[1982] OLRB Rep. March 420
1927-81-U McKenly Daley, Complainant, v. The Amalgamated Transit Union, Local 1572, Respondent, v. The Corporation of the City of Mississauga, Intervener
BEFORE: R.O. MacDowell, Vice-Chairman.
APPEARANCES: H. Rawding and McKenly Daley for the complainant; S. L. Stewart, T Topps and A. Burke for the respondent; M. V. MacLean for the intervener.
DECISION OF THE BOARD; March 9, 1982
- This is a complaint under section 89 of the Labour Relations Act alleging a contravention of section 68. Section 68 reads as follows:
“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.”
The events upon which this complaint is based occurred in the fall of 1976. The complaint itself was filed on December 2, 1981. The respondent union asserts that a delay of more than five years is unreasonable and grossly prejudicial, and that for this reason alone, the Board should exercise its discretion under section 89 of the Act to refuse to inquire into the complaint.
On February 17, 1982, the Board scheduled a hearing to entertain the parties' submissions with respect to the matter of delay and whether, notwithstanding that delay, the Board should inquire into the complainant's allegations. The basic facts are not in dispute.
I
The complainant, McKenley Daley, was hired by "Mississauga Transit" sometime in 1972. He was employed as a bus driver. At all material times, while he was so employed, the respondent union has been his bargaining agent.
In June 1976, Mr. Daley was charged with an alcohol-related driving offence. In November of 1976, he was convicted, and his driver's licence was suspended for several months. Without a licence, he could not drive a bus. His union advised him to apply for a leave of absence until the licence suspension was lifted, but, following a meeting to discuss the matter, Mississauga Transit was not prepared to grant a leave of absence on this basis. The provision in the 1976-77 agreement respecting leave of absence reads as follows:
“12.06 An employee may, upon application in writing to the City, be granted leave of absence for personal reasons or to attend to Union business without loss of seniority. The employee must not engage in any other employment during such leave of absence unless authorized to do so jointly by the Union and the City. Any leave of absence of one(l) week or over must be in writing.”
Those respecting termination which are potentially relevant to the instant proceeding read:
“12.07 An employee's employment shall be terminated for any of the
following reasons:
(a) If the employee voluntarily quits;
(b) If the employee is discharged and not reinstated pursuant to the grievance procedure or arbitration provisions of the Agreement;
5.02 Complaints and grievances shall be dealt with in the following manner: All grievances must be in writing and filed within five (5) working days of the alleged grievance, or the City may refuse to consider the grievance.
9.04 No matter may be submitted to arbitration which has not been properly carried through the steps on the Grievance Procedure.”
The intervener also advised the Board that it believed that in 1976, it was an established policy, embodied in its rules and agreed to by the union, that an employee's employment would be subject to termination when his licence was suspended and that the company was under no obligation to provide alternative employment when that occurred. This policy was clearly in effect as early as September 1977. However, because of the passage of time, the parties were unable to submit documentary evidence to show that it was in effect in 1976 although both the union and employer believed this to be the case. For the same reason, there is no evidence to the contrary.
In November 1976, there was a meeting to discuss the complainant's situation attended by the complainant himself, his union representatives, and representatives of Mississauga Transit. The complainant concedes that that meeting was amicable and that both the union and the employer were trying to assist him. It was decided that the best course of action was for the complainant to tender a letter of resignation (thereby avoiding a formal discharge) and the employer would make an effort to find him alternative employment while he was unable to drive. The complainant may not have fully understood the effect of his resignation letter and termination of employment but, at the time, he was content with the assurance that efforts would be made to find alternative employment for him and that he would be reemployed by Mississauga Transit when his driver's licence was restored.
On November 23, 1976, the complainant's employment was officially terminated. He was unemployed until December 20, 1976, when he was rehired by the City of Mississauga in another department where the employees are not represented by any trade union. On February 24, 1977, after his driver's licence had been restored, the complainant was rehired by Mississauga Transit and, once more, became a member of the bargaining unit represented by the respondent.
In March of 1977, Mr. Daley noticed that he was being treated by his employer as a "new hire" - a position which, I am constrained to note, appears to be consistent with Article 12.07 of the then relevant collective agreement, and the general arbitral view concerning the effect of "broken" service. Mr. Daley approached members of management to "get his seniority back", but was advised to discuss the matter with his trade union. This he did in or about June 1977; but the union officials indicated that there was nothing they could do. The complainant did not press the union to file a grievance on his behalf and even if he had done so, and the union had acquiesced, it is evident that such grievance would have faced significant procedural and substantive obstacles. Of course, the merits of Mr. Daley's grievance [i.e. the effect of his resignation, whether he had a right to a leave of absence, and the effect of the time limits] had he filed one, are not strictly relevant to the preliminary issue raised here. But it is relevant that this complaint provides the springboard to arbitration as a means of reordering the relative seniority rights (and associated benefits) of a number of employees in the bargaining unit.
In October 1977, the complainant once more approached the employer with respect to his seniority but was dissatisfied with the result. In December 1977, he approached the Ontario Human Rights Commission. The OHRC considered his situation and on January 27, 1978, decided that there was no baisis for any further inquiry. At this stage, the complainant's concern was directed solely at his employer. There were no allegations concerning the union.
A year and a half went by. During this period, there is no indication that the complainant did anything with respect to his concerns other than (perhaps, the facts are not clear) contact certain municipal politicians. Sometime in the summer 1979, he approached a community service organization known as the "Human Resources Centre". A "Mr. Cato" of that organization apparently discussed the complainant's "seniority problem" with his employer and trade union, but again, without effect.
Sometime in October 1979, the trade union held a general meeting. At this meeting, the complainant's concerns were raised again. It was determined by a vote of the general membership that nothing could, or should be done for Mr. Daley.
In March of 1980, more than three years after his termination, Mr. Daley consulted a solicitor for the first time. As a result of this discussion, he wrote to a member of the Provincial Legislature who undertook some investigation on his behalf. That investigation did not alter the status quo. There was still no indication of any allegation of misconduct against the union.
Sometime between March and September 1980, the complainant formally retained the solicitor with whom he had earlier discussed his problems. In September 1980, that solicitor arranged a meeting with representatives of Mississauga Transit. Nothing was resolved. The employer took the position that there had been no impropriety on its part but that at this stage, it was not concerned about the calculation of the complainant's seniority one way or the other. It was a matter between him and the other members of the bargaining unit; however no alteration of the complainant's relative seniority rights could be considered without the union s consent on behalf of the other employees in the unit (hired after the complainant's termination but before his rehire) who would be prejudicially affected.
In February 1981, the complainant's solicitor arranged a meeting with various trade union officials. They indicated, as they had before, that there was nothing further which they could, or thought they should, do on the complainant's befalf, having regard to all of the circumstances of his case. The complainant's dissatisfaction was made known to them at that time as was the possibility of an application under section 60 (now section 68) of the Labour Relations Act. This was the first time that any concrete complaint had been made against the union.
The complainant's solicitor was absent from her office from March to September 1981, and no steps were taken to launch a section 68 complaint. When she returned in September, she advised that such proceeding should be commenced and in December, it was. Thus, it was not until December 1981, five years after his termination, that the grievor's dissatisfaction with his treatment by his employer was transformed into a concrete complaint against his union.
The collective agreement under which the complainant was terminated and rehired, and under which he would have had to file a grievance about those matters, expired on June 30, 1977. There have been at least two collective agreements negotiated since that time. The complainant now contends however, that this Board should inquire into the events of 1976 and if it finds that the quality of union representation was wanting, it should direct that the leave of absence or the termination issue be sent to a board of arbitration constituted pursuant to the 1976-77 collective agreement. The respondent union denies any impropriety on its part and asserts that it is simply too late to raise this issue. Mississauga Transit denies that there was any breach of the collective agreement on its part, denies that it was under any obligation to grant the complainant an extended leave of absence, and denies that the termination was in any way improper. But counsel advised the Board that the employer was "neutral" as to the principal issue of concern to the grievor - his seniority. The employer has a residual concern about the position of other employees with broken seniority who have been treated in the same way as the grievor and have not complained but Counsel notes that the seniority issue is primarily of interest to the employees in the bargaining unit. Seniority is the basis for distributing favorable runs, preferred working hours, the selection of holidays, the distribution of overtime, and so on. A determination that the complainant's seniority should be calculated from 1972 (i.e. ignoring his licence suspension, termination and rehiring) has no direct effect on the ongoing operations of Mississauga Transit. It would merely reorder the relative rights of the employees in the bargaining unit. And, although the respondent did not put it quite this way, this was obviously its principal concern, and explains why in October 1979, the members of the local union were not prepared to reopen a case which, to all intents, had been resolved three years earlier.
Counsel for the complainant argues that the Board should hear the complainant's case notwithstanding his delay in bringing it. Counsel points out that Mr. Daley has been seeking redress in one way or another (albeit with some lengthy interludes of inaction) for five years. He has never abandoned his concern, or at any time, indicated his acceptance of the status quo. Counsel submits that the Board should take into account that an unsophisticated employee may be unaware of the legal remedies open to him, and, in Counsel's submission, the onus should be on the respondent and the intervener to demonstrate that they have been prejudiced by delay rather than on the complainant to show cause why this complaint should be considered. Finally, Counsel notes that the complainant is not seeking any financial compensation but merely the restoration of his seniority. If the Board sustains Mr. Daley's complaint, it has considerable flexibility in fashioning a remedy. It could treat the situation as if he had filed a grievance ab initio, and determine his rights under the 1976-77 agreement, or it could relieve against any time limitations in that agreement and direct that the matter go before an arbitrator.
The union argues that it is too late to resurrect the events of 1976 or to transform what was originally a complaint against Mississauga Transit into a complaint against the union. It was not until months after his resignation that Mr. Daley complained about his loss of seniority - far too late to do much about it. The complainant's termination was regarded at the time as an amicable compromise by all concerned. It was only in retrospect, after he was rehired, that the complainant characterized his treatment as unfair, and his allegations about the quality of union representation were even more belated. In the union's submission, it should not have to defend itself, five years after the fact, in respect of conduct considered unexceptional at the time; nor, at this late date, is it feasible to process a grievance which was never filed or even requested, and which could upset seniority rights entrenched for years.
There is no doubt, of course, that the complainant has never been satisfied with the loss of seniority resulting from his termination, but it was not until years later - in February 1981, - that the focus shifted from the employer to the trade union. And even then, the section 89 complaint did not materialize until more than nine months later. The union contends that it is next to impossible to reconstruct meetings and conversations which took place more than five years ago and were not viewed as contentious at the time. No notes were taken of these meetings and conversations, nor was there any early indication that they could be material to future litigation (which might have prompted the parties to reflect upon events and record their recollections of what had transpired). The union reiterates that it was never pressed to file a grievance on the complainant's behalf either at the time of his termination or within a reasonable period thereafter - nor is it at all evident on what basis a grievance could have been filed. How then, asks the union, can the complainant, long after the fact, now argue that this is what should have been done? The union maintains that it did what it could on behalf of the greivor at the time of his termination and it should not have to defend itself five years later against an ex post facto characterization of its conduct. The union argues that as a matter of labour relatons policy, the Board should not entertain five year old claims.
It is by now almost a truism that time is of the essence in labour relation matters. It is universally recognized that the speedy resolution of outstanding disputes is of real importance in maintaining an amicable labour-management relationship. In this context, it is difficult to accept that the Legislature ever envisaged that an unfair labour practice, once chrystallized, could exist indefinitely in a state of suspended animation and be revived to become a basis for litigation years later. A collective bargaining relationship is an ongoing one, and all of the parties to it - including the employees are entitled to expect that claims which are not asserted within a reasonable time, or involve matters which have, to all outward appearances, been statisfactorily settled, will not reemerge later. That expectation is a reasonable one from both a common sense and industrial relations perspective. It is precisely this concern which prompts parties to negotiate time limits for the filing of grievances (as the union and the employer in this case have done) and arbitrators to construct a principle analogous to the doctrine of laches to prevent prosecution of untimely claims. (See Re C.G.E. 3 L.A.C. 980 (Laskin); and Re Oil Chemical and Atomic Workers, Local 9-6 72 and Dow Chemical of Canada Limited [1966] 18 L.A.C. 51 (Arthurs)).
In recognition of the fact that it is dealing with statutory rights, the Board has not, heretofore, adopted any rigid practice with respect to the matter of delay - holding, in most cases, that it will simply take this matter into account in determining the remedy if a statutory violation is established. However, whatever the merits of this approach, the Board must also keep in mind the potentially corrosive effect which litigation can have upon the parties' current collective bargaining relationship - quite apart from the outcome. Adversarial relationships are pervasive enough in our industrial relations system without the resurrection of ghosts from the past. In the Board's view, the orderly conduct of an ongoing collective bargaining relationship and the necessity of according a respondent a fair hearing both require that unions, employers and employees recognize a principle of repose with respect to claims that have not been asserted in a timely fashion. If such claims are not launched within a reasonable time, the Board may exercise its discretion pursuant to section 89 and decline to entertain them.
A perusal of the Board cases reveals that there has not been a machanical response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reasons for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial libility or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.
The Board has recently had occasion to review its approach to the issue of delay in Sheller-Globe of Canada Limited, [1982] OLRB Rep. Jan. 113 - a case which bears some resemblance to the present one, (although there the delay was 2½ years and here it is five). In Sheller-Globe, the complainant was discharged in March 1979, and filed her complaint with the Board in October 1981. In between, she had discussions with union and employer officials, she took legal advice (in March of 1979), she filed a complaint with the Human Rights Commission, and in December 1980, she filed a wrongful dismissal action. Finally, two and a half years after the alleged offense, she complained to this Board that her union had not represented her adequately and requested that this Board direct that the propriety of her dicharge be considered by a board of arbitration constituted in accordance with the collective agreement in effect at the time her employment was terminated. The Board dismissed the complaint with the following observations:
“13. A delay of the present magnitude carries with it an element of prejudice which is undeniable. Memories fade, and a party's ability to present a defence will deteriorate for that reason alone. This is particularly true when a party is not on notice that an action against it, requiring the litigation of certain events, remains pending. Here the respondent was justifiably under the impression that the grievance route, or any further demands against the union, had been abandoned in favour of other actions against the company. The lingering discussions which the complainant's husband had with Mr. Pattison and the stewards were clearly of an amicable nature; they provided no indication that action would subsequently be directed against the trade union itself, so that notes or other forms of evidence could be more actively maintained. The defence of the employer is not the defence of the trade union in these proceedings. The Board would be concerned not with the matter of cause for discharge, but rather the steps which the respondent's officials went through in concluding in their own minds that no grounds for a grievance existed. That defence would turn upon the recollection and credibility of the respondent's own officials. It might be noted parenthetically that the Labour Board, in administering the Labour Relations Act, is primarily concerned with the ongoing labour relations of a workplace, and such workplaces do not remain static over time. The Board as a result has always been conscious of the need for expedition in its practices and procedures. The delay in the present case raises concerns over an appropriate remedy, if the Board were to permit this complaint to now proceed, which are not fully answered by the complainant's concession as to damages. In circumstances such as the present, the onus shifts to a complainant to satisfy the Board that there are compelling labour relations reasons to cause the Board to exercise its descretion and entertain the complaint under section 89.
In the present case, the delay has indeed been “extreme”, and the factors put forward by the complainant are insufficient to deliver her from the consequences of that delay. Certainly the Board has no quarrel with the notion of an aggrieved individual investigating other avenues of redress prior to launching a section 68 application with the Board. But a point is reached, after a reasonable period of time, when the individual must decide whether it is going to go against the trade union or not, and if so, then overt steps must be taken in that direction. The individual cannot rely indefinitely on the efforts being taken on his or her behalf in other directions, and then come back against the trade union when those efforts prove fruitless. The important point to note here is that the other forms of action being pursued by the complainant were directed solely against the employer. Not a word was said to the trade union during that period to indicate that its conduct was being viewed as unlawful, or that its own position might still be placed in jeopardy. The complainant will not now be permitted, at this date, to use section 68 against the trade union as a last resort to reach the employer.”
As I have already noted, the complainant did not challenge his termination at the time it occurred. He resigned. He did not press the union to grieve on his behalf. The matter was not raised again until some months after he was rehired. He did not go the Human Rights Commission (where there was no allegation against the union) until some months after that. From January 1978 until the summer of 1979, there is little indication that he did anything to assert to his position other than, perhaps, (the facts upon which the parties agreed were not clear on this point) writing to certain municipal officials. Certainly, there was no allegation against his trade union. The complainant consulted a solicitor in March 1980, who afterwards arranged certain meetings on his behalf; but it was not until eleven months after this initial contact that the union was informed of a possible section 68 complaint, and it was not until nine months after that, that his complaint actually materialized. The delay has been extreme, and in the Board's view, it is both unreasonable and entirely unjustified.
The complainant is not seeking financial compensation. He could not reasonably do so in the circumstances. But the complainant is seeking a direction either that this Board will arbitrate a grievance itself, or that a grievance which he never wished to file at the time should be taken before an arbitration board under a collective agreement which expired some years ago. Even stating that alternative reveals its problems. It is said that the employer is indifferent as to the matter of the complainant's seniority, and the Board could simply direct the union to agree to a reordering of the seniority list. But to do that would significantly alter the complainant's rights in a number of situations vis-a-vis other employees in the bargaining unit - a result which could put him in a better position than he would have been in if he had asked the union to take a grievance on his behalf in 1976 and the union had done so. And whether this Board arbitrates Mr. Daley's grievance or it is sent to an arbitrator (with a suitable order relieving against time limits) the effect would be to put in issue the seniority rights of a number of other employees which have been unchallenged and acted upon for several years.
In all the circumstances of this case, the Board considers it appropriate to exercise its discretion under section 89 not to inquire into the complainant's allegations. It is simply too late. The application is therefore dismissed.