The Ontario Labour Relations Board (OLRB) has dismissed an application by a Red Lobster employee, who claimed her union, United Food and Commercial Workers (UFCW) Local 1006A, failed in its duty to fairly represent her after she reported sexual harassment by her general manager.
The decision was based on the finding that the union had acted within a reasonable timeframe and that the application was premature, given that the grievance process was ongoing.
The applicant, identified as M.W., alleged that UFCW failed to act promptly when she reported sexual harassment by her general manager. In her submissions, M.W. detailed the harassment, which she described as involving “touching, inappropriate comments, and inappropriate text messages” over the course of a year. She further claimed that the union did not act quickly enough after receiving her report on July 6, 2024.
According to M.W., she informed UFCW of the harassment via email on July 6, 2024, and the company was notified the following day. M.W. alleges that despite her repeated attempts to engage the union in the following days, she was “ignored by the Union” until July 11, 2024, when a colleague intervened on her behalf.
The UFCW filed a formal grievance on July 12, 2024, alleging violations of the collective agreement’s provisions related to human rights and the employer’s failure to provide a harassment-free workplace. Despite this, M.W. argued that the union’s initial inaction amounted to a breach of its duty under section 74 of the Ontario Labour Relations Act, which requires unions to fairly represent their members without acting in an arbitrary, discriminatory, or bad faith manner.
Motions to dismiss
Both UFCW and Red Lobster submitted motions to dismiss the application. They argued that the claim was premature, given that the grievance process was still ongoing, and that M.W. had failed to establish a prima facie case under section 74 of the Act.
In response to these motions, M.W. filed multiple submissions, repeating her claim that the union had “ignored” her grievance for several days before taking action. She also alleged that the UFCW had overlooked her grievance regarding harassment by a company representative, identified as the “Northeast Director,” although she acknowledged that no grievance had been filed regarding this matter.
In reviewing the application, the OLRB emphasized that section 74 claims pertain to the conduct of unions, not employers. Therefore, the Board has no jurisdiction over the sexual harassment allegations against the employer, focusing solely on whether UFCW violated its duty of fair representation.
Decision
The Board found that M.W.’s application did not meet the threshold required to establish a prima facie violation of section 74. Chair L.B. noted that UFCW had filed the grievance within four business days of receiving M.W.’s complaint, which, as the applicant acknowledged, was within the timeframe outlined in the collective agreement. Although M.W. expressed dissatisfaction with the union’s initial response, the Board concluded that this did not amount to a breach of the duty of fair representation.
“The applicant alerted UFCW to the alleged sexual harassment on Saturday, July 6, 2024. The union filed a grievance four business days later,” the decision states. “That the applicant may have wanted a faster response from UFCW does not establish a prima facie case that UFCW violated its duty of fair representation.”
Additionally, the Board dismissed M.W.’s claims regarding the company’s Northeast Director, finding that there was no evidence that she had reported the incident to UFCW or requested that the union file a grievance on her behalf.
“The allegation set out in the application… does not contain any suggestion of wrongdoing by UFCW such as to bring the matter within the ambit of section 74 of the Act,” the Board wrote.
The OLRB also determined that the application was premature, as UFCW had filed a grievance and the process was ongoing. The Board cited previous decisions that emphasize the need to allow the grievance and arbitration process to proceed before filing a duty of fair representation claim.
“In these circumstances, the Board is not persuaded that there is any reason to depart from its general approach that there is no good labour relations purpose to be served enquiring into a duty of fair representation complaint where the grievance at the heart of the complaint is still under discussion in the workplace parties’ grievance and arbitration procedure,” the decision reads.
As such, the Board dismissed the application both for failing to establish a prima facie case and on the basis of prematurity.
For more information, see Pubaly White v U.F.C.W. Local 1006a, 2024 CanLII 98789 (ON LRB).
