0365-81-U Donald Lawrence, Complainant, v. Sonic Transport Systems Limited, Respondent.
BEFORE: R. D. Howe, Vice-Chairman, and Board Members of C. G. Bourne and H. Simon.
APPEARANCES: Eva Ligeti and Brian Iler for the complainant; Adrian Hill and Harold Johnson for the respondent.
DECISION OF THE BOARD; October 19, 1981
This is a complaint under section 89 of the Labour Relations Act in which the complainant alleges that he was discharged by Harold Johnson, the President and General Manager of the respondent, contrary to the provisions of section 66(a) of the Labour Relations Act.
Section 66(a) provides:
"No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;. .
Also relevant to this complaint is section 89(5) of the Act which provides:
"On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to his employment, opportunity for employment or conditions of employment, the burden or proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization."
- In the Barrier Examiner case, [1975] OLRB Rep. Oct. 745, the Board stated:
the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts. First, that the reasons given for the discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred".
It is not the function of the Board in the present case to decide whether or not the respondent had just cause to discharge the complainant. Our jurisdiction is limited to determining whether the respondent discharged the complainant because he was a member of a trade union or was exercising any other rights under the Act (see Toronto Star Limited, [1971] OLRB Rep. Sept. 582, paragraph 11). This does not however, preclude the Board from considering the context surrounding the respondent's actions, as indicated by the Board in Fielding Lumber Company, [1975] OLRB Rep. Sept. 665, at paragraph 19:
"The Ontario Labour Relations Board has no general mandate to impose its views of fairness on employers and employees. Its sole responsibility is to administer and enforce The Labour Relations Act a piece of legislation that does not stipulate that an employee can be terminated from his employment only for just and reasonable cause. But having said this it must be observed that in assessing an employer's declared motivation due regard may be had to the peculiarities of the context surrounding an employer's actions. To the extent that peculiarities exist and cannot be reasonably explained an employer may fail, by a process of inferential reasoning, to satisfy the burden placed upon it."
The nature of the determination to be made in cases such as the instant case and the factors to be considered by the Board in making such determination are described as follows in Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299, at paragraph 5:
"In cases such as these the Board is very often required to render a determination based on inferential reasoning. An employer does not normally incriminate himself and yet the real reason or reasons for the employer's actions lie within his knowledge. The Board, therefore, in assessing the employer's explanation must look to all of the circumstances which surround the alleged unlawful acts including the existence of trade union activity and the employer's knowledge of it, unusual or atypical conduct by the employer following upon his knowledge of trade union activity, previous anti union conduct and any other 'peculiarities'. (See National Automatic Vending Co. Ltd. case 63 CLLC 16,278).
(See also Mount Forest Caskets Limited, [1980] OLRB Rep. June 853; B & S Furniture Manufacturing Limited, [1980] OLRB Rep. May 745; and ABC Day Nursery and Kindergarten Limited, [1980] OLRB Rep. April 391.) With those general principles in mind, the Board must now consider the facts of the present case.
During the course of three days of hearing, the Board heard the evidence of both the complainant and Mr. Johnson as well as several other witnesses. There were a number of significant conflicts between the evidence of the complainant and the evidence of Mr. Johnson, neither of whom were in the opinion of the Board completely candid in their testimony. The facts set forth below reflect the Board's assessment of the evidence taken as a whole, including our assessment of the appropriate weight to be given to the testimony of the complainant and Mr. Johnson, having regard to the such factors as the consistency of their evidence, the firmness of their respective memories, their ability to resist the influence of interest to modify their recollections, their capacity to express their recollections clearly and their demeanour.
The respondent operates a number of trucks that provide pickup and delivery services in Toronto for Emery Air Freight Corporation (hereinafter referred to as "Emery"). The complainant commenced employment with the respondent in March of 1980 as a driver. Prior to that, he had been a driver for "Atlantis Transportation", which provided pickup and delivery services for Emery until it (Atlantis) entered into a "management agreement" with the respondent, which had offered to purchase from Atlantis trucks and part of its contract with Emery. The purchase was completed in October of 1980.
The items which the respondent transports consist of "freight" and "express". Next day delivery is guaranteed for express, which is shipped "one piece per bill". Freight generally involves shipment of heavier cartons. Pursuant to its contract, the respondent charges Emery $5.40 for transportation of one unit of freight and $3.00 for transportation of an express item. Thus, if an express item is erroneously charged as freight, there is an overcharge to Emery of $2.40.
In June of 1980, the complainant, who had been employed as an hourly-rated driver, "moved up" to fill an opening as a "broker". Each broker is paid a percentage of the revenue which his pickups and deliveries generate for the respondent. Each broker is required to provide a truck and is responsible for most of the truck's operating expenses. The complainant agreed to purchase a truck from the respondent at a cost of $8,500 which was to be paid through installments deducted from his earnings.
By decision dated June II, 1980 in File No. 2467-79-R, another panel of the Board, on the basis of a pre-hearing representation vote in which the complainant was ineligible to vote, certified the Canadian Brotherhood of Railway, Transport and General Workers (the "Union") as the bargaining agent for the following unit:
"all dependent contractors (truck operators) who provide haulage service for the respondent in and out of the City of Mississauga."
The respondent also employed a number of "drivers" who were not included in the bargaining unit. Immediately following certification, the Union gave the respondent written notice of its desire to bargain with a view to making a collective agreement, pursuant to section 14 of the Act, and made several attempts to contact the President of the respondent but was unable to arrange a bargaining meeting.
Meanwhile, Mr. Johnson, who testified that he was required to have a written agreement with his brokers in order to obtain the "P.C.V." licences needed to operate the trucks, approached the brokers directly and presented a "broker agreement" to each of them for their consideration. An appendix was added to each of the agreements by a lawyer (Mr. Shaw) whom the complainant and the other brokers consulted before signing them on October 8, 1980. Mr. Johnson testified that he "assumed that the brokers would take the broker agreements to the Union but instead they took it to a lawyer". However, he also testified that he "didn't think that there was anything funny about the brokers taking it to a lawyer instead of to the Union". Having regard to that inconsistency in his testimony and his demeanour while testifying concerning these matters, the Board does not find that evidence to be credible. Having regard to all of the circumstances, we find that Mr. Johnson intentionally circumvented the Union's bargaining rights by dealing with the brokers directly rather than through their certified bargaining agent, and by signing individual contracts with them rather than bargaining in good faith with the Union and making every reasonable effort to make a collective agreement, as required by section 15 of the Act.
The broker agreements detail the relationship between the brokers and the respondent and include provisions concerning licences, insurance, vehicles and remuneration. When the complainant signed a broker agreement with the respondent, he was unaware that the Union had been certified as bargaining agent for the brokers. It was only through a subsequent "chat" with the dispatcher, his immediate superior, that the complainant, who was "feeling a little insecure with the way things were going", became aware of the Union's bargaining rights.
The Union appears to have acquiesced to some extent in the respondent's disregard for its bargaining rights. Rick Beckwith, who has been a representative of the Union for the past 11 years, testified that the brokers "seemed to be satisfied with [the broker agreements]". He also agreed during cross-examination that the brokers "obviously did not want [his] assistance in negotiating with the Company for the first agreement".
In late August or early September of 1980, Emery became aware that it had been overcharged by the respondent as a result of some "express" items having been "manifested" and billed as "freight". Gregory Richard, District Service Manager for Emery (who was called as a witness by counsel for the complainant), testified that Emery informed the respondent in October of many discrepancies which had been discovered by Emery's auditor. In November, Emery began to deduct the overcharges from monies owing to the respondent pursuant to their contract. As a result of meetings with Emery in October and November, the respondent agreed to revise its procedures to prevent any recurrence of overcharging. It was also decided "that the main party involved was the [the respondent's] dispatcher", who was, accordingly, discharged near the end of November. Emery, which employed a part-time auditor to review the pertinent records and determine the amount of overcharging, continued to search back into its records to uncover further overcharges. (As of July 1981, the auditor had "gone back" to July of 1980, and had discovered approximately $3,000 in overcharges. Mr. Richard testified that the audit would continue until the cost of the audit began to exceed the funds being recovered thereby.)
That the complainant was a valued employee whose services were important to the respondent's operations is vividly demonstrated by the fact that the respondent took no disciplinary action against him when it was discovered in early November that his driver's licence had been suspended as a result of an unsatisfied judgment, even though the respondent's insurance coverage had been placed in jeopardy by the complainant's driving without a valid licence. It is also significant to note that this incident occurred before the time that the complainant engaged in any activities in support of the Union.
In late November or early December the complainant contacted Mr. Beckwith and told him that the brokers wanted the Union to negotiate a collective agreement for them because the broker agreements "weren't working and were concerned about job security. At the request of Mr. Beckwith, the complainant arranged for Mr. Beckwith to meet with the other brokers "about a week and a half later". Having been assured of the brokers' support, Mr. Beckwith undertook to contact the respondent. A further meeting was also scheduled with a view to "getting all drivers involved — hourly as well as broker".
On December 31, 1980, Mr. Johnson told the complainant that he had decided to dismiss him. The complainant testified that the reason given by Mr. Johnson was "missed calls and refusals to make pickups" which Mr. Johnson allegedly refused to particularize. It was also the complainant's evidence that Mr. Johnson told him that he had heard that the complainant was the "instigator with the Union" and that there was "no way that a Union was coming in".
Mr. Johnson's evidence concerning that conversation was radically different from that of the complainant. It was his evidence that he had received complaints from Mr. Richard that the complainant had threatened some of Emery's "warehouse people" and engaged in "fisticuffs" with one of the employees of the warehouse. (Although Mr. Richard testified in the proceedings, counsel for the respondent did not question him at all with respect to the alleged threats or the alleged "fisticuffs".) Mr. Johnson also testified that the complainant said that "he had got a little carried away" and that "it wouldn't happen again" so he (Mr. Johnson) "backed off'. Although he denied saying anything at the time about "keeping any union out", he did not deny that he told the complainant that he would have to obtain a "company name" to which cheques would be made payable, nor did he suggest in his evidence any bonafide justification for that request. He conceded that at that time he had received a letter from the Union asking when the respondent would meet with the Union, and that he "wanted to find out what the hell was going on" as he was "getting fed up with dealing with lawyers and back and forth".
Whichever version is the more accurate of the two, it is clear from the evidence as a whole that Mr. Johnson told the complainant on December 31, 1980 that he could only continue working for the respondent if he "solved the problem" by obtaining a "company name" to which remuneration for the complainant's services could be made payable. The Board also finds, having regard to all of the evidence, that the "problem" which Mr. Johnson hoped to solve by avoiding direct payments to the complainant was the prospect of collective bargaining with the Union, which he feared might give rise to the necessity of giving his hourly rated drivers a substantial wage increase. If the problem was, as stated by Mr. Johnson in his evidence, pugnacious conduct by the complainant, it is difficult to see how the interposition of a "company name" would in any way be responsive to such problem.
In January of 1981, the complainant began to receive cheques in a company name ("B & L Trucking") and opened a business account to enable him to cash the cheques. The complainant, who found this to be rather inconvenient, retained Brian Iler in early January to act as his lawyer concerning that matter. He also requested Mr. Iler to determine how much he owed on the truck that he was purchasing from the respondent. Since the complainant "wasn't entirely happy with the quality of representation he was receiving" from the Union, Mr. Iler had some discussions with Mr. Beckwith and ultimately telephoned Mr. Johnson on February 24th. During that conversation, Mr. Johnson, who admitted that he was very "hostile" to Mr. Iler, indicated that he wanted to make payments "to businesses rather than to individuals" as it was his understanding that if payment was made in this fashion, then the brokers "couldn't have a union . Mr. Johnson also told Mr. Iler: "I'm having problems with the Union. I made [the employees in the bargaining unit] brokers so they could make more money on the understanding that we wouldn't have any more problems with the Union... lam paying quite a premium to them to have them as brokers to keep the Union out. I have drivers as well (as brokers) and I am concerned that if they join the Union their rate would increase from $6.50 to $8.00 . . . . If the brokers do go with the Union, I will terminate them as brokers." (At that time, the drivers earned only about $320.00 per week, while each broker's weekly take home pay was between $500 and $1,100.) Mr. Johnson also described the brokers as "super workers" but expressed concern that they might have been receiving money to which they were not entitled since the dispatcher had been "taking money under the table". He also spoke of the vulnerability of the respondent's contract with Emery and the stigma which had attached to the respondent as a result of the "thefts". Although Mr. Johnson testified during examination in chief that he could not remember having made some of the statements attributed to him by Mr. Iler, he conceded in cross-examination that he was "Very hot at the time" and "could have said a lot of things and not meant them in the heat of the moment."
The brokers met with Mr. Beckwith who advised them that since his contacts with the respondent had not resulted in collective bargaining, it would be necessary to apply for conciliation. Mr. Beckwith also met with the respondent's drivers and persuaded some of them to sign membership cards.
At a meeting convened by the conciliation officer, the Union was asked by the conciliation officer to submit its proposals to the respondent within a week. The brokers then met to discuss their collective agreement proposals and prepared a list of about twenty-five points which they gave to Mr. Beckwith, who forwarded them to the respondent and to the conciliation officer. The Union then contacted the respondent and a meeting was scheduled for March 16, 1981.
On February 23, 1981, the applicant filed an application for certification as bargaining agent for a unit comprised of "all employees (drivers) of the respondent working at or out of the City of Mississauga, Ontario, save and except supervisors, persons above the rank of supervisor, dispatchers, office and sales staff, and dependent contractors." That application (File No. 2555-80-R) was heard on March 13,1981 by another panel of the Board, which by decision dated March 13, 1981, issued to the applicant a certificate for that bargaining unit. No one appeared on behalf of the respondent at the hearing of that application.
It was Mr. Johnson's evidence that he decided (at an unspecified point in time) that the Emery problem would not be solved as long as the respondent had people in its employ who had been involved in the overcharging. He testified that he "began going through evidence of which employees were involved so [he] could terminate the employees who were involved" and that he "discovered that the only people involved were the dispatcher and the four brokers". On the basis of the totality of the evidence adduced in these proceedings with respect to the overcharging, the Board is unable to discern any rational basis for Mr. Johnson's professed conclusion that the brokers were "involved". Although Mr. Johnson testified that he had ''tons of supporting documents~~, only a few rather inconclusive documents were submitted in evidence before the Board.
On Thursday March 12th, management told the brokers that their pay cheques were in Buffalo with one of Mr. Johnson's partners, Mr. Deblassy, and that they would not get them unless they "met with the Company". The brokers then telephoned Mr. Beckwith who later called back and told them that he had spoken with management and arranged for their cheques to be at the respondent's office by 2:00 p.m. on Friday, March 13th. Mr. Beckwith advised them to merely pick up their cheques and not to agree to meet with management. He also told the brokers that if the respondent wanted to meet with them, they could do that at the meeting already scheduled for Monday March 16th, and that "as far as [he] was concerned, no meeting should be held with the brokers unless [he] was there".
When the cheques were not available by 2:00 p.m. on March 13th, the brokers were told that they "would be there [at the respondent's office located on Emery's premises] by 6:00 p.m.". At 5:45 p.m., Jim Ridout, another of Mr. Johnson's partners, called the employees and told them that since Emery did not want a meeting on its premises, if they wanted their cheques they would have to get them at Major Plastics. The brokers, who normally received their pay cheques each Thursday afternoon, "decided to leave their cheques and go home".
It was Mr. Johnson's evidence that management wanted to meet with the brokers to discuss the Emery overcharging problem and to find ways of resolving it. He also testified: "When they refused [to meet with management], we had no alternative but to fire them, so we terminated all four of them." It was also his evidence (in cross-examination) that it was his partner, Mr. Deblassy, who was "calling the meetings to discuss the situation before it got out of hand". Mr. Deblassy did not testify in these proceedings.
The complainant was subsequent notified by the following telegram that his employment was terminated:
"Effective the 13th day of March 1981 your employment with Sonic Transport Systems Ltd. will be terminated. Emery has found during a recent audit that gross over charging has occurred on all drayhe [sic] handled by Sonic Brokers. This discovery has severely jeopardized Sonic's relationship and it's [sic] contract with Emery. So far Sonic had made large monitary [sic] reparations to Emery, that they are still searching their records and it seems there is still great deals of money owing. [sic] Any monies now owed by Sonic to you, are being held in and applied against this over charge, also any outstanding bills that have been incurred to you by Sonic. Should it be the case that there is still monies owing [sic] over and above what has been held, our solicitor Robert Murray (964-3687) will notify you.
H Johnson President"
Each of the other brokers received a similar notice of discharge.
Prior to receiving that telegram, the complainant had not received any complaint about overcharging, although he and the other employees had been informed at a meeting with management that Emery was conducting an audit of its books. According to Mr. Johnson, that meeting was held by the respondent in February to "clear the air" by telling the employees why the dispatcher had been discharged (in November).
If management's true desire on March 13, 1981 was to find ways of rectifying the Emery overcharging problem, it is difficult to understand why they did not wait to raise the matter at the bargaining session scheduled for March 16, 1981, rather than abruptly discharging all of the persons in the bargaining unit three days before bargaining was scheduled to begin in earnest. It appears to the Board that this precipitous action on the part of the respondent was taken to punish the employees not for any part which they may have played in the Emery overcharging, but rather for refusing to meet with the respondent in the absence of their Union representative concerning a matter which would be of legitimate concern to that representative, and in retribution for their support of the Union. Further support for that finding is provided by the fact that the overcharging practices were stopped in October when the respondent implemented safeguards "so it wouldn't happen again". Mr. Johnson, who himself admitted that he found out "in January that the brokers were responsible for the overcharging", attempted to explain the "delay in firing them" as follows: "I couldn't terminate one-third of the people we had without hurting us and the contract with Emery. I had to find people to replace them. I had to get competent people to do it." However, he gave no indication of what steps, if any, he took to find competent replacements and he conceded in cross-examination that he had not "lined up" four such replacements as of March 13, 1981. Moreover, there is an element of inconsistency between his testimony that, on the one hand, he was looking for replacements in order to be in a position to terminate the brokers and, on the other hand, was sincerely desirous of meeting with the brokers to "find a solution" to the Emery problem.
Prior to the scheduled bargaining session on March 16, 1981, Mr. Johnson contacted Mr. Beckwith and said that in view of the fact that the respondent had discharged all of the brokers, he saw no reason for any meeting. Accordingly, the meeting was cancelled.
Following his discharge, the complainant went to Mr. Iler's office and told him that the respondent "had his truck". After reviewing the pertinent documentation and the complainant's understanding of the (oral) arrangement between himself and the respondent with respect to the purchase of the truck, Mr. Iler advised him that, in his opinion, the truck belonged to him but there was some risk that he might not be found to be the owner as the truck was registered in the name of the respondent and he still owed the respondent part of the purchase price of the vehicle. Nevertheless, he told the complainant: "If you've got a key, it's your truck — take it." The complainant (who testified under the protection of sections of the Canada Evidence Act) went to the respondent's office on Saturday March 20th and, without the consent or knowledge of the respondent, removed the key for the truck from the desk drawer in which it was normally kept. That the complainant had some concern about the propriety of his actions with respect to the truck is evident from the fact that rather than parking it at his house in Barrie, the complainant "put it at a friend's house in Waverly, Ontario, north of Barrie". The Board cannot give any credence to the complainant's testimony that he parked the vehicle in Waverly because of a concern that "kids in his driveway [might] do it damage".
The Union filed a section 89 complaint on behalf of the four discharged brokers, including Donald Lawrence (Board File No. 2754-80-U). With the assistance of two Labour Relations Officers, a settlement was reached on April 10, 1981, by which the three other brokers accepted reinstatement on April 20, 1981 without compensation. An offer of reinstatement without compensation was also made to the complainant but he chose not to avail himself of the offer on the advice of Mr. Iler. Accordingly, the written settlement of the complainant File No. 2754-80-U covered only the other three brokers; Mr. Lawrence was excluded on the understanding that he would be at liberty to file another section 89 complaint with respect to his discharge.
It appears that the reasons that the complainant did not accept the respondent's offer of reinstatement was that management advised him through the Labour Relations Officer that if he returned to work with the truck the respondent would summon the police to arrest him and would discharged him for "theft" of the truck. Although the respondent informed the Ontario Provincial Police and the Royal Canadian Mounted Police that the truck had been "stolen" and that they "had a feeling that it was taken by Donald Lawrence", the truck was not located for about two months. Thus, the respondent was forced to expend a substantial sum of money to rent a replacement for the missing vehicle.
It is not within the jurisdiction of this Board to determine whether the complainant acted illegally in removing the truck from the respondent's premises; that is a matter which can only be determined by the courts in criminal or civil proceedings. Accordingly, we expressly refrain from making any comment with respect to the propriety or impropriety of the complainant's dealings with the truck, which, it must be noted, occurred after he was discharged and, thus, could not have formed any part of the reasons for his discharge, which is the crucial issue of fact in this case.
During his testimony on July 21, 1981, Mr. Johnson told the Board that the respondent and the Union had succeeded in negotiating a collective agreement concerning all of the respondent's drivers, including those drivers who were formerly brokers. (Mr. Johnson testified that "there's no more brokers" because the respondent "couldn't take a chance on it at present". It was also his evidence that the three former brokers who were reinstated requested to be "put back as drivers" to avoid "the hassle concerning all the other allegations".) In an obvious effort to satisfy the Board that none of his actions were prompted by anti-union considerations, Mr. Johnson testified that there have been "no problems between [himself] and Mr. Beckwith", that he was "happy to deal with Mr. Beckwith" and that Mr. Beckwith "has been a great help". (Mr. Beckwith also testified that a satisfactory relationship has developed.) Although the Board does not doubt that the relationship between the respondent and the Union has matured so as to become mutually satisfactory to Mr. Johnson and Mr. Beckwith, the evidence clearly indicates that at the time of the discharge of the complainant, Mr. Johnson did not expect that to be the case. To the contrary, the evidence and the inferences which may legitimately be drawn there from clearly indicate that Mr. Johnson was at all material times very concerned that collective bargaining with respect to the brokers would have a detrimental effect upon the respondent's operations, particularly because of the adverse spillover effect which he anticipated it would have on the respondent's drivers. It was only as a result of his experience with the Union during settlement discussions with respect to the Union's section 89 complaint (in File No. 2754-80-U) that Mr. Johnson "got the impression that the Union was a hell of a lot easier to deal with" than he had expected it to be.
Having regard to all of the evidence, we are unable to accept the contention of counsel for the respondent that while there may have been "anti-union frustration" in this case, there was no "anti-union animus". We are of the view that the complainant's union activities which, to the obvious dismay of Mr. Johnson, led to a resurgence in the dependent contractors' interest in collective bargaining, and which also led to the certification of the respondent's drivers, was at least one of the reasons, if not the only reason, for his discharge. We are confirmed in this view by the pattern of anti-union conduct which is evident in this case, including Mr. Johnson's initial unwillingness to meet with the Union; his circumvention of the Union's bargaining rights by dealing directly with the brokers and entering into individual broker agreements; and his decision on December 31, 1980 to discharge the complainant, who had renewed the Union's interest in the bargaining unit and had facilitated Mr. Beckwith's contacts with the unorganized drivers, which decision was reversed only after the complainant undertook to obtain a "company name" to which cheques could be made payable. The blatantly anti-union statements which Mr. Johnson made to Mr. her only two and one half weeks before the mass discharge of all of the employees in the (dependent contractors) bargaining unit on March 13, 1981, the date of hearing of the Union's application for certification with respect to the respondent's drivers, which mass discharge occurred only three days before collective bargaining was to begin in earnest with respect to that bargaining unit, also support that finding. For the foregoing reasons, the Board finds that the discharge of the complainant was tainted by anti-union motivation and was, therefore, in contravention of section 66 of the Act.
Counsel for the respondent argued, at the commencement of the hearing of this matter, that the Board should dismiss the complaint because of undue delay by the complainant in filing it. In an oral ruling the Board stated that the alleged delay was a matter which could be dealt with in determining the quantum of compensation, if any, to be awarded to the complainant, and that it was not so excessive as to prompt the Board to decline to hear the complaint in the exercise of its discretion under section 89 of the Act.
After the complainant became aware on April 10, 1981 that he was not going to obtain what he considered to be appropriate redress through the Union's complaint (in File No. 2754-80-U), he attempted to meet with Mr. Iler but it took some time for them to get together. When he ultimately did meet with Mr. Iler, he instructed him to file a section 89 complaint with the Board. As a result, this complaint was filed on May 19, 1981. Mr. Iler explained that the complaint "didn't get out as soon as [he] would have liked" because his office was "backlogged".
Undue delay on the part of a party's solicitor or agent will generally be attributed by the Board to the party. However, the Board recognizes that consultation with counsel, investigation by counsel and preparation of a complaint do require a reasonable period of time. See, for example, Decor Wood Specialties, [1974] OLRB Rep. Mar. 137, at paragraph 138, in which the Board stated:
..... In such circumstances where delay can be attributed to one party to a Board proceeding, it seems obvious to us that the other party should not be prejudiced. The Board does not pretend to set a fixed guideline with respect to what is a reasonable time for an aggrieved to initiate proceedings after an alleged violation of the Act. For example, it is the Board's opinion that a complaint should not be launched frivolously and without consideration of a reasonable chance for success. Of course, this assurance can only be obtained by examining the evidence, by interviewing witnesses, and by generally grasping a feeling for the case to be met. This may take some time."
In that case, the Board found that a five week delay in filing a discharge complaint was not justified, and denied the complainant compensation for three of those five weeks since it was of the view that two weeks from the date of the discharge should have been sufficient time to file the complaint. (See also Ernie's Signs Limited, [1976] OLRB Rep. Aug. 404.)
Having regard to all of the circumstances in the instant case, the Board is of the view that if the complainant and his counsel had proceeded with due diligence, this complaint would have been filed on or before April 30, 1981. Accordingly, no compensation will be awarded for the period from May 1, 1981 to May 19, 1981, inclusive.
Where the Board finds that a party has committed an unfair labour practice, the Board will generally direct that party to post a notice for 60 days in conspicuous locations in the work place, to attempt to remedy the adverse psychological impact of the contravention of the Act (see Valdi Inc., [1980] OLRB Rep. Aug. 1254). However, as noted above, it is clear from the evidence that following a rather rocky beginning, the relationship between the respondent and the union has matured so as to become mutually satisfactory, and has yielded a collective agreement. Since we are concerned that in the circumstances of this case, in which three of the four original grievors accepted reinstatement without compensation for lost earnings, the posting of a notice could adversely affect that relationship, we are of the view that this is not an appropriate case in which to direct the respondent to post a notice.
The Board therefore orders:
(i) that the complainant be reinstated by the respondent forthwith, and that the complainant be given the choice of working as a "broker" or as a "driver", to parallel the options that were offered to the other three "brokers" who have been reinstated by the respondent;
(ii) that the complainant be fully compensated by the respondent for all lost wages and benefits sustained through the respondent's violation of the Act, with the exception of any lost wages and benefits sustained from May 1, 1981, to May 19, 1981, inclusive; and
(iii) that the respondent pay interest on the compensation for lost wages ordered by the Board, such interest to be calculated in the manner described in Practice Note. 13 dated September 8, 1980.
- The Board remains seized of this matter in the event that a dispute arises concerning the implementation of the Board's order.