ONTARIO LABOUR RELATIONS BOARD
Labour Relations Act, 1995
OLRB Case No: 0493-21-U Duty of Fair Representation
Haran Thurairasah, Applicant v Ontario Public Services Staff Union, Responding Party v Ontario Public Services Employees Union (OPSEU), Intervenor
COVER LETTER TO THE PARTIES LISTED ON APPENDIX A
The Board is attaching the following document(s): Decision – April 08, 2022
DATED: April 08, 2022
Catherine Gilbert Registrar
Website: www.olrb.gov.on.ca
Address all communication to:
The Registrar
Ontario Labour Relations Board 505 University Avenue, 2nd Floor Toronto, Ontario M5G 2P1
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ONTARIO LABOUR RELATIONS BOARD
OLRB Case No: 0493-21-U
Haran Thurairasah, Applicant v Ontario Public Services Staff Union, Responding Party v Ontario Public Services Employees Union (OPSEU), Intervenor
BEFORE: Maureen Doyle, Vice-Chair
DECISION OF THE BOARD: April 8, 2022
1. This is an application filed with the Board pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the “Act”). The applicant asserts that the responding party, Ontario Public Service Employees Union (“OPSSU”, the “union”) violated section 74 of the Act with respect to the applicant’s relationship with the employer, Ontario Public Service Employees Union (“OPSEU”, the “employer”). OPSSU denies that the Act has been violated.
2. In its response, in addition to denying that it has violated the Act, OPSSU seeks dismissal of the application on the basis that it does not reveal a prima facie case.
3. In a decision dated October 29, 2021, the Board directed the applicant to file submissions in response to the request of OPSSU that this matter be dismissed as revealing no prima facie case, including copies of any case law relied upon, and to copy the other parties. The applicant requested an extension of the time for those submissions, stating that an extension is required “due to work commitments” and the need to consult “outside counsel”.
4. The applicant was granted an extension to December 1, 2021 to provide the above-noted submissions to the Board, and to copy the other parties. In a decision dated January 24, 2022, the applicant was granted a further extension to February 8, 2022 to provide submissions and to copy the other parties. The decision stated that if the applicant failed to provide submissions in the timeframe provided, the Board would consider whether to dismiss this matter on a prima facie basis of the materials before it.
5. The Board has received nothing further from the applicant and accordingly this matter is decided on the basis of the materials currently before the Board.
6. The applicant includes Schedule “A” to an Unfair Labour Practice complaint (ULP), which states, among other things that the union understood the employer had hired 24 individuals who were temporary employees, to permanent positions, without competition. The applicant states that the union filed the Unfair Labour Practice (ULP) complaint against the employer on April 16, 2021, and that this complaint has a “direct impact” on the applicant’s pension. The applicant states that the union did not discuss with the applicant its intention to file the ULP and it did not disclose any information to the applicant regarding three days of mediation which took place with the employer, presumably about the ULP.
7. The applicant states that the union asserts it is acting in the best interests of all members but the applicant says that in the ULP the union wants to remove the applicant from the applicant’s permanent position. The applicant asserts that the union has said on more than one occasion that the pension plan is being “impacted as a result of the employer not filling positions on a permanent basis”. The applicant states that the applicant has suggested to the union leadership that the ULP complaint could be resolved by “working out an MOU with the employer on converting temporary staff to permanent positions”, but that the union has not addressed this suggestion. The applicant states that at a General Members Meeting of the union on January 30, 2021, there was “extensive discussion” about the “pension issue”.
8. The applicant also states that the applicant is a racialized person, and that when the employer offered the applicant a permanent position, it wanted to “promote diversity and inclusion within the organization”. The applicant states that the current leadership of the union is not “diverse and inclusive” and asks “Given this, how can OPSSU fairly represent me?”
9. The union submits that the applicant has not established a prima facie case, and requests that the Board dismiss the application. It submits that it is under no obligation to discuss filing a ULP with the members, nor is it permitted to divulge confidential settlement discussions.
10. The union submits that it has taken actions to ensure that temporary positions are filled in accordance with the collective agreement and filed a grievance and the above-noted ULP regarding this issue. It submits that it has worked to resolve the matter on an amicable basis, including participating in mediation with the employer regarding the issue. The union submits that it is obliged to represent all members, and states that the applicant has pled “nothing to suggest that the union wanted the Applicant specifically removed” from the applicant’s position.
11. The union submits that the applicant has not plead anything which would establish that the union treated the applicant in a way that was arbitrary, discriminatory or in bad faith. The union submits that though the applicant states that the union leadership cannot represent the applicant as its leadership is not diverse and inclusive, the applicant has provided “no basis whatsoever to support this claim” and the applicant asks a hypothetical question without any basis in fact.
12. In support of its position that the applicant has not made out a prima facie case, the union cites several decisions: Savage Shoes Ltd., [1983] OLRB Rep. Dec 2067; Bartlett v. Amalgamated Clothing and Textile Union. Local 307, 1983 CanLII 791 (ON LRB) (“Bartlett”); Kezia Motluk v. Halton District Educational Assistants Association, 2013 CanLII 15756 (ON LRB), and Sukhoo v. Labourers International Union of North America, Local 506, 2001 CanLII 20549 (ON LRB).
Analysis and Decision
13. At this stage, the question to be answered is whether any of the applicant’s allegations, if true, make out a violation section 74 of the Act. Section 74 reads:
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 of trade unions, as the case may be.
14. The Board has the authority under Rule 39.1 of the Board’s Rules of Procedure to dismiss an application without a hearing where it does not make out a prima facie case. To plead a prima facie violation of the duty of fair representation under section 74 of the Act, the applicant must plead facts capable of supporting a conclusion that the union acted in a manner that is arbitrary, discriminatory, or in bad faith.
15. The Board in Hill v Canadian Union of Public Employees, Local 793, 2006 CanLII 7208 (ON LRB) summarized the Board’s jurisprudence considering the terms arbitrary, discriminatory and bad faith as follows:
(a) “arbitrary’ means conduct which is capricious, implausible or unreasonable, often demonstrated by a consideration of irrelevant factors or a failure to consider all relevant factors;
(b) “discriminatory” is broadly defined to include situations in which a trade union distinguishes between or treats employees differently without a cogent reason or labour relations basis for doing so;
(c) “bad faith” refers to conduct motivated by hostility, malice, ill-will, dishonesty, or improper motivation.
16. The Board has held repeatedly that the threshold for pleading a prima facie case is not particularly high. In J. Paiva Foods Ltd., [1985] OLRB Rep. May 690, at page 691, the Board held as follows:
The Board’s discretion to dismiss a complaint on the grounds that it does not disclose a prima facie case should only be exercised in the clearest of cases, that is, when the Board is satisfied that there is no reasonable likelihood that a violation of the Act can be established on the facts as alleged.
17. In assessing whether an application states a prima facie case, the Board must assume that the applicant’s allegations are true and could be established if the matter proceeded to a hearing or consultation. The Board does not consider any explanation or defense offered by a responding party in making this determination.
18. While it is clear that the applicant is not happy that the union has filed a ULP compliant which could have an impact on the applicant’s position, there is nothing in the application which would establish that the union has acted in a manner which is arbitrary, discriminatory or in bad faith.
19. The union is not obliged to consult with the members prior to filing a ULP, nor is it required to discuss the substance of settlement discussions with members in these circumstances. Though the applicant believes that the union should conclude an agreement with the employer which would convert temporary staff to permanent positions, and asserts that the union has not addressed this suggestion, the applicant has not made allegations which would establish that by not discussing settlement strategies with the applicant, the union has acted arbitrarily, discriminatorily, or in bad faith. In fact, the applicant has asserted that the union spent three days in settlement discussions regarding the ULP: there is no basis to conclude that in doing so it behaved in a way which was arbitrary or in any way that was contrary to its obligations under the Act.
20. The applicant has asserted that the union wants to remove the applicant from the applicant’s permanent position. As the Board observed in Bartlett:
36. Section 68 requires that each trade union decision be grounded on a consideration of relevant matters, free from the influence of irrelevant considerations. The requirement that a trade union not act in a manner which is in bad faith protects the legitimate expectation that an individual employee’s bargaining agent will act honestly and free of any personal animosity toward him. The requirement that a trade union not act in a discriminatory manner protects against the making of distinctions between employees and groups of employees on bases which have no relevance to legitimate collective bargaining concerns. “Bad faith” and “discriminatory”, therefore, test for the presence, in the process or results of union decision-making, of factors which should not be present. “Arbitrary”, on the other hand, describes the absence in decision-making of those things which should be present. A decision will be arbitrary if it is not the result of a process of reasoning applied to relevant considerations. The duty not to act arbitrarily requires a trade union to turn its mind to the matter at hand.
21. The applicant has provided no indication of how the union has taken action to target the applicant in a way which was due to any personal animosity or took actions for reasons which were unrelated to legitimate collective bargaining concerns. I am not persuaded that the applicant’s allegations would establish that the union acted in a way which was arbitrary or in bad faith or discriminatory.
22. The applicant also asserts that the leadership of the union is not diverse or inclusive and draws the conclusion that the leadership will not be able to represent the applicant fairly. The applicant has provided no particularized assertion to establish that the union has not represented the applicant fairly, and there is nothing in the applicant’s hypothetical question to establish that the union has acted contrary to its obligations under the Act.
23. The applicant has not pleaded facts which are capable of establishing capable of supporting a conclusion that the union acted in a manner that is arbitrary, discriminatory, or in bad faith. For all of the reasons above, this application is dismissed as stating no prima facie case that the union has contravened its duty of fair representation under the Act.
“Maureen Doyle” for the Board