The Mount Nemo Truckers Association, Local 566 v. Nelson Quarry Operation of Genstar Stone Products Inc., 1983 CanLII 969

[1983] OLRB Rep. September 1531

0333-83-U The Mount Nemo Truckers Association, Local 566, Affiliates of the United Cement, Lime & Gypsum Workers International Union, ALF-CIO-CLC, Complainant, v. Nelson Quarry Operation of Genstar Stone Products Inc., and Torres Transport Limited, Respondents

BEFORE: Ian C. Springate, Vice-Chairman, and Board Members W. F. Rutherford and R. J. Swenor.

APPEARANCES: L. E. Fin gold and Ed Mattocks for the applicant; G. Grossman, M. D. Contini, D. L. Barnes and H. E. Macpherson for Nelson Quarry Operation of Genstar Stone Products Inc.

DECISION OF THE BOARD; September 13, 1983

1. This is a complaint under section 89 of the Labour Relations Act alleging a vio­lation of sections 3, 64, 66 and 70 of the Act on the part of the two respondents. These sections of the Act provide as follows:

[Section 3, 64, 66 and 70 omitted]

3. On or about February 22, 1977, the applicant trade union was certified as the bar­gaining agent for a unit of truckers in the employ of "Nelson Crushed Stone, a Division of Genstar Stone Products Inc., a Division of Genstar Corporation". This employer now goes under the name of "Nelson Quarry Operation of Genstar Stone Products Inc.". For ease of reference this firm will henceforth be referred to simply as "Nelson". The employees in the bargaining unit represented by the trade union are dependant contractor drivers who haul crushed stone and other material for Nelson. Torres Transport Limited ("Torres") is a firm which hauled material for Nelson prior to the union's certification, and continues to do so. Employees of Torres are not represented by the complainant trade union.

4. The essence of the complaint is that since the certification of the union, and con­tinuing to date, Nelson has been seeking to "undermine and destroy the union" by giving work which would otherwise have gone to members of the union to "outside" firms, most notably Torres. Nelson objects to the Board entertaining the merits of the complaint on two separate grounds. The first ground relates to the time span covered by the particulars filed in support of the complaint, some of which go back to the early 1970's. The second ground relates to the claim that the issues covered by the complaint can and should be dealt with by way of the grievance — arbitration procedure set forth in a subsisting collective agreement be­tween Nelson and the union. In support of this position, Nelson points to the fact that the union and its members filed numerous grievances under the collective agreement relating to the assignment of work, although none of the grievances were ever processed to arbitration.

5. We propose to deal first with the claim that the issues covered by the complaint are matters appropriately left to arbitration under the collective agreement. The collective agreement, which runs from February 8, 1982 through to February 7, 1984, contains the fol­lowing provision with respect to the assignment of work:

"RE: SINGLE AXLE, TRAILER AND TANDEM DELIVERIES

(Where the Company pays the trucker for hauling)

5.05 The Company shall not contract out to brokers any single axle or tandem deliveries to its customers if such deliveries can be immediately performed by members of the bargaining unit and if such contracting out would lead to the lay off of a member of the bargaining unit.

5.06 This provision is subject to such a member of the bargaining unit being willing to perform the above deliveries and possessing equipment suitable to the Company's requirement.

5.07 Any member of the bargaining unit with the permission of the Com­pany may purchase a trailer provided this shall in no manner be consid­ered a guarantee of work for such member.

5.08 The Company may bring in trailers outside the bargaining unit to effect its trailer deliveries. However, where trailers belonging to members of the bargaining unit are immediately available at the going trailer rate on a given job, the Company will give preference to such trailers. Once an initial allocation for a job is made by the Company, the trailers so allocated have preference for such job."

6. The union acknowledges that it and its members have over the years filed numerous grievances alleging that Nelson violated the collective agreement by the manner in which it has allocated work. In its complaint the union referred to the grievances as follows:

"The union has filed a large number of grievances protesting the tactics of the company which are effectively depriving the members of the bar­gaining unit of an opportunity to earn a livelihood. The company has refused to discuss the grievances with a view to resolving the situation. The sole goal and purpose of the company is to "starve" the bargaining unit of work, and thereby ensure the eventual destruction of the union."

In a letter dated June 10, 1983 particularizing certain matters alleged in the complaint, union counsel further commented on the grievances as follows:

"There have been 50 or more grievances filed in the last two years. The company always denies the information. All of the complaints relate to a discrimination matter between union and non-union drivers."

At the hearing, counsel for the union contended that the primary reason why the union had not arbitrated any of the grievances was because after the filing of each grievance, management generally improved its performance, although subsequently management always "slipped back" to its old ways. Counsel further contended that although the manner in which Nelson has been assigning work is, in the view of the union, in contravention of article 5.05 of the collective agreement, the arbitration process could not get at the root of the problem in that the actions of the company form part of a "grand scheme" to get rid of the union.

7. Section 89 of the Act gives to the Board a discretion to refuse to inquire into a complaint under the Act. The Board has at times exercised this discretion and refused to hear a complaint where the subject matter involved could also be dealt with by way of arbitration. Nelson would have the Board adopt such a procedure in this case and defer to the arbitration process. In our view, it is generally appropriate for the Board to defer to arbitration where a complaint alleging a violation of the Act primarily relates to a contractual difference between the parties. Indeed, from a reading of sections 44 and 45 of the Act, it is clear that the Leg­islature intended that matters primarily related to the interpretation and administration of col­lective agreements be settled through the arbitration process. However, where an employer is alleged to have engaged in conduct which may involve a repudiation of the substantive rights and protections granted to employees and trade unions under the Act, we are satisfied that the Board should not defer to arbitration but instead itself hear the complaint. See: Valdi Inc. [1980] OLRB Rep. Aug. 1254. In the instant case, the trade union's allegation that Nelson is engaging in a scheme to rid itself of the union raises issues concerning the rights granted to trade unions and employees under the Act. In the result, we are satisfied that the Board should inquire into the complaint. We would stress that the thrust of the Board's inquiry will be into the alleged violation of the Act, not the merits of various grievances alleging a vi­olation of the collective agreement. In particular, it will not be open to the union to seek to utilize the complaint in order to revive the various grievances which it and its members have filed and then apparently abandoned over the years.

8. We turn now to deal with Nelson's contention that the particulars being relied on by the company go back too far in time. There is attached to the complaint a Schedule "A" containing some ten typed pages of particulars relating specifically to this complaint. These particulars are expanded on in a four page letter dated June 10, 1983. A number of the par­ticulars in schedule "A" relate to events alleged to have occurred prior to the union's cert­ification in 1977. For example, paragraph 13 of appendix "A" states:

"On an evening in September of 1974, Torres admitted to Emilio Cam-pea that Torres Transport Limited was effectively in partnership with Nel­son Crushed Stone."

In addition there are a number of particulars relating to alleged activities that the union claims were engaged in over a period of time, but then stopped some years ago. For example, par­agraph 9(h) of Appendix "A" as supplemented by the letter of June 10, 1983 alleges as fol­lows:

"The management of Nelson Crushed Stone have given the inside work­ers of the quarry the instruction to always load Torres Trucks first."

"Yard foremen such as Doug Styles and Art Murray gave these instruc­tions to the inside workers throughout the period of 1974 to 1979."

Certain of the particulars do relate to more recent events and refer to dates in 1981 and 1982. The last date specifically referred to in Appendix "A" deals with an incident alleged to have occurred on December 10, 1982, while the letter of June 13, 1983 refers to an incident al­leged to have occurred "8 to 10 weeks ago".

9. Quite apart from the Appendix "A" to the complaint and the letter of June 13, 1983, there was also attached to the complaint a copy of a complaint apparently prepared by the complainant trade union in May of 1980. This 1980 complaint, which contains ten pages of additional particulars, alleges that in 1980 Nelson was bargaining in bad faith with respect to certain job security provisions which the union was then seeking to include in a collective agreement. This complaint was apparently not filed with the Board in 1980, but is now being put before the Board for the first time.

10. Counsel for the union contends that the particulars filed in support of the complaint stretch so far back in time so as to illustrate the historical development of the relationship between the parties. Counsel also stressed that many particulars relate to events alleged to have occurred in 1982, and pointed as well to the events of "8 to 10 weeks ago" referred to in the letter of June 13, 1983.

11. The Board has taken the position that parties should act with promptness in raising allegations of wrongdoing, and further that a failure to do so may result in the Board refusing to hear the allegations. The Board commented on this as follows in Re: The Corporation of the City of Mississauga [1982] OLRB Rep. March 420:

"20. 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 satisfactorily 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 9-672 and Dow Chemical of Can­ada Limited [1966] 18 L.A.C. 51 (Arthurs)).

21. 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

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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.

22. A perusal of the Board cases reveals that there has not been a me­chanical 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 liability 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.

23. In our view it would be both unfair and unreasonable to require that company rep­resentatives now address themselves for the first time to events alleged to have occurred some years ago. This, along with the industrial relations policy considerations expressed in The City of Mississauga case respecting the need to raise complaints within a reasonable time period, lead us to conclude that the Board should exercise its discretion under section 89 of the Act and not inquire into any allegations of improper or unlawful conduct alleged to have occurred prior to the 18 month period immediately preceding the filing of the complaint, that is prior to November 13, 1981. Once the Board has heard the evidence and representations of the parties with respect to the merits of the complaint, and assuming a violation of the Act is made out, the Board will decide whether it would be appropriate to actually grant remedial relief for the entire 18 month period, or whether some lesser period might be more appro­priate.

24. The matter is referred to the Registrar to be re-listed for hearing.