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Brown v. Ontario Public Service Employees Union, 2004 CanLII 41886 (ON L.R.B.)
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This document: 2004 CanL!! 41886 LR.B.)
Citation: Brown v. Ontario Public Service Employees Union, 2004 CanLiI 41886 L R
Date: 200411-04
Docket 2752D3U
2752-03-U Ken Brown, Applicant v. The Ontario Public Service Employees Union,
Responding Party v. Trent University, Intervenor.
BEFORE: Timothy W. Sargeant, Vice-Chair.
APPEARANCES: Timothy S.B. Danson for the applicant; David Wright, Joel Schwartz and Gerry
Manson for the responding pal1y; John Brooks and David Mahy for the intervenor.
DECISION OF THE BOARD; November 4, 2004
1. This is an application brought pursuant to section 96 of the Labour Relations Act, 1995, S.O.
1995, c. 1, as amended (the "Act") alleging that the responding party has breached section 74 of the Act.
2. Both the responding party and the intervenor submit that this application should be
dismissed, without the necessity of hearing evidence, as it is clear from the pleadings that the applicant
was not a member of the bargaining unit at the time of his discharge and therefore the union owed no duty
to the applicant under section 74 of the Act.
3.
Section 74 of the Act states:
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 oftrade unions, as the case may be.
4.
As was stated at paragraph 14 in a decision dated January 8, 2004 in this matter:
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 ofthe 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.))
5.
dispute:
For the sole purpose of considering this preliminary issue, the following facts were not in
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Brown v. Ontario Public Service Employees Union, 2004 CanLII 41886 (ON L.R.B.)
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(a) Mr. Brown (the applicant) commenced employment with the intervenor ("Trent
University") on or about November 10, 1986;
(b) On November 22, 2001 Trent University posted the posItIon of Project
Manager and Systcms Analyst. On the face of the posting, the position was
noted as "Exempt" (in other words, as not being included in the bargaining
unit).
(c) On November 27, 2001 the responding party (the "Union") filed a policy
grievance that the position of Project Manager and Systems Analyst should be
included within thc bargaining unit (the "inclusion grievance").
(d) On December 3, 2001 at a Step 1 grievance meeting regarding the inclusion
grievance, the union indicated its main concern was the "fall away" portions of
the former job within the bargaining unit. Tn other words, the union was
concerned how these "fall away" duties would be assigned to bargaining unit
members.
(e) On December 4,2001 Mr. Brown applied for the posting.
(f) By lettcr dated January 9, 2002 Mr. Brown was offered the position of Project
Manager and Systems Analyst. He accepted the job on January 10, 2002. On
January 11,2002 the new position was announced.
(g) On April 17, 2002 at a grievance meeting regarding the inclusion grievance, the
union indicated that it accepted the employer's position that the position was
exempt, and would be withdrawing this grievance. The union was still
concerned about the "fall away" duties. The grievance was not finally
withdrawn until October 24,2003.
(h) In December 2002 the job title was changed to Manager Networks Operation.
No grievance was filed regarding this change.
(i) On March 12, 2003 Mr. Brown was terminated by letter. The letter indicated
two options Mr. Brown could accept in relation to his termination. Neither
option was accepted and Mr. Brown retained legal counsel in regards to the
termination (not Mr. Danson at that time).
G) Mr. Brown alleges that July 2, 2003 was the first time he first learned about the
inclusion grievance.
(k) On July 15,2003 a grievance was filed by the union regarding the termination of
Mr. Brown.
(I) It was understood by Mr. Brown that the inclusion grievance would have to be
heard first, i.e. prior to the termination grievance.
(m) On October 23, 2003 a mediation arbitration hearing was held in regards to both
the inclusion grievance and the termination grievance. Although a settlement
was proposed, it was not accepted by Mr. Brown.
(n) On October 24, 2003 the union withdrew both the inclusion grievance and the
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Brown v. Ontario Public Service Employees Union, 2004 CanLII 41886 (ON L.RB.)
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termination grievance.
(0) Mr. Brown never asked the employer to return him to the bargaining unit prior to
his termination.
(p) The union never proceeded to arbitration on the inclusion grievance (or asked for
an extension) prior to Mr. Brown's termination ~ and in fact, not for some time
thereafter.
(q) During the period of time Mr. Brown was occupying the position of Project
Manager and Systems Analyst (and the subsequent position of Manager of
Network Operations), Trent University never treated Mr. Brown as being in the
bargaining unit. No union dues were deducted.
(r) Mr. Brown never requested the union to take the position that he was a member
of the bargaining unit while filling the position of Project Manager and Systems
Analyst and Manager of Network Operations prior to his termination on March
12, 2003.
6. Mr. Danson, on behalf of Mr. Brown, argued two points: (a) the Board should hear evidence
regarding Mr. Brown's duties, as it is the applicant's submission that at all relevant times the job which
Mr. Brown was performing from January 2002 up to his termination in March 2003, was work in the
bargaining unit. Mr. Danson submits that if the Board was persuaded of this conclusion, then the union
owed Mr. Brown the duty of fair representation and such issue could be heard by the Board pursuant to
section 74 of the Act; (b) that even if Mr. Brown was not in the bargaining unit, he still had seniority
pursuant to his work in the bargaining unit which the collective agreement did not specifically eliminate.
As an individual with seniority, the union owed Mr. Brown a duty of fair representation under section 74
of the Act.
7. Counsel for the responding party and counsel for the intervenor took the position that clearly
at the time of his discharge, Mr. Brown was not a member of the bargaining unit. It was pointed out that
the inclusion grievance was a policy grievance which the union had a right to withdraw. It is the union
and the employer who are the parties to the collective agreement. Both these parties, the union and the
cmployer, agree that the position of Project Manager and Systems Analyst is exempt and excluded from
the bargaining unit. There is nothing which suggests that the union's decision expressed in the grievance
procedure meetings in December 200 I and April 2002 to the employer that the union agreed the position
was not in the bargaining unit taken pursuant to any improper motive by the union.
Decision
8. In my view, it is clear that at the time of the termination, Mr. Brown was not a member of the
bargaining unit. Although a policy grievance was filed regarding the inclusion of Project Manager and
Systems Analyst position, the union was within its right to withdraw such grievance. It should be pointed
out that at the time of the grievance meetings held in December 2001 and April 2002 regarding the
inclusion grievance, Mr. Brown had raised no concerns about his exclusion either to the employer or to
the union. Thus, the union in notifying the employer that it was accepting that the position was not in the
bargaining unit, was not governed by any improper consideration in regards to Mr. Brown. It is not for
the Board in a section 74 application to make a determination as to whether a position is or is not in the
bargaining unit if the parties to the collective agreement concur such position is excluded from the
bargaining unit and such decision is not tainted by any improper motive. In my view, there is nothing that
would suggest that the position taken by the union, having heard the employer's submissions, was in any
way tainted when it concurred with the employer's position on April 17, 2002 before the termination of
Mr. Brown occurred. This conclusion is supported by the fact that the union never proceeded to
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Brown v. Ontario Public Service Employees Union, 2004 CanLII 41886 (ON L.R.B.)
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arbitration on the inclusion grievance prior to the termination of Mr. Brown. Thus, clearly in my view, at
the time of termination, Mr. Brown was in a position which was excluded from the bargaining unit by
agreement of the parties to the collective agreement. The fact that Mr. Brown mayor may not have
seniority rights if he returned to the bargaining unit, in my view, does not impact on the basic conclusion
that at the time of his termination, Mr. Brown was not a member of the bargaining unit. On this point,
Mr. Brown himself had never requested a return to the bargaining unit, or notified the union of any
concern in that regard, prior to his termination.
9. For all of the above reasons, I have concluded that at the time of his termination, Mr. Brown
was not a member of the bargaining unit. Having reached this conclusion, the union cannot be found in
breach of section 74 of the Act.
10. This application is therefore dismissed.
"Timothy W. Sargeant"
the
Board
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