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HomeMy WebLinkAbout3569-06-U - Alves 07-07-09 ONT ARID LABOUR RELATIONS BOARD 3569-06-U Vitor Alves, Applicant v. Ontario Public Service Employees Union, Responding Party v. Municipal Property Assessment Corporation, Intervenor. BEFORE: Corinne F. Murray, Vice-Chair. DECISION OF THE BOARD; July 9, 2007 1. This is an application pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1 as amended (the "Act") dated February 15, 2007. The applicant alleges that the responding party has breached its duty of fair representation contrary to section 74 of the Act in its handling of the applicant's grievance of March 3, 2003. The responding party ("OPSEU") requests that this application be dismissed without a hearing or consultation because of the applicant's delay and because prima facie his complaint does not establish any breach of the Act. Request for Dismissal under Rule 46 and Delay - Principles 2. The Board has discretion under section 96 of the Act to determine whether it is appropriate to inquire into an application, including consideration of whether there has been undue delay in bringing the allegations forward and whether a hearing is necessary to determine if there has been a breach of section 74 of the Act. 3. Rules 5 and 39 of the Board's Rules of Procedure address the two objections raised by OPSEU; the former supports the requirement for promptness in making allegations and the latter supports the assessment of the content of the application on a prima facie basis, regardless of whether there is delay. Rule 5 provides: 5.1 Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly. Rule 39 provides: 39.1 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. While there are no hard and fast rules of what time interval constitutes "delay", a lapse of time of approximately six months, is not normally regarded to be long enough to call for an explanation from the applicant. "Extreme" delay may lead to the Board refusing to hear the complaint, however, the conclusion that delay is "extreme" is not simply a function of time alone. The Board has indicated in its seminal case on this subject (Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420) that a number of factors must be taken into account to determine whether it should refuse to hear a complaint because of "delay", namely, the length of - 2 - the delay and the reason for it, the time when the complainant became aware of the alleged statutory violation, the nature of the remedy claimed and whether the delay would be prejudicial to the parties because of unavailability of witnesses, fading recollections and other deterioration of evidence necessary to a full defence. 5. The longer the delay, the more important the factors relating to explanation and the prejudicial effect of the delay. (See Luciano D 'Alessandro, [1983] OLRB Rep. Oct. 1699 and J.L. Livitski, [1983] OLRB Rep. Nov. 1861). The shorter the time interval, the less likely it is that the responding party will be able to persuade the Board that there has been prejudice sufficient to cause the Board to refuse to hear the matter altogether. Even if the Board does not consider that there is prejudice to the responding party and/or intervening employer sufficient to refuse to hear the matter, some or all of the prejudicial effect of the passage of time may be addressed at the remedial stage, i.e., limiting recovery of retroactive damages or similar time- sensitive remedy. (See Caravelle Foods, [1983] OLRB Rep. June 875 where the Board distinguished between "extreme" delay and other delay that can be addressed through adjustments to the remedy granted). 6. The Board is pennitted to consider whether the application itself contains any allegations that would arguably constitute a breach of the Act and, therefore, call for a hearing or consultation. Rule 39 requires the Board to assume all of the allegations are proved. The Board has no regard, at this point, to the explanation or defences provided by the responding party. In order for the Board to dismiss an application under Rule 39, the Board must conclude that there is no reasonable likelihood that the applicant can succeed based on those allegations (International Union & Bricklayers and Allied Craftsworkers, [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). 7. The onus is on the applicant making a complaint of breach of section 74 to allege some evidence of bad faith, arbitrariness and/or discrimination at the application stage. It is generally insufficient for an applicant to simply complain that the union did not file a grievance or take the grievance to arbitration because it is well established that a union is not obliged to carry grievances forward simply because the aggrieved employee wants it to (Re Catherine Syme, [1983] OLRB Rep. May 775; Re Dominic Gattellaro, [1987] OLRB Rep. June 844; Marcia Robertson, [1990] OLRB Rep Aug. 886, wherein the Supreme Court of Canada judgment in Canadian Merchant Service Guild v. Guy Gagnon, [1984] 1 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 Rep. July 912, relied on in Visteon Automatic, unreported decision dated February 21, 2000, [2000] O.L.R.D. 288). Factual Background Based upon the Application Alone 8. The applicant is an employee of the intervenor Municipal Property Assessment Corporation ("MP AC"). Prior to accepting an offer of permanent employment with MP AC commencing November l, 2002, Mr. Alves had been employed on an individual contract basis with MP AC and, prior to that, with the Ontario Property Assessment Corporation ("OP AC"). His first contract with OPAC indicates that his starting date was April 25, 2000. A Record of - 3 - Employment ("ROE") issued to Mr. Alves by MP AC on or about April 4, 2002 indicated that MP AC considered that his first day worked was April 25, 2000. 9. Mr. Alves seeks, through his application, to have his seniority date "revised to April 25, 2000" and to be granted all the pay increases, vacation and benefits, together with interest thereon, that he did not get as a result of some other unspecified date being his seniority date. 10. He likens his situation to those employees of MP AC who formed a group of grievors to which a settlement reached by OPSEU on November 1, 2002 applied. The relevant part of the settlement, for the purposes of Mr. Alves and his application, provided that if "staff on contract with MP AC" were laid off in March of 2002 and hired back as permanent employees with MP AC subsequently, their seniority would be recognized to be retroactive to their dated of original hire. 11. Mr. Alves was not part of this group of grievors. He lodged his own grievance on March 3, 2003 requesting essentially the same remedy as he seeks through this application. Mr. Alves asserts that OPSEU acted in bad faith when they negotiated the settlement of November 1, 2002 for a group of grievors and "gave up on" other employees, like him, who were not part of that group. On or about June 10, 2005 Mr. Alves followed up with regard to his grIevance. 12. OPSEU arranged for a mediation of his grievance in or around March 6, 2006, but not arbitration. OPSEU explained this action to Mr. Alves on the basis that his case was "weak" and "would embarrass" OPSEU. Mr. Alves believes that OPSEU, in bad faith, steered his grievance toward mediation in order to hide their agreement allowing others who are in identical circumstances to his own to get more extensive recognition of service for seniority purposes but leaving him, and others like him, "high and dry". 13. While Mr. Alves references a "ruling" made on March 6, 2006 that he wants to be set aside, there is nothing filed with the application that would indicate what this ruling was. This application was filed eleven (11) months after this event. Mr. Alves does not explain why he did not file this application earlier and whether anything material happened in the intervening period. The time lapse between the filing of his grievance in March of 2003 and the filing of this application is almost three years, with the only intervening event being the mediation and the "ruling". For the purposes of considering the allegations of delay, the period that appears to be relevant is the eleven (11) month lapse of time. Decision 14. Section 74 of the Act prohibits a trade union from acting in a manner that is arbitrary, discriminatory or in bad faith. As a generalization, the Board normally does not mete out remedies like the ones sought by the applicant. The remedial actions the Board usually directs that a grievance be processed or referred to arbitration, without regard to time limits that would otherwise impede the arbitrator's jurisdiction to deal with the grievance. Delay 15. I find that OPSEU makes a good case that this applicant ought not proceed any further on the basis of delay. As of March 2006, all issues had been dealt with regarding Mr. Alves' seniority grievance. The Board in determining whether the delay is such that the application should not proceed assesses the prejudice to the union and others weighed against the reasons for - 4 - the delay. (see Sheller-Globe of Canada Ltd., [1982] OLRB Rep. Jan. 113, applic. for judicial rev. dismissed, 83 CLLC ~ 14, 052). 16. Mr. Alves gives no reasons for his delay. It is hard to imagine why an issue that had arisen out of a settlement made by OPSEU on behalf of other grievors in November 1, 2002 arid had been the subject of his grievance of March, 2003 would not cause the applicant to make his application earlier. Even if he did not know of the opportunity that an application alleging breach of section 74 offered him, there is a limit to how long a matter such as this should be potentially the subject to being reopened. If Mr. Alves were to achieve what he seeks, there would be potential impacts on others in the bargaining unit whose relative seniority position might change and affect their rights, e.g. possible revision downward of their rates of pay, vacation credits etc. 17. Essentially Mr. Alves is attempting, through this application, to hold the union accountable for its alleged unlawful differentiation between members like himself and those who grieved and received the benefits of the settlement of November 1, 2002. 18. The prejudice to others in the bargaining unit who would be potentially impacted and to the intervenor's operations caused by an adjustment of Mr. Alves's seniority date, nevertheless, is sufficiently great to override the applicant's assumed ignorance about the availability of section 74 of the Act. 19. Even if the applicant's delay is not a proper basis for the Board to exercise its discretion to dismiss this application, the absence of any allegations making out a prima facie breach of section 74 causes this result. No Prima Facie Case 20. The criticism of OPSEU's actions is its failure to seek for Mr. Alves the same terms as had been achieved for others who were the subject of settlement on November 1, 2002. November 1, 2002 was the same date that Mr. Alves commenced his permanent employment with MP AC. A memorandum filed with the application indicates that OPSEU published the settlement terms to "all bargaining unit members" on or about that date. Mr. Alves was not part of the group of grievors for reasons that he leaves unexplained. It is entirely possible that these grievors were only those that had been subsequently rehired prior to their grievances (presumably months prior to November 1, 2002) and not credited with the proper seniority or those that had not been rehired at the same time who wished to challenge their treatment, i.e. either the failure to give proper notice of their termination or payment in lieu thereof. 21. Mr. Alves' employment commenced with MPAC on a permanent basis the very day this settlement was reached. The fact is that in the intervening time between March 31, 2002, the specified end of his term under contract, and November l, 2002, he did not lodge a grievance like the others. Although he may regard his circumstances to be identical to those who were grievors and covered by the settlement, he ignores a major difference between him and them - no grievance by him until March of 2003. 22. Although Mr. Alves asserts that he and others like him were left "high and dry" and that OPSEU admitted embarrassment as one of the reasons for arranging for mediation, instead of arbitration, of his grievance in March of 2006, none of this can reasonably amount to a breach of section 74 of the Act. OPSEU made a rational distinction between those who had filed grievances prior to November 1, 2002 and anyone who did not. Mr. Alves does not allege that - 5 - OPSEU did anything at the time these grievances were lodged by others to create a smaller group of grievors. Indeed, it is entirely possible that the group was constituted as much for those who were not rehired as for those who were. 23. When Mr. Alves came forward months later, OPSEU accepted his grievance and subsequently put its mind to an assessment of the strength of it being successful at arbitration. Even if Mr. Alves was told that it would be embarrassing for OPSEU to bring his grievance to arbitration, it is clear that Mr. Alves's allegations of why that statement may have been made are speculative. It is as possible as not that there were other reasons for it other than a desire to "hide" the settlement; such reasons being the weakness of the case due to the period of time that had elapsed and so on. The memorandum circulated by OPSEU at the time of the settlement belies any embarrassment at all and is inconsistent with Mr. Alves' theory that OPSEU was motivated to hide what had been accomplished. 24. For these reasons I am not persuaded that there is any useful purpose to allow this application to proceed to hearing. The application is, therefore, dismissed. "Corinne F. Murray" for the Board