Sinclair Welding Limited v. International Union of Operating Engineers, Local 793
[1981] OLRB Rep. December 1822
1421-80-M Sinclair Welding Limited, Applicant, v. International Union of Operating Engineers, Local 793, Respondent.
BEFORE: Ian Springate, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.
APPEARANCES: K. W. Kort for the applicant; S. B. D. Wahl. E. A. Ford and G. Steers for the respondent.
DECISION OF THE BOARD; December 8, 1981
This is a referral of a grievance to the Board pursuant to section 1 12a (now section 124) of the Labour Relations Act. For ease of reference the applicant will henceforth be referred to as "the company" and the respondent as "the union".
On June 4, 1979, the Board certified the union as the bargaining agent for certain employees of the company. Included in the bargaining unit were persons engaged in the operation of cranes in all sectors of the construction industry, including the industrial, commercial and institutional sector ("the ICI sector"). Although the parties apparently now enjoy a fairly smooth working relationship, certain events subsequent to the union s certification gave rise to a considerable amount of litigation before the Board.
On March 10, 1981, the same panel of the Board as is seized with this matter, issued a decision relating to twelve separate grievances filed by the union against the company. See: Sinclair Welding Limited, [1981] OLRB Rep. March 331. For the purposes of this decision, the parties are in agreement that' the Board can take note of the facts set forth in that decision. The only other events relied on by the parties concern a proposed application by the company for a cease and desist order, a matter which is referred to more fully below. In its decision of March 10, 1981, the Board set out the following facts:
On June 4, 1979, the Board certified the [union] for certain employees of the [company], including those engaged in the operation of cranes. By force of the province-wide bargaining provisions of the Act (enacted as 1977 c. 31), the [company] automatically became bound to the Operating Engineers' provincial agreement in the ICI sector. Although the agreement itself purports to cover a number of sectors, at the hearing the parties agreed that it was binding on the [company] only with respect to the ICI sector.
Mr. Wiles [the president and major shareholder of the company which is based in Belleville] testified that following the certification of the union he was advised by a lawyer [Mr. K. W. Kort, a Belleville lawyer experienced in labour relations matters] that the [company] was automatically bound to the provincial agreement in the ICI sector. Mr. Wiles, who at one time prior to the enactment of the province-wide bargaining provisions of the Act had been responsible for administering a collective agreement, doubted the accuracy of the lawyer's advice. For his part, Mr. Steers [a business representative of the union in the Belleville area] appears to have been totally unaware of the province-wide bargaining provisions of the Act and unaware of the fact that the [company] was automatically bound by the provincial agreement in the ICI sector.
On June 14, 1979, Mr. Steers attended at the [company's] premises to discuss signing a collective agreement, but nothing was resolved. Subsequently, the [union] asked the Minister to appoint a conciliation officer, and on July II, 1979 a meeting was held between the parties with a conciliation officer present. Nothing was resolved at this meeting. On August 3, 1979, the Minister indicated that he would not be appointing a conciliation board. On August 18, 1979 the employees of the [company] outside the ICI sector covered by the Board's certificate were in a legal position to strike. However, since the ICI sector was already covered by a subsisting collective agreement, employees working in this sector were not in a legal strike position.
On September 19, 1979 Mr. Steers and a number of other persons began to picket in front of the [company's] premises. The two employees who belonged to the.. . trade union refused to cross the picket line. Mr. Steers was overheard telling the two union members not to cross the line, and also that they should not work for the [company] even when no picketers were present. As already noted, Mr. Steers was apparently unaware of the fact that the provincial agreement already covered the [company's] employees in the ICI sector, and accordingly, he did not distinguish that sector from the others. Pickets also began to appear at the [company's] job sites, including sites in the ICI sector. Picketing activity continued on a regular basis through the month of October, 1979. Partway through October, both of the employees who belonged to the. . . union informed the [company] that they were quitting its employ to obtain work elsewhere. The [union's] picketing activity became increasingly sporadic in November, and by late December of 1979 it had ceased altogether.
In January, 1980, Mr. Mitchell [an employee of the company] applied to the Board to have the [union's] bargaining rights terminated (File No. 1914-79-R). The matter came on before a differently constituted panel than the one seized of these matters. It is agreed that at the hearing into the termination application, the members of the Board panel explained to the parties that they were bound to the provincial agreement in the ICI sector. In a written decision released on February 4, 1980, the Board again stated this to be the case. The Board also dismissed the termination application in its entirety. The application was clearly untimely with respect to the ICI sector, and with respect to the other sectors, because of Mr. Wiles' involvement with the application, the Board was not prepared to conclude that it was a clearly voluntary application on the part of Mr. Mitchell.
Apart from both being in attendance at the hearing into the termination application, the... [parties] had no involvement with each other from late January [this should have read late December], when the [union] completely stopped its picketing activity, until March of 1980. On March 10, 1980, the [union] sent a grievance to the [company]. The grievance (subsequently referred to the Board in File No. 0287-80-M) related to a job site on Jamieson Bone Road in Belleville, where Mr. Mitchell had been operating a crane used in the erection of a preengineered building for a transport firm. The work clearly came within the ICI sector. The grievance stated as follows:
"The nature of the grievance is as follows: The employer has failed or refused to employ members of the Union in good standing for work covered by the collective agreement and to call the Union Office whenever personnel are required.
Remedy requested: That the employer replace all personnel who are not in good standing for the Union with those who are and further that the employer pay to the I.U.O.E. Local 793 in trust, all wages and other monetary items set out in the collective agreement for all hours earned by personnel not in good standing with the Union."
On June 3, 1980, the [union] filed a second grievance with the [company], and subsequently the other grievances followed. The grievances all contain wording similar to the one quoted above, although they each relate to different job sites.
In the proceedings arising out of the grievances filed by the union, the company contended that the provisions of the provincial agreement alleged to have been violated, including the provision requiring that employees working under the agreement be union members, had not in fact been violated or, in the alternative, if they had been, it would be unfair to award any damages to the union. In dealing with this latter contention, the Board reasoned as follows:
In support of this. . . contention, the [company] relies on the fact that Mr. Steers, on behalf of the [union], directed two crane operators belonging to the union not to work for the [company], and further picketed the [company's] job sites, including those in the ICI sector. At the hearing, counsel for the [union] contended that even if this conduct on the part of the [union] had been improper, nevertheless, the [union's] conduct could not serve to amend the collective agreement so as to do away with the [company's] obligations under the agreement.
To all intents and purposes, the [union's] conduct after it was certified indicated very clearly that it did not regard itself as bound by the provincial agreement insofar as the [company] was concerned. At law, the [union] and the [company] did in fact remain bound to the agreement. and the [union's] conduct cannot be viewed as having amended the agreement in any way. Nevertheless, in our view, because of its conduct it would be inequitable for the [union] to now obtain damages for a period of time when the [company] reasonably believed it need not conform with the terms of the agreement. During this time period, the pre-conditions for the application of the principle of estoppel were clearly present. See: Canadian General Electric Co. Ltd. (1971), 1971 CanLII 1934 (ON LA), 22 L.A.C. 149 (Johnston).
As already indicated, the application of the principle of estoppel does not have the effect of amending a collective agreement. Rather, what it does do is prevent a party from enforcing its strict rights under the agreement when, because of its own conduct, it would be inequitable to allow it to do so. This being the case, notice of a reversion to the strict terms of the agreement will generally bring the estoppel to an end. Further, arbitrators have generally adopted the position that the filing of a grievance will usually be sufficient notice of a reversion to the strict terms of the agreement. See: Hydro-Electric Power Commission of Ontario (1975), 1975 CanLII 2150 (ON LA), 8 L.A.C. (2d) 276 (Schiff). Here, the [union's] first grievance, that dealing with the Jamieson Bone Road project, indicated very clearly that the [union] wanted the terms of the provincial collective agreement applied to work performed by the [company]. In our view, the effect of this grievance was to bring the estoppel to an end since from this point on the [company] was aware of the [union's] intention to rely on the terms of the collective agreement. In all of the circumstances then, we are of the view that the [union] is estopped from now claiming any damages as a result of the [company's] non-compliance with the provincial collective agreement either prior to or on the Jamieson Bone Road project, but that the grievance filed with respect to that project served to bring the estoppel to an end.
On May 23, 1980 the instant grievance was filed by the company against the union alleging that the union violated the provincial agreement by engaging in a strike in the ICI sector during the term of the agreement. Particulars filed in support of the grievance contend that commencing on September 19, 1979, union officials picketed the company's ICI projects, and that Mr. Steers advised certain of the company's ICI clients that the union was in a legal strike position with respect to the company. According to the particulars, these actions resulted in the company's removal from a number of ICI job sites. The company now seeks over $100,000.00 as compensation from the union as a result of its alleged actions.
The union's position is that the company is foreclosed by its own conduct from claiming damages for the union's breach of the provincial agreement. In this regard, at the hearing the union's primary contention was that just as the union was found to be estopped from claiming damages for a breach of the provincial agreement at a time when it indicated it did not regard itself as bound by the agreement, so the company should be estopped from claiming damages during the period that the company indicated it did not regard itself as bound by the agreement.
Although the company grievance is dated May 23, 1980, it indicates that it covers the period of "September 19, 1979 and continuing". The time period involved spanned two provincial agreements. In a decision dated March 16, 1981 (see: [1981] OLRB Rep. March 343), the Board ruled that it had jurisdiction to deal with the grievance insofar as it applied to both agreements. The Board did not, however, address itself to the effect of the delay on the part of the company in filing the grievance, or the possible application of the principle of estoppel.
Article 6.7(b) of the current provincial agreement provides that employer grievances shall be commenced within ten full working days after the circumstances giving rise to the grievance occurred or originated. At the hearing dealing with this aspect of the proceedings, neither party addressed themselves to the effect of article 6.7(b). Accordingly, there was no discussion as to whether the ten day time limit had been waived by the union, whether the Board should extend the time for filing the grievance, or, indeed, whether the time limit ever applied to this referral in that section 124 states that a party can refer a grievance to the Board "notwithstanding the grievance and arbitration provisions in a collective agreement". In these circumstances, the Board will concern itself only with the issue dealt with by the parties, namely, whether, quite apart from article 6.7(b), the company's conduct in waiting until May 23, 1980 to file its grievance forecloses it from now claiming damages for the union's breach of the provincial agreement.
It is clear that shortly after the union was certified, Mr. Wiles was advised of the applicability of the provincial agreement in the ICI sector by counsel experienced in labour relations matters, but he chose to ignore that advice. Subsequent to the commencement of the strike, company counsel prepared an application to the Board for a cease and desist order on the basis of the claim that in the ICI sector the strike was unlawful. A copy of the document was forwarded to the union, but the application was never proceeded with, apparently due to Mr. Wiles' belief that his counsel had an incorrect view of the law. In December of 1980, the union ceased all picketing activity against the company. In January of 1980, the Board in the context of the termination proceedings, orally advised the parties that they were bound by the provincial agreement in the ICI sector, and this was stated again in writing on February 4, 1980. On March 10, 1980, the union filed a grievance with respect to the company's alleged violation of the provincial agreement on a job project then underway. Notwithstanding all of the above, it was only on May 23, 1980 that the company filed its grievance against the union.
We have some doubts as to whether the principle of estoppel applies in this case so as to bar the company's grievance. Whereas the union by withdrawing its members from their active employment with the company and picketing the company's ICI job sites made it clear to the company that it did not regard itself bound to the provincial agreement, and by extension that the company need not employ union members to operate its cranes, there was no clear-cut message from the company to the union that the company did not regard itself as bound by the agreement anti that the union was free to engage in a strike in the ICI sector. Instead, what the company did was essentially to acquiesce in the union's conduct and to remain silent about the matter until some eight months later.
Generally, arbitrators have imposed some time limitation on the use of the grievance procedure even where such a time limit is not set out in the relevant collective agreement. This point was stated as follows by Professor Laskin (as he then was) in Re Canadian General Electric Co. and United Electrical, Radio and Machine Workers of America (1952), 3 L.A.C. 980 at pp. 982-983:
Neither the Agreement under which this grievance was filed nor the preceding Agreement contains any time limitations for the filing of grievances. Is there, then, any basis on which a grievance can justly be declared "stale" or "out of time", and thus subject to rejection without consideration of its merits? And if there is such a basis of rejection, is this case within its limits? In considering the problem it is safe to start with the proposition abstract though it may be, that a grievance about an alleged violation of a Collective Agreement should be brought within a reasonable time after the alleged violation has occurred. It should make no difference to the application of this proposition that the grievors were unaware that they had a right to complain, unless they were in some way misled by the Company. A Collective Agreement is binding on the Union and employees as well as on the employer, and it is a chief function of a Union as a Collective Bargaining Agent for employees to be zealous in asserting rights of employees under a Collective Agreement. Absent bad faith on the part of the employer, a Union which misconceives its rights or those of employees and thereby fails to press them, should not be permitted to make a retroactive claim to re-open, after the lapse of a reasonable time, transaction which have been completed, as, for example, cases of piece-work jobs for which payment has been made and accepted without expression of dissatisfaction.
Where the alleged violation by the Company is of a continuing nature, in the sense that the jobs or situations giving rise to the violation are of a recurring kind, it does not follow that failure of the Union or an employee to press for relief on certain of those jobs or matters bars them from raising the question in any subsequent case. Again, the relevant inquiry is whether the claim for relief was made within a reasonable time after the matter in issue arose. It is not, in the Board's view, a tenable principle that waiver of rights in any one case amounts to a complete waiver for all like cases. So long as the Collective Agreement affords a basis for relief against any situation, the party entitled to its benefits may assert its rights or refrain from asserting them in any particular instance, subject, perhaps to estoppel if there has been any misleading representation upon which the other party has relied to its detriment.
Applying the foregoing propositions to this case, it is clear that (subject to estoppel) the Union or an employee could at any time assert a claim for average earnings for repair work at or about that time, regardless of a previous failure to assert such a claim in respect of previous repair work. This does not mean, however, that a claim for average earnings can be made at any time for repair work done at any time. The efficient and expeditious conduct of labour relations or, what is much the same thing, the proper administration of a Collective Agreement, requires mutual recognition by the parties of a principle of repose as to all claims under the Agreement not asserted within a reasonable time and involving matters which have, to all outward appearances, been satisfactorily settled between the parties. Unless some such policy is admitted, then, having regard to continuing nature of Collective Agreements there is wide scope for harassing activities by each party with consequent danger of damage to present relations by dragging up ghosts from the past.
The principle was more recently stated as follows by Professor Arthurs in Re Oil Chemical and Atomic Workers, Local 9-672 and Dow Chemical of Canada Limited(1966), 18 L.A.C. Slat p. SS:
Prompt adjustment of grievances is naturally of great importance in maintaining amicable labour-management relations. Unions have often complained of the corrosive effect of unresolved grievances of individuals who feel themselves wronged, but are unable to secure speedy redress because of management evasion or delay. Indeed, this commonplace observation is recognized by the recital in art. 5.01 that "it is of the utmost importance that adjustment of complaints and grievances should be made as speedily as possible". The whole grievance procedure, then, is based on a premise of reasonable speed. This premise becomes overt in both art. 5.01 and 5.10, which attach time limits not to the submission to arbitration, but to the period within which "final" or "satisfactory" settlement must be made. By this device, the parties are forced to determine whether the grievance has been laid to rest or whether it is still a matter of contention. The one thing the agreement does not contemplate, then, is that grievances should exist indefinitely in a state of suspended animation. Yet the possibility exists that a dormant grievance may be revived after weeks, months or even years, unless a board of arbitration has power to hold it time-barred.
To cope with an analogous problem, civil courts have developed the equitable doctrine of laches, which is used to deprive a lethargic party of relief which his prompt action might have secured. It has been suggested that the same doctrine exists in labour arbitration, see Re Ottawa Newspaper Guild, Local 205, and Ottawa Citizen (196S), 1965 CanLII 1038 (ON LA), 16 L.A.C. 147 (Reville, C.C.J.). While this decision was quashed on certiorari, SS D.L.R. (2d) 26, 1965 CanLII 164 (ON HCJ), [1966] 1 OR. 669, by Gale, C.J.H.C., a careful reading of the Court's decision leaves untouched the basic premise that grievances must move promptly to arbitration, even in the absence of specific time limits in the collective agreement. The arbitrator had held that he was "deprived of jurisdiction" to hear the case on the merits by reason of delay. The Court quashing the award, stated (p. 27):
"It is one thing to hold that a claimant is barred from relief on the ground of laches or unreasonable delay, but quite a different thing to hold that jurisdiction is taken away by unreasonable delay which does not violate the express terms of the arrangement between the parties. At least the tribunal must possess power to decide the effect of the alleged delay and to that extent must entertain the matter."
None the less, the decision does conclude with an admonition to the arbitrator to canvass the actual circumstances of the case in order to determine why the request for arbitration was delayed and what harm, if any, resulted from the delay. Presumably, if the arbitrator had found on the basis of evidence that there was no excuse for the delay, or that some actual prejudice occurred, his holding would have been sustained. The arbitrator's power to dismiss dormant grievances, then, must rest not upon technical equitable doctrines — this is not a civil Court but upon considerations related to labour relations proceedings.
In the instant case, the company raised no explanation for its failure to grieve earlier, except for Mr. Wiles' refusal to accept the advice of a lawyer experienced in labour relations matters to the effect that the company was bound by the provincial agreement in the ICI sector. Action on the part of the company during 1979 to advise the union that the strike in the ICI sector was in breach of the provincial agreement and subject to a possible damage claim may well have caused the union to end its strike activity in that sector. In this regard it is to be noted that until January of 1980, Mr. Steers, the individual responsible for the union's tactics during the relevant period, was unaware of the fact that the company was automatically bound to the provincial agreement in the ICI sector, and that subsequent to his being advised of that fact by the Board, the union engaged in no further picketing activity. Taking all of these circumstances into account, we are satisfied that it would be inappropriate to allow the company to now claim damages back to September 19, 1979, and propose instead to limit any damages it can claim to a more reasonable time period prior to the filing of the grievance. In this regard (subject to the possible applicability of article 6.7(b) of the provincial agreement), we propose to use as the cut-off point March 10, 1980, the date prior to which the Board declined to allow the union to claim damages for the company's breach of the provincial agreement.
The company is claiming damages with respect to certain alleged incidents subsequent to March 10, 1980. Accordingly, this matter will be re-listed for hearing with respect to the period subsequent to March 10, 1980.