The URL can be used to link to this page

Home My WebLink About4026-04-U - Thompson 05-06-27 Thompson v. Ontario Public Service Employees Union, 2005 CanLII 26996 (ON L.R.B.) Page 1of4 Qntario >> Qntario Labour Relations Board >> This document: 2005 CanU! 26996 (ON LFtB.) Citation: Thompson v Ontario Puhlic Service Employees Union, 2005 eanUI 26996 (ON LH B) Date: 200507-27 Docket 4026~04~U 4026-04-U Kristy Thompson, Applicant v. Ontario Public Service Employees Union, Responding Party. BEFORE: Brian McLean, Vice-Chair. DECISION OF THE BOARD; July 27, 2005 1. This is an application under section 96 of the Labour Relations Act, 1995 (the "Act") in which it is alleged that the responding party (the "union") violated section 74 of the Act. 2. By decision dated March 9, 2005 the Board gave the applicant 10 days to respond to a request by the union for, among other things, particulars of the allegations made by the applicant The applicant tiled additional material, but did not provide the information that was required. Accordingly, by decision dated May 12, 2005, the Board gave the applicant additional time to file submissions. Additional information has been tiled with the Board. The Board makes this decision on the basis of all of the information before it. 3. The application is extremely difficult to understand. However, it appears to consist of the following components: a) Complaints about the employer arising out of activities which occurred before the applicant was represented by the responding party; b) Complaints about a fellow employee named Stan Zerniak. The applicant alleges that management warned her about Mr. Zerniak when she commenced employment at the East Detention Centre as a corrections officer in May 2004. It is also alleged that the employer aided Mr. Zerniak's improper conduct towards the applicant. (the nature of that improper conduct is not set out in the application but appears to consist of what might generally be considered "stalking"). c) The applicant alleges that she went to the union on January 15, 2005 and advised it that she was terrified of Mr. Zerniak. She provided the union with a written complaint which described her concerns and described his behaviour. The union imrnediately spoke to management about the applicant's concerns. d) It is alleged that management spoke to the applicant, without a union representative, and told her not to go to the union again. The applicant then went on sick leave and has been off work until at least the date of the application. http://www,canlii.org/ on/cas/ onlrb/2005/2005onlrb 1393 2.html 9/30/2005 Thompson v. Ontario Public Service Employees Union, 2005 CanLII 26996 (ON L.R.B.) Page 2 of 4 4. There is nothing in the allegations set out above which could possibly constitute a breach of section 74 of the Act The applicant had serious concerns and advised the union. The union immediately went to management about them. It is therefore the allegations which are said to have occurred after the applicant went off on leave where any potential violation must lie. 5. Again, it is very difficult to determine exactly what the applicants' allegations are. However, it appears the following allegations are made: a) It appears the applicant pressed police charges against Mr. Zerniak. The nature of these charges is not described. b) It is alleged that the union told Me Zerniak that it would file a grievance if the employer stopped paying him during the investigation of the police matter and that the union will pay for Mr. Zerniak's legal defence. It is not alleged that either ofthese things actually occurred. c) There are non-particularized assertions that the applicant "required the responding party to file a policy grievance on her behalf' and that it should be brought to the corrections negotiating table. However, the nature of the policy grievance is not fully described. It appears that the applicant wishes to have hcr pay, and that of other victims, increased to the pay of Mr. Zerniak. It is not clear what the connection between the two is. Nor, and most importantly, are there particulars to suggest that the union actually refused to file such a grievance. d) The applicant seeks representation in an interest arbitration process. There is no suggestion that the applicant requested and was rcfused such representation. 6. There is no direct assertion (including particulars) that the applicant ever asked the union to do anything on her behalf and that the union refused to do so. 7. The end result is that the Board simply cannot understand the nature of the applicant's complaint except in the broadest terms. The Board does not diminish the applicant's concerns of her alleged treatment by a fellow employee. However, it is unclear what the applicant believes the union has done wrong and what the applicant wants as a result There are no allegations of union misconduct particularized in the way required by the Board's Rules which make out aprimafacie breach of the Act. 8. Finally, the applicant raises concerns about the way the Board processed this matter. These concerns are identical to issues raised in jI,;fukesh Goel [unreported decision of the Board dated May 10, 2005, Board File No. 4025-04-U]. In that decision the Board held: 5. By letter dated March 29, 2005, the representative of the applicant filed submissions in response to the Board's decision. The applicant objects to the Registrar's correspondence. Thc applicant asserts that the Registrar has no authority under the Board's Rules to relieve the responding party and the intervenor of their obligation to file pleadings. The applicant alleges that the Board strictly enforces its rules on applicants and that the Registrar's decision to not apply the rules to the responding party and intervenor is discriminatory. The applicant requests that the responding party be required to file a response and set the matter down for a hearing 6. The Board receives a great number of applications each year. On some, the responding party will request that the Board review the application on the basis of Rule 46 (a prima facie motion), and that it not be required to file a response until the motion is determined. Rule 46 states: http://www.canlii.org/on/cas/ onlrb/2005/2005onlrb 1393 2.html 9/30/2005 Thompson v. Ontario Public Service Employees Union, 2005 CanLII 26996 (ON L.R.B.) Page 3 of 4 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. The Board has long had a practice in such circumstances of advising the responding party that they need not respond to the application until directed to do so. The reason for this practice is to save the resources of the responding party and of the Board with respect to applications which may be without foundation. 7. In my view the Registrar's authority arises out of this long-standing practice. That is, in these circumstances the Registrar is sending the matter to a Vice-Chair to determine the outstanding issue about whether a valid application has been made and whether it may proceed. If the application makes out a case, then a response is due and if not, then there is no need for a response. The Registrar is not relieving against an obligation to file a response, since the preliminary issue of whether a proper application is before the Board, has yet to be decided. While in some cases the Vice- Chair on review of the application may require the responding party to file a response, a response is clearly not a requirement. 8. Alternatively, if it is necessary to ground the Registrar's direction in something other than the Board's long-standing procedures for Rule 46, the Board in its decision of March 9th exercised its discretion under Rules 49 and 76 (to shorten or lenbrthen any time period) and Rule 44 (relieve against the strict application of the Rules). The Board clearly decided that a response was not necessary, at that point in time. This ruling endorsed and confirmed the Registrar's earlier direction. 9. In any event, to the extent it is necessary, the Board endorses the Registrar's decision to relieve the responding party and the intervenor of the obligation to file pleadings and confirms it. Indeed, this confirmation is implicit in the Board's March 9,2005 decision. 10. Those reasons are equally applicable to the concerns raised by Ms. Thompson about the way thc Board processed her application. http://www.canlii.org/on/cas/onlrb/2005/2005onlrb 13932.html 9/30/2005 Thompson v. Ontario Public Service Employees Union, 2005 CanLII 26996 (ON L.R.B.) Page 4 of 4 II. For the foregoing reasons the application is dismissed. "Brian McLean" the Board [AboutCanLII] [CQnclitiQns Of lJ$?] [AdvEltlc;?cJ S?Clfc;h] [I-~?Ip] [Fran9Clis] [priv<:!cyJ?O HCY] [M <:liJingList$] [T?chnic<:lLLibrEl ry] [ConJ<:lctCanl1i] rni' "LexUM. ~,__~._~.___,_..__"_,..__.~."____,,~....._____.._____________..__ f\)rthc FddortHion of Li:1W Sockr1i-es jj'f C;:tn,;td-~j . l.../ http://www.canlii.org/on/cas/ onlrb/2005/2005onlrb 1393 2.html 9/30/2005