONTARIO LABOUR RELATIONS BOARD
3430-06-U Jon Lucas, Applicant v. Ontario Public Service Employees Union,
Responding Party.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; May 7,2007
1. This is an application alleging that the responding party trade union ("the union" or
"OPSEU") has violated its duty of fair representation under section 74 of the Labour Relations
Act, 1995, as amended ("the Act").
2. Section 74 of the Act reads:
74. 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.
3. The union contends that the application fails to disclose a prima facie case of a
violation of section 74 of the Act. That is, the union contends that, even if the applicant's
allegations of fact are assumed to be true and provable, they do not disclose a breach of the
union's duty of representation. Moreover, OPSEU points out that the applicant has not requested
any remedies.
4. The complaint deals with the union's handling of the applicant's grievance or
grievances with respect to statutory holiday pay. The grievances were filed about a month before
the applicant took early retirement. They proceeded to arbitration, apparently together with
similar grievances of other employees as a result of an agreement between the union and the
employer to consolidate all the disputes before the same arbitrator. The union and the employer
entered into negotiations concerning a settlement. The union has decided to accept the
employer's offer, which confers upon the applicant a settlement of $300. Three of the other
grievors gained less than the applicant, and three stand to gain more.
5. It is not clear from the application whether or not the applicant takes issue with the
union's decision to enter into the settlement, or with the union's alleged failure to return his
phone calls and to respond to his request after the arbitration process had commenced to have his
dispute heard separately from the other employee disputes. It may be that the applicant is
concerned with all of these things.
6. In order to deal with the union's preliminary motion to dismiss the application on a
prima facie basis, it is important that the Board be clear concerning the allegations of fact made
by the applicant, particularly regarding the settlement if he has concerns about it. Therefore, the
applicant is directed in paragraph 9 of this decision to clarify the complaint.
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7. The more significant question, in my view, is whether there is any labour relations
purpose in inquiring further into this matter even if the applicant satisfies me that he has a prima
facie case against the union. Generally, unions are entitled to settle grievances on the terms they
consider appropriate, so long as the reasons for those decisions are not arbitrary, discriminatory or
in bad faith. The applicant states that because he took early retirement a month after his
grievances were filed, he stands to gain less than other employees (though it appears he has done
better under the settlement than three other co-workers). He says that his union representative
told him that his remedies were limited to the period after the date of the grievances. In other
words, the applicant's only recourse was in respect of a one-month window of employment, due
to the fact that he had retired shortly after complaining about his holiday pay. It is difficult to see
how the union's view of the applicant's remedial entitlement was arbitrary or discriminatory, or
disclosed bad faith, which further begs the question: what was objectionable about the union's
decision to settle the applicant's grievances in the manner it did?
8. In these circumstances, I cannot see the utility in continuing to inquire into this matter.
However, the applicant ought to be given an opportunity to explain that there is a meaningful
labour relations purpose in inquiring further into his complaint (particularly with respect to the
settlement), and providing his reasons why the Board should exercise its discretion under
subsection 96(4) to hold a consultation or hearing in this matter.
9. With respect to OPSEU's prima facie motion, the applicant is directed to clarify in
writing the facts he relies upon in support of his contention that OPSEU breached section 74 of
the Act. Secondly, the applicant is directed to provide his written submissions concerning the
labour relations purpose in inquiring further into his complaint. All of the applicant's written
submissions are to be provided to the Board, to the union, and to the employer, Family &
Children's Services, on or before May 22, 2007, failing which the application may be dismissed
without further notice to the parties.
"Patrick Kelly"
for the Board