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Home My WebLink About4135-02-U - Millar 03-11-03 Miliar v. Ontario Public Service Employees Union, 2003 CanLU 35386 (ON L.R.B.) Page 1 of 3 d O~y~ \'v\.,~ \ \ e..., r --------- >> >> dOC:UH1(mt: 2003 35386 l\l!if/ar v Ontario PuNic 200311w03 Dodtet: 4135 02U CantU 35386 L.R B) 4135-02-U Jennifer Millar, Applicant v. Ontario Public Service Employees Union, Responding Party. BEFORE: Laura Trachuk, Vice-Chair. DECISION OF THE BOARD; November 3, 2003 L This is an application under section 96 of the Labour Relations Act, 1995 (the "Act") alleging that the responding party (referred to as the "union") has violated section 74. The union has asked the Board to exercise its discretion not to inquire into this matter. The Board has received and reviewed submissions from the applicant in response to that request. 2. Sections 74 and 96(4) of the Act provide as follows: 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. 96. (4) Where a labour relations oflicer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention ofthis Act . [emphasis added] 3. Rule 46 of the Board's Rules of Procedure provide as follows: 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 arc 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. The Board therefore has the discretion as to whether it will inquire into a complaint under the Act. After considering the materials filed by the applicant and the relevant facts that are not in dispute, the Board has decided not to inquire into this complaint. 5. The applicant filed a grievance with respect to her dismissal on February 6, 2003. A second stage rneeting with the employer was held on February 28, 2003. The union did not provide someone to http://www.canlii .org/on/cas/onlrb/2003/2003onlrb 15745 .html 9/30/2005 Millar v. Ontario Public Service Employees Union, 2003 CanLU 35386 (ON L.R.B.) Page 2 of 3 represent the applicant at the meeting. The applicant signed a document agreeing to proceed with the meeting in the absence of the union. She says she was coerced into signing the document. The parties disagree, to some extent, about the circumstances leading to the union's failure to appear at the meeting. However, whatever the reason the union failed to attend the meeting, there was ultimately no harm done to the applicant. The union has filed materials indicating that the grievance proceeded to mediation at the Grievance Settlement Board on October 21, 2003 and that eight further hearing days are to be set. While the grievance process is important, the parties may, and often do, continue to communicate after it is over. There was nothing to stop the union from seeking information from the employer after the second stage meeting, There was also nothing to prevent the union and the employer from carrying on settlement discussions if they considered it worthwhile. It is apparent now that the union has sought production of documents and has obtained an order to that effect. It has also participated in mediation with the employer on the applicant's behalf on October 21,2003. Therefore, even if the Board could conclude that the union violated the Act by failing to attend the second stage grievance meeting, the union has already rectified the situation. Tn these circumstances, there would be no labour relations purpose served in proceeding with this part of the application. 6. The applicant also alleges that the union has failed to reimburse her for attending various meetings relating to her grievance. There is some factual dispute about that assertion as well. Ncverthelcss, section 74 of the Act only imposes an obligation upon a union with respect to representing a member vis-a-vis the employer. Any arrangements a union has with respect to reimbursement of members involved in various stages ofthe grievance process is an internal matter and not within the scope of section 74. The Board therefore could not find that the union violated the Act by f~liling to reimburse the applicant for various costs relating to her attendance at meetings. 7. The applicant alleges further, that the union has not given her some of the money collected in a SO/50 draw which was held among its members. That is also an internal union matter. The union could not be found to have violated section 74 of the Act by the way it distributed money from a draw organized by some of its members. 8, When the applicant filed her submissions in response to the responding party's request that this application be dismissed, she advised the Board that the responding party had cancelled the arbitration of her grievance scheduled for June 5, 2003 because it was unwilling to deal with her representative, John Villella. As those were new allegations, the Board sought a further response from the union. Subsequent to that response, the Board was advised by the union that it reached an agreement with the applicant and that the grievance was proceeding to arbitration on October 21, 2003. The applicant responded that she objected to the limitations that the union imposed on her communications with Me Villella at the arbitration. The union has since provided a decision by a Vice-Chair of the Grievance Settlement Board making an order for production of documents and a direction that eight further hearing dates be set. The union has carriage of the grievance, It is entitled to represent itself and the grievor throughout the grievance process. The union's practice with respect to "advisors" to its bargaining unit members is an internal union matter and not something that could support a claim that the union violated the Act except to the extent that it affected the union's representation of the grievor vis-a- vis the employer. Tn this case, the applicant's grievance has now proceeded to arbitration and the union is continuing to represent her. The Board could therefore not find that the union's actions with respect to Mr. Villella violated section 74 of the Act. The fact that the union does not want Mr. Villella involved in the grievance arbitration does not mean it is not representing the applicant in accordance with its statutory obligations. 9. The remedies sought in the application are an expedited arbitration and reimbursement of expenses related to the applicant's attendance at meetings. For the reasons stated above, the Board would not direct the union to pay expenses. The applicant's grievance has proceeded to arbitration so that is not a remedy which makes any sense at this point. There is no other remedy which could reasonably be imposed in these circumstances, even if the Board could find that the union's actions violated the Act. http://www.canli i.org/ on/cas/ onlrb/2003/2003onlrb 15745 .html 9/30/2005 Millar v. Ontario Public Service Employees Union, 2003 CanLII 35386 (ON L.R.B.) Page 3 0 f 3 ] O. For the reasons outlined above, the Board could not find that the complaints about the union's conduct could support a determination that it violated the Act or an order for the remedies sought. No labour relations purpose would be served by inquiring into this application. The Board has therefore decided to exercise its discretion not to do so. This application is therefore dismissed. "Laura Trachuk" the Board [About Cantll] [CQnditions Of LJ?e] [/\dvanced sG?rch] [Hi8lp] [FrElngais] [PrivCiCY POliCY] [Mailing ti$ts] [Technic?l Libr;ary] [ContElct CCinLJI] by C:7xUM for'1h6 FedDtiJfuion of Linv SOGie:tiD8 oJ CS.Ulzld;j http://www.canlii.org/onJeas/onlrb/2003/2003onlrbI5745.html 9/30/2005