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HomeMy WebLinkAbout1794-03-U - Richards 03-11-25 Richqrds v. OPSEU Local 571,2003 CanLII 19757 (ON LR.B.) Page 1 of 3 K\ ~~~J..o I D_ -- >> This document 2003 CanU[ 19757 Citation: Rich a refs v OPSEU Local Date: 2003'/ '/25 Docket: '/794.03.U 1794-03-U Dorrell Richards, Applicant v. OPSEU Local 571, Responding Party v. University Health Network, Intervenor. BEFORE: Mary Ellen Cummings, Alternate Chair. DECISION OF THE BOARD; November 25, 2003 1. This is an application brought pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c.l, as amended (the "Act"). The applicant alleges that OPSEU Local 571 ("the union") has breached the duty of representation owed to her. The University Hcalth Nctwork ("thc cmployer") has asked that the application be dismissed either because it does not disclose a prima facie breach of section 74 or because there is no labour relations purpose to enquiring further. ') The applicant alleges that she is being harassed by management which has taken the form of disciplinary action. The applicant filed a grievance. She alleges that the union has not becn responsive, and as a result, she retained her own legal representative. Her representative wrote to the union asking it "...to take all steps necessary to purse her grievance to completion and through to arbitration". The applicant asserts that she received no response. The representative wrote once again, and asserts that no response was rcceived. However, by somc means, the applicant is aware of steps the union is taking on her behalf. In her application to the Board she said that the union has entered into negotiations with the employer. The applicant complains that the union is considering a compromise, but the applicant wants the matter taken to arbitration. She complains that".. .the Union's conduct to date has been inconsistent with that desire. The Applicant has made it clear to the Union that she wanted her entire pay back and to be cleared of the allegation of having done anything wrong. The Union has ignored her reasonable requests." 3. Assuming for the moment that the applicant was correct in stating that at one point, the union was not communicating with her, that problem has obviously been resolved because the applicant indicates that she is aware of settlement efforts being made by the union, and the content of those discussions. So the only "live" issue remaining is an assertion that the union is not pursuing the grievance to arbitration, but entertaining the possibility of settlement with the employer. 4. Assuming that allegation is true, it does not establish an arguable or prima facie breach of section 74 of the Act. The union maintains carriage of the grievance at all times. While the union is required to consider the grievor's wishes, it is not required to follow them. In this case, it is evident from the application that there has been that discussion. 5. Rule 46 of the Board's Rules of Practice permits the Board to dismiss an application when it does not make out an arguable case for the remedies sought: http://www.canlii.org/on/cas/onlrb/2003/20030nlrbI5863.html 9130/2005 Richards v. OPSEU Local 571,2003 CanLU 19757 (ON L.R.B.) Page 2 of3 http://www.canlii.org/on/cas/onlrb/2003/2003onlrbI5863.html 9/30/2005 Richards v. OPSEU Local 571,2003 CanLII 19757 (ON L.R.B.) Page 3 of 3 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 dism iss the application without a hearing or consultation. In its decision, the Board will set out its reasons. 6. The test for whether an applicant has pleaded a prima(acie case has been described by the Board in Corporation of the County of Brant, [2000] OLRB Rep. Nov.lDec. 1106 at page 1108: ...a responding party that seeks to have the Board dismiss an application before the hearing on the grounds that the application fails to set out a prima facie case for a violation of the Act must satisfy the Board that there is no reasonable likelihood that the applicant can establish a violation of the Act based on the allegations it has made in its application, or in the words of the Supreme Court of Canada, that it is "plain and obvious" that the allegations in the application do not disclose a violation of the Act 7. In considering whether a prima facie case had been pleaded, the Board assumes that all the allegations made are provable and proved. The Board has no regard, at this point, to the explanation or defences provided by the union. Again, the Board is only considering whether the applicant has pleaded an arguable case that the union has breached its duty of fair representation. 8. In this case, accepting that the union has denied the applicant's request that the union not compromise, and take her grievance to arbitration, she has not pleaded an arguable breach of the duty of fair representation. My initial inclination is to dismiss the application. However, before doing so, I would like to give the applicant a further opportunity to make submissions. Any submissions must be delivered to the other parties and filed with the Board by no later than Friday, December 12,2003. "Mary Ellen Cummings" ..for the Board [About Canl.! I] [CQnditionsQLUSE;] [AdvanCE;d$earch] [l1e1p] [Frqugai$] [Privqcy Polic:y] [MCiiling lists] [Technical LibrcHY] [ContCiGt Canlll] by LexUM "~"'~_"'"_'_""__"_.""n"____"'__,,"_ ...._._.. kn lh" Fedttta\iC<f] of Law Soc:!",l!!?" 01 Ci.mMa l,..../ http://www.canlii.org/on/cas/onlrb/200312003onlrbI5863.html 9130/2005