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HomeMy WebLinkAbout2752-03-U - Brown 04-01-08 Brown v. Ontario Public Service Employees Union, 2004 CanLII 14639 (ON L.R.B.) Page 1 of 5 Ontario >> Ontario Labour Relations Board >> This document: 2004 CanUI14639 (ON L.R-B.) Citation: Brown v. Ontario Public Service Employees Union, 2004 CanLll14639 (ON LR B.) Date: 200401-08 Docket 275203U 2752-03-U Ken Brown, Applicant v. The Ontario Public Service Employees Union, Responding Party v. Trent University, Intervenor BEFORE: Corinne F. Murray, Vice.Chair DECISION OF THE BOARD; January 8,2004 1. This is an application pursuant to section 96 of the Labour Relations Act, 1995. S.O. 1995, c. 1 as amended (the "Act") filed on December 1, 2003. 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 it abandoned the applicant, as grievor under a grievance filed on July 15,2003 with respect to his dismissal by Trent University ("Trent"), by withdrawing, without the applicant's approval or knowledge, that grievance ("Dismissal Grievance") and another grievance, filed by OPSEU earlier on November 27, 200 I ("Policy Grievance") contesting the exclusion of the applicant's position from the bargaining unit. As a result the grievor, having been dismissed by Trent effective March 12, 2003, was left "without any method to obtain reinstatement or damages for such dismissal". The applicant alleges that the handling of these grievances, and the Dismissal Grievance in particular, was "superficial, arbitrary, indifferent and in reckless disregard to the grievor's interests", the conduct of OPSEU toward him was "hostile, discriminatory and dismissive" and in "bad faith". As a remedy for these breaches, he seeks arbitration of both grievances with counsel of his choosing representing his interests, payment of that counsel's fees as well as payment of the fees he incurred obtaining other legal advice and payment by OPSEU of the difference in the "value" of the remedy he could have obtained at Court but for OPSEU's unlawful actions. 2. In its letter of December 8, 2003 the responding party brought a "motion" that the application should be dismissed without a hearing because it does not establish a prima facie case. The responding party further requests an order that a response is not required to the application until the Board rejects such motion and that the time for filing such response should be extended to January 8, 2004 to address concerns about thc completeness of the copy of the application received. The responding party argues that it never owed the applicant a duty of fair representation under section 74 because after the applicant took the Project Manager's position he was no longer a member of the bargaining unit and OPSEU would only have owed the applicant such duty if his position had been determined to be part of the bargaining unit as a result of the Policy Grievance. No jurisprudence was cited by the responding party in support of its motion. Although the response does not make explicit reference to the specific Rule of the Board applicable to this submission, the Rule under which such motion should be considered is Rule 46. This Rule is applicable in the exercise of the discretion that the Board is given under subsection 96(1) of the Act to determine whether it should inquire into a complaint alleging that the Act has been contravened. 3. By it letter dated December 15, 2004, Trent supported OPSEU in its proposal that the http://www .canlii.org/ on/cas/onlrb/2004/2004onlrb 10 191.html 10/3/2005 Brown v. Ontario Public Service Employees Union, 2004 CanLII 14639 (ON L.R.B.) Page 2 of5 application be dismissed without further proceedings and argues that if the matter proceeds, that the date for it to file an intervention be extended to January 8, 2004 to address concerns about the completeness of the application served. 4. By letter dated December 15, 2003 the applicant submitted that the responding party's motion was without merit because OPSEU cannot base its denial of any duty being owed on the exclusion of his position from the bargaining unit since that exclusion was never accepted by OPSEU, as evidenced by the Policy Grievance filed and its qualified withdrawal. In the absence of unqualified acccptance of the exclusion by OPSEU, it is merely a private agreement between the applicant and Trent which is prohibited by the collective agreement. Also when OPSEU chose to file the Dismissal Grievance it treated the position as validly included in the unit and thereafter its expressed intention was to pursue such grievance once it had been successful in the Policy Grievance. The applicant regarded the responding party's denial of any duty under section 74 as "desperate" and as further support of his contention that OPSEU arbitrarily and discriminatorily denied him thc bcnefits of the collective agreement by withdrawing the Policy Grievance while it continued to seek to include the position in the unit if it is reposted for anyone else. 5. Generally the Board must hold a hearing or consulation to inquire into this matter unless the Board is satisfied that this application ought to be disposed of pursuant to Rule 46 which 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. 6. Under Rule 46 the Board is required to assume all of the allegations in the application 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 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 facts upon which such motion is considered are as follows. This does not represent a finding of fact hut rather the assumed facts necessary to consider the motion. Between November 22, 2001 and January 1, 2002, the applicant successfully applied for a posted position, Project Manager and Systems Analyst (Security), that was stated to be excluded from the bargaining unit represented by OPSE1J. Unbeknownst to him at the time, OPSEU had filed the Policy Grievance challenging this exclusion. During his tenure as Project Manager the applicant did not challenge this position's exclusion from the bargaining unit, either with the management of Trent or OPSElL At the time of his dismissal the applicant was offered a "compensation package" by Trent and this, in combination with earlier glowing performance reviews and a paid leave of absence, is the basis for the applicant concluding that his termination was not for "cause". 8. Immediately after his dismissal in March of 2003, thc applicant "contacted" OPSEU but his "requests for assistance were ignored". There is no allegation that the applicant requested that OPSEU file a grievance regarding his termination at this time. The applicant was only advised on July 2, 2003 of the "actual content" of the Policy Grievance. It is unclear how much in advance of this date the applicant was aware, at a general level, that OPSEU had filed such a grievance because the applicant only states that his general awareness came "after considerable delay". http://www,canlii.org/on/cas/onlrb/2004/2004onlrbl 0 19l.html 10/3/2005 Brown v. Ontario Public Service Employees Union, 2004 CanLII 14639 (ON L.R.B.) Page 3 of 5 9. The applicant sought legal advice at an unspecified date after his dismissal that considered whether a civil action, including damages for wrongful dismissal, might be brought and correspondence between Trent and the applicant's counsel on this subject occurred thercafter. Sometime in or around July the applicant brought the result of this advice to OPSEU because the applicant had been made aware of the "Weber doctrine" that might cause his dismissal to be "viewed as a dispute arising under a Collective Agreement such that the Court would have no jurisdiction to award him anything". After the applicant approached OPSEU with this information, OPSEU filed the Dismissal Grievance. Although the application is not specific about the time lapse between these two events, it appears clear that it was not long because the applicant makes no complaint about delay on OPSEU's part in filing the Dismissal Grievance. Three (3) days after the Dismissal Grievance was filed, the applicant also delivered to OPSEU his written analysis of other legal advice he had received on the subject of the potential success of the Policy Grievance. 10. The applicant was advised sometime in advance of the "mediation/arbitration" scheduled ("med/arb") for October 22, 2003 at 5p.m. that it would only deal with the Policy Grievance. While OPSEU rejected the applicant's proposal that the Policy Grievance and the Dismissal Grievance be hcard together by the same arbitrator, OPSEU did "promise" that the Policy Grievance would go to arbitration first and if it was successful the Dismissal Grievance would then be advanced to arbitration. Prior to the med/arb the applicant and OPSEU had had a difference of opinion regarding the impact on OPSEU's duty of representation if the Policy Grievance was unsuccessfuL OPSEU considered that to be the end of any duty it owed to the applicant but the applicant believed the collective agreement provided a basis for arguing that the duty continued even after the applicant had been out of the bargaining unit for more than twelve months. However, the applicant believed that the Policy Grievance would be successful and thought that OPSEU was of this view as well. II. Although the counsel for OPSEU met with the applicant about a week prior to the med/arb, the applicant immediately wrote to OPSEU expressing his concerns about the comparative inexperience of OPSEU versus Trent's counsel, the fact that as of the date of the meeting OPSEU's counsel had not read all the material on file and a number of other matters. No preparation had been done by OPSEU with the applicant with respect to the Dismissal Grievance prior to October 22,2003. At no time prior to the start of the session on October 22, 2003 did OPSEU inform the applicant that Trent was "planning on using the mediation session to address both the grievance(s)" and that Trent was raising a "host of allegations" to justify (his) dismissal. OPSEU made no attempt to limit the mediation to the Policy Grievance, notwithstanding the applicant's objections that were raised immediately and repeatedly. Consequently, the session was entirely devoted to the Dismissal Grievance and the allegations of Trent that justified its actions. The applicant believed that OPSEU was accepting everything that Trent said about him, notwithstanding the applicant's denials. The upshot of the session was that Trent produced draft Minutes of Settlement just after midnight on October 23, 2003, giving OPSEU 45 minutes to consider its terms. The applicant wanted to obtain the advice of his own personal counsel but OPSEU did not consider this necessary. A number of amendments proposed by the applicant were put forward, including the opportunity to consider the document over 48 hours, but the applicant left at 1: 15 am before a response was received because the applicant was exhausted, feeling ill and felt under extreme duress. 12. The applicant took issue with a number of items in the Minutes that he believed called into question his integrity in bringing forward some issues to the Board of Governors in June of 2003 after his dismissal. On October 24, 2003 OPSEU agreed to withdraw both grievances and the applicant was advised of this by letter dated October 30, 2003. The withdrawal of the Policy Grievance was without prejudice to OPSEU's right to refile it if the position were posted again. Prior to the withdrawal, OPSEU did not communicate with the applicant that it was considering dropping either or both grievances. The applicant believes that there was no justification for dropping either or both. OPSEU never provided him with any reasoning to justify this decision. The applicant alleges that the manner of OPSEU's withdrawal of the grievances was reckless in its disregard of the "Weber" doctrine because while http://www.canlii.org/on/cas/onlrb/2004/2004onlrbl 0191.html 10/3/2005 Brown v. Ontario Public Service Employees Union, 2004 CanLII 14639 (ON L.R.B.) Page 4 of 5 reserving its own argument that the applicant's position belongs in the unit, OPSEU's withdrawal of the Policy Grievance "almost guaranteed" that the applicant would not be able to recover anything in Court for the dismissal. 13. The essential issue that follows from the applicant's characterization of events in the application and the motion by the responding party is whether the duty of fair representation exists with respect to an individual who occupies a position that is treated by the employer and the individual as outside the bargaining unit but throughout the relevant period was subject to a grievance by the bargaining agent that it should be included. 14. The duty of fair representation under section 74 normally only extends to members of the bargaining unit. If an applicant is not a member of the unit at the time of the alleged violation of section 74, the Board has held that it does not have jurisdiction to deal with the application (see Barry Fraser, [1986] OLRB Rep. Nov. 1511 and the cases cited therein). This is so because the duty of fair representation, as set out in section 74, arises out of and as a consequence of the exclusive power given to a union to act as spokesperson for employees in a bargaining unit. (see Canadian Merchant Service Guild v. Gagnon (1984) 9 DLR (4th) 641 (S.C.C.)) 15. The collective agreement is primarily the source of a determination of whether or not an applicant is a member of a bargaining unit, however, the practice of the parties in the administration of the collective agreement could be relevant if there is ambiguity or estoppel by conduct or otherwise (see Consolidated Fastfrate Ltd. [1984] OLRB Rep. May 691) While the Board's determination of whether there is a duty of fair representation under the terms of a collective agreement can be similar to a determination by an arbitration board, in this ease the determination could fall within the Board's jurisdiction pursuant to section 1 (3)(b) of the Act, i.e., to determine whether a person exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations. 16. But in any event the determination of whether there is a duty owed to the applicant must be based upon a determination of whether the applicant's position fell within the bargaining unit at the relevant times. This issue cannot be dealt with on a prima facie basis but ought to be considered first prior to dealing with the rest of the allegations. Therefore there will be a consultation on this issue alone. The parties should come to such consultation prepared to call whatever evidence each of them deems necessary to support their respective positions on this issue and to submit arguments thereon. The parties may make whatever additional submissions they deem necessary on this issue in advance of the consultation. The parties attention is directed to Rule 42 of the Board's Rules of Procedure that provides: 42. No pcrson will be allowed to present evidence or make any representations at any hearing or consultation about any material fact relied upon which the Board considers was not set out in the application or response and filed promptly in the way required by these Rules, except with the permission of the Board. Tfthe Board gives such permission, it may do so on such terms as it considers advisable. With respect to the requests of OPSEU and Trent for delay in the submission of a full response to the application, the time for filing such response is extended until after the issue with respect to whether there is a duty of fair representation has been dealt with. 17. Therefore this application is directed to the Registrar for scheduling in the normal course. http://www.canlii.org/on/cas/onlrb/200412004onlrbl 0191.html 10/3/2005 Brown v. Ontario Public Service Employees Union, 2004 CanLII 14639 (ON L.R.B.) Page 5 of 5 "Corinne F.. Murray" Jor the Board [Ap9QtCCjnlll] [Conclitions Of LJ$13] [AclvCjDQ,?cl searQh] [l1,?lp] [FrClDgais] [PrivClC;y POlic;y] [MCliling L.ists] [T13c;hniQaILiprClry] [Contact CanLiI] by ~X'UM n..lbrfM F12d,jriJ"jc;,n c,fLdWS':'\rilullI28 of Cilf1iHi"l http://www.canlii.org/on/cas/onlrb/2004/2004onlrbl 0 191.html 10/3/2005