Ontario Labour Relations Board
[1983] OLRB Rep. November 1913
0616-83-U Local 354, United Textile Workers of America, Complainant, v. Silknit Limited, Respondent
BEFORE: R. 0. MacDowell, Vice-Chairman, and Board Members F. W. Murray and P. J. O'Keeffe.
APPEARANCES: Larry Robbins, Zafar Islam, Ralph Strickland and Babu Shah for the complainant; no one appearing for the respondent.
DECISION OF R. 0. MacDOWELL, VICE-CHAIRMAN, AND BOARD MEMBER F. W. MURRAY; November 28, 1983
- This is a complaint filed pursuant to section 89 of the Labour Relations Act. By a decision of the Board dated August 12, 1983, (now reported at [19831 OLRB Rep. Aug. 1362) the Board found that there had been a serious interference with the statutory rights of both the complainant union and its president, Zafar Islam. The details of that decision need not be reproduced here. It suffices to say that the respondent employer harassed, victimized, and ultimately discharged Mr. Islam because he spoke against his employer's call for a cut in wages and sought to pursue (too vigorously for his employer's liking) the employees' collective bargaining rights. The Board found that the grievor's discharge was illegal and observed:
While tact and diplomacy are important if the job of a union official is to be performed effectively, employees cannot be harassed, victimized or put in fear for their own jobs if they choose to stand for union office or, once elected, seek to effectively pursue the grievances of their fellow employees. If an employer were permitted to pick and choose whom it could recognize, and rid itself of union officials with whom it was displeased, the independence of the union would be totally compromised and the employees' statutory rights largely illusory.
The Board directed that Mr. Islam be reinstated in his employment forthwith, and compensated for all wages and benefits lost by reason of his unlawful discharge. The Board remained seized of the question of compensation in the event that there was any difficulty in calculating the quantum of compensation to which Mr. Islam was entitled by reason of this remedial direction.
By letter dated October 3, 1983, the representative of the union wrote to the Board to advise that there was, indeed, a question concerning the quantum of compensation to which Mr. Islam was entitled. The respondent was resisting payment of certain overtime pay which, it was said, Mr. Islam would have earned had he not been illegally discharged. The respondent appears to have taken the position that such overtime was a speculative matter which should not, as it put it, "be scheduled into an employee's earning potential".
Given this dispute between the parties, a hearing was scheduled to give both of them an opportunity to make their submissions. Mr. Islam appeared with his witnesses and a legal representative to establish the basis for his claim in respect of lost overtime pay. No one appeared on behalf of the employer to articulate its position, just as the employer did not appear at the original unfair labour practice hearing to put forward any defence. In consequence, as before, the complainant's evidence is uncontradicted.
Mr. Islam is a "team leader A" in the dye house. As such, he is fully familiar with all of the jobs in the three sections into which the dye house work force is subdivided. That is why he is a team leader A. In contrast, a team leader C is only familiar with the jobs in one of these subsections.
There were approximately nineteen employees working in the dye house in August. On the three weekends in question, approximately twelve of those employees were called upon to work overtime. The evidence further establishes that it is the company's practice to assign overtime to senior qualified employees. We have no doubt, and find, that had Mr. Islam not been unlawfully discharged he would have worked overtime on the three weekends in question along with many of his less qualified and less senior fellow employees.
Having regard to the foregoing, the number of hours worked on those three weekends, and Mr. Islam's hourly rate at the time, the Board finds that had he not been unlawfully discharged he would have earned the sum of two hundred dollars and sixty-one cents ($200.61) in overtime pay in addition to his regular earnings. The Board therefore directs that such sum be paid to Mr. Islam forthwith. In the circumstances, we are also constrained to note that, on the evidence, there is nothing speculative or uncertain about this loss nor any reasonable basis why the respondent should have refused to recognize it and compensate the grievor in accordance with the Board's remedial order. Had Mr. Islam not been illegally fired he would have been at work. There is no other reasonable inference. Thus, this hearing was really quite unnecessary.
The union claims that because the employer had no real basis for failing to pay the sums described above, precipitated this hearing unnecessarily, then did not even appear, the Board should consider awarding the complainant its "costs". The union points out that, apart from legal fees, it has had to shoulder the burden of reimbursing employees for their lost time when they had to take a day off work to appear as witnesses and formally prove such uncontested facts as the number of overtime hours worked on the days in question. In the union's submission, the Board should not condone an employer taking insubstantial, unmeritorious, or frivolous positions which it does not even appear to defend when the result is to precipitate an unnecessary hearing with attendant costs to the union and the grievor. The union asserts that it is unjust to have to spend hundreds of dollars to recover modest amounts which should not have been disputed in the first place. Without an order to pay costs unnecessarily incurred, a full vindication of the employees' statutory rights would depend upon the relative economic strength of the contending parties - a test which would often leave aggrieved employees at a severe disadvantage. It is argued that this is especially so in the instant case where the employer has "thumbed its nose" at the grievor, the statute, and the Board. Counsel detailed the efforts made to settle this case before the first hearing, after the Board decision, and before the second hearing yet the company was not only unresponsive but, in both cases, did not even trouble itself to make an appearances at the hearing. Meanwhile, the union and the grievor have twice been put to considerable expense to assemble evidence and obtain the presence of witnesses for a hearing in which the complainant's position was not contested. Accordingly, the complainant renews the request which it made at the first hearing in which the employer failed to appear, for a "cost component" to be included in the Board's compensation award. In the union's submission, that is the only way he can truly be "made whole" for what he has lost, and it distinguishes earlier Board decisions rejecting similar claims on the basis of the respondent's non-appearance.
We are not entirely unsympathetic to the complainant's concern, for we recognize that a party may well have to expend substantial sums in connection with proceedings under the Labour Relations Act. Moreover, there is something to be said for the argument that if one can obtain costs upon the vindication of private law rights, the measure of compensation for the successful assertion of public rights guaranteed by statute should be no less generous. However, there are a number of difficulties with this superficially attractive proposition. In the first place, costs are not dealt with explicitly in the statute, with the result that it is arguable that the Board has no jurisdiction to award costs except as a part of the compensation award flowing from a finding of a statutory violation. Thus, there may be no authority to compensate a party respondent which has successfully resisted or defended against a claim. And how should one deal with a situation in which, from a practical or legal stand point, success is divided? The law of costs in the civil process is both technical and complex, and there are good policy reasons why it should not be readily imported into a law of collective bargaining which has survived without it for forty years and which the laymen who operate within the system and regularly appear before the Board have some difficulty understanding as it is. Finally, while it is tempting to suggest that flagrant or egregious violations of the statute should result in a "make whole" remedy in which the aggrieved party is compensated for the costs of the proceeding, it is much less clear how one would distinguish an "ordinary" violation of the statute from a "flagrant" one or a frivolous assertion from one which is arguable but ultimately rejected. It is one thing to suggest that a serious breach of the Labour Relations Act may trigger special remedial considerations or call for ingenuity in fashioning the appropriate remedy; it is quite another to suggest that an "ordinary" breach of the Act yields one level of compensation while a "serious" one warrants a higher level of compensation. Such an approach would begin to look "penal" rather than "compensatory" (and see sections 96 - 99 of the Act which are expressly penal in character).
This was the rationale in Radio Shack, [1979] OLRB Rep. Dec. 1220, where, despite a finding of serious employer misconduct, and a broadly-framed remedial order, the Board denied the union's request for compensation in respect of the costs of bringing a proceeding before the Board. At the same time, however, the Board indicated that this reluctance to include such items in a compensation award was something which should be reviewed in light of further experience. For example, in practice, it may well not be so difficult to identify those few exceptional cases where a more broadly defined "make whole" remedy would be appropriate - as, for example, where an employer continues to engage in conduct expressly prohibited by a Board order thereby requiring reattendance before the Board in order to give that order practical efficacy. A party which continues to do acts which both the law and a Labour Relations Board order prohibit, forfeits much of the sympathy to which it might otherwise be entitled. However, on the basis of the material presently before us, we are not satisfied that the employer's conduct rises to that level or the circumstances fall within those parameters such that, at this stage, the Board should depart from the policy enunciated in Radio Shack.
The final matter which was addressed at the hearing and which must, therefore, be dealt with shortly, was initially raised in a letter to the Board (with a copy to the respondent) dated November 4, 1983. In that letter the complainant asserts that the respondent has continued to harass and unlawfully interfere with Mr. Islam contrary to both the Labour Relations Act and the previous Board order directing the respondent to cease and desist from such unlawful interference. However, these matters were raised some three weeks after the notice of hearing, and it was not entirely clear whether the complainant was: seeking to establish non-compliance so that the Board's original order could be filed in the Supreme Court of Ontario; relying upon these new alleged breaches of the Labour Relations Act to secure a new and more effective remedial order; asserting these new illegalities as a ground for revising the original Board order; or some combination of these options.
These new charges are serious — not least because, if proven, they would establish the respondent's knowing disregard for the law and require a rigorous remedial response. In the circumstances, therefore, the Board decided not to entertain those allegations at this time. Rather, the Board ruled that the complainant should particularize the new allegations of misconduct and the remedy or remedies (see supra) which it was seeking. If the matter could not be amicably resolved between the parties the case could be scheduled for a further hearing before the Board. That will give the respondent an opportunity to consult counsel who will be able to advise the respondent as to its rights and responsibilities in this situation; moreover, it may be that the independent legal advisors of the parties herein may be able to assist their respective clients to fashion an amicable resolution of the dispute which will not require the further intervention of this Board in a collective bargaining relationship of some longevity which has heretofore been relatively free of conflict.
DECISION OF BOARD MEMBER P. J. O'KEEFFE;
The facts in this case are set out in the decision of the majority. I join with the majority in its finding and ultimate decision except with respect to their decision rejecting the applicant's request to be compensated for its costs in this action.
The evidence respecting costs establishes an amount of $226.48 for lost time suffered by Mr. Islam and two fellow employee witnesses who attended at the hearing, and of a further amount of $460.00 representing the costs to the applicant in engaging counsel to prepare and present its case before the Board. Despite the apparent first glance success of the applicant in this proceeding, the simple fact remains that to recover a total amount of $200.61, Mr. Islam and his two fellow employees who attended at the hearing lost a day's pay each, totalling, together with travelling costs, an amount of $226.48. Counsel costs for preparation of the case and appearance at the hearing amount to $460.00, for a total cost of $686.48.
In view of the history of the respondent company as set out in this decision, it is obvious from the pattern of conduct of the respondent that the majority decision result in this case is a victory for him, when he can cause the applicant to expend their resources to an amount of $686.48 to recover $200.61. The non-appearance of the respondent at this hearing and at the original hearing on the unfair labour practice distinguishes this case from Radio Shack, supra.
In my respectful opinion, the majority is in error when they apply the reasoning in the Radio Shack case to the fact situation here. The blatancy of the wrongdoing by the respondent in this case may well compare with the fact situation in the Radio Shack case, however, the very clear departure from Radio Shack is the total contempt shown by the respondent herein in failing to attend at the hearings on both occasions to show respect for the process and to offer a defence for its gross violation of the law on the face of the allegations against him. The respondent in Radio Shack on the other hand demonstrated some respect for this Board and its process by its representations at their hearings and the spirited defence of their position.
With respect to the majority decision, I feel strongly that in the context of the brutality of the facts in this case, genteel learned legal academic musings are not the prescription to right the gross wrongs suffered by Mr. Zafar Islam. The facts set out in this case, which are uncontradicted, set out a pattern of conduct that disgraces the word "employer" and must surely be abhorrent to the great majority of employers in our society. The respondent herein has jack-booted himself through the work place, trampling on the citizen civil liberties and human rights of Mr. Islam and has demonstrated to all of its employees and the applicant union herein its contempt for the Labour Relations Act, this Board, and its due process. I have difficulty equating a system where even the most minor offender against property rights is required to attend at a hearing into his alleged offence while gross offenders against personal civil liberty rights can, as in this case, thumb their nose at such hearing into their alleged offences to deal with the charges against them as demonstrated by the high-handed contemptuous manner of the respondent employer in this case. Those of us who cherish our basic freedom, and those who in our society stand up for fundamental rights are well served by Mr. Zafar Islam and his kind. We must defend the right, and, to round out this decision, at the very least, we must consent to the request of the applicant and award it full costs in this action. I would so order.