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HomeMy WebLinkAbout1979-02-U - Christensen 04-08-09 ONTARIO LABOUR RELATIONS BOARD 1979-02-U Shawn Christensen, Applicant v. The Ontario Public Service Employees Union, Responding Party v. The Crown in Right of Ontario (Ministry of Public Safety and Security), Intervenor. BEFORE: Patrick Kelly, Vice-Chair. .DECISION OF THE BOARD; August 9, 2004 1. This is an application alleging that the responding party ("the union") breached its duty of fair representation, in violation of section 74 of the Labour Relations Act, 1995, S.O. 1995, el, as amended (the "Act"). 2. A consultation in this matter was held on December 4, 2003. Neither the applicant nor his representative appeared on that date. The Board issued an interim decision on December 5, 2003, directing the applicant to reply in writing to certain areas of inquiry. The relevant portions of that decision are set out below: 6. This application was filed on October 7, 2002. As it then stood, the application was concerned with the applicant's suspension with pay in January 2002 and the grievance challenging the suspension he asked the union to file with the employer. At the time the application was filed, the applicant had been discharged on June 12, 2002, and a grievance of June 21, 2002 challenging the discharge was referred on June 27, 2002 to arbitration. Mr. Christensen pointed out in his application that he was not challenging the union's involvement in the discharge grievance. 7. As one of the remedies the applicant sought, he wanted the union to locate what appears to have been the misplaced suspension grievance, and process it. He also asked for union representation with respect to benefits he believes he is entitled to as a result of the death of his spouse. With respect to these two remedies, he claimed a right to have his own representation/advisor at any/all mediation meetings with the union and the employer, as well as the opportunity to jointly choose with the union a lawyer or representative. Finally, the applicant requested financial compensation for alleged delaYs by the union in communicating with him, and for failing to communicate in some instances, and its alleged failure to process grievances. I note parenthetically that the only grievances referred to in the application are the two I have described herein, and that the application did not allege any problem with the processing of the discharge ~A'~evunce. 8. It would appear undisputed that, since the filing of the application, the union located the suspension grievance and, consolidated with the discharge grievance, it was referred to an arbi~'afion hearing scheduled for December 9, 2002. In fact, on that date, both the suspension and discharge grievances were resolved fully and finally by a memorandum of settlement, to which the applicant appears to have affixed his signature. 9. In subsequent written submissions in this matter, the applicant acknowledged the memorandum of settlement, and pointed out that it did not in any way effect the withdrawal of this application. Nevertheless, there is nothing in those submissions that suggests he did not voluntarily sign the memorandum of settlement. He does complain of being denied third-party representation at meetings and mediation prior to December 9, 2002. He complains that he was not always included in meetings between OPSEU and the intervenor in the period leading up to the memorandum of settlement. He also claims there was an opportunity ~n the summer of 2002 for th~ union to have mediated the suspension grievance and to have obtained back pay, which would have alleviated certain of his financial obligations. But other than that, it appears that all that remains in dispute in this application is the issue of the death benefits, and possibly whether or not the applicant was denied improperly the right to third-party representation. With respect to the death benefits issue, nowhere does the applicant allege that he asked for assistance from the union~ nor, for that matter, why he required OPSEU's help, in pursuing those benefits. 10. The applicant is directed to file written submissions, including any references to Board jurisprudence or any other authority in support, in response to the following: i. The applicant has not alleged he ever requested assistance from OPSEU with respect to death benefits. Assuming he does not dispute that his entitlement, if any, to those benefits is determined and paid by a third-party insurer, and not the intervenor, why should the Board inquire into this portion of his complaint against the union? ii It appears the applicant signed the memorandum of settlement dated December 9, 2002, resolving his suspension and discharge grievances. Why should the Board inquire into his allegations that the union did not respond in the manner or within the timelines he thought appropriate with respect to those grievances? iii. The issue of the applicant's third-party representation is an internal matter between the applicant and the union, It has no direct be~.'-ing on any assessment by the .Board o£ the quality of the union's representation of the applicant vis-/~-vis the intervenor. The bargaining agent, OPSEU has the exclusive rig~ht to represent employees in the bargaining unit for which it has bargaining rights. In these circumstances, why should the Board inquire into this portion of the applicant's complaint? iv. If the Board determines that there is no compelling reason for the Board to inquire into any one of the aspects of the complaint referred to in questions (i), (ii) and (iii), is there any other labour relations reason, based upon the pleadings of the applicant to date, why the Board should inquire into this complaint? 11. The applicant's written submissions are to be provided on or before December 19, 2003. The applicant is to answer the above questions without adding any new or additional allegations of fact. Following the deadline for the applicant's submissions, the Board will issue a decision dealing with the substance of the submissions, or calling upon the parties opposite to reply in writing. 3. The applicant filed submissions as directed by the Board. 4. In response to the first question, the applicant replied that he did not dispute that his entitlement to death benefits is determined and paid by a third party insurer. The applicant contends the Board should inquire into this issue because the union has in the past met with the intervenor ("the employer") regarding the benefit issues of other bargaining un.it members, and the applicant has signalled his desire that the union do so in his case. 5. Section 74 of the Act does not impose upon a trade union a duty of fair representation vis-h-vis parties other than the applicant's employer. There is no allegation that the intervenor in this matter plays any role in the determination regarding death benefits. That appears to be the sole domain of the insurer. The applicant has not suggested he cannot pursue his claims with the insurer, or how communication between the union and the intervenor would assist in a third-party determination of his claim for death benefits. The question of entitlement to death benefits appears to lie outside the employment relationship between the applicant and the intervenor. This argument, therefore, fails. 6. In response to the second inquiry, the applicant does not dispute he was a signatory to a memorandum of settlement. But he contends that the settlement pertained only to his discharge from employment, not the suspension that preceded it. He says the Board should inquire into this issue because the union did not advance the suspension grievance to mediation or arbitration. 7. It is clear from a reading of the memorandum of settlement that it pertained to two grievances, one being the discharge, the other in reference to unpaid wages for the period of a labour dispute from March 13, 2002 until May 5, 2002. The latter arises out of what began as the applicant's suspension with pay pending an investigation into the applicant's conduct. The intervenor changed the suspension with pay to a suspension without pay due to the intervention of the labour dispute. That drew the applicant's first grievance. Following the investigation, the intervenor terminated the applicant's employment. That too elicited a grievance. The memorandum of settlement resolved both grievances. The applicant's discharge was rescinded, and in its place, a four-week unpaid suspension was substituted. The period of unpaid wages due to the labour dispute was rectified by the payment of $5,000 to the applicant. 8. It is disingenuous of the applicant to claim that the suspension grievance has not been finally dealt with. It was resolved in the memorandum of settlement. The Board made that funding in paragraph 8 of the decision of December 5, 2003. It appears the applicant is not happy with the amount of time it took to bring his complaint to resolution. He feels the issue concerning the unpaid wages ought to have been subject to negotiation earlier. Had that happened, and a settlement been reached in August 2002 rather than the following December, the applicant would have been able to use the settlement money to alleviate some pressing financial pressures. He blames the union for the delay. In my view, given the satisfactory resolution of both grievances, no labour relations purpose would be served into an inquiry whether or not the alleged delay in dealing with the suspension grievance was due to arbitrariness, discrimination or bad faith on the part of the union. Accordingly, this portion of the complaint fails. 9. The third question posed by the Board had to do with the applicant's displeasure concerning the union's alleged refusal to allow him third-party representation in the course of the processing of his grievances. In my decision of December 5, 2003 I characterized this as an internal matter, unrelated to the quality of the union's representation of the applicant vis-a-vis the intervenor. The applicant's reply is much the same as it was in response to the fn'st question posed: the union has permitted third-party representation to other bargaining unit employees, but not to the applicant. For the same reasons stated above, I am not persuaded by that argument. To the extent, if any, that the union is being arbitrary, it is not arbitrariness in connection with its statutory duty. 10. The fourth question was whether or not there was any other labour relations reason for inquiring into the application, based on the applicant's pleadings. The answer provided by the applicant is not entirely coherent, and, in any event, does not persuade me there is any reason for the Board to make inquiry. Reference is made by the applicant, once again, to the labour disruption in the first half of Z002, and the decision of the intervenor to stop paying the applicant during his suspension. The applicant states that the essential services agreement between the union and the intervenor was inadequate, and failed to set the condition precedent for a legal strike or lockout. The applicant goes on to make submissions about the appropriate forum for resolution of disputes. I assume that, by disputes he means the merits of this application, but I do not understand the significance of this assertion. I am not prepared, as the applicant suggests, to take further submissions on the issue. 11. The applicant has not advanced a single valid reason why the Board should inquire further into this matter. Accordingly, I have decided to exercise my discretion under section 96(5) of the Act not to inquire further into the application. It is dismissed. "Patrick Kelly" for the Board