[1980] OLRB Rep. November 1643
1790-79-U United Steelworkers of America, Complainant, v. Fotomat Canada Limited, Respondent.
BEFORE: George W. Adams, Chairman and Board Members F. W. Murray and W. F. Rutherford.
APPEARANCES: James Haves, William Mills and George Surdykowski for the complainant and John P. Sanderson Q. C. for the respondent.
DECISION OF THE BOARD; November 20, 1980
- By letter dated November 12, 1980 the complainant trade union advised the Registrar of the Board that the respondent company had not complied with any aspect of the Board's order of October 24, [1980] OLRB Rep. Oct. 1397. The order provides:
(a) Having regard to all of the above circumstances, we have come to the conclusion and so direct that regardless of the outcome of negotiations on the issuance of this order, striking employees should be given the opportunity to make an unconditional application to return to work on or before December 1, 1980 and if such application is made by any striking employee the respondent shall reinstate the said employee to his former position whether or not a strike replacement employee must be transferred, laid-off or terminated.
(b) The Board declares that the respondent failed to bargain in good faith and make every reasonable effort to make a collective agreement by withdrawing its monetary proposals by its letter dated June 17, 1980.
(c) The Board further declares that the respondent failed to bargain in good faith and make every reasonable effort to make a collective agreement in adopting the position that it did on union security on and about February 25, 1980 and March 3, 1980.
(d) The Board directs the respondent to bargain in good faith and make every reasonable effort to make a collective agreement. To this end, the Board specifically directs the respondent, on the receipt of this decision, to convene forthwith a series of bargaining meetings between itself and the complainant with the assistance of a Ministry of Labour mediator and, at the initial meeting, to resubmit for the complainant's consideration the entire offer made to the complainant on or about February 25, 1980 including the monetary proposals that it unlawfully withdrew on June 17, 1980.
(e) The respondent is directed to post copies of the attached notice marked "Appendix" after being duly signed by the respondent's representative, in conspicuous places at all its places of business where bargaining unit employees are employed in Ontario, including all places where notices to employees are customarily posted and to keep these notices posted for 60 consecutive working days. Reasonable steps shall be taken by the respondent to insure that the said notices are not altered, defaced or covered by any other material. Reasonable physical access to the premises shall be given by the respondent to two representatives of the complainant trade union to satisfy itself that this posting requirement has been and is being complied with.
(f) The respondent is directed, at its own expense, to mail a copy of the attached notice marked "Appendix" after being duly signed by the respondent's representative to the residence of each employee in the said bargaining unit forthwith.
(g) The respondent is further directed to pay to all bargaining unit employees all monetary losses that the complainant can establish by reasonable proof as arising from the loss of opportunity to negotiate a collective agreement due to the unlawful conduct of the respondent, the said damage, if any, running to the date of the first meeting convened by the respondent in accordance with paragraph (d) of the Board's order, together with interest as appropriate.
By letter dated November 10, 1980 Mr. F. von Veh, on behalf of the respondent company, advised the counsel for the complainant trade union that "the matter should be reviewed by the courts" and that "at the present time that we do not concur with the position of your client that the Board's orders should be enforced forthwith."
Subsequently, Mr. von Veh took the position on behalf of the respondent outlined in his letter to Mr. Hayes dated November 14, 1980. It reads:
We have now had an opportunity to fully review the decision of the Board in the above-noted matter dated October 24, 1980 and, in view of the Board hearing herein scheduled for Wednesday, November 19th, would propose that the Order of the Board be implemented on the following basis:
1.) Insofar as paragraph (d) is concerned, we have contacted the Director of Mediation and Conciliation, Mr. Jack Speranzini, and have been advised that it would be possible to schedule a meeting with the Mediator appointed in this matter, Mr. Harry Sparling, on one of the following days which would also be suitable to the undersigned, namely, Tuesday, November 25th, Tuesday, December 2nd or Wednesday, December 3rd.
2.) We have been instructed by our client to institute judicial review proceedings in relation to paragraph (a) of the Order of the Board.
3.) We are prepared, in relation to paragraphs (e) and (I) of the Order of the Board to post and mail notices, respectively, with paragraph (1) deleted and with a proviso in paragraph (3) excluding the Warden Avenue bargaining unit pertaining to route drivers and maintenance employees.
4.) In view of the declaratory nature of paragraphs (b) and (c) of the Order of the Board, no action on the part of our client is required.
5.) In relation to paragraph (g) of the Order of the Board, it is the position of our client that this matter will be resolved in due course pending the outcome of continuing negotiations and pending the ultimate outcome of judicial review proceedings to be instituted as above-noted.
It is hoped that the aforementioned proposals will alleviate the necessity of attending before the Board on Wednesday, November 19th.
We also wish to advise you that Mr. Lorne Morphy, Q.C., has been retained in relation to judicial review proceedings — would it be in order for you to accept service on behalf of your client in relation to the necessary documents which have to be served?
I hope to hear from you soon on the within proposals.
At a hearing before the Board Mr. Sanderson requested the Board to "stay" that portion of its order relating to the reinstatement of striking employees until the application for review has been dealt with by the courts. He also sought an amendment to the Board's notice to this effect prior to the posting and mailing of the notice by the respondent company. On behalf of the complainant trade union it was argued that status of the striking employees was integrally related with the other aspects of the Board's order and that the efficacy of this bargaining relationship would be seriously impaired by the delay involved in an application for judicial review. A "stay" was, therefore, vigorously opposed.
Alternatively, counsel for the respondent submitted that only one employee had applied for reinstatement under the Board's order and that therefore the respondent was not in breach of the Board's order in this respect.
The Board gave an oral ruling at the hearing which we now set out in amended form.
On the basis of the submissions of the respondent's counsel and the respondent's letter of November 14,1980, we are satisfied that the respondent has no intention of complying with paragraph (a) of the Board's order until its application for judicial review has been heard by the courts. To be fair, counsel did say that the respondent's position might change depending on the number of applications received before December 1, 1980, but its general position is contrary to the order at this time. Indeed, the respondent did not indicate it had reinstated the lone striking employee who has already applied. It is clear law that the mere filing of an application for judicial review does not automatically stay the order of an administrative tribunal, at least under The Labour Relations Act. See Re International Woodworkers of America and Patchoque Plymouth Hawkesbury Mills (1976), 14 OR. (2) 118; Frito-Lay Canada Limited, [1978] OLRB Rep. Sept. 831. It is also beyond dispute that the respondent has not posted or mailed the notices detailed in the Board's order as directed, although this inaction relates to its concern about the propriety of paragraph (a) of the Board's order. In such circumstances, and for the purposes of section 79(5), it can be said that the respondent company "has failed to comply with [at least some of] the terms of the [Board's] determination." It is also beyond dispute that the respondent made its efforts to convene the directed bargaining sessions only after the period of time stipulated by section 79(5) of The Labour Relations Act.
Section 79(5) of The Labour Relations Act provides:
Where the trade union, council of trade unions, employer, employers' organization, person or employee, has failed to comply with any of the terms of the determination, any trade union, council of trade unions, employer, employers' organization, person or employee, affected by the determination may, after the expiration of fourteen days from the date of the release of the determination or the date provided in the determination for compliance, whichever is later, notify the Board in writing of such failure, and thereupon the Board shall file in the office of the Registrar of the Supreme Court a copy of the determination, exclusive of the reasons therefor, if any, in the prescribed form, whereupon the determination shall be entered in the same way as a judgment or order of that court and is enforceable as such.
While at the hearing the Board advised the parties that its finding of non-compliance would be confined to paragraphs (a), (e) and (f) of the Board's order and that we would register only these portions of the order, we are now of the view that section 79(5) requires that a copy of the entire determination, exclusive of reasons, be filed in the office of the Registrar of the Supreme Court even where only a part of the said determination is not complied with. One assumes that this is to permit the Court to see the complete order and consider its various interrelationships, if any. We are also of the view that while the respondent company has now begun to act on paragraph (d), it was in non-compliance of this paragraph on the date the complainant trade union requested this hearing and complained about compliance. We have therefore decided to file our entire order with the courts because of the wording of section 79(5) and because, at one time or other, the respondent has failed to comply with all aspects of the Board's order. The complainant can seek enforcement of portions of the order that the respondent continues to refuse to submit to. The mere filing of this determination with the Court does not result in automatic enforcement to the prejudice of the respondent. See also The Statutory Powers Procedure Act. 1971, S.O. 1971, c. 47, section 19(1).
In addition, we wish to make it clear to both parties that our findings of October 24, 1980 apply to the Warden Avenue location of the respondent and that the Board's order, in its entirety, pertains to that location.
As for the respondent's request for a "stay" of paragraph (a) of the Board's order, we seriously question whether we have such jurisdiction under section 79(5), a section which seems to speak in mandatory terms. However, even if we construe this request as being one seeking reconsideration of the Board's order, we do not think the circumstances warrant an alteration or amendment to the Board's determination. We accept that the ongoing collective bargaining between the parties and the viability of the subject bargaining units cannot be divorced from the job rights of the striking employees. A substantial delay in compliance with the order as it affects these employees is, in our opinion, likely to further undermine the collective bargaining rights of the complainant trade union and make academic the earlier proceedings on which our order is based.