Philip Wayne Bradley v. Canadian Paperworkers Union, Local 212, 1983 CanLII 880

Philip Wayne Bradley v. Canadian Paperworkers Union, Local 212

File No.: 1333-82-U Date: June 8, 1983 Ontario Labour Relations Board

Between: Philip Wayne Bradley, Complainant

• and - Canadian Paperworkers Union, Local 212, Respondent

Before: Corinne F. Murray, Vice-Chairman

Appearances: Michael Bendel and Phillip Wayne Bradley for the complainant J. James Nyman and W Oliver for the respondent

Decision of the Board

1. This decision arises from a letter dated April 15, 1983 received from counsel for Mr. Bradley wherein the complainant applied for "a resolution" of "the dispute over the interpretation or implementation of its Order" dated March 17, 1983. In that order, among other things, the Board ordered that the respondent forthwith submit the matter of Mr. Bradley's discharge to arbitration for a hearing on its merits. The order was made to remedy a breach of section 68 of the Act found to have occurred because of certain arbitrary acts of an official of the respondent. The facts supportive of this conclusion are set out in the decision containing the above-noted order (now reported at [1983] OLRB Rep. Mar. 323) and need not be repeated here in totality. A few aspects of the March 17, 1983 decision bear mentioning however. It was not argued by the complainant at the original hearing in this matter that any bad faith, malice or ill will motivated or lay behind the respondent's treatment of Mr. Bradley's discharge. The Board did not find any personal ill will was borne toward Mr. Bradley by the relevant union official or anyone else appearing before us in the original hearing. In this connection the Board found at paragraph 25:

25. In order to provide "arbitrariness", it is not necessary to show that there was subjective ill will. The Board has in other cases found arbitrariness where the union has taken a totally unresponsive position (see the analysis of the meaning of "arbitrary" in section 68 in C.U.P.E. Local 1000, [1975] OLRB Rep. May 444, at page 462), or has totally ignored the merits of a complaint (see I.A.W. Local 2-700, [1972] OLRB Rep. Oct. 916)). Mr. Poirier believed that section 4(b) of the collective agreement released him and the respondent from any obligation to consider representing Mr. Bradley using the normal channels of the grievance procedure and eliminated Mr. Bradley's right to file a grievance of his own. Assuming, without finding, that section 4(b) [of the collective agreement] indeed meant that, I find that Mr. Poirier conducted himself in an arbitrary manner. One of the most fundamental ways in which a trade union represents bargaining unit members is through negotiation of a grievance procedure and through the participation of its officials in some or all of the steps in the grievance procedure. The respondent in this case negotiated a grievance procedure accessible to all bargaining unit members and did not negotiate a clause excluding probationary employees from the substantive right of having their discharge or suspensions subject to the standards set out in the Mill Rules. But in the same collective agreement the respondent stipulated, through section 4(b) [of the collective agreement], that it would not represent probationary employees who have been discharged. This stipulation, in the context of this collective agreement, is an arbitrary one because it sanctions an unresponsiveness and the total ignoring of the merits of a probationary employee's discharge simply because he/she is probationary. Without any explanation as to why probationary employees should not be represented by the respondent when they are discharged or why the merits of their discharge should not be considered, I must conclude that the respondent has arbitrarily abdicated its duty to represent Mr. Bradley because he was a probationary employee.

2. Counsel for the complainants in his letter of April 15, 1983, described the dispute over the "interpretation or implementation" of the Board's order as follows:

The dispute relates to Mr. Bradley's representation before the arbitration board. Mr. Bradley seeks to be represented by a lawyer of his own choosing, with legal fees being paid by the Respondent union, whereas the Respondent union has offered him the services of a union representative.

3. The request that the complainant be represented by a lawyer of his own choosing with legal fees paid by the respondent was made by the complainant before the Board at the original day's hearing. The Board did not grant that request. The complainant properly interpreted the Board's order as implicitly rejecting this request. The Board has stated on numerous occasions that success in proving that section 68 has been breached does not automatically confer on the complainant the right to have his grievance arbitrated (see, for example Massey-Ferguson, [1977] OLRB Rep. April 216; Bedard Gerard, [1981] OLRB Rep. Oct. 1338). Where the Board does grant such remedy, it does not always make an order as to representation at such arbitration. The Board has normally specified who must represent the grievor at an arbitration it directs, as a result of a section 68 proceeding, where there are ongoing serious concerns that the complainant will not receive a non-arbitrary, non-discriminatory, good faith treatment by the respondent in the course of its presentation of the arbitration (see, for example, Leonard Murphy, [1977] OLRB Rep. March 146, the first reported decision where such an order is made). When the Board has made an order concerning representation at arbitration, the nature of the order has been that the union and the grievor jointly select a lawyer to handle their presentation (see Leonard Murphy, supra; Bedard Gerard, supra). In the Leonard Murphy decision, (supra), the Board ordered that jointly selected counsel present the case at arbitration because the union officials had twice failed to fulfill their duty under section 68, that relatives of these officials had been hired as replacements for the discharged grievors and that the bad faith operative within the relevant union officials eclipsed the complainants' individual rights. In the Bedard Gerard decision, supra, the union had actively thwarted the grievances of the complainant even to the point of improperly writing up a grievance so that the grievor's real complaint was not set out. No order as to representation was made on the facts in the case before me because the nature of the union's actions were not comparable to these decision nor raised similar concerns regarding the respondent's ability to represent the grievor's interests at arbitration without violating section 68. There was no evidence presented to me which led me to conclude that an order directing legal representation, either jointly or exclusively chosen by the complainant, was warranted. An order for separate, independently selected legal counsel would be highly extraordinary. A remedy under section 68 should not change the essential character of the arbitration process. The respondent is the party to the collective agreement and the arbitration not the grievor (General Motors of Canada v. Brunet, 1976 CanLII 196 (SCC), 2 S.C.R. 537) and would have, except for a violation of section 68, had exclusive selection over whether the arbitration was to proceed and how. The interests of a bargaining agent and the grievor are united before an arbitration board. Jointly selected counsel has been ordered only where the Board feels there would be no truly united representation of the arbitration case for the respondent and the grievor. The joint selection process is to ensure that this unity is restored. The exclusive selection of legal counsel would effectively remove the essential unity of the grievor's and union's interests at arbitration.

4. In response to the complainant's letter of April 15, 1983, the Board directed a "continuation of the hearing" into this file on May 30, 1983. Counsel for the respondent indicated by letter dated May 13, 1983, that he was objecting to the Board's jurisdiction to entertain the complainant's request because the relief requested in the April 15, 1983 letter would necessitate the issuance of further and additional remedies not referred to in the Board's decision.

5. On May 30, 1983, the Board sat in Ottawa to hear the representation of the parties. For the first time representatives of the former employer of the complainant, Domtar Fine Papers Inc., were present. The employer was not made party to the proceedings at this stage because the argument regarding the appointment of counsel to represent the complainant did not raise any matters impacting on its interests. The representatives of the employer did not object to this.

6. The complainant's counsel in describing the position of the complainant specifically denied he was seeking reconsideration of the original award. He also candidly admitted that he did not see the "dispute" that had arisen between the parties as creating a fresh section 68 complaint. Finally, he refined his argument so that the argument was simply that the dispute involved was over the implementation of the order, not its interpretation. He indicated he clearly understood the order to have implicitly rejected the original request for independent legal counsel.

7. Some evidence was presented upon which the parties based their arguments. The respondent objected to a portion of it because it was only relevant to a fresh complaint as to the quality of representation not to a decision as to whether there was a dispute regarding implementation of the order. The evidence (including the portion to which objection was made) may be briefly stated. Following issuing of the Board's order, counsel for the complainant orally requested that the respondent agree to have him as counsel at the arbitration directed. He also requested that he be kept informed of the proceedings. Pursuant to that request, the respondent informed him and/or the complainant by letter as to the arbitration board's composition and the arranged hearing date (June 15, 1983). The complainant's counsel in writing reiterated his request that he represent Mr. Bradley (and, presumably, the respondent) at the arbitration hearing, and that the cost of his services were to be paid by the respondent. These were the facts which initially both counsel before me indicated were necessary for me to know in order to consider their representations. Later on counsel for the complainant acknowledged he made a mistake in this judgment call and was allowed to introduce the following evidence through the sworn testimony of Mr. Bradley, subject to the respondent's objection. At the same time as he was informed of the date of the arbitration, Mr. Bradley was informed by letter that the person who would be presenting his case would be Wilfred Oliver who was the respondent's counsel at the original meeting. Essentially, Mr. Bradley testified that he was dissatisfied with Mr. Oliver's preparation of the case for arbitration. He felt Mr. Oliver was not spending enough time on the preparation. He felt that if Domtar had lawyers, he should have the equivalent (there is no dispute that Mr. Oliver is not a lawyer but that he handles all of the respondent's arbitrations). Mr. Bradley did not feel Mr. Oliver was treating him any different than any other grievor. Mr. Bradley's complaint vis-a-vis Mr. Oliver lay in the adequacy of preparation and his skills as compared to "a lawyer". Mr. Bradley acknowledged that virtually all the facts to do with his discharge were canvassed at the Board's original hearing. However, even though Mr. Oliver's participation in the original proceedings would make him familiar with the facts regarding his discharge, Mr. Bradley felt he would not know the facts of "other witnesses". Mr. Bradley could not deny in cross-examination that Mr. Oliver, unbeknownst to him, could have met with other potential witnesses.

8. A summary of the complainant's argument is that the appointment of Mr. Oliver to represent Mr. Bradley raises a dispute about the "implementation" of the award. It was something that could not have been foreseen and the insertion of paragraph 30, which states that the Board will remain seized should there be a dispute as to the interpretation or implementation of the order, was to deal with the unforeseeable. Before me the complainant argued that jointly appointed counsel would be acceptable to the complainant. But it must be a lawyer. The main reason (which appeared in fact to be the sole reason) is because Mr. Oliver had before this Board been in an "adversarial position" vis-a-vis Mr. Bradley's interest. Since Mr. Oliver is not a lawyer, the complainant claims he cannot now, after having been "an adversary", thoroughly present Mr. Bradley's position with vigor. This is especially true when the statements made by Mr. Oliver at the original hearing are recalled, i.e., statements to the effect that the company probably had good cause for termination. The selection of Mr. Oliver as counsel for the arbitration is surprising to the complainant in view of this "history". It would be impossible for Mr. Oliver, a so-called "layman", to change positions now and become an advocate of Mr. Bradley, because the fact that Mr. Oliver was not a lawyer made him unaccustomed to arguing on opposite sides on different occasions and because Mr. Oliver "believed" the arguments he made before the Board as summarized at paragraph 21 of the original decision. When asked what position the complainant would have taken if another union official (non-lawyer) had been appointed as counsel, the complainant submitted that his position would depend on whether he had "confidence" in that person.

9. The respondent strenuously disagrees that the facts raise a question of implementation. If anything, they made a fresh section 68 complaint regarding the quality of representation by the respondent of Mr. Bradley's interests. If it is a fresh section 68, then the complainant ought not to be permitted to raise these matters in these proceedings in this fashion because the "complaint" touches significant issues of whether the respondent must appoint legally trained counsel or whether the general practice of not appointing such persons is sufficient to rebut a charge of arbitrariness, bad faith or discrimination. He argued that the order granted leaves the Board functus officio insofar as resurrecting a requested but refused remedy is concerned. Although counsel could find no Board decisions on this point, he cited numerous arbitration decisions and Court decisions which indicate that the question of whether a body of limited statutory authority is functus in connection with a particular case is a question of fact. Since the remedy now sought was requested, argued and not granted, it cannot be re-litigated under the guise of "implementation". If this is not a fresh section 68, the respondent contended that the only way the complainant could succeed is via reconsideration. Even it the complainant had decided his application was a reconsideration, the Board would not grant such a request because the remedy was raised and argued at the original hearing and, therefore, does not satisfy the Board's own requirements for reconsideration. There is no reason to believe that Mr. Oliver, whose job it is to represent grievors and the respondent at arbitration, will not do his job in accordance with the Board's order and the duty he and the respondent have under section 68. The fact that he is not a lawyer does not mean that he is incapable of fulfilling both the Board's order and the requirements of section 68 merely because he represented only the respondent's interests in the original hearing of this matter.

10. Subsections (1) and (3) of section 106 of the Labour Relations Act set out the scope of the Board's decision-making powers:

106.-(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

(3) Where the Board has authorized the chairman or a vice-chairman to make an inquiry under clause 103(2)(h), his findings and conclusions on facts are final and conclusive for all purposes, but nevertheless he may, if he considers it advisable to do so, reconsider his findings and conclusions on facts and vary or revoke any such finding or conclusion.

What these subsections mean is that where everything has been decided in a matter, the only way the Board has jurisdiction to consider the matters finally decided is through its powers of reconsideration. It has been established that the power to reconsider is an "independent plenary power" (Labour Relations Board of British Columbia et al. v. Oliver Co-operative Growers Exchange and Okanagan Federated Shippers Association, 1962 CanLII 46 (SCC), [1963] S.C.R. 7 (S.C.C.); Bakery & Confectionery Workers Int'l Union of America, Local 468 v. Salmi et al.; White Lunch Ltd. v. Labour Relations Board of British Columbia, 1966 CanLII 84 (SCC), [1966] S.C.R. 282 (S.C.C.)). However, in exercising its powers to reconsider, the Board has been careful not to undermine the finality of its decisions. The underlying rationale behind maintaining the finality of the Board's decisions was set out in The Detroit River Construction Ltd. case, 63 CLLC ¶16,260:

... While depending upon the circumstances of the case and the applicable principles of natural justice, the Board ought not to be as strict or as technical as a Court, it must nevertheless, in our view, recognize the necessity for and apply some principle of finality to its decision. It stands to reason that when a party has gone through the ordeal, expense and inconvenience of a hearing and obtained a decision in his favour, that he should not be deprived of the benefit of that decision except for good cause.... If it were otherwise, the door would be open in any given case to ceaseless and never-ending hearings each serving as a prelude to the next ad infinitum and no one could ever safely rely on any decision as finally settling the rights of the parties."

In the Journal Publishing Company of Ottawa Ltd. decision, [1977] OLRB Rep. Sept. 549, the Board stated the two main reasons for the requirement of finality, at paragraph 6:

... The first reason is to protect the interests of those who have relied upon the Board's decision. The reliance interest is perhaps most important in those cases where the Board's decision has the effect of conferring or withdrawing bargaining rights. In such cases, where representation rights are in issue, the need for certainty and finality becomes obvious. A second reason, and perhaps no less important, is to protect the integrity of the Board's own processes. These processes must be protected from parties who, under the guise of reconsideration, are merely seeking to repair, or reargue, a lost case.

The usual ground which must be shown by a party requesting reconsideration is that there is new evidence or argument which could not, with reasonable diligence, have been discovered prior to the original hearing, which new evidence will make a substantial difference to the outcome of the case (see K Mart Canada Limited, [1981] OLRB Rep. Feb. 185 and cases cited therein). This ground clearly is retrospective because the evidence which could not have been discovered or adduced must have been in existence at the time of the initial proceedings. This ground is essentially the same as that required by the Courts to reopen a decided lis. While this is the most usual basis for reconsideration, it is not the only ground upon which the Board will reconsider a decision, order, declaration. In Canac Shock Absorbers, [1974] OLRB Rep. March 131, Appl. for Jud. Rev. dism'd S.C.O. (Div. Ct.) Oct. 23, 1974 unreported, the Board reconsidered and clarified an order it had made because "cogent and compelling reasons" had been shown. The reasons were the fact that the case was one of first instance, there had already been protracted proceedings, and a proliferation of proceedings could occur if the Board did not use its powers of reconsideration. In The Journal Publishing Company of Ottawa Ltd., supra, the Board decided to exercise its jurisdiction to hear a reconsideration application where the evidence the applicant wished to lead was regarding events subsequent to the Board's order which events showed the Board's order should be varied. Ultimately, however, the Board decided to reject the request for reconsideration in the circumstances of that case. It is arguable that the Board, endowed with such broad powers of reconsideration (which can occur even on the Board's own motion) need not specifically "retain" jurisdiction in its decisions. (See R. v. Ontario Labour Relations Board, Exp. Genaire Ltd., 1958 CanLII 130 (ON HCJ), [1958] O.R. 637 (Ont. H.C.); aff'd 1958 CanLII 352 (ON CA), [1959] O.W.N. 149 (Ont. C.A.)). Be that as it may, a distinction ought to be made between a retainer of the Board's jurisdiction over a matter and a reconsideration. The retainer of jurisdiction indicates that all aspects of the decision or order are not final and that if something arises within the scope of the unfinalized, a party may apply to have that aspect finalized. Where everything is finally determined, only the plenary power of reconsideration may be invoked to deal with the same matter.

11. By paragraph 20 of the March 17, 1983 decision the Board retained jurisdiction over any disputes arising from the interpretation or implementation of the order. This is a retention of jurisdiction which the Board often makes to allow parties to return to the panel to work out details of the order which were not foreseen or argued and to avoid expensive, time-consuming and perhaps counter-productive resort to harsh enforcement mechanisms of prosecution or contempt proceedings. It also expedites the initial hearing by eliminating the necessity of the parties adducing evidence and making submissions concerning matters such as quantum of compensation which can generally be resolved by the parties without the assistance of the Board. The question raised by the arguments described above is where implementation ends and reconsideration or a fresh complaint begins.

12. Having carefully considered the evidence and representations of the complainant, I have determined that they do not raise matters of "implementation" in the sense intended by that term. The implementation of the order deals with the subsidiary details of implementation, such as the speed indicated by the word "forthwith", whether the arbitration must be by a three person board or by a sole arbitrator. It does not extend to the resurrection of a remedy already sought and not granted. The complainant's request for legal counsel was originally considered and not ordered. That is the end of the matter insofar as this section 68 complaint is concerned because the decision not granting independent legal counsel is "final". The only way in which the complainant could be successful in obtaining a change to this decision would be by way of an application for reconsideration. The complainant did not frame its argument in those terms; the complainant relied solely on the contention that the Board had retained sufficient jurisdiction from its original section 68 complaint to deal with the issue of the nature of the representation before the arbitration scheduled pursuant to the Board's order. However, even if the complainant had argued the request for legal counsel paid by the respondent on the basis of reconsideration, reconsideration would not have been granted because there is no evidence which has persuaded me that the refusal of the original request is wrong or should be changed and that the plenary power of reconsideration should be exercised in this case. It is not apparent from either the fact that Mr. Oliver is not a lawyer nor that he was counsel in the previous proceedings where he represented the respondent that he will not fulfill his legal responsibilities to the complainant at the arbitration hearing. In any event, the complainant has the continuing protection of section 68 of the Act, and Mr. Oliver (as an official of the respondent) continues to be under the duty set out in section 68 of the Act to refrain from acting in a manner that is arbitrary, discriminatory or in bad faith in the representation of the complainant in the arbitration proceeding, which duty is enforceable in the normal way under section 89.

13. Accordingly, the remedy requested by the complainant in its letter of April 15, 1983, and before me on May 30, 1983, is refused.