[1983] OLRB Rep. November 1861
0768-83-U J. L. Livitski, Complainant, v. Service Employees' Union, Local 268, (A.F.L., C.I.O., C.L.C.), and Larry O'Brien, President Thereof, Respondents
BEFORE: Ian C. Springate, Vice-Chairman, and Board Members W. H. Wightman and C. A. Ballentine.
APPEARANCES: Donald R. Colborne for the applicant; H. Goldblatt, B. Sheehan and L. O. 'Brien for the respondents.
DECISION OF THE BOARD; November 7, 1983
This is a complaint under section 89 of the Labour Relations Act alleging a violation of section 68 of the Act.
Section 68 of the Act provides 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."
To date, the Board has not yet heard any evidence in this matter. However, it appears to be common ground that the complainant, Mrs. J. L. Livitski, was formerly employed by the Corporation of the City of Thunder Bay in its homes for the aged, and as such came within a bargaining unit represented by the respondent trade union. It also appears to be common ground that towards the end of 1981 Mrs. Livitski was formally terminated. By way of this complaint, Mrs. Livitski alleges that the respondent trade union violated section 68 of the Act. The main thrust of the complaint is that Mr. Larry O'Brien, the union's president, failed to properly advise Mrs. Livitski, failed to submit certain grievances on her behalf, and generally failed to protect her interests.
Section 89 of the Act gives the Board discretion to refuse to inquire into a complaint such as this. By way of a preliminary motion, counsel for the trade union contended that the Board should exercise this discretion and decline to inquire into Mrs. Livitski's complaint. Union counsel initially raised three grounds in support of this submission. One of these grounds was based upon the claim that Mrs. Livitski is not capable of returning to work, and hence, even if she were to be successful in this complaint, the Board would not be able to award her any meaningful remedy. The accuracy of the alleged facts upon which this contention was based, however, was challenged by Mrs. Livitski's counsel. Accordingly, the issue is one that cannot properly be dealt with by way of a preliminary motion, but must instead await the calling of evidence.
The second ground advanced by the trade union as to why the Board should not entertain the complaint was based upon the contention that the complaint on its face does not make out a prima facie case. In this regard, counsel for the union noted that the complaint relies upon an alleged lack of action on the part of the union and Mr. O'Brien, but nowhere contends that Mrs. Livitski asked them to take any steps on her behalf. At the hearing, the Board orally indicated that, given the material before it, at this stage of the proceedings it would be premature to conclude that Mrs. Livitski did not have a proper complaint under section 68. Any ruling as to the merits of the complaint must await a hearing at which the parties will have an opportunity to lead evidence with respect to their respective positions.
The third ground relied on by the respondents relates to Mrs. Livitski's delay in filing this complaint. Mrs. Livitski was apparently off work due to illness commencing in late 1980. In the spring or summer of 1981 she sought to return to work, but we gather her employer declined to take her back on the grounds that she was unable to perform the work associated with her job. Mrs. Livitski was formally terminated during or about the month of December, 1981, allegedly because she had been off work for a full year. Notwithstanding these facts, this complaint was not filed with the Board until July 11, 1983. Union counsel contends that this delay was just too great, and the respondents should not now have to deal with events that occurred so long ago.
According to Mrs. Livitski's counsel, when Mrs. Livitski realized that she had a problem, she sought the assistance of her local member of the Federal Parliament. In September of 1981 the M. P. (or someone acting on his behalf) wrote the International Office of the respondent trade union with respect to Mrs. Livitski' s situation, but did not receive a reply until January 22, 1982. At some point shortly thereafter, Mrs. Livitski herself wrote to the International Union, to which she received a reply on or about April 27, 1982. In the summer of 1982, Mrs. Livitski entered into a training course and did nothing further about this matter until September of 1982 when she contacted a lawyer. After a delay of about three months this lawyer advised Mrs. Livitski that he would not be able to assist her. Mrs. Livitski received a similar response from a legal clinic which she also approached. Mrs. Livitski's M.P., who had in the meantime been making inquiries about the possible avenues of redress open to her contacted the Board's offices in early January of 1983. On or about February 21, 1983 the M . P. wrote to the Board requesting the necessary forms for filing a complaint under section 89. In March or early April of 1983 Mrs. Livitski, by way of the lawyer referral service, made contact with the lawyer who is now representing her in these proceedings. This lawyer assisted Mrs. Livitski in completing the section 89 forms, which were filed on July 11, 1983.
In a number of cases the Board has indicated that excessive delay in filing a complaint may lead to the Board refusing to hear it. The Board has not, however, developed any hard and fast rules as to how great the delay must be before the Board will refuse to hear a complaint. Rather, as indicated in the Corporation of the City of Mississauga case [1982] OLRB Rep. March 420, the Board will take into account factors such 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 fading recollections, the unavailability of witnesses, etc. would hamper a fair hearing. In the instant case, the respondents have not pointed to any concrete way in which they will suffer real prejudice as a result of Mrs. Livitski's delay. Counsel for the union did contend that if Mrs. Livitski is successful in her complaint, and if by way of remedy, the Board directs the union to go to arbitration with respect to her employment status, then due to the delay involved the arbitration award may adversely impact on the rights of both the union and the employer, as well as on the relationship between them. While there may be some merit to this contention, we incline to the view that the issue is one that can satisfactorily be dealt with by the Board in fashioning an appropriate remedy should Mrs. Livitski be successful in her complaint and that it need not result in the Board refusing to hear her complaint completely.
We have no doubt that Mrs. Livitski should have more actively pursued her own inquiries about how to seek possible recourse against the union, particularly once it became apparent that her M . P. was not able to quickly obtain the relevant information for her. However, when all things are considered, we do not feel that the Board should refuse to hear the complaint. If Mrs. Livitski should prove to be successful in her complaint, however, we are satisfied that any remedy should be adjusted to ensure that the trade union is not required to bear the costs associated with the time period between when Mrs. Livitski should reasonably have filed her complaint, and the time that she actually did so. A determination as to the time span involved can be dealt with during the hearing into the merits of the complaint.
The matter is referred to the Registrar to be re-listed for continuation of hearing.