[1984] OLRB Rep. November 1659

1183-84-U Cameron Douglas Wonch, Complainant, v. International Union of Operating Engineers Local 793, Respondent

BEFORE: S. A. Tacon, Vice-Chairman.

APPEARANCES: Cameron Wonch, Terry Davey, John Clark, Moira Wonch and Norma Gillespie for the complainant; Mark Zigler, E. Ford and George Palanuk for the respondent.

DECISION OF THE BOARD; November 22, 1984

I

1. This is a complaint alleging violation of section 68 of the Labour Relations Act.

2. Counsel for the respondent raised three preliminary objections, arguing that the complaint should be dismissed on each of these grounds. The preliminary objections were as follows.

(a) The complainant was not a bargaining unit member at the time the

alleged violation of section 68 and such bargaining unit status is an essential prerequisite to a complaint under section 68. The status of the complainant had been determined in a previous Board decision, File No. 0960-83-U; this determination of status was binding on the Board as a finding in rem under the doctrine of resjudicata or, issue estoppel.

(b) The complaint did not disclose a cause of action. That is, even if the facts alleged in the complaint were true, this did not amount to a violation of section 68.

(c) The delay in filing this complaint was excessive and prejudicial to the respondent.

The submissions of the respondent on the above points are set out later in this decision.

II

3. In response to the issue of bargaining unit status, the complainant's representatives asserted that the complainant was still a member in good standing of the respondent union, which operated a hiring hall, that the complainant had been a member of the negotiating team in November 1981 and that a grievance had been filed by the respondent union asserting recall rights on behalf of the complainant on July 4, 1983. The grievance was dropped by the respondent union after the first stage reply by the company rejecting the grievance. The respondent does not dispute these facts, nor the fact that the separation slip issued to the complainant in December 1981 indicated date of recall as "unknown". The representatives of the complainant, however, also asserted that the fact that the grievance was filed proved that the respondent union considered the complainant's recall rights were still extant in July 1983 and, further, that Mr. Palanuk, the union business agent, had led the complainant to believe that his recall rights would be protected. The respondent disputes the conclusion and allegation just outlined.

4. The Board must observe at this point that the complainant's representatives simply did not have a very good grasp of the issues in this case or the concept of relevance. Membership in a union is not the same as membership in a particular bargaining unit. Nor, for the purposes of section 68, is membership in the union a material consideration. The obligation under section 68 is owed to employees in the bargaining unit whether or not they are union members and, conversely, no section 68 duty is owed to union members who are not also members of a bargaining unit which the union is obligated to fairly represent. Membership on a negotiating team in November 1981 says nothing about an individual's employment status some 14 months later. For example, under the Employment Standards Act, an individual indefinitely laid off for more than thirteen weeks is considered to have been terminated, and it is not at all unusual that, even under the more generous terms sometimes found in collective agreements, the rights of former employees to return to work can be ended. A grievance may be filed for a number of reasons; the filing of a grievance does not prove the union believes the grievance would be successful at arbitration. It is simply wrong to assume that an assertion of right undertaken at the instance of the grievor should be construed as an acceptance by the union that the grievor is right in his assertions. The Board, however, has endeavoured to set out the positions and submissions of the complainant's representatives whether or not they addressed the issues.

III

5. With respect to the preliminary objection (b) above, the Board directed the complain­ant's representatives to state precisely what conduct of the respondent union, in the complain­ant's view, amounted to a violation of the duty of fair representation in section 68. The following acts or omissions of the respondent union were alleged and said to constitute violations of section 68:

(i) The union failed to hold a ratification vote as provided in the union constitution. The complainant was, thus, deprived of his right under the constitution to reject the proposed collective agreement or to insist on changes to the negotiated terms.

(ii) The content of the negotiated collective agreement, in Article 9.09(c), included a provision whereby an employee would lose all seniority (and, thus, recall rights) after a layoff in excess of the employee's seniority with a maximum of twelve (12) months.

(iii) The union failed to take the complainant's grievance to arbitration. Both parties agreed that the union approached the company on two occasions regarding the grievance and the company s answer was unsat­isfactory to the complainant. However, the complainant's representa­tives alleged, and the respondent disputed, that Mr. Palanuk had assured the complainant that the grievance would proceed to arbitra­tion. The assurances were said to be misleading and illegal.

(iv) The manner in which the union conducted negotiations, i.e., the length of time taken to conclude the collective, agreement, violated section 68. The respondent objected at this point, arguing that since the complaint had not raised the matter of the delay in negotiations, the complainant should not be permitted to do so now.

(v) The complainant should have been referred to other employment by the union's hiring hall and, further, the union had failed to enforce Article 3.03 of the collective agreement wherein the company is re­quired to give preference to the union for the supply of personnel. The respondent objected that this allegation might come within the scope of section 69 but was clearly not relevant to section 68. The complain­ant's representatives dropped this issue in reply (see paragraph 22, infra). [It should also be noted that it was not disputed the union did refer the complainant to the job with C.A. Pitts in 1982 which the complainant accepted].

(vi) The complainant's representatives also suggested that the union was not acting properly by not following up on the manner in which the company operated during the 1982 season. However, the complainant's representatives acknowledged that there was no collective agreement in effect during this period. When it was pointed out that, without a collective agreement in force, the company was free to operate in the manner it did during the 1982 season, the complainant's representatives did not pursue this issue further. The Board must again comment that this is but another illustration of the failure of the complainant's representatives to comprehend the statutory scheme for regulating labour relations in this province.

6. The complainant had filed an earlier complaint against the company, Rapid Ready-Mix Limited, File No. 0960-83-U, alleging that he had been dismissed in December 1981 for union activity. This complaint had been dismissed by the Board in a decision dated September 20, 1983 (hereinafter referred to as the MacDowell decision). The decision involved essentially the same fact situation as the present complaint, although only the company (and not the union) had been named as respondent. It became apparent that the present complaint had been filed in consequence and in the shadow of the earlier unsuccessful complaint against the company. Therefore, the Board directed the complainant's representatives to carefully review that decision and indicate which facts contained therein were agreed to and which were disputed. For those facts disputed, the complainant's representatives were requested to state the facts which they intended to prove. The Board recessed the hearing to permit the complainant's representatives to prepare their response. The respondent did not dispute any of the findings of fact in the MacDowell decision.

7. The complainant's representative indicated the following findings of fact in the MacDowell decision were disputed. (For convenience the Board has set out the "MacDowell finding" first, indicated by quotation marks, and then the complainant's assertions, marked as "C"). Those findings, of course, were based upon the evidence adduced before the Board in the earlier proceeding. That evidence, including the complainant's testimony, was given under oath, subject to cross-examination and weighed in the usual manner.

paragraph 4

"The complainant worked for Algo on occasion in its snow removal business until a back injury made it difficult for him to perform all of the various duties associated with the job."

c — The complainant worked on snow removal for Algo until the Winter 1982. The complainant did have a back problem and had requested that he not be assigned to operate the backhoe or the loader. The complainant wished to be assigned solely to the dump truck; in the previous winter the complainant had only operated the dump truck.

paragraph 5

"In recent years the company has experienced severe financial difficulties. The economic recession led to a sharp reduction in construction activity —particularly in the north — and there was a consequent reduction in the demand for ready—mix concrete.~~

c — The sales for 1982 were the same as for 1983 when there was a full complement of staff.

"The subsidiary was prepared to offer its product at a price well below that of other local ready-mix suppliers . .

c — The other suppliers were not continually undercutting the compa­ny, just on two specific projects.

paragraph 6

"The Sault Ste. Marie cement plant was shut down for the winter" [i.e. 198 1-82 Winter season]

c — The company did operate, at least briefly, during this period.

paragraph 7

"Gerald Hill testified that in view of the competition and the slack demand for concrete, it was uneconomic to keep the plant open over the winter months."

c — The plant was open, the General Manager was kept on and paid his salary.

"Although the company had never had a total shutdown before, business conditions simply did not warrant incurring the high fuel costs associated with a winter operation."

c — The furnace at the plant was kept going for at least part of the time.

..... because of Mr. Wonch's back injury, and the complaints which he had voiced in the past, he was not offered a job with Algo."

c — see comments re: back injury above.

"He [the complainant] remained working for that company until December,

1982."

c — The complainant worked for Pitts until November, 1982, not December.

paragraph 8

c — The facts as set out are not disputed; the complainant, though, did not receive a registered letter from the company stating that he was terminated.

paragraph 9

"According to Gerald Hill, the Sault Ste. Marie cement plant remained inactive until the Spring of 1982."

c — see reference to plant opening during Winter 198 1-82, above.

"The company's manpower needs in Sault Ste. Marie were minimal, and it was determined that only one additional employee was needed."

c — More than one employee was needed.

paragraph 10

... was told that Lahtie was working in Sudbury."

c — Lahtie visited but never worked in Sudhury.

... Haskett was only kept on for a couple of weeks and returned to his alternative job at Stone and Webster."

c — Haskett only worked 2 days and did not return to Stone and Webster.

a temporary employee was retained for about three months during the peak summer months."

c — This is not disputed except that the employee earned $7,000 during this period.

paragraph 11

"and, out of interest, attended one negotiating meeting;"

c — The complainant did not attend out of interest but was asked to attend by the union representative. [The complainant did not dispute the finding that he had attended only one negotiating meeting.]

paragraph 12

"George Palanuk, the local union business representative, testified that there was only one or two employees potentially bound by the agreement and he discussed its contents with them before it was signed.

c — The recollection of the complainant's representatives was that Mr. Palanuk testified that he "thought" he'd discussed it with one individual.

paragraph 14

c — With respect to the first three sentences, the complainant's repre­sentatives stated that the complainant had clarified his testimony, i.e., that upon reflection he told the Board that he had only seen the truck once.

"Gerald Hill and Ken Trudeau both testified that, to the best of their

recollection, the construction site in question was closed because of inclem­ent weather between January and April, 1982 and no vehicles had been sent.''

c — This referred to the Crystal Heights project which was not com­pletely closed down for the entire period.

"This evidence was confirmed by the general contractor, who testified that construction stopped completely after an unusually large snowfall on Jan­uary 3, 1982, and did not resume until mid-April."

c — The general contractor was lying. [The Board informed the com­plainant's representatives that this was not the forum to deal with any allegations of perjury against the general contractor.]

paragraph 15

"The complainant did not express any wish to return to his former job. . [October 1982].

c — The complainant did ask how things were going for the company. The complainant's representatives asserted that this implied that the complainant was asking when he would get his job back.

paragraph 16

Trudeau testified that he [the complainant] did not specifically ask for his old job back." [June 1983]

c — The complainant did ask for his job back.

paragraph 17

c — With respect to the testimony that Mr. Palanuk was aware the company was not paying the collective agreement rates and took no action, the complainant asserted this proved the union and the company had a sweetheart arrangement. The Board stated that this was "argument” not "fact" and the complainant's representa­tives did not deal further with this.

8. At this point, the Board directed the complainant's representatives to stipulate all the facts they intended to place before the Board. Witnesses were excluded at the request of the complainant's representatives. The Board notes that the complainant's representatives determined that the complainant himself should leave the room as well. The complainant's representatives indicated later in the hearing during submissions that they wished the witnesses to remain excluded; the Board ruled that the order for exclusion would continue.

9. The following is a summary of those facts: (in addition to those set out in paragraph

7 above, i.e., re: The MacDowell decision):

(a) Mr. Wonch approached Mr. Palanuk approximately twice a month from February, 1982 to December, 1982, to ask when a collective agreement would be signed and when he would be recalled.

(b) Mr. Palanuk told Mr. Wonch on several occasions that when a collec­tive agreement was signed Mr. Wonch would return to the company with his seniority; on other occasions, Mr. Palanuk replied that "he was working on it."

(c) Mr. Wonch requested, by registered letter to Mr. Palanuk, copies of minutes ratifying the collective agreement (see Exhibit 4). Mr. Palan­uk did not reply himself although the union office in Toronto did; the reply was not satisfactory to the complainant.

(d) Mr. Wonch sent another letter to Mr. Palanuk, dated March 21, 1983 (Exhibit 5); there was no reply to that letter.

(e) The complainant's representatives expected Mr. Palanuk (who would be appearing under subpoena) to confirm Mr. Wonch's testimony, including setting out Mr. Wonch's employment history at Ready-Mix.

The Board read back the above summary to the complainant's representatives who confirmed that the summary accurately reflected what had been stated and, further, this represented all the facts they intended to prove.

10. Mr. Davey strenuously objected to the Board proceeding in this manner. Mr. Davey submitted that he had appeared in numerous Board hearings and had never encountered such a manner of proceeding. He further objected to being forced to reveal the questions he intended to ask Mr. Palanuk and suggested that this procedure raised the specture of collusion between counsel for the respondent and Mr. Palanuk with respect to preparation of responses by the intended witness.

11. The Board replied as follows:

(a) The Board had not forced the complainant's representatives to state the questions intended to be asked of Mr. Palanuk. The Board had merely asked what facts were to be proved through Mr. Palanuk. When the complainant's representative proceeded to state the questions to be asked, the Board interrupted to avoid a recitation of the questions and asked whether it was fair to characterize Mr. Palanuk's testimony as expected to confirm Mr. Wonch's testimony. The complainant's representative agreed but, nonetheless, continued to recite the intended questions. [It should also be noted that the complainant's representa­tives chose to state which facts would be proved through which witness rather than just summarizing the material facts they intended to prove and on which they relied. Unfortunately, the complainant's representa­tives were unclear about the concept of relevance, about what 'facts' were actually relevant to the matter in issue].

(b) The Board stated that collusion was a serious allegation. The Board assumes that parties abide by the Board's rulings regarding the exclu­sion of witnesses and the limits thereby placed on any discussions with those witnesses. The Board was not prepared to allow such allegations of serious misconduct to be casually raised.

(c) The Board also informed the complainant's representative that the Board was utilizing a reasonably common procedure whereby the complainant was being asked to state his best case, i.e., to stipulate all the facts which were to be proved and, then, assuming all those facts were true, to demonstrate how a violation of section 68 would thereby be made out.

IV

12. The Board then directed the complainant's representatives to:

(in) assume the facts they intended to prove were true and demonstrate how a violation of section 68 was thereby made out;

(in) show how, even assuming there was a violation of section 68, that the remedy sought flowed from that violation and should be granted partic­ularly given the considerable passage of time; and

(iii) respond to the respondent's submission seeking dismissal on the ground of undue delay in filing the section 68 complaint.

13. The submissions of the complainant's representatives are summarized under the headings prima facie case [re: paragraph 11(i)], remedy [paragraph 1 1(u)] and timeliness [paragraph 11 (iii)]. As to the respondent's assertion that the complainant was not a member of the bargaining unit at the time of the alleged violation of section 68 and, hence, had no status to bring this complaint, the complainant's representatives simply stated that the complainant continued to be a union member in good standing and would have been recalled had the union not agreed to the provision in the collective agreement terminating seniority rights after a specified period. It was asserted that this was sufficient to make the complainant an "employee in the bargaining unit" even though he had not actually been at work for some time, had been employed elsewhere, had no right of recall at the time he ceased working for the employer and, as it turned out, had no right of recall in accordance with the collective agreement subsequently concluded.

14. Apart from the comments in paragraph 3, the Board would emphasize that "seniority" and "recall rights" as used throughout do not refer to rights held by the complainant under one collective agreement which were "lost" or "weakened" through some action of the union. In this case, the union was negotiating a first collective agreement. The complainant had no recall rights or seniority. What he is really complaining about is that the first collective agreement did not create such rights for him because he had had no employment relationship with the company from December 1981 to January 1983 (the date the first agreement was effective, although it was signed in April 1983). His argument is that in early 1983, the union should have demanded terms which would have been helpful to him even though he had ceased working for the employer over a year before. And, of course, one can only speculate about the employer's response to this demand.

15. Prima facie case: The complainant's representatives submitted it was bad faith for the union not to give Mr. Wonch notice that the collective agreement was to be ratified without his input since he was a card-carrying member of the union. It was arbitrary and in bad faith for the union to ratify a collective agreement in a manner which, it was said, violated the union's constitution and/or bylaws. It was in bad faith for Mr. Palanuk to have led Mr. Wonch to believe that, when a collective agreement was negotiated, he (Mr. Wonch) would be recalled by the company. Mr. Wonch expected that the recall provisions in the initial proposals by the union to the company would be incorporated into the eventual collective agreement (and, presumably, for the union to have agreed to the clause terminating seniority rights after a specified period on layoff was in bad faith). The union misrepresented Mr. Wonch by taking his union dues but not fulfilling their part by not faithfully checking that its members were in fact being treated fairly and enforcing the "preference for union personnel" clause in the collective agreement with the company. [As noted in paragraph 5(v), this last argument was dropped]. The Board also repeats the fact that the union did refer the complainant to another job and collected dues because he was gainfully employed on that job. There is no suggestion that, while employed at Pitts the complainant ever evinced any desire to continue to be treated as an employee of Rapid Ready — Mix.

16. Remedy: The complainant's representatives initially asked for relief in the form of full monetary compensation for all lost wages from layoff in December 1981 to date, less monies received from other earnings, UIC, etc. After some discussion amongst the complainant's representatives, the requested relief was changed to full compensation for all lost wages from January 1983, i.e., the date on which the collective agreement was effective, to date, again, less any monies received from the earnings, UIC, etc. It was argued that had the clause terminating recall rights not been (improperly) included in the collective agreement, the complainant would have been recalled at that date. Needless to say, there is not the slightest suggestion that, had the agreement been entirely silent vis a vis recall, the complainant would ever have been recalled. The MacDowell decision suggested the contrary.

17. Timeliness: (a) Although not directly related to the timeliness issue, the complainant's representatives submitted that the union should have insisted on an addendum to the collective agreement providing that the provision terminating recall rights would not take effect until any or all the laid-off union members had been given an opportunity to respond to a bonafide recall, regardless of the length of the recall period offered. Again, this reveals a singular lack of awareness of the bargaining process. The complainant's representatives are attacking the union for negotiating a collective agreement which did not suit the complainant. There seems to be an assumption that the union simply had to ask for certain terms or was under an obligation to ask for certain terms and the company would have automatically agreed. In fact, the union had negotiated in particularly difficult circumstances.

(b) With respect to timeliness, Mrs. Wonch testified as follows:

(i) While researching his case against the company in July and August 1983, the complainant discovered that (in the complainant's view) the union had not represented him in a fair manner (i.e., by not holding a ratification vote accepting the collective agreement). The complain­ant had not given this discovery much weight until about six days before the September 1983 hearing. The Board had advised the complainant to add the union's name under paragraph 3(a) of his complaint against the company [i.e., name of any other person, etc. who may be affected by the complaint].

(ii) Mrs. Wonch also stated that she had a conversation with Mr. Palanuk on July 27. 1983 in the presence of a Mr. Grandbois, a business agent for another union. Mr. Palanuk allegedly asked Mrs. Wonch why the union's name appeared in paragraph 3(a) of the complaint against the company. Mrs. Wonch replied that the Board had suggested this. Mr. Grandbois stated that the complainant was opening up the com­plaint to a [now] section [68] complaint.

(iii) Three or four days prior to the MacDowell hearing on September 7, 1983, Mrs. Wonch learned through a brief conversation with a lawyer that the union should have been joined in the proceeding. Mrs. Wonch replied that they were not complaining against the union, just the company. Mrs. Wonch spoke with Mr. Davey shortly before the hear­ing as well but only with respect to issuing subpoenas.

(iv) Mrs. Wonch represented the complainant at the September hearing. She was informed by the Board that, to appear before the Board, no legal counsel was required. Mr. Davey attended the September 7th hearing as a member of the public; he took no part in the proceeding.

(v) The complainant sought legal aid with respect to filing this complaint but was refused. Mrs. Wonch had numerous contacts with the Board from September 1983 to November 1983 enquiring about proper proce­dures for filing this complaint. As she was working full-time, these contacts took some time; Mr. Wonch, however, was not employed during this period.

(vi) The complainant then requested assistance from Mr. Clark and Mr. Davey. These two individuals met with The Honourable Russell H. Ramsay in January or February 1984 to see if anything could be done; Mr. Ramsay had not replied to date.

(vii) Mr. Clark and Mr. Davey were then asked to represent the complain­ant. The letters to the union (Exhibits 5 and 6) were sent.

(viii)The complainant's representatives attempted to put together the com­plaint in April but, with the three representatives all employed full-time and none being legally trained, the steps took longer. Moreover, the involvement of the representatives in community activities further lengthened the delay. In fact, the complaint, dated July 30, 1984, was received by the Board on August 7, 1984. Mrs. Wonch acknowledged that during the previous year, or at least from September 1983 to July 30, 1984, the complainant had never put the union on notice, nor given any indication, that a complaint under section 68 was to be filed.

V

18. The respondent's submissions are organized according to the three grounds for dismissal originally raised: the complainant was not a bargaining unit member at the time of the alleged violation of section 68 and, thus, the complainant had no status to bring this complaint (hereinafter referred to as status); the complaint did not disclose a cause of action (referred to as prima facie case); the delay in filing the complaint was excessive and prejudicial to the union (referred to as timeliness).

19. Status: The respondent contended that the rights under section 68 are accorded only to "employees in the bargaining unit" and such status at the time of the alleged violation of the duty imposed by section 68 is critical (see Canadian Union of Public Employees, [1974] OLRB Rep. Mar. 176 (at paragraphs 2,3); Bricklayers, Masons Independent Union of Canada, Local, [1979] OLRB Rep. Apr. 278; Lawrence Aluminium Incorporated, [1975] OLRB Rep. Nov. 885 (at paragraph 12); Frank Manoni, [1981]' OLRB Rep. Dec. 1775 (at paragraphs 10, 11, 14, 18); Keith McLeod Sutherland, [1983] OLRB Rep. July 1219; Blue Line Taxi Company Limited, [1983] OLRB Rep. Feb. 192.) Here, the complaint arose after the complain­ant had ceased to be an employee in the bargaining unit or even to have recall or re-employment rights in the bargaining unit. The complainant was laid-off by Rapid Ready-Mix for economic reasons in December 1981. In the interim he worked for another company (Pitts) for ten months. Rapid Ready-Mix had no legal obligation to hire him back — at least before the collective agreement was signed. And, as noted, when the collective agreement was signed, the complain­ant had no recall rights under that agreement. In the MacDowell decision, (paragraph 8) the complainant was found to have been effectively terminated in December 1981 rather than laid-off. The respondent argued that this was a finding as to status, adverse to the complainant, and binding on the complainant. The judicial doctrine of res judicata was developed to avoid an abuse of process in relitigating issues which had already been determined. It was argued that both issue estoppel and findings "in rem" were aspects of the doctrine of res judicata; moreover, a finding in rem is binding even if the parties are not the same as in the original proceeding. The Board clearly has the authority to apply the doctrine of resjudicata (Re Tandy Electronics Ltd. and United Steelworkers of America et al., (1979) 1979 CanLII 1914 (ON HCJ), 26 O.R. (2d) 68 (Div. Ct.); Napev Construction Limited, [1980] OLRB Rep. June 862; Fanshawe College of Applied Arts & Technology, [1981] OLRB Rep. Sept. 1225). In particular, the respondent referred to the Board's decision in Canadian General Electric Company Limited, [1978] OLRB Rep. Apr. 384 regarding the effect of an earlier Board decision on managerial status in a subsequent proceeding. In addition, courts have an inherent jurisdiction to dismiss for abuse of process even where the elements of res judicata are not strictly made out and has used this jurisdiction to prevent relitigation of the same issue even where the parties were not identical (Nigro v. Agnes Surpass Shoe Stores Ltd. et al; Cummer-Yonge Investments Ltd., (third party) Shank-man et al. v. Agnes-Surpass Shoe Stores Ltd. et. al.; Cummer-Yonge lnvestments Ltd. (thirty party) (1977), 1977 CanLII 3406 (ON HCJ), 3 C.P.C. 194 (Ontario High Court); Bank of Montreal v. Crosson et.al. (1979), 1979 CanLII 1833 (ON HCJ), 11 C.P.C. 30 (Ontario High Court)). Although the Board does not possess comparable inherent jurisdiction, the Board does control its own procedure under section 102(13) of the Act. The respondent urged the Board, even if res judicata did not strictly apply, to refuse to relitigate the same fact situation, to accept the finding in the MacDowell decision that the complainant had no status as an employee in the bargaining unit at the time of the alleged contravention and, hence, dismiss the complaint.

20. Prima facie case: The respondent submitted that the essence of the complainant's allegations was that the union should not have negotiated a provision in the collective agreement terminating recall rights after a specified period and/or should have submitted the collective agreement for ratification by "former" employees. Firstly, the clause regarding recall rights

was a standard provision in many collective agreements and there was no suggestion that there was any subjective ill-will directed against the complainant. The inclusion of the clause reflected the relatively poor bargaining position of the union and nothing more. Secondly, to have delayed in negotiating the Sault Ste. Marie collective agreement while there were no employees in the bargaining unit was not unreasonable; the union had kept its bargaining rights alive and, in fact, resisted a termination application. Thirdly, the union's decision not to go back to the former employees to ratify the collective agreement was sensible; to have done otherwise would have been an academic exercise, as described in the MacDowell decision (paragraph 12). However, even if this action violated the union's constitution that was not, in itself, a contravention of section 68 (Frank Manoni,supra). In short, none of these allegations, even if proved, constituted a violation of section 68. With respect to the complainant's grievance, the union's decision not to proceed to arbitration was unimpeachable given that the complainant had no seniority under the collective agreement and, hence, the grievance was certain to fail at arbitration. [It is not necessary to recount the respondent's position regarding the alleged non-enforcement of Article 3.03 and the operation of the hiring hall given that a representative of the complainant conceded that these matters were not properly before this Board; see paragraph 24 below.]

21. Timeliness: The respondent submitted that the delay was unreasonable and prejudi­cial. The complainant was aware in about July 1983 of the potential claim against the union. Legal advice shortly before the September 7, 1983 hearing confirmed that the union should have been joined. Yet the complainant gave no indication that a section 68 complaint would be forthcoming until some thirteen months after he was aware of a potential claim. The two requests for information in early 1984 did not amount to notice to the union. Moreover, the previous complaint against the employer had raised many of the same factual issues, and, indeed, having come through a Board hearing, the complainant could not be described as being totally unaware of the Board's existence and its procedures. The prejudice to the union flowed from the lengthy passage of time (and concomitant fading memories) especially since some of the events at issue occurred as far back as 198 1. Without reasonable excuse for the delay the complaint should be dismissed. Cases referred to in support generally include: CCH Canadian Limited, [1977] OLRB Rep. June 351 (at paragraph 3); Luciano D'Alessandro, [1983] OLRB Rep. Oct. 1699 (paragraph 16); Conestoga College of Applied Arts & Technology, [1983] OLRB Rep. June 882. Further, it was argued that the complainant, having lost against the company, was really "switching targets" and this should not be permitted: Chrysler Canada Limited, [1982] OLRB Rep. Oct. 1417 (paragraph 59). In any event, since the delay in filing the section 68 complaint essentially covered the period of damages (i.e, for lost wages from January, 1983 when the collective agreement was signed) and the Board usually refuses to award damages for the period of delay, there would be no useful purpose in hearing the merits in this case; D'Alessandro, supra. Finally, from a labour relations perspective, it would be inappropriate to resurrect matters potentially affecting other employees at this late date; Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420 (paragraph 20 and 22); Sheller-Globe, [1982] OLRB Rep. Jan. 113 (paragraph 13).

VI

22. In reply, each of the complainant's representatives had some final comments. Mr. Davey reiterated his earlier submission that Mr. Palanuk had either been deceiving Mr. Wonch about the recall rights or the union had violated section 68 by not holding a ratification vote, i.e., by not giving Mr. Wonch the opportunity to reject the collective agreement. It was asserted that Mr. Palanuk had acted in an arbitrary fashion by agreeing to a term in a collective agreement which he must have known would harm some members who had been on layoff for a considerable time. Further, the fact the Mr. Palanuk had initially filed a grievance in June 1983 was proof that Mr. Palanuk thought Mr. Wonch had recall rights and was merely laid off. With respect to the delay, Mr. Davey submitted that some delay was attributable to the fact that it was difficult to have ready access to the Board, given its location in Toronto. He suggested that perhaps some information given by articling students was not accurate, thus, increasing the delay (no further details were provided on this point). Finally, Mr. Wonch had sought further information from the union and, when this was not forthcoming, he filed a complaint with the Board. Mr. Davey also suggested that there were additional facts to be introduced before the Board. The Board reminded Mr. Davey that the complainant's represent­atives had been given a full opportunity to state all the facts which they intended to prove, that the Board had asked several times if all the facts were set out and that the complainant's representatives had replied in the affirmative. Mr. Davey then conceded that the facts had been summarized but he expected the witnesses to give their testimony in greater depth.

23. Mr. Clark, the second representative of the complainant, essentially submitted that it was a violation of section 68 for the union to accept clauses in a collective agreement which would eliminate recall rights of laid-off employees whom the union had previously encouraged to support the union in its certification application. If the union was permitted to do this, it would be a dangerous precedent for the entire labour movement since it would permit an employer to layoff employees post-certification and then include clauses in a collective agree­ment which deprived employees of recall rights. In this case, the initial union proposals had not included a clause eliminating recall rights after a specified period of time and the collective agreement was based on the union's proposals. Mr. Clark did not address the fact that, despite his expressed concerns, it is not at all unusual for a collective agreement to provide that employees on indefinite layoff, after a time, no longer have recall rights.

24. Mrs. Wonch, the complainant's third representative, basically argued that if the union had signed a collective agreement with Rapid Ready-Mix at Sault Ste. Marie at the same time as the Sowerby collective agreement was signed, i.e., December 22, 1981, the employees' rights at Sault Ste. Marie would have been protected. She conceded that she was not asserting that the union had deliberately delayed the negotiation of the Sault Ste. Marie collective agreement so as to ensure that the recall provision would operate to eliminate Mr. Wonch's recall rights. Mrs. Wonch reiterated that Employment Standards legislation required that a registered letter be sent in order to terminate, rather than layoff, an employee. She also reiterated the argument that the union should have gone back to the employees on lay-off to ratify the collective agreement; that would not have been an "academic exercise" but would have given the employees input. Finally, Mrs. Wonch agreed that the complaint had not been filed under section 69 and, consequently, there was no basis for an argument that the union had not sought to enforce Article 3.03 of the collective agreement.

VII

25. The Board has set out the proceedings and the submissions of the complainant's representatives in considerable detail because the complainant was not represented by legal counsel. That, in itself, is not uncommon in section 68 complaints. The Board has considerable experience in explaining its procedures to lay persons who appear before it, lest there be a denial of natural justice. However, the Board must be careful lest a concern for the complainant who is unsophisticated and unrepresented (by counsel) prejudice the rights of a respondent who must appear and defend against what might be uninformed and ill-founded allegations.

26. In this case, the complainant had three representatives, Mrs. Wonch (the complain­ant's wife), Mr. Davey and Mr. Clark. The Board permitted all three representatives to address the various issues as they saw them. Indeed, the Board permitted the representatives to elaborate on — but not to contradict — each other's submissions. This rule, in fact, had to be enforced on several occasions where one representative would begin by repudiating what had just been urged upon the Board by another representative. At these points, the Board stopped the proceedings until the complainant's representatives agreed amongst themselves as to precisely what they were arguing before the Board.

27. The Board also took considerable time to explain its procedure, especially with respect to the direction to stipulate all the facts which the complainant's representatives intended to lead and to make various submissions on the assumption those facts were true. The reason for this manner of proceeding is straight forward. Proceedings before this Board are not without costs in terms of monies spent and the time involved for both the parties and the Board itself. Where there seems to be a question as to whether there is a prima facie case, it is sensible to require the complainant to state the facts which he intends to prove. If, even assuming those facts were true, there is no violation of the Act, the Board may dismiss the complaint without hearing the testimony by which the complainant intends to prove those facts. This avoids a lengthy, costly and ultimately pointless hearing. It is a procedure which makes sense and has regularly been employed. Indeed, the rules even contemplate that the Board may dismiss a case without any hearing whatsoever if the complaint does not disclose a prima facie case.

28. Mr. Davey, in particular, repeatedly stated that he had appeared in numerous Board proceedings (and presumably would be more knowledgeable than a typical lay person). But, he did not seem to comprehend the Board's directions on this manner of proceeding despite repeated explanations and reminders. The Board again must comment that the complainant's representatives generally did not demonstrate a basic grasp of the issues, of the legal and statutory framework within which the complainant's rights would be and must be determined. The relationship of the duty under section 68 and the submissions of the complainant's representatives was often tangential at best. Nonetheless, the complainant's representatives were given full opportunity to set out the facts they intended to prove and their submissions.

VIII

29. The complainant objects to the manner in which the collective agreement was negotiated, the content of that agreement (specifically, the provision regarding recall rights) and the failure to have the agreement ratified by former/laid-off employees. Even if these matters, as alleged, were true, the Board does not consider these complaints amount to a violation of section 68.

30. Section 68 reads:

31. A trade union or council of trade union 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.

32. The Board sees nothing contrary to section 68 in the union's decision to accede to the company's demand to postpone negotiations at the Sault Ste. Marie plant until the Sowerby agreement was negotiated (see Rapid Ready-Mix Limited, [1982] OLRB Rep. Sept. 1348.) Nor, was there anything contrary to the duty of fair representation in suspending negotiations until the Sault Ste. Marie plant was in a position to operate with bargaining unit employees. As the MacDowell decision states, ". .. we do not draw any adverse inference from the length of time taken to negotiate a collective agreement in respect of a plant at a facility which was shut down for substantial periods of time and, even when operating, was working at a substan­tially reduced scale in a volatile and uncertain business climate. . ." (at paragraph 12). It should be added that, during this period, the union maintained its bargaining rights and successfully defended against a company application to terminate bargaining rights. The pace of negotia­tions, and indeed the content of the collective agreement ultimately signed, also reflected the union's relatively weak bargaining position.

33. Because the content of a collective agreement is determined by a number of factors, but overwhelmingly by the economic clout of the respective parties, the Board has generally refused to pass judgement on the content of a collective agreement in section 68 complaints. The Board will intervene, however, if the provisions discriminate amongst employees without rational reason or if motivated by personal animosity. As set out in Douglas Aircraft Company of Canada Ltd., [1976] OLRB Rep. Dec. 779 at 789:

To summarize the position of the Board, therefore, we suggest that "discrim­inatory" in section 60 [now 68] is designed to prevent distinctions in treatment accorded individual employees or groups of employees which are made without the support of cogent labour relations reasons. The focus of the concern is the distinction itself rather than on the motive for the distinction. Thus a distinction made without motive may be discriminatory if it lacks the underpinning of reasonableness defined from a labour relations point of view. By the same token a seemingly reasonable distinction may become discriminatory if it is motivated by hostility.

See also Dufferin Aggregates, [1982] OLRB Rep. Jan. 35; The Algoma Steel Corporation, Limited, [1981] OLRB Rep. June 611; Dufferin Concrete Products, [1983] OLRB Rep. Dec. 2014; The Corporation of the City of Thunder Bay, [1983] OLRB Rep. May 781.

33. In the instant case, it was conceded there was no personal animosity. More important­ly, the provision regarding recall rights is not uncommon in collective agreements. It is difficult to assert that a relatively common provision in collective agreements is not supported by cogent labour relations reasons. Nor did the complainant's representatives assert there were no such cogent labour relations reasons. There was no suggestion that the union, in acceding to such a clause — for it was not in the initial proposals of the union (according to the complainant's representatives) — was acting for reasons other than to secure the best possible collective agreement in what were undoubtedly difficult circumstances. Even assuming, as the complain­ant submitted, that Mr. Palanuk was assuring the complainant as late as December 1982 that the union was negotiating a collective agreement which would protect the complainant's seniority for recall, this cannot be read forward in time so as to taint the union's acceptance in 1983 of a collective agreement with a provision eliminating recall rights after a specified period of lay-off. Such an extension of the duty of fair representation would hamstring negotiations and would fly in the face of the realities of collective bargaining. Again, as stated in paragraph 14, the union was negotiating a first collective agreement. The complainant had no recall rights or seniority except in so far as that first collective agreement created such rights. To reiterate the point, that the collective agreement did not create recall rights for persons who had no employment relationship with the company for over twelve months is not, of itself, a violation of section 68.

34. The alleged failure to hold a ratification vote must next be examined. This Board adopts the remarks in the MacDowell decision, at paragraph 12:

... Nor is is particularly surprising that there was no ratification vote, even if the union's constitution requires it. George Palanuk, the local union business representative, testified that there were only one or two employees potentially bound by the agreement and he discussed its contents with them before it was signed. A ratification vote would have been more than a little academic .

[The Board notes that the disagreement by the complainant's representatives with the facts on this aspect of the MacDowell decision (see paragraph 6, supra) is so minor as to be ignored]. Furthermore, the Board does not act as a watchdog or enforcer of internal union affairs which do not also involve a violation of other sections of the Act. The Board affirms this position, as stated in Frank Manoni, supra, and cases cited therein, including Mario Moreira, [1980] OLRB Rep. July 1039; A. J. Roberts, [1974] OLRB Rep. March 169. In this case, since the right to a ratification vote is founded, if at all, in a union's constitution or bylaws and not in the Labour Relations Act, and violation of other sections of the Act was not alleged, the Board is not prepared to characterize the alleged failure to hold a ratification vote as a contravention of section 68. This Board agrees with the earlier Board's conclusion that a ratification vote would have been academic, and the decision not to engage in an academic exercise is not arbitrary, discriminatory or in bad faith.

35. As well, the Board does not regard the union's decision not to proceed to arbitration with the complainant's grievance (filed in July 1983) as contrary to the duty of fair representa­tion. The filing of the grievance is not proof that the union regarded the complainant as merely being on lay-off and not terminated. Rather, the union was attempting to assist the complainant in getting back his job. The filing of a grievance, like the issuance of a writ, may produce advantages for the griever/plaintiff, regardless of the merit of the claim. However, once the internal grievance process is finished, a union is faced with incurring substantial costs at arbitration. A union may properly refuse to take that step provided the union has "turned its mind" to the grievance. A useful elaboration of the duty of fair representation is found in The Municipality of Metropolitan Toronto, [1978] OLRB Rep. Feb. 143 [the Gormley case], at paragraph 18:

Over the years many aspects of the duty of fair representation have settled into place. The Board has repeatedly held that in order not to act in an arbitrary manner in the processing of a grievance, the union must direct its mind to the merits of the grievance and act on the available evidence. While the effective operation of the grievance machinery requires that unions also be allowed to consider factors beyond the merits of a particular grievance in deciding whether to process a grievance on to arbitration, considerations of this nature must have their roots in the welfare of the bargaining unit and the bargaining process and must not be based on irrelevant facts or principles. Additionally, a union is prohibited from processing a grievance in bad faith. An employee must not become the victim of the union's ill will such that a dislike for an individual dictates the path of the grievance rather than the merits of the grievance or legitimate concerns for the welfare of the bargaining unit and bargaining process. The prohibition against a union acting in a manner that is discriminatory func­tions to prevent a union from distinguishing among members in the bargain­ing unit unless there are good reasons for so doing. To avoid acting in a manner that is discriminatory, the duty requires, in general, that like situations be treated in a like manner and that neither particular favour nor disfavour befall any individual apart from the others unless justified by the circumstances. The duty does not make the union the guarantor for every aggrieved employee. Instead, the duty requires that the union consider the position of all of its members and that it weigh the competing interests of minorities or individuals in arriving at its decision.

36. In the instant case, the complainant's representatives did not really press the issue of the handling of the grievance. Counsel for the respondent stated the union did not proceed to arbitration because they knew the grievance could not succeed and the complainant's representatives did not dispute this, except to assert that the filing of the grievance proved the union thought there were recall rights. The Board has already commented on this error in reasoning. The Board finds it was at least reasonable (and probably correct) for the union to conclude that the grievance would have failed at arbitration because of the collective agreement clause under which the complainant's recall rights were terminated. Moreover, it is conceded by the complainant's representatives that there was no personal animosity or ill-will directed toward the complainant by the union's officials. Thus, the complainant's assertion that section 68 was violated in the union's decision not to proceed to arbitration must fail.

IX

37. In the alternative, in the circumstances of this case, the Board would be disposed to exercise its discretion under the Labour Relations Act to decline to inquire into the complaint because of the considerable delay involved. The Board described its approach to delay in filing section 68 complaints in The Corporation of the City of Mississauga, supra:

38. 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 crystal­lized, 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 maters 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. (Arthurs)).

39. 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.

40. 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 involved 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.

[See also: Sheller-Globe Canada Limited, supra, where the Ontario Divisional Court in a unanimous judgement dated June 28, 1983 declined to judicially review the Board's dismissal of a complaint after entertaining evidence and submissions with respect to the delay in filing and without an inquiry into the merits].

38. In the instant case, the complainant was aware of a possible claim against the union as early as July or August 1983. While it might have been understandable for the complainant to have awaited the outcome of the Board hearing concerning the complainant's action against the company, there was no credible reason for the considerable delay from September 1983 (when the MacDowell decision issued) until August 1984. The union had no notice of an impending section 68 claim; the usual problems of fading recollections, etc., are compounded by this lack of notice. The letters requesting information (Exhibits 4, 5) do not constitute notice. What is even more prejudicial is the fact that some of the events underlying the claim date back to December 1981. The only reasons offered for the delay from September 1983 to August 1984 were that the complainant's representatives (although not the complainant) were em­ployed full-time during this period, were lay persons and were involved with other activities as well. The requirement that communications with the Board be by telephone or letter, given the location of the Board's offices, was also cited.

39. The Board simply does not accept these reasons as sufficient excuse for the length of the delay. The complainant was not naive as to Board procedures. The complainant had been through one proceeding and should have known that allegations of impropriety must be proved. To file an unfair labour practice complaint against the union is no more difficult than to file a complaint against a company and, as stated, the complainant had previously filed a complaint against his former employer. The complainant may have selected representatives who had too many other commitments or were not particularly knowledgeable. But the consequences of these choices must be borne by the complainant, not the union.

40. As stated in Sheller-Globe, supra, at paragraph 13, "... 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 parties to a collective agreement are entitled to continue an ongoing relationship in response to changing circumstances without having the spectre of matters far in the past being resurrected, matters which could well threaten labour relations stability by seeking to disentangle an intricate relationship to ascertain rights at a much earlier point in time. In many instances, it will not be possible to respond to violations of rights in the past without wreaking havoc on the rights and expectations of others legitimately and reasonably generated through the continued collective bargaining relationship. It is the concern with strengthening, not undermining, the collective bargaining relationship which leads the Board to require compelling labour relations reasons to go back so far in time. Here the havoc could well be considerable given that other employees in the bargaining unit have been hired, have accumulated seniority, etc. The Board considers there are no such compelling labour relations reasons for undertaking such an exercise in the present case.

X

41. Finally, the Board would dismiss the complaint on the ground that the complainant was not an employee in the bargaining unit at the time of the alleged contravention of the duty of fair representation, i.e. in January 1983 (the date the collective agreement was effective). The Board relies on the cases cited by the respondent in paragraph 19, above, wherein status as an employee in a bargaining unit where the respondent hold bargaining rights is critical (i.e., Canadian Union of Public Employees; Bricklayers; Lawrence Aluminium; Frank Manoni; Blue Line Taxi; Keith MacLeod Sutherland, supra). However, the Board does not consider it necessary to deal with the respondent's analysis of the doctrine of res judicata. Rather, the Board starts with the undisputed facts that the complainant stopped working for Rapid Ready-Mix in December 1981 and subsequently was referred by the union to another company (Pitts) and worked for that company for some ten months. In the MacDowell decision (paragraph 8), the complainant was found to have been effectively terminated in December 1981, rather than laid off. The complainant's representatives have made no submissions nor stipulated facts which they intended to prove and which, if assumed to be true, would pursuade this Board to reach a different conclusion. This Board, then, concurs with the MacDowell decision on this point and finds the complainant to have been terminated, not laid-off, in December 1981. As the alleged contravention of section 68 of the Act arose after that date, the Board finds that the complainant was not a member of the bargaining unit at the time of alleged violation and, therefore, the complainant does not have the necessary status to bring this complaint.

XI

42. For the foregoing reasons, the Board is satisfied that this complaint must be dismissed on the grounds that:

(a) on the merits, there was no violation of the duty in section 68 of the Act;

(b) in the alternative, in these circumstances, the Board would exercise its discretion under Act to decline to inquire into the complaint because of the delay involved;

(c) in any event, the complainant was not an "employee in the bargaining unit" at the time of the alleged contravention of section 68 and, hence, the respondent owed no duty of fair representation to the complaint at the relevant time period.